R£YIS£D  AXD  EXI.ARGEI>  EDITION, 


LAW  DICTIONARY, 


ADAPTED  TO  THE 


CONSTITUTION  AND  LAWS 


TINITED  STATES  OF  AMERICA, 


AND  OF  THE 


WITH  KEFERENCES  TO  THE  CIVIL  AND  OTHER  SYSTEMS  OF  FOREIGN  LAW. 
By  JOHN  BOUVIER. 


Ignoratis  terminis  ignoratur  et  ars.— Co,  Litt.  2  a. 
Je  sais  que  chaque  science  et  chaque  art  a  ses  termes  propres,  inconnu  au  commun  des  hommes.— Fleuby. 


FOURTEENTH  EDITION,  REVISED  AND  GREATLY  ENLARGED. 
VOL.  II. 


PHILADELPHIA: 
J.  B.  LIPPINCOTT  &  CO.^ 
1  87  8. 


Entered  according  to  Act  of  Congress  In  the  year  1839  by 
JOHN  BOUVIER, 

in  the  Cleric's  Office  of  the  District  Court  of  the  United  States  for  the  Eastern  District  of  Pennsylvania. 


Entered  according  to  Act  of  Congress,  in  the  year  1843,  by 
,  JOHN  BOUVIER, 
in  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  Eastern  District  of  Pennsylvania. 


Entered  according  to  Act  of  Congress,  in  the  year  1848,  by 
JOHN  BOUVIER, 

to  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  Eastern  District  of  Pennsylvania. 


Entered  according  to  Act  of  Congress,  in  the  year  1852,  by 
ELIZA  BOUVIER  AND  ROBT.  E.  PETERSON,  Trustees, 
in  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  Eastern  District  of  Pennsylvania. 


Entered  according  to  Act  of  Congress,  in  the  year  1867,  by 
ELIZA  BOUVIER  AND  ROBT.  E.  PETERSON,  Trustees, 
in  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  Eastern  District  of  Pennsylvania. 


LAW  DICTIONARY 


LABEL.  A  narrow  slip  of  paper  or  parch-  1 
ment  affixed  to  a  deed  or  writing,  hanging  at 
or  out  of  the  same.    This  name  is  also  given 
to  an  appending  seal. 

LABOR.    Continued  operation ;  work. 

The  labor  and  skill  of  one  man  is  fre- 
quently used  in  a  partnership,  and  valued 
as  equal  to  the  capital  of  another. 

When  business  has  been  done  for  another, 
and  suit  is  brought  to  recover  a  just  reward, 
there  is  generally  contained  in  the  declara- 
tion a  count  for  work  and  labor. 

Where  penitentiaries  exist,  persons  who 
have  committed  crimes  are  condemned  to  be 
imprisoned  therein  at  labor. 

LABOR  A  JURY.  To  tamper  with  a 
iury;  to  persuade  jurymen  not  to  appear, 
it  seems  to  come  from  the  meaning  of  labor, 
to  prosecute  with  energy,  to  urge:  as,  to  labor 
a  point  Dy.  48;  Hob.  294;  Coke,  Litt.  157 
hf  14  &  20  Hen.  Vll.  30,  11.  The  first  law- 
yer that  came  from  England  to  practise  in 
Boston  was  sent  back  for  laboring  a  jury. 
Washburn,  Jud.  Hist. 

LACHES  (Fr.  lacker).  Negligence. 

2.  In  general,  when  a  party  has  been  | 
guilty  of  laches  in  enforcing  his  right  by 
great  delay  and  lapse  of  time,  this  circum- 
stance will,  at  common  law,  prejudice  and 
sometimes  operate  in  bar  of  a  remedy  which 

5~TriS  discretionary  and  not  compulsory  in  the 
K  court  to  afford.  In  courts  of  equity,  also,  de- 
l  lav  will  generally  prejudice.  1  Chitty,  Pract. 
f  786,  and'  the  cases  there  cited  ;  8  Comyns, 
Dig.  084;  6  Johns.  Ch.  N.  Y.  360. 

3.  But  laches  may  be  excused  from  igno- 
rance of  the  party's 'rights,  2  Mer.  Ch.  362; 
2  Ball  &  B.  Ch.  Ir.  104 ;  from  the  obscurity  of 

I— the  transaction,  2  Schoales  &  L.  Ch.  Ir.  487  ; 
by  the  pendency  of  a  suit,  1  Schoales  &  L. 
Ch.  Ir.  413;  and  where  the  party  labors  un- 
der a  legal  disability:  as,  insanity,  coverture, 
infancy,  and  the  like.  And  no  laches  can  be 
imputed  to  the  public.  4 -Mass.  522;  3  Serg. 
&  R.  Penn.  291 ;  4  Hen.  &  M.  Va.  57 ;  1  Penn. 
476.  See  1  Belt,  Supp.  to  Ves.  Ch..436;  2 
id.  170;  Dane,  Abr.  Index;  4  Buuvier,  Inst, 
u.  39X1. 


LADY'  S  PR'fEND.  The  name  of  a 
functionary  in  the  British  house  of  commons. 
When  the  husband  sues  for  a  divorce,  or  asks 
the  passage  of  an  act  to  divorce  him  from  his 
wife,  he  is  required  to  make  a  provision  for 
her  before  the  passage  of  the  act:  it  is  the 
duty  of  the  lady's  friend  to  see  that  such  a 
provision  is  made.  Macquand,  Husb.  &  W. 
213. 

LiESA  MAJESTAS  (Lat.).  Lsese-ma- 
jesty,  or  injured  majesty;  high  treason.  It 
is  a  phrase  taken  from  the  civil  law,  and  an- 
ciently meant  any  offence  against  the  king'a 
person  or  dignity,  defined  by  25  Edw.  III.  c. 
6.  See  Glanville,  lib.  5,  c.  2;  4  Sharswood, 
Blackst.  Comm.  75;  Bracton,  118;  Crimen 
L^s.E  Majestatis. 

LAGA.    The  law. 

LAGAN  (Sax.  liggan,  ciibare).  Goods 
found  at  ^uch  a  distance  from  shore  that  it 
was  uncertain  what  coast  they  would  be  car- 
ried to,  and  therefore  belonging  to  the  finder. 
Bracton,  120.    See  Ligax. 

LAHLSLIT  .(Sax.).    A  breach  of  law. 
Cowel.    A  mulct  for  an  off'ence,  viz.:  twelve 
I  "  ores."    1  Anc.  Inst.  &  Laws  of  Eng.  169. 

LAIRESITE.  The  name  of  a  fine  im- 
'  posed  upon  those  who  committed  adultery  or 
fornication.  Tech.  Diet. 
!  LAITY.  Those  persons  who  do  not  make 
'  a  part  of  the  clergy.  In  the  United  States 
I  the  division  of  the  people  into  clergy  and  laity 
!  is  not  authorized  by  law,  but  is  merely  con- 
ventional. 

LAMB.  A  ram,  sheep,  or  ewe  under  the 
age  of  one  year.    4  Carr.  &  P.  216. 

LAMBETH  DEGREE.  A  degree  given 
by  archbishop  of  Canterbury.  1  Sharswood, 
Blackst.  Comm.  381,  n.  Although  he  can 
confer  all  degrees  given  by  the  two  universi- 
ties, the  graduates  have  many  privileges  not 
shared  by  the  recipients  of  his  degrees. 

LAND,  LANDS.  A  term  comprehend- 
ing any  ground,  soil,  or  earth  whatsoever:  as, 
meadows,  pastures,  woods,  waters,  marshes, 
furzes,  and  heath.    Arable  land. 

3 


I 


LAND,  LANDS 


LANDLORD  AND  TENANT 


An  estate  of  frank  tenement  at  the  leaf 
Sheppard,  Touchst.  92. 

Liind  has  an  indefinite  extent  upward  as  well 
as  downwards:  therefure,  land  legally  includes  all 
houses  or  other  buildings  standing  or  built  oii  it, 
and  whatever  is  in  a  direct  line  between  the  surface 
and  the  centre  of  the  earth.  3  Kent,  Comm.  378.  n. 
See  Coke,  Litt.  4  a;  Wood,  Inst.  120  ;  2  Sharswood, 
B:ack<t.  Coram.  18;  1  Cruise,  Dig.  58.  It  is  not 
so  broad  a  term  as  tenenienls.  or  hereditaments,  but 
has  been  defined  in  some  states  as  including  these. 

I  Washburn.  Ileal  Prop.  9. 

In  the  technical  sense,  freeholds  are  not  included 
within  the  word  lands.  3  Madd.  Ch.  535.  The 
term  terra  in  Latin  was  used  to  denote  land,  from 
terendo,  quia  vomere  teritur  (because  it  is  broken 
by  the  plough),  and,  accordingly,  in  fines  and  re- 
coveries, land,  i.e.  terra,  has  been  held  to  mean 
arable  land.    Salk.256;  Cowp.  346;  Coke,  Litt.  4  (r ; 

II  Coke,  55  a.  But  see  Croke  Eliz.  476:  4  Bingh. 
91):  Burton,  Real  Prop.  196.  See,  also,  2  P.Will. 
Ch.  458,  n. ;  5  Ves.  Ch.  476;  20  Viner,  Abr.  203. 

2.  Land  includes,  in  general,  all  the  build- 
ings erected  upon  it,  9  Day,  Conn.  374 ;  but  to 
this  general  rule  there  are  some  exceptions. 
It  is  true  that  if  a  stranger  voluntarily  erect 
buildings  on  another's  land,  they  will  belong 
to  the  owner  of  the  land,  and  will  become  a 
part  of  it,  16  Mass.  449 :  yet  cases  are  not 
wanting  where  it  has  been  held  that  such  an 
erection,  under  peculiar  circumstances,  would 
be  considered  as  personal  property.  4  Mass. 
514:  5  Pick.  Mass.  487  ;  Sid.  203,  402;  6 
N.  H.  555 ;  10  Me.  371 ;  1  Dan.  Ky.  591  ;  1 
Burr.  144.  It  includes  mines,  except  mines 
of  gold  and  silver;  and  in  the  United  States 
a  grant  of  public  lands  will  include  these 
also.  3  Kent,  Comm.  378,  n.;  IN.  Y.  572. 
See  Mines. 

^  3.  If  one  be  seised  of  some  lands  in  fee, 
and  possessed  of  other  lands  for  years,  all  in 
one  parish,  and  he  grant  all  his  lands  in  that 
parish  (without  naming  them),  in  fee-simple, 
or  for  life,  by  this  grant  shall  pass  no  more 
but  the  lands  he  hath  in  fee-simple.  Shep- 
pard, Touchst.  92.  But  if  a  man  have  no 
freehold  estate,  "  lands,"  in  a  will,  will  pass 
his  leasehold  ;  and  now,  by  statute,  leasehold 
will  pass  if  no  contrary  intent  is  shown,  and 
the  description  is  applicable  even  if  he  have 
freehold.  1  Vict.  c.  26;  2  Bos.  &  P.  303; 
Croke  Car.  292  ;  1  P.  Will.  Ch.  286  ;  II  Beav. 
Rolls,  237,  250. 

Generally,  in  wills,  "land"  is  used  in  its 
broadest  sense.  1  Jarman,  Wills,  Perkins 
ed.  604,  n. ;  Powell,  Dev.  Jarman  ed.  186.  But 
as  the  word  has  two  senses,  one  general  and 
one  restricted,  if  it  occurs  accompanied  with 
other  words  which  either  in  whole  or  in  part 
supply  the  difference  between  the  two  senses, 
that  is  a  reason  for  taking  it  in  its  less  general 
sense:  e.g.  in  a  grant  of  lands,  meadows,  and 
pastures,  the  former  word  is  held  to  mean 
only  ara})le  land.  Burton,  Real  Prop.  183  ; 
Croke  Eliz.  47(),  659:  2  And.  123. 

4.  Incorporeal  hereditaments  will  not  pass 
under  "lands,"  if  there  is  any  otlier  real 
estate  to  satisfy  the  devise ;  but  if  there  is 
no  other  such  real  estate  they  will  pass,  ])y 
ptatute.  M(K)re,  359,  pi.  49;  3  <fc  4  Will.  IV. 
cc.  74,  105,  lOG 


.AND  CEAP,  LAND  CHEAP  (land, 
I  duu  Sax.  ceapan,  to  buy).    A  line  payable  in 
I  money  or  cattle,  upon  the  alienation  of  land, 
'  within  certain  manors  and  liberties.  Cowel, 
Gloss. 

LAND  COURT.    In  American  Law. 

The  name  of  a  court  in  the  city  ut'  !^t.  Louis, 
state  of  Missouri,  having  sole  jurisdiction  in 
St.  Louis  county  in  suits  respecting  lands, 
and  in  actions  of  ejectment,  dower,  partition. 
See  Missouri. 

LAND-MARK.  A  monument  set  up  in 
order  to  ascertain  the  boundaries  between 
two  contiguous  estates.  For  removing  a  land- 
mark an  action  lies.  1  Thomas,  Coke,  Litt. 
787.    See  Monuments. 

LAND  TAX.  A  tax  on  beneficial  pro- 
prietor of  land :  so  far  as  a  tenant  is  bene- 
ficial proprietor,  and  no  farther,  does  it  rest 
on  him.  It  has  superseded  all  other  methods 
of  taxation  in  Great  Britain.  Sugden,  Vend. 
268.  It  was  first  imposed  in  1693,  a  new 
valuation  of  the  lands  in  the  kingdom  having 
been  made  in  1092,  which  has  not  since  been 
changed.  In  1798  it  was  made  perpetual,  at 
a  rate  of  four  shillings  in  a  pound  of  valued 
rent.  See  Encyc.  Brit.  Taxation;  Wharton, 
Lex,  2d  Lond.  ed. 

LAND  TENANT  (commonly  called  tene 
tenant).   He  who  actually  possesses  the  land. 

LANDLORD.  The  lord  or  proprietor  of 
land,  who,  under  the  feudal  system,  retained 
the  dominion  or  ultimate  property  of  the 
feud,  or  fee  of  the  land  ;  while  his  grantee, 
who  had  only  the  possession  and  use  of  the 
land,  was  styled  the  feudatory,  or  vassal, 
which  was  only  another  name  for  the  tenant  or 
holder  of  it.  In  the  popular  meaning  of  the 
word,  however,  it  is  applied  to  a  person  who 
owns  lands  or  tenements  which  he  rents  out 
to  others. 

LANDLORD  AND  TENANT.  A  term 
used  to  denote  the  relation  which  subsists 
by  virtue  of  a  contract,  express  or  implied, 
between  two  or  more  persons,  for  the  posses- 
sion or  occupation  of  lands  or  tenements 
either  for  a  definite  period,  for  life,  or  at 
will. 

2.  AVhen  this  relation  is  created  by  an  ex- 
press contract,  the  instrument  made  use  of 
for  the  purpose  is  called  a  lease.  See  Lease. 
But  it  may  also  arise  by  necessary  implication 
from  the  circumstances  of  the  case  and  the  re- 
lative position  of  the  parties  to  each  other;  for 
the  law  will  imply  its  existence  whenever 
there  is  an  ownership  of  land  on  the  one 
hand  and  an  occupation  of  it  by  permission 
on  the  other ;  and  in  all  such  cases  it  will  be 
presumed  that  the  occupant  intends  to  com- 
pensate the  owner  for  the  use  of  the  pre* 
mises.  4  Conn.  473 ;  4  Pet.  84 ;  3  Wend.  N. 
Y.  219;  7  La.  83  ;  6  Ad.  &  E.  854;  Taylor, 
Landl.  &  Ten.  §  19. 

3.  The  ivitention  to  create.  This  relation 
may  be  inferred  from  a  variety  of  circum- 
stances ;  but  the  most  obvious  acknowledg- 
ment of  its  existence  is  the  payment  of  rent ; 


LANDLORD  AND  TENANT  5 


LANDLORD  AND  TENANT 


and  this  principle  applies  even  after  the  ex- 
piration of  an  express  term  of  years  ;  for  if 
a  tenant  continues  to  hold  over,  after  his 
term  has  run  out,  the  landlord  may,  if  he 
chouses,  consider  him  a  tenant,  and  he  is,  in 
fact,  understood  to  do  so,  unless  he  proceeds 
to  eject  him  at  once.  If  the  landlord  suffers 
him  to  remain,  and  receives  rent  from  him, 
or  by  any  other  act  acknowledges  him  as 
tenant,  a  new  tenancy  springs  up,  of  so  defi- 
nite a  character  that  it  cannot  be  terminated 
by  either  party,  except  by  a  roas(mablo  notice 
to  quit.  15  Johns.  N.  Y.  505;  1  Den.  N.  Y. 
ll;3;  4  M'Cord,  So.  C.  59;  2  Esp.  528;  4 
Campb.  275  ;  2  Carr.  &  P.  348. 

The  payment  of  money,  however,  is  only  a 
'prima  J'acie  acknowledgment  of  the  exist- 
ence of  a  tenancy ;  for  if  it  does  not  appear 
to  have  been  paid  as  rent,  but  stands  upon 
some  other  consideration,  it  will  not  be  evi- 
dence of  a  subsisting  tenancy.  3  Barnew.  & 
C.  413;  10  East,  261;  11  Ad.  &  E.  307  ;  4 
Bingh.  91.  Neither  does  a  mere  participa- 
tion in  the  profits  of  land,  where  the  owner 
is  not  excluded  from  possession,  nor  the  let- 
ting of  land  upon  shares,  unless  the  occupant 
expressly  agrees  to  pay  a  certain  part  of  the 
crop  as  rent,  in  either"  case  amount  to  a  ten- 
ancv.  16  Mass.  443  ;  1  Speers,  S;).  C.  408  ; 
3  M'Cord,  So.  C.  211 ;  1  Gill  &  J.  Md.  266;  3 
Zabr.  N.  J.  390;  2  Rawle,  Penn.  11;  3  Hill, 
N.  Y.  90;  15  Wend.  N.  Y.  379. 

4.  But  the  relation  of  landlord  and  ten- 
ant will  not  be  inferred  from  the  mere  occu- 
pation of  land,  if  the  relative  position  of  the 
parties  to  each  other  can,  under  the  circum- 
stances of  the  case,  be  referred  to  any  other 
distinct  cause:  as,  for  instance,  between  a 
vendor  and  vendee  of  land,  where  the  pur- 
chaser remains  in  possession  after  the  agree- 
ment to  purchase  falls  through.  For  the  pos- 
session in  that  case  was  evidently  taken  with 
the  understanding  of  both  parties  that  the 
occupant  should  be  ow^ner,  and  not  tenant ; 
and  the  other  party  cannot  Avithout  his 
consent  convert  him  into  a  tenant,  so  as  to 
chargo  him  with  rent.  6  Johns.  N.  Y.  46;  16 
Pet.  25  ;  21  Me.  525  ;  8  Mees.  &  W.  Exch.  118 ; 
10  Gush.  Mass.  259.  The  same  principle 
applies  to  a  mortgagor  and  mortgagee,  as 
well  as  to  tiiat  of  a  mortgagor  and_  an  as- 
signee of  the  mortgagee ;  for  no  privity  of 
estate  exists  in  either  case;  and,  as  a  gene- 
ral rule,  a  tenancy  by  implication  can  never 
arise  under  a  party  who  has  not  the  legal 
"estate  of  the  premises  in  question.  2  Mann. 
&  R.  303  ;  6  Ad.  &  E.  208 ;  Taylor,  Landl.  & 
Ten.  ?  25. 

5.  Generally,  the  rights  and  obligations  of 
the  parties  will  be  considered  as  having  com- 
menced from  the  date  of  the  lease,  if  there 
be  (me,  and  no  other  time  for  its  commence- 
ment has  been  agreed  upon ;  or,  if  there  be 
n;)  date,  then  from  the  delivery  of  the  papers. 
If,  however,  there  be  no  w^ritings,  it  will  take 
effect  from  the  day  the  tenant  entered  into 
possession,  and  not  wnth  reference  to  any 
particular  quarter-dav.  4  Johns.  N.  Y.  230; 
15  Wend.  N.  Y.  0'56;   Coke,  Litt.  46  a. 


And  these  rights  and  duties  attach  to  each 
of  the  i)arties,  not  only  in  respect  to  each 
other,  but  also  with  reference  to  other  per- 
sons who  are  strangers  to  the  contract.  The 
landlord  retains  certain  rights  over  tiie  pro- 
perty, although  he  has  parted  with  its  jx.s- 
session,  while  the  tenant  assumes  obligations 
with  respect  to  it  which  continue  so  long  as 
he  is  invested  with  that  character. 

6.  After  the  making  of  a  lease,  the  rigJii  of 
possession,  in  legal  contemplation,  remains 
in  the  landlord  until  the  contract  is  consum- 
mated by  the  entry  of  the  lessee.  When  the 
tenant  enters,  this  right  of  possession  changes, 
and  he  draws  to  himself  all  the  rights  inci- 
dent to  possession  after  this.  The  landlord's 
rights  in  the  premises  are  suspended,  uv  con- 
fined to  the  protection  of  his  reversionary  inte- 
rest ;  that  is,  to  the  maintenance  of  actions  i'or 
such  injuries  as  would,  in  the  ordinary  course 
of  things,  continue  to  affect  his  interest  alter 
the  determination  of  the  lease.  Of  such  are 
actions  for  breaking  the  windows  of  a  house, 
cuttingtimber,  or  damming  up  arivulet,  where- 
by the  timber  on  the  estate  becomes  rotten.  11 
Mass.  519  ;  1  Maule  &  S.  234  ;  9  Bingh.  3  ;  4 
Barnew.  &  Aid.  72 ;  3  Me.  6  ;  5  Den.  N.  Y.  494. 
The  injury  must  be  of  such  a  character  as 
permanently  affects  the  inheritance;  but  it 
may  be  so  if  any  one  interferes  with  his 
tenants,  and  disturbs  their  enjoyment  so  far 
as  to  cause  him  loss  of  rent,  or  other  damage. 
14  East,  489  ;  4  Barnew.  &  Aid.  72  ;  1  Hall, 
N.  Y.  214. 

7.  The  landlord  may,  however,  go  upon 
the  premises  peaceably,  for  the  purpose  of 
ascertaining  whether  any  waste  or  injury  has 
been  committed  by  the  tenant  or  other  per- 
son, first  giving  notice  of  his  intention.  He 
may  also  use  all  ways  appurtenant  thereto, 
demand  rent,  make  such  repairs  as  are  neces- 
sary to,  prevent  waste,  or  remove  an  obstruc- 
tion. But  if  the  rent  is  payable  in  hay  or 
other  produce,  to  be  delivered  to  him  from 
the  farm,  he  is  not  entitled  to  go  upon  the 
land  and  take  it,  until  it  is  delivered  to  him 
by  the  tenant,  or  until  after  it  has  been  sev- 
ered and  sot  apart  for  his  use.  3  Johns.  N. 
Y.  408  ;  1  Vern.  Ch.  575 ;  7  Pick.  Mass.  76 :  1 
Barnew.  &  C.  8 ;  7  Mees.  &  W.  Exch.  601.  But 
see  5  Dowl.  &  -R.  442;  3  Barnew.  &  C.  533. 

S,  The  landlonVs  responsibilities  in  respect 
to  possession,  also,  are  suspended  as  soon  as 
the  tenant  commences  his  occupation.  If, 
therefore,  a  stranger  is  injured  by  the  ruin- 
ous state  of  the  premises,  or  the  tenant  cre- 
ates a  nuisance  upon  them,  or  if  the  fences 
are  suffered  to  fall  into  decay,  whereby  the 
cattle  of  a  stranger  stray  and  are  injured  or 
lost,  the  landlord  is  in  ineither  case  answer- 
able. But  it  would  be  otherwise  if  he  had 
undertaken  to  keep  the  premises  in  repair, 
and  the  injury  was' occasioned  by  his  neglect 
to  keep  up  the  repairs,  or  if  he  should  re- 
new the  lease  with  a  nuisance  upon  it.  4 
Term,  318  ;  2  H.  Blackst.  350  ;  4  Taunt.  949 ; 
1  Ad.  &  E.  827. 

9.  The  principal  obligation  on  the  part  of 
the  landlord,  which  is,  in  fact,  always  to  bo 


LANDLORD  AND  TENANT  6 


LANDLORD  AND  TENANT 


implied  as  a  necessary  condition  to  his  re- 
ceiving any  rent,  is  that  the  tenant  shall 
enjoy  the  quiet  possession  of  the  premises, — 
"which  means,  substantially,  that  he  shall  not 
be  turned  out  of  possession  of  the  whole  or 
any  material  part  of  the  premises  by  one 
having  a  title  paramount  to  that  of  landlord, 
or  that  the  landlord  shall  not  himself  dis- 
turb or  render  his  occupation  uncomfortable 
by  the  erection  of  a  nuisance  on  or  near  the 
premises,  or  otherwise  oblige  him  to  quit 
possession.  3  East,  401 ;  6  Dowl.  &  R.  349;  8 
Cow.  N.  Y.  727  ;  7  Wend.  N.  Y.  281 ;  13  N. 
Y.  151;  2  Dev.  388;  4  Mass.  349;  5  Day, 
Conn.  282.  But  if  he  be  ousted  by  a  stranger, 
that  is,  by  one  having  no  title,  or  after  the 
rent  has  fallen  due,  or  if  the  molestation 
proceeds  from  the  acts  of  a  third  person,  the 
landlord  is  in  neither  case  responsible  for  it. 
1  Term,  671;  3  Johns.  N.  Y.  471 ;  7  Wend.  N. 
Y.  281;  4  Dev.  No.  C.  40  ;  5  Hill,  N.  Y.  599  ; 
6  Mass.  246  ;  13  East,  72 ;  .12  Wend.  N.  Y. 
529  ;  25  Barb.  N.  Y.  594. 

10.  Another  ohligaiion  which  the  law  im- 
poses upon  the  landlord  in  the  absence  of  any 
express  stipulation  in  the  lease,  is  the  pay- 
ment of  all  taxes  and  assessments  charge- 
able upon  the  property,  or  any  ground-rent, 
or  interest  upon  mortgages  to  which  it  may 
be  subject.  Every  landlord  is  bound  to  pro- 
tect his  immediate  tenant  against  all  para- 
mount claims  ;  and  if  a  tenant  is  compelled, 
in  order  to  protect  himself  in  the  enjoyment 
of  the  land  in  respect  of  which  his  rent  is 
payable,  to  make  payment  which  ought,  as 
between  himself  and  his  landlord,  to  have 
been  made  by  the  latter,  he  may  call  upon 
the  landlord  to  reimburse  him,  or  he  may  de- 
duct such  payment  from  the  rent  due  or  to 
become  due.  6  Taunt.  524 ;  12  East,  469  ;  5 
Bin!2;h.  409  ;  3  Barnew.  &  Aid.  047 ;  7  Barnew. 
&  C.  285  ;  3  Ad.  &  E.  331;  3  Mees.  &  W. 
Exch.  607 ;  5  Barnew.  &  Aid.  521. 

11.  But  the  landlord  is  undergo  obligation 
to  make  any  repairs,  or  to  rebuild  in  case 
the  premises  should  be  burned ;  nor  does  he 
guarantee  that  they  are  reasonably  fit  for 
the  purposes  for  which  they  were  taken. 
And  it  is  not  in  the  power  of  a  tenant  to 
make  repairs  at  the  expense  of  his  landlord, 
unless  there  be  a  special  agreement  between 
them  authorizing  him  to  do  so ;  for  the  ten- 
ant takes  the  premises  for  better  or  for  worse, 
and  cannot  involve  the  landlord  in  expense 
for  repairs  without  his  consent.  6  Coav.  N. 
Y.  475  ;  3  Du.  N.  Y.  464:  1  Saund.  320;  7 
East,  116;  1  Ry.  &  M.  357;  7  Mann.  &  G. 
576.  Even  if  the  premises  have  become  un- 
inhabitable by  fire,  and  the  landlord  having  in- 
sured them  has  recovered  the  insurance-money, 
the  tenant  cannot  compel  him  to  expend  the 
money  so  recovered  in  rebuilding,  unless  he 
has  expressly  engaged  to  do  so;  nor  can  ho, 
in  such  an  event,  protect  himself  from  the 
pavment  of  rent  during  the  unexpired  bal- 
ance of  the  term.  8  Paige,  Ch.  N.  Y.  437  ; 
1  Sim.  Ch.  146;  1  Term,  314.  A  different 
rule  is  said  to  prevail  in  Louisiana.  See  3 
Bob.  La.  52. 


12.  On  ih^  part  of  the  tenant,  we  may  ob- 
serve that  on  taking  possession  he  is  at  once 
invested  with  all  the  rights  incident  to  posses- 
sion, is  entitled  to  the  use  of  all  the  privi- 
leges and  easements  appurtenant  to  the  tene- 
ment, and  to  take  such  reasonable  estovers 
and  emblements  as  are  attached  to  the  es- 
tate. He  may  maintain  an  action  against 
any  person  who  disturbs  his  possession  or 
trespasses  upon  the  premises,  though  it 
be  the  landlord  himself.  1  Den.  N.  Y.  21 ; 
Croke  Car.  325;  3  Wils.  461;  2  H.  Blackst. 
924;  2  Barnew.  &  Ad.  97;  3  Crompt.  &  R. 
Exch.  557.  As  occupant,  he  is  also  answer- 
able for  any  neglect  to  repair  highways, 
fences,  or  party-walls ;  it  being  generally 
sufficient,  except  where  a  statute  has  other- 
wise provided,  to  charge  a  man  for  such  re- 
pairs by  the  name  of  occupant.  He  is  also 
liable  for  all  injuries  produced  by  the  mis- 
management of  his  servants,  or  by  a  nui- 
sance kept  upon  the  premises,  or  by  an  ob- 
struction of  the  highway  adjacent  to  them, 
or  the  like ;  for,  as  a  general  rule,  where  a 
man  is  in  possession  of  property,  he  must  so 
manage  it  that  other  persons  shall  not  be  in- 
iured  thereby.  3  Term,  766;  3  Q.  B.  449;  1 
Scott,  N.  R.  392 ;  4  Taunt.  649 ;  5  Barnew.  & 
C.  552;  6  Mees.  &  W.  Exch.  499. 

13.  One  of  the  principal  obligations  which 
the  law  imposes  upon  every  tenant,  independ- 
ent of  any  agreement,  is  to  treat  the  premises 
in  such  a  manner  that  no  substantial  injury 
shall  be  done  to  them,  and  so  that  they  may 
revert  to  the  landlord,  at  the  end  of  the  term, 
unimpaired  by  any  wilful  or  negligent  con- 
duct on  his  part.  In  the  language  of  tha 
books,  he  must  keep  the  buildings  wind-and- 
water  tight,  and  is  bound  to  make  fair  and 
tcnantable  repairs,  such  as  the  keeping  of 
fences  in  order,  or  replacing  doors  and  win- 
dows that  are  broken  during  his  occupation. 
If  it  is  a  furnished  house,  he  must  preserve 
the  furniture,  and  leave  it,  with  the  linen, 
etc.,  clean  and  in  good  order.  5  Carr.  &  P. 
239 ;  7  id.  327 ;  4  Term,  318 ;  18  Yes.  Ch.  331 ; 
2  Esp.  590;  4  Mann.  &  G.  95 ;  12  Mees.  &  W. 
Exch.  827.  ^ 

But  he  is  not  bound  to  rebuild  premises 
which  have  accidentally  become  ruinous  dur- 
ing his  occupation;  nor  is  he  answerable  for 
ordinary  wear  and  tear,  nor  for  an  accidental 
fire,  nor  to  put  a  new  roof  on  the  building, 
nor  to  make  what  are  usually  called  general 
or  substantial  repairs.  Neither  is  he  bound 
to  do  painting,  white-washing,  or  papering, 
except  so  far  as  they  may  be  necessary  to 
preserve  exposed  timber  from  decay.  6  Term, 
650;  6  Carr.  &  P.  8;  12  Ad.  &  *E.  476;  1 
Marsh.  567 ;  10  Barnew.  &  C.  312. 

14.  With  respect  to  farming  leases,  a  ten- 
ant is  under  a  similar  obligation  to  repair: 
but  it  differs  from  the  general  obligation  in 
this,  that  it  is  confined  to  the  dwelling-house 
which  he  occupies, — the  burden  of  support- 
ing the  out-buildings  and  other  erections  on 
the  farm  being  sustained  either  by  the  land- 
lord, or  the  tenant,  in  the  absence  of  any 
express  provision  in  the  lease,  by  the  particu- 


LANDLORD  AND  TENANT 


7 


LANDLORD  AND  TENANT 


lar  custom  of  the  country  in  which  the  farm 
is  situated.  He  is  always  bound,  liowever. 
to  cultivate  the^farm  in  a  good  and  husband- 
like manner,  to  keep  the  fences  in  repair, 
and  to  preserve  the  timber  and  ornamental 
trees  in  good  condition;  and  for  any  viola- 
tion of  any  of  these  duties  he  is  liable  to  be 
proceeded  against  by  the  landlord  for  waste, 
whether  the  act  of  waste  be  committed  by 
the  tenant  or  by  a  stranger.  Coke,  Litt.  53 ; 
6  Taunt.  300 ;  5  Johns.  N.  Y.  373  ;  13  East, 
18;  3  Mood.  536;  2Dougl.745;  1  Taunt.  198; 
1  Den.  N.  Y.  104.  As  to  what  constitutes 
waste,  see  "Waste. 

15.  The  tenant's  general  obligation  to  re- 
pair also  renders  him  responsible  for  any 
injury  a  stranger  may  sustain  by  his  neglect 
to  keep  the  premises  in  a  safe  condition :  as, 
hj  not  keeping  the  covers  of  his  vaults  suffi- 
ciently closed,  so  that  a  person  walking  in 
the  street  falls  through,  or  is  injured  thereby. 
If  he  repairs  or  improves  the  building,  he 
must  guard  against  accident  to  the  pass- 
ers-by in  the  street,  by  erecting  a  suitable 
barricade,  or  stationing  a  person  there  to 
give  notice  of  the  danger.  4  Term,  318;  28 
Barb.  N  .Y.  194;  6  N.  Y.  48  ;  4  id.  222.  For 
any  unreasonable  obstruction  which  he  places 
in  the  highway  adjoining  his  premises,  he 
may  be  indicted  for  causing  a  public  nui- 
sance, as  well  as  rendered  liable  to  an  action 
for  damages,  at  the  suit  of  any  individual 
injured.  The  law  will  tolerate  only  such  a 
partial  and  temporary  obstruction  of  the 
street  as  may  be  necessary  for  business  pur- 
poses: as  in  receiving  and  delivering  goods 
from  a  warehouse,  or  coals,  or  fuel  on  the 
sidewalk,  or  the  like  ;  provided,  always,  that 
the  public  convenience  does  not  suffer  from 
it.  1  Serg.  &  R.  Penn.  217  ;  6  East,  427  ;  6 
Carr.  &  P.  636  ;  1  Den.  N.  Y.  524 ;  Taylor, 
Landl.  &  Ten.  ^  192. 

16.  The  tenant's  chief  duty,  however,  is 
the  payment  of  rent,  the  amount  of  which  is 
either  fixed  by  the  terms  of  the  lease,  or,  in 
the  absence  of  an  express  agreement,  is  such 
a  reasonable  compensation  for  the  occupation 
of  the  premises  as  they  are  fairly  worth.  If 
there  has  been  no  particular  agreement  be- 
tween the  parties,  the  tenant  pays  rent  only 
for  the  time  he  has  had  the  beneficial  enjoy- 
ment of  the  premises;  but  if  he  has  entered 
into  an  express  agreement  to  pay  rent  during 
the  term,  no  casualty  or  injury  to  the  premises 
by  fire  or  otherwise,  nothing,  in  fact,  short  of 
an  eviction,  will  excuse  him  from  such  pay- 
ment. 4  Paige,  Ch.  N.  Y.  355;  18  Ves.  Ch. 
415  ;  1  Harr.  &  J.  Md.  42  ;  16  Mass.  240  ;  3 
Den.  N.  Y.  464;  3  Bos.  &  P.  420;  6  Term, 
650  ;  24  Wend.  N.  Y.  454 ;  Al.  26  ;  4  Harr. 
&  J.  Md.  564;  1  Bay,  So.  C.  499.  But  if  he 
has  been  deprived  of  the  possession  of  the 
premises,  or  any  part  thereof,  by  a  third 

f)erson  under  a  title  superior  to  that  of  the 
andlord,  or  if  the  latter  annoys  his  tenant, 
erect  or  causes  the  erection  of  such  a  nui- 
sance upon  or  near  the  premises  as  renders 
his  occupation  so  uncomfortable  as  to  justify 
his  removal,  he  is  in  either  case  discharged 


from  the  payment  of  rent.  2  Wend.  N.  Y. 
561 ;  12  id.  529 ;  4  Cow.  N.  Y.  58 ;  8  id.  727 ; 
4  N.  Y.  217  ;  2  Ired.  No.  C.  350;  3  Ohio,  .364; 
4  Rawle,  Penn.  329;  Cuke,  Litt.  148  b;  2  East, 
576  ;  1  Cowp.  242 ;  6  Term,  458. 

17.  The  obligation  to  pay  rent  may  be  ap- 
portioned; for,  as  rent  is  incident  to  the  re- 
version, it  will  become  payable  to  the  as- 
signees of  the  respective  portions  thereof 
whenever  that  reversion  is  severed  by  an 
act  of  the  parties  or  of  the  law.  But  the 
tenant's  consent  is  necessary  for  an  appor- 
tionment when  made  by  the  landlord,  unless 
the  proportion  of  rent  chargeable  upon  each 
portion  of  the  land  has  been  settled  by  the 
intervention  of  a  jury.  22  Wend.  N.  Y.  121; 
2  Barb.  N.  Y.  643 ;  3  Den.  N.  Y.  454 ;  1  Dowl. 
&  R.  291 ;  5  Barnew.  &  Aid.  876.  A  tenant, 
however,  cannot  get  rid  of  or  apportion  his 
rent  by  transferring  the  whole  or  a  part  of 
his  lease ;  for  if  he  assigns  it,  or  underlets 
a  portion  of  it,  he  still  remains  liable  to  his 
landlord  for  the  w^hole.  Croke  Eliz.  633 ;  24 
Barb.  N,  Y.  333.  Instances  of  an  apportion- 
ment by  act  of  law  occur  where  there  is  a 
descent  of  the  reversion  among  a  number  of 
heirs,  or  upon  a  judicial  sale  of  a  portion  of 
the '  premises ;  for  in  such  cases  the  tenant 
will  be  bound  to  pay  rent  to  each  of  the  par- 
ties for  the  portion  of  the  premises  belong- 
ing to  them  respectively.  So,  if  a  man  dies, 
leaving  a  widow,  she  will  have  a  right  to  re- 
ceive one-third  of  the  rent,  while  the  remain- 
ing two-thirds  will  be  payable  to  his  heirs. 
Croke  Eliz.  742  ;  15  Wend.  N.  Y.  464  ;  Croke 
Jac.  160;  Coke,  Litt.  148 ;  1  Mees.  &  W.  Exch. 
747. 

18.  These  rights  and  liabilities  are  not 
confined  to  the  immediate  parties  to  the  con- 
tract, but  will  be  found  to  attach  to  all  per- 
sons to  whom  the  estate  may  be  transferred, 
or  who  may  succeed  to  the  possession  of  the 
premises,  either  as  landlords  or  tenants.  This 
principle  follows  as  a  necessary  consequence 
of  that  privity  of  estate  which  is  incident  to 
the  relation  of  landlord  and  tenant.  A  land- 
lord may  not  violate  his  tenant's  rights  by  a 
sale  of  the  property;  neither  can  a  tenant 
avoid  his  responsibilities  by  substituting  an- 
other tenant  in  his  stead  without,  the  land- 
lord's consent.  The  purchaser  of  the  pro- 
perty becomes  in  one  case  the  landlord,  and 
is  entitled  to  all  the  rights  and  remedies 
against  the  tenant  or  his  assignee  which  the 
seller  had,  while  in  the  other  case  the  as- 
signee of  the  lessee  assumes  all  the  liabili- 
ties of  the  latter,  and  is  entitled- to  the  same 
protection  which  he  might  claim  from  the 
assignee  of  the  reversion  ;  but  the  original 
lessee  is  not  thereby  discharged  from  his 
obligations.  17  Johns.  N.  Y.  239  ;  3  Harr. 
&  M'H.  Md.  387 ;  24  Barb.  N.  Y.  365  ;  13 
Wend.  N.  Y.  136  ;  19  N.  Y.  68  ;  8  Ves.  Ch. 
95;  1  Ves.  &  B.  Ch.  Ir.  11:  4  Term,  99. 

19.  The  relation  of  landlord  and  tenant 
niay  be  terminated  in  several  ways.  If  it  is 
a  tenancy  for  lij'e,  it  will  of  course  terminate 
upon  the  decease  of  him  upon  whose  life  the 
lease  depends  ;  but  if  it  be  for  life,  or  for  a 


LANDLORD  AND  TENANT  8 


certain  number  of  years  depending  upon 
some  particular  event,  the  happening  of  that 
event  will  determine  the  tenancy.  So  if  it 
be  for  a  certain  number  of  years,  independ- 
ent of  any  contingency,  it  will  expire  at  the 
last  moment  of  the  anniversary  of  the  day 
from  which  the  tenant  was  to  hold  in  the 
last  year  of  the  tenancy.  And  in  all  these 
cases  depending  upon  the  express  conditions 
of  the  lease,  no  notice  to  quit  will  be  necessary 
in  order  to  dissolve  the  relation  of  the  parties 
to  each  other.  Coke,  Litt.  21G;  Sheppard, 
Touchst.  187 ;  9  Ad.  &  E.  879 ;  5  Johns.  N.  Y. 
128 ;  1  Pick.  Mass.  43 ;  2  Serg.  &  R.  Penn.  49 ; 
18  Me.  264;  Taylor,  Landl.  &  Ten.  ^  465. 

20.  But  a  tenancy  from  year  to  year,  or  at 
will,  can  only  be  terminated  by  a  notice  to 
quit.  This  notice  must  be  in  writing ;  it 
must  be  explicit,  and  require  the  tenant  to 
remove  from  the  premises;  it  must  be  served 
upon  the  tenant,  and  not  upon  an  under- 
tenant ;  it  must  run  in  the  name  of  the  per- 
son to  whom  possession  is  to  be  given,  and 
not  of  his  agent ;  and  if  given  by  one  of 
several  tenants  in  common,  it  is  valid  only 
to  the  extent  of  his  share,  but  if  made  by 
one  of  several  joint  tenants,  it  will  enure  for 
the  benefit  of  all.  Burr.  1G03  ;  5  Esp.  196  ; 
Dougl.  175  ;  5  Ad.  &  E.  350 ;  6  Barnew.  & 
C.  41 ;  10  Johns.  N.  Y.  270;  8  Taunt.  241;  2 
Mann.  &  R.  433  ;  7  Mees.  &  W.  Exch.  139  ; 
3  Bingh.  N.  c.  677.  At  common  law,  this  no- 
tice was  required  to  be  one  of  six  calendar 
months,  ending  with  the  period  of  the  year 
at  which  the  tenancy  commenced,  W.Blackst, 
596 ;  3  Term,  13 ;  and  this  rule  prevails  in 
New  York,  Kentucky,  Tennessee,  North  Caro- 
lina, Vermont,  and  New  Jersey,  as  to  tenan- 
cies from  year  to  year,  1  Vern.  Ch.  311 ;  1 
Johns.  N.  Y.  322-,  1  Dan.  Ky.  30;  5  Yerg. 
Tenn.  431;  22  Vt.  88;  4  Ired.  No.  C.  291;  3 
Green,  N.  J.  181.  See  17  Mass.  287.  In 
Pennsylvania,  South  Carolina,  New  Hamp- 
shire, and  Michigan,  three  months'  notice  is 
required,  24  N.  H.  219  ;  8  Serg.  &  R.  Penn. 
458;  2  Rich.  So.  C.  346;  while  the  New- York 
statutes  provide  for  its  termination  by  giving 
one  month's  notice  wherever  there  is  a  ten- 
ancy at  will,  or  by  sufferance,  created  by  the 
tenant's  holding  over  his  term,  or  otherwise. 

521.  This  relation  will  also  be  dissolved 
when  the  tenant  incurs  a  forfeiture  of  his 
lease  by  the  breach  of  some  covenant  or  con- 
dition therein  contained.  At  common  law, 
a  forfeiture  was  incurred  if  the  tenant  did 
any  act  which  was  inconsistent  with  his  first 
relation  to  his  landlord:  as,  if  he  impugned 
the  title  of  his  lessor  by  affirming  by  matter 
of  record  the  fee  to  be  in  a  stranger,  claimed 
a  greater  estate  than  he  was  entitled  to,  or 
undertook  to  alienate  the  estate  in  fee.  Coke, 
Litt.  25  \h;Q  roke  Eliz.  321.  But  these  causes 
of  forfeiture,  founded  upon  strict  feudal  prin- 
ciples, have  been  generally  abolished  in  the 
United  States,  and  a  forfeiture  of  a  term  of 
years  now  only  occurs  in  consequence  of  a 
breach  of  some  express  stipulation  contained 
in  the  contract:  as,  for  the  commission  of 
waste,  non-payment  of  rent,  or  the  like.  2 


LANDLORD  AND  TENANT 

Wend.  N.Y.  357;  2  Hill,  N.  Y.  554;  lON.Y. 
9 ;  7  Paige,  C h.  N.  Y.  350.  A  forfeiture  may 
be  waived  by  an  acceptance  of,  or  distraining 
for,  rent  which  became  due  after  a  breach 
committed  by  the  tenant,  or  by  giving  a  no- 
tice to  quit,  or  by  any  other  act  which  ac- 
knowledges the  continuance  of  the  tenanc}^ 
8  Watts.  Penn.  55  ;  2  N.  H.  160  ;  18  Johns. 
N.  Y.  174 ;  3  Hen.  &  M.  Va.  436 ;  1  Binn. 
Penn.  333 ;  1  Mees.  &  W.  Exch.  408 ;  1  Taunt. 
78,  and  will  be  relieved  against  by  the  courts 
in  all  cases  where  it  happened  accidentally 
and  the  injury  is  capable  of  compensation, 
or  where  the  damages  are  a  mere  matter  of 
computation.  10  Ves.  Ch.  6;  12  id.  475;  16 
id.  405  ;  2  Price,  Exch.  206 ;  1  Dall.  Penn. 
210  ;  9  Mod.  22. 

22.  Another  means  of  dissolving  a  tenancy 
is  by  an  operation  of  law,  termed  a  merger, — 
which  happens  where  a  tenant  purchases  the 
fee  of  the  reversion,  or  the  fee  descends  to 
him  as  heir  at  law,  the  lease  becoming  there- 
by merged  in  the  inheritance,  the  lesser  estate 
being  absorbed  in  the  greater.  To  produce 
this  result,  however,  it  is  necessary  that  the 
two  estates  should  meet  in  the  same  person 
and  in  the  same  right;  for  if  he  who  has  the 
reversion  in  fee  marries  the  tenant  for  years, 
or  if  a  tenant  makes  the  landlord  his  executor, 
the  term  of  years  is  in  neither  case  merged, 
because  in  either  case  he  holds  the  fee  for  his 
own  benefit,  while  the  term  of  years  is  taken 
in  one  case  for  his  wife's  use,  and  in  the  other 
for  the  benefit  of  the  estate  he  represents  as 
executor.  10  Johns.  N.  Y.  482  ;  15  Barb.  N. 
Y.  7:  12  N.  Y.  526;  Coke,  Litt.  388  b;  Bur- 
ton, Real  Prop,  g  898 ;  1  Washburn,  Real 
Prop.  354. 

23.  In  addition  to  the  several  methods  of 
putting  an  end  to  a  tenancy  already  men- 
tioned, we  may  add  that  it  is,  of  course,  com- 
petent for  a  tenant  to  surrender  his  lease  to 
the  landlord ;  or  if  the  subject-matter  of  the 
lease  wholly  perishes,  or  is  required  to  be 
taken  for  public  uses,  or  if  the  premises  are 
converted  into  a  house  'of  ill  fame,  or  the 
tenant  disclaims  to  hold  under  his  landlord 
and  therefore  refuses  to  pay  his  rent,  asserts 
the  title  to  be  in  himself  or  unlawfully  attor- 
ney to  another,  the  tenancy  is  at  an  end,  and 
the  landlord  may  forthwith  resume  the  pos- 
session. 7  Wend.  N.Y.  210;  2^  id.  454;  3 
Maule  &  S.  270;  5  Ohio,  303;  11  Mete.  Mass. 
448 ;  1  Esp.  13  ;  13  Pet.  1 :  3  A.  K.  Marsh, 
Ky.  247;  10  III.  41;  20  Penn.  St.  398;  6 
Yerg.  Tenn.  280. 

24.  After  the  tenancy  has  ended,  the  right 
of  possession  reverts  to  the  landlord,  who 
may  re-enter  upon  the  premises  if  he  can  do 
so  without  violence.  But  if  the  tenant  holds 
over  and  the  landlord  takes  possession  for- 
cibly, so  as  to  endanger  a  breach  of  the  peace, 
he  runs  the  risk  of  being  punished  criminally 
for  a  forcilde  entry  (see  Forcihle  Entry  and 
Detainer)  as  well  as  of  suffering  the  conse- 
quences of  an  action  of  trespass.  The  land- 
lord should,  therefore,  in  all  such  cases,  call 
in  the  law  to  his  assistance,  and  receive  pos-< 
session  at  the  hands  of  the  sheriff. 


LANDLORD  AND  TENANT  9 


LANGUAGE 


The  tenant,  on  his  part,  is  bound  quietly 
to  yield  up  tiie  possession  of  the  entire  pre- 
mises, although  he  still  retains  a  reasonable 
right  of  egress  and  regress  for  the  purpose 
of  removing  his  goods  and  chattels.  And 
for  a  refusal  to  perform  this  duty  he  will  be 
subjected  to  all  the  statutory  penalties  of 
holding  over.  1  Add.  Penn.  14,  43  ;  10  Mass. 
409;  8  Term,  357;  1  Dev.  &  B.  No.  C.  324; 

5  Carr.  &  P.  201;  1  Mann.  &  G.  644;  1 
Watts  &  S.  Penn.  90 ;  13  Johns.  N.  Y.  235  ; 
9  Vt.  352;  1  Strobh.  So.  C.  313.  He  may, 
also,  in  certain  cases,  take  the  emhleineuts  or 
annual  profits  of  the  land  after  his  tenancy 
is  ended  (see  Emblements),  and,  unless  re- 
stricted by  some  stipulation  to  the  contrary, 
may  remove  such  jixlures  as  he  has  erected 
during  his  occupation  for  his  comfort,  conve- 
nience, or  profit.    See  Fixtures. 

Ji5.  The  ordinary  common-law  remedy  by 
which  a  landlord  proceeds  to  recover  the  pos- 
session of  his  premises  is  by  an  action  of 
ejectment,  which  is  strictly  a  possessory  ac- 
tion j  and  the  party  claiming  possession  must 
recover  upon  his  right  of  entry,  whether  his 
title  to  the  estate  be  in  fee  for  life  or  for 
years.  7  Johns.  N.  Y.  227 ;  2  Yeates,  Penn. 
309 ;  3  Bingh.  203.  The  tenant  is  never  per- 
mitted, for  reasons  of  sound  public  policy,  to 
controvert  his  landlord's  title,  or  to  set  up 
against  him  a  title  acquired  by  himself  dur- 
ing his  tenancy  which  is  hostile  in  its  cha- 
racter to  that  which  he  acknowledg' d  in  ac- 
cepting the  demise.   10  East,  158;  3  Barnew, 

6  C.  413  ;  7  Term,  488  ;  5  Wend.  N.  Y.  246; 
5  Den.  N.  Y.  431 ;  3  Ad.  &  E.  188;  1  Harp. 
So.  C.  70;  6  Harr.  &  J.  M.l.  533;  2  Binn. 
Penn.  472;  4  Serg.  &  R.  Penn.  467. 

26.  But  the  slow  and  measured  progress 
of  this  ancient  proceeding  in  most  cases  af- 
fords a  very  inadequate  remedy  to  the  land- 
lord; and  in  order,  therefore,  to  obviate  the 
evils  arising  from  its  delays,  the  statutes  of 
the  different  states  provide  a  summary  pro- 
ceeding, by  which  a  landlord  may  be  speedily 
reinstated,  upon  notice  of  a  day  or  two,  in 
cases  AA'here  a  tenant  abandons  the  premises 
before  the  end  of  the  term  without  surren- 
dering the  lease,  leaving  rent  in  arrear,  con- 
tinues to  hold  over  after  the  expiration  of  his 
term,  or  has  become  unable  or  unwilling  to 

Say  fur  the  use  of  the  premises.  22  Wend. 
[.  Y.  Oil ;  4  Barnew,  &  C.  259  ;  10  N.  Y. 
35  ;  2  Ov.  Tenn.  233  ;  2  Chitty,  Bail.  179  ;  7 
Term,  431. 

See,  further,  on  the  s;ubject  of  this  article, 
Woodfall,  Smith,  Taylor,  Archbold,  Comyns, 
Cootes,  on  the  Law  of  Landlord  and  Tenant; 
Chambers,  Piatt,  on  Leases;  Washburn  on 
Real  Property. 

LANGUAGE.  The  medium  for  the  com- 
munication of  perceptions  and  ideas. 

Spoken  language  is  that  wherein  articulate 
sounds  are  used. 

Written  language  is  that  wherein  written 
characters  are  used,  and  especially  the  sys- 
tem, of  characters  called  letters  and  figures. 

2.  By  conventional  usage,  certain  sounds  and 
characters  have  a  definite  meaning  in  one  country 


or  in  certain  countries,  and  this  is  called  the  lan- 
guage of  such  country  or  countries:  as,  the  Greek, 
the  Latin,  tlie  French,  or  the  English  language. 
The  law,  too,  has  a  peculiar  language.  iSee  Eu- 
nom.  Dial.  2. 

3.  On  the  subjugation  of  England  by  William 
the  Con(iucror,  the  French-Nornian  language  was 
substituted  in  all  law-proceedings  for  the  ancient 
Saxon,  't  his,  according  to  iJIackstone,  3  Comm. 
317,  was  the  language  of  the  records,  writs,  and 
pleadings  until  the  time  of  Edward  ill.  Mr.  Ste- 
phen thinks  Blackstone  has  fallen  into  an  error, 
and  says  the  record  was,  fr(  m  the  earliest  period 
to  which  that  document  can  be  traced,  in  the  Latin 
language.  Plead.  Appx.  note  14.  By  the  statute 
30  Edw.  III.  St.  1,  c.  15,  it  was  enacted  that  for 
the  future  all  pleas  should  be  pleaded,  shown,  de- 
fended, answered,  debated,  and  judged  in  the  Eng- 
lish tongue,  but  be  entered  and  enrolled  in  Latin. 
The  Norman  or  law  French,  however,  being  more 
familiar  as  applied  to  the  law  than  any  other  lan- 
guage, the  lawyers  continued  to  cm[)loy  it  in  mak- 
ing their  notes  of  the  trial  of  cases,  which  they 
afterwards  published  in  that  barbarous  dialect  un- 
der the  name  of  Reports. 

4.  After  the  enactment  of  this  statute,  on  the 
introduction  of  paper  pleadings,  they  followed  in 
the  language  as  well  as  in  other  respects  the  style 
of  the  records,  which  were  drawn  up  in  Latin. 
This  technical  language  continued  in  use  till  the 
time  of  Cromwell,  when  by  a  statute  the  records 
were  directed  to  be  in  English ;  but  this  act  was 
repealed  at  the  restoration  by  Charles  II.,  the  law- 
yers finding  it  difficult  to  express  themselves  as 
well  and  as  concisely  in  the  vernacular  as  in  the 
Latin  tongue;  and  the  language  of  the  law  con- 
tinued as  before  till  about  the  year  1730,  when  the 
statute  of  4  Geo.  II.  c.  26,  was  passed.  It  pro- 
vided that  both  the  pleadings  and  the  records 
should  thenceforward  be  framed  in  English.  The 
ancient  terms  and  expressions  which  had  been  so 
long  known  in  French  and  Latin  were  now  lite- 
rally translated  into  English.  The  translations  of 
such  terms  and  phrases  were  found  to  be  exceed- 
ingly ridiculous.  Such  terms  as  nisi  prius,  habeas 
corpus,  fieri  facias,  mandamus,  and  the  like,  are 
not  capable  of  an  English  dress  with  any  degree 
of  seriousness.  They  are  equally  absurd  in  the 
manner  they  are  employed  in  Latin;  but  use  and 
the  fact  that  they  are  in  a  foreign  language  have 
made  the  absurdity  less  apparent. 

5.  By  statute  of  6  Geo.  11.  c.  14,  passed  two 
years  after  the  last-mentioned  statute,  the  use  of 
technical  words  was  allowed  to  continue  in  the 
usual  language, — which  defeated  almost  every  be- 
neficial purpose  of  the  former  statute.  In  chang- 
ing from  one  language  to  another,  many  words 
and  technical  expressions  were  retained  in  the  new 
which  belonged  to  the  more  ancient  language;  and 
not  seldom  they  partook  of  both.  This,  to  the  un- 
learned student,  has  given  an  air  of  conlusion  and 
disfigured  the  language  of  the  law.  It  has  ren- 
dered essential,  also,  the  study  of  the  Latin  and 
French  languages.  This,  perhaps,  is  not  to  be  re- 
gretted, as  they  are  the  keys  which  open  to  the 
ardent  student  vast  stores  of  knowledge.  In  the 
United  States,  the  records,  pleadings,  and  all  law 
proceedings  are  in  the  English  language,  except 
certain  technical  terms  which  retain  their  ancient 
French  and  Latin  dress. 

6.  Agreements,  contracts,  wills,  and  other 
instruments  may  be  made  in  any  language, 
and  will  be  enforced.  Bacon,  Abr.  Wills  (D 
1).  And  a  slander  spoken  in  a  foreign  lan- 
guage, if  understood  by  those  present,  or  a 
libel  published  in  such  language,  will  be  pun- 
ished as  if  spoken  or  written  in  the  English 
language.    Bacon,  Abr.  Slander,  (D  3);  1 


LANGUIDUS 


10 


LARCENY 


Rolle,  Abr.  74 ;  6  Term,  163.  For  the  con- 
struction of  language,  see  articles  Construc- 
tion ;  Interpretation  ;  Jacob,  Intr.  to  the 
Com.  Law  Max.  46.  , 

K,  Among  diplomatists,  the  French  lan- 
guage is  the  one  commonly  used.  At  an 
early  period,  the  Latin  was  the  diplomatic 
language  in  use  in  Europe.  Towards  the 
end  of  the  fifteenth  century  that  of  Spain 
gained  the  ascendency,  in  consequence  of 
the  great  influence  which  that  country  then 
exercised  in  Europe.  The  French,  since  the 
age  of  Louis  XIV.,  has  become  the  almost 
universal  diplomatic  idiom  of  the  civilized 
world ;  though  some  states  use  their  national 
language  in  treaties  and  diplomatic  corre- 
spondence. It  is  usual  in  these  cases  to 
annex  to  the  papers  transmitted  a  transla- 
tion in  the  language  of  the  opposite  party, 
wherever  it  is  understood  this  comity  will  be 
reciprocated.  This  is  the  usage  of  the  Ger- 
manic Confederation,  of  Spain,  and  of  the 
Italian  courts.  When  nations  using  a  com- 
mon language,  as  the  United  States  and 
Great  Britain,  treat  with  each  other,  such 
language  is  used  in  their  diplomatic  inter- 
course. 

See,  generally,  3  Blackstone,  Comm.  323 ; 
1  Chitty,  Crim.  Law,  415;  2  Key,  Inst.  jud. 
de  I'Angleterre,  211,  212. 

LANGUIDUS  (Lat).    In  Practice. 

The  name  of  a  return  made  by  the  sheriff  when 
a  defendant,  whom  he  has  taken  by  virtue  of 
process,  is  so  dangerously  sick  that  to  remove 
him  would  endanger  his  life  or  health. 

In  such  a  case,  the  officer  may  and  ought 
unquestionably  to  abstain  from  removing 
him,  and  may  permit  him  to  remain  even  in 
his  own  house  in  the  custody  of  a  follower, 
though  not  named  in  the  warrant,  he  keeping 
the  key  of  the  house  in  his  possession.  The 
officer  ought  to  remove  him  as  soon  as  suffi- 
ciently recovered.  If  there  be  a  doubt  as  to 
the  state  of  health  of  the  defendant,  the  offi- 
cer should  require  the  attendance  and  advice 
of  some  respectable  medical  man,  and  require 
him,  at  the  peril  of  the  consequences  of  mis- 
representation, to  certify  in  writing  whether 
it  be  fit  to  remove  the  party  or  take  him  to 
prison  within  the  county.  3  Chitty,  Pract. 
858.  For  a  form  of  the  return  of  languidiis, 
sec  3  Chitty,  Pract.  249 ;  T.  Chitty,  Forms, 
53. 

LANZAS.  In  Spanish  Law.  A  cer- 
tain contributi(m  in  m.)ncy  paid  by  the  gran- 
dees and  other  high  officers  in  lieu  of  the  sol- 
diers thoy  ought  to  furnish  government  in 
time  of  war. 

LAPSE.   In  Ecclesiastical  Law.  The 

transfer,  by  forfoitui-o,  of  a  right  to  present 
or  collate  to  a  vacant  benefice  from  a.  person 
vested  with  such  right  to  another,  in  conse- 
quence of  some  act  of  negligence  by  the  for- 
mer.   AylifTc,  Parerg.  331. 

Upon  six  months'  ncf^lcct  of  the  patron,  the  right 
lapses  to  the  bishop ;  upon  six  months'  neglect  of 
hiyhop,  ti)  archbishop;  upon  his  8ix  months' neg- 
lect, to  king.    The  day  on  which  the  vacancy  oc- 


curs is  not  counted,  and  the  six  months  are  calcu- 
lated as  a  half-year.    2  Burn,  Eccl.  Law,  355. 

To  glide ;  to  pass  slowly,  silently,  or  by 
degrees.  To  slip ;  to  deviate  from  the  pro^ 
per  path.  Webster,  Diet.  See  Lapsed  De- 
vise ;  Lapsed  Legacy. 

LAPSE  PATENT.  A  patent  issued  to 
petitioner  for  land.  A  patent  for  which  land 
to  another  party  has  lapsed  through  neglect 
of  patentee.  The  lapse  patent  relates  to  date 
of  original  patent,  and  makes  void  all  mesne 
conveyances.    1  Wash.  Va.  39,  40. 

LAPSEDDEVISE.  A  devise  which 
has  lapsed,  or  does  not  take  effect  because  of 
the  death  of  devisee  before  testator. 

The  subject-matter  of  the  lapsed  devise 
will,  if  no  contrary  intention  appears,  be  in- 
cluded in  the  residuary  clause  (if  any)  con- 
tained in  the  will.  But,  if  the  devise  be  to 
children  or  other  issue  of  devisor,  and  issue 
of  devisee  be  alive,  the  devise  shall  not  lapse, 
if  no  such  intention  appear  in  the  will.  See 
1  Vict.  c.  26,  U  25,  26,  32,  33.  A  devise 
always  lapses  at  common  law  if  the  devisee 
dies  before  testator:  in  some  of  the  states 
there  are  statutes  on  the  subject.  See  1 
Jarman,  Wills,  Perkins  ed.  301,  n.;  4  Kent, 
Comm.  541. 

LAPSED  LEGACY.  A  legacy  which, 
on  account  of  the  death  of  the  legatee  before 
the  period  arrives  for  the  payment  of  the 
legacy,  lapses  or  deviates  from  the  course 
prescribed  by  the  testator,  and  falls  into  the 
residuum.    1  Williams,  Ex.  1036. 

A  distinction  exists  between  a  lapsed  de- 
vise and  a  lapsed  legacy.  A  legacy  which 
lapses  does  not  fall  into  the  residue  unless  so 
provided  by  the  will,  but  descends  to  the  heir 
at  law  ;  on  the  contrary,  personal  property 
passes  by  the  residuary  clause  where  it  is  not 
otherwise  disposed  of.  2  Bouvier,  Inst.  2154- 
2156.    See  Lapsed  Devise. 

LARCENY.    In  Criminal  Law.  The 

wrongful  and  fraudulent  taking  and  carry- 
ing away  by  one  person  of  the  mere  per- 
sonal goods  of  another  from  any  place,  with 
a  felonious  intent  to  convert  them  to  his  the 
taker's  use,  and  make  them  his  property 
without  the  consent  of  the  owner.  2  East, 
PI.  Cr.  553  ;  4  Wash.  C.  C.  700. 

In  a  recent  English  case,  Mr,  Baron  Parke  said 
that  this  definition,  which  was  the  most  complete 
of  any,  was  defective,  in  not  stating  what  is  the 
meaning  of  the  word  felonious,"  which,  he  said, 
"may  bo  explained  to  mean  that  there  is  no  color 
of  right  or  excuse  for  the  act;  and  the  'intent' 
must  be  to  deprive  the  owner,  not  temporarily,  but 
permanently,  of  his  property."  Regina  vs.  IIollo- 
way,  2  Carr.  &  K.  942  j  1  Den.  Cr.  Cas.  370;  Tempi. 
&  M.  Cr.  Cas.  40.  It  is  safer  to  be  guided  by  tho 
cases  than  by  the  definitions  given  by  text-writers. 
Per  Coltman,  J.  Several  definitions  are  collected 
'  by  Mr,  Bishop,  2  Crim.  Law,  g  676,  n.,  to  which 
reference  is  made. 

Larceny  was  formerly  in  England,  and  still  is, 
perhaps,  in  some  states,  divided  into  grand  and 
2}('fit  or  petti/  larceny,  according  as  the  value  of  the 
property  taken  was  great  or  small.  2  East,  PI.  Cr. 
736;  3  M'Cord,  So.  C.  187;  3  Hill,  N.  Y,  395;  did. 
144 ;  1  Hawks,  No.  C.  463 ;  8  Blackf.  Ind.  498.  Yet 


LARCENY 


11 


LAST  WILL 


in  Enc;land  this  distinction  is  now  abolished,  by  7 
&  S  Geo.  IV.  c.  29,  g  2;  and  the  same  is  true  of 
many  of  the  United  States,  although  in  some  a  dif- 
ference is  made,  similar  in  theory,  between  cases 
where  the  amount  stolen  is  more  and  where  it  ia 
less  than  one  hundred  dollars  or  some  fixed  sum. 

Compound  larceny  is  larceny  under  circum- 
stances which,  in  view  of  the  law,  aji;gravate 
the  crime.  The  law  in  relation  to  this  branch 
of  larceny  is  to  a  great  extent  statutory. 

2.  The  property  of  the  owner  may  be 
either  general,  1  Carr.  &  K.  518 ;  2  Den.  Cr. 
Cas.  449,  or  special.  10  Wend.  N.  Y.  165  ; 
14  Mass.  217  ;  13  Ala.  n.  s.  153  ;  21  Me.  14  ; 

8  Tex.  115;  4  Ilarr.  Del.  570;  6  Hill,  N.  Y. 
144 ;  9  Carr.  &  P.  44. 

There  must  be  a  taking  against  the  consent 
of  the  owner,  8  Carr.  &  P.  291 ;  9  id.  305  ;  1 
Den.  Cr.  Cas.  381;  2  Ov.  Tenn.  G8:  9  Yerg. 
Tenn.  198;  6  id.  154;  20  Ala.  n.  s.  428;  1 
Kich.  So.  C.  30;  2  Nott  &  M'C.  So.  C.  174; 
Coxe,  N.  J.  439  ;  and  the  taking  will  not  be 
larceny  if  consent  be  given,  though  obtained 
by  fraud.    15  Serg.  &  R.  Penn.  93  ;  9  Carr. 

6  P.  741;  4  Taunt.  258;  7  Cox,  Cr.  Cas.  289. 
AVhen  ihQ  possession  an  article  is  intrusted 
to  a  person,  who  carries  it  away  and  appro- 
priates it,  this  is  no  larceny,  24  Eng.  L.  & 
Eq.  5G2;  4  Carr.  &  P.  545;  5  id.  533;  1 
Pick.  Mass.  375  ;  20  Ala.  n.  s.  428  ;  17  N.  Y. 
114  ;  see  2  M'Mull.  So.  C.  382  ;  2  Carr.  &  K. 
983 ;  4  Mo.  461 ;  33  Me.  127  ;  11  Cush.  Mass. 
483  ;  13  Gratt.  Va.  803  ;  ^  11  Tex.  769  ;  but 
•when  the  custody  merely  is  parted  with,  such 
misappropriation  is  a  larceny.  6  T.  B.  Monr. 
Ky.  130  ;  1  Den.  N.  Y.  120  ;  11  Q.  B.  929  ;  1 
Den.  Cr.  Cas.  584. 

3.  The  taking  must  be  in  the  county  where 
the  criminal  is  to  be  tried.  9  Carr.  &  P.  29; 
Ry.  &  M.  349.  But  w^hen  the  taking  has 
been  in  the  county  or  state,  and  the  thief  is 
caught  with  the  stolen  property  in  another 
county  than  that  where  the  theft  was  com- 
mitted, he  may  be  tried  in  the  county  where 
arrested  with  the  goods  ;  as,  by  construction 
of  law,  there  is  a  fresh  taking  in  every  county 
in  which  the  thief  carries  the  stolen  property. 

7  Mete.  Mass.  175.  Whether  an  indictment  for 
larceny  can  be  supported  where  the  goods  are 
proved  to  have  been  originally  stolen  in  another 
state,  and  brought  thence  into  the  state  where 
the  indictment  is  found,  is  a  point  on  which 
the  decisions  are  contradictory.  Property 
stolen  in  one  of  the  British  Provinces  and 
brought  by  the  thief  into  Massachusetts  is 
not  larceny  there.  3  Gray  Mass.  434.  See, 
contra.  11  Vt.  650. 

4.  There  must  be  an  actual  removal  of  the 
article,  1  Leach,  Cr.  Cas.  4th  ed.  236,  n.,  320; 
3  Greenleaf,  Ev.  U54 ;  7  Carr.  &  P.  552  ;  8 
id.  291 ;  8  Ala.  n.  s.  328 ;  12  Ired.  No.  C.  157 ; 

9  Yerg.  Tenn.  198  ;  but  a  very  slight  removal, 
if  it  amount  to  an  actual  taking  into  posses- 
sion, is  sufficient.  2  East,  PL  Cr.  556,  617  ; 
1  Carr.  &  K.  245  ;  Doarsl.  Cr.  Cas.  421.  ' 

The  property  must  be  personal;  and  there 
can  be  no  larceny  of  things  affixed  to  the  soil, 
1  Hale,  PI.  Cr.  510 ;  11  Ircd.  No.  C.  477  ;  8 
Carr.  &  P.  293 ;  but  if  once  severed  by  the 


owner,  a  third  person,  or  the  thief  himself, 
as  a  separate  transaction,  it  becomes  a  sub- 
ject of  larceny.  11  Ired.  No.  C.  70;  3  Ilill, 
N.  Y.  395;  1  Mod.  89  ;  2  Rolle,  89;  7  Taunt. 
188.  It  must  be  of  some  value,  though  Imt 
slight.  4  Rich.  So.  C.  356 ;  3  Ilarr.  Del.  563 ; 
7  Mete.  Mass.  475.  See  8  Penn.  St.  260;  6 
Johns.  N.  Y.  103  ;  9  Carr.  &  P.  347. 

See  Hale,  Hawkins,  Pleas  of  the  Crown  ; 
Bishop,  Gabbett,  Russell,  Criminal  Law; 
Roscoe,  Criminal  Evidence. 

LAS  PARTIDAS.  The  name  of  a  code 
of  S[janisli  law.  It  is  sometimes  called  las 
siete  pjartidas,  or  the  seven  parts,  from  the 
number  of  its  principal  divisions.  It  is  a 
compilation  from  the  civil  law,  the  custom- 
ary law  of  Spain,  and  the  canon  law.  It 
was  compiled  by  four  Spanish  jurisconsultvS, 
under  the  eye  of  Alphonso  X.,  a.d.  1150,  and 
published  in  Castillo  in  1263,  but  first  pro- 
mulgated as  law  by  Alphonso  XL,  a.d.  1348. 
The  maritime  law  contained  in  it  is  given  in 
vol.  6  of  Pardess.  Col.  of  Mar.  Law.  Ke  fol- 
lows the  edition  of  1807,  at  Paris.  It  ha3 
been  translated  into  English.  Such  of  its 
provisions  as  are  applicable  are  in  force  in 
Florida,  Louisiana,  and  Texas.  1  Sharswood, 
Blackst.  Comm.  66 ;  1  White,  New  Rccop. 
354. 

LASCIVIOUS  CARRIAGE.  In  Con- 
necticut. A  term  including  those  wanton 
acts  between  persons  of  different  sexes,  who 
are  not  married  to  each  other,  that  flow  from 
the  exercise  of  lustful  passions,  and  which 
are  not  otherwise  punished  as  crimes  against 
chastity  and  public  decency.  2  Swift,  Dig. 
343;  2  Swift,  Syst.  331. 

Lascivious  carriage  may  consist  not  only 
in  mutual  acts  of  wanton  and  indecent  fami- 
liarity between  persons  of  different  sexes, 
but  in  wanton  and  indecent  actions  against 
the  wUl  and  without  the  consent  of  one  of 
them :  as,  if  a  man  should  forcibly  attempt 
to  pull  up  the  clothes  of  a  woman.  5  Day, 
Conn.  81. 

LAST  HEIR.  He  to  whom  the  lands 
come  if  they  escheat  for  want  of  lawful" 
heirs:  viz.,  sometimes  the  lord  of  whom  the 
lands  are  held,  sometimes  the  king.  Brac- 
ton,  lib.  5,  c.  17. 

LAST  SI<?KNESS.  That  of  which  a 
person  dies. 

The  expenses  -^f  ^his  sickness  are  generally 
entitled  to  a  pretceuce  in  payment  of  debts 
of  an  insolvent  estate-  La.  Civ.  Code,  art. 
3166. 

To  prevent  impositions,  the  statute  of  frauds 
requires  that  nuncupative  wills  shall  be  made 
during  th^  testator's  last  sickness.  Roberts, 
Frauds,  556  ;  20  Johns.  N.  Y.  502. 

LAST  WILL  (Lat.  idtima  voluntas).  A 
disposition  of  real  estate  to  take  effect  after 
death. 

It  is  strictly  distinguishable  from  testament, 
which  is  appliedto  personal  estate,  1  Williams, 
Exec.  6,  n.  b,  Amer.  notes;  but  the  words  are 
generally  used  together,  "last  will  and  tes- 


LATENT  AMBIGUITY 


12 


LAW 


tament/'  in  a  will,  whether  real  or  personal 
estate  is  to  be  disposed  of.    See  Will. 

LATENT  AMBIGUITY.  One  which 
does  not  appear  on  the  face  of  the  instru- 
ment. See  Ambiguity  ;  Maxims,  Amliyui- 
iies. 

LATHE,  LATH  (L.  Lat.  laestnim  or 
leda.  Law  Fr.  and  Lng.  Diet.).  A  division 
of  certain  counties  in  England,  intermediate 
between  a  county  or  shire  and  a  hundred, 
sometimes  containing  three  or  four  hundreds, 
as  in  Kent  and  Sussex.  Cowel.  But  in  Sus- 
sex the  word  used  for  this  division  is  rape. 
i  Sharswood,  Blackst.  Comm.  IIG.  There 
was  formerly  a  lathe-reeve  or  bailiflF  in  each 
lathe.  Id.  This  division  into  Za^/?d5  continues 
to  the  present  day.  See  12  East,  244.  In 
Ireland,  the  lathe  was  intermediate  between 
the  tything  and  the  hundred.  Spencer,  Ire- 
land.   See  Termes  de  la  Ley. 

LATIDEMEO.  In  Spanish  Law. 
The  tax  paid  by  the  possessor  of  land  held 
by  quit-rent  or  emphyteusis  to  the  owner  of 
the  estate,  Avhen  the  tenant  alienates  his 
right  in  the  property. 

LATIFUNDIUM  (Lat.).  In  Civil 
Law.  Great  or  large  possessions ;  a  great 
or  large  field ;  a  common.  Ainsworth.  A 
great  estate  made  up  of  smaller  ones  [fun- 
dus), which  began  to  be  common  in  the  latter 
times  of  the  empire.  Schmidt,  Civ.  Law,  In- 
trod.  p.  17. 

LATIFUNDUS  (Lat.  lat^  possidens).  A 
possessor  of  a  large  estate  made  up  of  smaller 
ones.  DuCange. 

LATITAT  (Lat.  he  lies  hid).  In  Eng- 
lish Law.  The  name  of  a  writ  calling  a 
defendant  to  answer  to  a  personal  action  in 
the  king's  bench.  It  derives  its  name  from 
a  supposition  that  the  defendant  lurks  and 
lies  hid,  and  cannot  be  found  in  the  county 
of  Middlesex  (in  which  the  said  court  is 
holden)  to  be  taken  there,  but  is  gone  into 
some  other  county,  and  therefore  requiring 
the  shcrilf  to  apprehend  him  in  such  other 
C(mnty.    Fitzhorbcrt,  Nat.  Brev.  78. 

LAUDIMIUM,  LAUDATIOREM 
(Lat.  a  (aiidaiidu  ilomiiio).  A  liltieth  part 
of  the  purchaso-money  or  (if  no  sale)  of  the 
value  of  the  estate  paid  to  the  landlord  [doini- 
nus)  by  a  new  emphyteuta  on  his  succession 
to  the  estate,  not  as  heir,  but  as  singular  suc- 
cessor. Vuctius,  Comm.  ad  Pand.  lib.  G,  tit. 
3,     20-35  ;  INIackeldoy,  Civ.  Law,  297. 

In  Old  English  Law.  The  tenant  paid 
a  laudemiuin  or  acknowledgment-money  to 
new  landlord  on  the  death  of  the  old.  Sec 
Bloun t,  Ackiiowledijvient-Moncy. 

LAUNCH.  The  movement  by  which  a 
ship  or  boat  descends  from  the  shore  into  the 
water  when  she  is  first  built,  or  afterwards. 

A  large,  long,  low,  flat-bottomed  boat.  Mar. 
Diet.  The  long  boat  of  a  ship.  K.  II.  Dana. 
A  small  vessel  emj)loyed  to  carry  the  cargo 
of  a  large  one  to  and  from  tltc  shore. 

The  goods  on  Ijoard  of  •  i"""';h  are  at  the 
risk  of  the  insurers  till  1j  5  Mart.  La. 


N.  s.  387.  The  duties  and  rights  of  the  mas- 
ter of  a  launch  are  the  same  as  those  of  the 
master  of  a  lighter. 

When  the  master  of  a  vessel  agreed  to  take 
cotton  on  board  his  vessel  from  the  cotton- 
press,  and  employed  a  steam-lighter  for  that 
purpose,  and  the  cotton  was  lost  by  an  explo- 
sion of  the  steam-boiler  of  the  lighter,  it  was 
held  that  his  vessel  was  liable  in  rem  for  the 
loss.    23  Bost.  Law  Kep.  277. 

LAW.  That  which  is  laid  down  ;  that 
which  is  established.  A  rule  or  method  of 
action,  or  order  of  sequences. 

The  rules  and  methods  by  which  society 
compels  or  restrains  the  action  of  its  mem- 
bers. 

The  aggregate  of  those  rules  and  princi- 
ples of  conduct  which  the  governing  power 
in  a  community  recognizes  as  the  lules  and 
principles  which  it  will  enforce  or  sanction, 
and  according  to  which  it  will  regulate,  limit, 
or  protect  the  conduct  of  its  members. 

A  rule  of  civil  conduct  prescribed  by  the 
supreme  power  in  a  state.  1  Stephen,  Comm. 
25. 

A  rule  or  enactment  promulgated  by  the 
legislative  authority  of  a  state;  a  long-esta- 
blished local  custom  which  has  the  force  of 
such  an  enactment.    10  Pet.  18. 

The  doctrines  and  procedure  of  the  com- 
mon law  of  England  and  America,  as  distin- 
guished from  those  of  equity. 

An  oath.  So  used  in  the  old  English  prac- 
tice, by  which  wager  of  law  was  allowed. 
See  Wager  of  Law. 

2.  Perhaps  few  terms  whose  use  requires  equal 
precision  serve  in  so  many  diverse  meanings  as  the 
term  law.  In  its  root  it  signifies  that  which  is 
laid  down,  that  which  is  established.  "  In  the 
largest  sense."  says  Montesquieu  (Esprit  des  Lois, 
b.  1,  ch.  1),  "laws  are  the  necessary  relations 
which  arise  from  the  nature  of  things;  and,  in 
this  sense,  all  beings  have  their  laws,  God  has  hia 
laws,  the  material  universe  has  its  laws,  intelli- 
gences superior  to  man  have  their  laws,  animals 
have  their  laws,  man  has  his  laws.  In  this  sense, 
the  idea  r>f  a  command  proceeding  from  a  superior 
to  an  inferior  is  not  ntctssarily  involved  in  the 
term  law.  It  is  frequently  thus  used  to  denote 
simply  a  statement  of  a  ct.nslant  relation  of  phe- 
nomena. The  laws  of  sciem  e,  thus,  are  but  gene- 
ralized statements  of  c  bserved  facts.  "  It  is  a  per- 
version of  language,"  says  Paley,  "to  assign  any 
law  as  the  efficient  operative  cause  of  any  ihing. 
A  law  presupposes  an  .igei.t:  this  is  only  the  mede 
according  to  which  an  agent  i)roceeds." 

In  its  relation  to  human  affairs  there  is  a  broad 
use  of  the  term,  in  which  it  denotes  any  of  those 
rules  and  methods  by  which  a  society  compels  or 
restrains  the  action  of  its  members.  Here  the 
idea  of  a  command  is  more  generally  obvious,  and 
has  usually  been  thought  an  essential  element  in 
the  notion  of  human  law. 

A  distinction  is  to  be  observed  in  the  outset  be- 
tween the  abstract  and  the  concrete  meaning  of 
the  word.  That  which  is  usually  intended  by  the 
term  "laws"  is  not  coextensive  with  that  which 
is  intended  by  the  term  "law."  In  the  broadest 
sense  which  it  bears  when  Uf^od  in  the  abstract, 
law  is  a  science.  It  treats  of  the  theory  of  gov- 
ernment, the  relation  of  states  to  each  other  and 
to  individuals,  and  the  rights  and  obligations  of 
States,  of  individuals,  and  of  artificial  persons  and 


LAW 


13 


LAW 


locnl  communities  among  themselves  and  to  each 
other. 

3*  An  analysis  of  the  Fcience  of  law  presents  a 
x'lQVf,  fust,  of  the  rights  of  persons,  dir^tinguishing 
them  as  natural  persons  and  artificial  persons,  or 
bodies  politic  or  corporations.  These  rights  are 
deemed  either  absolute,  as  relating  to  the  enjoy- 
ment <.f  peraonal  security,  liberty,  and  of  private 
property,  or,  (  n  the  other  hand,  as  relative, — that 
is,  arising  out  of  the  relation  in  which  several  per- 
sons stand.  These  relations  arc  either, ///a^,  pub- 
lic or  political,  viz. :  the  relation  of  magistrates  and 
people;  or,  second,  are  private,  as  the  relations  (*f 
master  and  servant,  husband  and  wife,  i):n-ent  and 
child,  guardian  and  ward,  to  which  might  be  added 
relations  arising  out  of  private  contracts,  such  as 
partnership,  principal  and  agent,  and  the  like. 
Under  the  head  of  the  rights  of  persons  as  arising 
out  of  public  relations  may  be  discussed  the  con- 
stitution and  polity  of  the  state,  the  distribution 
of  powers  among  the  various  departments  of  the 
government,  the  j)olitical  status  of  individuals,  as 
aliens,  citizen|,  and  the  like. 

In  the  second  place,  the  analysis  presents  the 
rights  of  i)roperty,  which  is  divided  into  personal 
property  or  chattels,  viz.,  that  which  is  movable, 
and  real  property,  or  that  which  is  immovable, 
viz.,  lands,  including  nearly  all  degrees  of  interest 
therein,  as  well  as  such  chattels  as  by  a  peculiar 
connection  with  land  may  be  deemed  to  have  lost 
their  character  as  legally  movable:  these  rights 
of  property  are  viewed  in  respect  to  the  origin  of 
title,  tha  transmission  of  title,  and  the  protection 
of  the  enjoyment  thereof. 

In  the  third  plaee,  the  analysis  presents  a  view 
of  private  wrongs,  or  those  injuries  to  persons  for 
which  the  law  provides  a  redi-ess  for  the  aggrieved 
party;  and  under  this  head  may  be  considered  tho 
tribunals  through  which  the  i)rotection  of  right's  or 
the  I'edress  of  wrongs  may  be  obtained,  and  the! 
various  modes  of  procedure  to  those  ends. 

4,  Lastly,  the  analysis  presents  a  view  of  pub- 
lic wrongs,  or  crimes  and  misdemeaiuiirs,  in  which 
may  be  considered  the  theory  of  crime  and  punish- 
ment, the  persons  capable  of  comiuitting  crimes,  the 
several  degrees  of  guilt  of  privicipals  and  accesso- 
ries, the  various  crimes  of  wMch  the  law  takes  cog- 
nizance,— as,  those  against  religion,  those  against 
the  state  and  its  government,  and  those  against 
persons  and  property, — Vfith  the  punishment  which 
the  law  affixes  to  each,  and  also  the  tribunals  and 
procedure  by  which  Crimes  threatened  may  be  pre- 
vented and  crimes  committed  may  be  punished. 
Blackstone,  Comm.. 

5.  In  a  strict'jr  sense,  but  still  in  the  abstract, 
law  denotes  the  aggregate  of  those  rules  and  prin- 
ciples of  conduct  which  the  governing  power  in  a 
community  recognizes  as  the  rules  and  principles 
which  it  will  'enforce  or  sanction,  and  according  to 
which  it  will  regulate,  limit,  or  protect  the  conduct 
of  members  of  the  community. 

It  is  the  ftgi/rei/ate  of  legal  rules  and  pi'inciples, 
as  distingu  ished  from  any  particular  rule  or  prin- 
ciple. No  one  statute,  nor  all  statutes,  constitute 
iiie  law  of  the  state;  for  the  maxims  of  the  courts 
and  the  regulations  of  municipal  bodies,  as  well  as, 
to  some  ex  cent,  the  universal  principles  of  ethics,  go 
to  make  u;o  the  body  of  the  law.  It  includes  pri7i- 
oplcH,  which  rest  in  the  common  sense  of  justice 
and  right,  as  well  as  positive  rules  or  regulations, 
which  rest  in  ordinance.  It  is  the  aggregate  of 
the  rules  or  principles  only  which  the  governing 
j)ou-er  in  the  community  recognizes,  because  that 
power,  whether  it  be  deemed  as  residing  in  a  mon- 
arch, an  a.ristocracy,  or  in  the  common  people  at 
large,  is  the  source  of  the  authority  and  the  sanc- 
tion of  th()se  rules  and  principles.  It  is  the  aggre- 
g.ate  of  th()se  rules  and  principles  which  are  rec<uj- 
nized  as  the  law  by  that  power,  rather  than  those 


which  are  actually  enforced  in  all  cases:  for  a  sta- 
tute is  none  the  less  a  law  because  the  contiuunity 
i'orbcar  to  enforce  it,  so  long  as  it  is  <,tiicuilly  re- 
cognized by  them  as  that  which,  in  theory  j-i  least, 
should  bo  enforced;  nor  d(jes  a  departure  frf^m  the 
law  by  the  governing  power  in  itself  abrogate  tho 
law.  It  comprises  not  </nly  those  rules  and  prin- 
ciples which  are  to  be  cnlorced,  but  also  those 
which  are  simply  jiermissivc;  for  u  very  large  part 
even  of  modeni  statute-law — which  is  commonly 
defined  as  a  rule  ci  nim*<ind.ng  or  |)rohibit'ng — in 
reality  neither  commands  nor  pre  hibits,  except  in 
the  most  distant  and  indirect  sense,  but  simply 
authorizes,  permits,  or  sanctions;  and  this  is  much 
more  generally  true  of  those  ])rinci{iles  of  the  law 
which  rest  in  custom  «ind  the  adjudications  of  the 
courts.  It  is  only  Ihore  which  relate  to  the  iuem- 
heiH  of  the  comvniniti/  in  question:  for  laws,  as  such, 
have  no  extra-territorial  operation. 

a.  The  idea  of  law  has  commonly  been  analyzed 
as  composed  of  three'ekments  :  a  command 

of  the  lawgiver,  which  command  must  prescribe 
not  a  single  act  merely,  but  a  seiies  or  class  of 
acts;  second,  i.n  obligation  insposed  thereby  on  the 
citizen;  third,  a  sanction  threatened  in  the  event 
of  disobedience.  Thus,  municipal  law  is  defined  as 
'•  a  rule  of  civil  conduct  prescribed  by  the  supreme 
power  in  the  state,  commanding  what  is  right  and 
prohibiting  what  is  wrong,"  1  Blackstone,  Comm. 
44.  The  latter  clause  /)f  this  definition  has  been 
much  criticized.  Mr.  Chitty  modifies  it  to  "com- 
manding what  shall  be  done  or  what  shall  not  be 
done"  {id.  not');  and  Mr.  Stephen  omits  it,  de- 
fining law  as  '"'a  rule  of  civil  conduct  prescribed  by 
the  supreme  power  in  a  state."  1  Stephen.  Comm. 
25.  It  is  also  defined  as  a  rule  of  conduct  con- 
tained in  the  command  of  a  sovereign  addressed 
to  the  subject.  (Encyc.  Brit.)  These  definitions, 
though  morfe  apt  in  reference  to  statutes  and  edicts 
than  to  the  law  in  general,  seem,  evm  in  reference 
to  the  former  S(  rt  of  law,  to  look  rather  at  the 
usual  form  than  the  invariable  essence  of  the  thing. 
The  principle  of  law,  that  a  promise  without  a 
consideration  is  void,  neither  commands  men  to 
provide  a  consideration  for  every  promise  nor  for- 
bids them  to  promise  without  consideration,  for 
this  is  lawful;  nor  does  it  f(;rbid"them  to  fulfil  such 
promises.  It  simply  amounts  to  this,  that  if  men 
choose  to  break  such  promises,  society  will  inter- 
fere to  enforce  them.  And  even  many  statutes 
have  no  form  of  a  command  or  prohibition;  and, 
moreover,  some  that  are  such  in  form  are  not  in 
reality.  An  enactment  that  no  action  shall  be 
brought  on  a  simple  contract  after  the  lapse  of  six 
years  from  the  time  the  cause  of  action  accrued 
cannot  aptly  be  said  to  command  men  to  bring  ac- 
tions within  six  years,  nor  even,  in  fact,  to  forbid 
them  to  bring  such  actions  after  that  time ;  for  it 
is  siill  lawful  to  sue  on  an  outlawed  demand,  and, 
if  the  defendant  do  not  object,  the  plaintiff  may 
succeed.  It  may  be  deemed  a  command  in  so  far 
as  it  is  a  direction  to  the  courts  to  dismiss  such 
actions;  but  as  a  rule  of  civil  conduct  it  amounts 
simply  to  this,  that  when  an  obligation  has  become 
stale  to  a  certain  degree,  society  will  sanction  the 
debtor  in  repudiating  it. 

1.  When  used  in  the  concrete,  the  term  usually 
has  reference  to  statutes  or  expressions  of  the  legis- 
lative will.  "  The  lan-s  of  a  state,"  observes  Mr. 
Justice  Story,  "  are  more  usually  understood  to  mean 
the  rules  and  enactments  promulgated  by  the  legis- 
lative authority  thereof,  or  long-established  local 
customs  having  the  force  of  laws."  16  Pet.  18. 
Hence,  he  argues,  "  in  the  ordinary  use  of  language 
it  will  hardly  be  contended  that  the  decisions  of 
courts  constitute  laws."  In  the  Civil  Code  of  Loui> 
siana  they  are  defined  to  be  **tbe  soiemn  expres- 
sion of  the  legislative  will." 

But,  as  has  already  been  said,  "law"  in  the  ab- 


LAW 


14 


LAW  FRENCH 


stract  involves  much  more.  Thus,  a  reference  in  a 
statute  to  "the  cases  provided  by  law"  includes 
not  only  those  cases  provided  by  former  statutes, 
but  also  those  contemplated  by  the  common  or  un- 
written law.    18  N.  Y.  115. 

The  law  of  the  land,  an  expression  used  in  Magna 
Charta  and  adopted  in  most  of  the  earlier  constitu- 
tions of  the  original  states,  means,  however,  some- 
thing more  than  the  legislative  will :  it  requires  the 
due  and  orderly  proceeding  of  justice  according  to 
the  established  methods.  See  Due  Process  of 
Law  ;  Jones  is.  Robbins,  8  Gray,  Mass.  329. 

When  the  term  law  is  used  to  denote  enactments 
of  the  legislative  power,  it  is  frequently  confined, 
especially  by  English  writers,  to  permanent  rules 
of  civil  conduct,  as  distinguished  from  other  acts, 
such  as  a  divorce  act,  an  appropriation  bill,  an 
estates  act.  Report  of  Eng.  Stat.  L.  Com.  Mar., 
1856. 

In  the  United  States,  the  organic  law  of  a  state 
is  termed  the  constitution,  and  the  term  "  laws" 
generally  designates  statutes  or  legislative  enact- 
mentt\.  in  contradistinction  to  the  constitution.  See 
Statutks. 

8.  Law,  as  distinguished  from  equity,  denotes 
the  doctrines  and  procedure  of  the  common  law  of 
England  and  America  f--—  which  equity  is  a  de- 
parture. 

The  distinction  Dfci,.»cen  law  and  equity  has  been 
abolished  in  New  York,  Ohio,  Indiana,  Missouri, 
Yf  isconsin,  Kentucky,  Alabaina,  California,  Oregon, 
and  Minnesota,  at  least  so  far  as  the  methods  of 
procedure  and  the  organization  of  tribunals  is  con- 
cerned ;  but  the  distinction  between  legal  and  equi- 
table relief  still  maintains  its  place  in  the  doctrino^. 
of  remedies. 

Law  is  also  used  in  contradistincrion  to  tact 
Questions  of  law  are,  in  general,  for  the  decision 
of  the  court;  while  it  is  for  the  jury  to  pass  upon 
questions  of  fact. 

In  respect  to  the  ground  of  the  authority  of  law, 
it  is  divided  as  natural  law,  or  the  law  of  nature  or 
of  God,  and  positive  law. 

9.  Arbitrary  law.  A  law  or  provision  of 
law  80  far  removed  from  considerations  of 
abstract  justice  that  it  is  necessarily  founded 
on  the  mere  will  of  the  law-making  power, 
so  that  it  is  rather  a  rule  established  than  a 
principle  declared.  The  principle  that  an 
infant  shall  not  be  bound  by  his  contract  is 
not  arbitrary;  but  the  rule  that  the  limit  of 
infancy  shall  be  twenty-one  years,  not  twenty 
nor  twenty-two,  is  arbitrary. 

The  term  is  also  sometimes  used  to  signify 
an  unreasonable  law, — one  that  is  in  violation 
of  justice. 

Irrevocable  laws.  All  laws  which  have  not 
in  their  nature  or  in  their  language  some 
limit  or  termination  provided  are,  in  theory, 
perpetual;  but  the  perpetuity  is  liable  to  be 
defeated  by  subsequent  abrogation.  It  has 
sometimes  been  attempted  to  secure  an  abso- 
lute perpetuity  by  an  express  provision  for- 
bidding any  abrogation.  But  it  may  well 
be  questioned  whether  one  generation  has 
power  to  bind  their  posterity  by  an  irrevoca 
ble  law.  See  this  subject  discussed  by  Ben- 
tham.  Works,  vol.  2,  pp.  402-407  ;  and  see 
Dwarris,  Stat.  479. 

Municipal  law  is  a  system  of  law  proper 
to  any  single  state,  nation,  or  community. 
See  Municipal  Law. 

A  jienal  law  is  one  whicl  '  3  a  penalty 
for  its  violation. 


Positive  law  is  the  system  naturally  esta^ 
blished  by  a  community,  in  distinction  from 
natural  law.    See  Positive  Law. 

A  private  law  is  one  which  relates  to  pri- 
vate matters  which  do  not  concern  the  public 
at  large. 

A  prospective  law  or  statute  is  one  which 
applies  only  to  cases  arising  after  its  enact- 
ment, and  does  not  affect  that  which  is  al- 
ready past. 

l6.  A  public  law  is  one  which  affects  the 
public,  either  generally  or  in  some  classes. 

A  retrospective  law  or  statute  is  one  that 
turns  backward  to  alter  that  which  is  past 
or  to  affect  men  in  relation  to  their  conduct 
before  its  enactment.  These  are  also  called 
retroactive  laws.  In  general,  whenever  a 
retroactive  statute  would  take  away  vested 
rights  or  impair  the  obligation  of  contracts, 
it  is  in  so  far  void.  3  Dall.  Pe»n.  391.  But 
laws  which  only  vary  the  remedies,  or  merely 
cure  a  defect  in  proceedings  otherwise  fair, 
are  valid.  10  Serg.  &  R.  Penn.  102,  103 ;  15 
id.  72 ;  2  Pet.  380,  627 ;  8  id.  88  ;  11  id.  420. 
See  Ex  Post  Facto. 

For  matters  peculiar  to  the  following  classes 
of  laws,  see  their  several  titles: 

Agrarian  Laws  ;  Brehon  Law  ;  Bretts 
AND  Scotts  Law ;  Canon  Law;  Civil  Law; 
Codes  ;  Colonial  Law  ;  Commercial  Law  ; 

Constitutional  Law;  Consuetudinary  Law; 

!!oRN  Laws;  Criminal  Laws;  Crown  Law; 

Scclesiastical  Law  ;  Edictal  Law  ;  Ex  Post 

'acto  Laws  ;  Fecial  Law  ;  Feudal  Law  ; 

'oREiflN  Law  ;  Game  Laws  ;  Gentoo  Law  ; 

rREEN  Cloth  Law  ;  Hindu  Law  ;  Insolven- 
ct;  Laws  of  Oleron  ;  Mahommedan  Law  ; 
Martial  Law;  Military  Law;  Rhodian 
Law  ;  Statutes  of  Wisbuy. 

LAW  BORGrJ^.    in  Old  Scotch  Law. 

A  pledge  or  surety  for  appearance. 

LAW-BURROW3.    In  Scotch  Law. 

Security  for  the  peaceful  behavior  of  a  party ; 
security  to  keep  the  peace.  This  process  was 
much  resorted  to  by  the  govt?rnment  of  Charles 
II.  for  political  purposes. 

LAW  COURT  OF  AJr  .ri.«.ijS.  In 
American  Law.  An  appellate  tribunal,  in 
the  state  of  South  Carolina,  fo^  hearing  ap- 
peals from  the  courts  of  law 

LAW  DAY.  The  day  fixed  m  a  muiO- 
gage  or  defeasible  deed  for  the  myment  of 
the  debt  secured.  24  Ala.  n-  s  140  t  10  Conn. 
280  ;  21  N.  Y.  345. 

In  Old  English  Law.  xjuw  u.hj  /'^^e 
day  denoted  a  day  of  open  court ;  especially 
the  more  solemn  courts  of  a  county  or  hun- 
dred.  The  court-leet,  or  v'^^^^  «f  fm  nlrr^iodge. 

LAW  FRENCH,  rrora  tne  ume  of 
William  the  Norman  down  to  thjit  of  Ed- 
ward UI.,  all  public  proceedings  tmd  docu- 
ments in  England,  including  the  r  ecords  of 
the  courts,  the  arguments  of  counsel,  and  the 
decisions  of  the  judges,  were  in  the  language 
of  the  Norman  French.  After  Latitfi  and  Eng- 
lish were  substituted  in  the  records  and  pro- 
ceedings, however,  the  cases  and.  decisions 


LAW  OF  THE^  LAND 


15 


LAW  OF  NATURE 


continued  until  the  close  of  the  seventeenth 
oentury  to  be  reported  in  French ;  the  first 
reports  published  in  English  being  those  of 
Style,  in  1G58.  The  statutes  of  the  reign 
of  Henry  IIL  and  some  of  the  subsequent 
reigns  are  partly  or  wholly  in  this  language ; 
but  English  was  substituted  in  the  reign  of 
Henry  VII.  Of  the  law-treatises  in  French, 
the  Mirrour  and  Britton,  and  the  works  of 
Littleton,  may  be  mentioned. 

LAW  OP  THE  LAND.  Due  process 
of  law.  2  Yerg.  Tenn.  50  ;  6  Penn.  St.  86  ; 
4  Hill,  N.  Y.  140.   See  Due  Process  OF  Law. 

LAW  LATIN.    Edward  III.  substituted 
the  Latin  language  for  the  Norman-French 
in  the  records,  and  the  English  in  other  pro- 
ceedings.   The  Latin  was  used  by  virtue  of 
its  being  the  language  of  scholars  of  all  Eu- 
ropean nations ;  but,  in  order  to  adapt  it  to 
the  purposes  of  the  profession,  the  English 
terms  of  legal  art  in  most  frequent  use  were 
Latinized  by  the  simple  addition  of  a  Latin 
termination,  and  the  diverse  vocabulary  thus 
collected  was  arranged  in  English  idioms. 
But  this  barbarous  dialect  commended  itself 
by  a  semblance  of  scholarly  sound,  and  more 
by  the  precision  which  attaches  to  technical 
terms  that  are  never  used  in  popular -lan- 
guage.   During  the  time  of  Cromwell,  Eng- 
hsh  was  used;  but  with  the  restoration  Latin 
was  reinstated,  and  held  its  place  till  4  Geo. 
II.  ch.  2G,  when  it  was  enacted  that,  since  the 
common  people  ought  to  know  what  was  done 
for  and  against  them,  proceedings  should  be 
in  English.    It  was  found,  however,  that  cer- 
tain technical  terms  had  become  so  fixed 
that  by  a  subsequent  act  such  words  were 
allowed  to  continue  in  use.    6  Geo.  II.  ch. 
14.    Hence  a  large  class  of  Latin  terms  are 
still  in  use,  of  which  nisi  prius,  habeas  cor- 
pus, Us  pendens,  are  examples.    Consult  3 
Blackstone,  Comm.  318-323,  and  as  to  par- 
ticular words  and  phrases,  Termes  de  la  Ley ; 
Taylor's  Law  Glossary ;  the  Law-French  and 
Law-Latin  Dictionary;   Kelham's  Norman- 
jFrench  Dictionary ;  DuCange. 

;    LAW  MERCHANT.   The  general  body 
lof  commercial  usages  in  matters  relative  to 
Icommerce.    Blackstone  calls  it  the  custom 
W  merchants,  and  ranks  it  under  the  head  of 
]fche  particular  customs  of  England,  which  go 
:o  make  up  the  great  body  of  the  common 
aw.    1  Blackstone,  Comm.  75.    Since,  how- 
iver,  its  character  is  not  local,  nor  its  obliga- 
lon  confined  to  a  particular  district,  it  can- 
lot  with  propriety  be  considered  as  a  custom 
n  the  technical  sense.    1  Stephen,  Comm. 
4.   It  is  a  system  of  law  which  does  not 
est  exclusively  on  the  positive  institutions 
|nd  local  customs  of  any  particular  countrv, 
ut  consists  of  certain  principles  of  equity 
nd  usages  of  trade  which  general  conve- 
^  common  sense  of  justice  have 
'tabhshed,  to  regulate  the  dealings  of  mer- 
mnts  and  mariners  in  all  the  commercial 
l^untries  of  the  civilized  world.    3  Kent. 
jOmm.  2.  ' 

These  usages,  being  general  and  exten- 1 


sive,  partake  of  the  character  of  rules  and 
principles  of  law,  not  of  matters  of  fact,  as 
do  usages  which  are  local  or  special.  They 
constitute  a  part  of  the  general  law  of  the 
land,  and,  being  a  part  of  that  law,  their  ex- 
istence cannot  be  proved  by  witnesses,  but 
the  judges  are  bound  to  take  notice  of  them 
ex  officio.  Winch,  24 ;  and  this  application  is 
not  confined  to  merchants,  but  extends  to  all 
persons  concerned  in  any  mercantile  transao- 
tion.  See  Beawes,  Lex  Mercatoria  lledi viva ; 
Caines,  Lex  Mercatoria  Americana ;  Comyns, 
Dig.  Merchant  (D)  ;  Chitty,  Com.  Law;  Par- 
dessua,  Droit  Commercial ;  Collection  des  Lois 
maritimes  anterieure  au  dix-huiti^me  iSifecle, 
par  Dupiu ;  Capmany,  Costumbres  Mariti- 
mas;  II  Consolato  del'Mare;  Us  et  Coutumes 
de  la  Mer ;  Piantandia,  Delia  Giurisprudenze 
Maritima  Commerciale,  Antica  e  Moderna; 
Valin,  Commentaire  sur  I'Ordonnance  de  la 
Marine,  du  Mois  d'Aodt,  1681 ;  Boulay-Paty, 
Droit  Comm. ;  Boucher,  Institutions  au  Droit 
Maritime  ;  Parsons,  Marit.  Law. 

LAW  OF  NATIONS.    See  Interna- 
tional Law. 

LAW  or  NATURE.  That  law  which 
God,  the  sovereign  of  the  universe,  has  pre* 
scribed  to  all  men,  not  by  any  formal  pro- 
mulgation, but  by  the  internal  dictate  of 
reason  alone.  It  is  discovered  by  a  just  con- 
sideration of  the  agreeableness  or  disagree- 
ableness  of  human  actions  to  the  nature  of 
man ;  and  it  comprehends  all  the  duties  which 
we  owe  either  to  the  Supreme  Being,  to  our- 
selves, or  to  our  neighbours :  as,  reverence  to 
God,  self-defence,  temperance,  honour  to  our 
parents,  benevolence  to  all,  a  strict  adherence 
to  our  engagements,  gratitude,  and  the  like. 
Erskine,  Pract.  Scotch  Law,  1.  1.  1.  See 
AylilTe,  Pand.  tit.  2,  p.  2;  Cicero,  de  Leg. 
lib.  1.  '  S 

2.  The  primitive  laws  of  nature  may  be 
reduced  to  six,  namely:  comparative  saga- 
city, or  reason;  self-love;  the  attraction  of 
the  sexes  to  each  other;  the  tenderness  of 
parents  towards  their  children ;  the  religious 
sentiment ;  sociability. 

When  man  is  properly  organized,  he  is  able 
to  discover  moral  good  from  moral  evil ;  and 
the  study  of  man  proves  that  man  is  not  only 
an  intelligent  but  a  free  being,  and  he  is 
therefore  responsible  for  his  actions.  The 
judgment  we  form  of  our  good  actions  pro- 
duces happiness;  on  the  contrarv,  the  judg- 
ment we  form  of  our  bad  actions  produces 
unhappiness. 

3.  Every  animated  being  is  impelled  by 
nature  to  his  own  preservation,  to  defend  his 
life  and  body  from  injuries,  to  shun  what 
may  be  hurtful,  and  to  provide  all  things  re- 
quisite to  his  existence.  Hence  the  duty  to 
watch  over  his  own  preservation.  Suicide 
and  duelling  are,  therefore,  contrary  to  this 
law  ;  and  a  man  cannot  mutilate  hiniself,  nor 
renounce  his  liberty. 

The  attraction  of  the  sexes  has  been  pro- 
vided for  the  preservation  of  the  human 
race;  aud  this  law  condemns  celibacy.  The 


LAW  OF  THE  STAPLE 


16 


LE  KOI  VEUT  EN  DELIBEREa 


e„a  of  carriage  pr^^s Jha  }>ob|-y 

a„d  wife 

fca  muS  and  exclusive  right  over  each 

of  the  attributes  which  beion^  t  ^ 
IL;  and  its  importance  -t^the 

tSetu'ri"^^^^^ 

-.rorship  among  men.  . 
The  need  winch  ^^^-J^Zs  of  nature 

'"llw'oP  THE  STAPLE.    See  L.w 

'''l.AWFTJL    Legal.    That  which  is  not 
*  3To  law    That  which  is  sane  loned 

eorknce  nsed  with  | 

XTcfto  th^t  which  is  in  its 

.Srecment      -"^^  't,'' ^  id  t?  be  «nla«i 
making  or  m  P-^f^^?,  n"*"" 

such  cases.  . 
T  yvWFUL  MONEY.    Money  which  is 

10  Ark.  83.    See  1  Ilempst.  C.  0.  -.50. 

T  AWING  OF  DOGS.    Mutilatin-  the 

^3ilrd:-a=::e:s.^^L 

LAWLESS  MAN.    An  outlaw.  • 
LAWSUIT.    An  action  at  law,  or  litiga- 

""lawyer.    One  skilled  in  the  law. 


LAY.    In  English  Law.    That  P 

Bouvier,  Inst.  n.  2>ilb. 

LAY  CORPOHATION.  /  ^ 

wood,  Blackst.  Comm.  470. 


Is 


1 


WU,  JJltl-v^ivt^i..   

TO  LAY  DAMAGES,         "^-^  "tit  of 
conc?us^;n  of  the  declaration  the  amou 
damages  which  the  plaintiff  claims.  ^ 
•LAYDAYS.  In  Maritime  Law.  ,  ^ 

time  allowed  to  the  master  of  a  x^^- 
loading  and  unloading  the  same.    In  t  i,^ 

from  Demukkage,  which  see. 

LAY  FEE.    A  fee  held  by  ordinary 
dautJur^  as  d-tinguished  from  the  ec< 

:::SaSrc:^P«r49 

Sharswood,  Blackst.  Comm.  101. 
LAY  IMPROPKIATOR.   Lay  r 

towtl  the  greater  tithes  are  rese  . 
I  lesser  going  to  the  vicar.   1  Burn,  Jvc 

'  ^^'JIy  PEOPLE.  Jurymen.  Finch 

^**LAYMAN.    m  Ecclesiastical 

On^thoTs  not  an  ecclesiastic  nor  a 

"Lazaret,  lazaretto  A 

.Pl^,^ed  1^  public  authority,  where 

^•e  ?eVuired  to  perform  quarantm 
Health. 

LB  ROI  S'AVISERA.  The 

•  >n7  nf  it     This  phrase  is  use 
— h  whef  he  gives  hi 
Hn  act  passed  by  tl^« 
The  same  formula  was  used  by  the 
of  the  French  for  the  same  purpose, 
lier  n.  52.    Sec  Veto. 

iiE  ROI  LE  VEUT.  The  kin| 
TOs  if  t^io  formula  used  in  Engl 
formei  yin  France,  when  the  king 
of  a  Tui^passed  by  the  legislature 

LE   ROI  VEUT  EN  DELI 

The  king  will  deliberate  on  it.  1 
^>rmula  which  the  late  French 
tCn  he  intended  to  veto  ^^^^^ 
,  lative  assembly.    1  Toulbor.  n.  421 


To  state  a 


It  tlie 


TI 
it.' 


di 
mi 
ite 
1 


ap! 
,nd 


'his 
th. 


LEADING  A  USE 


17 


LEASE 


LEADING  A  USE.  A  term  applied  to 
deeds  declaring  the  use  of  a  fine :  i.e.  speci- 
fying to  whose  use  the  fine  shall  enure  before 
the  fine  is  levied.  2  Sharswood,  Blackst. 
Comm.  363.    See  Deed. 

LEADING  CASE.  A  case  decided  by 
a  court  of  last  resort,  which  decides  some 
particular  point  in  question,  and  to  which 
reference  is  constantly  or  frequently  made, 
for  the  purpose  of  determining  the  law  in 
similar  questions. 

Many  elements  go  to  the  constitution  of  a 
case  as  a  leading  case:  among  which  are, 
the  priority  of  the  case,  the  character  of  the 
court,  the  amount  of  consideration  given  to 
the  question,  the  freedom  from  collateral  mat- 
ters or  questions.  The  term  is  applied  to 
cases  as  leading  either  in  a  particular  state 
or  at  common  law.  A  very  convenient  means 
of  digesting  the  law  upon  any  subject  is  found 
to  be  the  selection  of  a  leading  case  upon  the 
subject,  and  an  arrangement  of  authorities 
illustrating  the  questions  decided.  See  Ben- 
nett &  H.  Lead.  Crim.  Cas. ;  Smith,  Lead. 
Cas. ;  Hare  &  W.  Sel.  Dec. ;  Tudor,  Lead. 
Cas. ;  and  a  variety  of  others. 

LEADING  COUNSEL.  That  one  of 
two  or  more  counsel  employed  on  the  same 
side  in  a  cause  who  has  the  principal  man- 
agement of  the  cause.  So  called  as  distin- 
guished from  the  other,  who  is  called  the 
junior  counsel. 

LEADING  QUESTION.  In  Practice. 

A  question  which  puts  into  the  witness's  mouth 
the  words  to  be  echoed  back,  or  plainly  sug- 
gests the  answer  which  the  party  wishes  to 
get  from  him.  7  Serg.  &  R.  Penn.  171;  4 
Wend.  N.  Y.  247.  In  that  case  the  examiner 
is  said  to  lead  him  to  the  answer.  It  is  not 
always  easy  to  determine  what  is  or  is  not  a 
leading  question. 

These  questions  cannot,  in  general,  be  put 
to  a  witness  in  his  examination  in  chief.  3 
Binn.  Penn.  130 ;  6  id.  483  ;  1  Phillipps,  Ev. 
221 ;  I  Starkie,  Ev.  123.  But,  in  an  exami- 
nation in  chief,  questions  may  be  put  to  lead 
the  mind  of  the  witness  to  the  subject  of  in- 
quiry ;  and  they  are  allowed  when  it  appears 
the  witness  wishes  to  conceal  the  truth  or  to 
favor  the  opposite  party,  or  where,  from  the 
nature  of  the  case,  the  mind  of  the  witness 
cannot  be  directed  to  the  subject  of  inquiry 
without  a  particular  specification  of  such  sub- 
ject.   1  Campb.  43  ;  1  Stark.  100. 

In  cross-examinations,  the  examiner  has 

fenerally  the  right  to  put  leading  questions. 
Starkie,  Ev.  132;  3  Chitty,  Pract.  892; 
Roscoe,  Civ.  Ev.  94;  3  Bouvier,  Inst.  n.  3203, 
3204. 

LEAGUE.  A  measure  of  length,  which 
consists  of  three  geographical  miles.  The 
jurisdiction  of  the  United  States  extends  into 
the  sea  a  marine  league.  See  Acts  of  Con- 
gress of  June  5,  1794,  1  Story,  U.  S.  Laws, 
352;  and  April  20, 1818,  3  Story,  U.  S.  Laws, 
1G94 ;  1  Wait,  State  Papers,  195.  See  Can- 
non Shot. 

VuL.  II.— 2 


In  Criminal  Law.  A  conspiracy  to  do  an 
unlawful  act.    The  term  is  but  little  used. 

In  Contracts.  An  agreement  between 
states.  Leagues  between  states  are  of  seve- 
ral kinds :  First,  leagues  oftonsive  and  de- 
fensive, by  which  two  or  more  nations  agree 
not  only  to  defend  each  other,  but  to  carry 
on  war  against  their  common  enemies.  Se- 
cond, defensive,  but  not  offensive,  obliging 
each  to  defend  the  other  against  any  foreign 
invasion.  Third,  leagues  of  simple  amity, 
by  which  one  contracts  not  to  invade,  injure, 
or  offend  the  other:  this  usually  includes  the 
liberty  of  mutual  commerce  and  trade,  and 
the  safeguard  of  merchants  and  traders  in 
each  other's  domain.  Bacon,  Abr.  Preroga- 
tive (D  4).  See  Confederacy;  Conspiracy; 
Peace  ;  Truce  ;  War. 

LEAKAGE.  The  waste  which  has  taken 
place  in  liquids,  by  their  escaping  out  of  the 
casks  or  vessels  in  which  they  were  kept. 

By  the  act  of  March  2, 1799,  s.  59,  1  Story, 
U.  S.  Laws,  625,  it  is  provided  that  there  be 
an  allowance  of  two  per  cent,  for  leakage  on 
the  quantity  which  shall  appear  by  the  gauge 
to  be  contained  in  any  cask  of  liquors  subject 
to  duty  by  the  gallon,  and  ten  per  cent,  on  all 
beer,  ale,  and  porter  in  bottles,  and  five  per 
cent,  on  all  other  liquors  in  bottles,  to  be  de- 
ducted from  the  invoice  quantity,  in  lieu  of 
breakage ;  or  it  shall  be  lawful  to  compute 
the  duties  on  the  actual  quantity,  to  be  ascer- 
tained by  tale,,  at  the  option  of  the  importer, 
to  be  made  at  the  time  of  entry. 

LEAL.  Loyal;  that  which  belongs  to 
the  law. 

LEAF  YEAR.    See  Bissextile. 

LEASE.  A  species  of  contract  for  the 
possession  and  profits  of  lands  and  tene- 
ments either  for  life  or  for  a  certain  terra 
of  years,  or  during-  the  pleasure  of  the  par- 
ties. 

2.  One  of  its  essential  properties  is,  that  it?  du- 
ration must  be  for  a  shorter  period  than  the  dura- 
tion of  the  interest  of  the  lessor  in  the  land ;  for 
if  he  disposes  of  his  entire  interest  it  becomes  an 
assignments  and  is  not  a  lease.  In;  other  words, 
the  granting  of  a  lease  always  supposes  that  the 
grantor  reserves  to  himself  a  reversion  in  the  leased 
premises. 

And  a  distinction  is  to  be  noted  between  a  lease 
and  a  mere  agreement  for  a  lease.  The  whole 
question,  however,  resolves  itself  into  one  of  con- 
struction, and  an  instrument  is  to  be  considered 
either  a  lease  or  an  agreement  for  a  lease,  accord- 
ing to  what  appears  to  be  the  intention  of  the  par- 
ties ;  though,  generally,  if  there  are  apt  words  of 
demise  followed  by  possession,  the  instrument  will 
be  held  a  lease,  2  Johns.  N.  Y.  47  ;  5  id.  74 ;  9  N.  Y. 
44;  5  Barnew.  k  Ad.  1042;  3  Carr.  &  P.  441:  4 
Mees.  &  W.  Exch.  719;  8  Bingh.  178;  1  Q.  B.  517; 
otherwise,  if  a  fuller  lease  is  to  be  prepared  and 
executed  before  the  demise  is  to  take  effect  and 
possession  to  be  given.  21  Vt.  172 ;  24  Wend.  N. 
Y.  2ai;  3  Stor.  C.  C.  325;  4  Conn.  238;  9  Ad.  & 
E.  644;  1  Pen.  <fc  D.  444. 

S.  The  party  who  leases  is  called  the  lessor,  ho 
to  whom  the  lease  is  made  the  lessee,  and  the  com- 
pensation or  consideration  of  the  lease  is  the  rent. 
The  words  lease  and  demise  are  frequently  used  to 
signify  the  estate  or  interest  conveyed;  but  tbey 
properly  apply  to  the  instrument  of  conveyance. 


LEASE 


18 


LEASE 


When  a  lessee  parts  with  the  estate  granted  to 
him,  reserving  any  portion  thereof,  however  small, 
he  makes  an  underleane.  Taylor,  Landl.  &  Ten.  ^ 
14;  15  Wend.  N.  Y.  667;  2  Ohio,  221;  8  Pick'. 
Mass.  339;  1  W.  Blackst.  482;  13  Mees.  &  W. 
Exch.  209. 

The  estate  created  by  a  lease,  when  for  years,  is 
called  a  term  (terminuf),  because  its  duration  is  li- 
mited and  determined, — its  commencement  as  well 
as  its  termination  being  ascertained  by  an  express 
agreement  of  the  parties.  And  this  phrase  signifies 
not  only  the  limitation  of  time  or  period  granted 
for  the  occupation  of  the  premises,  but  includes 
also  the  estate  or  interest  in  the  land  that  pass 
during  such  period.  A  term,  however,  is  perfected 
only  by  the  entry  of  the  lessee ;  for  previous  to  this 
the  estate  remains  in  the  lessor,  the  lessee  having 
a  mere  right  to  enter,  which  right  is  called  an  inter 
efise  termini.  1  Washburn,  Real  Prop.  292-297;  5 
Barnew.  &  C.  Ill;  5  Coke,  23  b;  Croke  Jac.  60; 
1  Barnew.  &  Aid.  606 ;  1  Bred.  &  B.  238. 

4.  Any  thing  corporeal  or  incorporeal  ly- 
ing in  livery  or  in  grant  may  be  the  subject- 
matter  of  a  lease;  and  therefore  not  only 
lands  and  houses,  but  commons,  ways,  fish- 
eries, franchises,  estovers,  annuities,  rent 
charges,  and  all  other  incorporeal  heredita- 
ments, are  included  in  the  common-law  rule. 
Sheppard,  Touchst.  268;  23  Penn.  St.  106;  3 
N.  Y.  151 ;  1  Root,  Conn.  318.  See  1  Wash- 
burn, Real  Prop.  310.  Goods,  chattels,  or  live 
stock  may  also  be  demised ;  and,  although 
rent  cannot  technically  be  said  to  issue  out 
of  these,  the  contract  for  its  payment  is  good, 
and  an  action  for  rent  in  arrear  may  be  main- 
tained upon  such  leases.  Coke,  Litt.  57  a;  3 
Hen.  &  M.  Va.  470  ;  31  Penn.  St.  20. 

5.  Leases  are  made  either  by  parol  or  by 
deed.  The  former  mode  embraces  all  cases 
where  the  parties  agree  either  orally  or  by  a 
writing  not  under  seal.  The  technical  words 
generally  made  use  of  in  the  written  instru- 
ment are,  "■demise,  grant,  and  to  farm,  let;'* 
but  no  particular  form  of  expression  is  re- 
quired in  any  case  to  create  an  immediate 
demise.  8  Bingh.  182 ;  9  Ad.  &  E.  650 ;  5 
Term,  168;  2  Wend.  N.Y.  438;  1  Den.  N.  Y. 
602;  8  Penn.  St.  272;  12  Me.  135;  Williams, 
Real  Prop.  327.  Any  permissive  holding  is, 
in  fact,  sufficient  for  the  purpose,  and  it  may 
be  contained  in  any  written  memorandum  by 
which  it  appears  to  have  been  the  intention 
of  one  of  the  parties  voluntarily  to  dispossess 
himself  of  the  premises  for  any  given  period, 
and  of  the  other  to  assume  the  possession  for 
the  same  period.  Taylor,  Landl.  &  Ten.  §  26 ; 
1  Washburn,  Real  Prop.  300.  The  English 
statute  of  frauds,  of  29  Charles  II.,  first  re- 
quired all  leases  exceeding  three  years  to  be 
in  writing;  and  this  statute  has  been  gene- 
rally adopted  in  the  United  States.  But  New 
York,  Connecticut,  Michigan,  Indiana,  and 
Illinois  have  reduced  the  period  of  an  oral 
lease  to  one  year.  1  Washburn,  Real  Prop. 
299,  391 ;  5  A<l.  &  E.  856  ;  Browne,  Stat,  of 
Frauds,  501-532. 

6.  A  written  agreement  is  generally  suffi- 
cient to  create  a  term  of  years,  3  Greene,  N. 
J.  116;  21  Wend.  N.  Y.  635;  but  at  common 
law  every  conveyance  of  a  freehold  interest 
was  required  to  be  by  deed.    This  rule  is  in 


force  in  New  York  and  South  Carolina,  and, 
consequently,  applies  to  leases  for  life  in  those 
states.  Virginia  and  Kentucky  require  all 
estates  exceeding  a  term  of  five  years  to  be 
by  deed;  while  Vermont  and  Rhode  Island 
apply  the  rule  to  a  term  that  exceeds  one 
year.  In  Louisiana,  it  must,  in  addition,  be 
registered  in  the  office  of  a  notary.  In  Eng- 
land, by  a  recent  statute,  all  leases  that  are 
required  to  be  in  writing  must  also  be  under 
seal.  4  Kent,  Comm.  443;  Taylor,  Landl.  & 
Ten.  1 34.  See  Browne,  Stat,  of  Frauds,  Appx. 
503-531. 

7.  All  persons  seised  of  lands  or  tenements 
may  grant  leases  of  them,  unless  they  happen 
to  be  under  some  legal  disability:  as,  of  un- 
sound mind,  immature  age,  or  the  like,  2 
Exch.  487;  4  id.  17;  9  id.  '309;  8  Carr.  &  P. 
679  ;  10  Pet.  65  ;  5  Pick.  Mass.  431 ;  11  id. 
304 ;  17  Wend.  N.  Y.  133  ;  4  Dev.  &  B.  No. 
C.  289;  1  N.  H.  75;  and  in  case  of  many 
of  these  disabilities  the  leases  are  voidable 
merely,  and  not  void.  See,  as  to  infants,  10 
Pet.  65 ;  5  Ohio,  251 ;  15  id.  192 ;  11  Humphr. 
Tenn.  468  ;  11  Johns.  N.  Y.  539;  14  id.  124 
intoxicated  persons,  13  Mees.  &  W.  Exch.  623 
married  women.  Smith,  Landl.  &  Ten.  48 
1  Piatt,  Leases,  48  ;  19  N.  H.  483.  See  Par- 
ties; Contracts.  But  it  is  essential  to  the 
validity  of  a  lease  that  the  lessor  has,  at  the 
time  he  undertakes  to  make  the  grant,  pos- 
session of  the  premises ;  otherwise,  whatever 
he  does  will  amount  to  nothing  more  than 
the  assignment  of  a  chose  in  action.  Croke 
Car.  109  ;  Sheppard,  Touchst.  269.  For  this 
reason,  it  was  held  in  Pennsylvania  that  a 
purchaser  at  a  sheriff's  sale  who  had  not  re- 
ceived his  deed  could  not  make  a  valid  lease. 
1  Penn.  St.  402. 

8.  But,  unless  there  is  an  adverse  Jioldinrf, 
possession  will  be  deemed  to  follow  the  own- 
ership. And  although  a  lease  may  not  be 
sufficient  to  authorize  a  lessee  to  demand 
possession  for  the  want  of  a  possessory  title 
in  his  lessor,  it  will  still  operate  by  way  of 
estoppel,  and  enure  to  his  benefit  if  the  lessor 
afterwards  comes  into  possession  of  the  land 
before  the  expiration  of  the  lease.  Bacon, 
Abr.  Leases  (14);  Croke  Eliz.  109 :  28  Barb. 
N.Y.  240;  2  Hill,  N.Y.  554;  16  Johns.  N.Y. 
110,  201 ;  5  Ark.  693 ;  7  Mann.  &  G.  701. 

9.  The  power  to  lease  will,  of  course,  de- 
pend upon  the  extent  of  the  lessor's  estate  in 
the  premises ;  and  if  he  has  but  an  estate  for 
life,  his  lease  can  only  be  coextensive  there- 
with ;  when  for  a  term  of  years,  its  com- 
mencement as  well  as  its  termination  must 
be  ascertained,  for  certainty  in  these  respects 
is  of  the  essence  of  a  term  of  years.  But 
although  this  term  may  not  at  first  appear  to 
be  certain,  it  may  be  rendered  so  by  refer- 
ence to  some  fact  or  event :  as,  if  a  lease  be 
made  to  a  man  for  so  many  years  as  he  has 
in  the  manor  of  Dale,  and  he  happens  to  have 
a  term  of  two  years  in  that  manor,  the  lease 
will  be  good  for  that  period.  Coke,  Litt.  45 
h;  3  Term,  463  ;  4  East,  29  ;  1  Mees.  &  W. 
Exch.  533. 

10.  Lord  Coke  states  that,  originally,  cs- 


LEASE 


10 


LEASE  AND  RELEASE 


press  terms  could  not  endure  beyond  an  or- 
dinary generation  of  forty  years,  lest  men 
might  be  disinherited  ;  but  the  doctrine  had 
become  antiquated  even  in  his  day,  and  at 
the  present  time  there  is  no  limitation  to  a 
term  of  years  except  in  the  state  of  New 
York,  where  land  cannot  be  leased  for  agri- 
cultural purposes  for  a  longer  period  than 
twelve  years.  See  Coke,  Litt.  45  b,  46  a;  9 
Mod.  101 ;  13  Ohio,  334  ;  1  Piatt,  Leas.  3  ;  1 
Washburn,  Real  Prop.  310. 

In  all  cases  of  uncertain  duration,  or  if  no 
time  has  been  agreed  upon  for  the  continua- 
tion of  the  term,  or  if  after  the  expiration  of 
a  term  the  tenant  continues  to  hold  over, 
without  any  effort  on  the  part  of  the  landlord 
to  remove  him,  the  tenancy  is  at  the  will  of 
either  party.  And  it  remains  at  will  until 
after  the  payment  and  receipt  of  rent  on  ac- 
count of  a  new  tenancy,  or  until  the  parties 
concur  in  some  other  act  which  recognizes 
the  existence  of  a  tenancy,  from  which  event 
it  becomes  a  tenancy  from  year  to  year. 
After  this,  neither  party  has  a  right  to  ter- 
minate it  before  the  expiration  of  the  cur- 
rent year  upon  which  they  have  entered,  nor 
then  without  having  first  given  reasonable 
notice  to  the  other  party  of  his  intention  to 
do  so.  The  length  of  this  notice  is  regulated 
by  the  statutes  of  the  different  states.  11 
AVend.  N.  Y.  616;  13  Johns.  N.  Y.  109;  8 
Term,  3;  4  Ired.  No.  C.  294;  3  Zabr.  N.J. 
111. 

11.  The  formal  parts  of  a  lease  by  deed 
are :  Ji7'st,  the  date,  which  will  fix  the  time 
for  its  commencement,  unless  some  other  pe- 
riod is  specified  in  the  instrument  itself  for 
that  purpose ;  but  if  there  is  no  date,  or  an 
impossible  one,  the  time  will  be  considered 
as  having  commenced  from  the  delivery  of 
the  deed.  2  Johns.  N.  Y.  231  ;  15  Wend.  N. 
Y.  656 ;  4  Barnew.  &  C.  272.  Second,  the 
names  of  the  parties,  with  respect  to  which 
the  law  "knows  but  one  Christian  name  ;  and 
therefore  the  middle  letter  of  the  name  of 
either  party  is  immaterial,  and  a  person  may 
always  show  he  is  as  well  known  by  one 
name  as  another.  14  Pet.  322.  Third,  some 
consideration  must  appear,  although  it  need 
not  be  what  is  technically  called  rent,  or  a 
periodical  render  of  compensation  for  the  use 
of  the  premises ;  but  it  may  be  a  sum  in 
gross,  or  the  natural  affection  which  one 
party  has  for  the  other.  It  may  also  consist 
in  grain,  animals,  or  the  personal  services 
of  the  lessee.  3  Hill,  N.  Y.  345  ;  1  Speers, 
So.  C.  408.  Fourth,  the  description  of  the 
premises  need  not  specify  all  the  particulars 
of  the  subject-matter  of  the  demise,  for  the 
accessories  will  follow  the  principal  thing 
named:  thus,  the  garden  is  parcel  of  a  dicell- 
ing-house,  and  the  general  description  of  a 
farm  includes  all  the  houses  and  lands  ap- 
pertaining to  the  farm.  9  Conn.  374;  4 
Rawle,  Penn.  330;  9  Cow.  N.  Y.  747.  But 
whether  certain  premises  are  parcel  of  the 
demise  or  not  is  alwavs  matter  of  evidence. 
14  Barb.  N.  Y.  434;  3  Barnew.  &  C.  870. 
Fifth,  the  rights  and  liabilities  of  the  re- 


spective parties  are  regulated  by  law  in  the 
absence  of  any  particular  agreement  in  re- 
spect thereto ;  but  express  covenants  are 
usually  inserted  in  a  lease,  for  the  purpose 
of  limiting  or  otherwise  defining  their  rights 
and  duties  in  relation  to  rej  airs,  taxes,  in- 
surance renewals,  residence  on  the  premises, 
modes  of  cultivation,  fixtures,  and  the  like. 

12.  In  every  well-drawn  lease,  provision 
is  made  for  a  forfeiture  of  the  term  in  case 
the  tenant  refuses  to  pay  rent,  commits  waste, 
or  is  guilty  of  a  breach  of  the  covenant  to 
repair,  insure,  reside  upon  the  premises,  or 
the  like.  This  clause  enables  the  lessor  or 
his  assigns  to  re-enter  in  any  such  event  upon 
the  demised  premises  and  eject  the  tenant, 
leaving  both  parties  in  the  same  condition  as 
if  the  lease  were  a  nullity ;  but  in  the  ab- 
sence of  a  proviso  for  re-entry  the  lessor  would 
possess  no  such  power,  the  mere  breach  of  a 
covenant  enabling  him  to  sue  for  damap.cs 
only.  3  Wils.  127  ;  2  Cow.  N.  Y.  591 ;  2  Ov. 
Tenn.  233.  The  forfeiture  will  generally  be 
enforced  by  the  courts,  except  where  the  land- 
lord's damages  are  a  mere  matter  of  compu- 
tation and  can  be  readily  compensated  l)y 
money.  7  Johns.  N.  Y.  235  ;  4  Munf.  Ya. 
332;  2  Price,  Exch.  200.  But  in  case  of  a 
forfeiture  for  the  non-payment  of  rent,  the 
proviso  is  allowed  to  operate  simply  as  a  se- 
curity for  rent,  and  the  tenant  will  be  re- 
lieved from  its  effects  at  any  time  by  pay- 
ing the  landlord  or  bringing  into  court  the 
amount  of  all  arrears  of  rent,  with  interest 
and  costs. 

13.  A  lease  may  also  be  terminated  before 
the  prescribed  period  if  the  premises  are  re- 
quired to  be  taken  for  public  uses  or  improve- 
ments, or  the  subject-matter  of  demise  wholly 
perishes  or  is  turned  into  a  house  of  ill  fame. 
24  Wend.  N.  Y.  454  ;  29  Barb.  N.  Y.  116  ;  5 
Ohio,  303.  The  same  result  will  follow  when 
the  tenant  purchases  the  fee,  or  the  fee  de- 
scends to  him  as  heir  at  law ;  for  in  either 
case  the  lease  is  merged  in  the  inheritance: 
since  there  would  be  a  manifest  inconsistency 
in  allowing  the  same  person  to  hold  two  dis- 
tinct estates  immediately  expectant  on  each 
other,  while  one  of  them  includes  the  time 
of  both,  thus  uniting  the  two  opposite  cha- 
racters of  landlord  and  tenant.  10  Johns. 
N.  Y.  482 ;  2  Carr.  &  P.  347 ;  Taylor,  Landl. 
&  Ten.  §  502.    See  Landlord  and  Texant. 

LEASE  AND  RELEASE.  A  species 
of  conveyance  much  used  in  England,  con- 
sisting theoretically  of  two  instruments,  but 
which  are  practically  united  in  the  same  in- 
strument. 

It  was  invented  by  Sergeant  Moore,  soon 
after  the  enactment  of  the  statute  of  uses. 
It  is  thus  contrived:  a  lease,  or  rather  bar- 
gain and  sale  upon  some  pecuniary  consider- 
ation for  one  year,  is  made  by  the  tenant  of 
the  freehold  to  the  lessee  or  bargainee.  This, 
without  any  enrolment,  makes  the  bargainor 
stand  seised  to  the  use  of  the  bargainee,  and 
vests  in  the  bargainee  the  use  of  the  term  for 
one  year,  and  then  the  statute  immediately 
annexes  the  possession.    Being  thus  in  pos- 


LEASEHOLD 


20 


LEGACY 


session,  he  is  capable  of  receiving  a  release 
of  the  freehold  and  reversion,  which  must  be 
made  to  the  tenant  in  possession,  and  ac- 
cordingly the  next  day  a  release  is  granted 
to  him. 

The  lease  and  release,  when  used  as  a  con- 
veyance of  the  fee,  have  the  joint  operation 
of  a  single  conveyance.  2  Blackstone,  Comm. 
339  ;  4  Kent,  Comm.  482  ;  Coke,  Litt.  207 ; 
Cruise,  Dig.  tit.  32,  c.  11. 

LEASEHOLD.  The  estate  held  by  vir- 
tue of  a  lease. 

LEASING-MAKING.  In  Scotch 
Law.  Verbal  sedition,  viz. :  slanderous  and 
untrue  speeches  to  the  disdain,  reproach,  and 
contempt  of  his  majesty,  his  counail  and  pro- 
ceedings, etc.  Bell,  Diet. ;  Erskine,  Inst.  4. 
4.  29. 

LEAVE  OF  COURT.  Permission 
granted  by  the  court  to  do  something  which, 
without  such  permission,  would  not  be  allow- 
able. 

2.  The  statute  of  4  Ann.  c.  16,  a.  4,  pro- 
vides that  it  shall  be  lawful  for  any  defend- 
ant or  tenant  in  any  action  or  suit,  or  for  any 
plaintiff  in  replevin,  in  any  court  of  record, 
with  leave  of  the  court,  to  plead  as  many 
several  matters  thereto  as  he  shall  think  ne- 
cessary for  his  defence.  The  principles  of 
this  statute  have  been  adopted  by  most  of  the 
states  of  the  Union. 

3.  When  the  defendant,  in  pursuance  of 
this  statute,  pleads  more  than  one  plea  in 
bar  to  one  and  the  same  demand  or  thing, 
all  of  the  pleas  except  the  first  should  pur- 
port to  be  pleaded  with  leave  of  the  court. 
feut  the  omission  is  not  error  nor  cause  of  de- 
murrer. Lawes,  Plead.  132;  2  Chitty,  Plead. 
421:  Story,  Plead.  72,  76;  Gould,  Plead,  c. 
8,  ^  21 ;  Andr.  109  ;  3  N.  H.  523. 

4.  Asking  leave  of  court  to  do  any  act  is 
an  implied  admission  of  jurisdiction  of  the 
court,  and  in  those  cases  in  which  the  objec- 
tion to  the  jurisdiction  must  be  taken,  if  at 
all,  by  plea  to  the  jurisdiction,  and  it  can  be 
taken  in  no  other  way,  the  court,  by  such 
asking  leave,  becomes  fully  vested  with  the 
jurisdiction.  Bacon,  Abr.  Abatement  (A)  ; 
Bacon,  Abr.  Pleas,  etc.  (E  2) ;  Lawes,  Plead. 
91 ;  6  Pick.  Mass.  391.  But  such  admission 
cannot  aid  the  jurisdiction  except  in  such 
cases. 

LECTOR  DE  LETRA  ANTIQUA.  In 
Spanish  Law.  The  person  duly  authorized 
by  tlie  government  to  read  and  decipher  an- 
cient documents  and  titles,  in  order  to  entitle 
them  to  legal  effect  in  courts  of  justice. 

The  importance  of  the  functions  of  this 
officer  caused  the  queen  of  Spain  to  issue  an 
ordinance  on  the  2<1  of  July,  1838,  ordering 
that  no  person  should  be  {)ermitted  to  exer- 
cise it  unless  he  justified,  j^7\v^,  that  he  was 
a  man  of  good  character;  second,  that  he  was 
twenty-five  years  of  age,  and  submitted  to  a 
strict  examination,  justifying  that  he  was  ac- 
quainted with  the  Latin  language,  and  espe- 
cially with  the  idioms  of  it  used  in  writings 


and  documents  of  the  middle  ages,  also  with 
I  the  Romance  or  ancient  Castilian,  the  Li- 
I  mousin,  used  in  the  ancient  provinces  of  Ar- 
ragon,  paleology,  Spanish  history  and  chrono- 
logy ;  and,  third,  that  he  could  decipher  the 
I  ancient  manuscripts  preserved  in  the  archives 
j  of  Spain,  the  ancient  modes  of  writing,  and 
i  the  changes  introduced  in  it  by  time.  This 
examination  to  be  conducted  under  the  super- 
intendence of  the  Chefe  Politico,  and  the  pro- 
cess-verbal forwarded  to  the  queen,  together 
with  the  observations  of  the  board  of  exa- 
miners.   Escriche,  Diet. 

LEDGER.    In  Commercial  Law.  A 

book  in  which  are  inscribed  the  names  of  all 
persons  dealing  with  the  person  who  keeps 
it,  and  in  which  there  is  a  separate  account, 
composed  generally  of  one  or  more  pages  for 
each.  There  are  two  parallel  columns,  oh 
one  of  which  the  party  named  is  the  debtor, 
and  on  the  other  the  creditor,  and  presents  a 
ready  means  of  ascertaining  the  state  of  the 
account.  As  this  book  is  a  transcript  from 
the  day-book  or  journal,  it  is  not  evidence 
per  se. 

LEDGER-BOOK.  In  Ecclesiastical 
Law,  Tiie  name  of  a  book  kept  in  the  pre- 
rogative courts  in  England.  It  is  considered 
as  a  roll  of  the  court,  but,  it  seemSj,  it  cannot 
be  read  in  evidence.    Bacon,  Abr. 

LEGACY.  A  gift  by  last  will.  The 
term  is  more  commonly  applied  to  money  or 
personal  property,  although  sometimes  used 
with  reference  to  a  charge  upon  real  estate. 
2  Williams,  Exec.  947 ;  5  Term,  716;  1  Burr. 
268;  7  Ves.  Ch.  391,  522. 

An  absolute  legacy  is  one  given  without 
condition,  to  vest  immediately.  1  Vern.  Ch. 
254 ;  2  id.  181 ;  5  Ves.  Ch.  461 ;  19  id.  86 ; 
Comyns,  Dig.  Chancery  (I  4). 

An  additional  legacy  is  one  given  to  a  lega- 
tee to  whom  a  legacy  has  already  been  given. 
It  may  be  either  by  an  increase  in  a  codicil 
of  a  prior  legacy  given  in  the  will,  or  by  an- 
other legacy  added  to  that  alreadv  given  by 
the  will.  6  Mod.  31 ;  2  Ves.  Ch.  449 ;  3  Mer. 
Ch.  154. 

An  alternative  legacy  is  one  by  which  the 
testator  gives  one  of  two  or  more  things  with- 
out designating  which. 

A  conditional  legacy  is  a  bequest  whose 
existence  depends  upon  the  happening  or  not 
happening  of  some  uncertain  event,  by  which 
it  IS  either  to  take  place  or  be  defeated.  1 
Koper,  Leg.  3d  ed.  645. 

A  demonstrative  legacy  is  a  bequest  of  a 
certain  sum  of  money  with  reference  to  a  par- 
ticular fund  for  payment.  Williams,  Exec. 
995. 

A  general  legacy  is  one  so  given  as  not  to 
amount  to  a  bequest  of  a  particular  thing  or 
money  of  the  testator,  distinguished  from  all 
others  of  the  same  kind.  1  Roper,  Leg.  3d 
ed.  170. 

An  indefinite  legacy  is  a  bequest  of  things 
which  are  not  enumerated  or  ascertained  as 
to  numbers  or  quantities:  as,  a  bequest  by  a 
testator  of  all  his  goods,  all  his  stocks  in  the 


LEGACY 


21 


LEGACY 


funds.  Lowndes,  Leg.  84 ;  Swinburne,  Wills, 
485  ;  Ambl.  Ch.  641 ;  1  P.  Will.  Ch.  697. 

A  lapsed  legacy  is  one  which,  in  conse- 
quence of  the  death  of  the  legatee  before  the 
testator  or  before  the  period  for  vesting,  has 
never  vested. 

A  legacy  for  life  is  one  in  which  the  lega- 
tee is  to  enjoy  the  use  of  the  legacy  for  life. 

A  modal  legacy  is  a  bequest  accompanied 
with  directions  as  to  the  mode  in  which  it 
should  be  applied  for  the  legatee's  benefit: 
for  example,  a  legacy  to  Titius  to  put  him 
an  apprentice.  2  Vern.  Ch.  431 ;  Lowndes, 
Leg.  151. 

A  pecuniary  legacy  is  one  of  money.  Pe- 
cuniary legacies  are  most  usually  general 
legacies,  but  there  may  be  a  specific  pecu- 
niary legacy :  for  example,  of  the  money  in 
a  certain  bag.    1  R  )per,  Leg.  150,  n. 

A  residuary  legacy  is  a  bequest  of  all  the 
testator's  personal  estate  not  otherwise  effect- 
ually disposed  of  by  his  will.  Lowndes,  Leg. 
10;  Bacon,  Abr.  Legacies  (I). 

A  specific  legacy  is  a  bequest  of  a  specified 
part  of  the  testator's  personal  estate,  distin- 
guished from  all  others  of  the  same  kind.  3 
Boav.  Rolls,  349. 

iJ.  Most  persons  are  capable  of  becoming 
legatees,  unless  prohibited  by  statute  or  alien 
enemies.  Legacies  to  the  subscribing  wit- 
nesses to  a  will  are  by  statute  often  declared 
void.  See  2  Williams  Exec.  4th  Am.  ed.  906 
et  seq.;  19  Ves.  Ch.  208;  10  Sim.  Ch.  487;  3 
Russ.  Ch.  437  ;  1  Sharswood,  Blackst.  Comm. 
442.  Bequests  to  superstitious  uses  are  pro- 
hibited by  many  of  the  English  statutes.  No 
doubt  a  bequest  to  further  and  carry  into 
effect  any  illegal  purp  )se,  which  the  law  re- 
gards as  subversive  of  sound  policy  or  good 
morals,  would  be  held  void,  and  the  executor 
not  justified  in  paying  it.  2  Boav.  Rolls,  151 ; 
2  Mylne  &  K.  Ch.  697 ;  5  Mvlne  &  C.  Ch.  11 ; 
1  Salk.  162  ;  2  Vern.  Ch.  266.  But  bequests 
to  charitable  uses  are  favored  both  in  Eng- 
land and  the  United  States.  The  cases  are 
extensively  collated  in  2  Williams,  Exec.  951, 
n.  1 ;  4  Kent,  Comm.  508 ;  2  H  )w.  U.  S.  R. 
127;  4  Wheat.  1;  7  Johns.  Ch.  N.  Y.  292; 
20  Ohio,  483;  10  Penn.  St.  23 ;  11  Vt.296;  5 
Cush.  Mass.  336;  12  Conn.  113;  Saxt.  Ch. 
N.J.  577;  3  Leigh,.Va.  450  ;  2  Ired.  Eq.  No. 
C.  9,  210;  5  Humphr.  Tenn.  170;  11  Beav. 
Rolls,  481 ;  14  id.  357 ;  10  Hare,  Ch.  446.  It 
is  questionable  whether  the  English  cases  in 
regard  to  bequests  to  secure  the  offices  of  the 
Roman  Church,  being  void,  would  or  should 
be  followed  in  this  country.  In  those  states 
where  the  principles  of  the  statute  of  Eliza- 
beth in  regard  to  charitable  uses  are  recog- 
nized in  the  equity  courts,  the  decisions  have 
been  liberal  in  upholding  bequests  for  the 
most  diverse  objects  and  expressed  in  the 
most  general  terms.  17  Serg.  &  R.  Penn. 
88;  2  Ired.  Eq.  No.  C.  210;  1  Gilm.  Va.  336; 
7  Vt.  241;  2  Sandf.  Ch.  N.  Y.  46;  7  B.  Monr. 
Ky.  617,  618-622  ;  2  How.  127  ;  9  Penn.  St. 
433  ;  7  Johns.  Ch.  N.  Y.  292. 

3.  Construction  of  legacies.  First,  the  tech- 
nical import  of  words  is  not  to  prevail  over 


the  obvious  intent  of  the  testator.  3  Term, 
86;  11  East,  246;  16  irf.  221 ;  6  Ad.  &  E. 
167  ;  7  Mees.  &  W.  Exch.  1,  481  ;  1  Mylne 
&  K.  571 ;  2  id.  759 ;  2  Russ.  &  M.  Ch.  546 ; 
2  Mass.  56 ;  11  Pick.  Mass.  257,  375  ;  13  id. 
41,  44;  2  Mete.  Mass.  191,  194 ;  1  Root,  Conn. 
332;  1  Nott  &  M'C.  So.  C.  69  ;  12  Johns.  N. 
Y.  389.  Second,  where  technical  words  are 
used  by  the  testator,  or  words  of  art,  they 
are  to  have  their  technical  import,  unless  it 
is  apparent  they  were  not  intended  to  be 
used  in  that  sense.  6  Term,  352 ;  3  Brown, 
Ch.  68;  4  Russ.  Ch.  386,  387;  2  Sim.  Ch. 
274;  1  Younge&J.  Ch.512;  4Ves.  Ch.329; 
8  id.  306;  Dougl.  341;  5  Mass.  500;  S  id. 
3;  2  M'Cord,  So.  C.  66;  5  Den.  N.  Y.  646. 
Third,  the  intent  of  the  testator  is  to  be  de- 
termined from  the  whole  will.  1  Swanst.  Ch. 
28;  1  Coll.  Ch.  681 ;  8  Term,  122;  3  Pet.  377; 
4  Rand.  Va.  213;  8  Blackf  Ind.  387.  Fourth, 
every  word  shall  have  effect,  if  it  can  be  done 
without  defeating  the  general  purpose  of  the 
will,  which  is  to  be  carried  into  effect  in  every 
reasonable  mode.  6  Ves.  102 ;  2  Barnew.  & 
Aid.  448  ;  2  Blackstone,  Comm.  381 ;  3  Pick. 
Mass.  360;  7  Ired.  Eq.  No.  C.267 ;  10  Humphr. 
Tenn.  368  ;  2  Md.  82  ;  6  Pet.  68  ;  1  Jarman, 
Wills,  404-412.  Fifth,  a  will  of  personalty 
made  abroad,  the  lex  domicilii  must  prevail, 
unless  it  appear  the  testator  had  a  different 
intent.  Story,  Confl.  of  Laws,  479  a,  479 
m,  490,  491. 

4.  Whether  cumulated  or  repeated.  AVhere 
there  is  internal  evidence  of  the  intention  of 
the  testator,  that  intention  is  to  be  carried 
out,  2  Beav.  Rc  lls,  215  ;  7  id.  107  ;  3  Hare, 
Ch.  620 ;  2  Diur.  &  Warr.  Ch.  133  ;  3  Ves. 
Ch.  462 ;  5  id.  369  ;  17  id.  462 ;  2  Sim.  &  S. 
Ch.  145;  4  Hare,  Ch.  219  ;  and  evidence  will 
be  received  in  support  of  the  apparent  inten- 
tion, but  not  against  it.  2  Brown,  Ch.  528  ; 
4  Hare,  Ch.  216 ;  1  Drur.  &  Warr.  Ch.  94, 
113.  Where  there  is  no  such  internal  evi- 
dence, the  following  positions  of  law  appear 
established.  First,  if  the  same  specific  thing 
is  bequeathed  twice  to  the  same  legatee  in 
the  same  will,  or  in  the  will  and  again  in 
a  codicil,  in  that  case  he  can  claim  the  bene- 
fit of  only  one  legacy.  Toller,  Exec.  335  ;  2 
Hare,  Ch.  432.  Second,  where  two  legacies 
of  quantity  of  equal  amount  are  bequeathed 
to  the  same  legatee  in  one  and  the  same  in- 
strument, there  also  the  second  bequest  is 
considered  a  mere  repetition,  and  he  shall  bo 
entitled  to  one  legacv  only.  1  Brown,  Ch. 
30;  4  Ves.  Ch.  75;  3  Mylne  &  K.  Ch.  29;  10 
Johns.  N.  Y.  156.  See  4  Gill,  Md.  280 :  1 
Zabr.  N.  J.  573;  16  Penn.  St.  127;  5  De  Gex 
&  S.  Ch.  698 ;  16  Sim.  Ch.  423.  Third,  where 
two  legacies  of  quantity  of  unequal  amount 
are  given  to  the  same  person  in  the  same  in- 
strument, the  one  is  not  merged  in  the  ether, 
but  the  latter  shall  be  regarded  as  cumula- 
tive, and  the  legatee  entitled  to  both.  Finch, 
267  ;  2  Brown,  Ch.  225  ;  3  Hare,  Ch.  620. 
Fourth,  where  two  legacies  are  given  simpli' 
citer  to  the  same  legatee  by  different  instru- 
ments, in  that  case  also  the  latter  shall  be 
cumulative,  whether  its  amount  be  equal, 


LEGACY 


22 


LEGACY 


1  Cox,  Ch.  392;  17  Yes.  Ch.  34;  1  Coll.  Ch. 
495  ;  4  Hare,  Ch.  216,  or  unequal  to  the  for- 
mer. 1  Chanc.  Cas.  301;  1  P.Will.  Ch.423: 
5  Sim.  Ch.  431 ;  7  id.  29  ;  1  Mylne  &  K.  Ch.' 
589.  And  see  1  Cox,  Ch.  392 ;  1  Brown,  Ch. 
272 ;  2  Beav.  Rolls,  215  ;  2  Drur.  &  Warr. 
133  ;  1  Bligh,  N.  s.  491 ;  1  Phill.  Ch.  294.  ^ 

5.  Di'scripiioiiofleijatee. — Children.  This 
may  have  reference  to  the  time  of  the  testa- 
tor's death,  or  that  of  making  the  will.  The 
former  is  the  presumed  intention,  unless  from 
the  connection  or  circumstances  the  latter  is 
the  apparent  intent,  in  which  case  it  must 
prevail.    4  Brown,  Ch.  55  ;  Ambl.  Ch.  397  ; 

2  Cox,  Ch.  191,  192;  11  Sim.  Ch.  42;  2  Wil- 
liams, Exec.  4th  Am.  ed.  934. 

This  term  will  include  a  child  in  ventre  sa 
mire.  2  H.  Blackst.  399;  1  Sim.  &  S.  Ch. 
181;  2  Cox,  Ch.  425;  1  Meigs,  Tenn.  149. 
But  it  will  sometimes  have  a  more  restricted 
application,  and  thus  be  confined  to  children 
born  before  the  death  of  the  testator.  And 
it  will  make  no  difference  that  the  bequest 
is  to  children  begotten,  or  to  be  begotten,  or 
which  "may  be  born."  2  Mylne  &  K.  46 ; 
14  Beavan,  453 ;  1  Williams,  Exec.  982,  and 
note. 

Heirs  may  be  construed  children,  3  Rich, 
Eq.  So.  C.  543  ;  4  Pick.  Mass.  198  ;  2  Hayw. 
No.  C.  356 ;  and  children,  when  used  to  de- 
signate one's  heirs,  may  include  grandchil- 
dren. 12  B.  Monr.  Ky.  115,  121;  5  Barb. 
N.  Y.  190.  But  if  the  word  children  is  used, 
and  there  are  persons  to  answer  it,  then  grand- 
children cannot  be  comprehended  under  it. 
5  Ired.  Eq.  No.  C.  421.  See  4  Watts,  Penn. 
82;  3  Pert.  Ala.  452;  5  Harr.  &  J.  Md.  135. 
The  general  rule  is,  that  a  devise  to  a  man 
and  his  children,  he  having  children  living 
at  the  time  the  will  takes  effect,  creates  a 
joint  estate  in  the  father  and  children ;  but 
if  he  have  no  children,  he  takes  an  estate 
tail.  1  Turn.  &  R.  Ch.  310;  12  Clark  &  F. 
Hou.  L.  161.  And  a  similar  legacy  of  per- 
sonal estate  gives  the  father  a  life  estate,  if 
he  have  no  children  at  the  time  the  will  takes 
effect,  12  Sim.  Ch.  88 ;  but  if  there  are  chil- 
dren living,  they  take  jointly  with  the  father. 

5  Sim.  Ch.  458. 

6.  The  term  children  will  not  include  ille- 
gitimate children,  if  there  are  legitimate  to 
answer  the  term,  1  Younge,  Ch.  354  ;  2  Rusa. 

6  M.  Ch.  336;  see  1  Williams,  Exec.  992,  and 
note  (2) ;  otherwise,  it  may  or  may  not,  ac- 
cording to  circumstances.  See  5  Ilarr.  &  J. 
Md.  10;  2  Paige,  Ch.  N.  Y.  11 ;  I  Ves.  &  B. 
Ch.  Ir.  422 ;  1  Bail.  Eq.  So.  C.  25l ,  Ired. 
Eq.  No.  C.  130;  1  Roper,  Leg.  80.  A  bequest 
to  "my  beloved  wife,"  not  mentioning  her  by 
name,  applies  exclusively  to  the  wife  at  the 
date  of  the  will,  and  is  not  to  be  extended  to 
an  after-taken  wife.  2  P.  Will.  992;  1  Russ. 
&  M.  Ch.  629  ;  8  Hare,  Ch.  131.  One  not  law- 
fully married  may,  nevertheless,  take  a  legacy 
by  the  name  or  description  of  the  wife  of  the 
one  to  whom  she  is  reputed  to  be  married,  1 
Keen,  Ch.  685;  9  Sim.  Ch.  615;  but  not  if 
the  reputed  relation  is  the  motive  for  the  be- 
quest.   4  Ves.  Ch.  802;  4  Brown,  Ch.  90;  5 


Mylne  &  C.  Ch.  145.  But  see  1  Keen,  Reg. 
Cas.  685. 

Nephews  and  nieces  are  terms  which,  in 
the  description  of  a  legatee,  will  receive  their 
strict  import,  unless  there  is  something  in 
the  will  to  indicate  a  contrary  intention.  14 
Sim.  Ch.  214 ;  1  Jac.  Ch.  207  ;  4  Mylne  &  C. 
Ch.  60  ;  8  Beav.  Rolls,  247  ;  2  Yeates,  Penn. 
196 ;  3  Barb.  Ch.  N.  Y.  466 ;  3  Halst.  Ch. 
N.  J.  462.  See  10  Hare,  Ch.  63  ;  17  Beav. 
Rolls,  21. 

The  term  covsins  will  be  restricted  to  its 
primary  signification,  where  it  is  before  used 
in  the  same  will  in  that  sense.  9  Sim.  Ch. 
457.  See  2  Brown,  Ch.  125;  1  Sim.  &  S.  Ch. 
301 ;  3  De  Gex,  M.  &  G.  649 :  4  Mylne  &  C. 
Ch.  56;  9  Sim.  Ch.  356. 

Terms  which  give  an  estate  tail  in  lands 
will  be  construed  to  give  the  absolute  title  to 
personalty,  1  Madd.  Ch.  475 ;  19  Ves.  Ch. 
545  ;  but  slight  circumstances  will  often  in- 
duce a  different  construction.  2  Brown,  Ch. 
570 ;  5  De  Gex,  M.  &  G.  188. 

A  legacy  to  one  and  his  heirs,  although 
generally  conveying  a  fee-simple  in  real 
estate  and  the  entire  property  in  personalty, 
may,  by  the  manner  of  its  expression  and 
connection,  be  held  to  be  a  designation  of 
such  persons  as  are  the  legal  heirs  of  the 
person  named,  and  thus  they  take  as  pur- 
chasers by  name.    1  Jac.  &  W.  Ch.  388. 

•y.  Mistakes  in  the  name  or  description  of 
legatees  may  be  corrected  whenever  it  can 
be  clearly  shown  by  the  will  itself  what  was 
intended.  1  Phill.  Ch.  279,  288;  2  Younge  & 
C.  Ch.  72;  10  Hare,  Ch.  345  ;  12  Sim.  Ch.  521 ; 
8  Md.  496  ;  9  Eng.  L.  &  Eq.  269  ;  15  N.  H. 
317  ;  32  id.  268  ;  4  Johns.  Ch.  N.  Y.  607  ;  23 
Vt.  336;  7Ired.  Eq.  No.  C.  201. 

The  only  instance  in  which  parol  evidence 
is  admissible  to  show  the  intention  of  the  tes- 
tator as  to  a  legatee  imperfectly  described,  is 
that  of  a  strict  equivocation :  that  is,  where 
it  appears  from  extraneous  evidence  that  two 
or  more  persons  answer  the  description  in  the 
will.  8  Bingh.  244 ;  5  Mees.  &  W.  Exch.  363 ; 
2  Younge  &  'C.  Exch.  72;  12  Ad.  &  E.  451; 
AVigram,  Wills,  2d  ed.  78. 

8.  Interest  of  legatee.  Property  given  spe- 
cifically to  one  for  life,  and  remainder  over, 
must  be  enjoyed  specifically  during  the  life 
of  the  first  donee,  although  that  may  exhaust 
it.  4  My.  &  Cr.  299 ;  2  My.  &  Keen,  703. 
But  where  the  bequest  is  not  specific,  a? 
where  personal  property  is  limited  to  one  for 
life,  remainder  over,  it  is  presumed  that  the 
testator  intended  the  same  property  to  go  over, 
and  if  any  portion  of  it  be  perishable,  as  long 
annuities,  it  shall  be  sold  and  converted  into 
permanent  property,  for  the  benefit  of  all  con- 
cerned. 2  My.  &  Keen,  699,  701,  702;  7  Ves. 
137;  4My.  &Cr.  298. 

In  personal  property  there  cannot  be  a  re- 
mainder in  the  strict  sense  of  the  word,  and 
therefore  every  future  bequest  of  personal 
property,  whether  it  be  preceded  or  not  by 
any  particular  bequest,  or  limited  on  a  cer- 
tain or  uncertain  event,  is  an  executory  be- 
quest, and  falls  under  the  rules  by  which 


LEGACY 


23 


LEGACY 


that  mode  of  limitation  is  regulated.  See 
Fearne,  Cont.  Rem.  401,  n.  An  executory 
bequest  cannot  be  prevented  or  destroyed  by 
any  alteration  whatsoever  in  the  estate,  out 
of  which  or  after  which  it  is  limited.  8 
Coke,  96  a;  10  id.  476.  And  this  privilege 
of  executory  bequests,  which  exempts  them 
from  being  barred  or  destroyed,  is  the  found- 
ation of  an  invariable  rule,  that  the  event  on 
which  an  interest  of  this  sort  is  permitted  to 
take  effect  is  such  as  must  happen  within  a 
life  or  lives  in  being,  and  twenty-one  years 
and  the  fraction  of  another  year,  allowing  for 
the  period  of  gestation,  afterwards.  Fearne, 
Cont.  Rem.  431. 

9.  Legacies  may  be  made  conditional.  In 
such  case,  the  condition  may  be  either  prece- 
dent or  subsequent:  in  the  former  case,  no 
interest  vests  in  the  legatee  until  the  per- 
formance of  the  condition,  and  in  the  latter, 
it  is  liable  to  be  defeated  by  the  failure  or 
non-performance  of  the  condition.  2  Wil- 
liams, Exec.  1131  et  seq. 

No  particular  form  of  words  is  requisite  to 
constitute  one  a  residuary  legatee.  It  must 
appear  to  be  the  intention  of  the  testator  that 
he  shall  take  the  residue  of  the  estate,  after 
paying  debts  and  meeting  all  other  appoint- 
ments of  the  will.  2  Williams,  Exec.  1310 
et  seq.  The  right  of  the  executor  to  the  resi- 
due of  the  estate  when  there  is  no  residuary 
legatee  is  well  established,  both  at  law  and 
in  equity,  in  England,  except  so  far  as  it  is 
controlled  by  statute,  2  P.Will.  340;  3  Atk. 
Ch.  228  ;  7  Ves.  Ch.  228  :  but  the  rule  has 
been  controlled  in  equity  by  aid  of  slight 
presumptions  in  favor  of  the  next  of  kin.  1 
Brown,  Ch.  201;  14  Sim.  Ch.  8,  12;  2  Small 
&  G.  241 ;  14  Ves.  Ch.  197.^  The  rule  never 
obtained  in  this  country,  it  is  believed,  to  any 
great  extent.  3  Binn.  Penn.  557  ;  9  Serg.  & 
R.  Penn.  424;  6  Mass.  153;  2  llayw.  No.  C. 
298;  4  Leigh,  Va.  163;  13  111.  117. 

10.  The  assent  of  the  executor  to  a  spe- 
cific legacy  is  requisite  to  vest  the  title  in 
the  legatee.  1  Wash.  Ya.  308 ;  1  Bail.  So.  C. 
504;  1  Harr.  &  J.  Md.  138;  2  Ired.  Eq.  No.  C. 
34;  12  Ala.  n.  s.  532;  4  Fla.  144;  11  Humphr. 
Tenn.  559;  2  Md.  Ch.  Dec.  162.  This  will 
often  be  presumed  where  the  legatee  was  in 
possession  of  the  thing  at  the  decease  of  the 
testator,  and  the  executor  acquiesces  in  his 
right.  See  4  Dev.  No.  C.  267  ;  3  Leigh,  Va, 
682  ;  6  Pick.  Mass.  126  ;  6  Call.  Va.  55. 

Abatement.  The  general  pecuniary  lega- 
cies are  subject  to  abatement  whenever  the 
assets  are  insufficient  to  answer  the  debts 
and  specific  legacies.  The  abatement  must 
be  upon  all  pro  rata,  4  Brown,  Ch.  349,  350 ; 
13  Sim.  Ch.  440 ;  but  a  general  pecuniary 
legatee  is  not  bound  to  abate  in  favor  of  the 
residuary  legatee.  1  Story,  Eq.  Jur.  |§  555- 
575  ;  Brightly,  Eq.  Jur.  387,  388,  389.'  Spe- 
cific legatees  must  abate,  jyro  rata,  when  all 
the  assets  are  exhausted  except  specific  de- 
vises, and  prove  insufficient  to  pay  debts.  2 
Vern.  Ch.  756.  In  New  York,  they  must 
contribute  to  make  up  the  share  of  a  child 
boTxx  after  the  execution  of  the  will,  and 


not  provided  for  in  it.  5  Paige,  Ch.  N.  Y. 
588. 

11.  Ademption  of  legacies,  A  specific  leg- 
acy is  revoked  by  the  sale  or  change  of  form 
of  the  thing  bequeathed :  as,  by  converting 
a  gold  chain  into  a  cup,  or  wool  into  cloth, 
or  cloth  into  garments,  2  Brown,  Ch.  108, 
112;  but  the  change  of  the  form  of  a  security 
is  not  an  ademption.  23  N.  H.  212.  A  de- 
monstrative legacy  is  not  adeemed  by  the 
sale  or  change  of  the  fund.  5  Barb.  N.  Y. 
312;  10  Beav.  Rolls,  547 ;  15  Jur.  982 ;  16 
id.  1130.  A  legacy  to  a  child  is  regarded  in 
courts  of  equity  as  a  portion  for  such  child: 
hen<;e,  when  the  testator,  after  giving  such  a 
legacy,  settles  the  child  and  gives  a  portion, 
it  is  regarded  as  an  ademption  of  the  legacy. 
And  it  will  make  no  difference  that  the  por- 
tion given  in  settlement  is  less  than  the  leg- 
acy: it  will  still  adeem  the  legacy  pro  tanto. 
2  Vern.  Ch.  257  ;  15  Beav.  Rolls,'  565  ;  1  P. 
Will.  681 ;  5  Mylne  &  C.  29 ;  2  Story,  Eq. 
Jur.  II  1111-1113. 

Payment.  A  legacy  given  generally,  if  no 
time  of  payment  be  named,  is  due  at  the 
death  of  the  testator,  although  not  payable 
until  the  executor  has  time  to  settle  the 
estate  in  due  course  of  law.  See  Devise,  6. 
Legacies  are  not  due  by  the  civil  law  or  the 
common  law  until  one  year  after  the  decease 
of  the  testator.  The  same  term  is  generally 
allowed  the  executor  in  the  American  states 
to  dispose  of  the  estate  and  pay  debts,  and 
sometimes,  by  special  order  of  the  probate 
court,  this  is  extended,  from  time  to  time, 
according  to  circumstances.  5  Binn.  Penn. 
475  ;  5  Paige,  Ch.  N.  Y.  573  ;  1  Des.  So.  C. 
112;  16  Beav.  Rolls,  298. 

12.  An  annuity  given  by  will  shall  com- 
mence at  the  death  of  the  testator,  and  the 
first  payment  fall  due  one  year  thereafter.  3 
Madd.  Ch.  167.  A  distinction  is  taken  be- 
tween an  annuity  and  a  legacy  to  enjoy  the 
interest  during  life.  In  the  latter  case,  no 
interest  begins  to  accumulate  until  the  end 
of  one  year  from  the  death  of  the  testator.  7 
Ves.  Ch.  96 ;  2  Roper,  Leg.  1253.  But  this 
point  is  left  in  some  doubt  in  the  American 
cases.  The  following  hold  that  a  child's 
portion,  payable  at  a  certain  age,  draws  in- 
terest from  the  death  of  the  testator,  Tilgh- 
man,  C.  J.,  5  Binney,  477,  479 ;  4  Rawle, 
Penn.  113, 119  ;  but  this  rule  does  not  apply 
when  any  other  provision  is  made  for  the 
child.    6  Paige,  Ch.  N.Y.  299. 

13.  Where  legatees  are  under  disabilities, 
as  infancy  or  coverture,  the  executor  cannot 
discharge  himself  by  payment,  except  to  some 
party  having  a  legal  right  to  receive  the  same 
on  the  part  of  the  legatee,  which  in  the  case 
of  an  infant  is  the  legally-appointed  guard- 
ian, and  in  the  case  of  a  married  woman 
the  husband ;  but  in  the  latter  case  the  ex- 
ecutor may  decline  to  pay  the  legacy  until 
the  husband  make  a  suitable  provision  out 
of  it  for  the  wife,  according  to  the  order  of 
the  court  of  chancery.  See,  on  the  above 
points,  1  P.Will.  285;  1  Johns.  Ch.  N.Y.  3; 
9  Vt.  41 ;  1  Drewr.  71.    The  proper  course 


LEGACY 


24 


LEGAL  TENDER 


in  such  cases  is  for  the  executor  to  deposit 
the  money  on  interest,  subject  to  the  order 
of  the  court  of  chancery.  2  Williams,  Exec. 
4th  Am.  ed.  1206-1220.  The  executor  is  lia- 
ble for  interest  upon  legacies,  whenever  he 
has  realized  it,  and  in  general  he  is  liable 
for  interest  after  the  legacy  is  due.  .  2  Wil- 
liams, Exec.  1283  et  seq.  But  he  may  excuse 
himself  by  paying  the  money  into  the  court 
of  chancery.  2  P.  Will.  67.  So,  too,  if  the 
testator  is  compelled  to  pay  the  money  out 
of  his  own  funds  on  account  of  the  devastavit 
of  a  co-executor,  and  the  matter  has  lain  along 
for  many  years  on  account  of  the  infancy  of 
the  legatees,  no  interest  was  allowed  under 
the  special  circumstances  until  the  filing  of 
the  bill.    9Vt.  41. 

The  proper  remedy  for  the  recovery  of  a 
legacy  is  in  equity.  5  Term,  690. 
■  13.  Satisfaction  of  debt  by  legacy.  In 
courts  of  equity,  if  a  legacy  equal  or  exceed 
the  debt,  it  is  presumed  to  have  been  in- 
tended to  go  in  satisfaction,  Prec.  in  Chanc. 
240;  3  P.Will.  353;  4  Madd.  325;  but  if 
the  legacy  be  less  than  the  debt,  it  shall  not 
be  deemed  satisfaction  pro  tanto.  2  Salk. 
508;  1  Ves.  Sen.  Ch.  263  ;  2  Hou.  L.  Cas.  153. 
But  courts  allow  very  slight  circumstances 
to  rebut  this  presumption  of  payment:  as, 
where  the  debt  was  not  contracted  until  after 
the  making  of  the  will,  2  P.  AVill.  Ch.  343 ; 
where  the  debt  is  unliquidated,  and  the 
amount  due  not  known,  1  P.  Will.  299 ; 
where  the  debt  was  due  upon  a  bill  or  note 
negotiable,  3  Ves.  Ch.  561 ;  where  the  legacy 
is  made  payable  after  the  debt  falls  due,  3 
Atk.  Ch.  96 ;  where  the  legacy  appears  from 
the  will  to  have  been  given  diverso  intuitu, 
2  Ves.  Sen.  Ch.  635  ;  where  there  is  express 
direction  in  the  will  for  the  payment  of  all 
debts  and  legacies,  or  the  legacy  is  expressed 
to  be  for  some  other  reason,  1  P.  Will.  410 ; 
see,  also,  3  Atk.  Ch.  65,  68;  2  Story,  Eq.  Jur. 
U  1110-1113 ;  Brightly,  Eq.  Jur.  U  382,  391 : 
2  Dev.  &  B.  Eq.  No.  C.  66 ;  3  Wash.  C.  C. 
48  ;  6  Penn.  St.  18.  The  American  cases  do 
not  favor  the  rule  that  a  legacy  ispj-imd  facie 
payment,  12  Wend.  N.  Y.  67  ;  2  Hill,  N.  Y. 
576;  2  Gill  &  J.  Md.  185;  and  its  soundness 
was  early  questioned  in  England.  1  P.  Will. 
410. 

Release  of  debt  by  a  legacy.  If  one  leave  a 
legacy  to  his  debtor,  it  is  not  to  be  regarded 
as  a  release  of  the  debt  unless  that  appears 
to  have  been  the  intention  of  the  testator.  4 
Brown,  Ch.  227  ;  15  Sim.  Ch.  554. 

Where  one  appoints  his  debtor  his  execu- 
tor, it  is  at  law  regarded  as  a  release  of  the 
del)t,  Coke,  Litt.  2()4 ;  8  Coke,  136  a;  but 
this  is  now  controlled  V)y  statute  in  England 
and  in  many  of  the  United  States.  But  in 
equity  it  is  considered  that  the  executor  is 
still  liable  to  account  for  the  amount  of  his 
own  dey)t.  11  Ves.  Ch.  90,  nu.  1,  2,  3  ;  13 
id.  262,  264. 

Where  one  appoints  his  creditor  executor, 
and  he  has  assets,  it  o[)erates  to  discharge 
the  debt,  but  not  othcirwise.  2  AVillianis, 
Exec.  4th  Am.  ed.  1118-1123.    See,  gene- 


rally. Toller,  Williams,  on  Executors,  Roper 
on  Legacies,  Jarman  on  Wills. 

LEGAL.  That  which  is  according  to 
law.  It  is  used  in  opposition  to  equitable: 
as,  the  legal  estate  is  in  the  trustee,  the  equi- 
table estate  in  the  cestui  que  trust.  But  see 
Powell,  Mortg.  Index. 

LEGAL  ASSETS.  Such  propertjr  of  a 
testator  in  the  hands  of  his  executor  as  is  lia- 
ble to  debts  in  temporal  courts  and  to  legacies 
in  the  spiritual  by  course  of  law;  equitable 
assets  are  such  as  are  liable  only  by  help  of 
a  court  of  equity.  2  Williams,  Exec.  1408- 
1431,  Amer.  notes.  No  such  distinction  exists 
in  Pennsylvania.  1  Ashm.  Penn.  347.  See 
Story,  Eq.  Jur.  §  551 ;  2  Jarman,  Wills,  543. 

LEGAL  ESTATE.  One  the  right  to 
which  may  be  enforced  in  a  court  of  law. 

It  is  distinguished  from  an  equitable  estate,  the 
right  to  which  can  be  established  only  in  a  court 
of  equity.    2  Bouvier,  Inst.  n.  1688. 

The  party  who  has  the  legal  title  has  alone  the 
right  to  seek  a  remedy  for  a  wrong  to  his  estate,  in 
a  court  of  law,  though  he  may  have  no  beneficial 
interest  in  it.  The  equitable  owner  is  he  w"ho  has 
not  the  legal  estate,  but  is  entitled  to  the  beneficial 
interest. 

The  person  who  holds  the  legal  estate  for  the 
benefit  of  another  is  called  a  trustee ;  he  who  has 
the  beneficiary  interest  and  does  not  hold  the  legal 
title  is  called  the  beneficiary,  or,  more  technii  ally, 
the  cestui  que  tnmt. 

When  the  trustee  has  a  claim,  he  must  enforce 
his  right  in  a  court  of  equity,  for  he  cannot  sue  any 
one  at  law  in  his  own  name,  1  East,  497 ;  8  Term, 
332;  1  Saund.  158,  n.  1 ;  2  Bingh.  20;  still  less 
can  he  in  such  court  sue  his  own  trustee.  1  East, 
497. 

LEGALIZATION.  The  act  of  making 
lawful. 

By  legalization  is  also  understood  the  act 
by  which  a  judge  or  competent  officer  authen- 
ticates a  record,  or  other  matter,  in  order  that 
the  same  may  be  lawfully  read  in  evidence. 

LEGAL  TENDER.  That  currency 
which  has  been  made  suitable  by  law  for  the 
purposes  of  a  tender  in  the  payment  of  debts. 

The  following  descriptions  of  currency  are 
legal  tender  in  the  United  States: — 

All  the  gold  coins  of  the  United  States,  ac- 
cording to  their  nominal  value,  for  all  sums 
whatever.  The  silver  dollar  of  the  United 
States  is  a  legal  tender  for  all  sums  whatever. 
The  silver  coins  below  the  denomination  of  the 
dollar,  coined  prior  to  1854,  are  a  legal  tender 
in  payment  of  any  sum  whatever.  The  silrer 
coins  below  the  dollar,  of  the  date  of  1854  and 
of  subsequent  years,  are  a  legal  tender  in 
sums  not  exceeding  five  dollars.  The  three- 
cent  silver  coins  of  the  date  of  1851, 1852,  and 
1853  are  a  tender  in  sums  not  exceeding 
thirty  cents.  Those  of  subsequent  dates  are 
a  tender  in  sums  not  exceeding  five  dollars. 

The  cent  is  not  a  legal  tender. 

The  laws  at  one  time  in  force  making  cer- 
tain foreign  coins  a  legal  tender  was  repealed 
by  the  act  of  Feb.  21, 1857,  ^  3  (Stat,  at  Large, 
vol.  11,  p.  1G3).  No  foreign  coins  are  now  a 
legal  tender. 

By  recent  legislation,  treasury  notes  have 


LEGALIS  IIOxMO 


25 


LEGITIM 


been  issued,  which  are  a  legal  tender  for  all 
debts,  public  and  private,  except  duties  on  im- 
ports and  interest  on  the  public  debt.  (Act 
of  Congress  of  May  23,  1862.) 

A  postage  currency  has  also  been  author- 
ized, which  is  receivable  in  payment  of  all 
dues  to  the  United  States  less  than  five  dollars. 
They  are  not,  however,  a  legal  tender  in  pay- 
ment of  private  debts.  (Act  of  Congress, 
approved  July  17,  1862.) 

LEGALIS  HOMO  (Lat.).  A  person  who 
stands  rectus  in  curia,  who  possesses  all  his 
civil  rights.  A  lawful  man.  One  who  stands 
rectus  in  curia,  not  outlawed  nor  infamous. 
In  this  sense  are  the  words  prohi  et  legates 
homines. 

LEGANTINE  CONSTITUTIONS. 

The  name  of  a  code  of  ecclesiastical  laws,  en- 
acted in  national  synods,  held  under  legates 
from  Popes  Gregory  IX.  and  Clement  IV.,  in 
the  reign  of  Hen.  III.,  about  the  years  1220 
and  1268.  1  Sharswood,  Blackst.  Comm.  83. 
Burn  says,  1237  and  1268.  2  Burn,  Eccl. 
Law,  30  cl. 

LEGATARY.  One  to  whom  any  thing 
is  bequeathed ;  a  legatee.  This  word  is 
sometimes,  though  seldom,  used  to  designate 
a  legate  or  nuncio. 

LEGATEE.  The  person  to  whom  a  legacy 
is  given.    See  Legacy. 

LEGATES.  Legates  are  extraordinary 
ambassadors  sent  by  the  pope  to  catholic 
countries  to  represent  him  and  to  exercise  his 
jurisdiction.  They  are  distinguished  from 
the  ambassadors  of  the  pope  who  are  sent  to 
other  powers. 

Legates  d  latere  hold  the  first  rank  among 
those  who  are  honored  by  a  legation ;  they 
are  always  chosen  from  the  college  of  cardi- 
nals, and  are  called  d  latere,  in  imitation  of 
the  magistrates  of  ancient  Rome,  who  were 
taken  from  the  court,  or  side  of  the  emperor. 

Legati  missi  are  simple  envoys. 

Legati  nati  are  those  who  are  entitled  to 
be  legates  by  birth.    See  A  Latere. 

LEGATION.  An  embassy;  a  mission. 
All  persons  attached  to  a  foreign  legation, 
lawfully  acknowledged  by  the  government  of 
this  country,  whether  they  are  ambassadors, 
envoys,  ministers,  or  attaches,  are  protected 
by  the  act  of  April  30,  1790,  1  Story,  U.  S. 
Laws,  83,  from  violence,  arrest,  or  molesta- 
tion. 1  Dall.  Penn.  117;  1  AVash.  C.  C.  232; 
2  id.  435 ;  4  id.  531 ;  11  Wheat.  467 ;  1  Miles, 
Penn.  366 ;  1  Nott&  M'C.  So.  C.  217 ;  1  Baldw. 
240 ;  Wheaton,  Int.  Law,  167.  See  Ambas- 
sador; Arrest;  Privilege. 

LEGATORY.  The  third  part  of  a  free- 
man's personal  estate,  which  by  the  custom 
of  London,  in  case  he  had  a  wife  and  chil- 
dren, the  freeman  might  always  have  dis- 
posed of  by  will.  Bacon,  Abr.  Customs  of 
London  (D  4). 

LEGES  (Lat.).  In  Civil  Law.  Laws 
proposed  by  a  magistrate  of  the  senate  and 
adopted  by  the  whole  people  in  comitia  cen- 
iuriata.    See  Populiscitum;  Lex. 


In  English  Law.    Laws.  Scriptce. 

Leges  scriptce,  written  or  statute  laws. 

Leges  non  scriptce,  unwritten  or  customary 
laws ;  the  common  law,  including  general 
customs,  or  the  common  law  properly  so 
called  ;  and  also  particular  customs  of  certain 
Darts  of  the  kingdom,  and  those  particular 
laws  that  are,  by  custom,  observed  only  in 
certain  courts  and  jurisdictions.  1  Shars- 
wood, Blackst.  Comm.  67.  These  parts  of 
law  are  therefore  styled  leges  non  scriptce,  be- 
cause their  original  institution  and  authority 
are  not  set  down  in  writing,  as  acts  of  parlia- 
ment are,  but  they  receive  their  binding 
power  and  the  force  of  laws  by  long  and  im- 
memorial usage."  1  Stephen,  Comm.  40,  63. 
It  is  not  to  be  understood,  however,  that  they 
are  merely  oral;  for  they  have  come  down  to 
us  in  reports  and  treatises. 

LEGISLATIVE  POWER.  The  au- 
thority, under  the  constitution,  to  make  laws, 
and  to  alter  or  repeal  them. 

LEGISLATOR.    One  who  makes  laws. 

In  order  to  make  good  laws,  it  is  necessary  to 
understand  those  which  are  in  force ;  the  legislator 
ought,  therefore,  to  be  thoroughly  imbued  with  a 
knowledge  of  the  hiws  of  his  country,  their  advan- 
tages and  defects  ;  to  legislate  without  this  previous 
knowledge  is  to  attempt  to  make  a  beautiful  piece 
of  machinery  with  one's  e^^e  shut.  There  is  unfor- 
tunately too  strong  a  propensity  to  multiply  our 
laws  and  to  change  them.  Laws  must  be  yearly 
made,  for  the  legislatures  meet  yearly,  but  whether 
they  are  always  for  the  bettor  may  be  well  ques- 
tioned. A  mutable  legislation  is  always  attended 
with  evil.  It  renders  the  law  uncertain,  weakens 
its  effects,  hurts  credit,  lessens  the  value  of  pro- 
perty, and,  as  they  are  made  frequently,  in  conse- 
quence of  some  extraordinary  case,  laws  sometimes 
operate  Very  unequally.  See  1  Kent,  Comm.  227  j 
and  Le  Magasin  Universel,  tome  ii.  p.  227,  for  a 
good  article  against  excessive  legislation. 

LEGISLATURE.  That  body  of  men 
in  the  state  which  has  the  power  of  making 
laws. 

By  the  constitution  of  the  United  States, 
art.  1,  ^  1,  all  legislative  powers  granted  by 
it  are  vested  in  a  congress  of  the  United 
States,  which  shall  consist  of  a  senate  and 
house  of  representatives. 

It  requires  the  consent  of  a  majority  of 
each  branch  of  the  legislature  in  order  to 
enact  a  law,  and  then  it  must  be  appi-oved 
by  the  president  of  the  United  States,  or,  in 
case  of  his  refusal,  by  two-thirds  of  each 
house.    U.  S.  Const,  art.  1,  ^  7,  2. 

Most"  of  the  constitutions  of  the  several 
states  contain  provisions  nearly  similar  to  this. 
In  general,  the  legislature  will  not,  and,  by 
the  constitutions  of  some  of  the  states,  cannot, 
exercise  judicial  functions:  yet  the  use  of 
such  power  upon  particular  occasions  is  not 
without  example. 

LEGITIM  (called,  otherwise,  Bairn's 
Part  of  Gear)  In  Scotch  Law.  The  legal 
share  of  father's  free  movable  property,  due 
on  his  death  to  his  children:  if  widow  and 
children  are  left,  it  is  one-third;  if  children 
ahme,  one-half.  Erskine,  Inst.  3,  9.  20;  4 
Bell,  Hou.  L.  Cas.  286. 


LEGITIMACY 


26 


LESSEE 


LEGITIMACY.  The  8tate  of  being  born 
in  wedlock;  that  is,  in  a  lawful  manner. 

2,  Marriage  is  considered  by  all  civilized 
nations  as  the  only  source  of  legitimacy ; 
the  qualities  of  husband  and  wife  must  be 
possessed  by  the  parents  in  order  to  make 
the  offspring  legitimate ;  and,  furthermore, 
the  marriage  must  be  lawful,  for  if  it  is  void 
ab  initio,  the  children  who  may  be  the  off- 
spring of  such  marriage  are  not  legitimate. 
1  Phillipps,  Ev. ;  La.  Civ.  Code,  art.  203  to  216. 

In  Virginia,  it  is  provided,  by  statute  of 
1787,  "that  the  issue  of  marriages  deemed 
null  in  law  shall  nevertheless  be  legitimate/' 
3  Hen.  &  M.  Va.  228,  n. 

3.  A  strong  presumption  of  legitimacy 
arises  from  marriage  and  cohabitation  ;  and 
proof  of  the  mother's  irregularities  will  not 
destroy  this  presumption :  pater  est  quern 
jiuptiw  demonstrant.  To  rebut  this  presump- 
tion, circumstances  must  be  shown  which 
render  it  impossible  that  the  husband  should 
be  the  father,  as  impotency  and  the  like.  3 
Bouvier,  Inst.  n.  3002.    See  Bastard. 

LEGITIMATE.  That  which  is  accord- 
ing to  law :  as,  legitimate  children  are  law- 
ful children,  born  in  wedlock,  in  contradis- 
tinction to  bastards ;  legitimate  authority,  or 
lawful  power,  in  opposition  to  usurpation 

LEGITIMATION.  The  act  of  giving 
the  character  of  legitimate  children  to  those 
who  were  not  so  born. 

2.  In  Louisiana,  the  Civil  Code,  art.  217, 
enacts  that  "  children  born  out  of  marriage, 
except  those  who  are  born  of  an  incestuous  or 
adulterous  connection,  may  be  legitimated  by 
the  subsequent  marriage  of  their  father  and 
mother,  whenever  the  latter  have  legally  ac- 
knowledged them  for  their  children,  either 
before  their  marriage,  or  by  the  contract  of 
marriage  itself." 

3.  In  most  of  the  other  states,  the  character 
of  legitimate  children  is  given  to  those  who 
are  not  so,  by  special  acts  of  assembly.  In 
Georgia,  real  estate  may  descend  from  a  mo- 
ther to  her  illegitimate  children  and  their 
representatives,  and  from  such  child,  for  want 
of  descendants,  to  brothers  and  sisters,  born 
of  the  same  mother,  and  tlieir  representatives. 
Prince's  Dig.  202.  In  Alabama,  Kentucky, 
Mississippi,  Vermont,  and  Virginia,  subse- 
quent marriages  of  parents,  and  recognition 
by  the  father,  legitimatize  an  illegitimate 
child  ;  and  the  law  is  the  same  in  Massachu- 
setts, for  all  purposes  except  inheriting  from 
their  kindred.    Mass.  Rev.  Stat.  414. 

4.  The  subsequent  marriage  of  parents 
legitimatizes  the  child  in  Illinois;  but  he  must 
be  afterwards  acknowledged.    'J'he  same  rule 
seems  to  have  been  adopted  in  Indiana  and 
Missouri.    An  acknowledgment  of  illegiti-  j 
mate  children,  of  itself,  legitimatizes  in  Ohio;  I 
and  in  Michigan  and  Mississippi,  maniago  I 
alone  between  the  reputed  parents  has  tlio 
same  effect.    In  Maine,  a  bastard  inherits  to 
one  who  is  legally  adjudged,  or  in  writing  ' 
owns  liimself  to  be,  the  lather.    A  bastard 
may  be  legitimated  in  North  Carolina,  on  ap- 


plication of  the  putative  father  to  court,  either 
where  he  has  married  the  mother,  or  she  is 
dead,  or  married  another,  or  lives  out  of  the 
state.    In  a  number  of  the  states,  namely,  in 
Alabama,  Connecticut,  Illinois,  Indiana,  Ken- 
i  tucky,  Maine,  Massachusetts,  Michigan,  North 
I  Carolina,  Ohio,   Rhode   Island,  Tennessee, 
j  Vermont,  and  Virginia,  a  bastard  takes  by 
[  descent  from  his  mother,  with  modifications 
regulated  by  the  laws  of  these  states.   2  Hill, 
Abr.  II  24-35,  and  authorities  cited.  See 
Descent. 

LEGITIME.  In  Civil  Law.  That  por- 
tion of  a  parent's  estate  of  which  he  cannot 
disinherit  his  children  without  a  legal  cause. 

2.  The  civil  code  of  Louisiana  declares  that  dona- 
tions inter  vivos  or  mortis  antsa  cannot  exceed  two- 

I  thirds  of  the  property  of  the  disposer,  if  he  leaves 
1  at  his  decease  a  legitimate  child;  one-half  if  he 
{  leaves  two  children;  and  one-third  if  he  leaves 
i  three  or  a  greater  number.    Under  the  name  of 
I  children  are  included  descendants  of  whatever  de- 
gree they  may  be  :  it  must  be  understood  that  they 
are  only  counted  for  the  child  they  represent.  La. 
Civ.  Code.  art.  1480. 

In  Hdll.ind,  Germany,  and  Spain,  the  principles 
of  the  Falcidian  law,  more  or  less  limited,  have 
been  generally  adopted.    Coop.  Just.  516. 

3.  In  the  United  States,  other  than  Louii^iana, 
and  in  England,  there  is  no  restriction  on  the  right 
of  bequeathing.  But  this  power  of  bequeathing  did 
not  originally  extend  to  all  a  man's  personal  estate: 
on  the  contrary,  by  the  common  law,  as  it  stood  in 
the  reign  of  Henry  II.,  a  man's  goods  were  to  be 
divided  into  throe  equal  parts,  one  of  which  went  to 
his  heirs  or  lineal  descendants,  another  to  his  wife, 
and  the  third  was  at  his  own  disposal;  or,  if  he 
died  without  a  wife,  he  might  then  dispose  of  one 
moiety,  and  the  other  went  to  his  children;  and  so 
e  converso  if  he  had  no  children,  the  wife  was  en- 
titled to  one  moiety,  and  he  mitrht  bequeath  the 
other;  but  if  he  died  without  either  wife  or  issue, 
the  whole  was  at  his  own  disposal.  Glanville,  1.  2, 
c.  5  ;  Bracton,  1.  2,  c.  26.  The  shares  of  the  wife 
and  children  were  called  their  reasonable  part.  2 
Blackstone,  Comm.  491.  See  Death's  Part  ;  Fal- 
ciDiAx  Law. 

LENDER.  He  from  whom  a  thing  is 
l)orr()wed.  The  bailor  of  an  article  loaned. 
See  Bailment;  Loax. 

LESION.  In  Civil  Law.  A  term  used 
to  signify  the  injury  suffered,  in  consequence 
of  inequality  of  situation,  by  one  who  does 
not  receive  a  full  equivalent  lor  what  he  gives 
in  a  commutative  contract. 

The  remedy  given  for  this  injury  is  founded 
on  its  being  the  effect  of  implied  error  or  im- 
position ;  for  in  every  commutative  contract 
ecjuivalents  are  supposed  to  be  given  and  re- 
ceived. La.  Code,  1854.  Persons  of  full  age, 
however,  are  not  allowed  in  point  of  law  to 
object  to  their  agreements  as  being  injurious, 
unless  the  injury  be  excessive.  Pothier, 
Obi.  p.  I,  c.  1,  s.  1,  art.  3,  g  4.  But  minors 
are  admitted  to  restitution,  not  only  against 
any  excessive  inequality,  but  against  any 
inequality  whatever.  Pothier,  Ohl.  p.  1,  c. 
1,  8.  1,  art.  3,  g  5 ;  La.^  Code,  art.  1858.  See 
Fraud;  Guardian;  Sale. 

LESSEE.  He  to  whom  a  lease  is  made. 
He  who  holds  an  estate  by  virtue  of  a  lease. 
See  Lease. 


LESSOR 


27 


LETTER  OF  CREDIT 


LESSOR.  lie  who  <^raiits  a  lease.  See 
Lease  ;  Landlord  and  Tenant. 

LESTAGE,  LAST  AGE  (Sax.  last,  bur- 
den). A  custom  for  carry iiijj!;  things  in  fairs 
and  markets.  Fleta,  1.  1,  c.  47  ;  Teimes  de  la 
Ley. 

LET.  Hindrance;  obstacle;  obstruction. 
To  lease;  to  grant  the  use  and  possession  of 
a  thing  for  compensation.  It  is  the  correla- 
tive of  hire.    See  Hire. 

LETTER.  He  who,  being  the  owner  of  a 
thing,  lets  it  out  to  another  for  hire  or  com- 
pensation.  Story,  Bailm.  ^  3G9.  See  Hiring. 

LETTER.  An  epistle;  a  despatch;  a 
written  message,  usually  on  paper,  folded  up 
and  sealed,  and  sent  by  one  person  to  another. 
1  Gaines,  N.  Y.  582. 

2.  The  business  of  transporting  and  de- 
livering letters  between  different  towns,  states, 
and  countries,  and  from  one  part  of  a  city  to 
another,  is  undertaken  by  the  government, 
and  private  persons  are  forbidden  to  enter 
into  competition. 

In  the  United  States  the  various  acts  re- 
latino-  to  the  post-office  were  reduced  to  one  act 
in  1825,  3  Story,  U.  S.  Laws,  1991,  Brightly, 
Dig.  759,  by  which  severe  penalties  are  in- 
flicted upon  all  persons  who  interfere  with 
the  rapid  transportation  of  the  mails,  upon 
all  officers  who  tamper  with  the  mails,  as  by 
opening  letters,  secreting  the  contents,  etc., 
and  competition  of  private  individuals  pre- 
vented. 

3.  Contracts  may  be  made  by  letter ;  and 
when  a  proposition  is  made  by  letter,  the 
mailing  a  letter  containing  an  acceptance  of 
the  proposition  completes  the  contract.  1 
Barnew.  &  Aid.  681 ;  6  Hare,  1 ;  1  Hon.  L. 
Cas.  381 ;  7  Mees.  &  W.  Exch.  515  ;  21  N.  H. 
41 ;  4  Paige,  Ch.  N.  Y.  17 ;  11  N.  Y.  441 ;  4 
Ga.  1 ;  12  Conn.  431 ;  7  Dan.  Ky.  281 ;  9 
Port.  Ala.  005  ;  5  Penn.  St.  339 ;  9  How.  390; 
4  Wheat.  228.  See  1  Pick.  Mass.  281 ;  Par- 
sons, Mar.  Law,  22,  n. 

Payments  may  be  made  by  letter  at  the 
risk  of  the  creditor,  when  the  debtor  is  author- 
ized, expressly  or  impliedly,  from  the  usual 
course  of  business,  and  not  otherwise.  Peake, 
67;  1  Exch.  477;  Ry.&M.  149;  3  Mass.  249. 

LETTER  OF  ADVICE.  In  Common 
Law.  A  letter  containing  information  of 
any  circumstances  unknown  to  the  person  to 
whom  it  is  written  ;  generally  informing  him 
of  some  act  done  by  the  writer  of  the  letter. 

It  is  usual  and  perfectly  proper  for  the 
drawer  of  a  bill  of  exchange  to  write  a  letter 
of  advice  to  the  drawee,  as  well  to  prevent 
fraud  or  alteration  of  the  bill,  as  to  let  the 
drawee  know  what  provision  has  been  made 
for  the  payment  of  the  bill.  Chitty,  Bills, 
185. 

LETTER  OF  ADVOCATION.  In 
Scotch  Law.  The  decree  or  warrant  of  the 
supreme  court  or  court  of  sessions,  discharg- 
ing the  inferior  tribunal  from  all  further  pro- 
ceedings in  the  matter,  and  advocating  the 
Action  to  itself.    This  proceeding  is  similar 


to  a  certiorari  issuing  out  of  a  superi(jr  court 
for  the  removal  of  a  cause  from  an  inferior. 

LETTER  OF  ATTORNEY.  In  Prac- 
tice. A  written  instrument,  by  which  one  or 
more  persons,  called  the  constituents,  au- 
thorize one  or  more  other  persons,  called  the 
attorneys,  to  do  some  lawful  act  by  the  latter 
for  or  instead,  and  in  the  place,  of  the  former. 
1  Mood.  Cr.  Cas.  52,  70.  It  may  be  parol  or 
under  seal.    See  Power  of  Attorney. 

LETTER  BOOK.    In  Common  Law. 

A  bi.ok  containing  the  copies  of  letters  writ- 
ten by  a  merchant  or  trader  to  his  corre- 
spondents. 

After  notice  to  the  plaintiff  to  produce  a 
letter  which  he  admitted  to  have  received 
from  the  defendant,  it  was  held  that  an  entry 
by  a  deceased  clerk,  in  a  letter  book  piofess- 
ing  to  be  a  copy  of  a  letter  from  the  de- 
fendant to  the  plaintiff  of  the  same  date,  was 
admissible  evidence  of  the  contents,  proof 
having  been  given  that,  according  to  the 
course  of  business,  letters  of  business  written 
by  the  plaintiff  were  copied  by  this  clerk  and 
then  sent  off  by  the  post.  3  Campb.  305. 
See  1  Starkie,  Ev.  356;  Bouvier,  Inst.  n.  3139. 

LETTER  CARRIER.  A  person  em- 
ployed to  carry  letters  from  the  post-office  to 
the  persons  to  whom  they  are  addressed. 
Provisions  are  made  by  the  act  of  March  3, 
1851,  11  U.  S.  Stat,  at  Large,  591,  for  the  ap- 
pointment of  letter  carriers  in  cities  and 
towns,  and  by  c.  21,  ^  2  of  the  same  act,  for 
letter  carriers  in  Oregon  and  California. 

LETTER  OF  CREDENCE.  In  Inter- 
national Law.  A  AA^ritten  instrument  ad- 
dressed by  the  sovereign  or  chief  magistrate 
of  a  state  to  the  sovereign  or  state  to  whom 
a  public  minister  is  sent,  certifying  his  ap- 
pointment as  such,  and  the  general  object  of 
his  mission,  and  requesting  that  full  faith 
and  credit  may  be  given  to  what  he  shall  do 
and  say  on  the  part  of  his  court. 

When  it  is  given  to  an  ambassador,  envoy, 
or  minister  accredited  to  a  sovereign,  it  is  ad- 
dressed to  the  sovereign  or  state  to  whom  the 
minister  is  delegated  ;  in  the  case  of  a  charge 
d'affaires,  it  is  addressed  by  the  secretary  or 
minister  of  state  charged  with  the  department 
of  foreign  affairs  to  the  minister  of  foreign 
affairs  of  the  other  government.  Wheaton, 
Int.  Law,  pt.  3,  c.  1,  ^  7 ;  Wicquefort,  de 
I'Ambassadeur,  1.  1,  ^  15. 

LETTER  OF  CREDIT.  An  open  or 
sealed  letter,  from  a  merchant  in  one  place, 
directed  to  another,  in  another  place  or  coun- 
try, requiring  him  that  if  a  person  therein 
named,  or  the  bearer  of  the  letter,  shall  have 
occasion  to  buy  commodities,  or  to  want 
money  to  any  particular  or  unlimited  amount, 
either  to  procure  the  same,  or  to  pass  his 
promise,  bill,  or  other  engagement  for  it,  the 
writer  of  the  letter  undertaking  to  provide 
him  the  money  for  the  goods,  or  to  repay  him 
by  exchange,  or  to  give  him  such  satisfaction 
as  he  shall  require,  either  for  himself  or  the 
bearer  of  the  letter.    3  Chitty,  Com.  Law, 


LETTER  OF  LICENSE  28 


LETTERS  CLOSE 


336.  And  see  4  id.  259,  for  a  form  of  such 
letter. 

2.  These  letters  are  either  general  or  spe- 
cial :  the  former  is  directed  to  the  writer's 
friends  or  correspondents  generally,  where 
the  bearer  of  the  letter  may  happen  to  go; 
the  latter  is  directed  to  some  particular  per- 
son. When  the  letter  is  presented  to  the 
person  to  whom  it  is  addressed,  he  either 
agrees  to  comply  with  the  request,  in  which 
case  he  immediately  becomes  bound  to  fulfil 
all  the  engagements  therein  mentioned  ;  or 
he  refuses,  in  which  case  the  bearer  should 
return  it  to  the  giver  without  any  other  pro- 
ceeding, unless,  indeed,  the  merchant  to  whom 
the  letter  is  directed  is  a  debtor  of  the  mer- 
chant who  gave  the  letter,  in  which  case  he 
should  procure  the  letter  to  be  protested.  3 
Chitty,  Com.  Law,  337 ;  Malyn,  76  ;  1  Beaw. 
Lex  Mer.  607;  Hall,  Adm.  Pract.  14;  4  Ohio, 
197. 

3.  The  debt  which  arises  on  such  letter, 
in  its  simplest  form,  when  complied  with,  is 
between  the  mandatory  and  the  mandant ; 
though  it  may  be  so  conceived  as  to  raise  a 
debt  also  against  the  person  who  is  supplied 
by  the  mandatory.  First,  when  the  letter 
is  purchased  with  money  by  the  person  wish- 
ing for  the  foreign  credit,  or  is  granted  in 
consequence  of  a  check  on  his  cash  account, 
or  procured  on  the  credit  of  securities  lodged 
with  the  person  who  granted  it,  or  in  pay- 
ment of  money  due  by  him  to  the  payee,  the 
letter  is,  in  its  effects,  similar  to  a  bill  of 
exchange  drawn  on  the  foreign  merchant. 
The  payment  of  the  money  by  the  person  on 
whom  the  letter  is  granted  raises  a  debt,  or 
goes  into  account  between  him  and  the  writer 
of  the  letter,  but  raises  no  debt  to  the  person 
who  pays  on  the  letter,  against  him  to  whom 
the  money  is  paid.  Second,  when  not  so 
purchased,  but  truly  an  accommodation,  and 
meant  to  raise  a  debt  on  the  person  accom- 
modated, the  engagement  generally  is,  to  see 
paid  any  advances  made  to  him,  or  to  guar- 
anty any  draft  accepted  or  bill  discounted; 
and  the  compliance  with  the  mandate,  in  such 
case,  raises  a  debt  both  against  the  writer  of 
the  letter  and  against  the  person  accredited. 
1  Bell,  Comm.  371,  5th  ed.  The  bearer  of 
the  letter  of  credit  is  not  considered  bound 
to  receive  the  money ;  he  may  use  the  letter 
as  he  pleases,  and  he  contracts  an  obligation 
only  by  receiving  the  money.  Pothier,  Contr. 
de  ChatKje,  237. 

LETTER  OF  LICENSE.  An  instru- 
ment or  writing  made  by  creditors  to  their 
insolvent  debtor,  by  which  they  bind  them- 
selves to  allow  him  a  longer  time  than  he  had 
a  right  to,  for  the  payment  of  his  debts,  and 
that  they  will  not  arrest  or  molest  him  in  his 
person  or  property  till  after  the  expiration  of 
8uch  additional  time. 

LETTER  OF  MARQUE  AND  RE- 
PRISAL. A  commisHion  granted  by  the  gov- 
ernment to  a  private  individual,  to  take  the 
property  of  a  lorcign  state,  or  of  the  citizens 
or  Bubjects  of  such  state,  as  a  reparation  for 


an  injury  committed  by  such  state,  its  citi- 
zens or  subjects.  A  vessel  loaded  with  mer- 
chandise, on  a  voyage  to  a  friendly  port,  but 
armed  for  its  own  defence  in  case  of  attack 
by  an  enemy,  is  also  called  a  letter  of  marque. 
1  Boulay  Paty,  tit.  3,  §  2,  p.  300. 

By  the  constitution,  art.  1,  §  8,  cl.  11,  con- 
gress have  power  to  grant  letters  of  marque 
and  reprisal.  See  Chitty,  Law  of  Nat.  73  ; 
1  Blackstone,  Comm.  251  ;  Viner,  Abr.  Pre- 
rogative (B  4);  Comyns,  Dig.  Prerogative  (B 
4)":  Molloy,  b.  1,  c.  2,  ^  10 ;  2  Wooddeson, 
440  :  2  C.  Rob.  Adm.  224 ;  5  id.  9,  260.  And 
see  Reprisal. 

LETTER  MISSIVE.  In  English 
Law.  A  request  addressed  to  a  peer,  peeress, 
or  lord  of  parliament,  against  whom  a  bill  has 
been  filed,  desiring  the  defendant  tq.^appear 
and  answer  to  the  bill.  It  is  issued  by  the 
lord  chancellor,  on  petition,  after  the  filing 
of  the  bill;  and  a  neglect  to  attend  to  this 
places  the  defendant,  in  relation  to  such  suit, 
on  the  same  ground  as  other  defendants  who 
are  not  peers,  and  a  subpoena  may  then  issue. 
Newland,  Pr.  9 ;  2  Maddock,  Chanc.  Pract. 
196 ;  Cooper,  Eq.  Plead.  16. 

LETTER  OP  RECALL.  A  written 
document  addressed  by  the  executive  of  one 
government  to  the  executive  of  another,  in- 
forming the  latter  that  a  minister  sent  by  the 
former  to  him  has  been  recalled. 

LETTER  OF  RECOMMENDATION. 

In  Commercial  Law.  An  instrument  given 
by  one  person  to  another,  addressed  to  a  third, 
in  which  the  bearer  is  represented  as  worthy 
of  credit.  1  Bell,  Comm.  5th  ed.  371 ;  3  Term, 
51;  7  Cranch,  69  ;  Fell,  Guar.  c.  8;  6  Johns. 
N.  Y.  181 ;  13  id.  224 ;  1  Day,  Conn.  22.  See 
Recommendation. 

LETTER  OP  RECREDENTIALS. 
A  document  delivered  to  a  minister  by  the 
secretary  of  state  of  the  government  to  which 
he  was  accredited.  It  is  addressed  to  the  ex- 
ecutive of  the  minister's  country.  This  is  in 
reply  to  the  letter  of  recall. 

LETTERS  OP  ADMINISTRATION. 

An  instrument  in  writing,  granted  by  the 
judge  or  officer  having  jurisdiction  and  power 
of  granting  such  letters,  thereby  giving  (the 
administrator,  naming  him)  "full  power  to 
administer  the  goods,  chattels,  rights,  and 
credits,  which  were  of  the  said  deceased,  in 
the  county  or  district  in  which  the  said  judge 
or  officer  has  jurisdiction  ;  as  also  to  ask,  col- 
lect, levy,  recover,  and  receive  the  credits 
whatsoever  of  the  said  deceased,  which  at 
the  time  of  his  death  were  owing,  or  did  in 
any  way  belong,  to  him,  and  to  pay  the  debts 
in  which  the  said  deceased  stood  obliged,  so 
far  forth  as  the  said  goods  and  chattels,  rights 
and  credits,  will  extend,  according  to  the  rate 
and  order  of  law."  See  Letters  Testament- 
ary. 

LETTERS  CLOSE.   In  English  Law. 

Ch)sc  letters  are  grants  of  the  king,  and,  being 
of  private  concern,  they  are  thus  distin- 
guished from  letters  patent. 


LETTERS  AD  COLLIGENDUM,  ETC.  29 


LETTERS  TESTAMENTARY 


LETTERS  AD  COLLIGENDUM 
BONA   DEFUNCTL    In  Practice.  In 

default  of  the  representatives  and  creditors 
to  administer  to  the  estate  of  an  intestate,  the 
officer  entitled  to  grant  letters  of  adminis- 
tration may  grant,  to  such  person  as  he 
approves,  letters  to  collect  the  goods  of  the 
deceased,  which  neither  make  him  executor 
nor  administrator  ;  his  only  business  being  to 
collect  the  goods  and  keep  them  in  his  safe- 
custody.    2  Blackstone,  Comm.  505. 

LETTERS  PATENT.  The  name  of  an 
instrument  granted  by  the  government  to 
convey  a  right  to  the  patentee:  as,  a  patent 
for  a  tract  of  land  ;  or  to  secure  to  him  a  right 
which  he  already  possesses,  as,  a  patent  for 
a  new  invention  or  discovery.  Letters  patent 
are  matter  of  record.  They  are  so  called  be- 
cause they  are  not  sealed  up,  but  are  granted 
open.    See  Patent. 

LETTERS  OF  REQUEST.  In  Eng- 
lish Ecclesiastical  Law.  An  instrument 
by  which  a  judge  of  an  inferior  court  waives 
or  remits  his  own  jurisdiction  in  favor  of  a 
court  of  appeal  immediately  superior  to  it. 

Letters  of  request,  in  general,  lie  only 
where  an  appeal  would  lie,  and  lie  only  to 
the  next  immediate  court  of  appeal,  waiving 
merely  the  primary  jurisdiction  to  the  proper 
appellate  court,  except  letters  of  request  from 
the  most  inferior  ecclesiastical  court,  which 
may  be  direct  to  the  court  of  arches,  although 
one  or  two  courts  of  appeal  may  by  this  be 
ousted  of  their  jurisdiction  as  courts  of  ap- 
peal. 2  Add.  Eccl.  406.  The  effect  of  letters 
of  request  is  to  give  jurisdiction  to  the  appel- 
late court  in  the  first  instance.  See  a  form 
of  letters  of  request  in  2  Chitty,  Pract.  498, 
note  h. 

LETTERS  ROGATORY.  An  instru- 
ment sent  in  the  name  and  by  the  authority 
of  a  judge  or  court  to  another,  requesting 
the  latter  to  cause  to  be  examined,  upon  in- 
terrogatories filed  in  a  cause  depending  before 
the  former,  a  witness  who  is  within  the  juris- 
diction of  the  judge  or  court  to  whom  such 
letters  are  addressed. 

2.  They  are  sometimes  denominated  sub 
muiuce  vicissiludinis,  from  a  clause  which 
they  generally  contain.  Where  the  govern- 
ment of  a  foreign  country,  in  which  witnesses 
proposed  to  be  examined  reside,  refuse  to 
allow  commissioners  to  administer  oaths  to 
such  witnesses,  or  to  allow  the  commission  to 
be  executed  unless  it  is  done  by  some  magis- 
trate or  judicial  officer  there,  according  to  the 
laws  of  that  country,  letters  rogatory  must 
issue.  Commissioners  are  forbidden  to  ad- 
minister oaths  in  the  island  of  St.  Croix,  G 
Wend.  N.  Y.  476  ;  in  Cuba,  1  Pet.  C.  C.  236  ; 
8  Paige.  Ch.  N.  Y.  446  ;  and  in  Sweden.  2 
Ves.  Sen.  Ch.  236. 

3.  These  letters  are  directed  to  any  judge 
or  tribunal  having  jurisdiction  of  civil  causes 
in  the  foreign  country,  recite  the  pendency  of 
the  suit  in  court,  and  state  that  there  are 
material  witnesses  residing  there,  without 
whose  testimony  justice  cannot  be  done  be- 


tween the  parties,  and  then  request  the  said 
judge  or  tribunal  to  cause  the  witnesses  t^ 
come  before  them  and  answer  to  the  inter- 
rogatories annexed  to  the  letters  rogatory,  to 
cause  their  depositions  to  be  committed  to 
writing  and  returned  with  the  letters  rogatory. 
In  letters  rogatory  there  is  always  an  offer, 
on  the  part  of  the  court  whence  they  issued, 
to  render  a  mutual  service  to  the  court  to 
which  they  may  be  directed,  whenever  re- 
quired. The  practice  of  such  letters  is  derived 
from  the  civil  law,  by  which  these  letters  are 
sometimes  called  letters  requisitory.  A  spe- 
cial application  must  be  made  to  court  to 
obtain  an  order  for  letters  rogatory. 

4.  Though  formerly  used  in  England  in 
the  courts  of  common  law,  1  Rolle,  Abr,  530, 
pi.  13,  they  have  been  superseded  by  com- 
missions of  dedimus  potestatem,  which  are 
considered  to  be  but  a  feeble  substitute. 
Dunlap,  Adm.  Pract.  223,  n.;  Hall,  Adm. 
Pract.  37.  The  courts  of  admiralty  use  these 
letters ;  and  they  are  recognized  by  the  law 
of  nations.  See  Foelix,  Droit  Intern,  liv.  2, 
t.  4,  p.  300;  Denisart;  Dunlap,  Adm.  Pract. 
221 ;  Benedict,  Adm.  |  533  ;  1  Hoffman,  Ch. 
N.  Y.  482. 

In  Nelson  vs.  United  States,  supra,  will  be 
found  a  copy  of  letters  rogatory,  issued  to 
the  courts  of  Havana,  according  to  the  form 
and  practice  of  the  civil  law,  on  an  occasion 
when  the  authorities  there  had  prevented  the 
execution  of  a  commission,  regarding  any 
attempts  to  take  testimony  under  it  as  an 
interference  with  the  rights  of  the  judicial 
tribunals  of  that  place. 

LETTERS  TESTAMENTARY.  An 
instrument  in  writing  granted  by  the  judge 
or  officer  having  jurisdiction  of  the  probate 
of  wills,  under  his  hand  and  official  seal, 
making  known  that  at  a  certain  date  the 
last  will  and  testament  of  A  B  (naming  the 
testator)  was  duly  proved  before  him  ;  that 
the  probate  and  grant  of  administration  was 
within  his  jurisdiction,  and  he  accordingly 
certifies  "that  the  administration  of  all  and 
singular  the  goods,  chattels,  and  credits  of  the 
said  deceased,  and  any  way  concerning  his 
will,  was  granted"  to  C  D,  "the  executor 
named  in  the  said  will,"  "he  having  been 
already  sworn  well  and  faithfully  to  adminis- 
ter the  same,  and  to  make  a  true  and  perfect 
inventory,  etc.,  and  to  exhibit  the  same,  etc., 
and  also  to  render  a  just  and  true  account 
thereof." 

2.  In  England,  the  original  will  is  de- 
posited in  the  registry  of  the  ordinary  or 
metropolitan,  and  a  copy  thereof  made  out 
under  his  seal ;  which  copy  and  the  letters 
testamentary  are  usually  styled  the  probate. 
This  practice  has  been  followed  in  some  of 
the  United  States  ;  but  where  the  will  needs 
to  be  proved  in  more  than  one  state,  the  im- 

founding  of  it  leads  to  much  inconvenience, 
n  other  states,  the  original  will  is  returned 
to  the  executor,  with  a  certificate  that  it  has 
been  duly  proved  and  recorded,  and  the 
letters  testamentary  are  a  separate  instru- 
ment.   The  letters  are  usually  general ;  but 


LETTERS  TESTAMENTARY 


30 


LETTERS  TESTAMENTARY 


the  court  may  grant  a  limited  probate,  where 
the  testator  has  limited  the  executor,  and 
then  the  administration  cceterorum  may  be 
granted. 

3.  Letters  testamentary  are  granted  in  case 
the  decedent  was  testate  ;  letters  of  adminis- 
tration, in  case  he  was  intestate,  or  fa  led  to 
provide  an  executor;  see  Administration; 
Executor  ;  but  in  regard  to  all  niattei-s  com- 
ing properly  under  the  heads  of  letters  of  ad- 
ministration or  letters  testamentary,  there  is 
little  or  no  diflference  in  the  law  relating  to 
the  two  instruments.  Letters  testamentary 
and  of  administration  are,  according  to  their 
terms  and  extent,  conclusive  as  to  personal 
property  while  they  remain  unrevoked.  They 
cannot  be  questioned  in  a  court  of  law  or  of 
equity,  and  cannot  be  impeached,  even  by 
evidence  of  fraud  or  forgery.  Proof  that  the 
testator  was  insane,  or  that  the  will  was 
forged,  is  inadmissible.  16  Mass.  433;  1  Lev. 
236.  But  if  the  nature  of  his  plea  raise  the 
issue,  the  defendant  may  show  that  the  seal 
of  the  supposed  probate  has  been  forged,  or 
that  the  letters  have  been  revoked,  or  that  the 
testator  is  alive.  15  Serg.  &  R.  Penn.  42 ;  3 
Term,  130 ;  Williams,  Exec.  450., 

4.  They  can  be  revoked  only  by  the  court 
whence  they  issued,  or  on  appeal.  At  com- 
mon law,  the  executor  or  administrator  has 
no  power  over  real  estate  ;  nor  is  the  probate 
even  admissible  as  evidence  that  the  instru- 
ment is  a  will,  or  as  an  execution  of  a  power 
to  charge  land.  Williams,  Exec.  460;  1  Mann. 
&  G.  331.  By  statute,  the  probate  may  be 
made  primd  facie  or  conclusive  evidence  as 
to  realty.  2'Binn.  Penn.  511 ;  3  id.  498 ;  6 
id.  409 ;  Gilbert,  Ev.  66  ;  Bacon,  Abr.  Evi- 
dence. Though  the  probate  court  has  exclu- 
sive jurisdiction  of  the  grant  of  letters,  yet 
where  a  legacy  has  been  obtained  by  fraud, 
or  the  probate  has  been  procured  by  fraud 
on  the  next  of  kin,  a  court  of  equity  would 
hold  the  legatee  or  wrong-doer  as  obligated 
by  a  trust  for  the  party  injured.  Williams, 
Exec.  452. 

Letters  may  be  revoked  by  the  court  which 
made  the  grant,  or  an  appeal  to  a  higher 
tribunal,  reversing  the  decision  by  which 
they  were  granted.  Special  or  limited  ad- 
ministration will  be  revoked  on  the  occasion 
ceasing  which  called  for  the  grant.  An  ex- 
ecutor or  administrator  will  be  removed  when 
the  letters  were  obtained  improperly.  Wil- 
liams, Exec.  480. 

5.  Of  their  effect  in  a  state  other  than  that 
in  which  legal  proceedings  V)cre  iiistitided. 

In  view  of  the  rule  of  the  civil  law,  that 
personalia  seqiiitur  personam,  certain  effect 
has  been  given  by  the  comity  of  nations  to  a 
foreign  probate  granted  at  the  place  of  the 
domicil  of  the  deceased,  in  respect  to  the  per- 
sonal assets  in  other  states.  At  common 
law,  the  lex  loci  rci  sitce  governs  as  to  real 
estate,  and  the  foreign  pro})ate  has  no  validity ; 
but  as  to  personalty  the  law  of  the  domicil 
governs  both  as  to  testacy  and  intestacy.  It 
is  customary,  therefore,  on  a  due  exemplifica- 
tion of  the  probate  granted  at  the  place  of 


domicil,  to  admit  the  will  to  probate,  and 
issue  letters  testamentary,  without  requiring 
original  or  further  proof. 

A  foreign  probate  at  the  place  of  domicil 
has  in  itself  no  force  or  effect  beyond  the 
jurisdiction  in  which  it  was  granted,  but  on 
its  production  fresh  probate  will  be  granted 
thereon  in  all  other  jurisdictions  where  assets 
are  found.  This  is  the  general  rule,  but  is 
liable  to  be  varied  by  statute,  and  is  so  varied 
in  some  of  the  states  of  the  United  States. 

6.  Alabama.  Administrators  may  sue  upon 
letters  of  administration  granted  in  another  state, 
where  the  intestate  had  no  known  place  ot  residence 
in  Alabama  at  the  time  of  his  death,  and  no  repre- 
sentative has  been  appointed  in  the  state ;  but  be- 
fore rendition  of  the  judgment  he  must  produce  to 
the  court  his  letters  ol  administration,  authenticated 
according  to  the  laws  of  the  United  States,  and  the 
certificate  of  the  clerk  of  some  county  court  in  this 
state,  that  the  letters  have  been  recorded  in  his 
office.  Before  he  is  entitled  to  the  money  on  the 
judgment,  he  must  also  give  bond,  payable  to  the 
judge  of  the  court  where  the  judgment  is  rendered, 
for  the  faithful  administration  of  the  money  re- 
ceived.   Aiken,  Dig.  183  j  Toulmin,  Dig.  342. 

Arkansas.  When  the  deceased  had  no  residence 
in  Arkansas,  and  he  devised  lands  by  will,  or 
where  the  intestate  died  possessed  of  lands,  letters 
testamentary  or  of  administration  shall  be  granted 
in  the  county  where  the  lands  lie,  or  of  one  of  them, 
if  they  lie  in  several  counties;  and  if  the  deceased 
had  no  such  place  of  residence  and  no  lands,  such 
letters  may  be  granted  in  the  county  in  which  the 
testator  or  intestate  died,  or  where  the  greater  part 
of  his  estate  may  be.    Rev.  Stat.  c.  4,  |  2. 

T.  California.  When  the  estate  of  the  deceased 
is  in  more  than  one  county,  he  having  died  out  of 
the  slate,  and  not  having  been  a  resident  thereof 
at  the  time  of  his  death,  the  probate  court  of  that 
county  in  which  application  is  first  made  for  letters 
testamentary  or  cf  administration  shall  have  ex- 
clusive jurisdiction  of  the  settlement  of  the  estate. 
Wood,  Cal.  Dig.  art.  2223. 

Cunnecticnt.  Letters  testamentary  issued  in  an- 
other Slate  are  not  available  in  this,  3  Day,  Conn. 
303;  nor  are  letters  of  administration.  3  Day, 
Conn.  74.    And  see  2  Root,  Conn.  462. 

8.  Delaware.  By  the  act  of  1721,  1  State  Laws, 
82,  it  is  declared,  in  substance,  that  when  any  per- 
son shall  die  leaving  bona  notahilia  in  several  coun- 
ties in  the  state  and  in  Pennsylvania  or  elsewhere, 
and  any  person  not  residing  in  the  state  obtains 
letters  of  administration  out  of  the  state,  the  de- 
ceased being  indebted  to  any  of  the  inhabitants  of 
the  state  for  a  debt  contracted  within  the  same,  to 
the  value  of  twenty  pounds,  then,  and  in  such  oase, 
such  administrator,  before  he  can  obtain  any  judg- 
ment in  any  court  of  record  within  the  state  against 
any  inhabitant  thereof,  by  virtue  of  such  letters  of 
administration,  is  obliged  to  file  them  with  some  of 
the  registers  in  this  state,  and  must  enter  into 
bonds  with  sufficient  sureties,  who  have  visible 
estates  here,  with  condition  to  pay  and  satisfy  all 
such  debts  ns  were  owing  by  the  intestate  at  the 
time  of  his  death  to  any  person  residing  in  (his 
state,  so  far  as  the  effects  of  the  deceased  in  this 
state  will  extend.  By  the  act  of  June  16,  1769,  1 
State  Laws,  448,  it  is  enacted,  in  substance,  that 
any  will  in  writing  made  by  a  person  residing  out 
of  the  state,  whereby  any  lands  within  the  state 
are  devised,  which  shall  bo  proved  in  the  chancery 
in  England,  Scotland,  Ireland,  or  any  colony,  j)lan- 
tation,  or  island  in  America,  belonging  to  the  king 
of  Great  Britain,  or  in  the  hustings,  or  mayor's 
court,  in  London,  or  in  some  manor  court,  or  before 
such  persons  as  have  power  or  authority  at  the 


LETTERS  TESTAMENTARY        31        LETTERS  '"ESTAMENTARY 


time  of  proving  such  wills,  in  the  places  aforesaid, 
to  take  probates  of  wills,  shall  be  good  and  availa- 
ble in  law  for  granting  the  lands  devised,  as  well 
as  of  the  goods  and  chattels  bequeathed  by  such 
will.  The  copies  of  such  will,  and  of  the  bill,  an- 
swer, depositions,  and  decree,  where  proved  in  any 
court  of  chancery,  or  copies  of  such  wills  and  the 
probate  thereof,  where  proved  in  any  other  court, 
or  in  any  office  as  aforesaid,  being  transmitted  to 
this  state,  and  produced  under  the  public  or  com- 
mon seal  of  the  court  or  office  where  the  probate  is 
taken,  or  under  the  great  seal  of  the  kingdom, 
colony,  plantation,  or  island,  within  which  such 
will  is  proved  (except  copies  of  such  wills  and  pro- 
bates as  shall  appear  to  be  revoked),  are  declared 
to  be  matter  of  record,  and  to  be  good  evidence  in 
any  court  of  law  or  equity  in  this  state,  to  prove 
the  gift  or  devise  made  in  such  will ;  and  such  pro- 
bates are  declared  to  be  sufficient  to  enable  execu- 
tors to  bring  their  actions  within  any  court  within 
this  state,  as  if  the  same  probates  or  letters  testa- 
mentary were  granted  here,  and  produced  under 
the  seal  of  any  of  the  registers'  offices  within  this 
state.  By  the  third  section  of  the  act,  it  is  de- 
clared that  the  copies  of  such  wills  and  probates  so 
produced  and  given  in  evidence  shall  not  be  re- 
turned by  the  court  to  the  persons  producing  them, 
but  shall  be  recorded  in  the  office  of  the  recorder 
of  the  county  where  the  same  are  given  in  evidence, 
at  the  expense  of  the  party  producing  the  same. 

9.  Florida.  Copies  of  all  wills,  and  letters  tes- 
tamentary and  of  administration,  heretofore  re- 
corded in  any  public  office  of  record  in  the  state, 
when  duly  certified  by  the  keeper  of  said  records, 
shall  be  received  in  evidence  in  all  courts  of  record 
in  this  state;  and  the  probate  of  wills  granted  in 
any  of  the  United  States  or  of  the  territories 
thereof,  in  any  foreign  country  or  state,  duly  au- 
thenticated and  certified  according  to  the  laws  of 
the  state  or  territory,  or  of  the  foreign  country  or 
state,  where  such  probate  may  have  been  granted, 
«hall  likewise  be  received  in  evidence  in  all  courts 
of  record  in  this  state. 

Georgia.  To  enable  executors  and  administra- 
tors to  sue,  in  Georgia,  the  former  must  take  out 
letters  testamentary  in  the  county  where  the  pro- 
perty or  debt  is :  and  administrators,  letters  of  ad- 
ministration. Prince,  Dig.  238;  Act  of  1805,  2 
Laws  of  Ga.  268. 

10.  Illinois.  Letters  testamentary  must  be  taken 
out  in  this  state,  and  when  the  will  is  to  be  proved 
the  original  must  be  produced;  administrators  of 
other  states  must  take  out  letters  in  Illinois,  before 
they  can  maintain  an  action  in  the  courts  of  the 
state.    3  Griffin,  Law  Reg.  419. 

Indiana.  Executors  and  administrators  ap- 
pointed in  another  state  may  maintain  actions  and 
suits,  and  do  all  other  acts  coming  within  their 
powers,  as  such,  within  this  state,  upon  producing 
authenticated  copies  of  such  letters  and  filing  them 
with  the  clerk  of  the  court  in  which  such  suits  are 
to  be  brought.  Rev.  Code,  c.  24,  Feb.  17,  1838, 
sec.  44. 

lotoa.  If  administration  of  the  estate  of  a  de- 
ceased non-resident  has  been  granted  in  accord- 
ance with  the  laws  of  the  state  or  country  where  he 
resided  at  the  time  of  his  death,  the  person  to 
whom  it  has  been  committed  may,  upon  his  appli- 
cation, and  upon  qualifying  himself  in  the  same 
manner  as  is  required  of  other  executors,  be  ap- 
pointed an  executor  to  administer  upon  the  pro- 
perty of  the  deceased  in  this  state,  unless  another 
executor  has  previously  been  appointed  in  this 
■tate. 

The  original  letters  testamentary  or  of  adminis- 
tration, or  other  authority,  conferring  his  power 
upon  such  executor,  or  an  attested  copy  thereof, 
I  'g*  ther  with  a  copy  of  the  will,  if  there  be  one, 
attested  as  hereinbefore  directed,  must  be  filed  in 


the  office  of  the  judge  of  the  proper  county  court 
before  such  ajipointment  can  be  made.  Iowa  llev. 
Laws,  18(50,      2341,  2342. 

11.  Kansas.  Letters  must  be  taken  out  in  the 
state ;  and  the  balance,  after  payment  of  debts  due 
citizens  of  the  state,  may  be  transmitted  to  the 
foreign  executor  or  administrator.  Comp.  Stat.  c. 
91,  p  214-218. 

Kentvclnj.  Executors  and  administrators  ap- 
pointed in  other  states  may  sue  in  Kentucky,  "upon 
filing  with  the  clerk  of  the  court,  where  the  suit  is 
brought,  an  authenticated  copy  of  the  certificate  of 
probate,  or  orders  granting  letters  of  administra- 
tion of  said  estate,  given  in  such  non-resident's 
state."   1  Dig.  Stat.  636  ;  2  Litt.  Ky.  194 ;  3  id.  182. 

Louisiana.  Executors  or  administrators  of  other 
states  must  take  out  letters  of  curatorship  in  this 
state.  Exemplifications  of  wills  and  testaments 
are  evidence.  4  Griffith,  Law  Reg.  683;  8  Mart. 
La.  N.  s.  686. 

12.  3!aine.  Letters  of  administration  must  be 
taken  from  some  court  of  probate  in  this  state. 
Copies  of  wills  which  have  been  proved  in  a  court 
of  probate  in  any  of  the  United  States,  or  in  a 
court  of  probate  of  any  other  state  or  kingdom, 
with  a  copy  of  the  probate  thereof,  under  the  seal 
of  the  court  where  such  wills  have  been  proved, 
may  be  filed  and  recorded  in  any  probate  court  in 
this  state,  which  recording  shall  be  of  the  same 
force  as  the  recording  and  proving  the  original 
will.  Rev.  Stat.  t.  9,  c.  107,  ^20;  3  Mass.  614; 
9  id.  337;  11  id.  256;  1  Pick.  Mass.  80;  3  id.  128. 

Maryland.  Letters  testamentary  or  of  adminis- 
tration granted  out  of  Maryland  have  no  efi'ect  in 
this  state,  except  only  such  letters  issued  in  the 
District  of  Columbia;  and  letters  granted  there  au- 
thorize executors  or  administrators  to  claim  and 
sue  in  this  state.  Act  of  April,  1813,  chap.  165. 
By  the  act  of  1839,  chap.  41,  when  non-resident 
owners  of  any  public  or  state  of  Maryland  stocks, 
or  stocks  of  the  city  of  Baltimore,  or  any  other 
corporation  in  this  state,  die,  their  execiitors  or 
administrators  constituted  under  the  authority  of 
the  state,  district,  territory,  or  country  where  the 
deceased  resided  at  his  death,  have  the  same  power 
as  to  such  stocks  as  if  they  were  appointed  by 
authority  of  the  state  of  Maryland.  But  before 
they  can  transfer  the  stocks  they  must,  during 
three  months,  give  notice  in  two  newspapers,  pub- 
lished in  Baltimore,  of  the  death  of  the  testator  or 
intestate,  and  of  the  "amount  and  description  of 
the  stock  designed  to  be  transferred."  Adminis- 
tration must  be  granted  in  this  state,  in  order  to 
recover  a  debt  due  here  to  a  decedent,  or  any  of 
his  property,  with  the  exceptions  above  noticed. 

13.  Massachusetts.  When  any  person  shall  die 
intestate  in  any  other  state  or  country,  leaving 
estate  to  be  administered  within  this  state,  ad- 
ministration thereof  shall  be  granted  by  the  judge 
of  probate  of  any  county  in  which  there  is  nrv 
estate  to  be  administered;  and  the  administr;  t  n 
which  shall  be  first  lawfully  granted  shall  extend 
to  all  the  estate  of  the  deceased  within  the  state, 
and  shall  exclude  the  jurisdiction  of  the  probate 
court  in  every  other  county.  Rev.  Stat.  c.  64.  §  5. 
See  3  Mass.  514;  5  id.  67;  11  id.  256,  314;  1  Pick. 
Mass.  81. 

Michigan.  Letters  testamentary  or  letters  of 
administration  granted  out  of  the  state  are  not  of 
any  validity  in  it.  In  order  to  collect  the  debts  or 
to  obtain  the  property  of  a  deceased  person  who 
was  not  a  resident  of  the  state,  it  is  requisite  to 
take  out  letters  testamentary  or  letters  of  adminis- 
tration from  a  probate  court  of  this  state,  withiL 
whose  jurisdiction  the  property  lies,  which  letters 
operate  over  all  the  state,  and  then  sue  in  the  name 
of  the  executor  or  administrator  so  appointed.  Rev. 
Stat.  280.  When  the  deceased  leaves  a  will  exe- 
cuted according  to  the  laws  of  this  state,  and  thi- 


LETTERS  TESTAMENTARY        32        LETTERS  TESTAMENTARY 


same  is  admitted  to  proof  and  record  where  he  dies, 
a  certified  transcript  of  the  will  and  probate  thereof 
may  be  proved  and  recorded  in  any  county  in  this 
state  whore  the  deceased  has  property  real  or  per- 
sonal, and  letters  testamentary  may  issue  thereon. 
Kev.  Stat.  272,  273. 

14,  Missiaxippi.  Executors  or  administrators 
in  another  state  or  territory  cannot,  as  such,  sue 
nor  be  sued  in  this  state.  In  order  to  recover  a 
debt  due  to  a  deceased  person  or  his  property, 
there  must  be  taken  out  in  the  state  letters  of  ad- 
ministration, or  letters  with  the  will  annexed,  as  the 
case  may  be.  These  may  be  taken  out  from  the 
probate  court  of  the  county  where  the  property  is 
situated,  by  a  foreign  as  well  as  a  local  creditor,  or 
any  person  interested  in  the  estate  of  the  deceased, 
if  properly  qualified  in  other  respects.    1  Miss.  211. 

Misaouri.  Letters  testamentary  or  of  adminis- 
tration granted  in  another  state  have  no  validity 
in  this;  to  maintain  a  suit,  the  executors  or  ad- 
ministrators must  be  appointed  under  the  laws  of 
this  state.    Rev.  Code,  ^  2,  p.  41. 

New  Hampshire.  One  who  has  obtained  letters 
of  administration,  Adams,  Rep.  193,  or  letters  testa- 
mentary under  the  authority  of  another  state,  can- 
not maintain  an  action  in  New  Hampshire  by 
virtue  of  such  letters.    3  Griffith,  Law  Reg.  41. 

15.  New  Jersey.  Executors  having  letters  testa- 
mentary, and  administrators  letters  of  administra- 
tion, granted  in  another  state,  cannot  sue  thereon 
in  New  Jersey,  but  must  obtain  such  letters  in  that 
state  as  the  law  prescribes.  By  the  act  of  March 
6,  1S28,  Harr.  Comp.  195,  when  a  will  has  been  ad- 
mitted to  probate  in  any  state  or  territory  of  the 
United  States,  or  foreign  nation,  the  surrogate  of 
any  county  of  this  state  is  authorized,  on  applica- 
tion of  the  executor  or  any  person  interested,  on 
filing  a  duly  exemplified  copy  of  the  will,  to  appoint 
a  time  not  less  than  thirty  days  and  not  more  than 
six  months  distant,  of  which  notice  is  to  be  given 
as  he  shall  direct,  and  if,  at  such  time,  no  sufficient 
reason  be  shown  to  the  contrary,  to  admit  such  will 
to  probate,  and  grant  letters  testamentary  or  of 
administration  cum  testamento  annexo,  which  shall 
have  the  same  effect  as  though  the  original  will 
had  been  produced  and  proved  under  form.  If 
the  person  to  whom  such  letters  testamentary  or  of 
administration  be  granted  is  not  a  resident  of  this 
state,  he  is  required  to  give  security  for  the  faithful 
administration  of  the  estate.  By  the  statute  passed 
February  28,  1838,  Elmer,  Dig.  602,  no  instrument 
of  writing  can  be  admitted  to  probate  under  the 
preceding  act  unless  it  be  supied  and  published  by 
the  testator  as  his  will.    See  Saxt.  €h.  N.  J.  332. 

New  York.  An  executor  or  administrator  ap- 
pointed in  another  state  has  no  authority  to  sue  in 
New  York.  I  Johns.  Ch.  N.  Y.  153;  6  id.  353;  7 
id.  45.  Whenever  an  intestate,  not  being  an  in- 
habitant of  this  state,  shall  die  out  of  the  state, 
leaving  assets  in  several  counties,  or  assets  shall 
after  his  death  come  in  several  counties,  the  sur- 
rogate of  any  county  in  which  assets  shall  be  shall 
have  power  to  grant  letters  of  administration  on 
the  estate  of  such  intestate;  but  the  surrogate  who 
shall  first  grant  letters  of  administration  on  such 
estate  shall  bo  deemed  thereby  to  have  acquired 
sole  and  exclusive  jurisdiction  over  such  estate,  an<l 
shall  be  vested  with  the  powers  incidental  thereto. 
Rev.  Stat.  p.  2,  c.  6,  tit.  2,  art.  2,  §  24 ;  1  R.  L. 
455,  ^  3. 

lO,  North  Carolina.  It  was  decided  by  the 
court  of  conference,  then  the  highest  tribunal  in 
North  Carolina,  that  letters  granted  in  (Je  )rgia 
were  insufficient.  Conf.  Rep.  68,  But  the  supreme 
court  have  since  held  that  letters  testamentary  , 
granted  in  South  Carolina  were  sufficient  to  enable  | 
an  executor  to  sue  in  North  Carolina.  1  Car.  Law 
Rep.  471.    See  1  Ilayw.  No.  C.  354.  | 

By  the  revised  statutes,  c.  46,  g  6,  it  is  provided  , 


that  "  when  a  testator  or  testatrix  shall  appoint  any 
person,  residing  out  of  this  state,  executor  or  ex- 
ecutrix of  his  or  her  last  will  and  testament,  it 
shall  be  the  duty  of  the  court  of  pleas  and  quarter 
sessions,  before  which  the  said  will  shall  be  ofi'ercd 
for  probate,  to  cause  the  executor  or  executrix 
named  therein  to  enter  into  bond  with  good  and 
sufficient  security  for  his  or  her  faithful  administra- 
tion of  the  estate  of  the  said  testator  or  testatrix, 
and  for  the  distribution  thereof  in  the  manner  pre- 
scribed by  law ;  the  penalty  of  said  bond  shall  be 
double  the  supposed  amount  of  the  personal  estate 
of  the  said  testator  or  testatrix;  and  until  the 
said  executor  or  executrix  shall  enter  into  such 
bond,  he  or  she  shall  have  no  power  nor  authority 
to  intermeddle  with  the  estate  of  the  said  testator 
or  testatrix,  and  the  court  of  the  county,  in  which 
the  testator  or  testatrix  had  his  or  her  last  usual 
place  of  residence,  shall  proceed  to  grant  letters  of 
administration  with  the  will  annexed,  which  shall 
continue  in  force  until  the  said  executor  or  execu- 
trix shall  enter  into  bond  as  aforesaid.  Provided, 
nevertheless,  and  it  is  hereby  declared,  that  the  said 
executor  or  executrix  shall  enter  into  bond,  as  by 
this  act  directed,  within  the  space  of  one  year  after 
the  death  of  the  said  testator  or  testatrix,  and  not 
afterwards." 

17.  Ohio.  Executors  and  administrators  ap- 
pointed under  the  authority  of  another  state  may, 
by  virtue  of  such  appointment,  sue  in  this.  Ohio 
Stat.  vol.  38,  p.  146;  Act  of  March  23,  1840,  which 
went  into  effect  the  first  day  of  November  follow- 
ing ;  Swan's  Coll.  184. 

Ore<jon.  Letters  testamentary,  or  of  administra- 
tion, shall  not  be  granted  to  a  non-resident;  and 
when  an  executor  or  administrator  shall  become 
non-resident,  the  probate  court  having  jurisdiction 
of  the  estate  of  the  testator  or  intestate  of  such 
executor  or  administrator  shall  revoke  his  letters. 
Oreg.  Stat.  1855,  352. 

18.  Pennsylvania.  Letters  testamentary  or  of 
administration,  or  otherwise  purporting  to  author- 
ize any  person  to  intermeddle  with  the  estate  of  a 
decedent,  granted  out  of  the  commonwealth,  do 
not  in  general  confer  on  any  such  person  any  of 
the  powers  and  authorities  possessed  by  an  executor 
or  administrator  under  letters  granted  within  the 
state.  Act  of  March  15,  1832,  s.  6.  But  by  the 
act  of  April  14,  1835,  s.  .3,  this  rule  is  declared  not 
to  apply  to  any  public  debt  or  loan  of  this  com- 
monwealth ;  but  such  public  debt  or  loan  shall  pass 
and  be  transferable,  and  the  dividends  thereon  ac- 
crued and  to  accrue  be  receivable,  in  like  manner 
and  in  all  respects  and  under  the  same  and  no  other 
regulations,  powers,  and  authorities  as  were  used 
and  practised  before  the  passsige  of  the  above-men- 
tioned act.  And  the  act  of  June  16,  1836,  s.  3, 
declares  that  the  above  act  of  March  15,  1832,  s.  6, 
shall  not  apply  to  shares  of  stock  in  any  bank  or 
other  incorporated  company  within  this  common- 
wealth, but  such  shares  of  stock  shall  pass  and  be 
transferable,  and  the  dividends  thereon  accrued  and 
to  accrue  be  receivable,  in  like  manner  in  all  re- 
spects, and  under  the  same  regulations,  powers,  and 
authorities,  as  were  used  and  practised  with  the 
loans  or  public  debts  of  the  United  States,  and 
were  used  and  practised  with  the  loans  or  public 
debt  of  this  commonwealth,  before  the  passage  of 
the  Siiid  act  of  March  15,  1832,  s.  6,  unless  the  by- 
laws, rules,  and  regulations  of  any  such  bank  or 
corporation  shall  otherwise  provide  and  declare. 
Executors  and  administrators  who  had  been  law- 
fully appointed  in  some  other  of  the  United  States 
might,  by  virtue  of  their  letters  duly  authenticated 
by  the  proper  officer,  have  sued  in  this  stiite.  4 
riall.  I'onn.  492;  1  Binn.  Pcnn.  63.  But  letters 
of  administration  granted  by  the  archbishop  of 
York,  in  England,  give  no  authority  to  the  admi- 
nistrator in  Pennsylvania.    1  Dall.  Penn.  456. 


LETTERS  TESTAMENTARY  33 


LEVARI  FACIAS 


19.  Rhode  Island.  It  does  not  appear  to  be 
settled  whether  executors  and  administrators  ap- 
pointed in  another  state  may,  by  virtue  of  such 
appointment,  sue  in  this.  3  GriflEith,  Law  Reg. 
107,  108. 

South  Caroliiia.  Executors  and  administrators 
of  other  states  cannot,  as  such,  sue  in  South  Caro- 
lina; they  must  take  out  letters  in  the  state.  3 
Griffith,  Law  Reg.  848. 

Tennessee.  Where  any  person  or  persons  may 
obtain  administration  on  the  estate  of  any  in- 
testate, in  any  one  of  the  United  States,  or  terri- 
tory thereof,  such  person  or  persons  shall  be  en- 
abled to  prosecute  suits  in  any  court  in  this  state, 
in  the  same  manner  as  if  administration  had  been 
granted  to  such  person  or  persons  by  any  court  in 
the  state  of  Tennessee.  Provided,  that  such  per- 
son or  persons  shall  produce  a  copy  of  the  letters 
of  administration,  authenticated  in  the  manner 
which  has  been  prescribed  by  the  congress  of  the 
United  States  for  authenticating  the  records  or 
judicial  acts  of  any  one  state  in  order  to  give 
them  validity  in  any  other  state;  and  that  such 
letters  of  administration  had  been  granted  in  pur- 
suance of  and  agreeable  to  the  laws  of  the  state  or 
territory  in  which  such  letters  of  administration 
were  granted. 

When  any  executor  or  executors  may  prove  the 
last  will  and  testament  of  any  deceased  person, 
and  take  on  him  or  themselves  the  execution  of  said 
will  in  any  state  in  the  United  States,  or  in  any 
territory  thereof,  such  person  or  persons  shall  be 
enabled  to  prosecute  suits  in  any  court  in  this  state, 
in  the  same  manner  as  if  letters  testamentary  had 
been  granted  to  him  or  them  by  any  court  within 
the  state  of  Tennessee.  Provided,  that  such  ex- 
ecutor or  executors  shall  produce  a  certified  copy 
of  the  letters  testamentary  under  the  hand  and 
seal  of  the  clerk  of  the  court  where  the  same  were 
obtained,  and  a  certificate  by  the  chief  justice,  pre- 
siding judge,  or  chairman  of  such  court  that  the 
clerk's  certificate  is  in  due  form,  and  that  such  let- 
ters testamentary  had  been  granted  in  pursuance 
of  and  agreeable  to  the  laws  of  the  state  or  terri- 
tory in  which  such  letters  testamentary  were 
granted.    Act  of  1839,  Carr.  &  Nich.  Comp.  78, 

20.  Texas.  When  a  will  has  been  admitted  to 
probate  in  any  of  the  United  States  or  the  terri- 
tories thereof  or  of  any  country  out  of  the  limits 
of  the  United  States,  and  the  executor  or  executors 
named  in  such  will  have  qualified,  and  a  copy  of 
such  will  and  of  the  probate  thereof  has  been  filed 
and  recorded  in  any  court  of  this  state,  under  the 
provisions  of  the  fifth  section  of  this  act,  and  let- 
ters of  administration  with  such  will  annexed  have 
been  granted  to  any  other  person  or  persons  than 
the  executors  therein  named,  upon  the  application 
of  such  executor  or  executors,  or  any  one  of  them, 
such  letters  shall  be  revoked,  and  letters  testament- 
ary shall  be  issued  to  such  applicant.  Oldham  & 
W.  Dig.  Texas  Laws,  art.  712. 

Vermont.  If  the  deceased  person  shall,  at  the 
time  of  his  death,  reside  in  any  other  state  or 
country,  leaving  estate  to  be  administered  in  this 
state,  administration  thereof  shall  be  granted  by 
the  probate  court  of  the  district  in  which  there  shall 
be  estate  to  administer;  and  the  administration 
first  legally  granted  shall  extend  to  all  the  estate 
of  the  deceased  in  this  state,  and  shall  exclude  the 
jurisdiction  of  the  probate  court  of  every  other  dis- 
trict.   Rev.  Stat.  tit.  12,  c.  47,  s.  2. 

21.  Virginia.  Authenticated  copies  of  wills, 
proved  according  to  the  laws  of  any  of  the  United 
States,  or  of  any  foreign  country,  relative  to  any 
estate  in  Virginia,  may  be  offered  for  probate  in 
the  general  court;  or,  if  the  estate  lie  altogether  in 
any  one  county  or  corporation,  in  the  cirenit, 
county,  or  corporation  court  of  such  county  or  cor- 
poration.   3  Griffith,  Law  Reg.  343.    It  is  under- 

VoL.  II.— 3 


attood  to  be  the  settled  law  of  Virginia,  though 
there  is  no  statutory  provision  on  the  subject,  that 
no  probate  of  a  will  or  grant  of  administration  in 
another  state  of  the  Union,  or  in  a  foreign  country, 
and  no  qualification  of  an  executor  or  administra- 
tor elsewhere  than  in  Virginia,  give  any  such  ex- 
ecutor or  administrator  any  right  to  demand  the 
effects  or  debts  of  the  decedent  which  may  happen 
to  be  within  the  jurisdiction  of  the  state.  There 
must  be  a  regular  probate  or  grant  of  administra- 
tion and  qualification  of  the  executor  or  adminis- 
trator in  Virginia,  according  to  her  laws.  And 
the  doctrine  prevails  in  the  federal  courts  held  in 
Virginia,  as  well  as  in  the  state  courts.  3  Griffith, 
Law  Reg.  348. 

Wisconsin.  When  an  executor  or  administrator 
shall  be  appointed  in  any  other  state,  or  in  any 
foreign  country,  on  the  estate  of  any  person  dying 
out  of  this  state,  and  no  executor  or  administrator 
shall  be  appointed  in  this  state,  the  foreign  executor 
may  file  an  authenticated  copy  of  his  appointment 
in  the  county  court  of  any  county  in  which  there 
may  be  real  estate  of  the  deceased. 

Upon  filing  such  authenticated  copy  of  his  ap- 
pointment, such  foreign  executor  or  administrator 
may  be  licensed,  by  the  same  county  court,  to  mort- 
gage, lease,  or  sell  real  estate  for  the  payment  of 
debts  or  legacies  and  charges  of  administration,  in 
the  same  manner  and  upon  the  same  terms  and 
conditions  as  are  prescribed  in  the  case  of  an  ex- 
ecutor or  administrator  appointed  in  this  state, 
excepting  in  the  particulars  in  which  a  diff"erent 
provision  is  made.   Wise.  Rev.  Stat.  c.  94,     43,  44. 

LETTING  OUT.    In  American  Law. 

The  act  of  awarding  a  contract. 

This  term  is  much  used  in  the  United  States,  and 
most  frequently  in  relation  to  contracts  to  construct 
railroads,  canals,  or  other  mechanical  works.  When 
such  an  undertaking  has  reached  the  point  of  actual 
construction,  a  notice  is  generally  given  that  pro- 
posals will  be  received  until  a  certain  period,  and 
thereupon  a  letting  out,  or  award  of  portions  of  the 
work  to  be  performed  according  to  the  proposals, 
is  made.    See  35  Ala.  N.  s.  55. 

LEVAND^  NAVIS  CAUSA  (Lat.). 
In  Civil  Law.  For  the  sake  of  lightening 
the  ship.  See  Leg.  Rhod.  de  jaciu.  Goods 
thrown  overboard  with  this  purpose  of  light- 
ening the  ship  are  subjects  of  a  general 
average. 

LEVARI  FACIAS  (Lat.  that  you 
cause  to  be  levied).  In  Practice.  A  writ 
of  execution  directing  the  sheriff  to  cause  to 
be  made  of  the  lands  and  chattels  of  the 
judgment  debtor  the  sum  recovered  bj  the 
judgment. 

Under  this  writ  the  sheriff"  was  to  sell  the  goods 
and  collect  the  rents,  issues,  and  profits  of  the  land 
in  question.  It  has  been  generally  superseded  by 
the  remedy  by  elegit,  which  was  given  by  statute 
Westm.  2d  (13  Edw.  I.),  e.  18.  In  case,  however, 
the  judgment  debtor  is  a  clerk,  upon  the  sheriff"'B 
return  that  he  has  no  lay  fee,  a  writ  in  the  nature 
of  a  levari  facias  goes  to  the  bishop  of  the  diocese, 
who  thereupon  sends  a  sequestration  of  the  profits 
of  the  clerk's  benefice,  directed  to  the  churchwar- 
dens, to  collect  and  pay  them  to  the  plaintiff"  till 
the  full  sum  be  raised.  Yet  the  same  course  is  pur- 
sued upon  aji./a.  2  Burn,  Eccl.  Law,  329.  See  2 
Tidd.  Pract.  1042;  Comyns,  Dig.  Execution  (c.  4); 
Finch,  Law,  471 ;  3  Sharswood,  Blackst.  Comm.  471. 

In  American  Law.  A  writ  used  to  sell 
lands  mortgaged,  after  a  judgment  has  been 
obtained  by  the  mortgagee,  or  his  assignee, 
against  the  mortgagor,  under  a  peculiar  pro- 


LEVATO  VELO 


34 


L'iCX  FORI 


ceeding  authorized  by  statute.  3  Bouvier, 
Inst.  n.  3396. 

LEVATO  VELO  (Lat.).  An  expression 
used  in  the  Roman  law,  Code,  11.  4.  5,  and 
applied  to  the  trial  of  -vrreck  and  salvage. 
Commentators  disagree  about  the  origin  of 
the  expression ;  but  all  agree  that  its  general 
meaning  is  that  these  causes  shall  be  heard 
summarily.  The  most  probable  solution  is 
that  it  refers  to  the  place  where  causes  were 
heard.  A  sail  was  spread  before  the  door 
and  officers  employed  to  keep  strangers  from 
the  tribunal.  When  these  causes  were  heard, 
this  sail  was  raised,  and  suitors  came  directly 
to  the  court,  and  their  causes  were  heard 
immediately.  As  applied  to  maritime  courts, 
its  meaning  is  that  causes  should  be  heard 
without  delay.  These  causes  require  de- 
spatch, and  a  delay  amounts  practically  to  a 
denial  of  justice.  Emerigon,  Des  Assurances, 
c.  26,  sect.  3. 

LEVIR.  A  husband's  brother.  Vicat, 
Voc.  Jur. 

LEVITICAL  DEGREES.  Those  de- 
grees of  kindred,  set  forth  in  the  eighteenth 
chapter  of  Leviticus,  within  which  persons 
are  prohibited  to  marry. 

LEVY.  To  raise.  Webster,  Diet.  To 
levy  a  nuisance,  i.e.  to  raise  or  do  a  nuisance, 
9  Coke,  55  ;  to  levy  a  fine,  i.  e.  to  raise  or 
acknowledge  a  jine,  2  Sharswood,  Blackst. 
Comm.  357  ;  1  Stephen,  Comm.  236  ;  to  levy 
a  tax,  i.e.  to  raise  or  collect  a  tax  ;  to  levy 
war,  i.e.  to  raise  or  begin  war,  to  take  arms 
for  attack,  4  Sharswood,  Blackst.  Comm.  81; 
to  levy  an  execution,  i.e.  to  raise  or  levy  so 
much  money  on  execution.    Reg.  Orig.  298. 

In  Practice.  A  seizure ;  the  raising  of 
the  money  for  which  an  execution  has  been 
issued. 

In  order  to  make  a  valid  levy  on  personal 
property,  the  sheriff  must  have  it  within  his 
power  and  control,  or  at  least  within  his 
view ;  and  if,  having  it  so,  he  makes  a  levy 
upon  it,  it  will  be  good  if  followed  up  after- 
wards within  a  reasonable  time  by  his  tak- 
ing possession  in  such  manner  as  to  apprize 
everybody  of  the  fact  of  its  having  been  taken 
into  execution.  3  Rawle,  Penn.  405,  406 ; 
1  Whart.  Penn.  377  ;  2  Serg.  &  R.  Penn.  142; 
1  Wash.  C.  C.  29.  The  usual  mode  of  mak- 
ing levy  upon  real  estate  is  to  describe  the 
land  which  has  been  seized  under  the  execu- 
tion, by  metes  and  bounds,  as  in  a  deed  of 
conveyance.    3  Bouvier,  Inst.  n.  3391. 

It  is  a  general  rule  that  when  a  sufficient 
levy  has  been  made  the  officer  cannot  make 
a  second.  12  Johns.  N.  Y.  208;  8  Cow. 
N.Y.  192. 

LEVYING  WAR.    In  Criminal  Law. 

The  assembling  of  a  body  of  men  fv)r  tlic 
purpose  of  effecting  by  force  a  treasonable 
object ;  and  all  who  perform  any  part,  how- 
ever minute,  or  however  remote  from  the 
scene  of  action,  and  who  are  leagued  in  the 
general  conspiracy,  are  considered  as  engaged 
m  levying  war,  within  the  meaning  of  the 


constitution.  4  Cranch,  473,  474;  Const,  art. 
3,  s.  3.  See  Treason  ;  Fries,  Trial,  Pamphl. 
This  is  a  technical  term,  borrowed  from  the 
English  law,  and  its  meaning  is  the  same  as 
it  is  when  used  in  stat.  25  Ed.  III.  4  Cranch, 
471 ;  U.  S.  m.  Fries,  Pamphl.  167  ;  Hall,  Am. 
Law  Jour.  351 ;  Burr's  Trial ;  1  East,  PI.  Cr. 
62-77;  Alison,  Crim.  Law  of  Scotl.  606;  9 
Carr.  &  P.  129. 

LEX  (Lat.).  The  law.  A  law  for  the 
government  of  mankind  in  society.  Among 
the  ancient  Romans  this  word  was  frequently 
used  as  synonymous  with  right,  jus.  When 
put  absolutely,  it  means  the  Law  of  the 
Twelve  Tables. 

LEX  FALCIDIA.    See  Falcidian  Law. 

LEX  FORI  (Lat.  the  law  of  the  forum). 
The  law  of  the  country,  to  the  tribunal  of 
which  appeal  is  made.  5  Clark  &  F.  Hou. 
L.  1. 

2.  The  forms  of  remedies,  modes  of  pro- 
ceeding, and  execution  of  judgments  are  to  be 
regulated  solely  and  exclusively  by  the  laws 
of  the  place  where  the  action  is  instituted.  8 
Clark  &  F.  Hou.  L.  121;  11  Mees.  &  W. 
Exch.  877  ;  10  Barnew.  &  C.  903  ;  5  La.  295  ; 
2  Rand.  Va.  303  ;  6  Humphr.  Tenn.  45  •  2 
Ga.  158 ;  13  N.  H.  321 ;  24  Barb.  N.  Y.  68 ; 

4  Zabr.  N.  J.  333  ;  9  Gill,  Md.  1 ;  17  Penn. 
St.  91 ;  18  Ala.  n.  s.  248 ;  4  McLean,  C.  C 
540 ;  5  How.  83  ;  11  Ind.  385  ;  33  Miss.  423. 

The  lex  fori  is  to  decide  who  are  proper 
parties  to  a  suit.  11  Ind.  485  ;  33  Miss.  423 ; 
Merlin,  Rep.  Etrang.  §  II.;  Westlake,  Priv. 
Int.  Law,  121.  Generally,  all  foreigners  who 
sue  in  their  own  name,  including  sovereigns, 
unless  specially  disabled,  may  sue.  2  Bligh, 
N.  s.  51;  2  Sim.  Ch.  94;  4  Russ.  Ch.  225  ; 
1  Dowl.  &  C.  169.  Foreign  corporations  may 
sue,  8  Barnew.  &  C.  427  ;  9  Ves.  Ch.  347 ;  4 
Johns.  Ch.  N.  Y.  370;  13  Pet.  519,  and  be 
sued,  when  they  have  property  within  the 
jurisdiction.  9  N.  H.  394;  3  Mete.  Mass. 
420 ;  16  Beav.  Rolls,  287. 

3.  The  assignee  of  a  debt  or  chose  in  action 
other  than  a  negotiable  instrument  may  not 
sue  in  his  own  name,  6  Maule  &  S.  99 ;  6 
Binn.  Penn.  374;  7  Serg.  &  R.  Penn.  483;  9 
Mass.  357  ;  13  id.  146 ;  2  Johns.  N.  Y.  342 ; 

5  Johns.  Ch.  N.  Y.  60 ;  4  Conn.  312 ;  9  Am. 
Jur.  42;  11  id.  101,  M'hether  a  voluntary  or 
an  involuntary  assignee,  6  Maule  &  S.  126; 
4  Johns.  Ch.  N.  Y.  450;  33  Miss.  423;  1 
Curt.  C.  C.  168 ;  but  see  6  N.  Y.  320 ;  4  Zabr. 
N.  J.  270  ;  Conflict  of  Law  s  ;  nor  a  foreign 
executor  or  administrator,  by  virtue  of  his 
appointment  by  a  foreign  power.  24  Ga. 
356;  15  Tex.  463  ;  1  Humphr.  Tenn.  54;  10 
Cush.  Mass.  172;  2  Jones,  Eq.  No.  C.  276;  10 
Rich.  So.  C.  393  ;  3  Sneed,  Tenn.  55  ;  7  Ind. 
211.    But  see  16  Ark.  28 ;  4  McLean,  C.  C.  4. 

The  authority  of  a  guardian  to  sue  is  local, 
and  restricted  tx)  the  jurisdiction  where 
granted.  9  Rich.  Eq.  So.  C.  311.  See30Ala. 
N.  s.  613  ;  Letters  Testamentary. 

4.  The  lex  fori  governs  as  to  the  nature,, 
extent,  and  character  of  the  remedy,  17  Conn. 
500 ;  37  N.  II.  86 ;  2  Pat.  &  H.  Va.  144,  aa 


LEX  FORI 


35 


LEX  LOCI 


in  case  of  instruments  considered  sealed 
where  made,  but  not  in  the  country  where 
sued  upon.  4  Cow.  N.  Y.  508  ;  5  Johns.  N. 
Y.  239 ;  2  Caines,  N.  Y.  302 ;  1  Bos.  &  P. 
360 ;  8  Pet.  361 ;  3  Gill  &  J.  Md.  234 ;  3 
Conn.  523  ;  4  id.  47,  49  ;  8  How.  451 ;  9  Mo. 
56,  157. 

Arrest  and  imprisonment  may  be  allowed 
by  the  lex  ybrt,  though  they  are  not  by  the 
lex  loci  contractus.  2  East,  453 ;  2  Burr. 
1089 ;  5  Clark  &  F.  Hou.  L.  1 ;  1  Barnew. 

6  Ad.  284 ;  14  Johns.  N.  Y.  346  ;  3  Mas.  C. 
C.  88  ;  5  id.  378  ;  1  Pet.  317 ;  1  Wash.  C.  C. 
376  ;  10  Wheat.  1. 

For  the  law  of  interest  as  effected  by  the 
lex  fori,  see  Conflict  of  Laws.  For  the  law 
in  relation  to  damages,  see  Damages. 

The  forms  of  judgment  and  execution  are 
to  be  determined  by  the  lex  fori.  3  Mas.  C. 
C.  88  ;  5  id.  378  ;  4  Conn.  47  ;  14  Pet.  67. 

The  lex  fori  decides  as  to  deprivation  of 
remedy. 

5.  Where  a  debt  is  discharged  by  the  law 
of  the  place  creating  it,  such  discharge  will 
amount  to  a  discharge  everywhere.  5  East, 
124 ;  12  Wheat.  360 ;  1  W.  Blackst.  258  ;  13 
Mass.  1 ;  16  Mart.  La.  297 ;  6  Rob.  La.  15  ; 

7  Cush.  Mass.  15;  1  Buck,  57,  61 ;  1  Woodb. 
&  M.  C.  C.  115  ;  23  Wend.  N.  Y.  87;  5  Binn. 
Penn.  332 ;  16  Johns.  N.  Y.  233  ;  7  Johns. 
Ch.  N.  Y.  297  ;  16  Me.  206.  It  must  be  a 
discharge  from  the  debt,  and  not  an  exemp- 
tion from  the  effect  of  particular  means  of 
enforcing  the  remedy.  5  Binn.  Penn.  381 ; 
14  Johns.  N.  Y.  346 ;  10  id.  300;  8  Barnew. 
&  C.  479 ;  1  Atk.  Ch.  255 ;  2  H.  Blackst. 
553  ;  7  Me.  337 ;  11  Mart.  La.  730  ;  15  Mass. 
419;  5  Mas.  C.  C.  378. 

Under  the  constitution  of  the  United  States, 
the  insolvent  laws  of  the  various  states  which 
purport  to  discharge  the  debt  are,  at  most, 
allowed  that  effect  only  as  against  their  own 
citizens ;  as  between  their  own  citizens  and 
strangers,  where  the  claims  of  the  latter  have 
not  been  proved,  they  only  work  a  destruc- 
tion in  the  remedy,  5  Mas.  C.  C.  375 ;  4  Conn. 
47 ;  14  Pet.  07  ;  12  Wheat.  213,  358,  369 ; 

8  Pick.  Mass.  194  ;  3  Iowa,  299 ;  at  least,  if 
there  be  no  provision  requiring  performance 
in  the  state  where  the  discharge  is  obtained. 

9  Conn.  314;  13  Mass.  18,  20;  7  Johns.  Ch. 
297;  1  Breese,  111.  16;  1  South.  N.J.  192;  4 
Gill  &  J.  Md.  509;  2  Blackf.  Ind.  366.  If 
claims  are  proved,  they  may  work  a  discharge. 
3  Johns.  Ch.  N.  Y.  435  ;  26  Wend.  N.  Y.  43  ; 
3  Pet.  411 ;  2  How.  202 ;  5  id.  295,  299  ;  8 
Mete.  Mass.  129  ;  7  Cush.  Mass.  45.  See  In- 
solvency. 

6.  Statutes  of  limitation  affect  the  remedy 
only  ;  and  hence  the  lex  fori  will  be  the  gov- 
erning law.  6  Dow,  Pari.  Cas.  116  ;  5  Clark 
&  F.  Hou.  L.  1-16;  8  id.  121,  140;  11 
Pick.  Mass.  36 ;  7  Ind.  91 ;  2  Paine,  C.  C. 
437 ;  36  Me.  362.  See  9  B.  Monr.  Ky.  518 ; 
16  Ohio,  145.  But  these  statutes  restrict  the 
remedy  for  citizens  and  strangers  alike.  10 
Barnew.  &  C.  903  ;  2  Bingh.  n.  c  202,  216  ; 
5  Clark  &  F.  Hou.  L.  1 ;  3  Johns.  Ch.  N. 
Y.  190  ;  6  Wend.  N.  Y.  475  ;  9  Mart.  La.  526. 


j  For  the  effect  of  a  discharge  by  statutes  of 
I  limitation,  where  they  are  so  drawn  as  to 
j  effect  a  discharge,  in  a  foreign  state,  see  Story, 
Confl.  Laws,  ^  582;  11  Wheat.  361;  2  Bingh. 
I  n.  c.  202;  6  Rob.  La.  15.    The  restriction  ap- 
I  plies  to  a  suit  on  a  foreign  judgment.  5  Clark 
&  F.  Hou.  L.  1-21;  13  Pet.  312;  2  Barnew. 
!  &  Ad.  413  ;  4  Cow.  N.  Y.  528,  n.  10  ;  1  Gall. 
C.  C.  371  ;  9  How.  407. 

f .  The  right  of  set-off  is  to  be  determined 
by  the  lex  fori.  2  N.  H.  296 ;  3  Johns.  N. 
Y.  203.  Liens,  implied  hypothecations,  and 
priorities  of  claim  generally,  are  matters  of 
remedy.  12  La.  Ann.  289 ;  Story,  Confl.  Laws, 
§  575.  A  prescriptive  title  to  personal  pro- 
perty acquired  in  a  former  domicil  will  be 
respected  bv  the  lex  fori.  17  Ves.  Ch.  88  ; 
3  Hen.  &  M.  Va.  57;  5  Cranch,  358;  11 
Wheat.  361.    But  see  Ambl.  113. 

Questions  of  the  admissibility  and  effect  of 
evidence  are  to  be  determined  by  the  lex  fori. 
12  La.  Ann.  410  ;  2  Bradf.  Surr.  N.  Y.  339. 
See  Evidence. 

The  lex  loci  is  presumed  to  be  that  of  the 
forum  till  the  contrary  is  shown,  4  Iowa, 
464;  40  Me.  247;  6  N.  Y.  447;  13  Md.  392; 
12  La.  Ann.  673  ;  9  Gill,  Md.  1  ;  3  Bosw.  N. 
Y.  333 ;  and  also  the  lex  rei  sitae.  1  Harr.  & 
J.  Md.  687.  See  Foreign  Laws;  Authenti- 
cation. 

LEX  LOCI  (Lat.).  The  law  of  the  place. 
This  may  be  either  lex  loci  contractus  aid 
actus  (the  law  of  the  place  of  making  the  con- 
tract or  of  the  thing  done);  lex  loci  rei  sites 
(the  law  of  the  place  where  the  thing  is  situ- 
ated) ;  lex  loci  domicilii  (the  law  of  the  place 
of  domicil). 

In  general,  however,  lex  loci  is  only  used 
for  lex  loci  contractus  aut  actus. 

1.  Contracts.  It  is  a  general  principle 
applying  to  contracts  made,  rights  acquired, 
or  acts  done  relative  to  personal  property,  that 
the  law  of  the  place  of  making  the  contract, 
or  doing  the  act,  is  to  govern  it  and  deter- 
mine its  validity  or  invalidit}^,  as  well  as  the 
rights  of  parties  under  it  in  all  matters 
touching  the  modes  of  execution  and  authen- 
tication of  the  form  or  instrument  of  contract ; 
and  also  in  relation  to  the  use  and  meaning 
of  the  language  in  which  it  is  expressed,  the 
construction  and  interpretation  of  it,  the  legal 
duties  and  obligations  imposed  by  it,  aiid  the 
legal  rights  and  immunities  acquired  under 
it.  1  Bingh.  N.  c.  151,  159  ;  8  Clark  &  F. 
Hou.  L.  121;  1  Pet.  317;  13  id.  378,  379; 
2  N.  II.  42;  5  id.  401 ;  13  id.  321 ;  6  Yt.  102; 
2  Mass.  88,  89  ;  7  Cush.  Mass.  30  :  3  Conn. 
253,  472;  14iW.  583;  22  Barb.  N.  Y.  118 :  17 
Penn.  St.  91  ;  2  Harr.  &  J.  Md.  193  ;  3  Gill 
&  J.  Md.  234  ;  9  Gill,  Md.  1 ;  3  Dev.  No.  C. 
161 ;  8  Mart.  La.  95  ;  4  Ohio  St.  241 ;  14  B. 
Monr.  Ky.  556 ;  19  Mo.  84 :  22  id.  550  ;  4 
Fla.  404;  23  Miss.  42;  12  La.  Ann.  007:  3 
Stor.  C.  C.  405  ;  Ware,  Dist.  Ct.  402  ;  Storv, 
Confl.  Laws,  ^  242  et  seq.;  Bayley,  Bills,  5th 
ed.  78  ;  Parsons,  Notes  and  Bills;  2  Kent, 
Comm.  Lect.  39. 

2.  This  principle,  though  general,  does  not, 
however,  apply  where  the  parties  at  the  time 


LEX  LOCI 


36 


LEX  LOCI 


cr  entering  into  the  contract  had  the  law  of 
another  kingdom  in  view,  or  where  the  lex  loci 
is  in  itself  unjust,  contra  bonos  mores  (against 
good  morals),  or  contrary  to  the  public  law 
of  the  state,  as  regarding  the  interests  of 
religion  or  morality,  or  the  general  well-being 
of  society.  Ferguson,  Marr.  &  D.  385;  2 
Burr.  1077;  9N.H.271;  6  Pet.  172  ;  1  How. 
169  ;  5  id.  295  ;  8  Paige,  Ch.  N.  Y.  261 ;  17 
Johns.  N.  Y.  511 ;  13  Mass.  23 ;  5  Clark  &  F. 
Hou.  L.  11,  13;  8  id.  121;  6  Whart.  331; 
2  Mete.  Mass.  8  ;  IB.  Monr.  Ky.  32  ;  5  Ired. 
No.  C.  590;  2  Kent,  Comm.  458;  Story, 
Confl.  Laws,  ^  280.  And  where  the  place  of 
performance  is  different  from  the  locus  con- 
tractus, it  is  presumed  the  parties  had  the 
law  of  the  former  in  mind.    See  ^  lO. 

3.  The  validity  or  invalidity  of  a  contract 
as  affected  by  the  lex  loci  may  depend  upon 
the  capacity  of  the  parties  or  the  legality  of 
the  act  to  be  done. 

The  capacity  of  the  parties  as  affected  by 
questions  of  minority  or  majority,  incapa- 
cities incident  to  coverture,  guardianship, 
emancipation,  and  other  personal  qualities  or 
disabilities,  is  to  be  decided  by  the  law  of 
the  place  of  making  the  contract.  Story, 
Confl.  Laws,  ^  103;  1  Grant,  Cas.  Penn.  51. 

The  question  of  disability  to  make  a  con- 
tract on  account  of  infancy  is  to  be  decided 
by  the  lex  loci.  3  Esp.  163,  597 ;  17  Mart.  La. 
507;  8  Johns.  N.Y.  189;  1  Grant,  Cas.  Penn. 
51;  2  Kent,  Comm.  233. 

So,  also,  as  to  contracts  made  by  married 
women.  Al.  72;  8  Johns.  N.Y.  189;  13  La. 
177;  5  East,  31;  2  Parsons,  Contr.  84,  111. 

4.  Personal  disqualifications  not  arising 
from  the  law  of  nature,  but  from  positive 
law,  and  especially  such  as  are  penal,  are 
strictly  territorial,  and  are  not  to  be  enforced 
in  any  country  other  than  that  where  they 
originate.  Story,  Confl.  Laws,  91,  92,  104, 
620-625  ;  2  Kent,  Comm.  459. 

Slavery  works  no  incapacity  in  those  coun- 
tries or  states  where  its  existence  is  not  recog- 
nized by  positive  law,  and  the  lex  loci  con- 
tractus is  to  determine  capacity  in  this  respect. 
20  Howell,  St.  Trials,  1-15  ;  Dowl.  &  11.  679; 
Coke,  Litt.  79  h;  17  Mart.  La.  598;  9  Am. 
Jur.  490;  4  Wash.  C.  C.  390;  7  Scrg.  &  II. 
Penn.  378 ;  Story,  Confl.  Laws,  ^  96  a. 

Natural  disabilities,  such  as  insanity,  im- 
becility, etc.,  are  everywhere  recognized,  so 
that  the  question  whether  they  are  controlled 
by  the  lex  loci  or  lex  domicilii  seems  to  be 
theoretic  rather  than  practical.  On  principle, 
there  seems  to  be  no  good  reason  why  they 
should  come  under  a  (lifferent  rule  from  the 
positive  disabilities. 

5.  The  legality  or  illegality  of  the  contract 
will  be  (IctermiiKMl  by  the  lex  loci,  unless  it 
affects  injuriously  the  public  morals  or  rights, 
ccnitravenes  the  policy  or  viohites  a  public 
law  of  the  country  where  it  is  sought  to  be 
enforced.    2  Kent,  Comm.  458. 

A  contract  ilh^gal  by  the  law  of  the  place 
of  its  making  and  perfornuincc  will  g(>nerally 
be  held  HO  everywhere.  1  (JmII.  C.  C.  375;  2 
Mass,  88,  89  ;  2  N.  11.  42 ;  5  id.  401 ;  2  Mas. 


C.  C.  459  ;  13  Pet.  65,  78 ;  2  Johns.  Cas.  N. 
Y.  355 :  1  Nott  &  M'C.  So.  C.  173  ;  2  Harr. 
&  J.  Md.  193,  221,  225  ;  17  III.  328 ;  16  Tex. 
344 ;  2  Burr.  1077 ;  7  Term,  237  ;  2  Kent, 
Comm.  458 ;  Henry,  Foreign  Law,  37,  50 ; 
Story,  Confl.  Laws,  §  243. 

An  exception  is  said  to  exist  in  case  of  con- 
tracts made  in  violation  of  the  revenue  laws. 
Cas.  temp.  Hardw.  85  ;  2  C.  Rob.  Adm.  6 ;  1 
Dougl.  251 ;  1  Cowp.  341  ;  2Crompt.  M.  &  R. 
Exch.  311 ;  2  Kent,  Comm.  458. 

6.  A  contract  legal  by  the  lex  loci  will  be 
so  everywhere,  13  La.  Ann.  117;  unless — 

It  is  injurious  to  public  rights  or  morals, 

3  Burr.  1568  :  Cowp.  37  ;  2  Carr.  &  P.  347; 

4  Barnew.  &  Aid.  650 ;  1  Bos.  &  P.  340 ;  6 
Mass.  379  ;  2  Harr.  &  J.  Md.  193  ;  or  contra- 
venes the  policy.  2  Bingh.  314 ;  2  Sim.  Ch. 
194 ;  1  Turn.  &  R.  299  ;  1  Dowl.  &  C.  342 ; 

16  Johns.  N.  Y.  438;  5  Harr.  Del.  31  ;  1 
Green,  Ch.  N.  J.  326;  17  Ga.  253.  In  this 
connection,  it  is  held  generally  that  the  claims 
of  citizens  are  to  be  preferred  to  those  of 
foreigners  in  case  of  a  conflict  of  rights.  As- 
signments, under  the  insolvent  laws  of  a 
foreign  state,  are  usually  held  inoperative  as 
against  claims  in  the  state  in  regard  to  per- 
sonal property  in  the  jurisdiction  of  the  lex 
fori.  1  Green,  Ch.  N.  J.  326;  5  Harr.  Del. 
31;  32  Miss.  246;  13  La.  Ann. 280;  21  Barb. 
N.  Y.  198 ;  but  see  12  Md.  54 ;  13  id.  392. 
Or  violates  a  positive  law  of  the  lex  fori.  The 
application  of  the  lex  loci  is  a  matter  of 
comity ;  and  that  law  must,  in  all  cases,  yield 
to  the  positive  law  of  the  place  of  seeking  the 
remedy.  13  Mass.  6;  18  Pick.  Mass.  193; 
1  Green,  Ch.  N.  J.  326  ;  12  Barb.  N.  Y.  631 ; 

17  Miss.  247.    See  10  N.  Y.  53. 

1'.  The  interpretation  of  contracts  is  to  be 
governed  by  the  law  of  the  countr.y  where 
the  contract  was  made.  Dougl.  201,  207  ;  2 
Barnew.  &  Ad.  746;  6  Term,  224;  1  Bingh. 
N.  c.  151-159;  1  Barnew.  &  Ad.  284;  10 
Barnew.  &  C.  903  ;  2  Hagg.  Cons.  60,  61 ;  8 
Pet.  361  ;  13  id.  378  ;  30  Ala.  n.  s.  253  ;  4 
McLean,  C.  C.  540  ;  2  Sharswood,  Blackst. 
Comm.  141;  Story,  Ccnfl.  Laws,  ^  270; 
Chitty,  Bills,  474. 

The  lex  loci  governs  as  to  the  formalities 
and  authentication  requisite  to  the  valid  ex- 
ecution of  contracts.  Story,  Confl.  Laws,  H 
123,260;  11  La.  14;  2  Hill,  N.  Y.  227  ;  37 
N.  II.  86 ;  30  Vt.  42.  But  in  proving  the 
existence  of,  and  seeking  remedies  for,  the 
breach,  as  well  as  in  all  questions  relating 
to  the  competency  of  witnesses,  course  of  pro- 
cedure, etc.,  the  lex  fori  must  govern.  11 
Ind.  385;  9  Gill,  Md.  1  ;  17  Penn.  St.  91; 

18  Ala.  N.  s.  248  ;  4  McLean,  C.  C.  540;  3 
id.  545;  5  How.  83;  6  Ilumphr.  Tenn.  75; 
17  Conn.  500;  9  Mo.  56,  157;  4  Gilm.  Va. 
521  ;  26  Barb.  N.Y.  177  ;  Story,  Confl.  Laws, 

567,  634. 

8.  'J'he  lex  loci  governs  as  to  the  obligation 
and  c(mstructi(m  of  contracts,  11  Pick.  Mass. 
32;  8  Vt.  325;  12  N.  II.  520;  12  Wheat. 
213;  2  Keen,  293;  1  Bos.  &  P.  138;  12 
Wend.  N.  Y.  439;  22  Barb.  N.Y.  118;  13 
Mart.  La.  202  ;  14  B.  Monr.  Ky.  556 ;  16 


LEX  LOCI 


37 


LEX  LOCI 


Miss.  798,  unless,  from  their  tenor,  it  must  be 
presumed  they  were  entered  into  with  a  view 
to  the  laws  of  some  other  state.  13  Mass.  1. 
This  presumption  arises  where  the  phice  of 
performance  is  different  from  the  phice  of 
making.  31  Eng.  L.  &  Eq.  433  ;  17  Johns. 
N.  Y.  511;  13  Pet.  65;  9  La.  Ann.  185;  13 
Mass.  23  ;  1  How.  169. 

An  obligation  may  be  incurred  under  the 
lex  loci  which  there  is  no  means  of  enforcing 
in  that  country  and  which  may  be  enforced 
in  another  country.    1  Barnew.  &  Ad.  284 ; 

2  Cow.  N.  Y.  626  ;  2  Johns.  N.  Y.  345  ;  1  Pet. 
317;  1  Wash.  C.C.  376;  10  Wheat.  1 ;  Henry, 
Foreign  Law,  81-86  ;  Story,  Confl.  Laws,  § 
671. 

A  lien  or  privilege  created  by  the  lex  loci 
will  generally  be  enforced  wherever  the  pro- 
perty may  be  found,  8  Mart.  95 ;  5  La.  295 ; 
Story,  Confl.  Laws,  322,  402;  but  not  neces- 
sarily in  preference  to  claims  arising  under 
the  lex  fori.  5  Cranch,  289,  298  ;  12  Wheat. 
36L 

9.  A  discharge  from  the  performance  of  a 
contract  under  the  lex  loci  is  a  discharge 
everywhere.  5  Mass.  509;  13  id.  1,  7;  7 
Cush.  Mass.  15  ;  4  Wheat.  122,  209 ;  12  id. 
213;  2  Mas.  C.  C.  161 ;  2  Blackf.  Ind.  394; 

3  Caines,  N.  Y  154;  24  Wend.  N.  Y.  43;  2 
Kent,  Comm.  394.  A  distinction  is  to  be 
taken  between  discharging  a  contract  and 
taking  aw^ay  the  remedy  for  a  breach.  3 
Mas.  C.  C.  88 ;  5  id.  378 ;  4  Conn.  47 ;  14 
Pet.  67;  12  Wheat.  347;  8  Pick.  Mass.  194; 
9  Conn.  314;  2  Blackf.  Ind.  394;  9  N.  H. 
478. 

A  series  of  conflicting  decisions  has  arisen 
in  the  United  States  courts,  and  the  courts  of 
the  various  states,  upon  the  insolvent  laws  of 
the  various  states.  The  principle  deducible 
from  the  majority  of  the  cases  would  seem  to 
be,  that  the  insolvent  laws  of  most  states  must 
be  considered  only  as  affecting  the  remedy  in 
the  courts  of  the  state  w^here  obtained,  as  be- 
tween citizens  and  foreigners,  but  both  as  a 
discharge  and  deprivation  of  remedy,  as  be- 
tween citizens.  5  How.  295;  12  Mete.  Mass.  I 
470 ;  26  Me.  110  ;  1  Woodb.  &  M.  C.  C.  115 ; 
2  Kent,  Comm.  393.    See  3  Gray,  Mass.  551. 

Statutes  of  limitations  apply  to  the  remedy, 
but  do  not  discharge  the  debt.  11  Wheat. 
361;  9  How.  407;  £0  Pick.  Mass.  310;  11 
id.  36;  17  Mass.  55;  2  Paine,  C.  C.  437;  2 
Mas.  C.  C.  751 ;  6  N.  H.  557;  6  Vt.  127 ;  8 
Port.  (Ala.)  84.  But  see  5  Clark  &  F.  Hou. 
L.  1-17;  9  B.  Monr.  Ky.  513;  2  Tex.  414. 
See  Limitations,  Statute  of. 

10.  A  question  of  some  difficulty  often 
arises  as  to  where  the  locus  contractus  is,  in 
the  case  of  contracts  made  partly  in  one  coun- 
try or  state  and  partly  in  another,  or  made  in 
one  state  or  country  to  be  performed  in  an- 
other, or  where  the  contract  in  question  is 
accessory  to  a  principal  contract. 

Where  a  contract  is  made  partly  in  one 
country  and  partly  in  another,  it  is  a  contract 
of  the  place  where  the  assent  of  the  parties 
first  concurs  and  becomes  complete.  2  Par- 
sons, Contr.  94;  27  N.  H.  217,  244;  11  Ired.  i 


No.  C.  303;  3  Strobh.  So.  C.  27;  1  Gray, 
Mass.  336. 

As  between  the  place  of  making  and  tho 
place  of  performance,  where  a  place  of  per- 
formance is  specified,  the  law  of  the  place  of 
performance  governs  as  to  obligation,  inter- 
pretation, etc.  5  East,  124 ;  3  Caines,  N.  Y, 
154;  1  Gall.  C.  C.  371;  12  Vt.  648;  12  Pet. 
456 :  13  id.  65 ;  1  How.  182 ;  8  Paige,  Ch. 
N.  Y.  261 ;  8  Johns.  N.  Y.  189  ;  17  id.  511  ; 
5  McLean,  C.  C.  448  ;  27  Vt.  8  ;  14  Ark.  189; 
7  B.  Monr.  Ky.  575  ;  8  id.  306  ;  9  Mo.  56, 
157;  4  Gilm.  Va.  521 ;  21  Ga.  135  ;  30  Miss. 
59;  7  Ohio,  134;  4  Mich.  450  ;  2  Kent,  Comm. 
459 ;  Story,  Confl.  Law^s,  g  233.  But  see  11 
Tex.  54. 

Where  the  contract  is  to  be  performed 
generally,  the  law  of  the  place  of  making 
governs.  2  Barnew.  &  Aid.  301 ;  5  Clark  & 
F.  Hou.  L.  1,  12;  1  Barnew.  &  C.  16;  1 
Mete.  Mass.  82 ;  6  Cranch,  221 ;  6  Ired.  No. 
C.  107 ;  17  Miss.  220. 

If  the  contract  is  to  be  performed  partly  in 
one  state  and  partly  in  another,  it  will  be 
affected  by  the  law  of  both  states.  14  B. 
Monr.  Ky.  556. 

In  cases  of  indorsement  of  negotiable  paper, 
every  indorsement  is  a  new  contract,  and  the 
place  of  each  indorsement  is  its  locus  contrac- 
tus. 2  Kent,  Comm.  460 ;  Prec.  in  Chanc. 
128 ;  17  Johns.  N.  Y.  511 ;  9  Barnew.  &  C. 
208  ;  13  Mass.  1 ;  25  Ala.  n.  s.  139  ;  19  N.  Y. 
436 ;  17  Tex.  102. 

The  place  of  payment  is  the  locus  contrac- 
tus, however,  as  between  indorsee  find  drawer. 
See  19  N.  Y.  436. 

The  place  of  acceptance  of  a  draft  is  re- 
garded as  the  locus  contractus.  3  Gill,  Md. 
430 ;  1  Q.  B.  43  ;  1  Cow.  N.  Y.  103 ;  4  Pet. 
Ill;  12  Wend.  N.Y.  439;  6Du.  N.Y.  34;  8 
Mete.  Mass.  107  ;  4  Dev.  No.  C.  124 ;  6  Mc- 
Lean, C.  C.  622 ;  9  Cush.  Mass.  46  ;  13  N.  Y. 
290;  18  Conn.  138;  17  Miss.  220.  See  Pro- 
missory Notes  ;  Bills  of  Exchange. 

11.  The  lex  loci  is  presumed  to  be  the  same 
as  that  of  the  forum,  unless  shown  to  be  other- 
i  wase.    46  Me.  247 ;  13  La.  Ann.  673  :  13 
Md.  392;  9  Gill,  Md.  1;  4  Iowa,  464.  But 
see  1  Iowa,  388. 

Torts.  Damages  for  the  commission  of  a 
tortious  act  are  to  be  measured  by  the  law  of 
the  place  where  the  act  is  done.  1  P.  Will. 
395 ;  1  Pet.  C.  C.  225 ;  Story,  Confl.  Laws, 
§  307. 

Marriage,  if  valid  where  contracted,  is  valid 
every w^here,  unless  where  it  works  some  mani- 
fest injustice,  is  contra  honos  mores,  or  repug- 
nant to  the  settled  principles  and  policy  of 
the  laws  of  the  country  where  it  is  sought  to 
be  enforced. 

This  is  understood  to  be  the  doctrine  in 
England,  Buller,  Nisi  P.  114;  2  Hacsx. 
Cons.  444,  and  note;  1  Yes.  Ch.  159:^^3 
Stark.  178;  9  Bligh,  Hou.  L.  129;  29  Am. 
Law  Jour.  97  ;  23  Bost.  Law  Rep.  741 ;  even 
though  the  parties  may  have  left  their  domi- 
cil  for  the  purpose  of  evading  the  statute. 
I  The  exceptions  to  the  validity  of  a  foreign 
I  marriage  are  understood  to  be,  '"n  the  United 


LEX  LONGOBARDORUM  38 


LEX  REI  SITJE 


States,  such  as  are  regarded  by  all  Christian 
nations  as  contra  bonos  mores,  as  mxturally 
incestuous,  polygamous,  and  the  like,  16 
Mass.  157 ;  1  Pick.  Mass.  596 ;  8  id.  433  ;  10 
Mete.  451 ;  1  Yerg.  Tenn.  110 ;  2  Ired.  No. 
C.  346 ;  5  Humphr.  Tenn.  13  ;  8  Ala.  n.  s. 
48 ;  3  A.  K.  Marsh.  Ky.  368 ;  10  Watts,  Penn. 
108  ;  2  Blatchf.  C.  C.  51 ;  2  Gilm.  Va.  322, 
5  J.  J.  Marsh.  Ky.  460 ;  4  Johns.  Ch.  343  , 
2  Parsons,  Contr.  107  ;  while  marriages  valid 
by  the  lex  loci  are  sustained,  even  though 
incestuous  in  "the  lex  fori,  by  statute  provi- 
sions.   10  Mete.  Mass.  451. 

In  New  Hampshire,  the  exceptions  are  ad- 
mitted as  fully  as  in  England.    21  N.  H.  55. 

The  prevalent  American  doctrine  is  that 
a  marriage  valid  in  the  state  where  con- 
tracted is  good  everywhere,  even  if  prohibited 
by  the  lex  fori  or  domicilii.  But  this  is 
otherwise  by  statute  in  some  states,  and  de- 
cisions in  others.    Mass.  Gen.  Stat.  529. 

12.  As  laid  down  in  a  recent  decision,  the 
English  law  is  that  the  lex  loci,  without  regard 
to  any  question  of  fraudulent  evasion,  governs 
only  as  to  formalities,  but  if  in  its  essentials 
the  marriage  violates  the  lex  domicilii,  it  is 
void.  23  Bost.  Law  Rep.  741.  In  this  de- 
cision, the  distinction  taken  in  the  Massachu- 
setts cases  is  denied.  See,  also,Vaugh.302;  11 
Q.  B.  205  ;  4  Johns.  Ch.  N.  Y.  343  ;  21  N.  H. 
55.  This  decision  puts  marriages  on  the 
satne  footing  with  other  contracts,  except  in 
the  matter  of  avoiding  formalities  by  Scotch 
marriages.  This  law  is  certainly  open  to  the 
objection  of  respecting  the  form  more  highly 
than  the  substance  of  marriage. 

The  formalities  to  be  observed  are  those  of 
the  lex  loci,  if  any  mode  available  by  the  par- 
ties is  provided  by  that  law.  1  Ves.  157  ;  10 
.East,  282;  6  How.  550;  Bishop,  Marr.  &  D. 
I  138. 

13.  If  no  mode  is  provided,  the  formalities 
of  the  lex  domicilii  of  both  parties  may  be 
observed.  Bishop,  Marr.  &  D.  ^  134 ;  1  Sim. 
Ch.  361;  Rogers,  Eccl.  Law,  652;  Waddi- 
love,  Dig.  238  ;  11  Clark  &  F.  Hon.  L.  85,  152. 

But  the  lex  domicilii  governs  as  to  the 
rights,  duties,  and  obligations  arising  under 
a  marriage.    5  Barnew.  &  C.  438. 

A  marriage  invalid  where  contracted  is 
not  necessarily  so  elsewhere.  2  llagg.  Cons. 
389,  390,  423. 

Obtaining  divorces  is  governed  by  the  law 
of  the  domicil.    See  Domicil. 

The  law  of  all  acts  relating  to  real  property 
is  governed  by  the  lex  rci  sitce.  Taking  a 
mortgage  as  security  does  not,  however, 
divest  the  lex  loci  of  its  force.    See  Lex  Rei 

SiTiE. 

For  lex  domicilii,  see  Domicil. 

LEX  LONGOBARDORUM  (Lat.). 

The  nauK!  ol"  ai\  ancient  code  in  f()r(;e  among 
the  Ijombards.  Itcontains many  evidenttraces 
of  f(!udal  policy.  It  survived  the  destruction 
of  the  ancient  government  of  Lorn  hardy  ])y 
Charlemagne,  and  is  said  to  be  still  j)artially 
in  force  in  some  districsts  of  Italy. 

LEX  MERCATORIA  (Lat.).  That  sys- 


tem of  laws  which  is  adopted  by  all  commer- 
cial nations,  and  which,  therefore,  constitutes 
a  part  of  the  law  of  the  land.  See  Law  Mer- 
chant. 

LEX  REI  SIT-ffi  (Lat.).    The  law  of 

the  place  of  situation  of  the  thing. 

2.  It  is  the  universal  rule  of  the  common 
law  that  any  title  or  interest  in  land,  or  in 
other  real  estate,  can  only  be  acquired  or 
lost  agreeably  to  the  law  of  the  place  where 
the  same  is  situate,  1  Pick.  Mass.  81 ;  6  id. 
286  ;  I  Paige,  Ch.  N.  Y.  220 ;  2  Ohio,  124 ;  1 
H.  Blackst.  665  ;  2  Rose,  Bank.  29  ;  2  Ves. 
&  B.  Ch.  Ir.  130;  5  Barnew.  &  C.  438;  6 
Madd.  Ch.  16  ;  1  Younge  &  C.  Exch.  114 ;  7 
Cranch,  115  ;  10  Wheat.  192,  465  ;  6  nl.  597; 
4  Cow.  N.Y.  510,  527;  4  Johns.  Ch.  N.  Y.  460; 

1  Gill,  Md.  280;  6  Binn.  Penn.  559;  Story, 
Confl.  Laws,  ^  365,  428;  and  the  law  is  the 
same  in  this  respect  in  regard  to  all  methods 
whatever  of  transfer,  and  every  restraint  upon 
alienation.    12  Eng.  L.  &  Eq.  206. 

3.  The  lex  rei  sitce  governs  as  to  the  capa- 
city of  the  parties  to  any  transfer,  whether 
testamentary  or  inter  vivos,  as  affected  by 
questions  of  minority  or  majority,  17  Mart. 
569;  of  rights  arising  from  the  relation  of 
husband  and  wife.  Story,  Confl.  Laws,  §  454; 
9  Bligh,  Hou.  L.  127 ;  8  Paige,  Ch.  N.  Y. 
261  ;  2  Md.  297  ;  1  Miss.  281 ;  4  Iowa,  381 , 

3  Strobh.  So.  C.  562;  9  Rich.  Eq.  So.  C.  475 ; 
parent  and  child,  or  guardian  and  ward,  2 
Ves.  &  B.  Ch.  Ir.  127  ;  1  Johns.  Ch.  N.  Y. 
153;  4  Gill  &  J.  Md.  332;  4  Cow.  N.  Y.  529,  n. ; 
9  Rich.  Eq.  So.  C.  311 ;  14  B.  Monr.  Kv.  544; 
11  Ala.  N.s.  343;  18  Miss.  529;  but  see  7 
Paige,  Ch.  N.  Y.  236 ;  and  of  the  rights  and 
powers  of  executors  and  administrators, 
whether  the  property  be  real  or  personal,  2 
Ilamm.  124;  8  Clark  &  F.  Hou.  L.  112;  4 
Mees.  &  W.  Exch.  71.  192  ;  3  Q.  B.  498,  507; 

2  Sim.  &  S.  Ch.  284 ;  3  Cranch,  319 ;  5  Pet. 
518  ;  15  id.  1 ;  12  Wheat.  169  ;  2  N.  H.  291; 

4  Rand.  Va.  158 ;  2  Gill  &  J.  Md.  493  ;  5 
Me.  261;  11  Mass.  256,  313;  5  Pick.  Mass. 
65;  10  Cush.  Mass.  172 ;  7  Cow.  N.Y.  4;  20 
Johns.  N.  Y.  229 ;  3  Day,  Conn.  74 ;  1  Humphr. 
Tenn.  54;  7  Ind.  211 ;  3  Sneed,  Tenn.  55;  8 
Md.  517  ;  10  Rich.  So.  C.  393;  hgc  Executors; 
of  heirs,  5  Barnew.  &  C.  451,  452;  6  Bligh, 
479,  n. :  1  Rob.  627 ;  9  Cranch,  151 ;  9  Wheat. 
56i3,  570 ;  10  id.  192 ;  and  of  devisee  or  de- 
visor. Story,  Confl.  Laws,  ^  474  ;  14  Ves.  Ch. 
337  ;  9  Cranch,  151 ;  10  Wheat.  192;  37  N. 
H.  114. 

4.  So  as  to  the  forms  and  solemnities  of 
the  transfer  the  lex  rei  sitve  must  be  complied 
with,  whether  it  be  a  transfer  by  devise,  2 
Dowl.  &  C.  349  ;  2  P.  W  ill.  291,  293  ;  14  Ves. 
Ch.  537  ;  7  Cranch,  115  ;  10  Wheat.  192  ;  4 
Johns.  Ch.  N.Y.  260  ;  2  Ohio,  124;  37  N.  H. 
114;  5  R.  I.  112,  413;  2  Jones,  No.  C.  368; 
see  4  McLean,  C.  C.  75,  or  by  conveyance 
inter  vivos,  9  Bligh,  Hou.  L.  127,  128;  2 
Dowl.  &  C.  349  ;  1  Pick.  Mass.  81 :  1  Paige, 
Ch.  N.Y.  220;  11  Wheat.  465;  11  Tex.  755; 
18  Penn.  St.  170;  12  Eng.  L.  &  Eq.  200;  13 
id.  405.  So  as  to  the  amount  of  property  or 
extent  of  interest  which  may  be  acquired. 


4  LEX  TALIONIS  39 


held,  or  transferred,  3  Russ.  Ch.  328;  2 
Dow.  &  C.  393,  aud  the  question  of  what  is 
real  property.  1  W.  Blackst.  234 ;  2  Burr. 
1079  ;  2  Dowl.  230,  250  ;  0  Pai^e,  Ch.  N.  Y. 
630 ;  3  Deac.  &  C.  Bank.  704 ;  2  Salk.  666. 
And,  generally,  the  lex  rei  sitce  governs  as  to 
the  validity  of  any  such  transfer.  4  Sandf. 
N.  Y.  252;  23  Miss.  42;  22  id.  130;  11  Mo. 
314;  4  Den.  N.  Y.  305  ;  2  Bradf.  Surr.  N.  Y. 
339.  As  to  the  disposition  of  the  proceeds, 
see  12  Eng.  L.  &  Eq.  206.    As  to  the  inter- 

E relation  and  construction  of  wills,  see 
'OMICIL. 

5.  The  rules  here  given  do  not  apply  to 
personal  contracts  indirectly  affecting  real 
estate.  1  Halst.  Ch.  N.  J.  631 ;  Story,  Confl. 
Laws,  I  351,  d. 

A  contract  for  the  conveyance  of  lands 
valid  by  the  lex  fori  will  be  enforced  in 
equity  by  a  decree  in  personam  for  a  convey- 
ance valid  under  the  lex  rei  sitce.  1  Ves.  Ch. 
144 ;  2  Paige,  Ch.  N.  Y.  606 ;  Wythe,  Va.  135 ; 
1  Hopk.  Ch.  N.  Y.  213;  6  Cranch,  148. 

An  executory  foreign  contract  for  the  con- 
veyance of  lands  not  repugnant  to  the  lex  rei 
sit(B  will  be  enforced  in  the  courts  of  the 
latter  country  by  personal  process.  8  Paige, 
Ch.  N.  Y.  201 ;  23  Eng.  L.  &  Eq.  288  ;  4 
Bosw.  N.  Y.  266. 

LEX  TALIONIS  (Lat  ).  The  law  of  re- 
taliation :  an  example  of  which  is  given  in  the 
law  of  Moses,  an  eye  for  an  eye,  a  tooth  for  a 
tooth,  &c. 

Amicable  retaliation  includes  those  acts  of 
retaliation  which  correspond  to  the  acts  of 
the  other  nation  under  similar  circumstances. 

Jurists  and  v^^riters  on  international  law 
are  divided  as  to  the  right  of  one  nation  pun- 
ishing with  death,  by  way  of  retaliation,  the 
citizens  or  subjects  of  another  nation.  In  the 
United  States  no  example  of  such  barbarity 
has  ever  been  witnessed  ;  but  prisoners  have 
been  kept  in  close  confinement  in  retaliation 
for  the  same  -conduct  towards  American  pri- 
soners. See  Rutherforth,  Inst.  b.  2,  c.  9; 
Marten,  Law  of  Nat.  b.  8,  c.  1,  s.  3,  note;  1 
Kent,  Comm.  93  ;  AV^heaton,  Int.  Law,  pt.  4, 
c.  1,U; 

Vindictive  retaliation  includes  those  acts 
■which  amount  to  a  war. 

LEX  TERR^  (Lat.).  The  law  of  the 
land.    See  Due  Process  of  Law. 

LEY  (Old  French;  a  corruption  of  loi). 
Law.  For  example,  Termes  de  la  Ley,  Terms 
of  the  Law.  In  another,  and  an  old  tech- 
nical, sense,  ley  signifies  an  oath,  or  the  oath 
with  compurgators:  as,  il  tend  sa  ley  aiu 
pleyntiffe.    Britton,  c.  27. 

LEY  GAGER.  Wager  of  law.  An  offer 
to  make  an  oath  denying  the  cause  of  action 
of  the  plaintifi",  confirmed  by  compurgators 
\q.  v.),  which  oath  used  to  be  allowed  in  cer- 
tain cases.  When  it  was  accomplished,  it 
was  called  the  "doing  of  the  law,"  ''fesans 
de  ley."  Termes  de  la  Leye,  Ley;  2  Barnew. 
&  C.  538  ;  3  Bos.  &  P.  297  ;  3  &  4  AVill.  IV.  c. 
42.  3  16 


LIBEL 


LEYES  DE  ESTILLO.  In  Spanl8^ 
Law.  Laws  of  the  age.  A  book  of  expla- 
nations of  the  Fuero  Real,  to  the  numljer  of 
two  hundred  and  fifty-two,  formed  under  the 
authority  of  Alonzo  X.  and  his  son  Sancho, 
and  of  Fernando  el  Emplazado,  and  pul)- 
lished  at  the  end  of  the  thirteenth  century 
or  beginning  of  the  fourteenth,  and  some  of 
them  are  inserted  in  the  New  Recopilacion. 
See  1  White,  New  Recop.  p.  354. 

LIABILITY.  Responsibility;  the  state 
of  one  who  is  bound  in  law  and  justice  to  do 
something  which  may  be  enforced  by  action. 
This  liability  may  arise  from  contracts  either 
express  or  implied,  or  in  consequence  of  torta 
committed. 

LIBEL.  In  Practice.  The  plaintiff's 
petition  or  allegation,  made  and  exhibited  in 
a  judicial  process,  with  some  solemnity  of  law. 

A.  written  statement  by  a  plaintiff  of  his 
cause  of  action,  and  of  the  relief  he  seeks  to 
obtain  in  a  suit.  Law,  Eccl.  Law,  17 ;  Ayliffe, 
Par.  346  ;  Shelford,  Marr..  &  D.  506  ;  Dunlap, 
Adm.  Pract.  111.  It  performs  substantially 
the  same  office  in  the  ecclesiastical  courts, 
and  those  courts  which  follow  the  practice  of 
the  ecclesiastical  courts,  as  the  bill  in  chan- 
cery and  the  declaration  in  common-law  prac- 
tice. 

2.  The  libel  should  be  a  narrative,  spe- 
cific, clear,  direct,  certain,  not  general  nor 
alternative.  3  Law,  Eccl.  Law,  147.  It 
should  contain,  substantially,  the  following 
requisites :  the  name,  description,  and  addi- 
tion of  the  plaintiff,  who  makes  his  demand 
by  bringing  his  action ;  the  name,  descrip- 
tion, and  addition  of  the  defendant ;  the 
name  of  the  judge,  with  a  respectful  designa- 
tion of  his  ofiice  and  court;  the  thing  or 
relief,  general  or  special,  which  is  demanded 
in  the  suit ;  the  grounds  upon  which  the  suit 
is  founded. 

3.  The  form  of  a  libel  is  either  simple  or 
articulate.  The  simple  form  is  when  the 
cause  of  action  is  stated  in  a  continuous  nar- 
ration, when  the  cause  of  action  can  be 
briefly  set  forth.  The  articulate  form  is 
when  the  cause  of  action  is  stated  in  distinct 
allegations  or  articles.  2  Law,  Eccl.  Law, 
148 ;  Hall,  Adm.  Pract.  123  ;  7  Cranch,  349. 
The  material  facts  should  be  stated  in  distinct 
articles  in  the  libel,  with  as  much  exactness 
and  attention  to  times  and  circumstances  as 
in  a  declaration  at  common  law.  4  Mas.  C. 
C.  541. 

4.  Although  there  is  no  fixed  formula  for 
libels,  and  the  courts  will  receive  such  an  in- 
strument from  the  party  in  such  form  as  his 
own  skill  or  that  of  his  counsel  may  enable 
him  to  give  it,  yet  long  usage  has  sanctioned 
forms,  which  it  may  be  most  prudent  to  adopt. 
The  parts  and  arrangement  of  libels  com- 
monly employed  are: 

Fir.<it,  the  address  to  the  court:  as.  To 
the  Honorable  John  K.  Kane,  Judge  of  the 
district  court  of  the  United  States  within 
and  for  the  eastern  district  of  Pennsylvania. 

5.  Second,  the  names  and  descriptions  of 


LIBEL 


40 


LIBEL  • 


the  parties.  Persons  competent  to  sue  at 
common  law  may  be  parties  libellants;  and 
similar  regulations  obtain  in  the  admiralty 
courts  and  the  common-law  courts  respecting 
those  disqualified  from  suing  in  their  own 
right  or  name.  Married  women  prosecute 
by  their  husbands,  or  by  prochein  ami,  when 
the  husband  has  an  adverse  interest  to  hers ; 
minors,  by  guardians,  tutors,  or  prochein 
ami;  lunatics  and  persons  wow  compos  mentis, 
by  tutor,  guardian  ad  litem,  or  committee ; 
the  rights  of  deceased  persons  are  prosecuted 
by  executors  or  administrators ;  and  corpo- 
rations are  represented  and  proceeded  against 
as  at  common  law. 

Third,  the  averments  or  allegations  set- 
ting forth  the  cause  of  action.  These  should 
be  conformable  to  the  truth,  and  so  framed 
as  to  correspond  with  the  evidence.  Every 
fact  requisite  to  establish  the  libellant's  right 
should  be  clearly  stated,  so  that  it  may  be 
directly  met  by  the  opposing  party  by  admis- 
sion, denial,  or  avoidance :  this  is  the  more 
necessary,  because  no  proof  can  be  given,  or 
decree  rendered,  not  covered  by  and  con- 
formable to  the  allegations.  1  Law,  Eccl. 
Law,  150  ;  Hall,  Pract.  126  ;  Dunlap,  Adm. 
Pract.  113;  7  Cranch,  394;  21  How.  Pract. 
343. 

6.  Fourth,  the  conclusion,  or  prayer  for 
relief  and  process :  the  prayer  should  be  for 
the  specific  relief  desired  ;  for  general  relief, 
as  is  usual  in  bills  in  chancery;  the  conclu- 
sion should  also  pray  for  general  or  particular 

Sroce'^s.  Law,  Eccl.  Law,  149.  And  see  3 
las.  C.  C.  503. 
Interrogatories  are  sometimes  annexed  to 
the  libel :  when  this  is  the  case,  there  is 
usually  a  special  prayer,  that  the  defendant 
may  be  required  to  answer  the  libel,  and 
the  interrogatories  annexed  and  propounded. 
This,  however,  is  a  dangerous  practice,  be- 
cause it  renders  the  answers  of  the  defendant 
evidence,  which  must  be  disproved  by  two 
witnesses,  or  by  one  witness  corroborated  by 
very  strong  circumstances. 

•y.  The  libel  is  the  first  proceeding  in  a 
suit  in  admiralty  in  the  courts  of  the  United 
States.    3  Mas.  C.  C.  504. 

No  mesne  process  can  issue  in  the  United 
States  admiralty  courts  until  a  libel  is  filed, 
1  Adm.  7,  Rules  of  the  U.  S.  Supreme  Court. 
'J'ho  twenty-second  and  twenty-third  rules 
re(j[uire  certain  statements  to  bo  contained  in 
the  libel;  and  to  those,  and  the  forms  in  2 
Conkling,  Adm.  Pract.,  the  reader  is  referred. 
And  see  Parsons,  Marit.  Law;  Dunlap,  Adm. 
Pract.  ;  Ilall,  A(hn.  ]>ract. 

In  Torts.  That  which  is  written  or 
printed,  and  published,  calculated  to  injure 
the  chMTacter  of  another  by  bringing  him 
into  ridicule,  hatred,  or  contempt.  Parke,  J., 
15  Mens.  <fe  W.  Exch.  344. 

f^vory  thing,  written  or  printed,  which  re- 
flects on  th(!  (character  of  another  and  is 
published  without  lawful  justification  or  ex- 
cuse, is  a  libel,  whate\(5r  th(^  intention  may 
have  been.    15  Mecis.  k  W.  Exch.  437. 

A  malicious  defamation,  expressed  either 


in  printing  or  writing,  and  tending  either  to 
blacken  the  memory  of  one  who  is  dead  or 
the  reputation  of  one  who  is  alive,  and  expose 
him  to  public  hatred,  contempt,  or  ridicule. 
1  Hawkins,  PI.  Cr.  b.  1,  c.  73,  ^  ;  4  Mass. 
168;  2  Pick.  Mass.  115;  9  Johns.  N.  Y.  214; 
1  Den.  N.Y.  347;  24  Wend.  N.  Y.  434;  9 
Barnew.  &  0.  172  ;  4  Mann.  &  R.  127 ;  2 
Kent,  Comm.  13. 

It  has  been  defined,  perhaps  with  more 
precision,  to  be  a  censorious  or  ridiculous 
writing,  picture,  or  sign  made  with  a  mali- 
cious or  mischievous  intent  towards  govern- 
ment, magistrates,  or  individuals.  3  Johns. 
Cas.  N.  Y.  354 ;  9  Johns.  N.  Y.  215  ;  5  Binn. 
Penn.  340. 

8.  There  is  a  great  and  well-settled  dis- 
tinction between  verbal  and  written  slander ; 
and  this  not  only  in  reference  to  the  conse- 
quences, as  subjecting  the  party  to  an  indict- 
ment, but  also  as  to  the  character  of  the 
accusations  or  imputations  essential  to  sus- 
tain a  civil  action  to  recover  damages.  To 
write  and  publish  maliciously  any  thing  of 
another  which  either  makes  him  ridiculous 
or  holds  him  out  as  a  dishonest  man,  is  held 
to  be  actionable,  or  punishable  criminally, 
when  the  speaking  of  the  same  words  would 
not  be  so.  1  Saund.  6th  ed.  247  a;  4  Taunt. 
355  ;  5  Binn.  Penn.  219;  Heard,  Libel  &  S. 
§  74;  6  Cush.  Mass.  75. 

9.  The  reduction  of  the  slanderous  matter 
to  writing  or  printing  is  the  most  usual 
mode  of  conveying  it.  The  exhibition  of  a 
picture  intimating  that  which  in  print  would 
be  libellous  is  equallv  criminal.  2  Campb. 
512;  5  Coke,  125  ;  2  Serg.  &  R.  Penn.  91. 
Fixing  a  gallows  at  a  man's  door,  burning 
him  in  effigy,  or  exhibiting  him  in  any  igno- 
minious manner,  is  a  libel.  Hawkins,  PI.  Cr. 
b.  1,  c.  73,  8.  2;  11  East,  227. 

There  is,  perhaps,  no  branch  of  the  law 
which  is  so  difficult  to  reduce  to  exact  princi- 
ples, or  to  compress  within  a  snjall  compass, 
as  the  requisites  of  a  libel. 

In  the  following  cases  the  publications  have 
been  held  to  be  actionable.  It  is  a  libel  to 
write  of  a  person  soliciting  relief  from  a 
charitable  s<jciety,  that  she  prefers  unworthy- 
claims,  which  it  is  hoped  the  members  will 
reject  forever,  and  that  she  has  squandered 
away  money,  already  obtained  by  her  from 
the  benevolent,  in  printing  circulars  abusive 
of  the  secretary  of  the  society.  12  Q.  B.  624. 
It  is  libellous  to  publish  of  the  plaintiff"  that, 
although  he  was  aware  of  the  death  of  a  per- 
son occasioned  by  his  improperly  driving  a 
carriage,  he  had  attended  a  public  ball  in  the 
evening  of  the  same  day.  I  Chitt.  Bail,  480. 
It  is  a  libel  to  publish  of  a  Protestant  arch- 
bishop that  he  endeavors  to  convert  Roman 
Catholic  priests  by  promises  of  money  and 
preferment.  5  Bingh.  17.  It  is  a  libel  to 
publish  a  ludicrous  story  of  an  individual  in 
a  newspaper,  if  it  tend  to  render  him  the 
subject  of  [)ublic  ridicule,  although  he  had 
previously  told  the  same  story  of  himself. 
6  Bingh.  409. 

A  declaration  which  alleges  that  the  bo- 


LIBEL 


41 


LIBELLUS 


fendant  charged  the  plaintiff,  an  attorney, 
■with  being  guilty  of  "  sharp  practice,"  which 
is  averred  to  mean  disreputable  practice, 
charges  a  libellous  imputation.  4  Mees.  & 
W.  Exch.  446. 

10.  Any  publication  w^hich  has  a  tendency 
to  disturb  the  public  peace,  or  good  order  of 
society,  is  indictable  as  a  libel.  "  This  crime 
is  committed,"  says  Professor  Greenleaf,  "by 
the  publication  of  writings  blaspheming  the 
Supreme  Being,  or  turning  the  doctrines  of 
the  Christian  religion  into  contempt  and  ridi- 
cule ;  or  tending,  by  their  immodesty,  to  cor- 
rupt the  mind,  and  to  destroy  the  love  of 
decency,  morality,  and  good  order ;  or  wan- 
tonly to  defame  or  indecorously  to  calumniate 
the  economy,  order,  and  constitution  of  things 
which  make  up  the  general  system  of  the 
law  and  government  of  the  country ;  to  de- 
grade the  administration  of  government,  or 
of  justice;  or  to  cause  animosities  between 
our  own  and  any  foreign  government,  by  per- 
sonal abuse  of  its  sovereign,  its  ambassadors, 
or  other  public  ministers ;  and  by  malicious 
defamations,  expressed  in  printing  or  writing, 
or  by  signs  or  pictures,  tending  either  to 
blacken  the  memory  of  one  who  is  dead,  or 
the  reputation  of  one  who  is  living,  and 
thereby  to  expose  him  to  public  hatred,  con- 
tempt, and  ridicule.  This  descriptive  cata- 
logue embraces  all  the  several  species  of  this 
offence  which  are  indictable  at  common  law ; 
all  of  which,  it  is  believed,  are  indictable  in 
the  United  States,  either  at  common  law,  or 
by  virtue  of  particular  statutes."  3  Green- 
leaf,  Ev.  §  164.  See  4  Mass.  163  ;  9  Johns. 
N.Y.  214;  4  M'Cord,  So.  C.  317;  9  N.  II.  34. 

Libels  against  the  memory  of  the  dead, 
which  have  a  tendency  to  create  a  breach  of 
the  peace,  by  inciting  the  friends  and  rela- 
tives of  the  deceased  to  avenge  the  insult  of 
the  family,  render  their  authors  liable  to  in- 
dictment. The  malicious  intention  of  the 
defendant  to  injure  the  family  and  posterity 
of  the  deceased  must  be  expressly  averred 
and  clearly  proved.  5  Coke,  125 ;  4  Term, 
126,  129,  note ;  c  Binn.  Penn.  281  ;  Heard, 
Libel  &  S.  II  1%  348. 

If  the  matter  is  understood  as  scandalous, 
and  is  calculated  to  excite  ridicule  or  abhor- 
rence against  the  party  intended,  it  is  libel- 
lous, however  it  may  be  expressed.  5  East, 
463;  1  Price,  Exch.  11,  17;  Hob.  215;  Chitty, 
Crim.  Law,  868 ;  2  Campb.  512. 

11.  The  malicious  reading  of  a  libel  to 
one  or  more  persons,  it  being  on  the  shelves 
in  a  bookstore,  as  other  books,  for  sale ;  and 
where  the  defendant  directed  the  libel  to  fce 
printed,  took  away  some  and  left  others : 
these  several  acts  have  been  held  to  be  publi- 
cations. The  sale  of  each  copy,  where  several 
copies  have  been  sold,  is  a  distinct  publica- 
tion and  a  fresh  offence.  The  publication 
must  be  malicious:  evidence  of  the  malice 
may  be  either  express  or  implied.  Express 

Eroof  is  not  necessary ;  for  where  a  man  pub- 
shes  a  writing  which  on  the  face  of  it  is 
libellous,  the  law  presumes  he  does  so  from 
that  malicious  intention  which  constitutes 


the  offence,  and  it  is  unnecessary,  on  the  part 
of  the  prosecution,  to  prove  any  circumstance 
from  which  malice  may  be  inferred.  But  no 
allegation,  however  false  and  malicious,  con- 
j  tained  in  answers  to  interrogatories  in  affi- 
davits duly  made,  or  any  other  proceedings 
in  courts  of  justice  or  petitions  to  the  legis- 
lature, are  indictable.  4  Coke,  14  ;  2  Burr. 
807 ;  Hawkins,  PI.  Cr.  b.  1,  c.  73,  s.  8 ;  1  Saund. 
131,  n.  1 ;  1  Lev.  240;  2  Chitty,  Crim.  Law, 
869  ;  2  Serg.  &  R.  Penn.  23.  It  is  no  defence 
that  the  matter  published  is  part  of  a  docu- 
ment printed  by  order  of  the  house  of  com- 
mons. 9  Ad.  &  E.  1.  See  Judicial  Pro- 
ceedings. 

The  publisher  of  a  libel  is  liable  to  be  pun- 
ished criminally  by  indictment,  2  Chitty, 
Crim.  Law,  875 ;  or  is  subject  to  an  action  on 
the  case  by  the  party  grieved.  Both  remedies 
may  be  pursued  at  the  same  time.  See, 
generally,  2  Bishop,  Crim.  Law;  Heard,  Libel 
&S. 

LIBEL  OF  ACCUSATION.  In 
Scotch  Law.  The  instrument  which  con- 
tains the  charge  against  a  person  accused  of 
a  crime.  Libels  are  of  two  kinds,  namely, 
indictments  and  criminal  letters. 

Every  libel  assumes  the  form  of  what  is  termed, 
in  logic,  a  syllogism.  It  is  first  stated  that  some 
particular  kind  of  act  is  criminal:  as,  that  "theft 
is  a  crime  of  a  heinous  nature,  and  severely  pun- 
ishable." This  proposition  is  termed  the  mnjor. 
It  is  next  stated  that  the  person  accused  is  guilty 
of  the  crime  so  named,  '*  actor,  or  art  and  part." 
This,  with  the  narrative  of  the  manner  in  which, 
and  the  time  when,  the  offence  was  committed,  is 
called  the  minor  proposition  of  the  libel.  The  con- 
clusion is  that,  all  or  part  of  the  facts  being  proved, 
or  admitted  by  confession,  the  panel  **  ought  to  be 
punished  with  the  pains  of  the  law,  to  deter  others 
from  committing  the  like  crime  in  all  time  coming." 
Burton,  Man.  Pub.  L.  300,  301. 

LIBELLANT.     The  party  who  files  a  * 
libel  in  an  ecclesiastical  or  admiralty  case, 
corresponding  to  the  plaintiflf  in  actions  in 
the  common-law  courts. 

LIBELLEE.  A  party  against  whom  a 
libel  has  been  filed  in  proceedings  in  au 
ecclesiastical  or  in  admiralty,  corresponding 
to  the  defendant  in  a  common-law  suit. 

LIBELLUS  (Lat.).    In  Civil  Law. 

A  little  book.  Libellus  supplex,  a  petition, 
especially  to  emperor  ;  all  petitions  to  whom 
must  be  in  writing.  L.  15,  D.  in  Jus  voc. 
Libellum  rescribere,  to  mark  on  such  petition 
the  answer  to  it.  L.  2,  I  2,  Dig.  de  jur.Jisc, 
Libellum  agere,  to  assist  or  counsel  the  empe- 
ror in  regard  to  such  petitions,  L.  12,  D.  de 
disfr.pign.;  and  one  whose  duty  it  is  to  do 
so  is  called  magister  libellorum.  There  were 
also  promagistri.  L.  1,  D.  de  ojfic.prccf.praci. 
Libellus  accusaiorius,  an  information  and  ac- 
cusation of  a  crime.  L.  17,  ^  1,  &  L.  29,  §  8, 
D.  ad  leg,  Jtd.  de  adidt.  Libellus  divortii,  a 
Meriting  of  divorcement.  L.  7,  D.  de  divort.  et 
repud.  Libellus  rerum,  an  inventory.  Calv. 
Lex.  Libellus  or  oraiio  consultoria,  a  message 
by  which  emperors  laid  matters  before  senate*. 
1  Calvinus,  Lex. ;  Suet.  Caes.  56. 


LIBELLUS  FAMOSUS  42 


LIBERTY 


A  writing  in  which  is  contained  the  names 
of  the  plaintiff  (actor)  and  defendant  (reus), 
the  thing  sought,  the  right  relied  upon,  and 
name  of  the  tribunal  before  which  the  action 
is  brought.    Calvinus,  Lex. 

Libellus  appellatorius,  an  appeal.  Calvinus, 
Lex. ;  L.  1,  ^  ult.,  D.  ff.  de  appellat. 

In  English  Law  (sometimes  called  libel- 
lus conventionalis).  A  bill.  Bracton,  fol. 
112. 

LIBELLUS  FAMOSUS  (Lat.).  A 
libel ;  a  defamatory  writing.  L.  15,  D.  de 
paen.;  Vocab.  Jur.  Utr.  sub  ^^Jamosus,"  It 
may  be  without  writing:  as,  by  signs,  pic- 
tures, etc.    5  Rep.  de  famosis  libellis. 

LIBER  (Lat.j.  In  Civil  Law.  A  book, 
whatever  the  material  of  which  it  is  made; 
a  principal  subdivision  of  a  literary  work  r 
thus,  the  Pandects,  or  Digest  of  the  Civil  Law, 
is  divided  into  fifty  books.   L.  52,  D.  de  legal. 

In  Civil  and  Old  English  Law.  Free: 
e.g.  a  free  [liber)  bull.  Jacobs.  Exempt 
from  service  or  jurisdiction  of  another,  Law 
Fr.  &  Lat.  Diet.:  e.g.  a  free  [liber]  man.  L. 
3,  D.  de  statu  hominum. 

LIBER  ASSISARUM  (Lat.).  The 
book  of  assigns  or  pleas  of  the  crown ;  being 
the  fifth  part  of  the  Year-Books. 

LIBER  FEUDORUM  (Lat.).  A  code 
of  the  feudal  law,  which  was  compiled  by  di- 
rection of  the  emperor  Frederick  Barbarossa, 
and  published  in  Milan,  in  1170.  It  was 
called  the  Liber  Feudorum,  and  was  divided 
into  five  books,  of  which  the  first,  second,  and 
some  fragments  of  the  others  still  exist,  and  are 
printed  at  the  end  of  all  the  modern  editions 
of  the  Corpus  Juris  Civilis.  Giannone,  b. 
13,  c.  3;  Cruise,  Dig.  prel.  diss.  c.  1,  |  31. 

LIBER  HOMO  (Lat.).  A  free  man;  a 
freeman  lawfully  competent  to  act  as  juror. 
Ld.  Raym.  417 ;  Kebl.  563. 

In  London,  a  man  can  be  a  liber  homo 
either — 1,  by  service,  as  having  served  his  ap- 
prenticeship ;  or,  2,  by  birthright,  being  a  son 
of  a  liber  homo;  or,  3,  by  redemption,  i.e.  allow- 
ance of  mayor  and  aldermen.  8  Rep.,  Case  of 
City  of  London.  There  was  no  intermediate 
state  between  villein  and  liber  homo.  Fleta, 
lib.  4,  c.  11,  ^  22.  But  a  liber  homo  could  be 
vassal  of  another.    Bract,  fol.  25. 

In  Old  European  Law.  An  allodial  pro- 
prietor, as  opposed  to  a  feudatory.  Calvinus, 
Lex,  Alode. 

LIBER  JUDICIARUM  (Lat.).  The 
book  of  judgment,  or  doom-book.  The  Saxon 
Domboc.  Conjectured  to  be  a  book  of  statutes 
of  an(;i<!nt  Saxon  kings.  See  Jacob,  Domboc; 
1  Sharswood,  Hhickst.  Comm.  04. 

LIBER  ET  LEGALIS  HOMO  (Lat.). 
A  free,  and  hiwful  man.  One  worthy  of  being 
a  juryman  :  he  must  neither  be  infamous  nor 
a  bondman.  3  Sharswood,  Blackst.  Comm. 
340,  302;  Bracton,  fol.  14  b;  Fleta,  1.  0,  c. 
25,  H;  1.  4,  c.  5,  g  4. 

LIBERATE  (Lat.).  In  English  Prac- 
tice. A  writ  which  issues  on  hinds,  tene- 
mtnts,  and  chattels,  being  returned  uuder  an 


extent  on  a  statute  staple,  commanding  the 
sherifi"  to  deliver  them  to  the  plaintlfif,  by  the 
extent  and  appraisement  mentioned  in  the 
writ  of  extent  and  in  the  sheriff's  return 
thereto.  See  Corny ns.  Dig.  Statute  Staple  [DQ). 

LIBERATION.    In  Civil  Law.  The 

extinguishment  of  a  contract,  by  which  he  who 
was  bound  becomes  free  or  liberated.  Wolff, 
Dr.  de  la  Nat.  §  749.  Synonymous  with  pay- 
ment.   Dig.  50.  10.  47. 

LIBERTI,  LIBERTINI.  In  Roman 
Law.  The  condition  of  those  who,  having 
been  slaves,  had  been  made  free.  1  Brown, 
Civ.  Law,  99. 

There  is  some  distinction  between  these  words. 
By  libertus  was  understood  the  freedman  when 
considered  in  relation  to  his  patron,  who  had  be- 
stowed liberty  upon  him ;  and  he  was  called  liber- 
tinus  when  considered  in  relation  to  the  state  he 
occupied  in  society  subsequent  to  his  manumission. 
Leg.  El.  Dr.  Rom.  ^  93. 

LIBERTY  [Lat.  liber,  free;  libeiias,  free- 
dom, liberty).  Freedom  from  restraint.  The 
faculty  of  willing,  and  the  power  of  doing 
what  has  been  willed,  without  influence  from 
without. 

A  privilege  held  by  grant  or  prescription, 
by  which  some  men  enjoy  greater  privileges 
than  ordinary  subjects. 

A  territory  with  some  extraordinary  privi- 
lege. 

A  part  of  a  town  or  city:  as,  the  Northern 
Liberties  of  Philadelphia.    See  Faubourg. 

Civil  liberty  is  the  greatest  amount  of  abso- 
lute liberty  which  can  in  the  nature  of  things 
be  equally  possessed  by  every  citizen  in  a 
state. 

The  term  is  frequently  used  to  denote  the 
amount  of  absolute  liberty  which  is  actually 
enjoyed  by  the  various  citizens  under  the 
government  and  laws  of  the  state  as  admi- 
nistered.   1  Blackstone,  Comm.  125. 

The  fullest  political  liberty  furnishes  the 
best  possible  guarantee  for  civil  liberty. 

Lieber  defines  civil  liberty  as  guaranteed 
protection  against  interference  with  the  inte- 
rests and  rights  held  dear  and  important  by 
large  classes  of  civilized  men,  or  by  all  the 
members  of  a  state,  together  with  an  effec- 
tual share  in  the  making  and  administration 
of  the  laws,  as  the  best  apparatus  to  secure 
that  protection,  including  Blackstone's  divi- 
sions of  civil  and  political  under  this  head. 

Natural  liberti/  is  the  right  which  nature 
gives  to  all  mankind  of  disposing  of  their 
persons  and  property  after  the  manner  they 
judge  most  consonant  to  their  happiness,  on 
condition  of  their  acting  within  the  limits  of 
the  law  of  nature  and  so  as  not  to  interfere 
with  an  equal  exercise  of  the  same  rights  by 
other  men.  Burlam.  c.  3,  ^  15 ;  1  Blackstone, 
Comm.  125.  It  is  called  by  Lieber  social  lib- 
erty, and  is  defined  as  the  protection  of  unre- 
strained action  in  as  high  a  degree  as  the 
same  claim  of  protection  of  each  individual 
admits  of. 

Personal  liberty  consists  in  the  power  of 
locomotion,  of  changing  situation,  or  remov- 


LIBERTY 


43 


LIBERTY 


ing  one's  person  to  whatever  place  one's  in- 
clination may  direct,  without  imprisonment 
or  restraint  unless  by  due  course  of  law.  1 
Blackstone,  Comm.  134, 

Political  liberty  is  an  effectual  share  in  the 
making  and  administration  of  the  laws.  Lie- 
ber,  Civ.  Lib. 

2.  Liberty,  in  its  widest  sense,  means  the  fa- 
culty of  willing,  and  the  power  of  doing  what  has 
been  willed  without  influence  from  without.  It 
means  self-determination,  unrestrainedness  of  ac- 
tion. Thus  defined,  one  being  only  can  be  abso- 
lutely free, — namely,  God.  So  soon  as  we  apply  the 
word  liberty  to  spheres  of  human  action,  the  term 
receives  a  relative  meaning,  because  the  power  of 
m  m  is  limited;  he  is  subject  to  constant  influences 
from  without.  If  the  idea  of  unrestrainedness  of  ac- 
tion is  applied  to  the  social  state  of  man,  it  receives 
a  limitation  still  greater,  since  the  equal  claims  of 
unrestrained  action  of  all  necessarily  involves  the 
idea  of  protection  against  interference  by  others. 
We  thus  come  to  the  definition,  that  liberty  of  so- 
cial man  consists  in  the  protection  of  unrestrained 
action  in  as  high  a  degree  as  the  same  claim  of 
protection  of  each  individual  admits  of,  or  in  the 
most  efficient  protection  of  his  rights,  claims,  inte- 
rests, as  man  or  citizen,  or  of  his  humanity,  mani- 
fested as  a  social  being.  (See  Right.)  The  word 
liberty,  applied  to  men  in  their  political  state,  may 
be  viewed  with  reference  to  the  state  as  a  whole, 
and  in  this  case  means  the  independence  of  the 
state,  of  other  states  (see  Auto.vomy);  or  it  may 
have  reference  to  the  relation  of  the  citizen  to  the 
government,  in  which  case  it  is  called  political  or 
civil  liberty;  or  it  may  have  reference  to  the  status 
of  a  man  as  a  political  being,  contradistinguished 
from  him  who  is  not  considered  master  over  his 
body,  will,  or  labor, — the  slave.  This  is  called 
personal  liberty,  which,  as  a  matter  of  course,  in- 
cludes freedom  from  prison. 

3.  Lieber,  in  his  work  on  Civil  Liberty,  calls 
that  system  which  was  evuived  in  England,  and 
forms  the  basis  of  liberty  in  the  countries  settled 
by  English  people,  Anglican  liberty.  The  princi- 
pal guarantees,  according  to  him,  are: — 

I.  National  independence.  There  must  be  no 
foreign  interference.  The  country  must  have  the 
right  and  power  of  establishing  the  government  it 
thinks  best. 

II.  Individual  liberty,  and,  as  belonging  to  it, 
personal  liberty,  or  the  great  habeas-corpus  prin- 
ciple, and  the  prohibition  of  general  warrants  of 
arrest.    The  right  of  bail  belongs  also  to  this  head. 

III.  A  well-secured  penal  trial,  of  which  the 
most  important  is  trial  for  high  treason. 

IV.  The  freedom  of  communion,  locomotion,  and 
emigration. 

V.  Liberty  of  conscience.  The  United  States 
constitution  and  the  constitutions  of  all  the  states 
have  provisions  prohibiting  any  interference  with 
the  church. 

4.  VI.  Protection  of  individual  property,  which 
requires  unrestrained  action  in  producing  and  ex- 
changing, the  prohibition  of  unfair  monopolies, 
commercial  freedom,  and  the  guarantee  that  no 
property  shall  be  taken  except  in  the  course  of 
law,  the  principle  that  taxation  shall  only  be  with 
the  consent  of  the  tax-payer,  and  for  short  periods 
only,  and  the  exclusion  of  confiscation. 

VII.  Supremacy  of  the  law.  The  law  must  not, 
however,  violate  any  superior  law  or  civil  princi- 
ple, nor  must  it  be  an  ex  post  facto  law.  The  ex- 
ecutive must  not  possess  the  power  of  declaring 
martial  law,  which  is  merely  a  suspension  of  all 
law.  In  extreme  cases,  parliament  in  England 
and  congress  in  the  United  States  pass  an  act  sus- 
pending the  habeas  corpus  act. 


VIII.  Every  officer  must  be  responsible  to  the 
affected  person  for  the  legality  of  his  act;  and  no 
act  must  be  done  for  which  some  one  is  not  re- 
sponsible. 

IX.  It  has  been  deemed  necessary  in.  the  Bill  of 
Riglits  and  the  American  constitution  specially  to 
refer  to  the  quartering  of  soldiers  as  a  dangerous 
weapon  in  the  hands  of  the  executive. 

5.  X.  The  forces  must  be  strictly  submitted  to 
the  law,  and  the  citizen  should  have  the  right  to 
bear  arms. 

XI.  The  right  of  petitioning,  and  the  right  of 
meeting  and  considering  public  matters,  and  of 
organizing  into  associations  for  any  lawful  pur- 
poses, are  important  guarantees  of  civil  liberty. 

The  following  guarantees  relate  more  especially 
to  the  government  of  a  free  country  and  the  cha- 
racter of  its  polity  : 

XII.  Publicity  of  public  business  in  all  its 
branches,  whether  legislative,  judicial,  written,  or 
oral. 

XIII.  The  supremacy  of  the  law,  or  the  protec- 
tion against  the  absolutism  of  one,  of  several,  or 
of  the  mjijority,  requires  other  guarantees.  It  is 
necessary  that  the  public  funds  be  under  close  and 
efficient  popular  control;  they  should  therefore  be 
chiefly  in  the  hands  of  the  popular  branch  of  the 
legislature,  never  of  the  executive.  Appropria- 
tions should  also  be  for  distinct  purposes  and  short 
times. 

6.  XIV.  It  is  further  necessary  that  the  power 
of  making  war  reside  with  the  people,  and  not 
with  the  executive.  A  declaration  of  war  in  the 
United  States  is  an  act  of  congress. 

XV.  The  supremacy  of  the  law  requires,  also, 
not  only  the  protection  of  the  minority,  but  the 
protection  of  the  majority  against  the  rule  of  a 
factious  mipority  or  cabal. 

XVI.  The  majority  and,  through  it,  the  people 
are  protected  by  the  principle  that  the  administra- 
tion is  founded  on  party  principles. 

XVII.  A  very  important  guarantee  of  liberty  is 
the  division  of  government  into  three  distinct  func- 
tions,—  legislative,  administrative,  and  judicial. 
The  union  of  these  is  absolutism  or  despotism  on 
the  one  hand,  and  slavery  on  the  other. 

XVIII.  As  a  general  rule,  the  principle  prevails 
in  Anglican  liberty  that  the  executive  may  do  what 
is  positively  allowed  by  fundamental  or  other  law, 
and  not  all  that  which  is  not  prohibited. 

T.  XIX.  The  supremacy  of  the  law  requires 
that,  where  enacted  constitutions  form  the  funda- 
mental law,  there  be  some  authority  which  can 
pronounce  whether  the  legislature  itself  has  or  has 
not  transgressed  it.  This  power  must  be  vested  in 
courts  of  law. 

XX.  There  is  no  guarantee  of  liberty  more  im- 
portant and  more  peculiarly  Anglican  than  the  re- 
presentative government.  See  Lieber,  Civ.  Lib.  p. 
168. 

In  connection  with  this,  a  very  important  ques- 
tion is,  whether  there  should  be  direct  elections  by 
the  people,  or  whether  there  should  be  double  elec- 
tions. The  Anglican  principle  favors  simjde  elec- 
tions; and  double  elections  have  often  been  re- 
sorted to  as  the  very  means  of  avoiding  the  object 
of  a  representative  government. 

The  management  of  the  elections  should  also  be 
in  the  hands  of  the  voters,  and  government  espe- 
cially should  not  be  allowed  to  interfere. 

Representative  bodies  must  be  free.  They  must 
be  freely  chosen,  and,  when  chosen,  act  under  no 
threat  or  violence  of  the  executive  or  any  portion 
of  the  people.  They  must  be  protected  as  repre- 
sentative bodies ;  and  a  wise  parliamentary  law 
and  usage  should  secure  the  rights  of  each  mem- 
ber and  the  elaboration  of  the  law. 

A  peculiar  protection  is  afforded  to  members  of 
the  legislature  in  England  and  the  United  States, 


LIBERTY 


44  LIBERTY  OF  SPEECH 


by  their  freedom  from  arrest,  except  for  certain 
specified  crimes. 

8.  Every  member  must  possess  the  right  to  pro- 
pose any  measure  or  resolution. 

Not  only  must  the  legislature  be  the  judge  of  the 
right  each  member  has  to  his  seat,  but  the  whole 
internal  management  belongs  to  itself.  It  is  indis- 
pensable that  it  possess  the  power  and  privileges  to 
protect  its  own  dignity. 

The  principle  of  two  houses,  or  the  bicameral 
system,  is  an  equally  efficient  guarantee  of  liberty, 
by  excluding  impassioned  legislation  and  embody- 
ing in  the  law  the  collective  mind  of  the  legisla- 
ture. 

XXI.  The  independence  of  the  law,  of  which  the 
independence  of  the  judiciary  forms  a  part,  is  one 
of  the  main  stays  of  civil  liberty.  It  requires  "a, 
living  common  law,  a  clear  division  of  the  judi- 
ciary from  other  powers,  the  public  accusatorial 
process,  the  independence  of  the  judge,  the  trial 
by  jury,  and  an  independent  position  of  the  advo- 
cate." See  Lieber,  Civil  Liberty  and  Self-Govern- 
ment,  pp.  208-250. 

9.  XXII.  Another  constituent  of  our  liberty  is 
local  and  institutional  self-government.  It  arises 
out  of  a  willingness  of  the  people  to  attend  to  their 
own  affairs,  and  an  unwillingness  to  permit  of  the  in- 
terference of  the  executive  and  administration  with 
them  beyond  what  it  necessarily  must  do,  or  which 
cannot  or  ought  not  to  be  done  by  self-action.  A 
pervading  self-government,  in  the  Anglican  sense, 
is  organic :  it  consists  in  organs  of  combined  self- 
action,  in  institutions,  and  in  a  systematic  connec- 
tion of  these  institutions.  It  is,  therefore,  equally 
opposed  to  a  disintegration  of  society  and  to  des- 
potism. 

American  liberty  belongs  to  the  great  division  of 
Anglican  liberty,  and  is  founded  upon- the  checks, 
guarantees,  and  self-government  of  the  Anglican 
race.  The  following  features  are,  however,  pecu- 
liar to  American  liberty :  republican  federalism, 
strict  separation  of  the  state  from  the  church, 
greater  equality  and  acknowledgment  of  abstract 
rights  in  the  citizen,  and  a  more  popular  or  demo- 
cratic cast  of  the  whole  polity.  With  reference  to 
the  last  two  may  be  added  these  further  character- 
istics : 

10.  We  have  everywhere  established  voting  by 
ballot.  The  executive  has  never  possessed  the 
power  of  dissolving  or  proroguing  the  legislature. 
The  list  of  states  has  not  been  closed.  We  admit 
foreigners  to  the  rights  of  citizenship,  and  we  do 
not  believe  in  inalienable  allegiance.  There  is  no 
attainder  of  blood.  W©  allow  no  ex  }i<>8t  facto 
laws.  American  liberty  possesses,  also,  as  a  cha- 
racteristic, the  enacted  constitution, — distinguish- 
ing it  from  the  English  polity,  with  its  accumula- 
tive constitution.  Our  legislatures  are,  therefore, 
not  omnipotent,  as  the  British  Parliament  theoreti- 
cally is;  but  the  laws  enacted  by  them  may  be  de- 
clared by  the  supreme  courts  to  conflict  with  the 
constitution, — as  unconstitutional. 

The  liberty  sought  for  by  the  French,  as  a  pecu- 
liar system,  is  founded  chiefly,  in  theory,  on  the 
idea  of  c(iuality  and  the  abstract  rights  of  man. 
(Rousseau's  Social  Contract.)  Lieber  calls  this 
system — if  indeed  that  which  has  never  yet  conio 
to  be  established  as  an  enduring  reality,  with  true 
vitality,  can  be  called  a  system — (Jallican  liberty, 
to  contradistinguish  it  from  Anglican  liberty. 

11.  Very  few  works  have  been  written  that 
treat  exclusively  of  civil  liberty;  but  liberty  has 
been  more  or  less  comprehensively  treated  in  many 
works  in  which  the  great  topics  of  government  or 
the  rights  of  individuals  or  nations  have  been  dis- 
cussed. Aristotle's  Politics;  W.  Fortcscuc,  De  Lau- 
dibuH  Lcgum  Anglifc;  Hooker,  The  Laws  of  Eccle- 
siastical Polity;  Locke  on  (Jovcrnmcnt;  Algernon 
Sidney,  Discourses  on  Government  (the  great  book 


which,  together  with  Montesquieu's  Spirit  of  Laws, 
may  be  said  to  have  furnished  the  chief  food  on 
which  the  minds  of  our  most  distinguished  revolu- 
tionary framers  and  legislators  were  reared).  As 
to  Montesquieu's  Esprit  des  Lois,  the  student  ought 
to  combine  with  it  the  Critical  Commentary,  by 
Count  Destutt  de  Tracy,  first  published  in  Phila- 
delphia in  1811,  and,  if  we  are  rightly  informed, 
adopted  by  Mr.  Jefferson  as  a  political  text-book 
for  the  University  of  Virginia.  There  is  a  German 
translation  of  Destutt  de  Tracy,  with  additional 
notes  and  criticisms,  by  C.  F.  Morstadt,  Heidel- 
berg, 1820;  Locke,  Two  Treatises  on  Government; 
the  best  English  edition  of  De  Lolme  on  the  Brit- 
ish Constitution  ;  the  Works  of  Jeremy  Bentham  ; 
Ilallam,  Constitutional  History  of  England ;  Creasy, 
Rise  and  Progress  of  the  English  Constitution ; 
Rousseau,  Contrat  Social  (in  connection  with  it, 
Loriraer's  Political  Progress  not  necessarily  Demo- 
cratic);  Guizot,  especially  his  Democracy;  Jona- 
than Elliot;  the  Debates  in  the  several  State  Con- 
ventions on  the  Adoption  of  the  Federal  Constitu- 
tion, together  with  the  Journal  of  the  Federal  Con- 
vention, as  reported  by  James  Madison;  John 
Adams'  Defence  of  the  Constitution  of  the  United 
States;  The  Federalist,  by  Hamilton  and  Madison; 
George  T.  Curtis,  History  of  the  Origin,  Formation, 
and  Adoption  of  the  Constitution  of  the  United 
States;  Story's  Commentaries;  Sismondi,  Histoire 
de  la  Renaissance  de  la  Liberte  en  Italic,  and  his 
History  of  the  Italian  Republics  in  the  Middle  Ages; 
Lieber's  Political  Ethics;  Whewell's  Elements  of 
Morality,  including  Polity ;  all  those  portions  of  the 
great  writers  on  the  Law  of  Nations  where  human 
rights  are  discussed.  For  criticism  of  political 
literature  and  a  comprehensive  enumeration  of  po- 
litical writers,  we  must  refer  the  student  to  Robert 
von  Mohl,  History  and  Literature  of  Political  Sci- 
ences, 3  vols.  Eriangen,  1858. 

LIBERTY   OP  THE  PRESS.  The 

right  to  print  and  publish  the  truth,  from 
good  motives  and  for  justifiable  ends.  3 
Johns.  Cas.  N.  Y.  394. 

This  right  is  secured  by  the  constitution 
of  the  United  States.  Amendments,  art.  1. 
The  abuse  of  the  right  is  punished  crimi- 
nally by  indictment,  civilly  by  action.  Se« 
Judge  Cooper,  Libel;  Libel. 

LIBERTY  OP  SPEECH.  The  right  to 
public  support  in  speaking  facts  or  opinions. 

2.  It  is  provided  by  the  constitution  of  the 
United  States  that  members  of  congress  shall 
not  be  called  to  account  for  any  thing  said  in 
debate ;  and  similar  provisions  are  contained 
in  the  constitutions  of  the  several  states  in 
relation  to  the  members  of  their  respective 
legislatures.  This  right,  however,  does  not 
extend  beyond  the  mere  speaking ;  for  if  a 
member  of  congress  were  to  reduce  his  speech 
to  writing  and  cause  it  to  be  printed,  it  would 
no  longer  bear  a  privileged  character,  and 
he  might  be  held  responsible  for  a  libel,  as 
any  other  individual.  See  Bacon,  Abr.  Libel 
(B);  Debate. 

3.  The  greatest  latitude  is  allowed  by  the 
common  law  to  counsel :  in  the  discharge  of 
his  professional  duty,  he  may  use  strong 
epithets,  however  derogatory  to  other  persons 
they  may  be,  if  pertinent  to  the  cause,  and 
stated  in  his  instructions,  whether  the  thing 
were  true  or  false.  But  if  he  were  mali- 
ciously to  travel  out  of  his  case  for  the  pur 
pose  of  slandering  another,  he  would  be  liable 


LIBERUM  SERVITUM  45 


LICENSE 


to  an  {iction,  and  amenable  to  a  just,  and 
often  more  efficacious,  punishment,  inflicted 
by  public  opinion.  3  Chitty,  Pract.  887. 
No  respectable  counsel  will  indulge  himself 
with  unjust  severity ;  and  it  is  doubtless 
the  duty  of  the  court  to  prevent  any  such 
abuse. 

LIBERUM  MARITAGIUM  (Lat.). 
In  Old  English  Law.  Frank-marriage 
{q.v.).  2  Sharswood,  Blackst.  Comm.  115; 
Littleton,  I  17;  Bracton,  fol.  21. 

LIBERUM  SERVITIUM.  Free  ser- 
vice. Service  of  a  warlike  sort  by  a  feuda- 
tory tenant;  sometimes  called  servitium  libe- 
rum  armorum.  Somner,  Gavelk.  p.  56 ; 
Jacob,  Law  Diet. ;  4  Coke,  9. 

Service  not  unbecoming  character  of  free- 
men and  soldier  to  perform:  as,  to  serve  under 
the  lord  in  his  wars,  to  pay  a  sum  of  money, 
and  the  like.  2  Sharswood,  Blackst.  Comm. 
GO.  The  tenure  of  free  service  does  not  make 
a  villein  a  free  man,  unless  homage  or  manu- 
mission precede,  any  more  than  a  tenure  by 
villein  services  makes  a  freeman  a  villein. 
Bracton,  fol.  24. 

LIBERUM  TENEMENTUM.  In 
Real  Law.  Freehold.  Frank-tenement.  2 
Bouvier,  Inst.  n.  1690 ;  1  Washburn,  Real 
Prop.  46. 

In  Pleading.  A  plea  in  justification  by 
the  defendant  in  an  action  of  trespass,  by 
which  he  claims  that  he  is  the  owner  of  the 
close  described  in  the  declaration,  or  that  it 
is  the  freehold  of  some  third  person  by  whose 
command  he  entered.  2  Salk.  453  ;  7  Term, 
355  ;  1  Wms.  Saund.  299  h,  note. 

It  has  the  effect  of  compelling  the  plaintiff 
to  a  new  assignment,  setting  out  the  abuttals 
where  he  has  the  locus  in  quo  only  generally 
in  his  declaration,  11  East,  51,  72;  16  id. 
343  ;  1  Barnew.  &  C.  489 ;  or  to  set  forth 
tenancy  in  case  he  claims  as  tenant  of  the 
defendant,  or  the  person  ordering  the  tres- 
pass. 1  Saund.  299  h.  It  admits  possession 
by  the  plaintiff,  and  the  fact  of  the  commis- 
sion of  a  trespass  as  charged.  2  M'Cord,  So. 
C.  226. 

LICENCIADO.    In  Spanish  Law. 

Lawyer  or  Advocate.  By  a  decree  of  the 
Spanish  government  of  6th  November,  1843, 
it  was  declared  that  all  persons  who  have 
obtained  diplomas  of  "Licentiates  in  Juris- 
prudence" from  any  of  the  literary  universi- 
ties of  Spain  are  entitled  to  practise  in  all 
the  courts  of  Spain  without  first  obtaining 
permission  by  the  tribunals  of  justice. 

Their  title  is  furnished  them  by  the  minis- 
ter of  the  interior,  to  whom  the  universities 
forward  a  list  of  those  whom  they  think 
qualified. 

This  law  does  not  apply  to  those  already 
licensed,  who  may,  however,  obtain  the  bene- 
fit of  it,  upon  surrendering  their  license  and 
complying  with  certain  other  formalities  pre- 
scribed by  the  law. 

LICENSE  (Lat.  licere,  to  permit). 

In  Contracts.    A  permission.    A  right 


given  by  some  competent  authority  to  do  an 
act  which  without  such  authority  would  bo 
illegal. 

An  authority  to  do  a  particular  act  or  series 
of  acts  on  another's  land  without  possessing 
any  estate  therein.  11  Mass.  533  ;  4  Sandh 
Ch.  N.  Y.  72  ;  1  Washburn,  Real  Prop.  148. 

The  written  evidence  of  the  grant  of  such 
right. 

An  executed  license  exists  when  the  licensed 
act  has  been  done. 

An  executory  license  exists  where  the 
licensed  act  has  not  been  performed. 

An  express  license  is  one  which  is  granted 
in  direct  terms. 

An  implied  license  is  one  which  is  presumed 
to  have  been  given  from  the  acts  of  the  party 
authorized  to  give  it. 

It  is  distinguished  from  an  easement,  which  im- 
plies an  interest  in  the  land  to  be  affected,  and  a 
lease,  or  right  to  take  the  profits  of  land.  It  may 
be,  however,  and  often  is,  coupled  with  a  grant  of 
some  interest  in  the  land  itself,  or  right  to  take  the 
profits.    1  Washburn,  Real  Prop.  148. 

A  license  may  be  by  specialty,  2  Parsons,  Contr. 
22;  by  parol,  13  Mees.  &  W.  Exch.  838;  4  Maule 
&  S.  562;  7  Barb.  N.  Y.  4;  1  Washburn,  Real 
Prop.  148;  or  by  implication  from  circumstances, 
as  opening  a  door  in  response  to  a  knock.  Hob. 
62;  2  Greenleaf,  Ev.  ^  427. 

2.  It  may  be  granted  by  the  owner,  or,  in 
many  cases,  by  a  servant.  Croke  Eliz.  246 ; 
2  Greenleaf,  Ev.  ^  427. 

An  executory  license  may  be  revoked  at 
the  pleasure  of  the  grantor.  1  Washburn^ 
Real  Prop.  148.  In  general,  a  mere  license 
may  be  revoked  at  the  grantor's  pleasure,  11 
Mass.  433 ;  15  Wend.  N.  Y.  380 ;  although 
the  licensee  has  incurred  expense.  10  Conn. 
378 ;  23  id.  223  ;  3  Du.  N.  Y.  355  ;  11  Mete. 
Mass.  251;  2  Gray,  Mass.  302;  24  N.  H. 
364;  13  id.  264;  4  Johns.  N.  Y.  418;  3 
Wise.  1 17  ;  1  Dev.  &  B.  No.  C.  492  ;  13  Mees. 
&  W.  Exch.  838 ;  37  Eng.  L.  &  Eq.  489 ;  5 
Barnew.  &  Ad.  1.  But  see  14  Serg.  &  R, 
Penn.  267.  Not  so  a  license  closely  coupled 
with  a  transfer  of  title  to  personal  property. 
8  Mete.  Mass.  34;  11  Conn.  525  ;  13  Mees.  & 
W.  Exch.  856 ;  11  Ad.  &  E.  34. 

3.  An  executed  license  which  destroys  an 
easement  enjoyed  by  the  licenser  in  the 
licensee's  land,  cannot  be  revoked.  9  Mete. 
Mass.  395 ;  2  Gray,  Mass.  302 ;  2  Gill,  Md. 
221;  3  Wise.  124;  3Du.N.Y.255;  7  Bingh. 
682 ;  3  Barnew.  &  C.  332  ;  5  id.  221. 

The  effect  of  an  executed  license,  though 
revoked,  is  to  relieve  or  excuse  the  licensee 
from  liability  for  acts  done  properly  in  pursu- 
ance thereof,  and  their  consequences.  6  Du. 
N.  Y.  363 ;  22  Barb.  N.  Y.  336 ;  18  Pick. 
Mass.  569;  2  Gray,  Mass.  302;  10  Conn. 
378  ;  13  N.  H.  264  ;  7  id.  237 ;  7  Taunt.  374 ; 
5  Barnew.  &  C.  221. 

The  licensee's  improvements  on  lands  with- 
out compensation,  m  equity.  3  Wise.  117; 
Story,  Eq.  Jur.  I  1237 ;  Angell,  Wat.  Cour. 
g  318. 

In  International  Law.  Permission 
granted  by  a  belligerent  state  to  its  own  sub- 
jects, or  to  the  subjects  of  the  enemy,  to 


LICENTIA  CONCORDANDI  46 


LIEGE  POUSTIE 


carry  on  a  trade  interdicted  by  war.  Whea-  I 
ton,  Int.  Law,  475. 

4.  Licenses  operate  as  a  dispensation  of 
the  rules  of  war,  so  far  as  its  provisions  ex- 
tend. They  are  stricti  juris,  but  are  not  to 
be  construed  with  pedantic  accuracy.  Whea- 
ton,  Int.  Law",  476  ;  1  Kent,Comm.  5th  ed.  163 
n. ;  4  C.  Rob.  Adm.  8.  They  can  be  granted 
only  by  the  sovereign  authority,  or  by  those 
delegated  for  the  purpose  by  special  commis- 
sion. 1  Dods.  Adm.  226 ;  Stew.  Adm.  367. 
They  constitute  a  ground  of  capture  and  con- 
fiscation per  se  by  the  adverse  belligerent 
party.    Wheaton,  Int.  Law,  475. 

In  Patent  Law.    See  Patents. 

In  Pleading.  A  plea  of  justification  to 
an  action  of  trespass,  that  the  defendant  was 
authorized  by  the  owner  of  the  freehold  to 
commit  the  trespass  complained  of. 

A  license  must  be  specially  pleaded  to  an 
action  of  trespass,  2  Term,  166,  but  may  be 
given  in  evidence  in  an  action  on  the  case. 
2  Mod.  6 ;  8  East,  308. 

LICENTIA  CONCORDANDI  (Lat. 

leave  to  agree).  One  of  the  formal  steps  in 
the  levying  a  fine.  When  an  action  is  brought 
for  the  purpose  of  levying  a  fine,  the  defend- 
ant, knowing  himself  to  be  in  the  wrong,  is 
supposed  to  make  overtures  of  accommoda- 
tion to  the  plaintiff,  who  accepts  them,  but, 
having  given  pledges  to  prosecute  his  suit, 
applies  to  the  court,  upon  the  return  of  the 
writ  of  covenant,  for  leave  to  make  the  matter 
up :  this,  which  is  readily  granted,  is  called 
tlie  licentia  concordandi.  5  Coke,  39;  Cruise, 
Dig.  tit.  35,  c.  2,  22. 

LICENTIA  LOQUENDI.  Imparlance. 

LICENTIA  SURGENDL  In  Old 
English  Law.  Liberty  of  rising.  A  liberty 
or  space  of  time  given  by  the  court  to  a 
tenant,  who  is  essoined,  de  malo  lecii,  in  a 
real  action,  to  arise  out  of  his  bed.  Also,  the 
writ  thereupon.  If  the  demandant  can  show 
that  the  tenant  was  seen  abroad  before  leave 
of  court,  and  before  being  viewed  by  the 
knights  appointed  by  the  court  for  that  pur- 
pose, such  tenant  shall  be  taken  to  be  deceit- 
fully essoined,  and  to  have  made  default. 
Bracton,  lib.  5  ;  Fleta,  lib.  6,  c.  10. 

LICENTIA  TRANSFRETANDL  A 

writ  or  warrant  directed  to  keeper  of  port  of 
Dover,  or  other  seaport,  commanding  him  to 
let  the  person  who  has  this  license  of  the  king 
pass  over  sea.    Keg.  Orig.  93. 

LICENTIOUSNESS.  The  doing  what 
one  pleases,  without  regard  to  the  rights  of 
others.  It  differs  from  liberty  in  this,  that 
the  latter  is  restrained  by  natural  or  positive 
law,  and  consists  in  doing  whatever  we  please 
not  inconsistent  with  the  rights  of  others, 
"whereas  the  former  does  not  respect  those 
rights.    Wolff.  Inst,  g  84. 

•  LICET  (Lat.).  It  is  lawful;  not  forbid- 
den by  law. 

Id  omne  licitiim  est,  quod  non  cnt  Irfjihm  prohibi- 
titm,  qnnniobrcm,  quod,  Icfir.  perm iticutr,  fit,  jxinitm 
>ton  mcrt'tur,    Licere  dicimuH  quod  IrjjibuH,  moribus, 


\  institutiaque  conceditur.  Cic.  Philip.  13  ;  L.  42,  D. 
ff.  de  ritu  nupt.  Eat  aliqwid  quod  non  ojiorteat ; 
tametsi  licet;  qnicquod  vero  non  licet  certe  non 
oportet.    L.  verbum  oportere,  S.  de  verb,  et  rer.  Hi(jn. 

Although.  Calvinus,  Lex.  An  averment 
that  "  although  such  a  thing  is  done  or  not 
done,"  is  not  implicative  of  the  doing  or  not 
doing,  but  a  direct  averment  of  it.  Plowd. 
127. 

LICET  S-S5PIUS  REQUISITUS  (al- 
though often  requested).  In  Pleading.  A 
formal  allegation  in  a  declaration  that  the 
defendant  has  been  often  requested  to  per- 
form the  acts  the  non-performance  of  which 
is  complained  of. 

It  is  usually  alleged  in  the  declaration  that 
the  defendant,  licet  scepius  requisitus,  etc.,  he 
did  not  perform  the  contract  the  violation  of 
which  is  the  foundation  of  the  action.  This 
allegation  is  generally  sufficient  when  a  re- 
quest is  not  parcel  of  the  contract.  Indeed, 
in  such  cases  it  is  unnecessary  even  to  lay  a 
general  request;  for  the  bringing  of  the  suit 
is  itself  a  sufficient  request.  I  Saund.  33,  n. 
2;  2  id.  118,  note  3;  Plowd.  128;  I  Wils. 
33;  2  H.  Blackst.  131';  1  Johns.  N.  Y.  Cas. 
99,  319;  7  Johns.  N.  Y.  462;  18  trf.^85;  3 
Maule  &  S.  150.    See  Demand. 

LICITACION.   In  Spanish  Law.  The 

sale  made  at  public  auction  by  co-proprietors, 
or  co-heirs,  of  their  joint  property  which  is 
not  susceptible  of  being  advantageously  di- 
vided in  kind. 

LIDFORD  LAW.    See  Lynch  Law. 

LIEGE  (from  liga,  a  bond,  or  litis,  a  man 
wholly  at  command  of  his  lord.  Blount). 
In  Feudal  Law.  Bound  by  a  feudal  tenure ; 
bound  in  allegiance  to  the  lord  paramount, 
who  owned  no  superior. 

The  term  was  applied  to  the  lord,  or  liege  lord, 
to  whom  allegiance  was  due,  since  he  was  bound  to 
protection  and  a  just  government,  and  also  to  the 
feudatory,  liegeman,  or  subject  bound  to  allegiance, 
for  he  was  bound  to  tribute  and  due  subjection. 
34  &  35  Hen.  VIII.  So  liegea  are  the  king's  sub- 
jects. Stat.  8  Hen.  VI.  c.  10 ;  14  Hen.  VIII.  c.  2. 
So  in  Scotland.  Bell,  Diet.  I3ut  in  ancient  times 
private  persons,  as  lords  of  manors,  had  their  liefjes' 
Jacob,  Law  Diet.;  1  Sharswood,  Blackst.  Comm. 
367. 

Liege,  or  Ugina,  was  used  in  old  records  for  full, 
pure,  or  perfect:  e.g.  ligia  poteataa,  full  and  free 
power  of  disposal.  Paroch.  Antiq.  280.  (Probably 
in  this  sense  derived  from  legitima.)  So  in  Scot- 
land.   See  Liege  Poustie. 

LIEGE  POUSTIE  [Legitima  Potestas). 
In  Scotch  Law.  That  state  of  health 
which  gives  a  person  full  power  to  dispose  of, 
mortis  causal  or  otherwise,  his  heritable  prp- 
perty.    Bell,  Diet. 

2.  A  deed  executed  at  time  of  such  state 
of  health,  as  opposed  to  a  death-bed  convey- 
ance. Id.  A  person  is  said  to  be  in  such 
state  of  health  (in  liege  poustie,  or  in  legitima 
potcstati)  when  he  is  in  his  ordinary  health 
and  capacity,  and  not  a  minor,  nor  cognosced 
as  an  idiot  or  madman,  nor  under  interdic- 
tion. 1  Bell,  Comm.  85,  5th  ed. ;  G  Clark  & 
F.  llou.  L.  540. 


LIEN 


47 


LIEN 


LIEN.  A  hold  or  claim  which  one  person 
has  upon  the  property  of  another  as  a  security 
for  some  debt  or  charge. 

In  every  case  in  which  property,  either  real  or 
personal,  is  charged  with  the  payment  of  a  debt  or 
duty,  every  such  charge  may  be  denominated  a 
lien  on  the  property.  Whit.  Liens.  It  difi'ers 
from  an  estate  in  or  title  to  the  property,  as 'it  may 
be  discharged  at  any  time  by  payment  of  the  sum 
for  which  the  lien  attaches.  It  diflFers  from  a  mort- 
gage in  the  fact  that  a  mortgage  is  made  and  the 
property  delivered,  or  otherwise,  for  the  express 
purpose  of  security  ;  while  the  lien  attaches  as  in- 
cidental to  the  main  purpose  of  the  bailment,  or,  as 
in  case  of  a  judgment,  by  mere  act  of  the  law,  with- 
out any  act  of  the  party.  In  this  general  sense 
the  word  is  commonly  used  by  English  and  Ameri- 
can law  writers  to  include  those  preferred  or  pri- 
vileged claims  given  by  statute  or  by  admiralty 
law,  and  which  seem  to  have  been  adopted  from 
the  civil  law,  as  well  as  the  security  existing  at 
common  law,  to  which  the  term  more  exactly  ap- 
plies. In  its  more  limited  as  well  as  commoner 
sense,  the  word  lien  indicates  a  mere  right  to  hold 
the  property  of  another  as  security ;  or  it  is  the 
right  which  one  person  possesses,  in  certain  cases, 
of  detaining  property  placed  in  his  possession  be- 
longing to  another,  until  some  demand  which  the 
former  has  be  satisfied.  2  East,  235.  A  qualified 
right  which,  in  certain  cases,  may  be  exercised  over 
the  property  of  another.  6  East,  25,  n.  A  lien  is  a 
right  to  hold.  2  Campb.  579.  A  lien  in  regard  to 
personal  property  is  a  right  to  detain  the  property 
till  some  claim  or  charge  is  satisfied.  Mete.  Yelv. 
67,  n.  c.    The  right  of  retaining  or  continuing 

Possession  till  the  price  is  paid.  1  Parsons,  Mar. 
law,  144. 


Common  Law  Lien  2-11 

Which  exist  by  law  2,  3 

By  usage  3,  4r 

By  express  agreement  5 

Bailments  of  various  kinds.... 6-8 

Requisites  to  create  9,  lO 

Waiver  10-12 

Civil  Law  Lien  13-15 

Equitable  Liens  lT-20 

Maritime  Liens  21-32 

Of  shipper  of  goods  22 

Of  owner  and  charterer  23 

Of  master  25,  26 

Of  seamen  21 

Of  material  men  28 

Collision  30 

Ship's  husband  31 

Statutory  Liens  33-42 

Judgment  Lien  33-38 

Mechanic's  Lien  39-42 

The  Common  Law  Lien.    As  distin- 


guished from  the  other  classes,  it  consists  in 
a  mere  right  to  retain  possession  until  the 
debt  or  charge  is  paid. 

In  the  case  of  a  factor  an  apparent  exception  ex- 
ists, as  he  is  allowed  a  lien  on  the  proceeds  of  goods 
sold,  as  well  as  on  the  goods  themselves.  But  this 
eeeras  to  result  from  the  relation  of  the  parties 
and  the  purposes  of  the  bailment  ;  to  eflfeetuate 
■which,  and  at  the  same  time  give  a  security  to  the 
factor,  the  law  considers  the  possession,  or  right  to 
possession,  of  the  proceeds,  the  same  thing  as  the 
possession  of  the  goods  themselves. 

A  particular  lien  is  a  right  to  retain  the 
property  of  another  on  account  of  labor  em- 
ployed or  money  expended  on  that  specific 
property.    Whitaker,  Liens,  9. 

A  general  lien  is  a  right  to  retain  the  pro- 


perty of  another  on  account  of  a  general 
balance  due  from  the  owner.  3  Bos.  &  P. 
494. 

2.  Of  course,  where  a  general  lien  exists,  a 
particular  lien  is  included. 

Particular  liens  constitute  the  oldest  class 
of  liens,  and  the  one  most  favored  ]jy  the 
common  law.  4  Burr.  2221 ;  Dougl.  97  ;  3 
Bos.  &  P.  126.  But  courts  ceased  to  origin- 
ate liens  at  an  early  period,  9  East,  420 ; 
while  general  liens  have  been  looked  upon 
with  jealousy,  being  considered  encroach- 
ments upon  the  common  law  and  founded 
solely  in  the  usage  of  and  for  the  benefit  of 
trade.  3  Bos.  &  P.  42,  26,  494.  Liens  either 
exist  by  law,  arise  from  usage,  or  are  created 
by  express  agreement. 

Liens  whicJi  exist  by  the  common  law,  gene- 
rally arise  in  cases  of  bailment.  Thus,  a 
particular  lien  exists  whenever  goods  are  de- 
livered to  a  tradesman  lor  the  execution  of 
the  purposes  of  his  trade  upon  them.  1  Atk. 
Ch.  228  ;  2  Rolle,  Abr.  92  ;  3  Maule  &  S.  167  ; 
14  Pick.  Mass.  332 ;  7  Barb.  N.  Y.  113.  And 
so,  where  a  person  is,  from  the  nature  of  his 
occupation,  under  a  legal  obligation  to  re- 
ceive and  be  at  trouble  or  expense  about  the 
personal  property  of  another,  in  every  such 
case  he  is  entitled  to  a  particular  lien  on  it. 
1  Esp.  109 ;  Ld.  Raym.  867 ;  6  Term,  17  ;  3 
Bos.  &  P.  42. 

3.  And  sometimes  a  lien  arises  where 
there  is  strictly  no  bailment.  Thus,  where  a 
ship  or  goods  at  sea  come  into  possession  of 
a  party  by  finding,  and  he  has  been  at  some 
trouble  or  expense  about  them,  he  is  entitled 
to  retain  the  same  until  reimbursed  his  ex- 
penses. This  applies  only  to  the  salvors  of  a 
ship  and  cargo  preserved  from  peril  at  sea,  1 
Ld.  Raym.  393;  5  Burr.  2732;  8  East,  57;  16 
Penn.  St.  393,  and,  in  the  case  of  property  on 
shore,  where  a  specific  reward  is  offered  for 
the  restoration,  8  Gill,  Md.  218;  3  Mete. 
Mass.  352,  and  does  not  apply,  generally,  it 
is  said,  to  the  preservation  of  things  found 
upon  land.  2  H.  Blackst.  254 ;  2  W.  Blackst. 
1117. 

Liens  which  arise  by  usage  are  usually 
general  liens,  and  the  usage  is  said  by  Whita- 
ker to  be  either  the  general  usage  of  trade, 
or  the  particular  usage  of  the  parties.  Whita- 
ker, Liens,  31. 

4.  The  usage  must  be  so  general  that  the 
party  delivering  the  goods  may  be  presumed 
to  have  known  it,  and  to  have  made  the  right 
of  lien  a  part  of  the  contract.  3  Bos.  &  P.  50. 
And  it  is  said  the  lien  must  be  for  a  general 
balance  arising  from  transactions  of  a  similar 
character  between  the  parties,  and  that  the 
debt  must  have  accrued  in  the  business 
of  the  party  claiming  the  lien,  Whitaker, 
Liens,  33 ;  and  see  1  Atk.  Ch.  223  ;  1  W. 
Blackst.  651 ;  and  it  seems  that  more  deci- 
sive proof  of  general  usage  is  required  in 
those  occupations  in  which  the  workmen  arc 
required  to  receive  their  employment  when 
offered  them,  such  as  carriers.  6  Term,  14 ; 
6  East,  519  ;  7  id.  224.  But  where  a  general 
lien  has  been  once  established,  the  courts 


LIEN 


48 


LIEN 


will  not  allow  it  to  be  disturbed.  1  Esp.  109 ; 
3  id.  31. 

In  regard  to  a  general  lien  arising  from 
particular  usage  between  the  parties,  proof 
of  their  having  before  dealt  upon  the  basis 
of  such  a  lien  will  be  presumptive  evidence 
that  they  continue  to  deal  upon  the  same 
terms.  1  Atk.  Ch.  235  ;  6  Term,  19.  If  a 
debtor,  who  has  already  pledged  property  to 
secure  a  loan,  borrow  a  further  sum,  it  will 
be  understood  that  the  creditor's  lien  is  for 
the  whole  debt.    2  Vern.  Ch.  G91. 

5.  Liens  lohich  arise  from  express  agree- 
ment. A  general  or  particular  lien  may  be 
acquired  in  any  case  by  the  express  agree- 
ment of  the  parties.  Croke  Car.  271 ;  6 
Term,  14.  This  generally  happens  when 
goods  are  placed  in  the  hands  of  a  person  for 
the  execution  of  some  particular  purpose 
upon  them,  with  an  express  contract  that 
they  shall  be  considered  as  a  pledge  for  the 
labor  or  expense  which  the  execution  of  that 
purpose  may  occasion.  Or  it  exists  where 
property  is  merely  pawned  or  delivered  for 
bare  custody  to  another,  for  the  sole  purpose 
of  being  a  security  for  a  loan  made  to  the 
owner  on  the  credit  of  it.  Whitaker,  Liens, 
27.  And  if  a  number  of  tradesmen,  not 
obliged  by  law  to  receive  the  goods  of  any 
one  who  oners,  for  the  purposes  of  their  trade, 
agree  not  to  receive  goods  unless  they  may 
be  held  subject  to  a  general  lien  for  the 
balance  due  them,  and  the  bailor  knows  this, 
and  leaves  the  goods,  the  lien  attaches.  6 
Term,  14 ;  3  Bos.  &  P.  42.  And  the  same  is 
true,  of  course,  of  an  individual  under  similar 
circumstances. 

6.  But  where  the  tradesman  is  obliged  to 
receive  employment  from  any  one  who  offers, 
a  mere  notice  will  not  be  enough  to  give  this 
lien  with  implied  assent,  but  express  assent 
must  be  shown.  6  Term,  14.  Among  the 
different  classes  who  have  liens  by  the  com- 
mon law,  in  the  absence  of  any  special  agree- 
ment, are — 

Innkeepers.  They  may  detain  a  horse  for 
his  keeping,  2  Ld.  llaym.  3G6 ;  8  Mod.  173  ; 
6  Term,  141,  if  he  belong  to  a  guest,  11 
Barb.  N.  Y.  41  ;  but  not  sell  him,  F.  Moore, 
876  ;  Bacon,  Abr.  Inns  (D);  8  Mod.  173;  ex- 
cept by  custom  of  London  and  Exeter,  F. 
Moore,  87G ;  and  cannot  retake  the  horse  after 
giving  him  up.  8  Mod.  173  ;  Ilob.  42  ;  Mete. 
Yelv.  G7-  They  may  detain  the  goods  of  a 
traveller,  but  not  of  a  boarder.  8  Rich.  So. 
C.  423.  Their  lien  is  a  particular  lien.  9 
East,  433;  Croke  Car.  271  ;  2  E.  D.  Smith, 
N.  Y.  195. 

Warehousemen  have  a  particular  lien.  18 
111.  28G  ;  34  Eng.  L.  &  Eq.  1 IG ;  31  Miss.  2G1 ; 
13  Ark.  437. 

Tailors  have  a  particular  lien.  Croke  Car, 
271;  9  East,  433. 

Common  carriers,  for  transportation  of 
goods,  1  Ld.  Kaym.  752;  6  East,  519;  7  id. 
224;  1  Dougl.  Mich.  1;  Wright,  Ohio,  21G ; 
24  Me.  339 ;  but  not  if  the  goods  are  taken 
tortiously  from  the  owner's  possession,  where 
the  carrier  is  innocent,  1  Dougl.  Mich.  1; 


2  Hall,  N.  Y.  561 ;  5  Cush.  Mass.  137  ;  contra, 
6  East,  519  ;  6  Whart.  Penn.  418;  and  on  a 
passenger  for  his  passage-money.  2  Campb. 
631.  Part  of  the  goods  may  be  detained  for 
the  whole  freight  of  goods  belonging  to  the 
same  person.    6  East,  622. 

H.  Bailees  for  hire,  generally,  for  work  done 
by  them.  6  Term,  14;  3  Selwyn,  Nisi  P. 
1 163  ;  4  Term,  260  ;  26  Miss.  182  ;  4  AYend. 
N.Y.292.  Awharfnger.  Ware, Dist.Ct. 354. 

An  agister  of  cattle  has  no  lien,  Croke  Car. 
271 ;  nor  a  livery-stable  keeper,  2  Ld.  Raym. 
866  ;  6  East,  509  ;  35  Me.  153  ;  otherwise  in 
Pennsylvania.    23  Penn.  St.  193. 

Attorneys  and  solicitors  have  a  lien  upon 
papers  of  their  clients,  12  Wend.  N.  Y.  261 ; 
2Aik.Vt.l62;  14Vt.485;  11  N.  11. 163  ;  11 
Miss.  225  ;  and  also  upon  judgments  obtained 
by  them,  20  Pick.  Mass.  259;  2  Mete.  Mass. 
458  ;  10  Barb.  N.  Y.  67 ;  4  Sandf.  N.  Y.  661 ; 
Wright,  Ohio,  485  ;  30  Me.  152:  15  Vt.  544; 
not  in  Pennsylvania.  7  Penn.  St.  376.  This 
lien  is  subject  to  some  restrictions.  Mete. 
Yelv.  67/;  34  Me.  20;  21  N.  H.  339;  22 
Pick.  Mass.  210. 

Clerks  of  courts  have  a  lien  on  papers  for 
their  fees.  3  Atk.  Ch.  727;  2  P.  Will.  460 ; 
2Ves.  Ch.  111. 

Bankers  have  a  lien  on  all  securities  left 
with  them  by  their  employers.  5  Term,  488; 
1  Esp.  66 ;  3  Gilm.  Va.  233  ;  1  How.  234. 

8.  Factors  and  brokers  have  a  lien  on  goods 
and  papers,  3  Term,  119 ;  1  Johns.  Cas.  N. 
Y.437,n.;  8  Wheat.  268;  28Vt.ll8;  34  Me. 
582 ;  on  part  of  the  goods  for  the  whole  claim, 
6  East,  622  ;  34  Me.  582 ;  but  only  for  such 
goods  as  come  to  them  as  factors.  11  Eng. 
L.  &  Eq.  528. 

The  vendor  of  goods,  for  the  price,  so  long 
as  he  retains  possession.  7  East,  574 ;  1  II. 
Blackst.  363  ;  Hob.  41 ;  2  Blackstone^Comm, 
448;  2  Swan,  Tenn.  661;  6  McLean,  C.  C. 
472. 

Pawnees,  from  the  very  nature  of  their  con- 
tract, 15  Mass.  408;  2  Vt,309;  9  Wend.  N. 
Y.  345;  3  Mo.  219;  but  only  where  the 
pawner  has  authority  to  make  such  pledge. 

3  Atk.  Ch.  44;  2  Campb.  336,  n.  A  pledge, 
even  where  the  pawnee  is  innocent,  does  not 
bind  the  owner,  unless  the  pawner  has  au* 
thority  to  make  the  pledge.  Paley,  Ag.  151 ; 
1  Vern.  Ch.  407;  2  Stark.  21 ;  1  Mas.  C.  C. 
440;  2  Mass.  398;  4  Johns.  N.  Y..  103;.  1 
Maule  &  S.  180.  The  pawnee  does  not  have 
a  general  lien.    15  Mass.  490.. 

9.  Requisites  as  to  Creation.  In  all 
these  cases,  to  give  rise  to  the  lien,  there  must 
have  been  a  delivery  of  the  property;  it  mast 
have  come  into  the  possession  of  the  party 
claiming  the  lien,  or  his  agent.  3  Term,  119 ; 
6  East,  25',  n. 

A  question  mar  arise  by  whom  the  delivery 
is  to  be  made.  Where  a  person,  in  pursuance 
of  the  authority  and  directions  of  the  owner  of 
property,  delivers-  it  to  a  tradesman  for  the 
execution  of  the  purposes  of  his  trade  upon 
it,  the  tradesman  will  not  have  a  general 
lien  against  the  owner  for  a  balance  due 
from  the  person  delivering  it,  if  he  knew 


LIEN 


49 


LIEN 


that  the  one  delivering  was  not  the  real  owner. 
1  East,  335;  2  id.  52S;  2  Campb.  218;  Parke, 
Cas.  170;  2  Atk.  Ch.  114.  Thus,  a  carrier, 
who,  by  the  usage  of  trade,  is  to  be  paid  by 
the  consignor,  has  no  lien  for  a  general 
balance  against  the  consignee.  5  Bos.  &  P. 
04.  Nor  can  a  claim  against  the  consignee 
destroy  the  consignor's  right  of  stoppage  in 
transitu.  3  Bos.  &  P.  42.  But  a  particular 
lien  may  undoubtedly  be  derived  through  the 
acts  of  agents  acting  within  the  scope  of  their 
employment.  9  East,  233 ;  3  Bos.  &  P.  119; 
3  Esp.  182;  2  East,  237.  And  the  same 
would  be  true  of  a  general  lien  against  the 
owner  for  a  balance  due  from  him.  Whita- 
ker.  Liens,  39. 

10.  No  lien  exists  where  the  party  claim- 
ing it  acquires  possession  by  wrong,  2  Term, 
485,  or  by  misrepresentation ;  1  Campb.  12, 
or  by  his  unauthorized  and  voluntary  act,  1 
Strange,  051 ;  8  Term,  310,010  ;  2  H.Blackst. 
254;  3  W.  Blackst.  1117.  But  see  4  Burr. 
2218. 

No  lien  exists  where  the  act  of  the  servant 
or  agent  delivering  the  property  is  totally  un- 
authorized, and  the  pledge  of  it  is  tortious 
against  the  owner,  whether  delivered  as  a 
pledge  or  for  the  execution  of  the  purposes  of 
a  trade  thereupon.  5  Ves.  Ch.  Ill ;  0  East, 
17 ;  4  Esp.  174;  5  Term,  004.  A  pledge,  even 
when  the  pawner  is  innocent,  does  not  bind 
the  owner  unless  the  pawner  had  authority. 
Paley,  Ag.  151;  1  Vern.  Ch.  407;  2  Stark. 
21  ;  1  Mas.  C.  C.  440;  2  Mass.  398;  4  Johns. 
N.  Y.  103;  1  Maule  &  S.  140. 

A  delivery  by  a  debtor  for  the  purpose  of 
preferring  a  creditor  will  not  be  allowed  to 
operate  as  a  delivery  sufficient  for  a  lien  to 
attach.  4  Burr.  2239:  3  Ves.  Ch.  85;  2 
Campb.  579;  11  East,  250. 

11.  Waiver  of  Liens.  Possession  is  a 
necessary  element  of  common-law  liens  ;  and 
if  the  creditor  once  knowingly  parts  with  that 
possession  after  the  lien  attaches,  the  lien  is 
gone.  Strange,  550;  1  Atk.  Ch.  254;  Ambl. 
252:  Dougl.  97;  5  Ohio,  88;  0  East,  25,  n.; 
7  id.  5;  3  Term,  119;  2  Ed.  Ch.  181;  5  Binn. 
Penn.  398:  3  Am.  Law  Jour.  128;  4  N.  Y. 
497  ;  4  Den.  N.  Y.  498;  42  Me.  50;  11  Cush. 
Mass.  231;  2  Swan,  Tenn.  501;  23  Vt.  217. 
But  there  may  be  a  special  agreement  ex- 
tending the  lien,  though  not  to  affect  third 
persons.  30  Wend.  N.  Y.  407.  The  delivery 
may  be  constructive,  Ambl.  252 ;  and  so  may 
possession.  5  Ga.  153.  A  lien  cannot  be 
transferred,  8  Pick.  Mass.  73  ;  but  property 
subject  to  a  lien  may  be  delivered  to  a  third 
person,  as  to  the  creditor's  servant,  with  no- 
tice of  the  lien,  so  as  to  preserve  the  lien  of 
the  original  creditor.  2  East,  529 ;  7  id.  5. 
But  it  must  not  be  delivered  to  the  owner  or 
his  agent.  Whitaker,  Liens,  71,  n.;  2  East, 
529  ;  4  Johns.  N.  Y.  103.  But  if  the  property 
be  of  a  perishable  nature,  possession  may  be 
given  to  the  owner  under  proper  agreements. 
1  Atk.  Ch.  235  ;  8  Term,  199. 

Neglect  to  insist  upon  a  lien  in  giving  rea- 
.<ons  for  a  refusal  to  deliver  property  on  de- 
mand, has  been  held  a  waiver.    1  Campb. 
Vol.  II.— 4 


410,  n. ;  7  Ind.  21 ;  13  Ark.  437 ;  2  Blackf.  Ind. 
405. 

12.  Where  there  is  a  special  agreement 
made,  or  act  done,  inconsistent  with  the  exist- 
ence of  the  lien,  such  as  an  agreement  to  give 
credit,  or  where  a  distinct  security  is  taken, 
or  the  possession  of  the  property  is  acquired 
for  another  distinct  purpose,  and  for  that 
only,  or  where  the  property  is  attached  by 
the  creditor,  no  lien  arises.    10  Ves.  Ch.  275 ; 

4  Campb.  140 ;  2  Marsh.  339;  3  Anstr.  881 ; 

5  Maule  &  S.  180;  Mete.  Yelv.  07  c;  8  N. 
H.  441;  17  Pick.  Mass.  140;  15  Mass.  389; 
4  Vt.  549.  But  such  agreement  must  be 
clearly  inconsistent  with  the  lien.  1  Dutch. 
N.  J.  443  ;  32  Me.  319. 

The  only  remedy  or  use  of  the  lien  at  com- 
mon law  is  to  allow  the  creditor  to  retain 
possession  of  the  goods.  33  Me.  438  ;  1  Ma^-. 
C.  C.  319.  And  he  may  do  this  against 
assignees  of  the  debtor.    1  Burr.  489. 

13.  The  Civil  Law  Lien.  The  civil  law 
embraces,  under  the  head  of  mortgage  and 
privilege,  the  peculiar  securities  which,  in 
the  common  and  maritime  law,  and  equity, 
are  termed  liens. 

In  regard  to  privilege,  Domat  says,  "We 
do  not  reckon  in  the  number  of  privileges  the 
preference  which  the  creditor  has  on  the 
movables  that  have  been  given  him  in  a 
pawn,  and  which  are  in  his  custody.  The 
privilege  of  a  creditor  is  the  distinguishing 
right  which  the  nature  of  his  credit  gives 
him,  and  which  makes  him  to  be  preferred 
before  other  creditors,  even  those  who  are 
prior  in  time,  and  who  have  mortgages. 
Domat,  part  1,  lib.  iii.  tit.  i.  sect.  v. 

These  privileges  were  of  two  kinds  :  one 
gave  a  preference  on  all  the  goods,  without 
any  particular  assignment  on  any  one  thing; 
the  other  secures  to  the  creditors  their  secu- 
rity on  certain  things,  and  not  on  the  other 
goods. 

14.  Among  creditors  who  are  privileged, 
there  is  no  priority  of  time,  but  each  one 
takes  in  the  order  of  his  privilege,  and  all 
creditors  who  have  a  privilege  of  the  same 
kind  take  proportionately  although  their 
debts  be  of  different  dates.  And  all  privi- 
leges have  equally  a  preference  over  those  of 
an  inferior  class,  and  over  debts  which  do  not 
have  this  favored  character,  whether  subse- 
quent or  antecedent  in  point  of  time. 

The  vendor  of  immovable  property,  for 
which  payment  has  not  been  made,  is  pre- 
ferred before  creditors  of  the  purchaser,  and 
all  other  persons,  as  to  the  thing  sold.  By 
the  Roman  law,  this  principle  applies  equally 
to  movables  and  immovables ;  and  the  seller 
may  seize  upon  the  property  in  the  hands  of 
his  vendee,  or  wherever  he  can  find  it. 

So,  too,  a  person  who  has  lent  money  to  re- 
pair a  thing,  or  to  make  improvements,  has 
this  privilege.  And  this,  though  he  lends  to 
workmen  or  architects,  etc.,  if  it  be  done  with 
the  knowledge  of  the  owner. 

Carriers  have  a  privilege  not  only  for  the 
price  of  carriage,  but  for  money  paid  on  ac- 
count of  the  goods. 


LIEN 


50 


LIEN 


Landlords  have  a  privilege  for  the  rents 
due  from  their  tenants  even  on  the  furniture 
of  the  under-tenants,  if  there  be  a  sub-lease. 
But  not  if  payment  has  been  made  to  the 
tenant  by  an  immediate  lessor;  although  a 
payment  made  by  the  sub-tenant  to  the  land- 
lord would  be  good  as  against  the  tenant. 

15.  The  privilege  was  lost  by  an  ovation, 
or  by  any  thing  in  the  original  contract 
which  showed  that  the  vendor  had  taken 
some  other  security  inconsistent  with  the 
privilege.  See  Domat,  part  i.  lib.  iii.  tit.  i. 
sect.  V. 

Mortgages  in  the  civil  law  are  of  two  kinds, 
conventional  and  legal.  A  conventional 
mortgage  results  from  the  direct  act  or  cove- 
nant of  the  parties.  A  legal  mortgage  arises 
by  mere  act  of  law. 

A  mortgage  may  be  acquired  in  three 
ways. 

First,  with  the  consent  of  the  debtor,  by 
his  agreement. 

Second,  without  the  owner's  consent,  by 
the  quality  and  bare  effect  of  the  engage- 
ment, the  nature  of  which  is  such  that  the 
law  has  annexed  to  it  the  security  of  a  mort- 
gage. 

Third,  where  a  mortgage  is  acquired  by 
the  authority  of  justice:  as  where  a  creditor 
who  had  no  mortgage  obtains  a  decree  of 
condemnation  in  his  favor. 

16.  When  the  creditor  is  put  into  posses- 
sion of  the  thing,  movable  or  immovable,  he 
has  a  right  to  keep  it  until  he  is  paid  what  is 
owing  him  ;  and  the  debtor  cannot  turn  the 
creditor  out  of  possession,  nor  make  use  of 
his  own  thing  without  the  consent  of  the 
creditor. 

Effect  of  a  Mortgage.  First,  the  creditor 
has  a  right  to  sell  the  thing  pledged,  whether 
the  creditor  has  it  in  his  possession  or  not. 
Under  the  French  law,  it  was  a  right  to  have 
it  sold.    Cushing's  Domat,  p.  647. 

Second,  a  right  on  the  part  of  the  creditor 
to  follow  the  property,  into  whosoever  hands 
it  has  come,  whether  movable  or  immovable. 

Third,  a  preference  of  the  first  creditor  to 
whom  the  property  is  mortgaged,  and  a  right 
on  his  part  to  follow  the  property  into  the 
hands  oi  the  other  creditors. 

Fourth,  the  mortgage  is  a  security  for  all 
the  consequences  of  the  original  debt,  as 
damages,  interest,  expenses  in  preserving,  etc. 

See,  generally,  Domat,  part  i.  lib.  iii.  tit. 
i.;  Guyot,  Rep.  Univ.  tit.  Frivihgium;  Cush- 
ing's Domat ;  Massi,  Droit  Commerciel. 

17.  Equitable  Liens  are  such  as  exist 
in  equity,  and  of  which  courts  of  equity 
alone  take  cognizance. 

A  lien  is  neither  a /lo  in  re  nor  njua  ad  rem  ;  it 
is  not  property  in  the  Ihini,  nor  does  it  constitute 
a  right  of  action  for  the  thinj;.  It  more  properly 
constitutes  a  charge  upon  th.i  thing.  In  regard  to 
thcHo  liens,  it  may  be  generally  stated  that  they 
arise  from  constructive  trusts.  They  are,  therefore, 
wholly  independent  of  the  possession  of  the  thing 
to  which  they  are  attached  as  an  incumbrance; 
and  thoy  can  be  enforced  only  in  courts  of  etjuity. 
btory.  E(i.  Jur.  ^  1217. 

An  ecjuitablo  lien  on  a  sale  of  realty  is  very  differ- 


ent from  a  lien  at  law;  for  it  operates  after  the 
possession  has  been  changed,  and  is  available  by 
way  of  charge  instead  of  detainer.  Adams,  Eq. 
Jur.  127. 

18.  The  vendor  of  land  has  a  lien  for  the 
unpaid  purchase-money.  The  principle  is 
stated,  "where  a  conveyance  is  made  prema- 
turely before  payment  of  the  price,  the  money 
is  a  charge  on  the  estate  in  the  hands  of  the 
vendee,"  4  Kent,  Comm.  151 ;  Story,  Eq. 
Jur.  g  1217  :  1  W.  Blackst.  950 ;  15  Ves.  Ch. 
329  ;  1  Johns.  Ch.  N.  Y.  308  ;  1  Schoales  & 
L.  132  ;  6  Johns.  N.  Y.  402  ;  7  Wheat.  46  ; 
17  Ves.  Ch.  433 ;  10  Pet.  625 ;  and  in  the 
hands  of  heirs  or  subsequent  purchasers  with 
notice,  15  Ves.  Ch.  337 ;  3  Russ.  488 ;  1 
Schoales  &  L.  135 ;  against  assignees  in 
bankruptcy,  under  a  general  assignment,  1 
Brown,  Ch.  420  ;  9  Ves.  Ch.  100 ;  2  Ves.  &  B. 
Ch.  306  ;  1  Vern.  Ch.  267  ;  1  Madd.  Ch.  356; 
and  whether  the  estate  is  actually  conveyed 
or  only  contracted  to  be  conveyed.  Sugden, 
Vend.  c.  12,  p.  541 ;  2  Dick.  Ch.  730;  12  Ad. 
&  E.  632. 

So,  too,  where  money  has  been  paid  prema- 
turely before  conveyance  made,  the  purchaser 
and  his  representatives  have  a  lien.  3 
Younge  &  J.  Exch.  264;  11  Price,  Exch.  58; 
1  P.  Will.  278. 

So  where  the  purchase-money  has  been 
deposited  in  the  hands  of  a  third  person,  to 
cover  incumbrances.  1  Turn.  &  R.  469 ;  1  Ves. 
Ch.  478.  Yet  a  lien  will  not  be  created  for  a 
third  party,  who  was  to  receive  an  annuity 
under  a  covenant  as  a  part  of  the  considera- 
tion for  the  conveyance.  3  Sim.  Ch.  499;  1 
Mylne  &  K.  Ch.  297 ;  2  Keen,  81. 

19.  The  deposit  of  the  title-deeds  of  an 
estate  gives  an  equitable  lien  on  the  estate. 
This  lien  is  not  favored,  and  is  confined 
strictly  to  an  actual,  immediate,  and  bondjide 
deposit  of  the  title-deeds  with  the  creditor, 
as  a  security,  in  order  to  create  the  lien.  12 
Ves.  Ch.  197;  Story,  Eq.  Jur.  ^020  ;  4  Kent, 
Comm.  150. 

In  regard  to  the  effect  of  a  conveyance  ta 
different  alienees,  subject  to  a  lien,  a  differ-, 
ence  exists  between  the  rules  in  England  and 
in  the  United  States.  In  England,  the  alienee^ 
must  divide  the  incumbrance.  1  Younge  &. 
C.  401 ;  2  Atk.  Ch.  448 ;  8  Ves.  Ch.  391 ;  1 
Lloyd  &  G.  252. 

One  joint  tenant  has,  in  many  cases,  a 
lien  on  the  common  estate  for  repairs  put  on 
by  himself  above  his  share  of  the  liability. 
1  Ball  &  B.  199 ;  Story,  Eq.  Jur.  ^  1236  ; 
Sugden,  Vend.  611. 

And  equity  applies  this  principle  even  to 
cases  where  tenant  for  life  makes  permanent 
improvements  in  good  faith.  1  Sim.  &  S. 
552.  So  where  a  party  has  made  improve^ 
ments  under  a  defective  title.  6  Madd.  Ch. 
2;  9  Mod.  11. 

So,  too,  there  is  a  lien  where  property  ia 
conveyed  inter  vivos,  or  is  bequeathed  or  de- 
vised by  last  will  and  testament,  subject  to  a 
charge  for  the  payment  of  debts,  or  to  other 
charges  in  favor  of  third  persons.  Story,  Ec[. 
Jur.  g  1244.    A  distinction  must  be  kept  in 


LIEN 


51 


LIEN 


mind  between  a  devise  in  trust  to  pay  certain 
sums,  and  a  devise  subject  to  char»!;es. 

A  covenant  to  convey  and  settle  lands  does 
not  give  the  covenantee  a  lien;  but  was  held 
to  do  so  in  case  of  a  covenant  to  settle  lands 
in  lieu  of  dower.  3  Brown,  Ch.  489  ;  1  Ves. 
Ch.  451 ;  1  Maddox,  Chanc.  Pract.  471. 

20.  Waiver.  The  lien  may  be  waived  by 
agreement;  but  postponement  of  the  day  of 
payment  is  not  a  waiver,  not  being  inconsist- 
ent with  the  nature  of  the  lien ;  nor  taking 
personal  security.  Adams,  Eq.  Jur.  128  ;  1 
Johns.  Ch.  N.  Y.  308 ;  2  Rand.  Va.  428  ;  2 
Ilumphr.  Tenn.  248;  1  Mas.  C.  C.  192;  2 
Ohio,  383;  1  Blackf.  Ind.  246;  1  Paige, 
Ch.  N.  Y.  502;  6  B.  Monr.  Ky.  174;  6  Yerg. 
Tenn.  50  ;  3  Ga.  333  ;  Story,  Eq.  Jur.  ^  1226 ; 
1  Ball  &  B.  Ch.  Ir.  514 ;  15  Ves.  Ch.  348.  A 
bill  or  note  payable  at  a  future  day  is  gene- 
rally held  merely  a  means  of  payment,  and 
not  a  security  destroying  the  lien.  1  Schoales 
&  L.  Ch.  135;  2  Ves.  &  B.  Ch.  Ir.  306;  1 
Madd.  Ch.  349 ;  2  Rose,  79 ;  2  Ball  &  B.  Ch. 
Ir.  514.  But  if  it  be  the  note  of  a  third 
party,  or  an  independent  security  on  real 
estate,  it  would  generally  be  a  waiver.  Story, 
Eq.  Jur.  I  1226,  n.;  4  Kent,  Comm.  151;  4 
Wheat.  290;  1  Paige,  Ch.  N.  Y.  20;  9  Cow. 
N.  Y.  316 ;  1  Mas.  C.  C.  212.  And,  generally, 
the  question  of  relinquishment  will  turn  upon 
the  facts  of  each  case.  6  Ves.  Ch.  752 ;  15 
id.  329;  3  Russ.  Ch.  488;  3  Sugden,  Vend.  c. 
18;  8  J.  J.  Marsh.  Ky.  553. 

21.  Maritime  Liens.  Maritime  liens  do 
not  include  or  require  possession.  The  word 
lien  is  used  in  maritime  law,  not  in  the  strict 
legal  sense  in  which  we  understand  it  in 
courts  of  common  law,  in  which  case  there 
could  be  no  lien  where  there  was  no  posses- 
sion, actual  or  constructive ;  but  to  express, 
as  if  by  analogy,  the  nature  of  claims  which 
neither  presuppose  nor  originate  in  posses- 
sion. 22  Eng.  L.  &  Eq.  62.  See  15  Bost. 
Law  Rep.  555 ;  16  id.  1,  264 ;  17  id.  93,  421. 
A  distinction  is  made  in  the  United  States 
between  qualified  maritime  liens,  which  de- 
pend upon  possession,  and  absolute  maritime 
liens,  which  do  not  require  nor  depend  upon 
possession.    7  How.  729. 

22.  The  shipper  of  goods  has  a  lien  upon 
the  ship,  for  the  value  of  the  goods  sent, 
which  can  be  enforced  in  admiralty,  1 
Blatchf.  &  H.  Adm.  300;  Olcott,  Adm.  43; 
1  Blatchf.  C.  C.  173 :  Ware,  Dist.  Ct.  188 ;  1 
Sumn.  C.  C.  551;  12  How.  272;  and,  gene- 
rally, every  act  of  the  master  binds  the  ves- 
sel, if  it  be  done  within  the  scope  of  his 
authority.  17  Me.  147;  1  W.  Rob.  Adm. 
392  ;  2  Eng.  L.  &  Eq.  536;  18  How.  182; 
19  id.  22,  where  the  possession  of  the  mas- 
ter is  not  tortious,  but  under  a  color  of  right.  \ 
6  McLean,  C.  C.  484.  This  does  not  apply 
to  contracts  of  material  men  with  the  master 
of  a  domestic  ship,  1  Conkling,  Adm.;  and 
the  act  must  have  been  within  the  scope  of 
the  master's  emplovment.  18  How.  182.  See 
Crabb,  23;  1  C.  Rob.  Adm.  391-406.  This 
lien  follows  the  ship  even  in  the  hands  of  a 
purchaser,  without  notice  before  the  creditor 


I  has  had  a  reasonable  opportunity  to  enforce 
I  his  lien.    Ware,  Dist.  Ct.  188.    If  the  master 
I  borrow  money  for  the  ship's  necessity,  the 
lender  has  a  lien  on  the  ship  for  the  amount. 

3  Yeates,  Penn.  131;  4  Dall.  Penn.  225;  8 
'  Me.  298. 

I  23.  The  owner  of  a  ship  has  a  lien  on  the 
!  cargo  carried  for  the  freight  earned,  whether 
!  reserved  by  a  bill  of  lading  or  not.  12  Mod. 
'447;  6  East,  622;  4  Campb.  298;  7  Taunt, 
i  14 ;  4  Barnew.  &  Aid.  630  ;  2  Brod.  &  B.  410 ; 
I  4  Mass.  91 ;  6  Pick.  Mass.  248 ;  18  Johns.  N. 
!  Y.  157 ;  5  Wend.  N.  Y.  315  ;  5  Sandf.  N.  Y. 
97 ;  5  Ohio,  88  ;  4  Wash.  C.  C.  110  ;  8  Wheat. 

005  ;  Ware,  Dist.  Ct.  149  ;  1  Sumn.  C.  C.  551 ; 

2  id.  589  ;  2  Woodb.  &  M.  C.  C.  151. 
This  lien  is,  at  most,  only  a  qualified  mari- 
time lien.    See  1  Parsons,  Mar.  Law,  143,  n. 
The  lien  exists  in  case  of  a  chartered  ship, 

4  Cow.  N.  Y.  470;  1  Paine,  C.  C.  358;  4 
Barnew.  &  Aid.  630  ;  20  Bost.  Law  Rep.  669 ; 
8  Wheat.  605,  to  the  extent  of  the  freight 
due  under  the  bill  of  lading.  2  Atk.  Ch. 
621;  1  Barnew.  &  Aid.  712;  4  id.  630;  1 
Sumn.  C.  C.  551.  But  if  the  charterer  takes 
possession  and  management  of  the  ship,  he 
has  the  lien.  1  Cowp.  143  ;  8  Cranch,  39 ; 
0  Pick.  Mass.  248  ;  4  Cow.  N.  Y.  470  ;  Ware, 
Dist.  Ct.  149  ;  4  Mann.  &  G.  502;  26  Eng.  L. 

6  Eq.  136.  No  lien  for  freight  attaches 
before  the  ship  has  broken  ground.  1  Bos. 
&  P.  634 ;  5  Binn.  Penn.  392 ;  3  Gray,  Mass. 
92.  But  see,  as  to  the  damages  for  re- 
moving goods  from  the  ship  before  she  sails, 
28  Eng.  L.  &  Eq.  210 ;  1  C.  B.  328 ;  2  Carr. 
&  P.  334 ;  19  Bost.  Law  Rep.  579 ;  2  Gray, 
Mass.  92. 

24.  No  lien  exists  for  dead  freight.  15 
East,  547;  3  Maule  &  S.  205.  The  lien 
attaches  only  for  freight  earned.  3  Maule  & 
S.  205  ;  Ware,  Dist.  Ct.  149;  2  Brev.  No.  C. 
233.  The  lien  is  lost  by  a  delivery  of  the 
goods,  6  Hill,  N.  Y.  43  ;  but  not  if  the  de- 
livery be  involuntary  or  procured  by  fraud. 
6  Hill,  N.  Y.  43.  So  it  is  by  stipulations  in- 
consistent with  its  exercise,  17  How.  53;  10 
Conn.  104 ;  6  Pick.  Mass.  248  ;  4  Barnew.  & 
Aid.  50;  4  Mann.  &  G.  502;  4  Bingh.  729; 

3  Barnew.  &  Aid.  497 ;  32  Eng.  L.  &  Eq.  210: 
as,  by  an  agreement  to  receive  the  freight  at 
a  day  subsequent  to  the  entire  delivery  of  the 
goods, — a  distinction  being,  however,  taken 
between  the  unloading  or  arrival  of  the  ship, 
and  the  delivery  of  the  goods.  1  Sumn.  C. 
C.  551;  18  Johns.  N,  Y.  157  ;  14  Mees.  &  W. 
Exch.  794 ;  2  Sumn.  C.  C.  589 ;  5  Maule  & 
S.  180;  10  Mass.  510. 

A  third  person  cannot  take  advantage  of 
the  existence  of  such  lien.  3  East,  85.  A 
vendor,  before  exercising  right  of  stoppage 
in  transitu,  must  discharge  this  lien  by  pay- 
ment of  freight.  1  Parsons,  Mar.  L.  350; 
15  Me.  314;  3  Bos.  &  P.  42. 

25.  Master  s  Lien.  In  England,  the  mas- 
ter has  no  lien,  at  common  law,  on  the  ship 
for  wages,  nor  disbursements.  9  East,  426  ; 
33  Eng.  L.  &  Eq.  600;  1  Barnew.  &  Aid. 
575  ;  5  Dowl.  &  R.  552  ;  6  How.  112. 

But  now,  by  the  one-hundred-and-ninety- 


LIEN 


52 


LIEN 


first  section  of  the  English  Merchant  Ship- 
ping Act  of  1854,  it  is  provided  that  "  Every 
master  of  a  ship  shall,  so  far  as  the  case  per- 
mits, have  the  same  rights,  liens,  and  reme- 
dies for  the  amount  of  his  wages,  which,  by 
this  act,  or  any  law  or  custom,  any  seaman, 
not  being  a  master,  has  for  the  money  of  his 
wages."  And  it  has  been  properly  held  by 
Judge  Sprague,  of  the  United  States  district 
court,  that  this  liefi  of  the  master  on  an  Eng- 
lish vessel  may  be  reinforced  in  the  admi- 
ralty courts  of  the  United  States.  22  Bost. 
Law  Rep.  150. 

26.  In  the  United  States,  he  has  no  lien 
for  his  wages.  2  Paine,  C.  C.  201 ;  8  Serg. 
&  R.  Penn.  18  ;  1  Pet.  Adm.  223  ;  11  id.  175 ; 

3  Mas.  C.  C.  91;  14  Penn.  St.  34;  18  Pick. 
Mass.  530.  This  does  not  apply  to  one  not 
master  in  fact.  Bee,  Adm.  198.  As  to  lien 
for  disbursements,  see  2  Curt.  C.  C.  427 ;  14 
Penn.  St.  34;  11  Pet.  175.  He  may  be  sub- 
stituted if  he  discharge  a  lien.  1  Pet.  Adm. 
223  ;  Bee,  Adm.  116  ;  3  Mas.  C.  C.  255.  But 
he  has  a  lien  on  the  freight  for  disbursements, 

4  Mass.  91 ;  11  id.  72 ;  5  Wend.  N.  Y.  315 ; 
18  Pick.  N.  Y.  530 ;  for  wages  in  a  peculiar 
case,  Ware,  149  ;  and  on  the  cargo,  where  it 
belongs  to  the  ship-owners.  14  Me.  180. 
He  may,  therefore,  detain  goods  against  the 
shipper  or  consignee,  even  after  payment  to 
owner,  if  the  master  give  reasonable  notice. 
11  Mass.  72 ;  5  Wend.  N.  Y.  315  ;  4  Esp.  22. 
But  see  5  Dowl.  &  R.  552.  The  master  may 
retain  goods  till  a  contribution  bond  is  signed. 
11  Johns.  N.  Y.  23;  2  Sandf.  N.  Y.  55;  11 
Me.  150  ;  13  id.  357. 

The  seamen's  lien  for  wages  attaches 
to  the  ship  and  freight,  and  the  proceeds  of 
both,  and  follows  them  into  whosoever  hands 
they  come,  2  Sumn.  C.  C.  443  ;  2  Parsons, 
Mar.  L.  579  ;  and  lies  against  a  part,  or  the 
whole,  of  the  fund,  3  Sumn.  C.  C.  50,  286  ; 
but  not  the  cargo.  5  Pet.  675.  It  applies  to 
proceeds  of  a  vessel  sold  under  attachment  of 
a  state  court.  2  Wall.  C.  C.  592,  overruling 
1  Newb.  Adm.  215. 

This  lien  of  a  seaman  is  of  the  nature  of 
the  privilegium  of  the  civil  law,  does  not  de- 
pend upon  possession,  and  takes  precedence 
of  a  bottomry  bond  or  hypothecation.  2  Par- 
son, Mar.  Law,  581,  and  cases  cited ;  15 
Bost.  Law  Rep.  555  ;  16  id.  204  ;  Ware,  Dist. 
Ct.  134.  Taking  the  master's  order  does  not 
destroy  the  lien.  Ware,  Dist.  Ct.  185.  And 
sec  2  llagg.  Adm.  136.  Fishermen  on  shares 
have  it,  by  statute.  Generally,  all  persons 
serving  in  a  way  directly  and  materially  use- 
ful to  the  navigation  of  the  vessel.  Gilp. 
Adm.  505;  2  Ventr.  181;  3  Hagg.  Adm. 
376  ;  2  Pet.  Adm.  268  ;  Ware,  Dist.  Ct.  83  ;  1 
Bhitchf.  &  IL  Adm.  423  ;  1  Sumn.  C.  C.  384  ; 
1  Ld.  Raym.  .■>97  ;  2  Strange,  858.  A  woman 
has  it  if  she  [lerforms  seaman's  service.  1 
Hagg.  Adm.  187;  18  Bost.  Law  Rep.  672;  1 
N<!vvh.  Adm.  5.  It  lies  against  ships  owned 
by  private  persons,  but  not  against  govern- 
ment shi|)s  emjjloyed  in  the  pul)lic  service.  9 
Wh.'at.  409 ;  ?>  Sumn.  C.  C.  308. 

"ZH,  A  ship  broker,  who  obtains  a  crew,  has 


been  held  to  have  a  lien  for  his  services  and 
advances  for  their  wages.  1  Blatchf.  &  II. 
Adm.  189. 

Stevedores  have  no  lien.  Olcott,  Adm. 
120;  1  Wall.  Jr.  370. 

Material  men  have  a  lien  by  admiralty  law. 
They  are  those  whose  trade  it  is  to  build, 
repair,  or  equip  ships,  or  to  furnish  them 
with  tackle  and  provisions  necessary  in  any 
kind.  3  Hagg.  Adm.  129.  In  regard  to 
foreign  ships,  it  has  been  lately  held  that 
material  men  have  a  lien  on  the  ship  only 
when  the  supplies  were  necessary  and  could 
be  obtained  only  on  the  credit  of  the  ship. 
19  How.  359.  The  lien  for  repairs  continues 
only  as  long  as  they  retain  possession,  on  do- 
mestic ships,  Wright,  Ohio,  660;  4  Wheat. 
438  ;  1  Stor.  C.  C.  68 ;  and  is  gone  if  posses- 
sion is  left.  14  Conn.  404 ;  4  Wheat,  438  ;  4 
Wash.  C.  C.  453 ;  1  Parsons,  Mar.  Law,  492,  n. 
And  see  §  11. 

The  several  states  of  the  United  States  are 
foreign  to  each  other  in  this  respect. 

As  to  the  order  of  precedence  of  these 
liens,  see  Dav.  Dist.  Ct.  199;  Ware,  Dist.  Ct. 
2d  ed.  565  ;  2  Curt.  C.  C.  421.  Admiralty  for- 
merly took  jurisdiction  of  such  liens,  though 
not  strictly  maritime  liens,  7  Pet.  324 ;  1 
Wall.  Jr.  358  ;  12  Bost.  Law  Rep.  183;  but 
this  jurisdiction  is  now  questioned,  20  How. 
393,  'if  not  denied.    21  id.  4,  248. 

Giving  credit  will  not  be  a  waiver  of  a  lien 
on  a  foreign  ship,  unless  so  given  as  to  be  in- 
consistent with  the  exercise  of  the  lien.  7 
Pet.  324;  1  Sumn.  C.  C.  73 ;  5  Sandf.  N.  Y. 
342. 

Builders'  lien  may  be  placed  on  the  com- 
mon-law ground  that  a  workman  employing 
skill  and  labor  on  an  article  has  a  lien  upon 
it,  2  Rose,  91 ;  4  Barnew.  &  Aid.  341  ;  1 
W.  Rob.  Adm.  1;  Wright,  Ohio,  660;  4 
Wheat.  438;  1  Stor.  C.  C.  68  ;  and  a  lien  for 
the  purpose  of  finishing  the  ship,  where 
payments  are  made  by  instalments.  1  Par- 
sons, Mar.  Law.  75;  5  Barnew.  &  Aid.  942. 

30.  Collision.  In  case  of  collision  the 
injured  vessel  has  a  lien  upon  the  one  in 
fault  for  the  damage  done,  1  Notes  of  Cases, 
508  ;  22  Eng.  L.  &  Eq.  62 ;  Crabb,  580 ;  10 
Law  Rep.  264 ;  and  the  lien  lasts  a  reasonable 
time.    18  Bost.  Law  Rep.  91. 

A  part-owner,  merely  as  such,  has  no  lien 
whatever,  but  acquires  such  a  lien  when  any 
of  the  elements  of  partnership  or  agency, 
with  bailment  upon  which  his  lien  may  rest, 
enter  into  his  relation  with  the  other  part- 
owners.    1  Parsons,  Mar.  Law,  103. 

A  part-owner  who  has  advanced  more  than 
his  share  towards  building  a  vessel  has  no 
lien  on  her  for  such  surplus,  6  Pick.  Mass.  46, 
and  none,  it  is  said,  for  advances  on  account 
of  a  voyage.  4  Pick.  Mass.  456 ;  7  Bingh. 
709. 

That  the  relation  of  partners  must  exist  to 
give  the  lion.  20  Johns.  N.  Y.  61 ;  4  B. 
Monr.  Ky.  458  ;  8  Barnew.  k  C.  612  ;  Gilp. 
Dist.  Ct.  467;  4  Johns.  Ch.  N.  Y.  522;  6 
Pick.  Mass.  120;  5  Mann.  &  R.  25. 
1     And  part-owners  of  a  ship  may  become 


LIEN 


53 


LIEN 


partners  for  a  particular  venture.  1  Ves.  Sen. 
Oh.  497  ;  3  Woodb.  &  M.  C.  C.  193  ;  10  Mo, 
701 ;  9  Pick.  Mass.  334.  But  see  14  Penn. 
St.  34. 

31.  The  ship's  husband,  if  a  partner,  has 
a  partner's  lien  ;  if  not,  he  may  have  a  lien  in  j 
the  proceeds  of  the  voyaj^e,  8  Barnew.  &  C. 
C12;  16  Conn.  12,  23;  3  Woodb.  &  M.  C.  C. 
193 ;  or  of  the  ship  herself,  if  sold,  or  on  her 
documents,  if  any  of  these  have  come  into  his 
actual  possession.  And  the  lien  applies  to 
all  disbursements  and  liabilities  for  the  ship. 
But  it  is  doubtful  if  his  mere  office  gives  him 
a  lien.  1  Parsons,  Mar.  Law,  100 ;  2  Curt. 
C.  C.  427;  2  Ves.  &  B.  Ch.  Ir.  242;  Cowp. 
469. 

32.  Deposit  of  a  bill  of  lading  gives  a 
lien  for  the  amount  advanced  on  the  strength 
of  the  security.  5  Taunt.  558 ;  2  Wash.  C. 
C.  283. 

These  liens  of  part-owners  and  by  deposit 
of  a  bill  of  lading  are  not  maritime  liens, 
however,  and  could  not  be  enforced  in  admi- 
ralty. See  Collision;  Seamen's  Wages; 
Marshalling  of  Assets;  Master;  Captain; 
Privilege. 

33.  Statutory  Lien.  Under  this  head  it 
is  convenient  to  consider  some  of  those  liens 
which  subsist  at  common  law,  but  have  been 
extensively  modified  by  statutory  regulations, 
as  well  as  those  which  subsist  entirely  by 
force  of  statutory  regulations. 

The  principal  liens  of  this  class  are  judg- 
ment liens,  and  liens  of  material  men  and 
builders. 

Judgment  Lien.  At  common  law,  a  judg- 
ment is  a  lien  upon  real  property  from  the 
time  of  its  rendition.  Metcalf's  Yelv.  67  i; 
Sugden,  Vend.  306,  446. 

In  Alabama,  Georgia  and  Indiana,  a  judg- 
ment is  a  lien ;  in  the  latter  state,  for  ten 
years.  28  Ala.  n.  s.  328;  9  Ind.  92;  4 
McLean,  C.  C.  555  ;  19  Ga.  452. 

34.  In  Arkansas,  the  lien  commences  on 
delivery  of  execution  to  the  officer,  12  Ark. 
421 ;  18  id.  414;  and  the  lien  extends  to  after- 
acquired  lands.    13  Ark.  74. 

In  California,  an  appeal  suspends  the 
claim.    6  Cal.  130. 

In  Florida,  the  lien  attaches  from  the  ren- 
dition of  the  judgment.    6  Fla.  711. 

In  Kentucky,  the  lien  commences  by  deli- 
very of  execution  to  the  sheriff.  4  Pet.  336 ; 
1  Dan.  Ky.  360. 

In  Mississippi,  the  law  is  the  same  as  in 
Kentucky.  27  Miss.  480.  Liens  attach  in 
the  order  of  enrolment  of  the  judgments,  30 
Miss.  580,  and  apply  to  property  liable  to 
execution  and  sale  only.    23  Miss.  298. 

35.  In  Maryland,  a  judgment  rendered  by 
a  single  magistrate  does  not  give  a  lien,  11 
Md.  332 ;  8  id.  405  ;  nor  if  rendered  in  a  dif- 
ferent county,  until  transferred  to  the  county 
M'here  the  land  is  situated.    3  Md.  357. 

In  Missouri,  all  judgments  rendered  at  the 
same  term  and  in  the  same  court  must  divide 
pro  rata  the  amount  made  on  execution,  in 
case  it  prove  insufficient  to  satisfy  all.  21 
Mo.  144.  ^ 


In  the  New  England  States,  there  is, 
strictly  speaking,  no  judgment  lien,  but  lands 
are  attached  on  mesne  process,  and  a  lien 
thus  instituted.  2  Hill,  Abr.  c.  46  ;  28  Vt. 
546  ;  24  id.  228.  This  lien  covers  debt  and 
costs.  33  Me.  214.  And  the  lien  is  lost  unless 
execution  is  taken  out  within  a  reasonable 
time,  29  Vt.  198,  prescribed  by  statute  in 
most  of  the  states. 

36.  In  New  Jersey,  judgments  are  mar- 
shalled in  the  order  in  which  executions  issue. 
2Dutch.  N.J.  570. 

In  New  York,  a  judgment  lien  continues 
ten  years,  and  binds  after-acquired  lands,  14 
N.  Y.  16,  and  dates  from  the  time  it  is  given 
to  the  officer.  5  Du.  N.Y.  242.  But  see  2 
Paine,  C.  C.  251. 

In  North  Carolina,  it  exists,  probably,  if 
an  elegit  has  been  sued  out.  2  Murph.  No. 
C.  43. 

In  Ohio,  the  lien  relates  to  the  first  day  of 
the  term,  3  McLean,  C.  C.  140;  is  restricted 
to  the  county  ;  lasts  only  one  year ;  does  not 
bind  after-acquired  lands ;  and  covers  land 
and  incidents.    20  Ohio,  401. 

37.  In  Pennsylvania,  it  continues  five 
years  from  the  rendition  of  judgment,  but 
does  not  per  se  bind  after-acquired  lands.  23 
Penn.  St.  205  ;  27  id.  52 ;  28  id.  47. 

A  sale  under  decree  of  court  releases  this 
lien;  but  no  other  transfer  of  the  property 
affects  it.  22  Penn.  St.  406  ;  Sergeant,  Mech. 
Lien. 

In  South  Carolina  and  Tennessee,  a  judg- 
ment is  a  lien.  1  Sneed,  Tenn.  297 ;  11  How. 
348;  6  Rich.  So.  C.  513. 

In  Virginia,  9  Gratt,  Va.  131,  judgments 
obtained  at  the  same  time  divide  the  proceeds 
pro  rata,  if  there  is  not  enough  to  satisfy  all, 
2  Patt.  &  H.  11;  otherwise,  they  are  to  be 
satisfied  in  the  order  of  their  date.  12  Gratt. 
Va.  401. 

A  judgment  is  sometimes,  but  more  rarely, 
a  lien  upon  personal  property. 

38.  In  Georgia,  it  re-attaches  if  the  pro- 
perty has  been  removed  from  the  state  and 
then  brought  back.    7  Ga.  356. 

In  Maryland,  issuing  a  fi.  fa.  gives  the 
creditor  a  lien  from  the  time  of  putting  the 
execution  into  the  officer's  hands.    3  Md.  99. 

In  North  Carolina,  8  Ired.  No.  C.  63. 

In  South  Carolina,  5  Strobh.  So.  C.  149. 

In  Tennessee,  on  property  held  between  the 
teste  and  the  execution.    2  Swan,  Tenn.  292. 

In  New  York ;  but  not  if  the  execution  lie 
dormant.    7  Barb.  N.  Y.  341. 

And  see  2  Hill,  Abr.  c.  46. 

39.  Mechanics  and  Material  Men 
have,  in  many  of  the  states,  a  lien  upon  the 
buildings  which  they  have  repaired  or  con- 
structed, which,  being  in  the  nature,  gene- 
rally, of  the  civil  law  privilegium,  do  not 
require  possession,  commence  with  the  com- 
mencement of  the  work,  and  continue  a 
limited  time.    They  exist 

In  Arkansas;  and  are  subordinate  to  a 
judgment  lien.    8  Ark.  231. 

In  California ;  for  builders  and  material 
men.    2  Cal.  60,  489. 


LIEN 


54 


LIFE-ANNUITY 


In  Connecticut,  the  contract  must  have 
been  made  with  the  owner,  and  only  the  con- 
tracting party  can  take  advantage  of  the  lien. 
23  Conn.  544. 

In  Illinois,  for  the  benefit  of  the  builder 
and  material  men  who  furnish  labor  or  goods 
under  a  contract  with  the  land-owners,  12  111. 
300 ;  15  id.  189,  556 ;  17  id.  423  ;  the  lien  is 
subordinate  to  a  mortgage  title.    17  111.  423. 

In  Indiana,  in  favor  of  builders  and  mate- 
rial men  ;  and  a  wife  may  join  with  her  hus- 
band in  the  contract,  and  so  subject  her  land 
to  the  lien.  7  Ind.  125.  The  builder  must 
file  notice  of  his  intention.  8  Blackf.  Ind. 
252. 

In  loiva.    2  Greene,  Iowa,  435,  513. 

40.  In  Kentucky,  for  work  and  labor.  13 
B.  Monr.  Ky.  411 ;  16  id.  605. 

In  Maine,  34  Me.  198,  if  the  contract  is 
made  with  the  land-owner.  35  Me.  291.  As 
to  precedence,  28  Me.  511. 

In  Maryland,  a  copy  of  the  claim  must 
have  been  filed.    6  Gill,  Md.  17. 

The  materials  must  have  been  furnished 
under  a  contract  with  the  land-owner.  5  Md. 
419  ;  3  id.  234. 

In  Massachusetts,  the  contract  must  have 
been  with  the  land-owner.  1  Gray,  Mass. 
576  ;  3  id.  233.  Suit  must  be  brought  with- 
in six  months.  4  Cush.  Mass.  532.  Wife 
cannot  join  in  the  contract  and  bind  her  land. 

13  Mete.  Mass.  149. 

41.  In  Mississippi,  the  lien  commences  at 
the  commencement  of  the  work.  26  Miss. 
650.  The  contract  must  have  been  with  the 
land-owner.  26  Miss.  125  ;  27  id.  40.  No 
lien  for  mere  repairs.    16  Miss.  754. 

In  Michigan,  affects  only  the  rights  of  those 
for  whom  the  work  was  done.  2  Dougl.  Mich. 
54. 

In  Missouri,  the  lien  is  preferred  to  pre- 
vious or  subsequent  incumbrances.  21  Mo. 
213. 

In  New  Jersey,  2  Zabr.  N.J.  387 ;  1  Halst. 
Ch.  N.  J.  485,  specifications  must  be  filed  to 
exempt  the  building  from  the  lien.  1  Dutch. 
N.J.  474. 

In  New  York,  contract  must  have  been 
made  with  the  land-owner,  13  N.  Y.  70  ;  and 
see  21  Barb.  N.  Y.  520 ;  or  notice  must  have 
been  given.    2  E.  D.  Smith,  N.  Y.  689. 

In  Ohio,  the  contract  need  not  have  been 
with  the  owner  of  the  fee.  2  Ohio,  114. 
Material  may  have  been  used  elsewhere,  if 
furnished  in  good  faith.    6  Ohio,  247. 

42.  In  Pennsylvania,  the  work  must  have 
boon  done  under  contract,  and  the  claim  filed 
within  six  months  from  the  completion  of 
the  work.    19  Pcnn.  St.  341 ;  20  id.  319,  519. 

In  Tennessee,  must  be  taken  advantage  of 
in  reasonable  time.  6  Ilumphr.  Tonn.  268. 
Citizens  of  other  states  may  have  the  lieu. 
2  Swan,  Tonn.  130,  313. 

In  Texas,  work  must  have  been  done  under 
express  contract.    1 1  Tex.  20. 

Komc<ly  is  by  .scire  facias,  in  some  states, 

14  Ark.  370;  I  Dutch.  N.  J.  317;  14  Tex. 
37;  22  Mo.  140;  3  Md.  Oh.  Dec.  186;  14 
Ui)W.  434;  12  Penu.  St.  45;  by  petition,  in 


others.  11  Cush.  Mass.  308 ;  4  Wise.  451 ;  14 
Ala.  N.  s.  33  ;  11  111.  519  ;  1  Iowa,  75.  Judg- 
ment, when  obtained,  has  the  effect  of  a  com 
mon-law  judgment.    3  Wise.  9. 

Many  of  the  states  have  made  full  provi- 
sions, by  statute,  for  the  liens  of  repairers  of 
domestic  ships  and  builders  of  ships  and 
steamboats.  These  liens  are  generally  held 
to  be  distinct  from  maritime  liens,  though  in 
some  respects  partaking  of  the  nature  of 
such.  For  a  full  discussion  of  this  subject, 
and  a  classification  of  the  laws  of  the  different 
states,  see  1  Parsons,  Marit.  Law,  106,  and 
note. 

LIEUTENANT.  This  word  has  now  a 
narrower  meaning  than  it  formerly  had :  its 
true  meaning  is  a  deputy,  a  substitute,  from 
the  French  lieu  (place  or  post)  and  tenant 
(holder).  Among  civil  officers  we  have  lieu- 
tenant-governors, who  in  certain  cases  per- 
form the  duties  of  governors  (see  the  names 
of  the  several  states),  lieutenants  of  police, 
etc.  Among  military  men,  lieutenant-general 
was  formerly  the  title  of  a  commanding  gene- 
ral, but  now  it  signifies  the  degree  above 
major-general.  Lieutenant-colonel  is  the  offi- 
cer between  the  colonel  and  the  major.  Lieu- 
tenant, simply,  signifies  the  ofiicer  next  below 
a  captain.  In  the  navy,  a  lieutenant  is  the 
second  officer  next  in  command  to  the  captain 
of  a  ship. 

LIFE.  "The  sum  of  the  forces  by  which 
death  is  resisted.''  Bichat. 

A  state  in  which  energy  of  function  is  ever 
resisting  decay  and  dissolution. 

It  commences,  for  many  legal  purposes, 
at  the  period  of  quickening,  when  the  first 
motion  of  the  foetus  in  utero  is  perceived  by 
the  mother.  1  Blackstone,  Comm.  129 ;  Coke, 
3d  Inst.  50.    It  ceases  at  death.    See  Death. 

But  physiology  pronounces  life  as  existing 
from  the  period  of  conception,  because  foetuses 
in  utero  do  die  prior  to  quickening,  and  then 
all  the  signs  of  death  are  found  to  be  perfect. 
Dean,  Med.  Jur.  129,  130. 

3.  For  many  important  purposes,  however, 
the  law  concedes  to  physiology  the  fact  that 
life  commences  at  conception,  in  ventre  sa 
7nhre.  See  Fcetus.  Thus,  it  may  receive  a 
legacy,  have  a  guardian  assigned  to  it,  and 
an  estate  limited  to  its  use.  I  Blackstone, 
Comm.  130.  It  is  thus  considered  as  alive 
for  all  beneficial  purposes.    1  P.Will.  329. 

But  for  the  transfer  of  civil  rights  the  child 
must  be  born  alive.  The  ascertainment  of 
this,  as  a  fact,  depends  upon  certain  signs 
which  are  always  attendant  upon  life:  the 
most  important  of  these  is  crying.  As  to 
conditions  of  live  birth,  see  Birth  ;  Infanti- 
cide. 

Life  is  presumed  to  continue  for  one  hun- 
dred years.    9  Mart.  La.  257. 

The  law  considers  life  of  the  utmost  im- 
portance, and  its  most  anxious  care  is  to 
guard  and  protect  it.    1  Bouvier,  Inst.  n.  202. 

LIFE-ANNUITY.  An  annual  income 
to  be  paid  during  the  continuance  of  a  par- 
ticular life.    See  Annuity. 


LIFE-ASSURANCE  55 


LIMITATIONS 


LIFE-ASSURANCE.  An  insurance  of 
a  life  upon  tiie  payment  of  a  premium:  this 
may  be  for  the  whole  life,  or  for  a  limited 
time.  On  the  death  of  the  person  whose  life 
has  been  insured  during  the  time  for  which 
it  is  insured,  the  insurer  is  bound  to  pay  to 
the  insured  the  money  agreed  upon.  See  1 
Bouvier,  Inst.  n.  1231 ;  Assurance  ;  Policy  ; 
Loss, 

LIFE-RENT.    In  Scotch  Law.  A 

right  to  use  and  enjoy  a  thing  during  life, 
the  substance  of  it  being  preserved. 

A  life-rent  cannot,  therefore,  be  constituted 
upon  things  which  perish  in  the  use ;  and 
though  it  may  upon  subjects  which  gradually 
wear  out  by  time,  as  household  furniture, 
etc.,  yet  it  is  generally  applied  to  heritable 
subjects.  Life-rents  are  divided  into  conven- 
tional and  legal. 

The  conventional  are  either  simple  or  by 
reservation.  A  simple  iife-rent,  or  by  a  sepa- 
rate constitution,  is  that  which  is  granted  by 
the  proprietor  in  favor  of  another.  A  life- 
rent by  reservation  is  that  which  a  proprietor 
reserves  to  himself  in  the  same  writing  by 
which  he  conveys  the  fee  to  another.  Life- 
rents by  law  are  the  terce  and  the  courtesy. 
SeeTERCE;  Courtesy. 

LIFE-RENTER.    In  Scotch  Law.  A 

tenant  for  life  without  waste.    Bell,  Diet. 

LIGAN,  LAGAN.  Goods  cast  into  the 
sea  tied  to  a  buoy,  so  that  they  may  be 
found  again  by  the  owners,  are  so  denomi- 
nated. When  goods  are  cast  into  the  sea  in 
storms  or  shipwrecks,  and  remain  there,  with- 
out coming  to  land,  they  are  distinguished 
by  the  barbarous  names  of  jetsam,  flotsam, 
and  ligan.  5  Coke,  108 ;  Hargrave,  St.  Tr. 
48  ;  1  Blackstone,  Comm.  292. 

LIGEANCE.  The  true  and  faithful  obe- 
dience of  a  subject  to  his  sovereign,  of  a  citi- 
zen to  his  government.  It  signifies,  also,  the 
territory  of  a  sovereign.    See  Allegiance. 

LIGHTERMAN.  The  owner  or  manager 
of  a  lighter.  A  lighterman  is  considered  as  a 
common  carrier.    See  Lighters. 

LIGHTERS.  Small  vessels  employed  in 
loading  and  unloading  larger  vessels. 

The  owners  of  lighters  are  liable  like  other 
common  carriers  for  hire.  It  is  a  term  of  the 
contract  on  the  part  of  the  carrier  or  lighter- 
man, implied  by  law,  that  his  vessel  is  tight 
and  fit  for  the  purpose  or  employments  for 
which  he  ofi'ers  and  holds  it  forth  to  the  pub- 
lic; it  is  the  immediate  foundation  and  sub- 
stratum of  the  contract  that  it  is  so:  the  law 
presumes  a  promise  to  that  effect  on  the  part 
of  the  carrier,  without  actual  proof;  and  every 
principle  of  sound  policy  and  public  conve- 
nience requires  it  should  be  so.  5  East,  428; 
Abbott,  Shipp.  225;  1  Marshall.  Ins.  254; 
Park,  Ins.  23 ;  Weskett,  Ins.  328 ;  Parsons, 
Marit.  Law. 

LIGHTS.  Those  openings  in  a  wall 
which  are  made  rather  for  the  admission  of 
light  than  to  look  out  of.  6  J.  B.  Moore,  47 ; 
9  Bingh.  305.    See  Ancient  Lights. 


Lamps  carried  on  board  vessels,  under  8ta« 
tutory  regulations  or  (Otherwise,  for  the  pur- 
pose of  preventing  collisions  at  night.  See 
Navigation  Rules. 

Lamps  or  lights  placed  in  lighthouses,  or 
other  conspicuous  positions,  as  aids  to  navi- 
gation at  night.    See  Navigation  Rules. 

LIMITATIONS.— Of  Civil  Remedies. 
In  general,  by  the  theory  and  early  practice 
of  the  common  law,  a  party  who  had  any 
legal  ground  of  complaint  against  another 
might  call  the  latter  to  answer  in  court  at 
such  time  as  suited  his  convenience.  This 
privilege,  however,  it  was  soon  found,  might 
be  productive  of  great  inconvenience,  and 
not  unfrequently  of  great  injustice.  Partiea 
might,  and  often  did,  wait  till  witnesses 
were  dead  or  papers  destroyed,  and  then  pro- 
ceeded to  enforce  claims  to  which  at  an 
earlier  date  a  successful  defence  might  have 
been  made.  Titles  were  thus  rendered  un- 
certain, the  tenure  of  property  insecure,  and 
litigation  fostered.  To  prevent  these  evils, 
statutes  were  passed  limiting  the  time  within 
which  a  party  having  a  cause  of  action 
should  appeal  to  the  courts  for  redress, — 
hence  called  statutes  of  limitation.  The  doc- 
trine of  Jines,  of  very  great  antiquity  in  the 
history  of  the  common  law,  the  purpose  of 
which  was  to  put  an  end  to  controversies, 
grew  out  of  the  efforts  to  obviate  these  evils, 
and  frequent  attempts,  prior  to  the  accession 
of  James  I.,  by  statutes  of  restricted  appli- 
cation, were  made  to  the  same  end.  But  till 
the  reign  of  that  prince  no  general  enactment 
applicable  alike  to  personal  and  real  actions 
had  been  passed. 

9t.  In  the  year  1623,  however,  by  stat.  21  Jac. 
I.e.  16,  entitled  "An  Act  for  Limitation  of 
Actions,  and  for  avoiding  of  Suits  at  Law," 
known  and  celebrated  ever  since  as  the 
Statute  of  Limitations,  the  law  upon  this 
subject  was  comprehensively  declared  sub- 
stantially as  it  exists  at  the  present  day  in 
England,  whence  our  ancestors  brought  it 
with  them  to  this  country  ;  and  it  has  passed, 
with  some  modifications,  into  the  statute- 
books  of  every  state  in  the  Union  except 
Louisiana,  whose  laws  of  limitation  are 
essentially  the  Prescriptions  of  the  civil  law, 
drawn  from  the  Partidas,  or  Spanish  Code. 

3.  The  similarity  between  the  statutes  of 
the  several  states  and  those  of  England  is 
such  that  the  decisions  of  the  British  courts 
and  those  of  this  country  are  for  the  most 
part  illustrative  of  all,  and  will  be  cited  in- 
discriminately in  this  brief  summary  of  the 
law  as  it  now  stands.  5  Barnew.  &  Aid.  204 ; 
4  Johns.  N.  Y.  317.  One  preliminary  ques- 
tion, however,  has  arisen  in  this  country, 
growing  out  of  the  provision  of  the  national 
constitution  prohibiting  states  from  passing 
laws  impairing  the  obligation  of  contracts, 
for  which  there  is  no  English  precedent. 
Upon  this  point  the  settled  doctrine  is  that 
unless  the  law  bars  a  right  of  action  already 
accrued  without  giving  a  reasonable  time 
within  which  to  bring  an  action,  it  pertains 
to  the  remedy  merely,  and  is  valid.    4  WheaL 


LIMITATIONS 


56 


LIMITATIONS 


122;  12  id.  349;  6  How.  550;  14  N.  Y.  16; 
5  Mete.  Mass.  168 ;  2*  All.  Mass.  436.  Sub- 
ject to  this  qualification,  a  law  may  extend 
or  reduce  the  time  already  limited.  But  a 
cause  of  action  already  barred  by  pre-exist- 
ing statutes  will  not  be  revived  by  a  statute 
extending  the  time,  5  Mete.  Mass.  400 ;  7 
Penn.  St.  292 ;  25  Vt.  41 ;  8  Blackf.  Ind. 
506 ;  though  if  it  be  not  already  barred  a 
statute  extending  the  time  will  apply.  1  T.  L. 
Smith,  Ind.  8. 

4.  Courts  of  equity,  though  not  within 
the  terms  of  the  statute,  have  nevertheless 
been  uniformly  regarded  as  within  its  spirit, 
and  have,  as  a  general  rule,  been  governed  by 
its  provisions,  unless  special  circumstances, 
where  there  has  been  no  laches,  in  the  interests 
of  justice,  require  that  they  should  be  disre- 
garded. 2  Schoales  &  L.  Ir.  Ch.  329,  630 ;  12 
Pet.  56  ;  7  Johns.  Ch.  N.  Y.  90  ;  2  Den.  N.  Y. 
677  ;  9  Pick.  Mass.  1 ;  3  All.  Mass.  42.  And 
in  some  cases  when  claims  are  not  barred  by 
the  statute  of  limitations,  a  court  of  equity 
will  refuse  to  interfere,  on  grounds  of  public 
policy,  and  the  difficulty  of  doing  entire 
justice  between  the  parties  when  the  origi- 
nal transaction  may  have  become  obscure  by 
the  lapse  of  time  and  the  evidence  lost,  1 
Dav.  Dist.  Ct.  252 ;  1  Jones,  No.  C.  Eq.  18 ; 
though  a  lapse  of  time  short  of  that  of  the 
Btatute  of  limitations  will  not  be  held  a  bar 
without  strong  reasons.  1  Woodb.  &  M.  C.  C. 
90. 

5.  But  in  a  proper  case,  as  where  there  is 
fraud  undiscovered  till  the  statute  has  become 
a  bar,  or  it  is  the  fault  and  wrong  of  the 
defendant  that  the  plaintiff  did  not  enforce 
his  legal  rights  within  the  limited  time, 
courts  of  equity  will  not  hesitate  to  interfere 
in  the  interest  of  justice,  and  entertain  suits 
long  since  barred  at  law.  5  Johns.  Ch.  N.  Y. 
522;  4  How.  503;  2  Schoales  &  L.  Ir.  Ch. 
630 ;  8  Ves.  Ch.  73 ;  2  Sim.  Ch.  340.  But 
here,  again,  courts  of  equity  will  proceed  with 
great  caution,  7  How.  819 ;  and  hold  the 
complainant  to  allegation  and  proof  of  his 
ignorance  of  the  fraud  and  when  and  how  it 
was  discovered.  1  Curt.  C.  C.  390.  Subject 
to  these  conditions,  a  claim  forty  years  old 
for  services  was  sustained  against  a  defendant 
who  had  obtained  them  by  falsely  represent- 
ing to  the  person  who  rendered  them  that  he 
was  a  slave.    12  Penn.  St.  49. 

6.  And  courts  of  admiralty  are  governed 
by  substantially  the  same  rules  as  courts  of 
equity.  3  Mas.  C.  C.  95  ;  2  Sumn.  C.  C.  212. 
And  although  the  statute  does  not  apply  in 
terms  to  probate  courts,  there  seems  to  be  no 
reascm  why  the  statute  of  limitations  should 
not  be  applied  according  to  the  principles  of 
equity.    1  Bradf.  Surr.  N.  Y.  1. 

AS  TO  PERSONAL  ACTIONS. 

It  is  generally  provided  that  personal 
actions  shall  be  brought  within  acertain  speci- 
fied time — usually  six  years  or  less — from 
ihe  time  when  the  cause  of  action  accrues, 
and  not  after;  and  hereupon,  whether  the 
limitation  be  one  or  twenty  years  (the  latter 


being  the  limit  applicable  to  personal  actions 
not  otherwise  specially  limited),  the  question 
at  once  arises  when  the  cause  of  action  in 
each  particular  case  accrues. 

H,  Cause  of  action  accrues  when.  The 
rule  that  the  cause  of  action  accrues  when 
and  so  soon  as  there  is  a  right  to  apply  to 
the  court  for  relief  by  no  means  solves  the 
difficulty.  When  does  the  right  itself  so  to 
apply  accrue  ?  Upon  this  point  the  decisions 
are  so  numerous  and  so  conflicting,  or  per- 
haps, more  accurately  speaking,  so  controlled 
by  particular  circumstances,  that  no  inflexible 
rule  can  be  extracted  therefrom.  In  general, 
it  may  be  said  that  in  actions  of  contract  the 
cause  of  action  accrues  when  there  is  a 
breach  of  the  contract.  3  Barnew.  &  Aid. 
288;  3  Johns.  N.Y.  137. 

8.  When  a  note  (except  bank-notes,  2 
Sneed,  Tenn.  482)  is  payable  on  demand,  the 
statute  begins  to  run*  from  its  date,  2  Mees. 
&  W.  Exch.  467 ;  9  Pick.  Mass.  488 ;  and  if 
there  is  no  date,  then  from  the  delivery,  1 
Harr.  &  G.  Md.  439;  and  the  rule  is  the 
same  if  the  note  is  payable  "  at  any  time 
within  six  years,"  39  Me.  492 ;  or  borrowed 
money  is  to  be  paid  "  when  called  on.''  1 
Harr.  &  G.  Md.  439.  If  the  note  be  payable 
in  certain  days  after  demand,  sight,  or  notice, 
the  statute  begins  to  run  from  the  demand, 
sight,  or  notice,  13  Wend.  N.  Y.  267  ;  2  Taunt. 
323;  4  Mas.  C.  C.  336  ;  but  the  demand  itself 
should  be  made  within  the  time  limited  for 
bringing  the  action  on  the  note ;  else  a  note 
limited  to  six  years  might  be  kept  open  in- 
definitely by  a  failure  to  make  a  demand.  10 
Pick.  Mass.  120.  And  when  the  note  is 
on  interest,  this  does  not  become  barred  by 
the  statutes  till  the  principal,  or  some  dis- 
tinct portion  of  it,  becomes  barred.  2  Cush. 
Mass.  92  ;  1  Hall,  N.  Y.  314.  If  the  note  be 
entitled  to  grace,  the  statute  runs  from  the 
last  day  of  grace.  11  Me.  412. 

9.  Where  money  is  paid  by  mistake,  the 
statute  begins  to  run  from  the  time  of  pay- 
ment, 9  Cow.  N.  Y.  674;  also  in  case  of 
usury,  6  Ga.  228,  or  where  paid  for  another 
as  surety.  6  Cow.  N.  Y.  225.  If  money  ib 
payable  by  instalments,  the  statute  runs 
against  each  instalment  as  it  becomes  due. 
20  Me.  400,  unless  it  is  agreed  that  upon  de- 
fault the  whole  shall  become  due.  3  Gale  & 
D.  Exch.  402. 

Where  a  contract  takes  effect  upon  some 
condition  or  contingency,  or  the  happening 
of  some  event,  the  statute  runs  from  the 
performance  of  the  condition,  5  Pick.  Mass. 
384,  or  the  happening  of  the  contingency  or 
event,  3  Penn.  St.  149,  and  not  from  the  date 
of  the  contract.  On  an  agreement  to  devise,  the 
statute  runs  from  the  death  of  the  promissor. 
9  Penn.  St.  260.  When  money  is  paid,  and 
there  is  afterwards  a  failure  of  .consideration, 
the  statute  runs  from  the  failure.  14  Mass. 
425. 

10.  Wliere  continuous  services  are  rendered^ 
as  by  an  attorney  in  the  conduct  of  a  suit,  1 
Barnew.  &  Ad.  15,  or  by  a  mechanic  in  doing 
a  job,  16  111.  341,  the  statute  begins  to  run 


LIMITATIONS 


57 


LIMITATIONS 


{'rom\ "te  completion  of  the  service.  On  a  pro- 
mise Or  indemnity,  when  the  promissee  pays 
money  or  is  damnified,  the  statute  begins 
to  run.  12  Mete.  Mass.  130.  In  cases  of 
negligence,  carelessness,  unskilfulness,  and 
the  like,  the  statute  runs  from  the  time  when 
these  happen  respectively,  and  not  from  the 
time  when  damages  accrue  therefrom,  4  Pet. 
172;  and  so,  generally,  in  cases  of  tort  when 
the  wrong  is  done  or  the  right  is  invaded. 
8  East,  4 ;  10  Wend.  N.  Y.  260 ;  24  Penn. 
St.  186.  Thus,  M-^here  an  attorney  negligently 
invests  money  in  a  poor  security,  the  statute 
runs  from  the  investment,  2  Brod.  &  B.  73 ; 
so,  where  a  party  neglected  to  remove  goods 
from  a  warehouse,  whereby  the  plaintiff  was 
obliged  to  pay  damages,  the  statute  runs 
from  the  neglect,  and  not  from  the  payment 
of  damages,  3  Johns.  N.  Y.  137  ;  so,  where 
the  defendant  agreed  to  go  into  another  state 
and  collect  some  money,  and  on  his  return  to 
pay  off  a  certain  judgment,  the  statute  was 
held  to  run  from  the  return.  3  Ired.  No.  C. 
481. 

11.  The  breach  of  the  contract  is  the  gist 
of  the  action,  and  not  the  damages  resulting 
therefrom.  5  Barnew.  &  C.  259 ;  1  Sandf. 
N.  Y.  98  ;  6  Ohio,  276.  Thus,  where  the  de- 
fendant had  contracted  to  sell  the  plaintiff  a 
quantity  of  salt,  but  was  unable,  by  reason 
of  the  destruction  of  the  salt,  to  deliver  on 
demand,  and  prolonged  negotiations  for  set- 
tlement till  the  statutory  limitation  had  ex- 
pired, and  then  refused,  the  statute  was  held 
to  run  from  the  demand,  the  non-delivery 
being  a  breach  of  the  contract.  1  Eng.  L.  & 
Eq.  44.  So,  where  a  notary  public  neglects  to 
give  seasonable  notice  of  non-payment  of  a 
note,  and  the  bank  employing  him  was  held 
responsible  for  the  failure,  upon  suit  brought 
by  the  bank  against  the  notary  to  recover  the 
damages  it  had  been  obliged  to  pay,  the  action 
was  held  to  be  barred,  it  not  being  within  six 
years  of  the  notary's  default,  though  within 
six  years  of  the  time  when  the  bank  was  re- 
quired to  pay  damages.    6  Cow.  N.  Y.  278. 

12.  So,  where  an  attorney  makes  a  mistake 
in  a  writ,  whereupon,  after  prolonged  litiga- 
tion, nonsuit  follows,  but  not  till  an  action 
against  the  indorser  on  the  note  originally 
sued  has  become  barred,  the  mistake  was  held 
to  set  the  statute  in  motion.  4  Pet.  172 ;  4 
Ala.  495.  A  captain  who  barratrously  loses 
his  vessel  is  freed  from  his  liability  to  the 
underwriter  in  six  years  after  the  last  act  in 
the  barratrous  proceeding.  1  Campb.  539. 
Directors  of  a  hank  liable  by  statute  for  mis- 
management are  discharged  in  six  years  after 
the  insolvency  of  the  bank  is  made  known. 
16  Mass.  68. 

13.  If  a  sheriff  m^^Q  an  insufficient  return, 
and  there  is  in  consequence  a  reversal  of 
judgment,  the  statute  runs  from  the  return, 
and  not  from  the  reversal  of  judgment.  16 
Mass.  456.  So  where  a  sherifT'collects  money 
and  makes  due  return  but  fails  to  pay  over, 
the  statute  runs  from  the  return,  11  Ala. 
C79,  or  from  the  demand  by  the  creditor.  10 
Mete.  Mass.  244.    If  he  suffers  an  escape,  it 


runs  from  the  escape,  2  Mod.  222  ;  ii  he 
takes  insufficient  bail,  from  the  return  of  non 
est  inventus  upon  execution  against  the  prin- 
cipal debtor,  17  Mass.  60 ;  20  Me.  93  ;  if  he  re- 
ceive money  in  scire  facias,  from  its.reception, 
9  Ga.  413;  if  he  neglects  to  attach  sufficient 
property,  on  the  return  of  the  writ,  and  not 
from  the  time  when  the  insufficiency  of  the 
property  is  ascertained.    27  Me.  443. 

14.  In  cases  of  nuisance,  the  statute  begins 
to  run  from  the  injury  to  the  right,  without 
reference  to  the  question  of  the  amount  of  the 
damage,  the  law  holding  the  violation  of  a 
right  as  some  damage.  8  East,  4.  And  so 
when  a  party  having  a  right  to  use  laud  for 
a  specific  purpose  puts  it  to  other  uses,  or 
wrongfully  disposes  of  property  rightfully  in 
possession,  the  statute  begins  to  run  from  the 
perversion.  24  Penn.  St.  186;  15  Mass.  82. 
In  trover,  the  statute  runs  from  the  conversion, 
7  Mod.  99 ;  4  Harr.  &  J.  Md.  393  ;  in  reple- 
vin, from  the  unlawful  taking  or  detention. 
The  limitation  in  the  statute  of  James  of 
actions  for  sla7ider  to  two  years  next  after  the 
words  spoken,  applies  only  to  cases  where  the 
words  are  actionable  in  themselves.  1  Salk. 
206. 

15.  Adverse  possession  of  personal  property 
gives  title  in  six  years  after  the  possession 
becomes  adverse.  16  Vt.  124;  1  Brev.  So.  C. 
Ill;  16  Ala.  N.  s.  696 ;  9  Tex.  123.  But  dif- 
ferent adverse  possessions  cannot  be  linked 
together  to  give  title.    3  Strobh.  So.  C.  31; 

'  1  Swanu,  Tenn.  501.  The  statute  acts  upon 
the  title,  and,  when  the  bar  is  perfect,  trans- 
fers the  property  to  the  adverse  possessor ; 
while  in  contracts  for  the  payment  there  is 
no  such  thing  as  adverse  possession,  but  the 
statute  simply  affects  the  remedy,  and  not  the 
debt.    18  Ala.  n.  s.  248. 

16.  Computation  of  time.  In  computing 
the  time  limited,  much  discussion  has  been 
had  in  the  courts  whether  the  day  when  the 
statute  begins  to  run  is  to  be  included  or  ex- 
cluded, but  without  any  satisfactory  result. 
It  is  most  generally  held  that  when  the  com- 
putation is  from  an  act  done,  or  the  happen- 
ing of  an  event,  the  day  upon  which  the  act 
is  done,  or  event  happens,  is  to  be  included, 
and  when  it  is  from  the  date,  the  day  of  the 
date  is  excluded.  9  Cranch,  1 20 ;  9  N.  H.  304 
This  rule,  however,  of  including  the  day  upon 
which  an  act  is  done,  is  subject  to  so  many 
exceptions  and  qualifications  that  it  can 
hardly  be  said  to  be  a  rule,  and  the  cases  are 
wholly  irreconcilable  with  it.  It  has  been 
well  said  that  whether  the  day  upon  which 
an  act  is  done  or  an  event  happens  is  to  be 
included  or  excluded,  depends  upon  the  cir- 
cumstances and  reason  of  the  thing,  so  that 
the  intention  of  the  parties  may  be  effected ; 
and  such  a  construction  should  be  given  aa 
will  operate  most  to  the  ease  of  the  party  en- 
titled to  favor,  and  by  which  rights  will  be 
secured  and  forfeitures  avoided.  1  Tex.  107. 
Fractions  of  a  day  are  not  regarded,  unlesa  it 
becomes  necessary  in  a  question  of  priority, 
8  Ves.  Ch.  83  ;  9  Eng.  L.  &  Eq.  457  ;  3  Dt>n. 
N.  Y.  12;  6  Gray,  Mass.  316;  and  then  cnljr 


LIMITATIONS 


58 


LIMITATIONS 


in  questions  concerning  private  acts  and 
transactions.    20  Vt.  653. 

17.  Exceptions  to  general  rule.  If,  when 
the  right  of  action  would  otherwise  accrue 
and  the  statute  begin  to  run,  there  is  no  per- 
son who  can  exercise  the  right,  the  statute  does 
not  begin  to  run  till  there  is  such  a  person. 
Thus,  if  a  note  matures  after  the  decease  of 
the  proniissee,  and  prior  to  the  issue  of  letters 
of  administration,  the  statute  runs  from  the 
date  of  the  letters  of  administration,  unless 
otherwise  specified  in  the  statute,  5  Barnew.  & 
Aid.  204 ;  13  Wend.  N.  Y.  216  ;  9  Leigh,  Va. 
79  ;  11  Mete.  Mass.  445 ;  15  Conn.  145 ;  in 
Missouri,  from  the  date  oif  notice  that  letters 
of  administration  have  issued,  9  Mo.  262. 
But  if  the  statute  begins  to  run  before  the 
death  of  the  testator  or  intestate,  it  is  not  in- 
terrupted by  his  death,  4  Mees.  &  W.  Exch. 
42  ;  3  Mylne  &  C.  Ch.  455 ;  4  Edw.  Ch.  N.  Y. 
733;  18  Miss.  100;  nor  by  the  death  of  the 
administrator,  17  Ala.  n.  s.  291;  nor  by  his 
removal  from  the  state.    15  Ala.  n.  s.  545. 

18.  And  the  courts  will  not  recognize  ex- 
emptions, where  the  statute  has  once  begun 
to  run,  because  they  are  within  the  equity 
and  reason  of  the  statute,  if  they  are  not 
within  its  letter.  Thus,  an  insolvent's  dis- 
charge as  effectually  removes  him  from  pur- 
suit by  his  creditor  as  absence  from  the  state ; 
but  it  is  not  an  exception  within  the  statute, 
and  cannot  avail.  1  Whart.  Penn.  106  ;  1 
Cow.  N.  Y.  356  ;  6  Gray,  Mass.  517.  A  cre- 
ditor's absence  makes  it  inconvenient  for  him 
to  return  and  sue;  but  he  may  so  do,  and  he 
must,  or  be  barred.  17  Ves.  Ch.  38  ;  1  Wils. 
Ch.  134 ;  1  Johns.  N.  Y.  165.  And  it  has 
ever  been  held  that  a  statutory  impediment 
to  the  assertion  of  title  will  not  help  the  party 
so  impeded,  2  Wheat.  25 ;  nor  even  a  state 
of  war,  which  closes  the  courts.  2  Salk.  420. 

19.  There  are  many  authorities,  however, 
to  show  that  if,  by  the  interposition  of  courts, 
or  the  provisions  of  a  statute,  a  person  cannot 
be  sued  for  a  limited  time,  the  currency  of  the 
statute  is  suspended  during  that  period.  In 
other  words,  if  the  law  interposes  to  prevent 
suit,  it  will  see  to  it  that  he  who  has  a  right 
of  action  shall  not  be  prejudiced  thereby.  10 
Gill  &  J.  Md.  246 ;  4  Md.  Ch.  Dec.  368 ;  5 
Ga.  66  :  3  McLean,  C.  C.  568  ;  12  Wheat.  129; 
2  Den.  N.  Y.  577;  20  How.  128.  Thus,  an 
injunction  suspends  the  statute.  1  Md.  Ch. 
Dec.  182;  12  Gratt.  Va.  579;  2  Stockt.  N.  J. 
347  ;  10  Ilumphr.  Tenn.  And  so  does  an 
assignment  of  an  insolvent's  effects,  as  between 
the  estate  and  the  creditors,  7  Mete.  Mass. 
435;  1  Cush.  Mass.  461;  12  La.  Ann.  216; 
though  not,  as  has  just  been  said,  as  between 
the  debtor  and  his  creditor.  6  Gray,  Mass.  517. 

20.  But  when  the  statute  does  not  in  terms 
exclude  and  limit  a  particular  case,  the  court 
will  not  extend  it,  although  the  case  comes 
within  the  reason  of  the  statute.  Thus,  in 
Illinois,  whore  the  action  of  debt  will  lie 
wherever  indebitatus  assumpsit  w\\\,  and  jus- 
tices of  the  peace  have  jurisdiction  of  both 
actions,  the  summons  being  the  same  in  both 
forms  of  action,  if  the  statute  of  limitations 


is  pleaded  the  law  will  presume  that  to  be  the 
particular  form  which  is  best  calculated  to 
advance  the  plaintiff's  remedy.  9  111.  193. 
So  the  Alabama  act,  which  permits  an  action 
to  be  commenced  within  a  year  after  the  re- 
versal of  a  previous  judgment,  was  held,  in 
favor  of  the  plaintiff,  to  apply  to  a  case  when, 
by  the  action  of  an  inferior  court,  the  cause 
was  discontinued  as  to  two  of  the  defendants, 
and  thus  caused  a  reversal  of  the  judgment 
as  to  the  other  defendant,  although  not  within 
the  letter  of  the  statute.    11  Ala.  n.  s.  356. 

21.  By  the  special  provisions  of  the  statute, 
infants,  married  women,  persons  non  compos 
mentis,  those  imprisoned,  and  those  beyond 
seas,  out  of  the  state,  out  of  the  realm,  or  out 
of  the  country,  are  regarded  as  affected  by  the 
incapacity  to  sue,  or,  in  other  words,  as  being 
under  disability,  and  have,  therefore,  the  right 
of  action  secured  to  them  until  the  expiration 
of  the  time  limited,  after  the  removal  of  the 
disability.  These  personal  exceptions  have 
been  strictly  construed,  and  the  party  alleging 
the  disability  has  been  very  uniformly  held  to 
bring  himself  exactly  within  the  express 
words  of  the  statute  to  entitle  himself  to  the 
benefit  of  the  exception.  To  bring  himself 
within  the  spirit  or  supposed  reason  of  the 
exception  is  not  enough.  1  Cow.  N.  Y.  356; 
3  Green,  N.  J.  171 ;  2  Curt.  C.  C.  480 ;  17  Ves. 
Ch.  87.  And  this  privilege  is  accorded  al- 
though the  person  laboring  under  the  statute 
disability  might  in  fact  bring  suit.  Thus,  an 
infant  may  sue  before  he  arrives  at  his  major- 
ity, but  he  is  not  obliged  to,  and  his  right  is 
saved  if  he  does  not.  2  Saund.  117.  The 
disability  must,  however,  be  continuous  and 
identical.  One  disability  cannot  be  super- 
added to  another  so  as  to  prolong  the  time, 
and  if  the  statute  once  begins  to  run,  whether 
before  a  disability  exists  or  after  it  has  been 
removed,  no  intervention  of  another  and  sub- 
sequent disability  can  stop  it.  1  Wils.  Ch. 
134;  2  M'Cord,  So.  C.  269;  1  Johns.  N.  Y. 
165.  When,  however,  there  are  two  or  more 
coexisting  disabilities  at  the  time  the  right 
of  action  accrues,  suit  need  not  be  brought 
till  all  are  removed.  1  Atk.  Ch.  610;  12  Me. 
397;  3  Johns.  Ch.  N.  Y.  129. 

22.  Beyond  seas  means  without  the  juris- 
diction of  the  state  or  government  in  which 
the  question  arises.  1  Show.  91 ;  3  Cranch, 
174;  3  Wheat.  341;  1  Harr.  &  M'H.  Md. ; 
14  Pet.  41 ;  2  M'Cord,  So.  C.  331 ;  13  N.  H. 
79.  In  Pennsylvania  and  Missouri,  however, 
and  perhaps  other  states,  contrary  to  the  very 
uniform  current  of  authorities,  beyond  seas 
is  held  to  mean  out  of  the  limits  of  the  United 
States.  2  Dall.  Penn.  217 ;  13  Mo.  216.  And 
the  United  States  courts  adopt  and  follow  the 
decisions  of  the  respective  states  upon  the 
interpretation  of  their  respective  laws.  2 
IIow.  76  ;  12  Pet.  32.  What  constitutes  ab- 
sence out  of  the  state  within  the  meaning  of 
the  statute,  is  wholly  undeterminable  by  any 
rule  to  be  drawn  from  the  decisions.  It  seems 
to  be  agreed  that  temporary  absence  is  not 
enough ;  but  what  is  a  temporary  absence  ii 
by  no  means  ajireed. 


LIMITATIONS 


59 


LIMITATlOxVS 


513.  The  word  return,  as  applied  to  an 
absent  debtor,  applies  as  well  to  foreigners,  or 
residents  out  of  the  state  coming  to  the  state, 
as  to  citizens  of  the  state  who  have  gone 
abroad  and  have  returned.  3  Johns.  N.  Y. 
207  ;  11  Pick.  Mass.  36.  And  in  order  to  set 
the  statute  in  motion  the  return  must  be  open, 
public,  and  such  and  under  such  circum- 
stances as  will  give  a  party,  who  exercises 
ordinary  diligence,  an  opportunity  to  bring  his 
action.  10  Johns.  N.  Y.  264 ;  1  Pick.  Mass.  263 ; 

3  Gill  &,  J.  Md.  158.  Such  a  return,  though 
temporary,  will  be  sufficient.  8  Cranch,  U.  S. 
179.  But  if  the  return  is  such  and  under 
such  circumstances  as  to  show  that  the  party 
does  not  intend  that  his  creditor  shall  take 
«,dvantage  of  his  presence,  or  such,  in  fact, 
that  he  cannot  without  extraordinary  vigi- 
lance avail  himself  of  it, — if  it  is  secret,  con- 
cealed, or  clandestine, — it  is  insufficient. 
The  absence  of  one  of  several  joint-plaintiffs 
does  not  prevent  the  running  of  the  statute, 

4  Term,  516;  but  the  absence  of  one  of  seve- 
ral joint-defendants  does.  29  Eng.  L.  &  Eq. 
271.  This  at  least  seems  to  be  the  settled 
law  of  England;  but  the  cases  in  the  several 
states  of  the  Union  are  conflicting  upon  these 
points. 

24.  Commencement  of  process.  The  ques- 
tion sometimes  arises  as  to  what  constitutes 
the  bringing  an  action  or  the  commencement 
of  process,  and  this  is  very  uniformly  held  to 
be  the  delivery  or  transmission  by  mail  in  due 
course  of  the  writ  or  process  to  the  sheriff  in 
good  faith,  for  service.  18  Johns.  N.  Y.  14; 
14  Wend.  N.  Y.  649 ;  1  Paige,  Ch.  N.  Y.  564. 
In  Connecticut,  the  actual  service  of  the  writ 
is  held  to  be  the  commencement  of  the  action, 
17  Conn.  213;  in  Arkansas,  the  issuance  of 
the  writ,  5  Eng.  Ark.  479  ;  in  Vermont,  the 
taking  out  of  the  writ,  if  it  be  served  in  time 
for  the  next  court  to  which  it  is  returnable. 
1  N.  Chipm.  Vt.  94.  The  date  of  the  writ  is 
'prima  facie  evidence  of  the  time  of  its  issuance. 
17  Pick.  Mass.  407 ;  7  Me.  370. 

25.  If  the  writ  or  process  seasonably 
issued  fail  of  a  sufficient  service  or  return  by 
any  unavoidable  accident,  or  by  any  default 
or  neglect  of  the  officer  to  whom  it  is  com- 
mitted, or  is  abated,  or  the  action  is  otherwise 
avoided  by  the  death  of  any  party  thereto,  or 
for  any  matter  of  form,  or  judgment  for  plain- 
tiff be  arrested  or  reversed,  the  plaintiff  may 
commence  a  new  action  within  a  reasonable 
time;  and  that  reasonable  time  is  usually 
fixed  by  the  statute  at  one  year,  and  by  the 
courts  in  the  absence  of  statutory  provision,  at 
the  same  period.  10  Wend.  N.  Y.  276.  Irre- 
gularity of  the  mail  is  an  inevitable  accident 
within  the  meaning  of  the  statute.  8  Me.  497. 
And  so  is  2i  failure  of  service  by  reason  of  the 
removal  of  the  defendant,  without  the  know- 
ledge of  the  plaintiff,  from  the  county  in 
which  he  had  resided  and  to  which  the  writ 
was  seasonably  sent.  12  Mete.  Mass.  15. 
But  a  mistake  of  the  attorney  as  to  time  of 
the  sitting  of  the  court,  and  consequent  fail- 
ure to  enter,  is  not.  29  Me.  458.  An  abate- 
ment by  the  marriage  of  the  female  nlaintiff 


is  no  abatement  within  the  statute ;  it  is  rather 
a  voluntary  abandonment.  8  Cranch,  84. 
And  so,  generally,  of  any  act  of  the  party  or 
his  attorney  whereby  the  suit  is  abated  or 
the  action  fails.  3  M'Cord,  So.  C.  452;  29 
Me.  458 ;  1  Mich.  252  ;  6  Cush.  Mass.  417. 

26.  A  nonsuit  is  in  some  states  held  to  be 
within  the  equity  of  the  statute,  13  Ired. 
No.  C.  123  ;  4  Ohio  St.  172  ;  12  La.  Ann.  672; 
but  generally  otherwise.  1  Serg.  &  11.  Penn. 
236  ;  3  M'Cord,  So.  C.  452  ;  3  Ilarr.  N.  J.  269. 
If  there  are  two  defendants,  and  by  reason  of 
a  failure  of  service  upon  one  an  alias  writ  is 
taken  out,  this  is  no  continuance,  but  a  new 
action,  and  the  statute  is  a  bar.  6  Watts, 
Penn.  528.  So  of  amending  bill  introducing 
new  parties.  6  Pet.  61.  A  dismissal  of  the 
action  because  of  the  clerk's  omission  to  sea" 
sonahly  enter  it  on  the  docket  is  for  matter  of 
form,  7  Gray,  Mass.  165  ;  and  so  is  a  dis- 
missal for  want  of  jurisdiction,  where  the 
action  is  brought  in  the  wrong  county.  1 
Gray,  Mass.  580.  In  Maine,  however,  a 
wrong  venue  is  not  matter  of  form.  38  Me. 
217.  The  statute  is  a  bar  to  an  action  at  law 
after  a  dismissal  from  chancery  for  want  of 
jurisdiction.  16  Wend.  N.  Y.  572 ;  1  Atk. 
Ch.  1 ;  2  Munf.  Va.  181 ;  18  Ala.  n.  s.  307. 

27.  Lex  fori  governs.  Questions  under 
the  statute  are  to  be  decided  by  the  law  of 
the  place  where  the  action  is  brought,  and 
not  by  the  law  of  the  place  where  the  contract 
is  made  or  the  wrong  done.  If  the  statute 
has  run  against  a  claim  in  one  state,  the  rem- 
edy is  gone,  but  the  right  is  not  extinguished; 
and  therefore  the  right  may  be  enforced  in 
another  state  where  the  remedy  is  still  open, 
the  time  limited  bv  the  statute  not  having  ex- 
pired. 15  East,  439 ;  2  Mas.  C.  C.  159 ;  9 
How.  407;  11  Pick.  Mass.  36.  So  if  the 
statute  of  the  place  of  the  contract  is  still 
unexpired,  yet  an  action  brought  in  another 
place  is  governed  by  the  lex  fori,  and  may  be 
barred.  1  Caines,  N.  Y.  402.  But  statutes 
giving  title  by  adverse  possession  are  to  be 
distinguished  from  statutes  of  limitation. 
Adverse  possession  gives  title;  lapse  of  time 
bars  the  remedy  only.  And  a  right  acquired 
by  adverse  possession  in  the  place  where  the 
adverse  possession  is  had  is  good  elsewhere. 
11  Wheat.  361 ;  9  How.  407  ;  5  Ala.  n.  s.  108 ; 
16  Ark.  384. 

28.  Public  rights  not  affected.  Statutes  of 
limitation  do  not  run  against  the  state  or  the 
United  States,  unless  it  is  expressly  so  pro- 
vided in  the  statute  itself.  No  laches  is  to  be 
imputed  to  the  government.  18  Johns.  N.  Y. 
228  ;  4  Mass.  526.  But  this  principle  has  no 
application  when  a  party  seeks  his  private 
rights  in  the  name  of  the  state.  Counties, 
towns,  and  municipal  bodies  not  possessed  of 
the  attributes  of  sovereignty  have  no  exemp- 
tion. 4  Dev.  No.  C.  568;  22  Me.  445;  12 
111.  38.  If,  however,  the  sovereign  becomes 
a  party  in  a  private  enterprise,  as,  for  instance, 
a  stockholder  in  a  bank,  he  subjects  himself 
to  the  operation  of  the  statute.    3  Pet.  30. 

29.  Particular  classes  of  actions.  Actions 
of  trespass,  trespass  quare  clausum,  detinue^ 


LIMITATIONS 


60 


LIMITATIONS 


u^count,  (rover,  replevin,  and  upon  the  case 
^except  actions  for  slander),  and  action  of 
debt  for  arrearages  of  rent,  and  of  debt 
grounded  upon  any  lending  or  contract  with- 
out specialty,  or  simple  contract  debt,  are 
usually  limited  to  six  years.  Actions  for 
slander,  libel,  assault,  and  the  like,  are  usually 
limited  to  a  less  time,  generally  two  years. 
Judgment  of  courts  not  of  record,  as  courts 
of  justices  of  the  peace,  and  county  commis- 
sioners' courts,  are  in  some  states,  either  by 
statute  or  the  decisions  of  the  highest  courts, 
included  in  the  category  of  debts  founded  on 
contract  without  specialty.  13  Mete.  Mass. 
251 ;  2  Bail.  So.  C.  58 ;  37  Me.  29.  In  others, 
however,  they  are  excluded  upon  the  ground 
that  the  statute  applies  only  to  debts  founded 
on  contracts  in  fact,  and  not  to  debts  founded 
on  contracts  implied  by  law.  14  Johns.  N.  Y. 
480.  ^  ^ 

30.  Action  of  assumpsit,  though  not  spe- 
cifically named  in  the  original  statute  of 
James  I.  as  included  within  the  limitation  of 
six  years,  were  held  in  England,  after  much 
discussion,  to  be  fairly  embraced  in  actions  of 
"trespass."  4  Ad.  &  E.  912.  The  same 
rule  has  been  adopted  in  this  country,  5 
Ohio,  444;  3  Pet.  270;  1  Morr.  Iowa,  59  ;  and, 
in  fact,  assumpsit  is  expressly  included  in 
most  of  the  statutes.  And  it  has  also  been 
held  in  this  country  that  statutes  of  limita- 
tion apply  as  well  to  motions  made  under  a 
statute  as  to  actions.  11  Humphr.  Tenn. 
423.  Such  statutes  are  in  aid  of  the  common 
iaw,  and  furnish  a  general  rule  for  cases  that 
are  analogous  in  their  subject-matter,  but  for 
which  a  remedy  unknown  to  the  common 
law  has  been  provided  by  statutes  ;  as  where 
compensation  is  sought  for  land  taken  for  a 
railroad.    23  Penn.  St.  371. 

31.  A  set-off  cannot  usually  be  pleaded 
in  bar,  5  East,  16;  3  Johns.  N.  Y.  261; 
though  when  there  are  cross-demands  accruing 
at  nearly  the  same  time,  and  the  plaintiff 
has  saved  the  statute  by  suing  out  process, 
the  defendant  will  be  allowed  to  set  off  his 
demand,  2  Esp.  569 ;  and,  generally,  when 
there  is  any  equitable  matter  of  defence  in 
the  nature  of  set-off,  or  which  might  be  the 
subject  of  a  cross-action,  growing  out  of  the 
subject-matter  for  which  the  action  is  brought, 
courts  will  permit  it  to  be  set  up  although  a 
cross-action  or  an  action  on  the  claim  in  set- 
off might  be  barred  by  the  statute.  8  Rich. 
So.  C.  113  ;  9  Ga.  398  ;  11  Eng.  L.  &  Eq.  10 ; 
2  Green,  N.J.  545;  8  B.  Monr.Ky.580.  Alien 
is  not  lost  though  an  action  to  recover  on  the 
debt  or  obligation  secured  by  the  pledge  may 
be  barred.  3  Esp.  81 ;  2  Barnew.  &  Ad.  413  ; 
19  Pick.  Mass.  535. 

Stl.  Debts  by  specialty,  as  contracts  under 
seal,  judgments  of  courts  of  record  (except 
foreign  judgments,  and  judgments  of  courts 
out  of  the  state,  upon  which  the  decisions 
are  very  discordant),  liabilities  imposed  by 
statute,  awards  under  seal,  or  where  the  sub- 
mission is  under  seal,  indentures  reserving 
rent,  and  actions  for  legacies,  are  affected 
only  by  the  general  limitation  of  twenty 


years.  A  mortgage,  though  under  seal,  does 
not  take  the  note,  not  witnessed,  secured 
thereby,  with  it,  out  of  the  limitation  of  sim 
pie  contracts.  7  Wend.  N.  Y.  94.  An(i 
though  liabilities  imposed  by  statute  are 
specialties,  a  liability  under  a  by-law  made 
by  virtue  of  a  charter  is  not,  6  Eng.  L.  & 
Eq.  309  ;  on  the  ground  that  by  becoming  a 
member  of  the  company  enacting  the  by-laws 
the  party  consents  and  agrees  to  assume  the 
liabilities  imposed  thereby. 

33.  An  action  brought  by  the  payee  of  a 
witnessed  promissory  note,  his  executor  or 
administrator,  is  in  some  states  excepted 
from  the  limitation  of  simple  contracts,  and 
is  only  barred  by  the  lapse  of  twenty  years. 
But  the  indorsee  of  such  a  note  must  sue 
within  six  years  from  the  time  of  the  transfer 
to  him,  4  Pick.  Mass.  384;  though  he  may 
sue  after  that  time  in  the  name  of  the  payee, 
with  his  consent.  4  Gush.  Mass.  176.  If 
there  are  two  promissees  to  the  note,  and  the 
signature  of  only  one  is  witnessed,  the  note 
as  to  the  other  is  not  a  witnessed  note.  4  Mete. 
Mass.  406;  18  Shep.  Me.  49.  And  the 
attestation  of  the  witness  must  be  with  the 
knowledge  and  consent  of  the  maker  of  the 
note.  8  Pick.  Mass.  246;  1  Mas.  Vt.  26. 
An  attested  indorsement  signed  by  the  pro- 
missee,  acknowledging  the  note  to  be  due,  is 
not  a  witnessed  note,  23  Pick.  Mass.  282 ; 
but  the  same  acknowledgment  for  value  re- 
ceived, with  a  promise  to  pay  the  note,  is.  1 
Mete.  Mass.  21.  If  the  note  be  payable  to 
the  maker's  own  order,  witnessed  and  indorsed 
by  the  maker  in  blank,  the  indorsement 
being  without  attestation,  an  action  by  the 
first  indorsee  is  barred  in  six  years.  4  Mete. 
Mass.  219.  And  even  if  the  indorsement  be 
attested,  a  second  indorsee  or  holder  by  de- 
livery, not  being  the  original  payee,  is  barred. 
13  Mete.  Mass.  128. 

34.  Statute  bar  avoided,  when.  Trusts  in 
general  are  not  within  the  operation  of  the 
statute,  where  they  are  direct  and  exclusively 
within  the  jurisdiction  of  a  court  of  equity, 
and  the  question  arises  between  the  trustees 
and  the  cestui  que  trust.  7  Johns.  Ch.  N.  Y. 
90;  1  Watts,  Penn.  275.  Ard  of  this  cha- 
racter are  the  trusts  of  executors,  adminis- 
trators, guardians,  assignees  of  insolvents, 
and  the  like.  The  claim  or  title  of  such 
trustees  is  that  of  the  cestui  que  trust.  2 
Schoales  &  L.  Ir.  Ch.  607.  Special  limitations 
to  actions  at  law  are  made  in  some  states  in 
favor  of  executors  and  administrators,  modi- 
fying or  abrogating  the  rule  in  equity ;  and 
as  these  laws  are  made  in  the  interest  of  the 
trnst  funds,  it  is  the  duty  of  the  executor  or 
administrator  to  plead  the  special  statute 
which  applies  to  him  as  such  and  protects 
the  estate  he  represents,  though  he  is  not 
bound  to  plead  the  general  statute.  13  Mass. 
203  ;  3  N.  II.  491  ;  15  id.  58. 

35.  If,  however,  the  trustee  deny  the 
right  of  his  cestui  que  trust,  and  claim  ad- 
versely to  him,  and  these  facts  come  to  the 
knowledge  of  the  cestui  que  trust,  the  statute 
will  begin  to  run  from  the  time  when  the 


LIMITATIONS 


61 


LIMITATIONS 


facts  become  known.  3  Sumn.  C.  C.  4GG. 
But  trusts  cognizable  at  law  are  8ul)ject  to 
the  operation  of  the  statute,  including  im- 
plied trusts  generally.  6  Johns.  Ch.  N.  Y. 
110 ;  9  Pick.  Mass.  242 ;  17  Ves.  Ch.  95  ;  1 
Watts  &  S.  Penn.  112;  7  Blackf.  Ind.  86; 
7  B.  Monr.  Ky.  556  ;  7  S.  &  M.  Miss.  219  ;  4 
Ired.  No.  C.  1 ;  3  Gratt.  Va.  373. 

36.  Frincipal  and  ayent.  The  relation 
of  an  agent  to  his  principal  is  a  fiduciary 
one,  and  the  statute  does  not  begin  to  run  so 
long  as  there  is  no  breach  of  the  trust  or 
duty.  When,  however,  there  is  such  a  breach, 
and  the  principal  has  knowledge  of  it,  the 
statute  will  begin  to  run.  2  Gill  &  J.  Md. 
389  ;  10  Johns.  N.  Y.  285  ;  6  Cow.  N.  Y.  376. 
In  many  cases,  a  lawful  demand  upon  the 
agent  to  perform  his  duty,  and  neglect  or 
refusal  to  comply,  are  necessary  to  constitute 
a  breach.  As  when  money  is  placed  in  the 
hands  of  an  agent  with  which  to  purchase 
property,  and  the  agent  neglects  to  make  the 
purchase,  there  must  be  a  demand  for  the 
•money  before  the  statute  will  begin  to  run, 

5  Ired.  No.  C.  507  ;  so  where  property  is 
placed  in  the  hands  of  an  agent  to  be  sold, 
and  he  neglects  to  sell.  2  Gill  &  J.  Md.  389. 
If,  however,  the  agent's  conduct  is  such  as  to 
amount  to  a  declaration  on  his  part  that  he 
will  not  perform  his  duty,  or  if  he  has  dis- 
abled himself  from  performing  it,  it  is  tanta- 
mount to  a  repudiation  of  the  trust,  or  an  ad- 
verse claim  against  the  cestui  que  trust,  and 
the  same  consequences  follow.  No  demand 
is  necessary:  the  right  of  action  accrues  at 
once  upon  the  declaration,  and  the  statute 
then  begins  to  run.  10  Gill  &  J.  Md.  422 ; 
1  Rand.  Va.  284. 

ST.  But  where  a  demand  is  necessary,  it 
should  itself  be  made  within  the  limited 
time;  otherwise  an  agent  might  be  subject 
all  his  lifetime  to  demands,  however  stale, 
15  Wend.  N.  Y.  302  ;  17  Mass.  145 ;  unless 
the  agent,  by  his  own  act,  prevents  a  demand. 

6  Cush.  Mass.  501.  The  rendering  an  un- 
true account  by  a  collection  or  other  agent 
would  seem  to  be  such  a  breach  of  duty  as 
to  warrant  an  action  without  demand,  and 
would  therefore  set  the  statute  in  motion.  17 
Mass.  145.  If  the  custom  of  trade  or  the 
law  makes  it  the  clear  duty  of  an  agent  to 
pay  over  money  collected  without  a  demand, 
then  if  the  principal  has  notice  the  statute 
begins  to  run  from  the  time  of  collection ; 
and  when  there  is  no  such  custom  or  law,  if 
the  agent  having  funds  collected  gives  notice 
to  his  principal,  the  statute  will  begin  to  run 
after  the  lapse  of  a  reasonable  time  within 
which  to  make  the  demand,  though  no  de- 
mand be  made.    4  Saudf.  N.  Y.  355. 

38.  In  equity,  fraud  practised  upon  the 
plaintiff  so  that  the  fact  of  his  right  to  sue 
does  not  come  to  his  knowledge  till  after  the 
expiration  of  the  statute  of  limitations,  is 
held  to  open  the  case  so  that  he  may  bring 
his  action  within  the  time  limited,  dating 
from  the  discovery  of  the  fraud.  But  herein 
the  courts  proceed  with  great  caution,  and 
require  not  only  a  clear  case  of  fraudulent 


concealment,  but  the  absence  of  negligence 
on  the  part  of  the  party  seeking  to  obviate  the 
statute  limitation  by  the  replication  of  fraud, 
7  How.  819  ;  12  Penn.  St.  49;  1  Curt.  C.  C. 
390 ;  5  Johns.  Ch.  N.  Y.  522.  In  some  states, 
fraudulent  concealment  of  the  cause  of  action 
is  made  by  statute  a  cause  of  exemption  from 
its  effect.  And  the  courts  construe  the  saving 
clause  with  great  strictness,  and  hold  that 
means  of  knowledge  of  the  concealment  ara 
equivalent  to  knowledge  in  fact.  8  All.  Mass. 
130 ;  39  Me.  404.  In  the  absence  of  statutory 
provision,  the  admissibility  of  the  replication 
of  fraud  has  been  the  subject  of  contradictory 
decisions  in  the  different  states,  the  weighfc 
of  authority,  perhaps,  being  in  favor  of  its 
admissibility.    5  Mas.  C.  C.  143. 

39.  Running  accounts.  Such  accounts  as 
concern  the  trade  of  merchandise  between 
merchant  and  merchant  were  by  the  original 
statute  of  James  I.  exempted  from  its  opera- 
tion ;  and  among  these  mutual  and  open 
accounts  current  were  early  held  to  be  in^ 
eluded,  Peake,  Cas.  164;  6  Term,  189,  if  they 
contained  upon  either  side  any  item  upon 
which  the  right  of  action  accrued  within  six 
years,  whether  the  accounts  were  between 
merchant  and  merchant  or  other  persons. 
And  this  construction  of  the  law,  based,  as  is 
said  in  some  cases,  upon  the  ground  that  such 
accounts  come  within  the  equity  of  the  excep- 
tion in  respect  to  merchants'  accounts,  and  in 
others  upon  the  ground  that  every  new  item 
and  credit  in  an  account  given  by  one  party 
to  another  is  an  admission  of  there  being 
some  unsettled  account  between  them,  and, 
as  an  acknowledgment,  sufficient  to  take  the 
case  out  of  the  statute,  has  taken  the  form  of 
legislative  enactment  in  many  states  in  this 
country,  and,  in  the  absence  of  such  enactment, 
has  been  generally  followed  by  the  courts. 
20  Johns.  N.  Y.  576 ;  8  Pick.  Mass.  187 ;  6 
Me.  108  ;  6  Conn.  248  ;  2  Rawle,  Penn.  287 ; 
4  Rand.  Va.  488  ;  12  Pet.  U.  S.  300;  1  Hayw. 
No.  C.  216  ;  11  Gill  &  J.  Md.  212;  4  M'Cord, 
So.  C.  215 ;  3  Blackf.  Ind.  300;  3  Harr.  N.  J. 
266;  3  Miss.  786. 

40.  But  there  must  be  a  reciprocity  of 
dealing  between  the  respective  parties,  and 
the  accounts  must  be  such  that  there  may  be 
a  fair  implication  that  it  is  understood  that 
the  items  of  one  account  are  to  be  a  set-off  so 
far  as  they  go  against  the  items  of  the  other 
account.  2  Sumn.  C.  C.  410.  Where  the  items 
of  account  are  all  on  one  side,  as  between  a 
shopkeeper  and  his  customer,  or  where  goods 
are  charged  and  payments  credited,  there  is 
no  mutuality,  and  the  statute  bars  the  account. 
4  M'Cord,  So.  C.  214 ;  2  Sandf.  N.  Y.  318;  17 
Serg.  &  R.  Penn.  347.  And  where,  in  the 
case  of  mutual  account,  after  a  statement,  the 
balance  has  been  struck  and  agreed  upon,  the 
statute  at  once  applies  to  such  balance  as  a 
distinct  demand,  2  Saund.  125;  6  Me.  337; 
unless  it  is  made  the  first  item  of  a  new  mu- 
tual account.    3  Pick.  Mass.  96 ;  1  Mod.  270. 

41.  A  closed  account  is  not  a  state  ^  ac- 
count. In  order  to  constitute  the  latte^,  an 
account  must  have  been  rendered  by  one 


LIMITATIONS  62  LIMITATIONS 


party,  and  expressly  or  impliedly  assented  to  i 
hy  the  other.    8  Pick.  Mass.  187 ;  6  Me.  308 ;  } 
12  Pet.  300.  Accounts  between  merchant  and  i 
merchant  are  exempted  from  the  operation  of 
the  statute,  if  current  and  mutual,  although  s 
no  item  appears  on  either  side  within  six 
years.    8  Bligh,  352;  6  Pick.  Mass.  364;  5  i 
Cranch,  15 ;  13  Penn.  St.  300 ;  1  T.  L.  Smith, 
Ind.  217.    A  single  transaction  between  two  ; 
merchants  is  not  within  the  exception,  17 
Penn.  St.  238;  nor  is  an  account  between 
partners,  3  R.  I.  87 ;  nor  an  account  between 
two  joint-owners  of  a  vessel,  10  B.  Monr.  Ky. 
112;  nor  an  account  for  freight  under  a 
charter-party,  although  both  parties  are  mer- 
chants, 6  Pet.  151;  nor  any  account  between 
merchants,  unless  concerning  the  trade  of 
merchandise,  or,  in  other  words,  originating 
in  articles  of  merchandise.    7  Miss.  328. 

42.  New  promise  to  pay  debt  barred.  There 
is  another  important  class  of  exceptions,  not 
made  by  the  statute,  but  by  the  courts,  w^here- 
in,  although  the  statutory  limitation  may 
have  expired,  parties  bringing  themselves 
within  the  exception  have  always  been  allow^ed 
to  recover.  In  actions  of  assumpsit,  an  ac- 
knowledgment of  existing  indebtedness  made 
under  such  circumstances  as  to  be  equivalent 
to  a  new  promise  express  or  implied,  and 
within  six  years  before  the  time  of  action 
brought,  wall  take  the  case  out  of  the  operation 
of  the  statute,  although  the  original  cause  of 
action  accrued  more  than  six  years  before 
that  time.  And  this  proceeds  upon  the  ground 
that  as  the  statutory  limitation  merely  bars 
the  remedy  and  does  not  discharge  the  debt, 
there  is  something  more  than  a  merely  moral 
obligation  to  support  the  promise, — to  wit,  a 
pre-existent  debt,  which  is  a  sufficient  con- 
Bideration  for  the  new  promise.  2  Mas.  C.  C. 
151.  The  new  promise  upon  this  sufficient 
consideration  constitutes,  in  fact,  a  new  course 
of  action.    4  East,  399;  1  Pet.  351. 

43.  This  was  undoubtedly  a  liberal  con- 
struction of  the  statute;  but  it  w^as  early 
adopted,  and  has  maintained  itself,  in  the  face 
of  much  adverse  criticism,  to  the  present  time. 
While,  however,  at  an  early  period  there  was 
an  inclination  of  the  courts  to  accept  the 
slightest  and  most  ambiguous  expressions  as 
evidence  of  a  new  promise,  the  spirit  and  tend- 
ency of  modern  decisions  is  towards  greater 
strictness,  and  seem  to  be  fairly  expressed  in 
the  learned  judgment  of  the  late  Mr.  Justice 
Story,  in  the  case  of  Bell  v.  Morrison,  1  Pet. 
351.  "It  has  often  been  matter  of  regret,  in 
modern  times,  that,  in  the  construction  of  the 
statute  of  limitations,  the  decisions  had  not 
proceeded  upon  principles  better  adapted  to 
carry  into  effect  the  real  objects  of  the  st.atute ; 
that,  instead  of  being  viewed  in  an  unfavor- 
able light,  as  an  unjust  and  discreditable 
defence,  it  had  [not]  received  such  support 
as  would  have  ma<le  it,  what  it  was  intended 
to  be,  empliatically  a  statute  of  repose.  It 
is  a  wise  and  beneficial  law,  not  designed 
merely  to  raise  a  presumption  of  payment 
of  a  just  debt  from  lapse  of  time,  but  to  affi)rd 
security  against  stale  demands  after  the  true 


state  of  the  transactions  may  have  been  for- 
gotten, or  be  incapable  of  explanation,  by 
reason  of  the  death  or  removal  of  witnesses. 
It  has  a  manifest  tendency  to  produce  speedy 
settlement  of  accounts,  and  to  suppress  those 
prejudices  which  may  rise  up  at  a  distance 
of  time  and  baffle  every  honest  effort  to  coun- 
teract or  overcome  them.    Parol  evidence 
may  be  offered  of  confessions  (a  species  of 
evidence  which,  it  has  been  often  observed, 
it  is  hard  to  disprove  and  easy  to  fabricate) 
applicable  to  such  remote  times  as  may  leave 
no  means  to  trace  the  nature,  extent,  or  origin 
of  the  claim,  and  thus  open  the  way  to  the 
most  oppressive  charges.    If  w^e  proceed  one 
step  further,  and  admit  that  loose  and  general 
expressions,  from  w^hich  a  probable  or  possible 
inference  may  be  deduced  of  the  acknowledg- 
ment of  a  debt  by  a  court  or  jury,  that,  as  the 
language  of  some  cases  has  been,  any  acknow- 
ledgment, however  slight,  or  any  statement 
not  amounting  to  a  denial  of  the  debt,  that 
any  admission  of  the  existence  of  an  unsettled 
account,  without  any  specification  of  amount 
or  balance,  and  however  indeterminate  and 
casual,  are  yet  sufficient  to  take  the  case  out 
of  the  statute  of  limitations,  and  let  in  evi- 
dence, aliunde,  to  establish  any  debt,  however 
large  and  at  whatever  distance  of  time;  it  is 
easy  to  perceive  that  the  wholesome  objects 
of  the  statute  must  be  in  a  great  measure 
defeated,  and  the  statute  virtually  repealed.'' 
...  "If  the  bar  is  sought  to  be  removed  by 
the  proof  of  a  new  promise,  that  proving,  as 
a  new  cause  of  action,  ought  to  be  proved  in 
a  clear  and  explicit  manner,  and  be  in  its 
terms  unequivocal  and  determinate;  and,  if 
any  conditions  are  annexed,  they  ought  to  be 
shown  to  be  performed." 

44.  And  to  the  same  general  purport  are 
the  following  cases,  although  it  is  undeniable 
that  in  the  application  of  the  rule  there 
seems  in  some  cases  to  be  a  looseness  and 
liberality  which  hardly  comport  with  the 
rule.  11  How.  493  ;  32  Me.  260  ;  14  N.  II. 
422  ;  22  Vt.  179  ;  3  Cush.  Mass.  155  ;  7  Hill, 
N.  Y.  45  ;  16  Penn.  St.  210 ;  12  111.  146 ;  4 
Fla.  481 ;  19  Miss.  419 ;  22  id.  52 ;  5  Ga. 
486;  9  B.  Monr.  Ky.  614;  10  Ark.  134;  11 
Ired.  No.  C.  447;  8  Gratt.  Va.  110;  20  Ala. 
N.  s.  687. 

45.  A  new  provision  to  pay  the  principal 
only,  does  not  except  the  interest  from  the 
operation  of  the  statute.  29  Penn.  St.  189. 
Nor  does  an  agreement  to  refer  take  the 
claim  out  of  the  statute,  1  Sneed,  Tenn. 
464;   nor  the  insertion,  by  an  insolvent 

,  debtor,  of  an  outlawed  claim  in  a  schedule  of 
I   his  creditors  required  by  law,  2  Miles,  Penn. 

424 ;  10  Penn.  St.  129  ;  7  Gray,  Mass.  274 ; 
•  12  Mete.  Mass.  470 ;  nor  an  agreement  not 
!  to  take  advantage  of  the  statute.  29  Me.  47 ; 
:  17  Penn.  St.  232 ;  8  Md.  374 ;  9  Leigh,  Va. 
[  381.  If  such  an  agreement  were  valid,  it 
;  might  be  made  part  of  the  contract,  and  thus 
[  the  object  of  the  law  would  be  defeated.  32 
b  Me.  109.  Nor  will  a  devise  of  property  to 
I  pay  debts  exempt  debts  upon  which  the 
)   statute  has  run  prior  to  the  testator's  death 


LIMITATIONS 


63 


LIMITATIONS 


4  Edw.  N.Y.  527;  13  Ala.  n.  s.  611;  4 
Whart.  Penn.  445  ;  4  Penn.  St.  56  ;  13  Gratt. 
Va.  329. 

46.  Nor,  in  general,  will  any  statement 
of  a  debt,  made  officially,  in  pursuance  of 
special  legal  requirement,  or  with  another 
purpose  than  to  recognize  it  as  an  existing 
debt.  5  Me.  140;  12  Eng.  L.  &  Eq.  191 ;  9 
Cush.  Mass.  390 ;  30  Me.  425.  Nor  will  a 
deed  of  assignment  made  by  the  debtor  for 
the  payment  of  certain  debts,  and  of  his 
debts  generally,  and  a  partial  payment  by 
the  assignor  to  a  creditor,  1  R.  I.  81 ;  6 
Eng.  L.  U,  Eq.  520 ;  nor  the  entry  of  a  debt 
in  an  unsigned  schedule  of  the  debtor's  lia- 
bilities, made  for  his  own  use,  30  Me.  425  ; 
nor  an  undelivered  mortgage  to  secure  an 
outlawed  debt,  though  duly  executed,  acknow- 
ledged, and  recorded.  6  Cush.  Mass.  151. 
But  if  the  mortgage  be  delivered,  it  will  be 
a  sufficient  acknowledgment  to  exempt  the 
debt  secured  thereby  from  the  operation  of 
the  statute.  4  Cush.  Mass.  559;  18  Conn. 
257 ;  14  Tex.  672.  And  so  will  the  answer 
to  a  bill  in  chancery  which  expressly  sets 
forth  the  existence  of  the  debt.  28  Vt.  569 ; 
3  Gill,  Md.  166. 

47.  If  there  is  any  thing  said  to  repel  the 
inference  of  a  promise,  or  inconsistent  there- 
with, the  statute  will  not  be  avoided.  3  Bingh. 
329  ;  6  Watts,  Penn.  44 ;  2  Wash.  C.  C.  514. 
"  The  account  is  due,  and  I  supposed  it  had 
been  paid,  but  did  not  know  of  its  being  ever 
paid,"  is  no  new  promise.  8  Cranch,  72.  If 
the  debtor  admits  that  the  debt  is  due,  but 
intimates  his  purpose  to  avail  himself  of  the 
bar  of  the  statute,  the  acknowledgment  is 
insufficient.  9  Serg.  &  R.  Penn.  128  ;  2  Dev. 
&  B.  No.  C.  82  ;  2  Browne,  Penn.  35.  So  if 
he  says  he  will  pay  if  he  owes,  but  denies 
that  he  owes,  3  Me.  97  ;  2  Pick.  Mass.  368, 
or  if  he  is  liable,  but  denies  his  liability.  2 
Bail.  So.  C.  278.  So  if  he  states  his  inability 
to  pay.  22  Pick.  Mass.  291.  So  if  he  admits 
the  claim  to  have  been  once  due,  but  claims 
that  it  is  paid  by  an  account  against  the 
claimant,  3  Fairf.  Me.  72 ;  5  Conn.  480 ;  4 
M'Cord,  So.  C.  215  ;  or  otherwise.  11  111.  146. 
*'  I  am  too  unwell  to  settle  now  ;  when  I  am 
better,  I  will  settle  your  account:"  held  in- 
sufficient. 9  Leigh,  Va.  45 ;  1  Yerg.  Tenn.  270. 
So  of  an  offer  to  pay  a  part  in  order  to  get 
the  claim  out  of  the  hands  of  the  creditor,  2 
Bail.  So.  C.  283  ;  and  of  an  admission  that 
the  account  is  right.    4  Dan.  Ky.  505. 

48.  If  the  new  promise  is  subject  to  con- 
ditions or  qualifications,  is  indefinite  as  to 
time  or  amount,  or  as  to  the  debt  referred  to, 
or  in  any  other  way  limited  or  contingent,  the 
plaintiff  will  be  held  to  bring  himself  strictly 
within  the  terms  of  the  promise,  and  to  show 
that  the  condition  has  been  performed,  or  the 
contingency  happened,  and  that  he  is  not  ex- 
cluded by  any  limitation,  qualifi<;ation,  or 
uncertainty.  11  Wheat.  309;  15  Johns.  N.Y. 
511 ;  1  Pet.  351 ;  3  Bingh.  638  ;  3  Hare,  Ch. 
299.  If  the  promise  be  to  pay  when  able, 
the  ability  must  be  proved  by  the  plaintiff. 
3  Barnew.  &  C.  603;  4  Esp.  36;  13  N.  H. 


486;  10  N.Y.  88;  7  Hill,  N.  Y.  45 ;  15  Ga. 
395.  So  if  it  be  to  pay  as  soon  as  convenient, 
the  convenience  must  be  proved,  2  Crompt. 
&  M.  Exch.  459  ;  or,  "  if  E  will  say  that  I 
have  had  the  timber,"  the  condition  must  be 
complied  with.    1  Pick.  Mass.  370. 

49.  And  if  there  be  a  promise  to  pay  in 
specific  articles,  the  pilaintiff  must  show  that 
he  offered  to  accept  them.  8  Johns.  N.  Y. 
318  ;  8  Mete.  Mass.  432.  The  vote  of  a  town 
to  appoint  a  committee  to  "  settle  the  dispute" 
was  held  to  be  a  conditional  promise,  re- 
quiring, to  give  it  force  as  against  the  statute, 
proof  that  the  committee  reported  something 
due.  11  Mass.  451.  If  the  original  promise 
be  conditional,  and  the  new  promise  abso- 
lute, the  latter  will  not  alter  the  former.  3 
Wash.  C.  C.  404.  But  where  the  promise 
was  to  pay  if  the  debtor  could  not  prove  that 
B  had  paid  it,  it  was  held  that  the  onus  waa 
upon  A  to  prove  that  B  had  paid  it.  11  Ii  ed. 
No.  C.  445.  The  offer  must  be  accepted  alto- 
gether or  rejected  altogether.  4  Leigh,  Va. 
603. 

50.  It  must  appear  clearly  that  the  pro- 
mise is  made  with  reference  to  the  particular 
demand  in  suit,  6  Pet.  86 ;  15  Johns.  N.  Y. 
511 ;  though  a  general  admission  would  seem 
to  be  sufficient,  unless  the  defendant  show 
that  there  were  other  demands  between  the 
parties.  21  Pick.  Mass.  323.  If  there  be 
uncertainty  as  to  the  amount  admitted  to  be 
due,  the  plaintiff,  on  proving  that  something 
is  due,  may  recover  nominal  damages,  4 
Nev.  &  M.  337  ;  4  Younge  &  C.  238  ;  12  Carr. 
&  P.  104 ;  6  N.  H.  367  ;  and  whether  evi- 
dence aliunde  may  be  admitted  to  prove  the 
actual  amount  is  a  point  upon  which  the 
most  respectable  authorities  differ.  That  it 
may,  is  held  in  Massachusetts,  22  Pick. 
Mass.  291,  and  perhaps  in  Maine.  27  Me. 
433.  Contra,  1  Pet.  351 ;  9  Leigh,  Va.  381 ; 
2  Dev.  &  B.  No.  C.  390 ;  10  Watts,  Penn. 
172;  23  Penn.  St.  416;  24  Me.  145;  6  Mo. 
27. 

51.  Part  payment  of  a  debt  is  evidence  of 
a  new  promise  to  pay  the  remainder.  2  Dougl. 
652.  It  is,  however,  hviiprimd  facie  evidence, 
and  may  be  rebutted  by  other  evidence.  28 
Vt.  642;  27  Me.  370;  4  Mich.  580;  10  Ark. 
638.  Payment  of  the  interest  has  the  same 
effect  as  payment  of  part  of  the  principal.  8 
Bingh.  309 ;  14  Pick.  Mass.  387.  And  the 
giving  a  note  for  part  of  a  debt,  2  Mete.  Mass. 
168,  or  for  accrued  interest,  is  payment.  13 
Wend.  N.  Y.  267 ;  6  Mete.  Mass.  553 ;  24  Eng. 
L.  &Eq.  92.  And  so  is  the  credit  of  interest 
in  an  account  stated,  6  Johns.  N.  Y.  267,  and 
the  delivery  of  goods  on  account.  4  Ad.  &  E. 
71.  But  the  payment  of  a  dividend  by  the 
assignee  of  an  insolvent  debtor  is  no  new  pro- 
mise to  pay^he  remainder,  7  Gray,  Mass.  387; 
6  Eng.  L.  &  Eq.  520;  and  it  has  recently  been 
held  Dy  respectable  authorities  that  new  part 
payment  is  no  new  promise,  but,  in  urder  to 
take  the  case  out  of  the  statute,  the  payment 
must  be  made  on  account  of  a  sum  admitted 
to  be  due,  accompanied  with  a  promise  to  pay 
the  remainder.    1  Exch.  188 ;  6  Mees.  &  W. 


LIMITATIONS 


64 


LIMITATIONS 


Exch.  824 ;  6  Eng.  L.  &  Eq.  520 ;  20  Miss. 
663. 

52.  Part  payment  by  a  surety  in  the  pre- 
sence of  his  principal,  and  without  dissent, 
is  payment  by  the  principal,  22  N.  H.  219  ; 
but  part  payment  by  the  surety  after  the  sta- 
tute has  barred  the  debt,  is  not  a  new  promise 
to  pay  the  other  part.  18  B.  Monr.  Ky.  643. 
A  general  payment  on  account  of  a  debt  for 
which  several  notes  were  given,  without  direc- 
tion as  to  the  application  of  the  payment, 
may  be  applied  by  the  creditor  to  either  of 
the  notes,  so  as  to  take  the  note  to  which  the 
payment  is  applied  out  of  the  statute;  but 
the  payment  cannot  be  apportioned  to  the 
several  notes  with  the  same  effect.  19  Vt.  26 ; 
31  Eng.  L.  &  Eq.  55 ;  1  Gray,  Mass.  630. 

53.  The  payment  may  be  made  to  an  agent, 
or  even  a  stranger  not  authorized  to  receive 
it,  but  erroneously  supposed  to  be  authorized. 
It  is  as  much  an  admission  of  the  debt  as  if 
made  to  the  principal  himself.  1  Bingh.  480 ; 
10  Barnew.  &  C.  122.  And  so  with  reference 
to  acknowledgments  or  new  promises.  4  Pick. 
Mass.  110;  9  id.  488;  9  Wend.  N.  Y.  293;  11 
Me.  152.  And  the  weight  of  authority  is  in 
favor  of  the  rule  that  part  payment  of  a  wit- 
nessed note  or  bond  will  avoid  the  statute. 
30  Me.  164;  9  B.  Monr.  Ky.438;  12  Mo.  94; 
18  Ark.  521:  contra,  1  Ala.  n.  s.  482.  Whe- 
ther the  new  promise  or  payment,  if  made 
after  the  debt  is  barred  by  the  statute,  will 
remove  the  bar,  is  also  a  mooted  point,  the 
weight  of  authority  perhaps  being  in  favor 
of  the  negative.  14  Pick.  Mass.  387  ;  10  Ala. 
N.  s.  959;  13  Miss.  564;  2  N.  Y.  523;  12  id. 
635  ;  14  Ark.  199.  In  Ohio  it  is  so,  by  sta- 
tute. 17  Ohio,  9.  For  the  affirmative,  see  18 
Vt.  440 ;  20  Me.  176  ;  5  Ired.  No.  C.  341 ;  2 
Tex.  501 ;  8  Humphr.  Tenn.  656. 

54.  It  was  long  held  that  an  acknowledg- 
ment or  part  payment  by  one  of  several  joint- 
contractors  would  take  the  claim  out  of  the 
statute  as  to  the  other  joint-contractors,  2 
Dougl.  652 ;  2  H.  Blackst.  340 ;  but  this  cannot 
now  be  considered  to  be  the  law  either  in 
England  or  this  country.  6  Eng.  L.  &  Eq.  520 ; 
10  Barb.  N.  Y.  566;  2  N.  Y.  523;  11  id. 
176  ;  22  N.  II.  219  ;  10  Ark.  108;  7  Gill,  Md. 
857 ;  19  Miss.  275 ;  1  N.  J.  677  ;  6  Gush.  Mass. 
360;  9Ga.  467;  8  Penn.  St.  337 ;  24  Ala.  n.  s. 
474;  9  Rich.  So.  C.  44.  A  fortiori  the  ad- 
mission or  part  payment  by  an  executor  or 
administrator  of  one  joint-debtor  will  not 
revive  the  claim  as  against  the  other. 

55.  Of  course  an  acknowledgment  or  part 
payment  made  by  an  a^ent  acting  within  the 
scope  of  his  authority  is,  upon  the  familiar 
maxim,  qni  J'acit  per  alium  facit  per  se,  an 
acknowledgment  or  part  payment  by  the 
principal ;  and  hence  if  a  partner  has  been 
appointed  specially  to  settle  th(^  affairs  of  a 
dissolved  partnership,  his  acknowledgment 
or  part  payment  by  virtue  of  his  authority  as 
such  agent  will  take  the  claim  out  of  the  sta- 
tute. 6  Johns.  N.  Y.  267  ;  1  Pet.  351 ;  20 
Me.  347.  And  the  wife  may  be  such  agent 
as  to  a  claim  for  goods  sold  to  her  during  the 
absence  of  her  husband,  1  Campb.  394 ;  but 


a  wife  during  coverture,  not  made  specially 
or  by  implication  of  law  an  agent,  cannot 
make  a  new  promise  effectual  to  take  a  claim 
to  which  she  was  a  party  dum  sola  out  of  tlie 
statute.  1  Barnew.  &  C.  248  ;  24  Vt.  89 ;  12 
Eng.  L.  &  Eq.  398.  Not  even  though  the  co- 
verture be  removed  before  the  expiration  of 
six  years  after  the  alleged  promise.  2  Penn. 
St.  490. 

56.  Nor  is  the  husband  an  agent  for  the 
wife  for  such  a  purpose,  15  Vt.  471 ;  but  he  is  an 
agent  for  the  wife,  payee  of  a  note  given  to  her 
dum  sola,  to  whom  a  new  promise  or  part  pay- 
ment may  be  made.  6  Q.  B.  937.  So  a  new 
promise  to  an  executor  or  administrator  is  suffi- 
cient, 8  Mass.  134 ;  and  the  weight  of  author- 
ity seems  to  be  in  favor  of  the  binding  force 
of  a  promise  or  part  payment  made  by  an 
executor  or  administrator,  12  Gush.  Mass. 
324  ;  12  B.  Monr.  Ky.  408  ;  9  Ala.  n.  s.  502  ; 
17  Ga.  96 ;  9  Eng.  L.  &  Eq.  80 ;  particularly 
if  the  promise  be  express.  15  Johns.  N.  Y. 
3  ;  15  Me.  360.  But  there  are  highly  respect- 
able  authorities  to  the  contrary.  1  Wh.art. 
Penn.  66 ;  23  Miss.  389 ;  7  Md.  442  ;  9  id. 
317;  14  Tex.  312. 

5f .  But  to  put  an  end  to  such  litigation, 
it  was  enacted  by  stat.  9  Geo.  IV.  c.  14,  com- 
monly known  as  Lord  Tenterden's  Act,  that 
the  new  promise  or  acknowledgment  by  words 
onty,  in  order  to  be  effectual  to  take  a  case 
out  of  the  statute  of  limitations,  should  be 
in  writing,  signed  by  the  party  chargeable 
thereby;  and  this  statute  has  been  substantially 
adopted  by  most,  if  not  all,  of  the  states  in 
this  country.  This  statute  affects  merely  the 
mode  of  proof.  The  same  effect  is  to  be  given 
to  the  words  reduced  to  writing  as  would 
before  the  passage  of  the  statute  have  been 
given  to  them  when  proved  by  oral  testimony. 
7  Bingh.  163.  If  part  payment  is  alleged, 
"  words  only,"  admitting  the  fact  of  payment, 
though  not  in  writing,  are  admissible  to 
strengthen  the  proof  of  the  fact  of  payment. 

2  Gale  &  D.  59. 

58.  The  return,  under  citation,  by  an  ad- 
ministrator of  the  maker  of  a  note,  showing 
the  note  as  one  of  his  intestate's  debts,  is,  in 
writing,  within  the  meaning  of  this  statute. 
12  Sim.  17  ;  and  so  is  the  entry  by  an  insol- 
vent debtor  of  the  debt  in  his  schedule  of  lia- 
bilities. 12  Mete.  Mass.  470.  It  was  held 
in  the  last  case  that  the  mere  entry  was  not 
in  itself  a  sufficient  acknowledgment,  but 
being  in  writing,  within  the  meaning  of  th© 
statute,  it  might  be  used  with  other  written 
evidence  to  prove  a  new  promise.  But  the 
making  one  note  and  tendering  it  in  payment 
of  another  is  not  a  new  promise  in  writing, 

3  Gush.  Mass.  355 ;  not  even  if  the  note  be 
delivered,  if  it  be  re-delivered  to  the  maker 
for  the  purpose  of  restoring  matters  between 
the  parties  to  the  state  they  were  in  before 
the  note  was  given.    I  Mete.  Mass.  1. 

59.  A  and  B  had  an  unsettled  account. 
In  1845,  A  signed  the  following:  "It  is 
agreed  that  B,  in  his  general  account,  shall 
give  credit  to  A  for  £10,  for  books  delivered 
in   1834.'^    Held,  no  acknowledgment  in 


LIMITATIONS 


65 


LIMITATIONS 


writing,  so  aa  to  give  B  a  right  to  an  account 
against  A's  estate  more  than  six  years  before 
A's  death.  35  Eng.  L.  &  Eq.  195.  The 
writing  must  be  signed  by  the  party  himself. 
Tlie  signature  of  the  husband's  name  by  the  i 
wife,  though  at  his  request,  is  not  a  signing  ! 
by  the  party  to  be  charged.  2  Blngh.  n.  c. 
TtG.  N<»r  is  the  signature  by  a  clerk  suffi- 
cient. 17  C.  B.  147.  Nor  is  a  promise  in 
the  handwriting  of  the  defendant  sufficient; 
it  must  be  signed  by  him.  12  Ad.  &  E.  492. 
And  a  request  by  the  defendant  to  the  plain- 
tiff to  get  certain  moneys  due  the  defendant 
from  third  parties,  does  not  charge  the  party 
making  the  request,  because  it  is  not  appa- 
rent that  the  defendant  intended  to  render 
himself  personally  liable.  8  Ad.  &  E.  221 ; 
5  Carr.  &  P.  209.  Since  this  statute,  mutual 
act'ounts  will  not  be  taken  out  of  the  opera- 
tion of  the  statute  by  any  item  on  either  side, 
unless  the  item  be  the  subject  of  a  new  pro- 
mise in  writing.  2  Crompt.  M.  &  R.  Exch. 
45  The  effect  of  part  payment  is  left  by  the 
statute  as  before.  10  Barnew.  &  C.  122.  And 
the  fact  of  part  payment,  it  is  now  held,  con- 
trary to  some  earlier  cases,  may  be  proved  by 
unsigned  written  evidence,  4  Eng.  L.  &  Eq. 
514 ;  or  by  oral  testimony.  9  Mete.  Mass.  485 ; 
30  Me.  353. 

60.  A  new  promise  hy  an  infant  for  neces- 
saries revives  the  debt.  28  Eng.  L.  &  Eq. 
270.  And  where  an  infant  had  jointly  with 
an  adult  made  a  note,  and  a  part  payment 
thereon,  an  oral  promise,  after  arriving  at 
his  majority,  to  pay  the  balance,  was  held 
valid  against  him,  but  not  against  the  adult. 
5  Mete.  Mass.  162.  But  this  doctrine  as  to 
the  effect  of  a  new  promise  is  chiefly  applica- 
ble to  cases  of  indebtedness,  and  has  no  ap- 
plication whatever  in  cases  of  contracts  to 
do  or  not  to  do  an  act,  nor  in  cases  of  tort, 
2  Campb.  157  ;  11  Wheat.  309 ;  16  Ga.  144 ; 
1  Barnew.  &  Aid.  92 ;  nor  to  an  action  on  a 
judgment.    11  Ired.  No.  C.  427. 

AS  TO  REAL  PROPERTY  AND  RIGHTS. 

61.  The  general  if  not  universal  limita- 
tion of  the  right  to  bring  action  or  to  make 
entry,  is  to  twenty  years  after  the  right  to 
enter  or  to  bring  the  action  accrues,  i.e.  to 
twenty  years  after  the  cause  of  action  accrues. 
As  the  rights  and  interests  of  different  parties 
in  real  property  are  various,  and  attach  at 
different  periods,  and  successively,  it  follows 
that  there  may  be  a  right  of  entry  in  a  par- 
ticular person,  accruing  many  years  after 
the  expiration  of  the  twenty  years,  and  after 
the  expiration  of  antecedent  rights. 

6*1.  Thus,  if  an  estate  be  limited  to  one  in 
tail,  and  the  tenant  in  tail  be  barred  of  his 
remedy  by  the  statute,  yet.  as  the  statute  only 
affects  the  remedy,  and  the  right  or  estate 
still  exists,  the  right  of  entry  in  the  re- 
mainder-man does  not  accrue  until  the  failure 
of  the  issue  of  the  tenant  in  tail,  which  may 
not  happen  for  many  years.  The  estate  still 
existing  in  the  tenant  in  tail  or  his  issues 
supports  and  keeps  alive  the  remainder-man's 
right  of  action  till  the  expiration  of  twenty 


years  after  his  right  of  entry  accrues.  1 
Burr.  60.  ' 

The  laches  of  the  owner  of  a  prior  right 
in  an  estate  cannot  )>r(ijudice  the  owner  of  a 
subsequently  accruing  right  in  the  same 
!  estate.  8  East,  551 ;  4  Johns.  N.  Y.  390  ;  15 
Mass.  471.  And  where  there  exist  two  dis- 
tinct rights  of  entry  in  the  same  person,  he 
may  claim  under  either.  He  is  not  obliged 
to  enter  under  his  earlier  right.  1  Pick. 
Mass.  318 ;  9  Mass.  508  ;  5  Carr.  &  P.  563. 

63.  When  an  actual  entry  is  necessary 
prior  to  the  bringing  an  action,  it  must  be 
upon  the  land  in  question,  13  East,  489;  3 
Me.  316  ;  unless  prevented  by  force  or  fraud, 
when  a  bona  fide  attempt  is  equivalent.  4 
Johns.  N.  Y.'  389.  If  the  land  lie  in  two 
counties,  there  must  be  an  entry  in  each 
county;  though  if  all  the  land  be  in  one 
county  an  entry  upon  part,  with  a  declaration 
of  claim  to  the  whole,  is  sufficient.  3  Johns. 
Gas.  N.  Y.  115.  The  intention  to  claim  the 
land  is  essential  to  the  sufficiency  of  the  entry. 
3  Me.  316;  9  Watts,  Penn.  28.  An  entry 
may  be  made  by  the  guardian  for  his  ward, 
by  the  remainder-man  or  reversioner  for  the 
tenant,  and  the  tenant  for  the  reversioner  or 
remainder-man,  being  parties  having  privity 
of  estate.  9  Coke,  106.  So  a  cestui  que  trust 
may  enter  for  his  trustee,  1  T.  Raym.  716; 
and  an  agent  for  his  principal,  11  Penn.  St. 
212,  even  without  original  authority,  if  the 
act  be  adopted  and  ratified.  9  Penn.  St.  40. 
And  the  entry  of  one  joint-tenant,  coparcener, 
or  tenant  in  common  will  inure  to  the  bene- 
fit of  the  other.  10  Watts,  Penn.  296. 

64.  Adverse  possession  for  twenty  years 
gives  title  against  the  true  owner ;  but  it 
must  be  open,  uninterrupted,  and  with  intent 
to  claim  against  the  true  owner.  The  pos- 
session must  be  an  actual  occupation,  so  open 
that  the  true  owner  ought  to  know  it  and 
must  be  presumed  to  know  it,  and  in  such 
manner  and  under  such  circumstances  as 
amount  to  an  invasion  of  his  rights,  thereby 
giving  him  cause  of  action.  11  Gill  &  J. 
Md.  371 ;  5  Cow.  N.  Y.  219. 

65.  It  must  be  open,  so  that  the  owner  may 
know  it  or  might  know  of  it.  Many  acts  of 
occupation  would  be  unequivocal,  such  as 
fencing  the  land  or  erecting  a  house  on  it, 
7  Wheat.  59 ;  actual  improvement  and  culti- 
vation of  the  soil,  1  Johns.  N.  Y.  156  ;  digging 
stones  and  cutting  timber  from  time  to  time, 
14  East,  332 ;  driving  piles  into  the  soil 
covered  by  a  mill-pond,  and  thereon  erecting 
a  building,  6  Mass.  229  ;  cutting  roads  into 
a  swamp,  and  cutting  trees  and  making 
shingles  therefrom,  1  Ired.  No.  C.  56  ;  and 
setting  fish-traps  in  a  non-navigable  stream, 
building  dams  across  it,  and  using  it  every 
year  during  the  entire  fishing-season  for  the 
purpose  of  catching  fish.  1  Ired.  No.  C.  535. 
But  entering  upon  unenclosed  flats,  when 
covered  by  the  tide,  and  sailing  over  them 
with  a  boat  or  vessel  for  the  ordinary  pur 
poses  of  navigation,  is  not  an  adverse  pos- 
session, 1  Cush.  Mass.  395 ;  though  the  fill 
ing  up  the  flats,  and  building  a  wharf  there 


LIMITATIONS 


66 


LIMITATIONS 


and  using  the  same,  would  be  if  the  use  were 
exclusive.  1  Gush.  Mass.  313.  Nor  is  the 
entering  upon  a  lot  and  marking  its  Vjounda- 
ries  by  splitting  the  trees,  14  N.  II.  101 ; 
uor  the  getting  rails  and  other  timber  for  a  j 
few  weeks  each  year  from  timber-land,  4 
Jones,  No.  C.  295 ;  nor  cattle  ranging,  1 
Hayw.  No.  C.  311  ;  nor  the  overflowing  of 
land  by  the  stoppage  of  a  stream,  4  Dev. 
No.  C.  158  ;  nor  the  survey,  allotment,  and 
conveyance  of  a  piece  of  land,  and  the  record- 
ing of  the  deed;  unless  there  is  open  occu- 
pation.   22  Me.  29. 

66.  It  must  be  continuous  for  the  whole 
period.  If  one  trespasser  enters  and  leaves, 
and  then  another  trespasser,  a  stranger  to  the 
former  and  without  purchase  from  or  respect 
to  him,  enters,  the  possession  is  not  continuous. 
2  Serg.  &  R.  Penn.  240;  9  B.  Monr.  Ky.  253. 
But  a  slight  connection  of  the  latter  with  the 
former  trespasser,  as  by  a  purchase  by  parol 
contract,  will  be  sufficient  to  give  the  possession 
continuity.  31  Me.  583;  6  Penn.  St.  355. 
And  so  will  a  purchase  at  a  sale  or  execution. 
5  Penn.  St.  126.  To  give  continuity  to  the 
possession  by  successive  occupants,  there 
must  be  privity  of  estate,  5  Mete.  Mass.  15; 
and  such  a  privity  that  each  possession  may 
be  referred  to  one  and  the  same  entry:  as 
that  of  a  tenant  to  his  landlord,  or  of  the  heir 
of  a  disseisor  to  his  ancestor.  1  Rice,  So.  C. 
10. 

6'y.  So  an  administrator's  possession  may 
be  connected  with  that  of  his  intestate,  11 
Ilumphr.  Tenn.  457 ;  and  that  of  a  tenant 
holding  under  the  ancestor,  with  that  of  the 
heir.  Cheeves,  So.  C.  200.  In  some  states, 
however,  it  is  held  that  whether  the  posses- 
sion be  held  uniformly  under  one  title,  or  at 
differpsnt  times  under  different  titles,  can  make 
no  difference,  provided  the  claim  of  title  is 
always  adverse:  as  in  Connecticut,  3  Day, 
Conn,  269,  and  in  Kentucky.  1  A.  K.  Marsh, 
Ky.  4. 

68.  The  possession  must  be  adverse.  If  it 
be  permissive,  2  Jac.  &  W.  Ch.  1,  or  by  mis- 
take, 3  Watts,  Penn.  280,  or  unintentional, 
11  Mass.  296,  or  confessedly  in  subordination 
to  another's  right,  5  Barnew.  &  Aid.  223,  it 
does  not  avail  to  bar  the  statute.  If  the  occu- 
pation is  such  and  by  such  a  person  that  it 
may  be  for  the  true  owner,  it  will  be  pre- 
sumed to  be  for  him,  unless  it  be  shown  that 
the  adverse  claimant  gave  notice  that  he  held 
adverselv  and  not  in  subordination.  1  Batt. 
Ch.  Ir.  3"'73  ;  1  Speers,  So.  C.  225.  And  this 
notice  must  be  clear  and  unequivocal.  If  the 
act  of  the  tenant  or  adverse  claimant  may  be 
a  trespass  as  well  as  a  disseisin,  the  true 
owner  may  elect  which  he  will  consider  it, 
regardless  of  the  wishes  of  the  trespasser, 
who  cannot  be  allowed  to  qualify  his  own 
wrong.    4  Mas.  C.  C.  329. 

69.  So  that  if  the  adverse  claimant  sets 
up  liis  trespasses  as  amounting  to  an  adverse 
jiossession,  the  true  owner  may  reply  they 
are  no  disseisin,  but  trespasses  only ;  while,  on 
the  otiier  hand,  the  true  owner  may  elect,  if 
he  ploaye.  for  the  bake  of  his  remedy,  to  treat 


them  as  a  disseisin.  19  Me.  383 ;  8  N,  11.  67. 
This  is  called  a  disseisin  by  election,  in  dis- 
tinction from  a  disseisin  in  fact, — a  distinction 
which  was  taken  for  the  benefit  of  the  owner 
of  the  land.  AVhenever  the  act  done  of  itself 
necessarily  works  an  actual  disseisin,  it  is  a 
disseisin  in  fact:  as,  when  a  tenant  for  years 
or  at  will  conveys  in  fee.  On  the  other  hand, 
those  acts  which  are  susceptible  of  being  made 
a  disseisin  by  election  are  no  disseisin  till 
the  election  of  the  owner  makes  them  so:  as, 
when  a  tenant  at  will,  instead  of  conveying 
in  fee,  makes  a  lease  for  years.  1  Johns.  Cas. 
N.  Y.  36. 

TO.  The  claim  by  adverse  possession  must 
have  some  definite  boundaries.  1  Mete.  Mass. 
528 ;  10  Johns.  N.  Y.  447.  There  ought  to 
be  something  to  indicate  to  what  extent  the 
adverse  possessor  claims.  A  suflficient  in- 
closure  will  establish  the  limits.  7  Serg.  &  R. 
Penn.  129,  But  it  must  be  an  actual,  visible, 
and  substantial  inclosure.    4  Bibb,  Ky.  544 ; 

2  Aik.  Vt.  364  ;  7  Mo.  166.  An  inclosure  on 
three  sides,  by  a  trespasser  as  against  the  real 
owner,  is  not  enough,  8  Me.  239;  5  Md.  256; 
nor  is  an  unsubstantial  brush  fence,  10  N.  H. 
397  ;  nor  one  formed  by  the  lapping  of  fallen 
trees.  3  Mete.  Mass.  125 ;  2  Johns.  N.  Y.  230. 
And  where  the  claim  is  by  possession  only, 
without  any  color  or  pretence  of  title,  it  can- 
not extend  bevond  the  actual  limits  of  the 
inclosure.  3  Ilarr.  &  M'H.  Md.  621 ;  5  Conn. 
305 ;  28  Vt.  142  ;  6  Ind.  273.  And  this  must 
be  fixed,  not  roving  from  part  to  part.  11 
Pet.  53. 

Tl.  Extension  of  the  inclosure  within  the 
time  limited  will  not  give  title  to  the  part 
included  in  the  extension.  2  Harr.  &  J.  Md. 
391 ;  8  111.  238.  Where,  however,  the  claim 
rests  upon  color  of  title  as  well  as  possession, 
the  possession  will  be  regarded  as  coextensive 
with  the  powers  described  in  the  title-deed, 
11  Pet.  41 ;  4  Mas.  C.  C.  330 ;  3  Ired.  No.  C. 
578  ;  2  III.  181 ;  13  Johns.  N.  Y.  406;  5  Dan. 
Ky.  232;  4  Mass.  416,  unless  the  acts  or 
declarations  of  the  occupant  restrict  it.  22 
Vt.  357.  But  the  constructive  possession  of 
land  arising  from  color  of  title  cannot  be 
extended  to  that  part  of  it  whereof  there  is 
an  actual  adverse  possession,  whether  with  or 
without  a  proper  title,  28  Penn.  St.  124;  16 
B.  Monr.  Ky.  72  ;  1  Ired.  No.  C.  56;  4  Sneed, 
Tenn.  584  ;  18  Vt.  294;  nor  will  a  subsequent 
conflicting  possession,  whether  under  color  of 
title  or  not, 'be  extended  by  construction  be- 
yond the  limits  of  the  actual  adverse  posses- 
sion for  the  purpose  of  defeating  a  prior  c(m- 
structive  possession.  6  Cow.  N.  Y.  677  ;  1 1 
Vt.  521. 

72.  Nor  can  there  be  any  constructi  c 
adverse  possession  against  the  owner  when 
there  has  been  no  actual  possession  which  he 
could  treat  as  a  trespass  and  bring  suit  for. 

3  Rjch.  So.  C.  101.  A  trespasser  who  after- 
wards obtains  color  of  title  can  claim  con- 
structively only  for  the  time  when  the  title 
was  ijbtainod.  16  Johns.  N.  Y.  293.  This 
doctrine  of  constructive  possession,  however, 
applies  only  to  land  taken  possession  of  for 


LIMITATIONS 


67 


LIMITATIONS 


the  ordinary  purposes  of  cultivation  and  use, 
and  not  to  a  case  where  a  few  acres  are  taken 
possession  of  in  an  uncultivated  township  for 
the  mere  purpose  of  thereby  j2;ainin£5  title  to 
the  entire  township.  22  Vt.  388 ;  1  Cvjw.  N.  Y. 
286 ;  6  B.  Monr.  Ky.  463. 

•yS.  In  fine,  with  a  little  relaxation  of  strict- 
ness in  favor  of  the  ownerof  wild,  remote,  and 
uncultivated  lands,  4  Mass.  410,  to  gain  title  by 
possession  it  must  be  adverse,  open,  or  public 
and  notorious,  and  not  clandestine  and  secret, 
exclusive,  uninterrupted,  definite  as  to  bound- 
aries, and  fixed  as  to  its  locality.  Color  of 
title  is  any  thing  in  writing,  however  defect- 
ive, connected  with  tne  title,  which  serves  to 
define  the  extent  of  the  claim,  19  (ja.  8;  18 
Johns.  N.  Y.  40;  8  Cow.  N.  Y.  589;  and  it 
may  exist  even  without  writing,  if  the  facts 
and  circumstances  show  clearly  the  character 
and  extent  of  the  claim.  17  III.  498  ;  6  Ind. 
273. 

'14.  A  fraudulent  deed,  if  accepted  in  good 
faith,  gives  color  of  title,  8  Pet.  244;  so  does  a 
defective  deed,  4  Harr.  &  M'H.  Md.  222,  unless 
defective  in  defining  the  limits  of  the  land,  1 
Cow,  N.  Y.  276;  so  does  an  improperly  exe- 
cuted deed,  if  the  grantor  believe  he  has  title 
thereby,  6  Mete.  Mass.  337  ;  so  does  a  sheriff*'s 
deed,  7  B.  Monr.  Ky.  230  ;  22  Ga.  56  ;  7  Hill, 
N.  Y.  470 ;  and  a  sherifi^'s  return  on  a  Jieri 
facias,  1  Dev.  &  B.  No.  C.  580  ;  and  a  deed 
from  a  collector  of  taxes,  4  Ired.  No.  C.  104; 
and  a  deed  from  an  attorney  who  has  no  au- 
thority to  convey,  2  Murph.  No.  C.  14  ;  and  a 
deed  founded  on  a  voidable  decree  in  chancery, 
1  Meigs,  Tenn.  207 ;  and  a  deed,  by  one  tenant 
in  common,  of  the  whole  estate,  to  a  third 
person,  4  Dev.  &  B.  No.  C.  54 ;  and  a  deed  by 
an  infant,  4  Dev.  &  B.  No.  C.  289  ;  and  a  bond 
for  a  deed.  5  Ga.  0. 

•75.  So  possession,  in  good  faith,  under  a 
void  grant  from  the  state,  gives  color  of  title. 
4Ga.  115.  And  if  A  purchases  under  an  exe- 
cution against  B,  takes  a  deed,  and  on  the 
same  day  conveys  to  B,  though  the  purchase 
and  conveyance  be  at  the  request  of  B,  and 
no  money  is  paid,  B  has  a  colorable  title.  A 
will  gives  color  of  title;  but  if  it  has  but  one 
subscribing  witness,  and  has  never  been 
proved,  it  does  not.  5  Ired.  No.  C.  711.  Nor 
does  the  sale  by  an  administrator  of  the  land 
of  his  solvent  intestate,  under  a  license  of  the 
probate  court,  unless  accompanied  by  a  deed 
from  the  administrator.  34  N.  H.  544.  Nor 
does  the  sale  of  property  by  an  intestate  to 
his  son,  of  which  the  possession  is  held  by 
the  wife,  who  is  administratrix,  while  the  son 
lives  in  the  fiimily,  as  against  the  intestate's 
creditors.  30  Miss.  472. 

76.  If  there  is  no  written  title,  then  the 
possession  must  be  under  a  bond  fide  claim 
to  a  title  existing  in  another.  3  Watts,  Penn. 
72.  Thus,  if  under  an  agreement  for  the 
Bale  of  land  the  consideration  be  paid  and 
the  purchaser  enter,  he  has  color  of  title,  5 
Mete.  Mass.  173  :  though  if  the  consideration 
be  not  paid,  or  be  paid  only  in  part,  he  has 
not,  2  Bail.  So.  C.  59  ;  11  Ohio,  455  ;  20  G.a. 
311 ;  because  the  fair  inference  in  such  case 


is  that  the  purchaser  is  by  consent  of  the 
grantor,  and  holds  subordinately  to  him  until 
the  payment  of  the  full  consideration.  There 
is,  in  fact,  a  mutual  understanding,  and  )X  mu- 
tual confidence,  amounting  to  an  implied  trust. 
9  Wheat.  241 ;  12  Mass.  325. 

77.  In  New  York,  a  parol  gift  of  land  is 
said  not  to  give  color  of  title,  1  Johns.  Cas. 
N.  Y.  36  ;  but  it  is  at  least  doubtful  if  that 
is  the  law  of  New  York,  6  Cow.  N.  Y.  677 ; 
and  in  Massachusetts  and  other  states,  a  parol 
gift  is  held  to  give  color  of  title  if  accompa- 
nied by  actual  entry  and  possession.  It 
manifests,  equally  with  a  sale,  the  intent  of 
the  donee  to  enter,  and  not  as  tenant;  and  it 
equally  proves  an  admission  on  the  part  of 
the  donor  that  the  possession  is  so  taken.  6 
Mete.  Mass.  337  ;  13  Conn.  227  ;  2  B.  Monr. 
Ky.  282.  The  element  of  good  faith,  and 
the  actual  belief  on  the  part  of  the  claimant 
that  he  has  title,  give  the  claimant  by  color 
of  title  his  advantage  over  the  mere  trespasser, 
who,  as  we  have  seen,  is  restricted  carefully 
to  his  actual  occupation ;  and  it  may  be  said, 
generally,  that  whenever  the  facts  and  cir- 
cumstancesshowthatone  in  possession,  in  good 
faith  and  in  the  belief  that  he  has  title,  holds 
for  himself  and  to  the  exclusion  of  all  others, 
his  possession  must  be  adverse,  and  according 
to  his  assumed  title,  w^hatever  may  be  his 
relations  in  point  of  interest  or  priority,  to 
others.  4 Hay w.  Tenn.  182;  5  Pet. 440.  When 
a  man  enters  under  such  a  claim  of  title,  his 
entry  on  a  part  is  an  entry  on  the  whole ;  but 
if  he  claims  no  such  title  he  has  no  seisin 
by  his  entry  but  by  the  ouster  of  him  who 
was  seised,  which  can  only  be  by  the  actual 
and  exclusive  occupation  of  the  land.  4  Mass. 
416. 

78.  In  cases  of  mixed  possession,  or  a  pos- 
session at  the  same  time  by  two  or  more  per- 
sons, each  under  a  separate  colorable  title, 
the  seisin  is  in  him  who  has  the  prior  title, 
4  Wheat.  213  ;  20  How^235  ;  for,  though  there 
may  be  a  concurrent  possession,  there  cannot 
be  a  concurrent  seisin  ;  and,  one  only  being 
seised,  the  possession  must  be  adjudged  to  be 
in  him,  because  he  has  the  better  right,  3 
Mass.  219  ;  3  Me.  216.  Of  course,  in  such  a 
case,  if  one  has  color  of  title,  and  the  other 
is  a  mere  trespasser  or  intruder,  the  possession 
is  in  him  w^ho  has  color  of  title.  2  Harr.  &  J. 
Md.  112  ;  4  Serg.  &  R.  Penn.  465  :  5  Du.  N.  Y. 
272;  2  Bail.  So.  C.  101. 

79.  But,  with  all  the  liberality  shown  by 
the  courts  in  giving  color  of  title,  it  has  been 
denied  that  a  grant  from  a  foreign  govern- 
ment confers  it,  on  the  ground  that  the  pos- 
session under  such  a  title  was  rather  a  ques* 
tion  between  governments  than  individuals. 
Thus,  the  courts  of  New  York  have  refused 
to  recognize  claims  under  a  grant  of  the 
French  government  in  Canada,  made  prior  to 
the  treaty  between  Great  Britain  and  France 
in  1763.  4  Johns.  N.  Y.  163  ;  12  id.  365. 
But  the  soundness  of  the  exception  has  since 
been  questioned  in  the  same  court,  8  Cow. 
N.  Y.  589  ;  and  the  grant  of  a  foreign  govern- 
ment has  been  expressly  held  to  give  color 


LIMITATIONS 


68 


LIMITATIONS 


of  title  in  Pennsylvania,  even  as  against  one  | 
claiming  under  her  own  grant.    2  Watts, 
Penn.  37.    And,  for  political  reasons,  it  has 
been  held  that  a  grant  from  the  Indians  gives 
no  color  of  title.    8  Wheat.  571. 

SO.  One  joini-tenant,  ienant  in  common,  or 
coparcener  cannot  dismiss  another  but  by 
actual  ouster,  as  the  seisin  and  possession  of 
one  are  the  seisin  and  possession  of  all,  and 
inure  to  the  benefit  of  all.  2  Salk.  422;  7 
Wheat.  59;  12  Mete.  Mass.  357;  11  Gratt. 
Ya.  505.  Actual  ouster  implies  exclusion 
or  expulsion.  No  force  is  necessary;  but 
there  must  be  a  denial  of  the  right  of  the 
co-tenant,  Cowp.  217 ;  1  Mass.  323  ;  1  Me.  89 ; 
12  Wend.  N.  Y.  404  ;  and,  like  a  grant,  after 
long  lapse  of  time  it  may  be  presumed,  1 
East,  568  ;  3  Mete.  Mass.  100  ;  10  Serg.  &  R. 
Penn.  182,  and  inferred  from  acts  of  an  un- 
equivocal character  importing  a  denial.  3 
Watts,  Penn.  77  ;  1  Me.  89.  But  the  posses- 
sion of  the  grantee  of  one  tenant  in  common 
is  adverse  to  all.  13  B.  Monr.  Ky.  436;  3 
Mete.  Mass.  101 ;  4  Paige,  Ch.  N.  Y.  178. 
The  possession  of  the  tenant  is  likevrise  the 
possession  of  his  landlord,  and  cannot  be 
adverse  unless  he  distinctly  renounce  his 
landlord's  title.  2  Campb.  11 ;  2  Binn.  Penn. 
468  ;  10  N.  Y.  9. 

81.  Mere  non-payment  of  rent  during  the 
time  limited,  there  having  been  no  demand, 
does  not  prejudice  the  landlord's  right  to 
enter  and  demand  it,  even  though  the  lease 
contains  a  clause  giving  the  right  of  re-entry 
in  case  of  non-payment  of  rent,  7  East.  299; 
3  Hill,  N.  Y.  344 ;  and  payment  of  rent  is 
conclusive  evidence  that  the  occupation  of 
the  party  paying  was  permissive  and  not 
adverse.  3  Barnew.  &  C.  135.  The  defend- 
ant in  execution  after  a  sale  is  a  quasi  tenant 
at  will  to  the  purchaser.  1  Johns.  Cas.  N.  Y. 
153  ;  3  Mass.  128.  And  a  mere  holding  over 
after  the  expiration  of  a  lease  does  not  change 
the  character  of  the  possession.  2  Gill  &  J. 
Md.  173.  Nor  does  the  assignment  of  the 
lease,  or  a  sub-letting.  The  assignee  and  suV)- 
lessees  are  still  tenants,  so  far  as  the  title  by 
adverse  possession  is  concerned.  4  Serg.  & 
R.  Penn.  407  ;  0  Cow.  N.  Y.  751. 

82.  If  the  tenant  convey  the  premises,  as 
we  have  before  seen,  the  landlord  may  treat 
him  as  a  disseisor  by  election;  but  the  tenant 
cannot  set  up  the  act  as  the  basis  of  a  title 
])y  adverse  possession,  5  Cow.  N.  Y.  123,  un- 
less in  the  case  where  the  relation  of  landlord 
and  tenant  subsists  by  operation  of  law;  as 
where  one  makes  a  grant  and  by  the  omission 
of  the  word  "heirs"  an  estate  for  life  only 
passes.  In  such  case,  after  the  death  of  the 
tenant  for  life  an  adverse  possession  may 
commence.  7  Cow.  N.  Y.  323.  So  in  case 
the  tenant  has  attorned  to  a  third  por8<m  and 
the  landlord  has  assented  to  the  attornment. 
C  Cow.  N.  Y.  133.  But  a  mere  parol  dis- 
claimer, by  the  lessor,  of  the  existence  of  the 
relationship,  and  of  all  right  in  the  premises, 
is  not  equivalent  to  an  attornment.  To  admit 
Buch  disclaimer  would  lejul  to  fraud  and  per- 
jury, and  is  in  direct  violation  of  the  prin- 


ciples of  the  Statute  of  Frauds.  7  Johns.  N.  Y. 
186  ;  lis  id.  305  ;  5  Cow.  N.  Y.  74. 

83.  The  possession  of  the  morfgagor  is  not 
adverse  to  the  mortgagee,  the  relation  being 
in  many  respects  analogous  to  that  of  land- 
lord and  tenant,  11  Mass.  125;  30  Miss.  49; 
27  Penn.  St.  504 ;  1  Dougl.  275  ;  not  even 
if  the  possession  be  under  an  absolute  deed, 
if  intended  as  a  mortgage.  19  How.  289. 
The  tenancy  is  sometimes  like  a  tenancy  for 
years,  Croke  Jac.  659;  sometimes  like  a 
tenancy  at  will,  1  Dougl.  22 ;  and  sometimes 
like  a  tenancy  at  sufferance,  1  Salk.  245 ;  but, 
whatever  it  may  be  like,  it  is  always  pre- 
sumed to  be  by  permission  of  the  mortgagor 
until  the  contrary  be  shown.  The  assignee 
of  the  mortgagor,  with  notice,  is  in  the  same 
predicament  with  the  mortgagor;  but  if  he 
purchase  without  notice,  his  possession  will 
be  adverse.  2  Rand.  Va.  93 ;  2  No.  C.  Law  Rep. 
93. 

84.  But,  although  the  possession  of  the 
mortgagor  be  not  adverse  so  as  to  give  title 
under  the  statute  against  the  mortgagee,  the 
courts  have  nevertheless  practically  abro- 
gated this  rule,  by  holding  that  where  the 
mortgagor  has  held  during  the  statutory  limit, 
and  has  meantime  paid  no  interest  nor  other- 
wise recognized  the  rights  of  the  mortgagee, 
this  raises  a  presumption  that  the  debt  has 
been  paid,  and  is  a  good  defence  in  an  action 
to  foreclose.  12  Johns.  N.  Y.  242 ;  9  Wheat. 
497 ;  8  Mete.  Mass.  87  ;  19  Vt.  526 ;  3  Ga. 
850 ;  6  B.  Monr.  Ky.  479.  And  the  reasons 
for  so  holding  seem  to  be  equally  cogent 
with  those  upon  which  rests  the  well-settled 
rule  that,  with  certain  exceptions,  the  mort- 
gagee's possession  for  the  time  limited  bars 
the  mortgagor's  right  to  redeem.  2  Jac.  & 
W.  Ch.  434  ;  1  Johns.  Ch.  N.  Y.  385 ;  9  Wheat. 
489  ;  3  Harr.  &  M'H.  Md.  328  ;  2  Sumn.  C.  C. 
401  ;  13  Ala.  n.  s.  246  ;  20  Me.  269. 

85.  The  exceptions  are—Jirst,  where  an 
account  has  been  settled  within  the  limited 
time,  2  Vern.  Ch.  377  ;  5  Brown,  Pari.  Cas. 
187;  second,  where  within  that  time  the 
mortgagee,  by  words  spoken  or  written,  or  by 
deed,  has  clearly  and  unequivocally  recognized 
the  fact  that  he  held  as  mortgagee,  2  Brown, 
Ch.  397  ;  1  Johns.  Ch.  N.  Y.  594;  10  Wheat. 
152  ;  3  Sumn.  C.  C.  160,  by  which  recognition 
a  subsequent  purchaser,  with  actual  or  con- 
structive notice  of  the  mortgage,  is  barred, 
7  Paige,  Ch.  N.  Y.  405 ;  third,  where  no  time  is 
fixed  for  payment,  as  in  the  case  of  a  mortgage 
where  the  mortgagee  is  by  agreement  to  enter 
and  hold  till  he  is  paid  out  of  the  rents  and  pro- 
tits,  1  Vt.  418  ;  fourth,  where  the  mortgagor 
continues  in  possession  of  the  whole  or  any  part 
of  the  premises,  1  Sel.  Ca.  in  Ch.  55 ;  1  Johns. 
Ch.  N.  Y.  594  ;  iii\d,ffth,  where  there  is  fraud 
on  the  part  of  the  mortgagee,  or  at  the  time 
of  the  inception  of  the  mortgage  he  has  taken 
advantage  of  the  necessities  of  the  mortgagor. 
1  Johns.  Cas.  N.  Y.  402,  595. 

86.  The  trustee  of  real  estate,  under  a 
direct  trust,  as  well  as  of  personal,  as  we  have 
seen,  holds  for  his  cestui  que  trust,  and  the 
latter  is  not  barred  of  his  right  unless  it  be 


LIMITATIONS 


69 


LIMITATIONS 


denied  and  repudiated  by  the  trustee;  in 
which  case  the  statute  will  begin  to  run  from 
the  denial  or  repudiation.  5  IIow.  283  ;  3 
Gray,  Mass,  1.  In  cases  of  implied  construc- 
tion and  resulting  trusts,  the  rule  is  also  the 
same  as  with  reference  to  personal  property. 
The  statute  is  a  bar  even  in  cases  where  the 
conduct  of  the  trustee  was  originally  frau- 
dulent.   5  Johns.  Ch.  N.  Y.  184. 

8'^.  Disahiliiies  existing  at  the  time  the 
right  descends  or  the  cause  of  action  accrues, 
prevent  the  running  of  the  statute,  till  their 
removal;  but  only  such  as  exist  at  that  time. 
When  tlie  statute  once  begins  to  run,  no  sub- 
sequent disability  can  stop  it.  1  IIow.  37 ; 
4  Mass.  182.  And  there  is  no  distinction  in 
this  respect  between  voluntary  and  involun- 
tary disabilities,  4  Term,  301 ;  3  Brev.  So.  C. 
286.  The  disability  of  one  joint-tenant, 
tenant  in  common,  or  coparcener  does  not 
inure  to  the  benefit  of  the  other  tenants.  8 
Johns.  N.  Y.  262;  4  Day,  Conn.  265 ;  2  Taunt. 
441 ;  10  Ohio,  11 ;  10  Ga.  218  :  5  Humphr. 
Tenn.  117  ;  4  Strobh.  Eq.  So.  C.  167 ;  13  Serg. 
&  R.  Penn.  350. 

88.  It  would  be  wholly  impracticable  here 
to  give  a  compend,  or  even  an  analysis,  of  the 
different  statutes  of  the  several  states.  Nor, 
indeed,  would  such  an  analysis  be  of  much 
service,  as,  from  frequent  revision,  changes, 
and  modifications,  what  is  the  law  to-day 
might  not  be  the  law  to-morrow,  and  it  could 
not  be  referred  to,  therefore,  as  a  reliable 
index  of  the  actual  state  of  the  law  in  any 
particular  state.  As,  however,  the  statutes 
of  the  several  states  are  substantially  and  in 
principle  the  same,  differing  only  in  imma- 
terial details,  and  as  all  are  derived  directly 
or  indirectly  from  the  same  source,  it  will 
doubtless  prove  both  convenient  and  useful  to 
be  able  to  refer  to  the  text  of  the  original 
statutes  which  have  been  the  occasion  of  so 
much  comment.  These  are,  accordingly,  ap- 
pended, except  Stat.  3  &  4  Will.  IV.  c.  27,  of 
which  there  is  room  only  for  a  synopsis. 

Statute  21  James  I.  c.  16 

89.  For  quieting  of  men's  estates,  and 
avoiding  of  suits,  be  it  enacted  by  the  king's 
most  excellent  majesty,  the  lords  spiritual 
and  temporal,  and  commons,  in  this  present 
parliament  assembled,  that  all  writs  of  for- 
medon  in  descender,  formedon  in  remainder, 
and  formedon  in  reverter,  at  any  time  here- 
after to  be  sued  or  brought,  of  or  for  any 
manors,  lands,  tenements,  or  hereditaments, 
whereunto  any  person  or  persons  now  hath  or 
have  any  title,  or  cause  to  have  or  pursue  any 
such  writ,  shall  be  sued  or  taken  within 
twenty  years  next  after  the  end  of  this  present 
session  of  parliament:  and  after  the  said 
twenty  years  expired,  no  person  or  persons, 
or  any  of  their  heirs,  shall  have  or  maintain 
any  such  writ,  of  or  for  any  of  the  said 
manors,  lands,  tenements,  or  hereditaments; 
(2)  and  that  all  writs  of  formedon  in  descender, 
formedon  in  remainder,  formedon  in  reverter, 
of  any  manors,  lands,  tenements,  or  other 
hereditaments  whatsoever,  at  any  time  here- 


after to  be  sued  or  brought  by  occasion  or 
means  of  any  title  or  cause  hereafter  happen- 
ing, shall  be  sued  or  taken  within  twenty 
years  next  after  the  title  and  cause  of  action 
first  descended  or  fallen,  and  at  no  time  after 
the  said  twenty  years;  (3)  and  that  no  person 
or  persons  that  now  hath  any  right  or  title 
of  entry  into  any  manors,  lands,  tenements, 
or  hereditaments  now  held  from  him  or  them, 
shall  thereinto  enter  but  within  twenty  years 
next  after  the  end  of  this  present  session  of 
parliament,  or  within  twenty  years  next  after 
any  other  title  of  entry  accrued  ;  (4)  and  that 
no  person  or  persons  shall  at  any  time  here- 
after make  any  entry  into  any  lands,  tene- 
ments, or  hereditaments,  but  within  twenty 
years  next  after  his  or  their  right  or  title, 
which  shall  hereafter  first  descend  or  accrue 
to  the  same;  and  in  default  thereof,  such 
persons  so  not  entering,  and  their  heirs,  shall 
be  utterly  excluded  and  disabled  from  such 
entry  after  to  be  made,  any  former  law  or 
statute  to  the  contrary  notwithstanding. 

II.  Provided,  nevertheless.  That  if  any  per- 
son or  persons  that  is  or  shall  be  entitled  to 
such  writ  or  writs,  or  that  hath  or  shall  have 
such  right  or  title  of  entry,  be,  or  shall  be, 
at  the  time  of  the  said  right  or  title  first  de- 
scended, accrued,  come  or  fallen  within  the 
age  of  one-and-tvventy  years,  feme  covert,  non 
compos  mentis,  imprisoned,  or  beyond  the 
seas,  that  then  such  person  and  persons,  and 
his  and  their  heir  and  heirs,  shall  or  may, 
notwithstanding  the  said  twenty  years  be 
expired,  bring  his  action  or  make  his  entry 
as  he  might  have  done  before  this  act:  (2)  so 
as  such  person  and  persons,  or  his  or  their 
heir  and  heirs,  shall,  within  ten  years  next 
after  his  and  their  full  age,  discoverture, 
coming  of  sound  mind,  enlargement  out  of 
prison,  or  coming  into  this  realm,  or  death, 
take  benefit  of  and  sue  forth  the  same,  and 
at  no  time  after  the  said  ten  years. 

III.  And  be  it  further  enacted,  That  all 
actions  of  trespass  qnare  claiisum  fregit,  all 
actions  of  trespass,  detinue,  action,  sur  trover, 
and  replevin  for  taking  away  of  goods  and 
cattle,  all  actions  of  account,  and  upon  the 
case,  other  than  such  accounts  as  concern  the 
trade  of  merchandise  between  merchant  and 
merchant,  their  factors  or  servants,  all  actions 
of  debt  grounded  upon  any  lending  or  con- 
tract without  specialty,  all  actions  of  debt 
for  arrearages  of  rent,  and  all  actions  of 
assault,  menace,  battery,  wounding,  and  im- 
prisonment, or  any  of  them,  which  shall  be 
sued  or  brought  at  any  time  after  the  end  of 
this  present  session  of  parliament,  shall  be 
commenced  and  sued  within  the  time  and 
limitation  hereafter  expressed,  and  not  aftt-r; 
(that  is  to  say,)  (2)  the  said  actions  upon  the 
case  (other  than  for  slander),  and  the  said 
actions  for  account,  and  the  said  actions  for 
trespass,  debt,  detinue,  and   replevin  for 

!  goods  or  cattle,  and  the  said  action  of  tres- 
pass  quare  clausum  fregit,   within  three 

I  years  next  after  the  end  of  this  present  ses- 
sion of  parliament,  or  within  six  years  next 

I  after  the  cause  of  such  actions  or  suit,  and 


LIMITATIONS 


0 


LIMITATION  8 


not  after;  (3)  and  the  said  actions  of  trespass, 
of  assault,  battery,  wounding,  imprisonment, 
or  any  of  them,  within  one  year  next  aiter 
the  end  of  this  present  session  of  parliament, 
or  within  four  years  next  after  the  cause  of 
such  actions  or  suit,  and  not  after;  (4)  and 
the  said  action  upon  the  case  for  words,  within 
one  year  after  the  end  of  this  present  session 
of  parliament,  or  within  two  years  next  after 
Die  words  spoken,  and  not  after. 

IV.  And,  nevertheless,  be  it  enacted.  That 
if  in  any  the  said  actions  or  suits,  judgment 
be  given  for  the  plaintiff,  and  the  same  be 
reversed  by  error,  or  a  verdict  pass  for  the 
plaintiff,  and  upon  matter  alleged  in  arrest  of 
judgment  the  judgment  be  given  against  the 
plaintiff,  that  he  take  nothing  by  his  plaint, 
writ,  or  bill ;  or  if  any  the  said  actions  shall 
be  brought  by  original,  and  the  defendant 
therein  be  outlawed,  and  shall  after  reverse 
the  outlawry,  that  in  all  such  cases  the  party 
plaintiff,  his  heirs,  executors,  or  administra- 
tors, as  the  case  shall  require,  may  commence 
a  new  action  or  suit,  from  time  to  time,  within 
a  year  after  such  judgment  reversed,  or  such 
judgment  given  against  the  plaintiff,  or  out- 
lawry reversed,  and  not  after. 

V.  And  be  it  further  enacted,  That  in  all 
actions  of  trespass  quare  clmmim  f regit,  here- 
after to  be  brought,  wherein  the  defendant 
or  defendants  shall  disclaim  in  his  or  their 
plea  to  make  any  title  or  claim  to  the  land 
m  which  the  trespass  is  by  the  declaration 
supposed  to  be  done,  and  the  trespass  be  by 
negligence  or  involuntary,  the  defendant  or 
defendants  shall  be  permitted  to  plead  a  dis- 
claimer, and  that  the  trespass  was  by  negli- 
gence or  involuntary,  and  a  tender  or  offer 
of  sufficient  amends  for  such  trespass  before 
the  action  brought,  whereupon,  or  upon  some 
of  them,  the  plaintiff  or  plaintiffs  shall  be 
enforced  to  join  issue;  (2)  and  if  the  said 
issue  be  found  for  the  defendant  or  defend- 
ants, or  the  plaintiff  or  plaintiffs  shall  be 
nonsuited,  the  plaintiff  or  plaintiffs  shall  be 
clearly  barred  from  the  said  action  or  actions, 
and  all  other  suits  concerning  the  same. 

VI.  And  be  it  further  enacted  by  the  au- 
thority aforesaid,  That  in  all  actions  upon 
the  case  for  slanderous  words,  to  be  sued  or 
prosecuted  by  any  person  or  persons  in  any 
of  the  courts  of  record  at  Westminster,  or  in 
any  court  whatsoever  that  hath  power  to 
hold  plea  of  the  same,  after  the  end  of  this 
present  session  of  parliament,  if  the  jury 
upon  the  trial  of  the  issue  in  such  action,  or 
the  jury  that  shall  inquire  of  the  damages, 
do  find  or  assess  the  damages  under  forty 
shillings,  then  the  plaintiff  or  plaintiffs  in 
8uch  action  shall  have  and  recover  only  so 
much  costs  as  the  damages  so  given  or  assessed 
amount  unto,  without  any  farther  increase  of 
the  same,  any  law,  statute,  custom,  or  usage 
to  the  contrary  in  any  wise  notwithstanding. 

VII.  Provi(h'd,  nevertheless,  and  be  it  fur- 
ther enacted.  That  if  any  person  or  persons 
that  is  or  shall  be  entitled  to  any  such  acti(m 
)f  trespass,  detinue,  action  suv  trover,  reple- 
vin,  actions  of  account,  actions  of  debt, 


actions  of  trespass  for  assault,  menace,  bat 
tery,  wounding,  or  imprisonment,  actions 
upon  the  case  for  words,  be,  or  shall  be,  at 
the  time  of  any  such  cause  of  action  given 
or  accrued,  fallen  or  come  within  the  age  of 
twenty-one  years,  feme  covert,  non  compos 
mentis,  imprisoned  or  beyond  the  seas,  that 
then  such  person  or  persons  shall  be  at  liberty 
to  bring  the  same  actions,  so  as  they  take  the 
same  within  such  times  as  are  before  limited, 
after  their  coming  to  or  being  of  full  age,  dis- 
covert, of  sanememory,  at  large,  and  returned 
from  beyond  the  seas,  as  other  persons  having 
no  such  impediment  should  be  done. 

90.  Statute  9  Geo.  IV.  c.  14,  known  as 
Lord  Tenterden's  Act.  Sect.  1.  Whereas  by 
an  act  passed  in  England  in  the  twenty-first 
year  of  the  reign  of  King  James  the  First, 
it  was  among  other  things  enacted  that  all 
actions  of  account  and  upon  the  case,  other 
than  such  accounts  as  concern  the  trade  of 
merchandise  between  merchant  and  merchant, 
their  factors  or  servants,  all  actions  of  debt 
grounded  upon  any  lending  or  contract  with- 
out specialty,  and  all  actions  of  debt  for 
arrearages  of  rent,  should  be  commenced 
within  three  years  after  the  end  of  the  then 
present  session  of  parliament,  or  within  six 
years  next  after  the  cause  of  such  actions  or 
suit,  and  not  after;  and  whereas  a  similar 
enactment  is  contained  in  an  act  passed  in 
Ireland  in  the  tenth  year  of  the  reign  of 
King  Charles  the  First ;  and  whereas  various 
questions  have  arisen  in  actions  founded  on 
simple  contract,  as  to  the  proof  and  effect  of 
acknowledgments  and  promises  offered  in 
evidence  for  the  purpose  of  taking  cases  out 
of  the  operation  of  the  said  enactments,  and 
it  is  expedient  to  prevent  such  questions,  and 
to  make  a  provision  for  giving  effect  to  the 
said  enactments  and  to  the  intention  thereof : 
Be  it  therefore  enacted,  by  the  king's  most 
excellent  majesty,  by  and  with  the  advice 
and  consent  of  the  lords  spiritual  and  tempo- 
ral and  commons  in  this  present  parliament 
assembled,  and  by  the  authority  of  the  same, 
that  in  actions  of  debt,  or  upon  the  case, 
grounded  upon  any  simple  contract,  no 
acknowledgment  or  promise  by  words  only 
shall  be  deemed  sufficient  evidence  of  a  new 
or  continuing  contract,  whereby  to  take  any 
case  out  of  the  operation  of  the  said  enact- 
ments or  either  of  them,  or  to  deprive  any 
party  of  the  benefit  thereof,  unless  such  ac- 
knowledgment or  promise  shall  be  made  or 
contained  by  or  in  some  writing,  to  be  signed 
by  the  party  chargeable  thereby ;  and  that 
where  there  shall  be  two  or  more  joint-con- 
tractors, or  executors  or  administrators  of 
any  contractor,  no  such  joint-contractor, 
executor,  or  administrator  shall  lose  the  bene- 
fit of  the  said  enactments  or  either  of  them, 
so  as  to  be  chargeable  in  respect  or  by  reason 
only  of  any  written  acknowledgment  or  pro- 
mise made  and  signed  by  any  other  or  others 
of  them :  Provided,  always,  that  nothing 
herein  contained  shall  alter  or  take  away  or 
lessen  the  effect  of  any  payment  o£  any 
principal  or  interest  made  by  any  perse n 


V 


LDIITATIONS 


71 


LIMITATIONS 


wKtttsoevor:  Provided  also,  that  in  actions  to 
be  commenced  against  two  or  more  .such 
joint-contractors,  or  executors  or  administra- 
tors, if  it  shall  appear  at  the  trial  or  other- 
wise that  the  plaintiff,  though  barred  by 
either  of  the  said  recited  acts,  or  this  act,  as 
to  one  or  more  of  such  joint-contractors  or 
executors  or  adminii^trators,  shall,  never- 
theless, be  entitled  to  recover  against  any 
other  or  others  of  the  defendants,  by  virtue  of 
a  new  acknowledgment,  or  promise  or  other- 
wise, judgment  may  be  given  and  costs 
allowed  for  the  plaintiff  as  to  such  defendant 
or  defendants  against  whom  he  shall  recover, 
and  for  the  other  defendant  or  defendants 
against  the  plaintiff. 

Sect.  2.  If  any  defendant  or  defendants,  in 
any  action  on  any  simple  contract,  shall 
plead  any  matter  in  abatement  to  the  effect 
that  any  other  person  or  persons  ought  to  be 
jointly  sued  and  issue  be  joined  on  such 
plea ;  and  it  shall  appear  at  the  trial  that 
the  action  could  not  by  reason  of  the  said  re- 
cited acts,  or  of  this  act,  or  of  either  of  them, 
be  maintained  against  the  other  person  or 
persons  named  in  such  plea,  or  any  of  them, 
the  issue  joined  on  such  plea  shall  be  found 
against  the  party  pleading  the  same. 

Sect.  3.  No  indorsement  or  memorandum 
of  any  payment  written  or  made  after  the 
time  appointed  for  this  act  to  take  effect  upon 
any  promissory  note,  bill  of  exchange,  or 
other  writing,  by  or  on  the  behalf  of  the 
party  to  whom  such  payment  shall  be  made, 
shall  be  deemed  sufficient  proof  of  such  pay- 
ment, so  as  to  take  the  case  out  of  the  opera- 
tion of  either  of  the  said  statutes. 

Sect.  4.  That  the  said  recited  act,  and  this 
act,  shall  be  deemed  and  taken  to  apply  to 
the  case  of  any  debt  on  simple  contract 
alleged  by  way  of  set-off  on  the  part  of  any 
defendant,  either  by  plea,  notice,  or  other- 
wise. 

91.  Statute  3  Will.  IV.  c. 27.  Section  1. 
The  time  within  which  actions  to  recover 
reality,  etc.  must  be  brought,  is  regulated  by 
the  statute  3  &  4  Will.  IV.  c.  27.  By  the  first 
section  of  the  act  the  meaning  of  the  words 
in  the  act  is  defined ;  it  enacts,  inter  alia, 
that  the  word  "  land"  shall  extend  to  manors, 
messuages,  and  all  other  corporeal  heredita- 
ments whatsoever,  and  also  to  tithes  (other 
than  tithes  belonging  to  a  spiritual  or  elee- 
mosynary corporation  sole),  and  also  to  any 
share  or  interest  in  them,  whether  the  same 
be  a  freehold  or  chattel  interest,  and  whether 
they  be  of  freehold,  copyhold,  or  any  other 
tenure ;  and  that  the  word  "  rent"  shall  ex- 
tend to  all  heriots,  services,  and  suits  for 
which  a  distress  may  be  made,  and  to  annui- 
ties charged  upon  land  (except  modusses  or 
compositions  belonging  to  a  spiritual  or  elee- 
mosynary corporation  sole),  and  that  the  word 
*'  person"  shall  extend  to  a  body  politic,  cor- 
porate, or  collegiate,  and  to  a  class  of  credit- 
ors or  other  persons,  as  well  as  to  an  indi- 
vidual ;  and  that  the  singular  number  shall 
embrace  the  plural,  and  the  masculine  gen- 
der the  feminine. 


Section  2  enacts  that  after  the  31st  day  of 
December,  1833,  no  person  shnll  make  an 
entry  or  distress,  or  bring  an  action  to  recover 
any  land  or  rent,  but  within  twenty  years  next 
after  the  time  at  which  the  ri(jht  to  make  such 
entiy  or  distress,  or  to  briny  such  action,  shall 
have  first  accrued. 

Sections  3,  4,  5,  6,  7,  8,  and  9,  define  the 
period  from  which  the  statute  begins  to  run 
(where  a  party  is  not  under  disability),  which 
may  be  thus  briefly  stated:  viz.,  where  the 
claimant  was,  in  respect  of  the  estate  or 
interest  claimed,  himself  once  in  possession 
or  claims  through  a  party  who  was  once  in 
possession  of  the  property  or  in  receipt  of 
the  rents  or  profits,  the  statute  runs  from  the 
time  when  he  was  dispossessed,  or  discon- 
tinued such  possession  or  receipts. 

Where  the  claimant  claims  on  the  death 
of  one  who  died  in  possession  of  the  land  or 
receipt  of  the  rents  or  profits  thereof,  the 
statute  runs  from  the  time  of  the  death,  and 
this  even  in  the  case  of  an  administrator,  by 
section  6,  M'hich  see,  post. 

Where  the  claimant  derives  his  right  under 
any  instrument  (other  than  a  will),  the 
statute  runs  from  the  time  when  under  the 
instrument  he  was  entitled  to  the  possession. 

In  the  case  of  remainders  or  reversions, 
the  statute  runs  from  the  time  when  the  re- 
mainder or  reversion  becomes  an  estate  in 
possession. 

Where  the  claimant  claims  by  reason  of  a 
forfeiture  or  breach  of  condition,  the  statute 
runs  from  the  time  of  the  forfeiture  incurred 
or  breach  of  condition  broken. 

But  section  4  provides  that  when  any  right 
to  make  any  entry  or  distress,  or  to  bring  any 
action  to  recover  any  land  or  rent,  by  reason 
of  any  forfeiture  or  breach  of  condition,  shall 
have  first  accrued  in  respect  of  any  estate  or 
interest  in  reversion  or  remainder,  and  the 
land  or  rent  shall  not  have  been  recovered  by 
virtue  of  such  right,  tJie  right  to  make  an 
entry  or  distress,  or  bring  an  action  to  recover 
such  land  or  rent,  shall  be  deemed  to  havefrst 
accrued  in  respect  of  such  estate  or  interest 
at  the  time  when  the  same  shall  have  become 
an  estate  or  interest  in  possession,  as  if  no 
such  forfeiture  or  breach  of  condition  had 
happened. 

And  by  section  8  it  is  provided  that  a  right 
to  make  an  entry  or  distress,  or  to  bring  an 
action  to  recover  any  land  or  rent,  shall  be 
deemed  to  have  first  accrued  in  respect  of  an 
estate  or  interest  in  reversion  at  the  time 
at  which  the  same  shall  have  become  an 
estate  or  interest  in  possession  by  the  determi- 
nation of  any  estate  or  estates  in  respect  of 
which  such  land  shall  have  been  held,  or  the 
profits  thereof,  or  such  rent  shall  have  been 
received,  notwithstanding  the  person  claim- 
ing such  land,  or  some  person  through  whom 
he  claims,  shall,  at  any  time  previously  to  the 
creation  of  the  estate  or  estates  which  shall 
have  determined,  have  been  in  possession  or 
receipt  of  the  profits  of  such  land,  or  in  re- 
ceipt of  such  rent. 

Section  6  enacts  that,  for  the  purpose  of 


LIMITATIONS 


72 


LIMITATIONS 


this  aci,  an  administrator  claiming  the  estate 
or  interest  of  the  deceased  person  of  whose 
chattels  he  shall  be  appointed  administrator, 
shall  he  deemed  to  claim  as  if  there  had  been 
no  interval  of  time  between  the  death  of  such 
deceased  person  and  the  grant  of  letters  of 
administration. 

In  case  of  a  tenancy  from  year  to  year 
(without  base  in  writing),  the  statute  runs 
from  the  end  of  the  first  year  or  the  last  pay- 
ment of  rent  (which  shall  last  happen). 

In  ease  of  a  lease  in  writing  reserving 
more  than  20s.  rent,  if  the  rent  be  received 
by  a  party  wrongfully  claiming  the  land, 
subject  to  the  lease,  and  no  payment  of  the 
rent  be  afterwards  made  to  the  party  right- 
fully entitled,  the  statute  runs  from  the  time 
when  the  rent  was  first  so  received  by  the 
party  wrongfully  claiming;  and  the  party 
rightfully  entitled  has  no  further  right  on 
the  determination  of  the  lease. 

In  the  case  of  a  tenancy  at  will,  the  statute 
runs  from  the  determination  of  such  tenancy, 
or  at  the  expiration  of  one  year  next  after 
the  commencement  of  such  tenancy,  at  which 
time  the  tenancy  at  will  shall  be  deemed  to 
have  determined.  But  the  clause  provides 
that  no  mortgagor  or  cestui  que  trust  shall  be 
deemed  a  tenant  at  will,  within  the  meaning 
of  the  act,  to  his  mortgagee  or  trustee. 

Section  10  enacts  that  no  person  shall  be 
deemed  to  have  been  in  possession  of  any 
land  within  the  meaning  of  this  act  merely 
by  reason  of  having  made  an  entry  thereon. 

Section  11  enacts  that  no  continual  or 
other  claim  upon  or  near  any  land  shall  pre- 
serve any  right  of  making  an  entry  or  dis- 
tress, or  of  bringing  an  action. 

Section  12  enacts  that  when  any  one  or 
more  of  several  persons  entitled  to  any  land 
or  rent  as  coparceners,  joint-tenants,  or  ten- 
ants in  common,  shall  have  been  in  possession 
or  receipt  of  the  entirety,  or  more  than  his 
or  their  undivided  share  or  shares  of  such 
land,  or  of  the  profits  thereof,  or  of  such  rent, 
for  his  or  their  own  benefit,  or  for  the  benefit 
of  any  person  or  persons  other  than  the  per- 
son or  persons  entitled  to  the  other  share  or 
Bhares  of  the  same  land  or  rent,  such  posses- 
sion or  receipt  shall  not  be  deemed  to  have 
been  the  possession  or  receipt  of  or  by  such 
last-mentioned  person  or  persons,  or  any  of 
them. 

Section  18  enacts  that  when  a  younger 
brother,  or  other  relation,  of  the  person  en- 
titled as  heir  to  the  possession  or  receipt  of 
the  profits  of  any  land  or  to  the  receipt  of 
any  rent,  shall  enter  into  the  possession  or 
receipt  thereof,  such  possession  or  receipt 
shall  not  be  deemed  to  be  the  possession  or 
receipt  f)f  or  V)y  the  person  entitled  as  heir. 

Section  14  provides  and  enacts  that  when 
3/1//  ncknowled(jment  of  the  title  of  the  person 
entitled  to  any  land  or  rent  shall  have  been 
[liven  to  him  or  his  agent  in  writing  signed  by 
Vie  person  in  possession  or  in  receipt  of  the 
profits  of  such  land,  or  in  respect  of  such  rent, 
Vien  such  possession  or  receipt  of  or  by  the 
norson  by  wh  >m  such  acknowledgment  shall 


I  have  been  given,  shall  be  deemed,  according 
,  to  the  meaning  of  this  act,  to  have  been  the 
I  possession  or  receipt  of  or  by  the  person  to 
'  whom  or  to  ivhose  agent  such  acknowledgment 
shall  have  been  given  at  the  time  of  giving  the 
I  same,  and  the  right  of  such  last-mentioned 
person,  or  any  person  claiming  through  him, 
to  make  an  entry  or  distress,  or  bring  an 
action  to  recover  such  land  or  rent,  shall  b< 
deemed  to  have  first  accrued  at,  and  not  before, 
the  time  .at  which  such  acknowledgment,  or 
the  last  of  such  acknowledgments,  if  more 
than  one,  was  given. 

Section  15  gives  a  party  claiming  land  oi 
rent,  of  which  he  had  been  out  of  possession 
more  than  twenty  years,  five  years  from  the 
time  of  passing  the  act  within  which  to  en- 
force his  claim,  where  the  possession  was  not 
adverse  to  his  right  or  title  at  the  time  of 
passing  the  act. 

By  section  16,  persons  under  disability  of 
infancy,  lunacy,  coverture,  or  beyond  seas, 
and  their  representatives,  are  to  be  allowed 
ten  years  from  the  termination  of  their  dis- 
ability or  death  to  enforce  their  rights. 

But  by  section  17,  even  though  a  person  be 
under  disability  when  his  claim  first  accrues, 
he  must  enforce  it  within  forty  years,  even 
though  the  disability  continue  during  the 
whole  of  the  forty  years. 

And  by  section  18  no  further  time  is  to  be 
allowed  for  a  succession  of  disabilities. 

By  section  19,  no  part  of  the  United  King- 
dom of  Great  Britain  and  Ireland,  nor  the 
islands  of  Man,  Guernsey,  Jersey,  Alderney, 
and  Sark,  nor  any  adjacent  island  (being  part 
of  the  dominions  of  his  majesty),  are  to  be 
deemed  beyond  seas. 

By  section  20,  when  the  right  of  any  per- 
son to  recover  any  land  or  rent  to  which  he 
may  have  been  entitled,  or  an  estate  or  in- 
terest in  possession,  shall  have  been  barred  by 
time,  any  right  in  reversion,  or  otherwise, 
which  such  person  may  during  that  time 
have  had  to  the  same  land  or  rent,  shall  also 
be  barred,  unless  in  the  mean  time  the  land 
or  rent  shall  have  been  recovered  by  some 
person  entitled  to  an  estate  which  shall  have 
taken  efiect  after  or  in  defeasance  of  such 
estate  or  interest  in  possession. 

Section  21  enacts  that  when  the  right  of 
a  tenant  in  tail  of  any  land  or  rent  shall 
have  been  barred,  the  right  of  any  person 
claiming  any  estate  or  interest  which  such 
tenant  in  tail  might  have  barred,  shall  also  be 
barred. 

Section  22  enacts  that  when  any  tenant  in 
tail  shall  have  died  before  the  bar  as  against 
him  is  complete,  no  person  claiming  an  estate 
or  interest,  etc.,  which  such  tenant  in  tail 
might  have  barred,  shall  enforce  his  claim 
but  within  the  period  within  which  the 
tenant  in  tail,  had  he  lived,  might  have 
recovered. 

Section  23  makes  possession  under  an  as- 
surance by  a  tenant  in  tail,  which  shall  no! 
operate  to  bar  the  remainder,  a  bar  to  sucb 
remainders  at  the  end  of  twenty  years  froir 
the  time  when  such  assurance,  if  then  exe 


LIMITATIONS 


73 


LIMITATIONS 


cutcd,  would,  without  the  consent  of  any 
other  person,  have  barred  them. 

Section  24  enacts  that  no  suit  in  equity 
shall  be  brought  after  the  time  when  the 
phiintiff,  if  entitled  at  law,  might  have  brought 
an  action. 

Section  25  enacts  that  in  cases  of  express 
trust  the  right  of  the  cestui  que  trust,  or  any 
person  claiming  through  him,  shall  be  deemed 
to  have  first  accrued  at  the  time  when  the 
land  or  rent  may  have  been  conveyed  to  a 
purchaser  for  a  valuable  consideration,  and 
shall  then  be  deemed  to  have  accrued  only 
against  such  purchaser,  or  any  person  claim- 
ing through  him. 

Section  26  enacts  that  in  case  of  fraud  the 
right  shall  be  deemed  to  have  first  accrued  at 
the  time  when  such  fraud  shall  be,  or  with 
reasonable  diligence  might  have  been,  disco- 
vered, but  that  nothing  in  that  clause  shall 
aifect  a  bond  fide  purchaser  for  value,  not 
assisting  in,  and,  at  the  time  he  purchased, 
not  knowing,  and  having  no  reason  to  believe, 
fiuch  fraud  had  been  committed. 

Section  27  provides  that  the  act  shall  not 
prevent  the  courts  of  equity  refusing  relief 
on  the  ground  of  acquiescence,  or  otherwise, 
to  any  person  whose  right  to  bring  a  suit  may 
not  be  barred  by  the  act. 

Section  28  enacts  that  a  mortgagor  shall 
be  barred  by  twenty  years'  possession  of  the 
mortgagee,  unless  there  be  an  acknowledg- 
ment in  writing. 

Section  29  enacts  that  no  land  or  rent  shall 
be  recovered  by  an  ecclesiastical  or  eleemo- 
synary corporation  sole,  but  within  the  period 
during  which  two  persons  in  succession  shall 
have  held  the  benefice,  etc.  in  respect  whereof 
such  land  or  rent  is  claimed,  and  six  years 
after  a  third  person  shall  have  been  appointed 
thereto,  if  such  two  incumbencies  and  six 
years  taken  together  shall  amount  to  the  full 
period  of  sixty  years,  but  if  they  do  not 
amount  to  sixty  years,  then  during  such  fur- 
ther time  in  addition  to  the  two  incumbencies 
and  six  years  as  will  make  up  the  sixty 
years. 

Section  30  enacts  that  no  advowson  or 
right  of  presentation  shall  be  recovered  but 
within  the  period  during  which  three  clerks 
in  succession  shall  have  held  the  same  (all 
of  whom  shall  have  obtained  possession 
thereof  adversely  to  the  right  of  the  party 
claiming),  if  the  three  incumbencies  shall  to- 
gether amount  to  sixty  years,  but  if  they  do 
not  amount  to  sixty  years,  then  after  such 
further  time  as  with  the  incumbencies  will 
together  make  up  sixty  years. 

Section  31  provides  that  when  on  an  avoid- 
ance after  a  clerk  shall  have  obtained  posses- 
sion of  a  benefice  adversely  to  the  right  of 
the  patron,  a  clerk  shall  be  presented  or  col- 
lated by  reason  of  a  lapse,  such  last-mentioned 
presentation  shall  be  deemed  adverse  to  the 
patron,  but  if  such  presentation  .be  after  pro- 
motion to  a  bishopric,  it  shall  not  be  adverse 
to  the  patron. 

Section  32  enacts  that  every  person  claim- 
ing a  right  in  an  advowson,  which  the  tenant 


in  tail  thereof  might  have  barred,  shall  be 
deemed  a  person  claiming  through  such 
tenant  in  tail. 

Section  33  enacts  that  an  advowson  shall 
not  be  recovered  after  one  hundred  years 
from  the  time  at  which  a  clerk  shall  have 
obtained  possession  thereof  adversely  to  the 
right  of  the  claimant,  unless  a  clerk  has  sub- 
sequently had  possession  of  the  benefice  on 
the  presentation  of  some  person  having  the 
same  right. 

Section  34  enacts  that  at  the  determina- 
tion of  the  period  limited  by  this  act  to  any 
person  for  making  any  entry  or  distress,  or 
bringing  any  writ  of  quare  impedit,  or  other 
action  or  writ,  the  right  and  title  of  such  per- 
son to  the  land,  rent,  or  advowson,  for  the 
recovery  whereof  such  entry,  distress,  action, 
or  suit  respectively,  might  have  been  made  or 
brought  within  such  period,  shall  be  extin- 
guished. 

Section  35  enacts  that  the  receipt  of  the 
rent  payable  by  any  tenant  from  year  to  year, 
or  other  lessee,  shall,  as  against  such  lessee 
or  any  person  claiming  under  him  (but  sub- 
ject to  the  lease),  be  deemed  to  be  the  receipt 
of  the  profits  of  the  land  for  the  purposes  of 
this  act. 

By  section  36,  all  real  and  mixed  actions 
are  abolished  after  the  31st  of  December,  1834, 
except  dower,  right  of  dower,  quare  impedit, 
and  ejectment. 

But  section  37  enables  any  person  not  hav- 
ing a  right  of  entry  on  the  31st  of  December, 
1834,  to  bring  any  real  or  mixed  action,  to 
which  he  was  then  entitled,  at  any  time  before 
the  1st  of  June,  1835. 

And  section  38  further  provides  that  when 
on  the  1st  day  of  June,  1835,  any  person 
whose  right  of  entry  shall  have  been  taken 
away  by  any  descent  cast,  discontinuance,  or 
warranty,  might  maintain  any  real  action,  he 
may  maintain  the  same  after  the  1st  day  of 
June,  1835,  but  only  within  the  period  during 
which  he  might  under  the  act  have  made  an 
entry,  if  his  right  of  entry  had  not  been  so 
taken  away 

And  by  section  39,  no  descent  cast,  discon- 
tinuance, or  warranty  shall,  after  the  31st  of 
December,  1833,  toll  or  defeat  any  right  of 
entry  or  action  for  the  recovery  of  land. 

Section  40  enacts  that  money  secured  by 
mortgage,  judgment,  or  lien,  or  otherwise, 
charged  upon  or  payable  out  of  any  land  or 
rent  at  law  or  in  equity,  or  any  legacy,  shall 
not  be  recovered  but  within  twenty  years 
next  after  a  present  right  shall  have  accrued 
to  some  person  capable  of  giving  a  discharge 
for  or  releasing  the  same,  unless  there  have 
been  part  payment  in  the  mean  time  of  prin- 
cipal or  interest,  or  an  acknowledgment  in 
writing  have  been  given,  signed  by  the  per- 
son by  whom  the  same  shall  be  payable,  or 
his  agent,  to  the  person  entitled  thereto,  or 
his  agent,  in  which  case  the  time  runs  from 
such  payment  or  acknowledgment,  or  the  last 
of  them,  if  more  than  one. 

Section  41  enacts  that  no  arrears  of  dower, 
or  any  damages  on  account  of  such  arrears 


LIMITATIONS 


'4 


LINE 


shall  be  recovered  but  within  six  years  before 
commencement  of  action  or  suit. 

Section  42  enacts  that  no  arrears  of  rent,  or 
of  interest  in  respect  of  any  money  charged 
upon  any  land  or  rent,  or  in  respect  of  any 
legacy,  or  any  damages  in  respect  of  such 
arrears  of  rent  or  interest,  shall  be  recovered 
but  within  six  years  next  after  the  same 
became  due,  or  next  after  an  acknowledgment 
of  the  same  in  writing  shall  have  been  given 
to  the  person  entitled  thereto,  or  his  agent, 
signed  by  the  person  by  whom  the  same  was 
payable,  or  his  agent,  except  where  any  prior 
mortgagee  or  incumbrancer  shall  have  been 
in  possession  of  the  land  mortgaged,  or  profits 
thereof,  within  one  year  next  before  any 
action  or  suit  by  a  subsequent  mortgagee  or 
incumbrancer  of  the  same  land;  in  which 
case  such  subsequent  mortgagee  or  incum- 
brancer may  in  such  action  or  suit  recover  all 
arrears  of  interest  which  shall  have  become 
due  during  the  time  that  the  prior  mortgagee 
or  incumbrancer  was  in  possession  of  the  land 
or  profits  thereof. 

Section  43  extends  the  act  to  the  spiritual 
courts. 

Section  44  enacts  that  the  act  shall  not 
extend  to  Scotland,  and  that  it  shall  not,  so 
far  as  it  relates  to  advowsons,  extend  to 
Ireland. 

Of  Criminal  Proceedings.  The  time 
within  which  indictments  may  be  found,  or 
other  proceedings  commenced,  for  crimes  and 
offences,  varies  considerably  in  the  different 
jurisdictions.  In  general,  in  all  jurisdictions, 
the  length  of  time  is  extended  in  some  propor- 
tion to  the  gravity  of  the  offence.  Indict- 
ments for  murder,  in  most,  if  not  all,  of  the 
states,  may  be  found  at  any  time  during  the 
life  of  *;he  criminal  after  the  death  of  the  victim. 
Proceedings  for  less  offences  are  to  be  com- 
menced within  periods  varying  from  ten  years 
to  sixty  days. 

Of  Estates.  A  circumscription  of  the 
quantity  of  time  comprised  in  any  estate.  1 
Preston,  Est.  25. 

The  definition  or  circumscription,  in  any 
conveyance,  of  the  interest  which  the  grantee 
is  intended  to  take.  The  term  is  used  by  dif- 
ferent writers  in  different  senses.  Thus,  it  is 
used  by  Lord  Coke  to  denote  the  express  de- 
finition of  an  estate  by  the  words  of  its  crea- 
tion, so  that  it  cannot  endure  for  any  longer 
time  than  till  the  contingency  happens  upon 
which  the  estate  is  to  fail.  Coke,  Litt.  23  h. 
In  the  work  of  Mr.  Sanders  on  Uses,  the  term 
is  used,  however,  in  a  broader  and  more  gene- 
ral sense,  as  given  in  the  second  definition 
above.  1  Sanders,  Uses,  4th  ed.  121  et  seq. 
And,  indeed,  the  same  writers  do  not  always 
confine  themselves  to  one  use  of  the  term  ; 
though  the  better  usage  is  undoubtedly  given 
by  Mr.  Stephen  in  his  note  above  cited.  And 
see  Fearne,  Ccmt.  Rem.  Butler's  note  n,  9th 
ed.  10;  1  Stephen,  Comm.  5th  ed.  304,  note. 
For  tlic  distinctions  between  limitations  and 
remainders,  see  Conditional  Limitation; 
Contingent  Remainder. 

Consult,   generally,   Angell,  Ballantine, 


Price,  on  Limitations;  Flintoff,  Washburn, 
on  Real  Property;  Barbour,  Bishop,  on 
Criminal  Law. 

LINE.  In  Descents.  The  series  of  per- 
sons who  have  descended  from  a  common  an- 
cestor, placed  one  under  the  other,  in  the  order 
of  their  birth.  It  connects  successively  all 
the  relations  by  blood  to  each  other.  See 
Consanguinity;  Degree. 

o  6.  Tritavua,  Tritavia. 
o  5.  Atavus,  Atavia. 
o  4.  Abavus,  Abavia, 


Great-grandfi 

ther,  great 
grandmother, 
Grandfather, 
Grandmother. 
Father,  Mother 


:r.  J  I 


Ego. 
/  Son. 


Grandson. 
Great-grandson. 


Proavus,  Proavia. 


2.  Avus,  Avia. 

0  1.  Patei,  Mater. 

oEgo. 

il.  Filius. 

1  2.  Nepos,  Nepti. 

I  3.  Pronepos,  Proneptis. 

I  4.  Abnepos,  Abneptis. 

^  5.  Adnepos,  Adnepti. 

I  6.  Trinepos,  Trineptis. 


ft 

2.  The  line  is  either  direct  or  collateral. 
The  direct  line  is  composed  of  all  the  persons 
who  are  descended  from  each  other.  If,  in 
the  direct  line,  any  one  person  is  assumed  as 
the  propositus,  in  order  to  count  from  him 
upwards  and  downwards,  the  line  will  be  di- 
vided into  two  parts,  the  ascending  and  de- 
scending lines.  The  ascending  line  is  that 
which,  counting  from  the  propositus,  ascends 
to  his  ancestors,  to  his  father,  grandfather, 
great-grandfather,  etc.  The  descending  lino 
is  that  which,  counting  from  the  same  per- 
son, descends  to  his  children,  grandchildren, 
great-grandchildren,  etc.  The  preceding  table 
is  an  example. 

3.  The  collateral  line,  considered  by  itself 
and  in  relation  to  the  common  ancestor,  is  a 
direct  line ;  it  becomes  collateral  when  placed 
alongside  of  another  line  below  the  common 
ancestor,  in  whom  both  lines  unite.  For  ex- 
ample: 

Common  o  ancestor. 

o 
I 

o 

I 


Direct 
line. 


Collateral 
line. 


O  o 

Ego. 

These  two  lines  are  independent  of  each 
other:  they  have  no  connection  except  by 
their  union  in  the  person  of  the  common  an- 
cestor. This  reunion  is  what  forms  the  rela- 
tion among  the  persons  composing  the  two 
lines. 

4.  A  line  is  nho  paternal  or  maternal.  In 
the  examination  of  a  person's  ascending  line, 
the  line  ascends  first  to  his  father,  next  to 
his  paternal  grandfather,  his  paternal  great- 
grandfather, etc.,  so  on  from  father  to  father; 


LINEA  RECTA 


75  LIQUIDATED  DAMAGES 


this  is  called  the  paternal  line.  Another  line 
will  be  found  to  ascend  from  the  same  person 
to  his  mother,  his  maternal  <j;randmother,  and 
80  from  mother  to  mother:  this  is  the  mater- 
nal line.  These  lines,  however,  do  not  take 
in  all  the  ascendants:  there  are  many  others 
who  must  be  ima^!;ined.  The  number  of 
ascendants  is  double  at  each  degree,  as  is 
shown  by  the  following  diagram : 


See  2  Blackstone,  Comm.  200,  b.  2,  c.  14 ; 
Pothier,  Des  Successions,  c.  1,  art.  3,  ^  2 ; 
Ascendants. 

Estates.  The  division  between  two  estates. 
Limit:  border;  boundary. 

5.  When  a  line  is  mentioned  in  a  deed  as 
ending  at  a  particular  monument  {q.  v.),  it  is 
to  be  extended  in  the  direction  called  for, 
without  regard  to  distance,  until  it  reach  the 
boundary.  1  Tayl.  No.  C.  110,  303 ;  2  id.  1 ; 
2  Hawks",  No.  C.  219 ;  3  id.  21.  And  a  marked 
line  is  to  be  adhered  to  although  it  depart 
from  the  course.  7  Wheat.  7  ;  2  Ov.  Tenn, 
304;  3  Call.  Va.  239;  4  T.  B.  Monr.  Ky.  29  ; 
7  id.  333  ;  2  Bibb,  Ky.  261 ;  4  id.  503.  See, 
further,  2  Dan.  Ky.  2 ;  6  Wend.  N.  Y.  467  ; 
lBibb,Ky.466;  3  Murph.  No. C.  82;  13  Pick. 
Mass.  145  ;  13  Wend.  N.  Y.  300 ,5  J.J.  Marsh. 
Ky.  587. 

6.  Where  a  number  of  persons  settle  simul- 
taneously or  at  short  intervals  in  the  same 
neighborhood,  and  their  tracts,  if  extended  in 
certain  directions,  would  overlap  each  other, 
the  settlers  sometimes  by  agreement  deter- 
mine upon  dividing  lines,  which  are  called 
consentible  lines.  These  lines,  when  fairly 
agreed  upon,  have  been  sanctioned  by  the 
courts  ;  and  such  agreements  are  conclusive 
upon  all  persons  claiming  under  the  parties 
to  them,  with  notice,  but  not  upon  hondjide 
purchasers  for  a  valuable  consideration,  with- 
out notice,  actual  or  constructive.  3  Serg.  & 
R.  Penn.  323 ;  5  id.  273  ;  17  id.  57;  9  Watts 
&  S.  Penn.  66. 

Lines  fixed  by  compact  between  nations 
are  binding  on  their  citizens  and  subjects.  11 
Pet.  209;  1  Ov.  Tenn.  269;  1  Ves.'Sen.  Ch. 
450;  1  Atk.  Ch.  2;  2  id.  592;  1  Chanc.  Cas. 
85;  1  P.Will.  723-727;  1  Vern.  Ch.  48;  1 
Ves.  Ch.  19;  2  id.  284;  3  Serg.  &  R.  Penn. 
331. 

Measures.  A  line  is  a  lineal  measure, 
containing  the  one-twelfth  part  of  on  inch. 

LINEA  RECTA  (Lat.).  The  perpen- 
dicular line;  the  direct  line.  The  line  of 
ascent,  through  father,  grandfather,  etc.,  and 
of. descent,  through  son,  grandson,  etc.  Coke, 
Litt.  10,  158;  Bracton,  fol.  67;  Fleta,  lib.  6, 
c.  1,  ^  11.  This  is  represented  in  a  diagram 
by  a  vertical  line. 

Where  a  person  springs  from  another  im- 


mediately, or  mediately  through  a  third  per- 
son, they  are  said  to  be  in  the  diiect  line 
{linea  recta),  and  are  called  ascendants  and 
descendants.    Mackeld(;y,  Civ.  Law,  ^  129. 

LINEA  TRANSVERSALIS  (Lat.). 
A  line  crossing  the  perpendicular  lines. 
Where  two  persons  are  descended  from  a 
third,  they  are  called  collaterals,  and  are  said 
to  be  related  in  the  collateral  line  [linea  trans- 
versa or  obi i qua). 

LINEAL.    In  a  direct  line. 

LINEAL  WARRANTY.  A  warranty 
by  ancestor  from  whom  the  title  did  or  might 
have  come  to  heir.  2  Sharswood,  Blackst. 
Comm.  301 ;  Rawle,  Cov.  30;  2  IliUiard,  Real 
Prop.  360.  Thus,  a  warrant  by  an  elder 
son  during  lifetime  of  father  was  lineal  to  a 
younger  son,  but  a  warranty  by  younger  son 
was  collateral  to  elder ;  for,  though  the  younger 
might  take  the  paternal  estate  through  the 
elder,  the  elder  could  not  take  it  through  the 
younger.  Litt.  |  703.  Abolished.  3  &  4 
\yill.  IV.  c.  74,  I  14. 

LINES  AND  CORNERS.  In  deeds 
and  surveys.  Boundary-lines  and  their  an- 
gles with  each  other.  17  Miss.  459;  21  Ala. 
66  ;  9  Fost.  &  H.  N.  H.  471 ;  10  Gratt.  Va. 
445  ;  16  Ga.  141. 

LIQUIDATE.  To  pay ;  to  settle.  Web- 
ster, Diet.;  8  Wheat.  322.  Liquidated  dam- 
ages are  damages  ascertained  or  agreed  upon. 
Sedgwick,  Meas.  of  Dam.  427  et  seq. 

LIQUIDATED  DAMAGES.  In  Prac- 
tice. Damages  whose  amount  has  been  de- 
termined by  anticipatory  agreement  between 
the  parties. 

"Where  there  is  an  agreement  between  parties  for 
the  doing  or  not  doing  particular  acts,  the  parties 
may,  if  they  please,  estimate  beforehand  the  dam- 
ages to  result  from  a  breach  of  the  agreement,  and 
prescribe  in  the  agreement  itself  the  sum  to  be  paid 
by  either  by  way  of  damages  for  such  breach.  See 

1  H.  Blackst.  232;  2  Bos.  &  P.  336,  360;  2  Brown, 
Pari.  Cas.  431 ;  4  Burr.  2226 ;  2  Term.  32.  The 
civil  law  appears  to  recognize  such  stipulations. 
Inst.  3.  16.  7;  Toullier,  1.  3,  no.  809;  La.  Civ.  Code, 
art.  1928,  n.  6;  Code  Civile,  1152,  1163.  Such  a 
stipulation  on  the  subject  of  damages  differs  from 
a  penalty  in  this,  that  the  parties  are  holden  by  it; 
whereas  a  penalty  is  regarded  as  a  forfeiture,  from 
which  the  defaulting  party  can  be  relieved. 

2.  The  sum  named  in  an  agreement  as 
damages  to  be  paid  in  case  of  a  breach  will, 
in  general,  be  considered  as  liquidated  dam- 
ages, or  as  a  penalty,  according  to  the  intent 
of  the  parties;  and  the  mere  use  of  the  words 
"penalty"  or  "liquidated  damages''  will  not 
be  decisive  of  the  question,  if  (m  the  whole 
the  instrument  discloses  a  different  intent. 
Story,  Eq.  Jur.  1318;  6  Barnew.  &  C.  224;  6 
Bingh.  141 ;  6  Ired.  No.  C.  186  ;  15  Me.  273 ; 

2  Ala.  N.  s.  425  ;  8  Mo.  467. 

Such  a  stipulation  in  an  agreement  will 
be  considered  as  a  penalty  merely,  and  not 
as  liquidated  damages,  in  the  following  cases: 

3.  AVhere  the  parties  in  the  agreement 
have  expressly  declared  it  or  described  it  as 
a  "penalty,"  and  no  other  intent  is  clearly 
to  be  deduced  from  the  instrument.    2  Bop. 


LIQUIDATION 


76 


LIS  PENDENS 


&  P.  340,  350,  630 ;  1  II.  Blackst.  227  ;  1 
Campb.  78;  7  Wheat.  14;  1  McMull.  So.  C. 
106:  2  Ala.  n.  s.  425  ;  5  Mete.  Mass.  CI :  1 
Pick.  Mass.  451 :  4  id.  179 ;  3  Johns.  Cas. 
N.  Y.  297  ;  17  Barb.  N.  Y.  260  ;  24  Vt.  97. 

Where  it  is  doubtful  on  the  language  of 
the  instrument  -whether  the  stipulation  was 
intended  as  a  penalty  or  as  liquidated  dam- 
ages. 3  Carr.  &  P.  240 ;  6  Humphr.  Tenn. 
186  ;  5  Sandf.  N.  Y.  192 ;  24  Vt.  97 ;  16  111. 
475. 

4.  Where  the  agreement  was  evidently 
made  for  the  attainment  of  another  object  or 
purpose,  to  which  the  stipulation  is  wholly 
collateral.  11  Mass.  488 ;  15  id.  488 ;  1  Browri, 
Ch.  418. 

Where  the  agreement  imposes  several  dis- 
tinct duties,  or  obligations  of  different  de- 
grees of  importance,  and  yet  the  same  sum 
is  named  as  damages  for  a  breach  of  either 
indifferently.  6  Bingh.  141 ;  5  Blngh.  n.  c. 
390;  7  Scott,  364;  5  Sandf.  N.  Y.  192.  But 
see  7  Johns.  N.  Y.  72 ;  15  id.  200 ;  9  N.  Y. 
551. 

Where  the  agreement  is  not  under  seal, 
and  the  damages  are  capable  of  being  cer- 
tainly known  and  estimated.  2  Barnew.  & 
Aid.  704 ;  6  Barnew.  &  C.  216 ;  1  Mood.  & 
M.  41 ;  4  Dall.  Penn.  150 ;  5  Cow.  N.  Y.  144. 

5.  Where  the  instrument  provides  that  a 
larger  sum  shall  be  paid  upon  default  to  pay 
a  lesser  sum  in  the  manner  prescribed.  5 
Sandf.  N.  Y.  192,  640 ;  16  111.  400 ;  14  Ark. 
329. 

The  stipulation  will  be  sustained  as  liqui- 
dated damages  in  the  following  cases: 

Where  the  agreement  is  of  such  a  nature 
that  the  damages  are  uncertain,  and  are  not 
capable  of  being  ascertained  by  any  satis- 
factory and  known  rule.  2  Term,  32;  1  Ale. 
&  N.  Ir.  389 ;  2  Burr.  2225  ;  10  Ves.  Ch.  429 ; 
3  Mees.  &  W.  Exch.  535  ;  3  Carr.  «fc  P.  240 ; 
8  Mass.  223  ;  7  Cow.  N.  Y.  307;  4  Wend.  N. 
Y.  468  ;  5  Sandf.  N.  Y.  192  ;  12  Barb.  N.  Y. 
137,  366 ;  18  id.  336  ;  14  Ark.  315  ;  2  Ohio 
St.  519. 

Where,  from  the  tenor  of  the  agreement  or 
from  the  nature  of  the  case,  it  appears  that 
the  parties  have  ascertained  the  amount  of 
damages  by  fair  calculation  and  adjustment. 
2  Story,  Eq.  Jur.  ^318;  2  Greenleaf,  Ev. 
259  ;  1  Bingh.  302 ;  7  Conn.  291 ;  UN.  II. 
234;  6  Blackf.  Ind.  206;  13  Wend.  N.  Y. 
507;  17  id.  447;  22  id.  201 ;  26  id.  630;  10 
Mass.  459  ;  7  Mete.  Mass.  583  ;  2  Ala.  n.  s. 
425  ;  14  Me.  250. 

See  2  W.  Blackst.  1190 ;  Cooper,  Just.  606; 
1  Chittv,  Pract.  872;  2  Atk.  194;  Finch.  117; 
Chanc.  Prec.  102;  2  Brown,  Pari.  Cas.  436; 
Fonblan(iue,  151,  152,  note;  Chitty,  Contr! 
336;  11  N.  IL  234;  11  Tex.  273  ;  14  Ark. 
315;  37  Eng.  L.  &  Eq.  122;  2  Abb.  Pract. 
449  ;  Sedgwick,  Dam.  3d  ed.  417,  442,  and 
cases  cited. 

LIQUIDATION.  A  fixed  and  determi- 
nate valuation  of  things  which  before  were 
uncertain. 

IjIRA.    The  name  of  a  foreign  coin. 


In  all  computations  at  the  custom-house,  the  lira 
of  Sardinia  shall  be  estimated  at  eighteen  cents  and 
six  mills,  Act  of  March  22,  1846 ;  the  lira  of  the 
Lombardo-Venetian  kingdom,  and  the  lira  of  Tus- 
cany, at  sixteen  cents.    Act  of  March  22,  1846. 

LIS  MOT  A  (Lat. ).  A  controversy  begun, 
i.e.  on  the  point  at  issue,  and  prior  to  com- 
mencement of  judicial  proceedings.  Such 
controversy  is  taken  to  arise  on  the  advent 
of  the  state  of  facts  on  which  the  claim  rests; 
and  after  such  controversy  has  arisen  (j9o.s^ 
lHem  motam)  no  declarations  of  deceased  mem- 
bers of  family  as  to  matters  of  pedigree  are 
admissible.  6  Carr.  &  P.  560;  4  Campb.  417 ; 

2  Russ.  &  M.  Ch.  161  ;  Greenleaf,  Ev.  g|  131, 
132;  4  Maule&  S.497;  1  Pet.  337;  26  Barb. 
N.  Y.  177. 

LIS  PENDENS  (Lat.).  A  pending 
suit.  Suing  out  a  writ  and  making  attach- 
ment (on  mesne  process)  constitutes  a  lis 
pendens  at  common  law.    21  N.  H.  570. 

2.  Filing  the  bill  and  serving  a  subpoena 
creates  a  lis  pendens  in  equity,  1  Vern.  Ch. 
318;  7  Beav.  Rolls,  444;  27  Mo.  560;  4 
Sneed,  Tenn.  672;  26  Mis.s.  .397;  9  Paige, 
Ch.  N.Y.  512;  22  Ala.  n.  s.  743 ;  7  Blackf. 
Ind.  242 ;  Cross,  Liens,  140,  which  the  final 
decree  terminates.  1  Vern.  Ch.  318.  In  the 
civil  law,  an  action  is  not  said  to  be  pending 
till  it  reaches  the  stage  of  conteslatio  lites. 
The  phrase  is  sometimes  used  as  a  substitute 
for  autre  action  pendant.  See  1  La.  Ann.  46; 
21  N.  H.  570;  U.  S.  Dig.  Lis  Pendens;  Autre 
Action  Pendant. 

The  proceedings  must  relate  directly  to 
the  specific  propertv  in  question,  1  Strobh. 
Eq.  So.  C.  180;  7  Blackf.  Ind.  242;  7  Md. 
537;  Story,  Eq.  Plead.  §351;  1  Milliard, 
Vend.  411  ;  and  the  rule  applies  to  no  other 
suits.    1  M'Cord,  Ch.  So.  C.  252. 

3.  Filing  a  judgment  creditor's  bill  con- 
stitutes a  lis  pendens.  4  Edw.  Ch.  N.  Y.  29. 
A  petition  by  heirs  to  sell  real  estate  is  not  a 
lis  pendens.  14  B.  Monr.  Ky.  164.  The 
court  must  have  jurisdiction  over  the  thing. 
1  McLean,  C.  C.  167. 

Only  unreasonable  and  unusual  negligence 
in  the  prosecution  of  a  suit  will  take  away 
its  character  as  a  lis  pendens,  18  B.  Monr. 
Ky.  230;  11  id.  297  ;  that  there  must  be  an 
active  prosecution  to  keep  it  alive.  1  Yern. 
Ch.  286 ;  1  Russ.  &  M.  617. 

Lis  pendens  is  general  notice  of  an  equity 
to  all  the  world.   Ambl.  676  ;  2  P.  Will.  282 ; 

3  Atk.  Ch.  343;  1  Vern.  Ch.  286:  3  Hayw. 
No.  C.  147;  1  Johns.  Ch.  N.Y.  556. 

4.  A  voluntary  assignment  during  the 
pendency  of  a  suit  does  not  affect  the  rights 
of  other  parties,  if  not  disclosed,  except  so 
far  as  the  alien  action  may  disable  the  party 
from  performing  the  decree  of  the  court, 
Story,  Eq.  Plead,  g  351;  15  Tex.  495;  22 
Barb.  N.  Y.  666 :  as  in  case  of  mortgage  by 
tenant  in  common  of  his  undivided  interest, 
and  subsequent  partition.  2  Sandf.  Ch.  N.Y. 
98. 

An  involuntary  assignment,  as  under  the 
bankrupt  or  insolvent  laws,  renders  the  suit 
so  defective  that  it  cannot  be  prosecuted  if 


LIST 


77 


LITISPENDENCIA 


the  defendant  objects.  7  Paige,  Ch.  N.  Y. 
287  ;  1  Atk.  Ch.  88;  4  Ves.  Ch.  387  ;  9  Wend. 
N.  Y.  049  ;  1  Hare,  621 ;  Story,  Eq.  Plead.  I 
349.  Not  if  made  under  the  bankrupt  law 
of  1841.    27  Barb.  N.  Y.  252. 

The  same  may  be  said  of  a  voluntary  as- 
signment of  all  his  interest  by  a  sole  com- 
plainant. 5  Hare,  223 ;  Story,  Eq.  Plead.  ^ 
349. 

5.  An  alienee,  during  the  pendency  of  a 
suit,  is  bound  by  the  proceedings  therein 
su))sequent  to  the  alienation,  though  before 
he  became  a  party.  4  Beav.  Rolls,  40;  5 
Mich.  456  ;  22  Barb.  N.  Y.  166  ;  27  Penn.  St. 
418  ;  5  Du.  N.  Y.  631 ;  7  Blackf.  Ind.  242. 

Purchasers  during  the  pendency  of  a  suit 
are  bound  by  the  decree  in  the  suit  without 
being  made  parties.  1  Swanst.  55  ;  4  Russ. 
372:  1  Daniell,  Ch.  Pract.  375;  Story,  Eq. 
Plead.  I  351  a;  32  Ala.  n.  s.  451;  11  Mo. 
519;  30  Miss.  27  ;  12  La.  Ann.  776;  6  Barb. 
N.  Y.  133  ;  22  id.  166  ;  27  Penn.  St.  418  ;  7 
Eng.  421 ;  16  111.  225  ;  5  B.  Monr.  Ky.  323  ; 
4  Dan.  Ky.  99 ;  9  B.  Monr.  Ky.  220 ;  12  id. 
600;  11  Ind.  443;  2  HiUiard,  Vend.  311. 

6.  So  also  is  a  purchaser  during  a  suit  to 
avoid  a  conveyance  as  fraudulent.  5  T.  B. 
Monr.  Ky.  373 ;  6  B.  Monr.  Ky.  18. 

Lis  pendens  by  a  mortgagor  under  a  prior 
unrecorded  mortgage  is  notice  to  a  second 
mortgagee.  9  Ala.  n.  s.  921.  But  see  2  Rand. 
Va.  93. 

The  rule  does  not  apply  where  a  title  im- 
perfect before  suit  brought  is  perfected  dur- 
ing its  pendency.  4  Cow.  N.  Y.  667 ;  14 
Ohio,  323. 

A  debtor  need  not  pay  to  either  party  pen- 
dente lite.   1  Paige,  Ch.  N.  Y.  490. 

The  doctrine  of  lis  pendens  is  an  equitable 
doctrine. 

7.  In  law,  the  same  effect  is  produced  by 
the  rule  that  each  purchaser  takes  the  title 
of  his  vendor  only.  11  Md.  519;  27  Penn. 
St.  418  ;  6  Barb.  N.  Y.  133;  30  Miss.  27  ;  5 
Mich.  456;  1  Hilliard,  Vend.  411.  The 
doctrine  of  lis  pendens  is  modified  in  many 
of  the  states  of  the  United  States,  and  by 
statutes  requiring  records  of  the  attachment 
to  preliminary  proceedings  to  be  made,  and 
constituting  such  records  notice.  Sec  stat.  2 
Vict.  c.  11,  §  7 ;  and  Rev.  Statutes  of  the  vari- 
ous states. 

LIST.  A  table  of  cases  arranged  for  trial 
or  argument :  as,  the  trial  list,  the  argument 
list.    See  3  Bouvier,  Inst.  n.  3031. 

LISTERS.  This  word  is  used  in  some  of 
the  states  to  designate  the  persons  appointed 
to  make  lists  of  taxables.  See  Vt.  Rev.  Stat. 
538. 

LITERS  PROCURATORI^  (Lat.). 
In  Civil  Law.    Letters  procuratory.  A  writ- 
ten authority,  or  power  of  attorney  [litera  at- 
\   iornati),  given  to  a  procurator.    Vicat,  Voc. 
Jur.  Utr. ;  Bracton,  fol,  40-43. 

LITERAL   CONTRACT.    In  Civil 
Law.  ^  A  contract  the  whole  of  the  evidence 
j   »;f  which  is  reduced  to  writing.    This  con- 
I  tract  is  pei-fected  by  the  writing,  and  binds 


the  party  who  su})Scri,bod  it,  although  lie  liin 
received  no  consideration.    Lec;.  Elem.  ^  887. 

LITERARY  PROPERTY.  The  gene- 
ral term  which  describes  the  interest  of  an 
author  in  his  works,  or  of  those  who  claim 
under  him,  whether  before  or  after  publica- 
tion, or  before  or  after  a  copyright  has  been 
secured.  See  Copyright;  Manuscript; 
Curtis  on  Copyright;  2  Blackstone,  Comm. 
405,406;  4  Viner,  Abr.  278;  Bacon,  Abr. 
Frorogation  (F  5) ;  2  Kent,  Comm.  30li-315  ; 
1  Belt,  Suppl.  Ves.  Jr.  360,  376 ;  2  id.  m ; 
Nicklin,  Lit.  Prop. ;  Dane,  Abr.  Index ;  1 
Chitty,  Pract.  98;  2  Am.  Jur.  248;  10iV/.62; 

1  Phil.  Law  Int.  66 ;  1  Bell,  Comm.  b.  1,  part  2, 
c.  4,  s.  2,  p.  115  ;  1  Bouvier,  Inst.  nn.  508  ct  seq. 

LITIGANT.  One  engaged  in  a  suit ;  one 
fond  of  litigation. 

LITIGATION.  A  contest,  authorized 
by  law,  in  a  court  of  justice,  for  the  purpose 
of  enforcing  a  right. 

In  order  to  prevent  injustice,  courts  of 
equity  will  retain  a  party  from  further  litiga- 
tion, by  a  writ  of  injunction:  for  example, 
after  two  verdicts  on  trials  at  bar,  in  favor  of 
the  plaintiff,  a  perpetual  injunction  was  de- 
creed. Strange,  404.  And  not  only  between 
two  individuals  will  a  court  of  equity  grant 
this  relief,  as  in  the  above  case  of  several 
ejectments,  but  also,  when  one  general  legal 
right,  as  a  right  of  fishery,  is  claimed  against 
several  distinct  persons,  in  which  case  there 
would  be  no  end  of  bringing  actions,  since 
each  action  would  only  bind  the  particular 
right  in  question  between  the  plaintiff  and 
defendant  in  such  action,  without  deciding 
the  general  right  claimed.    2  Atk.  Ch.  484 ; 

2  Ves.  Ch.  587.    See  Circuity  of  Actions. 

LITIGIOSITY.    In  Scotch  Law. 

The  pendency  of  a  suit:  it  is  an  implied 
prohibition  of  alienation,  to  the  disappoint- 
ment of  an  action,  or  of  diligence,  the  direct 
object  of  which  is  to  obtain  possession,  or  to 
acquire  the  property  of  a  particular  subject. 
The  effect  of  it  is  analogous  to  that  of  inhi- 
bition.   2  Bell,  Comm.  5th  ed.  152. 

LITIGIOUS.  That  which  is  the  subject 
of  a  suit  or  action;  that  which  is  contested 
in  a  court  of  justice.  In  another  sense,  liti- 
gious signifies  a  disposition  to  sue ;  a  fond- 
ness for  litigation. 

LITIGIOUS  RIGHTS.  In  French 
Law.  Those  which  are  or  may  be  contested 
either  in  whole  or  in  part,  whether  an  action 
has  been  commenced,  or  when  there  is  reason 
to  apprehend  one.  Pothier,  Vente,  n.  584 ; 
9  Mart.  La.  183  ;  Troplong,  De  la  Vente,  n. 
984  k  1003 ;  Eva.  Civ.  Code,  art.  2623 ;  id. 
3522,  n.  22.    See  Contentious  Jurisdiction. 

LITISPENDENCIA.  In  Spanish 
Law.  The  condition  of  a  suit  pending  in  a 
court  of  justice. 

In  order  to  render  this  condition  valid,  it 
is  necessary  that  the  judge  be  competent  to 
take  cognizance  of  the  cause  ;  that  the  de- 
fendant has  been  duly  cited  to  appear,  and 
fully  informed,  in  due  time  and  form,  of  the 


I 


LITRE 


8         LOAN  FOR  CONSUMPTION 


nature  of  the  demand,*  or  that,  if  he  has  not, 
it  has  been  through  his  own  fault  or  fraud. 

The  litispendencia  produces  two  effects : 
the  legal  impossibility  of  alienating  the  pro- 
perty in  dispute  during  the  pendency  of  the 
suit ;  the  accumulation  of  all  the  proceed- 
ings in  the  cause,  in  the  tribunal  where  the 
suit  is  pending,  whether  the  same  be  had  be- 
fore the  same  judge  or  other  judges  or  nota- 
ries. This  cumulation  may  be  required  in 
any  stage  of  the  cause,  and  forms  a  valid  ex- 
ception to  the  further  proceeding,  until  the 
cumulation  is  effected.    Escriche,  Diet. 

LITRE.  A  French  measure  of  capacity. 
It  is  of  the  size  of  a  decimetre,  or  one-tenth 
part  of  a  cubic  mfetre.  It  is  equal  to  61.028 
cubic  inches.    See  Measure. 

LITTORAL  ( Uttus) .  Belonging  to  shore : 
as,  of  sea  and  great  lakes.  Webst.  Cor- 
responding to  riparian  proprietors  on  a 
stream  or  small  pond  are  littoral  proprietors 
on  a  sea  or  lake.  But  riparian  is  also  used 
coextensively  with  littoral.  7  Cush.  Mass. 
94.    See  17  How.  426. 

LITUS  MARIS  (Lat.).  In  Civil  Law. 
Shore ;  beach.  Qua  fiuctus  eluderet.  Cic. 
Top.  c.  7.  Qua  fiuctus  adludit.  Quinct.  lib. 
5,  c.  ult.  Quousque  maximus  fiuctus  a  mari 
yervenit.  Celsus ;  said  to  have  been  first  so 
defined  by  Cicero,  in  an  award  as  arbitrator. 
L.  92,  D,  de  verb,  signif.  Qua  maximus 
fiuctus  excBstuat.  L.  112,  D,  eod.  tit.  Qua- 
ienus  hibernus  fiuctus  maximus  cxcurrit.  Inst, 
lib.  2,  de  rer.  dims,  et  qual.  I  3.  That  is  to 
say,  as  ftir  as  the  largest  winter  wave  runs  up. 
Yocab.  Jur.  Utr. 

At  Common  Law.  The  shore  between 
common  high-water  mark  and  low-water 
mark.  Hale,  de  Jure  Maris,  cc.  4,  5,  6 ;  3 
Kent,  Comm.  427  ;  2  Hilliard,  Real  Prop.  90. 

Shore  is  also  used  of  a  river.  5  Wheat. 
385  ;  20  Wend.  N.  Y.  149.  See  13  How.  381 ; 
£8  Me.  180;  14  Penn.  St.  171. 

LIVERY.  In  English  Law.  The  de- 
livery of  possession  of  lands  to  those  tenants 
who  hold  of  the  king  in  capita  or  by  knight's 
service. 

The  name  of  a  writ  which  lay  for  the  heir 
of  age  to  obtain  possession  of  the  seisin  of  his 
lands  at  the  king's  hands.  Fitzherbert,  Nat. 
Brev.  155  ;  2  Sharswood,  Blackst.  Comm.  68. 

The  distinguishing  dress  worn  by  the  ser- 
vants of  a  gentleman  or  nobleman,  or  by  the 
members  of  a  particular  guild.  "  Livery  or 
clothing."  Say.  274.  By  stat.  1  Rich.  II.  c. 
7,  and  10  Rich.  II.  c.  4,  none  but  the  servants 
of  a  lord,  and  continually  dwelling  in  his 
house,  or  those  above  rank  of  yeomen,  should 
wear  the  lord's  livery. 

Privilege  of  a  particular  company  or  guild. 
Wharton,  Lex.  2d  Lond.  ed. 

LIVERY  OF  SEISIN.    In  Estates. 

A  delivery  of  possession  of  lands,  tenements, 
and  hereditaments  nnto  one  entitl(Ml  to  the 
name.  This  was  a  cer(  niony  used  in  the 
common  law  for  the  conveyance  of  real  eHlat(^; 
and  livery  v.a8  in  deed,  whieh  was  performed 


by  the  feoffor  and  the  feoffee  going  upon  the 
land  and  the  latter  receiving  it  from  the  for- 
mer ;  or  in  lau\  where  the  same  was  not 
made  on  the  land,  but  in  sight  of  it.  2 
Blackstone,  Comm.  315,  316. 

In  most  of  the  states,  livery  of  seisin  is  un- 
necessary, it  having  been  dispensed  with 
either  by  express  law  or  by  usage.  The 
recording  of  the  deed  has  the  same  effect. 
Washburn,  Real  Prop.  14,  35.  In  Maryland, 
however,  it  seems  that  a  deed  cannot  operate 
as  a  feoffment  without  livery  of  seisin.  5 
Ilarr.  &  J.  Md.  158.  See  4  Kent,  Comm. 
381  ;  1  Mo.  553 ;  1  Pet.  508 ;  1  Bay,  So.  0. 
107;  5  Ilarr.  &  J.  158;  11  Me.  318;  Dane, 
Abr. ;  Seisin. 

LIVRE  TOURNOIS.  In  Common 
Law.  A  coin  used  in  France  before  the 
revolution.  It  is  to  be  computed,  in  the  ad 
valorem  duty  on  goods,  etc.,  at  eighteen  and 
a  half  cents.  Act  of  March  2,  1798,  ^  61,  1 
Story,  U.  S.  Laws,  629.    See  Foreign  Coins. 

LOADMANAGE.  The  pay  to  loads- 
men  ;  that  is,  persons  who  sail  or  row  before 
ships,  in  barks  or  small  vessels,  with  instru- 
ments for  towing  the  ship  and  directing  her 
course,  in  order  that  she  may  escape  the  dan- 
gers in  her  way.  Pothier,  Des  Avaries,  n. 
137 ;  Guidon  de  la  Mer,  c.  14 ;  Bacon,  Abr. 
Merchant  and  Merchandise  (F).  It  is  not  in 
use  in  the  United  States. 

LOAN.  A  bailment  without  reward.  A 
bailment  of  an  article  for  use  or  consumption 
without  reward.    The  thing  so  bailed. 

A  loan,  in  general,  implies  that  a  thing  is  lent 
without  reward;  but,  in  some  cases,  a  loan  may  he 
for  a  reward:  as,  the  loan  of  money.    7  Pet.  109. 

It  would  be  an  inquiry  too  purely  speculative, 
whether  this  use  of  the  term  loan  originated  in  the 
times  when  taking  interest  was  considered  usury 
and  improper,  the  bailment  of  money  which  was  to 
be  returned  in  kind.  The  supposition  would  furnish 
a  reasonable  explanation  of  the  exception  to  the 
general  rule  that  loan  includes  properly  only  those 
bailments  where  no  reward  is  given  or  received  by 
the  bailee. 

In  order  to  make  a  contract  usurious,  there  must 
be  a  loan,  Cowp.  112,  770;  1  Ves.  Ch.  527;  2 
Blackstone,  859;  3  Wils.  390;  and  the  borrower 
must  be  bound  to  return  the  money  at  all  events. 
2  Schoales  &  L.  Ch.  Ir.  470.  The  purchase  of  a 
bond  or  note  is  not  a  loan,  3  Schoales  <fe  L.  Ch.  Ir. 
469  ;  9  Pet.  103  ;  but  if  such  a  purchase  be  merely 
colorable,  it  will  be  considered  as  a  loan.  2  Johns. 
Cas.  N.  Y.  CO,  66;  12  Serg.  &  R.  Penn.  46;  15 
Johns.  N.  Y.  44. 

LOAN   FOR   CONSUMPTION.  A 

contract  by  which  the  owner  of  a  personal 
chattel,  called  the  lender,  delivers  it  to  the 
bailee,  called  the  borrower,  to  be  returned  in 
kind. 

For  example,  if  a  person  borrows  a  bushel  of 
wheat,  and  at  the  end  of  a  month  returns  to  the' 
lender  a  bushel  of  equal  value.  This  class  of  loans 
is  commonly  considered  under  the  head  of  bail- 
ments; but  it  lacks  the  one  essential  element  ofi 
bailment,  that  of  a  return  of  the  property:  it  la 
more  strictly  a  barter  or  an  exchange  :  the  property 
passes  to  the  borrower.  4  N.  Y.  76;  8  id.  433; 
1  Ohio  iit.  9S:  3  Mas.  C.  C.  478;  1  Blnchf.  Ind. 
353 ;  Story,  IJailm.  {J  439.  Those  cases  sometimes 
called  teiittdim  (the  corresponding  civil  law  term), 


LOAN  FOR  USE 


79 


LOCATIO 


such  as  where  corn  is  delivered  to  a  miller  to  be  j 
ground  into  wheat,  are  either  c.ii-es  of  hiring  of 
labor  and  service,  as  where  the  miller  grinds  and 
returns  the  identical  wheat  ground  into  flour,  re- 
taining a  portion  for  his  services,  or  constitute  a 
mere  exchange,  as  where  he  mixes  the  wheat  with  his 
own,  undertaking  to  furnish  an  equivalent  in  corn. 
It  amounts  to  a  contract  of  sale,  payment  being 
stipulated  for  in  a  specified  article  instead  of  money. 

LOAN  rOR  USE  (called,  also,  commo- 
datum).  A  bailment  of  an  article  to  be  used 
by  the  borrower  without  paying  for  the  use. 
2  Kent,  Comm.  4th  ed.  573. 

Loan  for  use  (called  cnmmodatttm  in  the  civil 
law)  differs  from  a  loan  for  consumption  (called 
mutuum  in  the  civil  law)  in  this,  that  the  commoda- 
tiim  must  be  specifically  returned,  the  tnntunm  is  to 
be  returned  in  kind.  In  the  case  of  a  comniodatum, 
the  property  in  the  thing  remains  in  the  lender; 
in  a  mutxixna,  the  property  passes  to  the  borrower. 

2.  The  loan,  like  other  bailments,  must  be 
of  some  thing  of  a  personal  nature,  Story, 
Bailm.  |  223;  it  must  be  gratuitous,  2  h  \. 
Raym.  913,  for  the  use  of  the  borrower,  and 
this  as  the  principal  object  of  the  bailment. 
Story,  Bailm.  I  225  ;  13  Vt.  161 ;  and  must 
be  lent  to  be  specifically  returned  at  the  de- 
termination of  the  bailment.  Story,  Bailm. 
I  228. 

The  general  law  of  contracts  governs  as  to 
the  capacity  of  the  parties  and  the  character 
of  the  use.  Story,  Bailm.  II  50,  162,  302,  380. 
He  who  has  a  special  property  may  loan  the 
thing,  and  this  even  to  the  general  owner,  and 
the  possession  of  the  general  owner  still  be 
that  of  a  borrower.  1  Atk.  Ch.  235  ;  8  Term, 
199  ;  2  Taunt.  268. 

3.  The  borrower  may  use  the  thing  him- 
self, but  may  not,  in  general,  allow  others  to 
use  it,  1  Mod.  210 ;  4  Sandf.  N.  Y.  8,  during 
the  time  and  for  the  purposes  and  to  the  ex- 
tent contemplated  b}''  the  parties.  5  Mass. 
104 ;  1  Const.  So.  C.  121 ;  3  Bingh.  n.  c.  468 ; 
Bracton,  99,  100.  He  is  bound  to  use  extra- 
ordinary diligence,  3  Bingh.  n.  c.  468  ;  14  111. 
84 ;  4  Sandf.  N.  Y.  8  ;  is  responsible  for  acci- 
dents, though  inevitable,  which  injure  the 
property  during  any  excess  of  use,  5  Mass. 
194 ;  16  Ga.  25  ;  must  bear  the  ordinary  ex- 
penses of  the  thing,  Jones,  Bailm.  67,  and 
restore  it  at  the  time  and  place  and  in  the 
manner  contemplated  by  the  contract,  16  Ga. 
25;  12  Tex.  373;  Story,  Bailm.  §  99;  in- 
cluding, also,  all  accessories.  16  Ga.  25  ;  2 
Kent,  Comm.  4th  ed.  566.  As  to  the  place 
of  deliverv,  see  9  Barb.  N.  Y.  189 ;  1  Me. 
120 ;  1  N:  H.  295  ;  1  Conn.  255  ;  5  id.  76 ; 
16  Mass.  453;  Chipman,  Contr.  25.  He 
must,  as  a  general  rule,  return  it  to  the 
lender.  7  Cow.  N.  Y.  278  ;  1  Barnew.  &  Ad. 
450;  11  Mass.  211. 

4.  The  lender  may  terminate  the  loan  at 
his  pleasure,  9  East,  49;  1  Term,  480;  9 
Cow.  N.  Y.  687;  8  Johns.  N.  Y.  432;  16  Ga. 

.  25 ;  is  perhaps  liable  for  expenses  adding  a 
permanent  benefit.  Story,  Bailm.  §  274.  The 
lender  still  retains  his  property  as  against 
third  persons,  and,  for  some  purposes,  his  pos- 
session, 11  Johns.  N.  Y.  285;  6  id.  195;  13 
id.  141,  561;  7  Cow.  N.  Y.  753 ;  9  id.  687;  1 


Pick.  Mass.  389;  5  Mass.  303  ;  1  Term,  480; 
2  Campb.  4()4;  2  Bingh.  172;  1  Barnew. 
&  Aid.  59 ;  2  Crompt.  M.  &  R.  Exch.  659.  As 
to  whether  the  property  is  transferred  by  a 
recovery  of  judgment  for  its  value,  see  26 
Eng.  L.  &  Eq.  328 ;  2  Strange,  1078  ;  Mete. 
Yelv.  67,  n. ;  5  Me.  147 ;  1  Pick.  Mass.  62. 
See,  generally,  Edwards,  tFones,  Story,  on  Bail- 
ments ;  Kent,  Comm.  Lect.  46 ;  Chipman, 
Contr. 

LOAN  SOCIETIES.   In  English  Law. 

A  kind  of  club  formed  for  the  purpose  of  ad- 
vancing money  on  loan  to  the  industrial 
classes.  They  are  of  comparatively  recent 
origin  in  England,  and  are  authorized  and 
regulated  by  3  &  4  Vict.  ch.  110,  &  21  Vict, 
ch.  19. 

LOCAL  ACTION.    In  Practice.  An 

action  the  cause  of  which  could  have  arisen 
in  some  particular  county  only. 

All  local  actions  must  be  brought  in  the 
county  where  the  cause  of  action  arose. 

In  general,  all  actions  are  local  which  seek 
the  recovery  of  real  propertv,  2  W.  Blackst. 
1070;  4  Term,  504;  7  id.  589;  whether 
founded  upon  contract  or  not ;  or  damages 
for  injury  to  such  property  as  waste,  under 
the  statute  of  Gloucester,  trespass  qvai'e 
dau.wm  f regit,  trespass  or  case  for  injuries 
affecting  things  real,  as  for  nuisances  to 
houses  or  lands,  disturbance  of  rights  of 
way  or  of  common,  obstruction  or  diversion 
of  ancient  water-courses,  1  Chitty,  Plead. 
271;  Gould,  Plead,  ch.  3,  105,  106,  107; 
but  not  if  there  were  a  contract  between  the 
parties  on  which  to  ground  an  action.  15 
Mass.  284 ;  1  Day,  Conn.  263. 

Many  actions  arising  out  of  injuries  to 
local  rights  are  local :  as,  qnare  impedit.  1 
Chitty,  Plead.  241.  The  action  of  replevin  is 
also  local.  1  Wms.  Saund.  247,  n.  1 ;  Gould, 
Plead,  c.  3,  ^  111.  See  Gould  and  Chitty, 
Pleading ;  Comyns,  Dig.  Action;  Transitory 
Action. 

LOCAL  ALLEGIANCE.  The  alle- 
giance due  to  a  government  from  an  alien 
while  within  its  limits.  Sharswood,  Blackst. 
Comm.  370  ;  2  Kent,  Comm.  63,  64. 

LOCAL  STATUTES.  Statutes  whose 
operation  is  intended  to  be  restricted  Avithin 
certain  limits.  Dwarris  on  Stat.  p.  384.  It 
maybe  either  public  or  private.  1  Sharswood, 
Blackst.  Comm.  85,  86,  n.  Local  statutes  is 
used  by  Lord  Mansfield  as  opposed  to  pei^- 
sonal  statutes,  which  relate  to  personal  tran- 
sitory contracts ;  whereas  local  statutes  refer 
to  things  in  a  certain  jurisdiction  alone:  e.g. 
the  Statute  of  Frauds  relates  only  to  things  in 
England.    1  W.  Blackst.  246. 

LOCALITY.  In  Scotch  Law.  This 
name  is  given  to  a  life  rent  created  in  mar- 
riage contracts  in  favor  of  the  wife,  instead 
of  leaving  her  to  her  legal  life  rent  of  terce. 
1  Bell,  Comm.  55.    See  Jointure. 

LOCATIO  (Lat.).  In  Civil  Law.  Letting 
for  hire.  Calv.  Lex. ;  Voc.Jur.  Utr.  The  term 
is  also  used  by  text-writers  upon  the  law  of 


LOCATIO  MERCIUM  YEHENDARUiM  SO 


LOCUS  SIGILLI 


bailment  at  common  law.  1  Parsons,  Contr. 
G02.  In  Scotch  law  it  is  translated  location. 
Bell,  Diet. 

LOCATIO  MERCIUM  VEHEN- 
DARUM  (Lat.).  In  Civil  Law.  Ttie  car- 
riage of  goods  for  hire. 

In  respect  to  contracts  of  this  sort  entered 
into  by  private  'persons  not  exercising  the 
business  of  common  carriers,  there  does  not 
seem  to  be  any  material  distinction  varying 
the  rights,  obligations,  and  duties  of  the 
parties  from  those  of  other  bailees  for  hire. 
Every  such  private  person  is  bound  to  ordi- 
nary diligence  and  a  reasonable  exercise  of 
skill ;  and  of  course  he  is  not  responsible  for 
any  losses  not  occasioned  by  ordinary  negli- 
gence, unless  he  has  expressly,  by  the  terms 
of  his  contract,  taken  upon  himself  such  risk. 
2  Ld.  Raym.  909,  917,  918  •,  4  Taunt.  787  ;  6 
id.  577  ;  2  Marsh.  293  ;  Jones,  Bailm.  103, 
lOo,  121 ;  2  Bos.  &  P.  417  ;  1  Bouvier,  lost, 
n.  1020.    See  Common  Carrier. 

LOCATIO  OPERIS  (Lat.).  In  Civil 
Law.    The  hiring  of  labor  and  services. 

It  is  a  contract  by  which  one  of  the  parties 
gives  a  certain  work  to  be  performed  by  the 
other,  who  binds  himself  to  do  it  for  the  price 
agreed  between  them,  which  he  who  gives 
the  work  to  be  done  promises  to  pay  to  the 
other  for  doing  it.  Pothier,  Louage,  n.  392. 
This  is  divided  into  two  branches:  first,  lo- 
caiio  operis  faciendi ;  and,  secondly,  locatio 
mercinm  vehendarnm.    See  these  words. 

LOCATIO  OPERIS  FACIENDI  (Lat  ). 
In  Civil  Law.  Hire  of  services  to  be  per- 
formed. 

There  are  two  kinds:  first,  the  locatio  operis  fa- 
ciendi strictly  so  called,  or  the  hire  of  labor  and 
services  ;  such  as  the  hire  of  tailors  to  make  clothes, 
and  of  jewellers  to  set  gems,  and  of  watchmakers 
to  repair  watches.  Jones,  Bailm.  90,  96,  97.  Se- 
condly, locolio  custodise,  or  the  receiving  of  goods 
on  deposit  for  a  reward,  which  is  properly  the  hire 
of  care  and  attention  about  the  goods.  Story, 
Bailm.      422,  442;  1  Bouvier,  Inst.  n.  994. 

In  contracts  for  work,  it  is  of  the  essence 
of  the  contract,  first,  that  there  should  be 
work  to  Ije  done ;  secondly,  for  a  price  or  re- 
ward ;  and,  thirdly,  a  lawful  contract  between 
parties  capable  and  intending  to  contract. 
Pothier,  Louage,  nn.  393-403. 

LOCATIO  REI  (Lat.).    In  Civil  Law. 

Tlio  hiring  of  a  thing.  It  is  a  contract  by 
which  one  of  the  parties  obligates  himself  to 
give  to  the  other  the  use  and  enjoyment  of  a 
certain  thing  for  a  period  of  time  agreed  upon 
between  them,  and  in  consideration  of  a  price 
which  the  latter  binds  himself  to  pay  in  re- 
turn. Poth.  Contr.  de  Louage,  n.  1.  See 
Bailment;  Hire;  Hirer;  Letter. 

LOCATION.  In  Scotch  Law.  A  con- 
tract l)y  which  the  temporary  use  of  a  sub- 
ject, or  the  work  or  service  of  a  person,  is 
given  for  an  ascertained  hire.  1  Bell,  Comm. 
b.  2,  pt.  3,  c.  2,  s.  4,  art.  2,  g  1,  page  255. 
See  Bailment;  Hire. 

At  Common  Law.  The  act  of  select- 
ing and  designating  lands  which  the  person 


making  the  location  is  authorized  by  law  to 
select. 

It  is  applied  among  surveyors  who  are  au- 
thorized by  public  authority  to  lay  out  lands 
by  a  particular  warrant.  The  act  of  selecting 
the  land  designated  in  the  warrant  and  sur- 
veying it  is  called  its  location.  In  Pennsyl- 
vania, it  is  an  application  made  by  any  person 
for  land,  in  the  oflice  of  the  secretary  of  the 
late  land  office  of  Pennsylvania,  and  entered 
in  the  books  of  said  office,  numbered  and  sent 
to  the  surveyor-general's  office.  Act  June 
25,  1781,  I  2.  It  is  often  applied  to  denote 
the  act  of  selecting  and  marking  out  the  line 
upon  which  a  railroad,  canal,  or  highway  is 
to  be  constructed. 

LOCATIVE  CALLS.  Calls  describing 
certain  means  by  which  the  land  to  be  located 
can  be  identified. 

Reference  to  physical  objects  in  entries  and 
deeds,  by  which  the  land  to  be  located  is  ex- 
actly described.   2  Bibb,  Ky.  145  ;  3  id.  414. 

Special,  as  distinguished  from  general,  calls 
or  descriptions.  3  Bibb,  Ky.  414 ;  2  Wheat. 
211  ;  10  id.  463  ;  7  Pet.  171 ;  18  Wend.  N.  Y. 
157;  16  Johns.  N.  Y.  257;  17  id.  29 ;  10  , 
Gratt.  Va.  445  ;  Jones,  Law,  No.  C.  469  ;  16 
Ga.  141 ;  5  Ind.  302 ;  15  Mo.  80  ;  2  Bibb, 
Ky.  118. 

LOCATOR.    In  Civil  Law.    He  who 

leases  or  lets  a  thing  to  hire  to  another. 
His  duties  are,  Jirst,  to  deliver  to  the  hirer 
the  thing  hired,  that  he  may  use  it ;  second,  ' 
to  guarantee  to  the  hirer  the  free  enjoyment 
of  it ;  thii'd,  to  keep  the  thing  hired  in  good 
order  in  such  manner  that  the  hirer  may 
enjoy  it;  fourth,  to  warrant  that  the  thing 
hired  has  not  such  defects  as  to  destroy  its 
use.    Pothier,  Contr.  de  Louage,  n.  53. 

LOCK-UP  HOUSE.   A  place  used  tem- 
porarily as  a  prison. 

LOCO  PARENTIS.    See  In  Loco  Pa- 
rentis. 

LOCUS  CONTRACTUS.   See  Lex 

Loci. 

LOCUS  DELICTI.  The  place  where 
the  tort,  olFence,  or  injury  has  been  com- 
mitted. 

LOCUS  PCENITENTI^  (Lat.  a  place 
of  repentance).  The  opportunity  of  with- 
drawing from  a  projected  contract,  before  the 
parties  are  finally  bound ;  or  of  abandoning 
the  intention  of  committing  a  crime,  before 
it  has  been  completed.  2  Brown,  Ch.  569. 
See  Attempt. 

LOCUS  IN  QUO  (Lat.  the  place  in 
which).  In  Pleading.  The  place  where 
any  thing  is  alleged  to  have  been  done.  1 
Saik.  94. 

LOCUS  REI  SIT^.    See  Lex  Rei 

SiT^:. 

LOCUS  SIGILLI  (Lat.).   The  place  of 
the  seal. 

In  many  of  the  states,  instead  of  sealing 
deeds,  writs,  and  other  papers  or  documents 
requiring  it,  a  scroll  is  made,  in  which  the 


LODGER 


81 


LOST  PAPERS 


letters  L.  S.  are  printed  or  written,  which  is 
an  abbreviation  of  Locus  siyilli.  This,  in 
some  of  the  states,  has  all  the  efficacy  of  a 
seal,  but  in  others  it  has  no  such  effect.  See 
Scroll  ;  Seal. 

LODGER.  One  who  inhabits  a  portion 
of  a  house  of  which  another  has  the  general 
possession  and  custody. 

It  is  difficult,  in  the  present  state  of  the  law,  to 
state  exactly  the  distinctions  between  a  lodger,  a 
guest,  and  a  boarder.  A  person  may  be  a  guest  at 
an  inn  without  being  a  lodger.  1  Salk.  388 ;  9 
Pick.  Mass.  280;  25  Wend.  N.  Y.  653;  5  Sandf. 
N.Y.  242;  16  Ala.  n.  s.  666;  8  Blackf.  Ind.  535; 
14  Barb.  N.  Y.  193 ;  6  C.  B.  132.  And  boarder  in- 
cludes one  who  regularly  takes  his  meals  with,  and 
forms  in  some  degree  a  part  of,  the  householder's 
family.  See  Boarder;  Guest;  25  Eng.  L.  &  Eq. 
76.  A  lodger  does  not  take  meals  in  the  house  as 
lodger;  but  the  duration  of  the  inhabitancy  is  of 
no  importance  as  determining  his  character.  The 
difficulty  in  this  respect  is  in  deciding  whether  a 
person  is  an  under-tenant,  entitled  to  notice  to  quit, 
or  merely  a  lodger,  and  not  entitled  to  such  notice. 
See  Woodfall,  Landl.  &  T.  177 ;  7  Mann.  &  G.  87. 

LODS  ET  RENTES.  A  fine  payable 
to  the  seigneur  upon  every  sale  of  lands  with- 
in his  seigniory.    1  Low.  C.  59. 

Any  transfer  of  lands  for  a  consideration 
gives  rise  to  the  claim,  1  Low.  C.  79 :  as,  the 
creation  of  a  rente  viagire  (life-rent),  1  Low.  C. 
84;  a  transfer  under  hail  emphyteotique,  1 
Low.  C.  295  ;  a  promise  to  sell,  accompanied 
by  transfer  of  possession.  9  Low.  C.  272.  It 
does  not  arise  on  a  transfer  by  a  father  to  his 
son  subject  to  a  payment  by  the  son  of  a  life- 
rent to  the  father,  and  of  the  father's  debts, 
8  Low.  C.  5,  34,  324 ;  nor  where  property  is 
required  for  public  uses.    1  Low.  C.  91. 

LOG-BOOK.  A  ship's  journal.  It  con- 
tains a  minute  account  of  the  ship's  course, 
with  a  short  history  of  every  occurrence  dur- 
ing the  voyage.    1  Marshall,  Ins.  408. 

When  a  log-book  is  required  by  law  to  be 
kept,  it  is  an  official  register  so  far  as  regards 
the  transactions  required  by  law  to  be  entered 
in  it,  but  no  further.  Abbott,  Shipp.  468,  n. 
1 ;  1  Sumn.  C.  C.  373  ;  2  id.  19,  78;  4  Mas. 
C.  C.  544;  1  Esp.  427  ;  1  Dods.  Adm.  9 ;  2 
Hagg.  Eccl.  159 ;  Gilp.  Dist.  Ct.  147. 

In  suits  for  seamen's  wages,  the  log-book  is 
to  be  produced  if  required,  or  otherwise  the 
complainant  may  state  its  contents.  The 
neglect  of  a  seaman  to  render  himself  on 
board,  and  his  absence  without  leave,  are  also 
to  be  entered  on  the  log-book  in  certain  cases, 
or  the  sailor's  fault  will  not  forfeit  his  wages. 
Act  20  July,  1790,  sects.  2,  5,  &  6. 

It  is  the  duty  of  the  mate  to  keep  the  log- 
book. Dana's  Seamen's  Friend,  145,  200. 
See  Brightly's  Dig.  U.  S.  Laws,  Log-Book. 

LOQUELA(Lat.).  In  Practice.  An  im- 
parlance, loquela  sine  die,  a  respite  in  law  to 
an  indefinite  time.  Formerly  by  loquela  was 
meant  the  allegations  of  fact  mutually  made 
on  either  side,  now  denominated  the  plead- 
ings.   Stephen,  Plead.  29. 

LORD'S  DAY.    Sunday.    Coke,  Litt. 
135.    See  Maxims,  Dies  Dominicus. 
Vol.  II.— 6 


LORD  MAYOR'S  COURT.  In  Eng- 
lish Law.  One  of  the  chiel'  courts  ol'  s|ieciju 
and  local  jurisdiction  in  London.  It  is  a 
court  of  the  queen,  held  before  the  lord  mayor 
and  aldermen.  Its  {)ractice  and  procedure 
are  amended  and  its  powers  enlarged  };y  20  & 
21  Vict.  c.  157.  In  this  court,  the  recorder, 
or,  in  his  absence,  the  common  serjeant,  pre- 
sides as  judge  ;  and  from  its  judgments  error 
may  be  brought  in  the  exchequer  chamber. 

3  Stephen,  CViUim.  449,  note  1. 

LOSS.  In  Insurance.  The  destruction 
of  or  damage  to  the  insured  subject  by  the 
perils  insured  against,  according  to  the  ex- 
press provisions  and  construction  of  the  con- 
tract. 

These  accidents,  or  misfortunes,  or  perils,  as  they 
are  usually  denominated,  are  all  distinctly  enume- 
rated in  the  policy.  And  no  lo?s,  however  great  or 
unforeseen,  can  be  a  loss  within  the  policy  unless  it 
be  the  direct  and  immediate  consequence  of  one  or 
more  of  these  perils.    Marshall,  Ins.  1,  c.  12. 

Loss  under  a  life  policy  is  simply  the  death  of 
the  subject  by  a  cause  the  risk  of  which  is  not  ex- 
pressly excepted  in  the  policy,  and  where  the  loss 
is  not  fraudulent,  as  where  one  assured,  who  assures 
the  life  of  another  for  his  own  benefit,  procures  the 
death. 

Loss  in  insurance  against  fire  must,  under  the 
usual  form  of  policy,  be  by  the  partial  or  total 
destruction  or  damage  of  the  thing  insured  by  fire. 

In  maritime  insurance^  in  which  loss  by  fire  is 
one  of  the  risks  usually  included,  the  loss  insured 
against  may  be  absolutely  or  constructively  total, 
or  a  partial  or  general  average  loss,  or  a  particular 
average. 

A  partial  loss  is  any  loss  or  damage  short 
of,  or  not  amounting  to,  a  total  loss ;  for  if  it 
be  not  the  latter  it  must  be  the  former.  See 

4  Mass.  374;  6  id.  102,  122,  317;  12  id.  170, 
288;  8  Johns.  N.Y.  237;  10  id.  m 5  Binn. 
Penn.  595;  2  Serg.  &  R.  Penn.  553. 

A  total  loss  is  such  destruction  of,  or  dam- 
age to,  the  thing  insured  that  it  is  of  little 
or  no  value  to  the  owner. 

Partial  losses  are  sometimes  denominated  average 
losses,  because  they  are  often  in  the  nature  of  those 
losses  which  are  the  subject  of  average  contribu- 
tions; and  they  are  distinguished  into  general  and 
particular  averages.    See  Average. 

Total  losses,  in  maritime  insurance,  are  absolutely 
such  when  the  entire  thing  perishes  or  beet  mes  of 
no  value.  Constructively,  a  loss  may  become  total 
where  the  value  remaining  is  of  such  a  small  amount 
that  the  whole  may  be  surrendered.  See  Aban- 
donment. 

Consult  Phillips,  Arnold,  Insurance;  Par- 
sons, Marit.  Law;  Total  Loss. 

LOST  PAPERS.  Papers  which  have 
been  so  mislaid  that  they  cannot  be  found 
after  diligent  search. 

2.  When  deeds,  wills,  agreements,  and  the 
like,  have  been  lost,  and  it  is  desired  to  prove 
their  contents,  the  party  must  prove  that  he 
has  made  diligent  search,  and  in  good  faith 
exhausted  all  sources  of  information  accessi- 
ble to  him.  For  this  purpose  his  own  affi- 
davit is  sufficient.  1  Atk.  Ch.  446;  1  Green- 
leaf,  Ev.  §  349.  On  being  satisfied  of  this, 
the  court  will  allow  secondary  evidence  to  be 
given  of  its  contents.    See  Evidence. 


LOST,  OR  NOT  LOST  82 


LOUISIANA 


3.  Even  a  will  proved  to  be  lost  may  be 
admitted  to  probate  upon  secondary  evidence. 
1  Greenleaf,  Ev.  2d  ed.  ^  84,  609,  575 ;  2  id. 
§  668  a.  But  the  fact  of  the  loss  must  be 
proved  by  the  clearest  evidence ;  because  it 
may  have  been  destroyed  by  the  testator 
animo  revocandi.  8  Mete.  Mass.  487 ;  2  Add. 
Eccl.  223;  6  Wend.  N.  Y.  173;  1  Hagg. 
Eccl.  115;  3  Pick.  Mass.  67  ;  5  B.  Monr.  Ky. 
58;  2  Curt.  Eccl.  913. 

4.  When  a  bond  or  other  deed  vras  lost, 
formerly  the  obligee  or  plaintiff  was  com- 
pelled to  go  into  equity  to  seek  relief,  because 
there  was  no  remedy  at  law,  the  plaintiff 
being  required  to  make  profert  in  his  declara- 
tion. 1  Chano.  Cas.  77.  But  in  process  of 
time  courts  of  law  dispensed  with  profert  in 
such  cases,  and  thereby  obtained  concurrent 
jurisdiction  with  the  courts  of  chancery:  so 
that  now  the  loss  of  any  paper,  other  than  a 
negotiable  note,  will  not  prevent  the  plaintiff 
from  recovering  at  law,  as  well  as  in  equity. 

3  Atk.  214;  1  Ves.  Ch.  341;  5  id.  235;  6  id. 
812;  7  id.  19;  3  Ves.  &  B.  Ch.  Ir.  54. 

5.  When  a  negotiable  note  has  been  lost, 
equity  alone  will,  in  the  absence  of  statutory 
provisions,  grant  relief.  In  such  case  the 
claimant  must  tender  an  indemnity  to  the 
debtor,  and  file  a  bill  in  chancery  to  compel 
payment.    7  Barnew.  &  C.  90;  Ry.  &  M.  90; 

4  Taunt.  602  ;  2  Ves.  Sen.  Ch.  317  ;  16  Ves. 
Ch.  430. 

LOST,  OR  NOT  LOST.  A  phrase  in 
policies  of  insurance,  signifying  the  contract 
to  be  retrospective  and  applicable  to  any  loss 
within  the  specified  risk,  provided  the  same 
is  not  already  known  to  either  of  the  parties, 
and  that  neither  has  any  knowledge  or  in- 
formation not  equally  obvious  or  known  to 
the  other.  The  clause  has  been  adopted  only 
in  maritime  insurance ;  though  a  fire  or  life 
policy  is  not  unfrequently  retrospect,  or,  under 
a  different  phraseology,  by  a  provision  that 
the  risk  is  to  commence  at  some  time  prior  to 
its  date.    1  Phillips,  Ins.  I  925. 

LOT.  That  which  fortuitously  determines 
what  we  are  to  acquire. 

When  it  can  be  certainly  known  what  are  our 
rights,  we  ought  never  to  resort  to  a  decision  by  lot; 
but  when  it  is  impossible  to  tell  what  actually  be- 
long to  us,  as  if  an  estate  is  divided  into  three  parts 
and  one  part  given  to  each  of  three  persons,  the 
proper  way  to  a:?certain  each  one's  part  is  to  draw 
lots.    AVolff,  Dr.  etc.  de  la  Nat.  g  669. 

LOT  OF  GROUND.  A  small  piece  of 
land  in  a  town  or  city,  usually  employed  for 
building,  a  yard,  a  garden,  or  such  other 
urban  use.  Lots  are  in-lots,  or  those  within 
the  Ijouudary  of  the  city  or  town,  and  out-lots, 
those  which  are  out  of  such  boundary  and 
which  are  used  by  some  of  the  inhabitants  of 
such  town  or  city. 

LOTTERY.  A  scheme  for  the  distribu- 
tion of  prizes  by  chance.  The  American  Art 
Union  IS  a  lottery,  8  N.  Y.  228,  240 ;  and  so 
is  a  gift-sale  of  books.    33  N.  H.  329. 

*Z,  In  most,  if  not  all,  of  the  United  States, 
lott^.'ries  not  specially  authorized  by  the  legis- 
latures of  the  respective  states  are  prohibited, 


and  the  persons  concerned  in  establishing 
them  are  subjected  to  a  heavy  penalty.  This 
is  the  case  in  Alabama,  Connecticut,  Dela- 
ware, Georgia,  Kentucky,  Maryland,  Massa- 
chusetts, Mississippi,  New  York,  Ohio,  Penn- 
sylvania, Rhode  Island,  Tennessee,  Vermont, 
and  Virginia.  In  Louisiana,  a  license  is 
granted  to  sell  tickets  in  a  lottery  not  author- 
ized by  the  legislature  of  that  state,  on  the 
payment  of  five  thousand  dollars,  and  the 
license  extends  only  to  one  lottery.  In  many 
of  the  states,  the  lotteries  authorized  by  other 
states  are  absolutely  prohibited.  Encyc. 
Amer. 

LOUISIANA.  The  name  of  one  of  the 
new  states  of  the  United  States  of  America. 

2.  It  covers  a  part  of  the  territory  ceded  by 
France  to  the  United  States  by  the  treaty  of  the 
13th  April,  1803.  It  was  admitted  into  the  Union 
by  an  act  of  congress  approved  on  the  8th  April, 
1812,  with  the  following  limits :  beginning  at  the 
mouth  of  the  river  Sabine,  thence  by  a  line  to  be 
drawn  along  the  middle  of  said  river,  including  all 
islands,  to  the  thirty-second  degree  of  latitude; 
thence  due  north  to  the  northernmost  part  of  the 
thirty-third  degree  of  north  latitude;  thence  along 
the  said  parallel  of  latitude  to  the  river  Mississippi; 
thence  down  the  said  river  to  the  river  Iberville ;  and 
from  thence  along  the  middle  of  said  river  to  lakes 
Maurepasand  Pontehartrain,to  the  Gulf  of  Mexico; 
thence,  bounded  by  said  gulf,  to  the  place  of  be- 
ginning, including  all  islands  within  three  leagues 
of  the  coast.  These  limits  were  enlarged  by  virtue 
of  an  act  of  congress,  with  the  consent  of  the  legis- 
lature of  the  state,  approved  on  the  14th  April, 
1812,  by  adding  all  that  tract  of  country  compre- 
hended within  the  following  bounds,  to  wit:  be- 
ginning with  the  junction  of  the  Iberville  with  the 
river  Mississippi,  thence  along  the  middle  of  the 
Iberville,  the  river  Amite,  and  the  lakes  Maurepas 
and  Pontchartrain,  to  the  eastern  mouth  of  the 
Pearl  river;  thence  np  the  eastern  branch  of  Pearl 
river  to  the  thirty -lirst  degree  of  north  latitude; 
thence  along  the  said  degree  of  latitude  to  the  river 
Mississippi ;  thence  down  the  said  river  to  the  place 
of  beginning.  The  territory  thus  added  to  the 
limits  of  the  state  had,  up  to  that  time,  bten  sub- 
ject to  the  dominion  of  Spain,  and  the  parishes 
into  which  it  has  been  divided  are,  for  this  reason, 
still  called,  in  popular  language,  "  the  Florida 
parishes." 

3.  The  first  constitution  of  the  state  was  adopted 
on  the  22d  January,  1812,  and  was  substantially 
copied  from  the  constitution  of  Kentucky.  This 
constitution  was  superseded  by  that  of  1845,  which 
was  in  its  turn  replaced  by  that  adopted  on  the  31st 
July,  1852,  now  in  force. 

Every  free  white  male  citizen  of  the  United 
States,  who  is  twenty-one  years  old  or  more,  who 
has  been  a  resident  of  the  state  for  twelve  months 
and  of  the  district  in  which  he  offers  to  vote  six 
months,  is  a  voter,  and  is  privileged  from  arrest, 
except  for  treason,  felony,  or  breach  of  the  peace, 
while  going  to  or  returning  from  the  place  of 
election. 

The  Legislative  Power. 
This  is  lodged  in  a  Senate  and  House  of  Repre- 
sentatives, together  constituting  the  General  As- 
sembly. 

The  Senate  is  composed  of  thirty-two  members, 
elected  one  from  each  of  the  districts  into  which 
the  state  is  divided,  by  the  people  of  the  district, 
for  the  term  of  two  years.  A  senator  must  be  an 
elector,  and  a  meniber  of  the  district  for  which  ho 
is  chosen. 

The  House  of  Repreaentativet  ifi  to  be  composed 


LOUISIANA 


83 


LUCID  INTERVALS 


of  not  more  than  one  hundred  nor  less  than  seventy 
members  chosen  by  the  people  for  the  term  of  two 
years,  with  provision  that  they  shall  be  appor- 
tioned according  to  population,  and  that  a  new 
apportionment  shall  be  made  in  18G3. 

The  Executive  Power. 

4,  Tlxe  Governor  is  elected  by  the  people,  for  four 
years.  If  two  persons  have  an  equal  and  the 
highest  number  of  votes,  the  selection  is  to  be  made 
between  these  by  a  joint  vote  of  the  general  assem- 
bly, lie  must  be  twenty-eight  years  old  at  least, 
and  a  citizen  and  resident  within  the  state  for  four 
years  next  before  the  election.  He  is  ineligible  for 
the  succeeding  term.  He  is  commander-in-chief  of 
the  army  and  navy  and  militia  of  the  state,  except 
when  called  into  the  service  of  the  United  States ; 
is  to  take  care  that  the  laws  be  faithfully  executed; 
must  give  to  the  general  assembly  information  re- 
specting the  situation  of  the  state,  and  recommend 
such  measures  as  he  may  deem  expedient;  has 
power  to  grant  reprieves  for  all  offences  against 
the  state ;  with  the  consent  of  the  senate,  has 
power  to  grant  pardons,  and  remit  fines  and  forfeit- 
ures, after  conviction,  except  in  cases  of  impeach- 
ment; in  cases  of  treason,  may  grant  reprieves 
until  the  end  of  the  next  ses^iim  of  the  general 
assembly,  in  which  the  pardoning  power  is  vested; 
is  to  nominate,  and,  by  and  with  the  advice  and 
consent  of  the  senate,  appoint,  all  officers  esta- 
blished by  the  constitution,  whose  mode  of  appoint- 
ment is  not  otherwise  prescribed  by  the  constitution, 
nor  by  the  legislature;  has  power  to  fill  vacancies 
during  the  recess  of  the  senate,  provided  he  ap- 
point no  one  whom  the  senate  has  rejected  for  the 
same  office;  may,  on  extraordinary  occasions,  con- 
vene the  general  assembly  at  the  seat  of  govern- 
ment, or  at  a  different  place,  if  that  should  have 
become  dangerous  from  an  enemy  or  from  an  epi- 
demic, and  in  case  of  disagreement  between  the 
two  houses  as  to  the  time  of  adjournment,  may  ad- 
journ them  to  such  time  as  he  may  think  proper, 
not  exceeding  four  months.  He  has  the  veto  power, 
but  must  return  the  bill  vetoed  with  his  objections, 
and  it  may  still  become  a  law  by  vote  of  two-thirds 
of  the  members  of  each  house.    Const,  tit,  iii. 

5.  The  Lieutenant-Governor  is  elected  by  the 
people  at  the  same  time,  for  the  same  term,  and 
must  possess  the  same  qualifications,  as  the  governor. 
He  is  president  of  the  senate  by  virtue  of  his  office, 
and  has  the  casting  vote.  In  case  of  the  incapacity 
of  the  governor,  his  death,  removal  from  ofl[ice, 
resignation,  or  absence  from  the  state,  refusal  or 
inability  to  qualify,  he  is  to  act  as  governor. 

The  Secretary  of  State  is  elected  by  the  people 
for  the  term  of  four  years. 

The  Treasurer  is  elected  by  the  people  for  the 
term  of  two  years. 

The  Judicial  Power. 
The  Supreme  Court  consists  of  a  chief-justice, 
elected  by  the  people  of  the  state  at  large  for  the 
term  of  ten  years,  and  four  associate  justices,  elected, 
one  in  each  of  the  four  districts  into  which  the 
state  is  divided,  for  the  term  of  eight  years.  The 
associate  justices  are  so  classified  that  one  goes  out 
of  office  every  two  years.  It  has  appellate  juris- 
diction of  all  civil  cases  where  the  amount  in  dis- 
pute is  more  than  three  hundred  dollars,  or  where 
the  coiistitutioftality  of  any  duty,  tax,  or  impost, 
or  any  fine,  penalty,  or  forfeiture  imposed  by  a 
municipal  court,  is  brought  in  question;  and  in 
criminal  cases  where  the  punishment  is  death,  im- 
prisonment at  hard  labor,  or  a  fine  exceeding  three 
hundred  dollars.  Its  civil  remedial  jurisdiction 
extends  both  to  law  and  fact,  and  it  may  reverse 
the  verdict  of  a  jury,  and  render  a  final  decree  in 
opposition  to  the  finding  of  the  jury.  In  criminal 
cases  It  corrects  errors  of  law  only.  It  has  only  an 
appellate  jurisdiction,  but  may  issue  the  writ  of 


habeas  corpus.  It  holds  one  term  annually  in  each 
district, 

a.  The  District  Court  is  composed  of  one  judge 
elected  in  each  of  the  eighteen  districts  (except  the 
first)  into  which  the  state  is  divided  for  the  pur- 
pose, by  the  people  of  the  district,  for  the  term  of 
four  years.  The  city  and  parish  of  IS^'ew  Orleans 
constitutes  the  first  district,  but  has  six  district 
judges.  It  has  jurisdiction  of  all  civil  canes  what- 
ever in  which  the  amount  involved  is  over  fifty 
dollars,  in  all  criminal  cases,  and  in  all  matters  of 
successions.  Jury  and  probate  terms  are  he  d 
separately.  The  districts  are  never  to  be  loss  than 
twelve  nor  more  than  twenty  in  number,  and  sub- 
ject to  reorganization  every  sixth  year. 

Justices  of  the  Peace  are  elected  one  or  more 
from  each  police-jury  ward,  into  which  the  several 
parishes  of  the  state  are  divided,  for  the  term  of 
two  years.  They  have  civil  jurisdiction  whi  re  the 
amount  in  dispute  docs  not  exceed  one  hundred 
dollars,  and  where  the  defcndent  resides  within 
their  section.  They  may  perform  marriages  ;  take 
cognizance  of  infractions  of  the  levee  laws,  where 
the  penalty  is  not  over  one  hundred  dollars;  may 
disperse  runaway  slaves,  search  for  stolen  goods, 
and  arrest  slaves  suspected  of  any  crime  whatever; 
take  cognizance  of  proceedings  under  the  landlord 
and  tenant  process. 

Jurisprudence. 
This  state  is  the  only  one  of  the  United  States  in 
which  the  civil  law,  in  contradistinction  to  the 
common  law  of  England,  prevails.  The  code  of 
Louisiana  is  founded  on  the  Code  Napoleon,  with 
some  modifications  introduced  from  Spanish  law, 
and,  through  these,  upon  the  Roman  law.  See 
Code. 

LOW- WATER  MARK.  That  part  of 
the  shore  of  the  sea  to  which  the  waters  re- 
cede when  the  tide  is  lowest.  See  High- 
Water  Mark  ;  River  ;  Sea-Shore  ;  Dane, 
Abr,;  1  Ilalst.  Ch.  N.  J.  1. 

LOYAL.  Legal,  or  according  to  law:  as, 
loyal  matrimony,  a  lawful  marriage. 

"  Uncore  n'est  loyal  a  homme  de  faire  un  tort"  (it 
is  never  lawful  for  a  man  to  do  a  wrong).  Dyer,  fol. 
36,  ^  .38.  "  Et  2Jer  curiam  n'est  loyal"  (and  it  was 
held  by  the  court  that  it  was  not  lawful),  T.  Jones, 
24.  Also  spelled  loayl.  Dy.  36,  ^  38;  Law  Fr.  & 
Lat.  Diet.  The  Norman  spelling  is  "  loyse."  Kelh. 
Norm.  Diet. 

Faithful  to  a  prince  or  superior ;  true  to 
plighted  faith  or  duty.    Webster,  Diet, 

LOYALTY.  Adherence  to  law.  Faith- 
fulness to  the  existing  government. 

LUCID  INTERVALS.  In  Medical 
Jurisprudence.  Periods  in  which  an  in- 
sane person  is  so  far  free  from  his  diseas^e 
that  the  ordinary  legal  consequences  of  in- 
sanity do  not  apply  to  acts  done  therein, 

3.  Correct  notions  respecting  the  lucid  interval 
are  no  less  necessary  than  correct  notions  respect- 
ing the  disease  itself.    By  the  earlier  writers  on 
insanity,  lucid  intervals  were  regarded  as  a  far 
more  common  event  than  they  have  been  found  to 
be  in  recent  times.    They  were  also  supposed  to  be 
characterized  by  a  degree  of  mental  clearness  and 
j  vigor  not  often  witnessed  now.    These  views  of 
I  medical  writers  were  shared  by  distinguished  legal 
I  authorities,  by  whom  the  lucid  interval  was  de- 
scribed as  a  complete,  though  temporary,  restora- 
j  tion.    D'Aguesseau,  in  his  pleading  in  the  case  of 
the  Abbe  d'Orleans,  says.  "  It  must  not  be  a  su- 
I  perficial  tranquillity,  a  shadow  of  repose,  but,  on 
the  contrary,  a  profound  tranquillity,  a  real  repose; 


LUCID  INTERVALS 


84  LUCRATIVE  SUCCESSION 


it  must  not  be  a  mere  ray  of  reason,  which  makes 
its  absence  more  apparent  when  it  is  gone, — not  a 
flash  of  lightning,  which  pierces  through  the  dark- 
ness only  to  render  it  more  gloomy  and  dismal, — 
not  a  glimmering  which  joins  the  night  to  the  day, — 
but  a  perfect  light,  a  lively  and  continued  lustre, 
a  full  and  entire  day  interposed  between  the  two 
separate  nights  of  the  fury  which  precedes  and  fol- 
lows it;  and,  to  use  another  image,  it  is  not  a  de- 
ceitful and  faithless  stillness  which  follows  or  fore- 
bodes a  storm,  but  a  sure  and  steadfast  tranquillity 
for  a  time,  a  real  calm,  a  perlect  serenity.  In  fine, 
without  looking  for  so  many  metaphors  to  repre- 
sent our  idea,  it  must  not  be  a  mere  diminution,  a 
remission  of  the  complaint,  but  a  kind  of  temporary 
cure,  an  intermission  so  clearly  marked  as  in  every 
respect  to  resemble  the  restoration  of  health." 
Pothier,  Obi.  Evans  ed.  579.  So  Lord  Thurlow  says, 
by  a  perfect  interval,  "  I  do  not  mean  a  cooler  mo- 
ment, an  abatement  of  pain  or  violence  or  of  a 
higher  state  of  torture, — a  mind  relieved  from  ex- 
cessive pressure ;  but  an  interval  in  which  the  mind, 
having  thrown  off  the  disease,  had  recovered  its 
general  habit."  3  Brown,  Ch.  234.  That  there 
sometimes  occurs  an  intermission  in  which  the  per- 
son appears  to  be  perfectly  rational,  restored,  in 
fact,  to  his  proper  self,  is  an  unquestionable  fact. 
It  is  equally  true  that  they  are  of  rare  occurrence, 
that  they  continue  but  for  a  very  brief  period,  and 
that  with  the  apparent  clearness  there  is  a  real 
loss  of  mental  force  and  acuteness.  In  most  cases 
of  insanity  there  may  be  observed,  from  time  to 
time,  a  remission  of  the  symptoms,  in  which  ex- 
citement and  violence  are  replaced  by  quiet  and 
calm,  and,  within  a  certain  range,  the  patient  con- 
verses correctly  and  properly.  A  superficial  ob- 
server might  be  able  to  detect  no  trace  of  disease ; 
but  a  little  further  examination  would  show  a 
confusion  of  ideas  and  singularity  of  behavior,  in- 
dicative of  serious,  though  latent,  disease.  In  this 
condition  the  patient  may  hold  some  correct  no- 
tions, even  on  a  matter  of  business,  and  yet  be 
quite  incompetent  to  embrace  all  the  relations  con- 
nected with  a  contract  or  a  will,  even  though  no 
delusion  were  present  to  warp  his  judgment.  The 
revelations  of  patients  after  recovery  furnish  in- 
dubitable proof  that  during  this  remission  of  the 
symptoms  the  mind  is  in  a  state  of  confusion  ut- 
terly unreliable  for  any  business  purpose.  Georget, 
Des  Mai.  Men.  46;  Reid,  Essays  on  Hypochondri- 
acal Affections,  21  Essay;  Combe,  Men.  Derang. 
241 ;  Ray,  Med.  Jur.  376. 

3.  Of  late  years — whatever  may  have  been  the 
earlier  practice  —  courts  have  not  required  that 
proof  of  a  lucid  interval  which  consists  of  complete 
restoration  of  reason,  as  described  above.  They 
have  been  satisfied  with  such  proof  as  was  furnished 
by  the  transaction  in  question.  They  cared  less  to 
consider  the  general  state  of  mind  than  its  special 
manifestations  on  a  particular  occasion.  In  1  Phill. 
Lect.  90,  the  court  said,  "  I  think  the  strongest 
and  best  proof  that  can  arise  as  to  a  luciil  interval 
is  that  which  arises  from  the  act  itself;"  if  that  "is 
a  rational  act,  rationally  done,  the  whole  case  is 
proved;"  "if  she  could  converse  rationally,  that  is 
a  lucid  interval."  Proctor,  2  (,'arr.  &  P.  415.  This 
is  a  mere  begging  of  the  question,  which  is  whether 
the  act  so  rational  and  so  rationally  done  —  and 
not  for  that  reason  necessarily  incompatible  with 
insanity — was  or  was  not  done  in  a  lucid  interval. 
Persons  very  insane,  violent,  and  full  of  delusions 
frequently  do  and  say  things  evincing  no  mark  of 
disease,  while  no  one  supposes  that  there  is  any 
lucid  interval  in  the  case.  Correcter  views  pre- 
vailed in  2  Ilagg.  433,  where  the  court  pronounced 
against  two  wills  which  showed  no  trace  of  folly, 
because  the  testator  had  been  confessedly  so  insane 
•IS  to  require  an  attendant  from  an  asylum,  until 
vithin  a  few  months  of  the  date  of  the  last  will,  and 


had  manifested  delusions  during  the  ]  criod  that 
intervened  between  the  two  wills  in  qiiestioii.  "It 
is  clear,"  said  the  court,  "  that  person*  essentially 
insane  may  be  calm,  may  do  acts,  hold  conversa- 
tions, and  even  pass  in  general  society,  as  perfectly 
sane.  It  often  requires  close  examination  by  per- 
sons skilled  in  the  disorder,  to  discover  and  ascer- 
tain whether  or  not  the  mental  derangement  is 
removed  and  the  mind  become  again  perfectly 
sound.  Where  there  is  calmness,  where  there  is 
rationality  on  ordinary  subjects,  those  who  see  the 
party  usually  conclude  that  his  recovery  is  perfect. 
.  .  .  When  there  is  not  actual  recovery,  and  a 
return  to  the  management  of  himself  and  his  con- 
cerns by  the  unfortunate  individual,  the  proof  of 
a  lucid  interval  is  extremely  difiicult." 

4,  In  criminal  cases,  the  proof  of  a  lucid  interval 
must  be  still  more  difiicult,  in  the  very  nature  of 
the  case.  For  although  the  mental  manifestations 
may  be  perfectly  right,  it  cannot  be  supposed  that 
the  brain  has  resumed  its  normal  condition.  In 
its  outward  expression,  insanity,  like  many  other 
nervous  diseases,  is  characterized  by  a  certain  peri- 
odicity, whereby  the  prominent  symptoms  disappear 
for  a  time,  only  to  return  again  within  a  very 
limited  period.  An  epileptic,  in  the  intervals  be- 
tween his  fits,  may  evince  to  the  closest  observer  not 
a  single  trace  of  mental  or  bodily  disease;  and  yet, 
for  all  that,  nobody  supposes  that  he  has  recovered 
from  his  malady.  No  more  does  a  lucid  interval 
in  a  case  of  insanity  imply  that  the  disease  has  dis- 
appeared because  its  outward  manifestations  have 
ceased.  There  unquestionably  remains  an  abnor- 
mal condition  of  the  brain,  by  whatever  name  it 
may  be  called,  whereby  the  power  of  the  mind  to 
sustain  provocations,  to  resist  temptations,  or  with- 
stand any  other  causes  of  excitement,  is  greatly 
weakened. 

Lucid  intervals,  properly  so  called,  should  not  be 
confounded  with  tho>e  periods  of  apparent  recovery 
which  occur  between  two  successive  attacks  of 
mental  disease,  nor  with  those  transitions  from  one 
phasis  of  insanity  to  another,  in  which  the  indi- 
vidual seems  to  be  in  his  natural  condition.  They 
may  not  be  essentially  different,  but  the  suddenness 
and  brevity  of  the  former  would  be  likely  to  impart 
to  an  act  a  moral  complexion  very  different  from 
that  which  it  would  bear  if  performed  in  the  larger 
and  more  indefinite  intermissions  of  the  latter. 
Still,  great  forbearance  should  be  exercised  towards 
persons  committing  criminal  acts  while  in  any  of 
these  equivocal  conditions.  Those  who  have  suf- 
fered repealed  attacks  of  mental  disease  habitually 
labor  under  a  degree  of  nervous  irritability,  which 
renders  them  peculiarly  susceptible  to  many  of 
those  incidents  and  influences  which  lead  to  crime. 
The  law  may  make  no  distinction,  but  executive 
and  judicial  tribunals  are  generally  intrusted  with 
discretionary  powers,  whei-eby  they  are  enabled  to 

I  apportion  the  punishment  according  to  the  moral 
guilt  of  the  party.    Ray,  Med.  Jur.  chap.  Lnc.  Int. 

It  is  the  duty  of  the  party  who  contends  for  a 
lucid  interval,  to  prove  it;  for  a  person  once  insane 
is  presumed  so,  until  it  is  shown  that  he  had  a 
lucid  interval,  or  has  recovered,  Swinb.  77;  Coke, 
Litt.  185,  n.;  3  Brown,  Ch.  443;  1  Const.  So.  C. 
225;  1  Pet.  163;  1  Litt.  Ky.  102;  and  yet,  on  the 
trial  of  Hadficld,  whose  insanity,  both  before  and 
after  the  act,  was  admitted,  the  court,  Lord  Kenyon, 
said  that  "were  they  to  run  into  nicety,  proof 

'  might  be  demanded  of  his  insanity  at  the  precise 
moment  when  the  act  was  committed."  See  In- 
sanity. 

LUCRATIVE  SUCCESSION.  In 
Scotch  Law.  The  passive  title  oi' ])7'ceceptio 
hamditatis,  hy  which,  if  an  heir  apparer^t 
receive  gratuitously  a  part,  however  small,  of 
the  heritage  which  would  come  to  him  as  heir, 


LUCRI  CAUSA 


85 


MACEDONIAN  DECREE 


he  is  liable  for  all  grantor's  precontracted 
debts.  Erskine,  Inst.  3.  8.  87-89;  Stair, 
Inst.  3.  7. 

LUCRI  CAUSA  (Lat.  for  the  sake  of 
gain).  In  Criminal  Law.  A  term  descrip- 
tive of  the  intent  with  which  property  is 
taken  in  cases  of  larceny. 

According  to  the  tenor  of  the  latest  authori- 
ties, lucri  causa  would  appear  to  be  imma- 
terial ;  though,  in  recent  cases,  judges  have 
sometimes  thought  it  advisable  not  to  deny, 
but  rather  to  confess  and  avoid  it,  however 
sophistically.  The  prisoner,  a  servant  of  A, 
applied  for,  and  received,  at  the  post-office, 
all  A's  letters,  and  delivered  them  to  A,  with 
the  exception  of  one,  which  the  prisoner  de- 
stroyed in  the  hope  of  suppressing  inquiries 
respecting  her  character.  This  was  held  to 
be  a  larceny;  "for,  supposing  that  it  was  a 
necessary  ingredient  in  that  crime  that  it 
should  be  done  hicri  causa  (which  was  not 
admitted),  there  w^ere  sufficient  advantages 
to  be  obtained  by  the  prisoner  in  making 
away  with  the  written  character."  1  Den. 
Cr.  Cas.  180.  In  a  case  where  some  servants 
in  husbandry  had  the  care  of  their  master's 
team,  they  entered  his  granary  by  means  of 
a  false  key,  and- took  out  of  it  two  bushels  of 
beans,  which  they  gave  to  his  horses.  Of 
eleven  judges,  three  were  of  opinion  that 
there  was  no  felony.  Of  the  eight  judges 
who  were  for  a  conviction,  some  (it  is  not 
stated  how  many)  alleged  that  by  the  better 
feeding  of  the  horses  the  men's  labor  w^as 
lessened,  so  that  they  took  the  beans  to  give 
themselves  ease, — which  was,  constructively, 
at  least,  lucri  causa.  Russ.  &  R.  307.  When 
a  similar  case  afterwards  came  to  be  decided 
by  the  judges,  it  was  said  to  be  no  longer  res 
Integra.  1  Den.  Cr.  Cas.  193.  The  rule  with 
regard  to  the  lucri  causa  is  stated  by  the 
English  criminal  law  commissioners  in  the 
following  terms:  "The  ulterior  motive  by 
which  the  taker  is  influenced  in  depriving  the 
owner  of  his  property  altogether,  w^hether  it 
is  to  benefit  himself  or  another,  or  to  injure 
any  one  by  the  taking,  is  immaterial."  Coke, 


17.  In  this  country,  these  cases  have  not  been 
considered  as  authority.  18  Ala.  401.  See 
10  Miss.  401;  10  Ala.  n.  s.  814;  3  Strobh. 
So.  C.  508  ;  1  Carr.  &  K.  532 ;  Carr.  &  M. 
547;  Inst.  lib.  4,  t.  1,  ^  1. 

LUCRUM  CESSANS.  In  Scotch 
Law.  A  cessation  of  gain.  Opposed  to 
durnnum  emergens,  an  actual  loss. 

LUGGAGE.  Such  articles  of  personal 
comfort  and  convenience  as  travellers  usually 
find  it  desirable  to  carry  with  them.  This 
term  is  synonymous  with  baggage :  the  latter 
being  in  more  common  use  in  this  C(juntry, 
while  the  former  seems  to  be  almost  exclu- 
sively used  in  England.    See  Baggage. 

LUNACY.    See  Insanity. 

LUNAR.  Belonging  to  or  measured  by 
the  moon. 

LUNATIC.  One  who  is  insane.  See 
Insanity. 

LYEF-GELD.  In  Saxon  Law.  Leave- 
money.  A  small  sum  paid  by  customary 
tenant  for  leave  to  plough,  etc.  Cowel ;  Somn. 
on  Gavelk.  p.  27. 

LYING  IN  GRANT.  Incorporeal 
rights  and  things  which  cannot  be  transf  erred 
by  livery  of  possession,  but  which  exist  only 
in  idea,  in  contemplation  of  law,  are  said  to 
lie  in  grant,  and  pass  by  the  mere  delivery 
of  the  deed.  See  Grant  ;  Livery  or  Seisin  ; 
Seisin. 

LYING  IN  WAIT.  Being  in  ambush 
for  the  purpose  of  murdering  another. 

Lying  in  wait  is  evidence  of  deliberation 
and  intention.  Where  murder  is  divided  into 
degrees,  as  in  Pennsylvania,  lying  in  wait  is 
such  evidence  of  malice  that  it  makes  the  kill- 
ing, when  it  takes  place,  murder  in  the  first 
degree.    See  Dane,  Abr.  Index. 

LYNCH-L AW.  A  common  phrase  used 
to  express  the  vengeance  of  a  mob  inflicting 
an  injury  and  committing  an  outrage  upon  a 
person  suspected  of  some  oifence.  In  Eng- 
land this  is  called  Lidford  Law. 


M. 


M.    The  thirteenth  letter  of  the  alphabet. 

Persons  convicted  of  manslaughter,  in  Eng- 
land, were  formerly  marked  with  this  letter 
on  the  brawn  of  the  thumb. 

This  letter  is  sometimes  put  on  the  face  of 
treasury  notes  of  the  United  States,  and  sig- 
nifies that  the  treasury  note  bears  interest  at 
the  rate  of  one  mill  per  centum,  and  not  one 
per  centum  interest.    13  Pet.  176. 

MACE-BEARER.  In  EngUsh  Law. 
An  officer  attending  the  court  of  session. 


MACEDONIAN  DECREE.  In 
Roman  Law.  A  decree  of  the  Roman  sen- 
ate, which  derived  its  name  from  that  of  a 
certain  usurer,  \vho  was  the  cause  of  its  being 
made,  in  consequence  of  his  exactions. 

It  was  intended  to  protect  sons  who  lived 
under  the  paternal  jurisdiction  from  the  un- 
conscionable contracts  which  they  sometimes 
made  on  the  expectations  after  their  fathers' 
deaths ;  another,  and  perhaps  the  principal, 
object,  was  to  cast  odium  on  the  rapacious 


MACHINATIOJ^ 


86 


MAGNA  CIIARTA 


creditors.  It  declared  such  contracts  void. 
Dig.  14.  6.1;  Domat,  Lois  Civ.  liv.  1,  tit.  6, 
§  4 ;  Fonblanque,  Eq.  b.  1,  c.  2,  ^  12,  note. 
See  Catching  Bargain  ;  Post  Obit. 

MACHINATION.  The  act  by  which 
some  plot  or  conspiracy  is  set  on  foot. 

MACHINE.    In  Patent  Law.  Any 

contrivance  which  is  used  to  regulate  or 
modify  the  relations  between  force,  motion, 
and  weight. 

In  its  broadest  signification,  this  term  is  applied 
to  any  contrivance  which  is  used  to  regulate  pr 
modify  the  relations  between  force,  motion,  and 
weight.  "The  term  machine  includes  every  me- 
chanical device  or  combination  of  mechanical 
powers  and  devices  to  perform  some  function  and 
produce  a  certain  eflfect  or  result."    15  How.  267. 

What  are  sometimes  called  the  simple 
machines  are  six  in  number :  the  lever,  the 
pulley,  the  wheel  and  axle,  the  wedge,  the 
screw,  and  the  inclined  plane.  These  are 
sometimes  known  as  the  mechanical  powers, 
though  neither  these  nor  any  other  machi- 
nery can  ever  constitute  or  create  power. 
They  can  only  economize,  control,  direct,  and 
render  it  useful.  ^ 

Machines,  as  "generally  seen  and  under- 
stood, are  compounded  of  these  simple  ma- 
chines in  some  of  their  shapes  and  modifi- 
cations. Such  a  combination  as,  when  in 
operation,  will  produce  some  specific  final 
result,  is  regarded  as  an  entire  machine.  It 
is  so  treated  in  the  patent  law ;  for,  although 
a  new  machine,  or  a  new  improvement  of  a 
machine,  is  an  invention,  and  although  only 
one  invention  can  be  included  in  a  single 
patent,  still,  several  difi'erent  contrivances 
each  of  which  is  in  one  sense  a  machine 
may  all  be  separately  claimed  in  a  single 
patent,  provided  they  all  contribute  to  im- 
prove or  to  constitute  one  machine  and  are 
intended  to  produce  a  single  ultimate  result; 
and  a  new  combination  of  machines  is  patent- 
able whether  the  machines  themselves  be 
new  or  old.  3  Wash.  C.  C.  69  ;  1  Stor.  C.  C. 
273,  568  ;  2  id.  609 ;  1  Mas.  C.  C.  474 ;  1  Sumn. 
C.  C.  482;  3  Wheat.  454. 

MADE  KNOWN.  Words  used  as  a 
return  to  a  scire  facias  when  it  has  been 
served  on  the  defendant. 

MAGISTER  (Lat.).  A  master;  a  ruler; 
one  whose  learning  and  position  make  him 
guperior  to  others:  thus,  one  who  has  at- 
tained to  a  high  degree  or  eminence  in  science 
and  literature  is  called  a  master :  as,  master 
of  arts. 

MAGISTER   AD  FACULTATES 

(Lilt.).  In  English  Ecclesiastical  Law.  The 

title  of  an  officer  who  grants  dispensations :  as, 
to  marry,  to  eat  flesh  on  days  prohibited,  and 
the  like.    Bacon,  Abr.  Eccles.  Courts  (A  5). 

MAGISTER  NAVIS  (Lat.).  In  Civil 
Law.  Master  of  a  ship;  he  to  whom  the 
whole  care  of  a  ship  is  given  up,  whether  ap- 
pointed by  the  owner,  or  charterer,  or  mas- 
ter. L.  1,  ff.  f/e  exerc/V. ;  Idem,  g  3;  Calvinus, 
Lex. ;  Story,  Ag.  I  36. 


MAGISTER  SOCIETATIS  (Lat.).  In 
Civil  Law.  Managing  partner.  Vicat,  Voc, 
J  nr.;  Calvinus,  Lex.  Especially  used  of  an 
officer  employed  in  the  business  of  collecting 
revenues,  who  had  power  to  call  together  the 
tything-men  {decumands),  as  it  were  a  senate, 
and  lay  matters  before  them,  and  keep  ac- 
count of  all  receipts,  etc.  He  had,  generally, 
an  agent  in  the  province,  wlio  was  also  some- 
times called  magister  societatis.  Id.;  Story, 
Partn.  |  95. 

MAGISTRACY.  In  its  most  enlarged 
signification,  thi^  term  includes  all  officers, 
legislative,  executive,  and  judicial.  For  ex- 
ample, in  most  of  the  state  constitutions  will 
be  found  this  provision  :  "  the  powers  of  the 
government  are  divided  into  three  distinct 
d.epartments,  and  each  of  these  is  confided  to 
a  separate  magistracy,  to  wit:  those  which 
are  legislative,  to  one ;  those  which  are  ex- 
ecutive, to  another ;  and  those  which  are 
judiciary,  to  another."  In  a  more  confined 
sense,  it  signifies  the  body  of  officers  whose 
duty  it  is  to  put  the  laws  in  force:  as, judges, 
justices  of  the  peace,  and  the  like.  In  a 
still  narrower  sense,  it  is  employed  to  desig- 
nate the  body  of  justices  of  the  peace.  It  is 
also  used  for  the  office  of  a  magistrate. 

MAGISTRALIA  BREVIA  (Lat.). 
Writs  adapted  to  special  cases,  and  so  called 
because  drawn  by  tlie  masters  in  chancery.  1 
Spence,  Eq.  Jur.  239.  For  the  difference  be- 
tween these  and  judicial  writs,  see  Bracton, 
413  6. 

MAGISTRATE.  A  public  civil  officer, 
invested  with  some  part  of  the  legislative, 
executive,  or  judicial  power  given  by  the  con- 
stitution. In  a  narrower  sense  this  term  in- 
cludes only  inferior  judicial  officers,  as  justices 
of  the  peace. 

The  president  of  the  United  States  is  the 
chief  magistrate  of  this  nation ;  the  gov- 
ernors are  the  chief  magistrates  of  their  re- 
spective states. 

It  is  the  duty  of  all  magistrates  to  exercise 
the  power,  vested  in  them  for  the  good  of  the 
people,  according  to  law,  and  with  zeal  and 
fidelity.  A  neglect  on  the  part  of  a  magis- 
trate to  exercise  the  functions  of  his  office, 
when  required  by  law,  is  a  misdemeanor. 
See  15  Viner,  Abr.  144;  Ayliffe,  Pand.  tit. 
22  ;  Dig.  30.  16.  57  ;  Merlin,  Rep. ;  13  Pick. 
Mass.  523. 

MAGISTRATE'S  COURT.  In 
American  Law.  Courts  in  the  state  of 
South  Carolina,  having  exclusive  jurisdiction 
in  matters  of  contract  of  and  under  tv^enty 
dollars. 

MAGNA  CH ARTA.  The  Great  Charter 

of  English  liberties,  so  called  (but  which  was 
really  a  compact  between  the  king  and  his 
barons,  and  almost  exclusively  for  the  benefit 
of  the  latter,  though  confirming  the  ancient 
liberties  of  Englishmen  in  some  few  parti- 
culars), was  wrung  from  king  John  by  his 
barons  assembled  in  arms,  on  the  19th  of 
June,  1215,  and  was  given  by  the  king's  hand, 
as  a  confirmation  of  his  own  act,  on  the  littl* 


MAGNA  CHART A 


87 


MAGNA  CIIARTA 


island  in  the  Thames,  within  the  county  of 
Buckinghamshire,  which  is  still  called  "Mag- 
na Charta  Island." 

The  preliminary  interview  was  held  in  the  mea- 
dow of  Running  Mede,  or  Runny  Mede  (fr.  Sax. 
'  Hue,  council),  that  is,  council  meadow,  which  had 
been  used  constantly  for  national  assemblies,  and 
which  was  situated  on  the  southwest  side  of  the 
Thames,  between  Staines  and  Windsor.  Though 
such  formalities  were  observed,  the  provisions  of 
the  charter  were  disregarded  by  John  and  succeed- 
ing kings,  each  of  whom,  when  wishing  to  do  a 
popular  thing,  confirmed  this  charter.  There  were 
thirty-two  confirmations  between  1215  and  1416, 
the  most  celebrated  of  which  were  those  by  Hent 
III.  (1225)  and  Edw.  I.,  which  last  confirmation 
was  sealed  with  the  great  seal  of  England  at  Ghent, 
on  the  5th  Nov.  1297.  The  Magna  Charta  printed 
in  all  the  books  as  of  9  Hen.  III.  is  really  a  tran- 
script of  the  roll  of  parliament  of  25  Edw.  I. 
There  were  many  originals  of  Magna  Charta  made, 
two  of  which  are  preserved  in  the  British  Museum. 

2.  Magna  Charta  consists  of  thirty-seven 
chapters,  the  subject-matter  of  which  is  very 
various.  C.  1  provides  that  the  Anglican 
church  shall  be  free  and  possess  its  rights 
unimpaired,  probably  referring  chiefly  to  im- 
munity from  papal  jurisdiction.  C.  2  fixes 
relief  which  shall  be  paid  by  king's  tenant 
of  full  age.  C.  3  relates  to  heirs  and  their 
being  in  ward.  C.  4 ;  guardians  of  wards 
within  age  are  by  this  chapter  restrained 
from  tvaste  of  ward's  estate,  ''vasio  liominum 
et  rerum,"  waste  of  men  and  of  things*,  which 
shows  that  serfs  were  regarded  as  slaves  even 
by  this  much-boasted  charter ;  and  as  serfs 
and  freemen  were  at  this  time  the  divisions 
of  society,  and  as  freemen  included,  almost 
without  exception,  the  nobility  alone,  w^e  can 
see  somewhat  how  much  this  charter  deserves 
its  name.  C.  5  relates  to  the  land  and  other 
property  of  heirs,  and  the  delivering  them 
up  when  the  heirs  are  of  age.  C.  6,  the 
marriage  of  heirs.  C.  7  provides  that  widow 
shall  have  quarantine  of  forty  days  in  her 
husband's  chief  house,  and  shall  have  her 
dower  set  out  to  her  at  once,  without  paying 
any  thing  for  it,  and  in  mean  while  to  have 
reasonable  estovers ;  the  dower  to  be  one-third 
of  lands  of  husband,  unless  wife  was  endowed 
of  less  at  the  church-door  ;  widow  not  to  be 
compelled  to  marry,  but  to  find  surety  that 
she  will  not  marry  without  consent  of  the  lord 
of  whom  she  holds. 

3.  Marriage  settlements  have  now  in  Eng- 
land taken  the  place,  in  great  measure,  of 
dower. 

C.  8,  the  goods  and  chattels  of  crown-debtor 
to  be  exhausted  before  his  rents  and  lands 
are  distrained ;  the  surety  not  to  be  called 
upon  if  the  principal  can  pay ;  if  sureties 
pay  the  debt,  they  to  have  the  rents  and  lands 
of  debtor  till  the  debt  is  satisfied.  C.  9  se- 
cures to  London  and  other  cities  and  boroughs 
and  town  barons  of  the  five  ports,  and  all 
other  ports,  to  have  their  ancient  liberties. 
C.  10  prohibits  excessive  distress  for  more 
services  or  rent  than  was  due.  C.  11  pro- 
vides that  court  of  common  pleas  should  not 
follow  the  court  of  the  king,  but  should  be 
held  in  a  certain  place.   They  have  been,  ac- 


cordingly, located  at  Westminster.  C.  12 
declares  the  manner  of  taking  assizes  of 
novel  disseisin  and  mort  d'ancesior.  These 
were  actions  to  recover  lost. seisin  {q.v.),  now 
abolished.  C.  13  relates  to  assizes  darein 
presentment  brought  by  ecclesiastics  to  try 
right  to  present  to  ecclesiastical  benefice. 
Abolished.  C.  14  provides  that  amercement 
of  a  freeman  for  a  fault  shall  be  proportion- 
ate to  his  crime,  and  not  excessive,  and  that 
the  villein  of  any  other  than  the  king  shall 
be  amerced  in  same  manner,  his  farm,  uten- 
sils, etc.  being  preserved  to  him  {salvo  wa- 
nagio  sua).  For  otherwise  he  could  not  culti- 
vate lord's  land.  C.  15  and  c.  16  relate  to 
making  of  bridges  and  keeping  in  repair  of 
sewers  and  sea-walls.  This  is  now  regulated 
by  local  parochial  law. 

4.  C.  17  forbids  sheriffs  and  coroners  to 
hold  pleas  of  the  crown.  Pleas  of  the  crown 
are  criminal  cases  vrhich  it  is  desirable  should 
not  be  tried  by  an  inferior  and  perhaps  igno- 
rant magistrate.  C.  18  provides  that  if  aiiy 
one  holding  a  lay  fee  from  crown  die,  Ihe 
king's  bailifi",  on  showing  letters  patent  of 
summons  for  debt  from  the  king,  may  attach 
all  his  goods  and  chattels,  so  that  nothing  be 
moved  away  till  the  debt  to  crown  be  paid 
off  clearly,  the  residue  to  go  to  executors  to 
perform  the  testament  of  the  dead;  and  if 
there  be  no  debt  owing  to  crown,  all  the 
chattels  of  the  deceased  to  go  to  executors, 
reserving,  however,  to  the  wife  and  children 
their  reasonable  parts.  Debts  to  the  govern- 
ment have  precedence  in  United  States  aa 
well  as  in  England.  A  man  can  now  in  Eng- 
land will  av/ay  his  whole  personal  property 
from  wife  and  children,  but  not  in  some  of 
the  United  States.  See  Gen.  Stat.  Mass. 
1560.  C.  19  relates  to  purveyance  of  king's 
house ;  c.  20,  to  the  castle-guard ;  c.  21,  to 
taking  horses,  carts,  and  wood  for  use  of 
royal  castles.  The  three  last  chapters  are 
now  obsolete.  C.  22  provides  that  the  lands 
of  felons  shall  go  to  king  for  a  year  and  a 
day,  afterwards  to  the  lord  of  the  fee.  So  in 
France.  The  day  is  added  to  prevent  dis- 
pute as  to  whether  the  year  is  exclusive  or 
inclusive  of  its  last  day.    C.  23  provides  that 

wears  shall  be  pulled  down  in  the  Thames 
and  Medway,  and  throughout  England,  ex- 
cept on  the  sea-coast.  These  wears  destroyed 
fish,  and  interrupted  the  floating  of  wood  and 
the  like  down  stream.  C.  24  relates  to  the 
writ  of  prcecipe  in  capite  for  lords  against 
their  tenants  offering  wrong,  etc.  Now  abo- 
lished. C.  25  provides  a  uniform  measure. 
See  5  &  6  Will.  IV.  c.  63.  C.  26  relates  to 
inquisitions  of  life  and  member,  which  are  to 
be  granted  freely.  Now  abolished.  C.  27 
relates  to  knight-service  and  other  ancient 
tenures,  now  abolished. 

5.  C.  28  relates  to  accusations,  which  must 
be  under  oath.  C.  29  provides  that  "  no  free- 
man shall  be  taken,  or  imprisoned,  or  dis- 
seised from  his  freehold,  or  liberties,  or  im- 
munities, nor  outlawed,  nor  exiled,  nor  in 
any  manner  destroyed,  nor  will  we  come 
upon  him  or  send  against  him,  except  by 


MAHL  BRIEF 


MAINE 


*^gal  judgment  of  his  peers  or  the  law  of  the 
land.  We  will  sell  or  deny  justice  to  none,  nor 
put  off  right  or  justice."  This  clause  is  very 
much  celebrated,  as  confirming  the  right  to 
trial  by  jury.  By  common  law,  the  twelve 
jurors  must  be  unanimous.  Lord  Campbell, 
in  England,  recently  introduced  a  bill  chang- 
ing this  and,  in  certain  cases,  allowing  the 
majority  to  decide.  C.  30  relates  to  merchant- 
strangers,  who  are  to  be  civilly  treated,  and, 
unless  previously  prohibited,  are  to  have 
free  passage  through,  and  exit  from,  and 
dwelling  in,  England,  without  any  manner  of 
extortions,  except  in  time  of  war.  If  they 
are  of  a  country  at  war  with  England,  and 
found  in  England  at  the  beginning  of  the 
war,  they  are  to  be  kept  safely  until  it  is 
found  out  how  English  merchants  are  treated 
in  their  country,  and  then  are  to  be  treated 
accordingly.  C.  31  relates  to  escheats ;  c. 
32,  to  the  power  of  alienation  in  a  freeman, 
which  is  limited.  C.  33  relates  to  patrons  of 
abbeys,  etc.  C.  34  provides  that  no  appeal 
shall  be  brought  by  a  woman  except  for  death 
of  her  husband.  This  was  because  the  de- 
fendant could  not  defend  himself  against  a 
woman  in  single  combat.  The  crime  of  mur- 
der or  homicide  is  now  inquired  into  by  in- 
dictment. C,  35  relates  to  rights  of  holding 
county  courts,  etc.  Obsolete.  C.  36  pro- 
vides that  a  gift  of  lands  in  mortmain  shall 
be  void,  and  lands  so  given  go  to  lord  of  fee. 
C.  37  relates  to  escuage  and  subsidy.  C.  38 
confirms  every  article  of  the  charter. 

Magna  Charta  is  said  by  some  to  have  been 
so  called  because  larger  than  the  Charta  de 
Foresta,  which  was  given  about  the  same 
time.  Spelman,  Gloss.  But  see  Cowel. 
Magna  Charta  is  mentioned  casually  by 
Bracton,  Fleta,  and  Britton.  Glanville  is 
supposed  to  have  written  before  Magna 
Charta.  The  Mirror  of  Justices,  c.  315  et 
seq.,  has  a  chapter  on  its  defects.  See  Coke, 
2d  Inst. ;  Barrington,  Stat. ;  4  Sharswood, 
Blackst.  Comm.  423.  See  a  copy  of  Magna 
Charta  in  1  Laws  of  South  Carolina,  edited 
by  Judge  Cooper,  p.  78.  In  the  Penny  Maga- 
zine for  the  year  1833,  p.  229,  there  is  a  copy 
of  the  original  seal  of  King  John  afl&xed  to 
this  instrument ;  a  specimen  of  a  fac-simile 
of  the  writing  of  Magna  Charta,  beginning 
at  the  passage,  Nullus  liber  homo  capieiur 
vel  imprisonetur,  etc.  A  copy  of  both  may 
be  found  in  the  Magasin  Pittoresque  for  the 
year  1834,  pp.  52,  53.  See  8  Encyc.  Brit.  722 ; 
6  id.  332 ;  Wharton,  Lex.  2d  Lond.  ed. 

MAHL  BRIEF.  A  term  confined  to 
the  German  law  of  shipping.  It  is  a  contract 
for  building  a  ship,  specifying  her  descrip- 
tion, quality  of  materials,  the  denomination, 
and  size,  with  reservation  generally  that  con- 
tractor or  his  agent  (who  is  in  most  cases 
the  master  of  a  vessel)  may  rej(ict  such  ma- 
terial as  he  deems  uncontract-wortliy,  and 
oblige  builder  to  supply  other  materials. 
Jacobson,  Sea  Laws,  2,  3. 

MAIDEN.  An  instrument  formerly  used 
in  Scotland  for  beheading  criminals. 


MAIDEN  RENTS.  In  Old  English 
Law.  A  tine  paid  to  lords  of  some  manors, 
on  the  marriage  of  tenants,  originally  given 
in  consideration  of  the  lord's  relinquishing 
his  customary  right  of  lying  the  first  night 
with  the  bride  of  a  tenant.  Cowel. 

MAIHEM.    See  Mayhem  ;  Maim. 

MAIL  (Fr.  malle,  a  trunk).  The  bag, 
valise,  or  other  contrivance  used  in  convey- 
ing through  the  post-office  letters,  packets, 
newspapers,  pamphlets,  and  the  like,  from 
place  to  place,  under  the  authority  of  the 
United  States.  The  things  thus  carried  are 
also  called  the  mail. 

The  laws  of  the  United  States  have  pro- 
vided for  the  punishment  of  robberies  or  wil- 
ful injuries  to  the  mail ;  the  act  of  March  3, 
1825,  3  Story,  U.  S.  Laws,  1985. 

MAILE.  In  Old  English  Law.  A 
small  piece  of  money.    A  rent. 

MAILS  AND  DUTIES.  In  Scotch 
Law.  Rents  of  an  estate.  Stair,  Inst.  2. 
12.  32;  2  Ross,  Lect.  235,  381,  431-439. 

MAIM.  In  Criminal  Law.  To  deprive 
a  person  of  such  part  of  his  body  as  to  render 
him  less  able  in  fighting  or  defending  him- 
self than  he  would  have  otherwise  been. 

In  Pleading.  The  words  "feloniously  did 
maim"  must  of  necessity  be  inserted,  because 
no  other  word  nor  any  circumlocution  will 
answer  the  same  purpose.  1  Chitty,  Crim. 
Law,  244. 

MAINE.    The  name  of  one  of  the  new 

states  of  the  United  States  of  America, 
formed  out  of  that  part  of  the  territory  of 
Massachusetts  called  the  district  of  Maine. 

2.  The  territory  embraced  in  the  new  state  was 
not  contiguous  to  that  remaining  in  the  state  from 
which  it  was  taken,  and  was  more  than  four  times 
as  large.  The  legislature  of  Massachusetts,  by  an 
act  passed  June  19,  1819,  gave  its  consent  for  the 
people  of  the  district  to  become  a  separate  and 
independent  state.  They  met  in  convention,  by 
delegates  elected  for  the  purpose,  and  formed  a  sepa- 
rate state,  by  the  style  of  the  State  of  Jlaine,  and 
adopted  a  constitution  for  the  government  thereof, 
October  19,  1819,  and  applied  to  congress,  at  its 
next  session,  for  admission  into  the  Union. 

The  petition  was  presented  in  the  house  of  re- 
presentatives of  the  United  States,  Dec.  8,  1819, 
and  the  state  was  admitted  into  the  Union  by  the 
act  of  congress  of  March  3,  1820,  from  and  after 
the  fifteenth  oay  of  March,  1820. 

3.  Every  male  citizen  of  the  United  States, 
twenty-one  years  of  age,  excepting  paupers,  per- 
sons under  guardianship,  and  Indians  not  taxed, 
who  has  resided  in  the  state  three  months  next  be- 
fore any  election,  has  a  right  to  vote,  except  United 
States  troops  in  service  at  stations  of  the  United 
States,  who  do  not  by  such  stay  gain  any  residence. 

The  Legislative  Power. 

This  is  vested  in  two  distinct  branches :  a  house 
of  representatives  and  a  senate,  each  having  a 
negative  upon  the  other,  and  bbth  together  being 
styled  the  Lcrjislnture  of  Maine.    Art.  4,  part  1,  ^  1. 

The  HoHnc  of  licprcnentativcs  is  to  consist  of  one 
hundred  and  fifty-one  members.    Amend,  art.  4. 

They  are  to  be  apportioned  among  the  counties 
according  to  law;  to  be  elected  annually  by  the 
qualified  electors  for  one  year  from  the  day  pre- 
ceding the  meeting  of  the  legislature.    Art.  4,  part 


MAINE 


89 


MAINTAINORS 


\,  ^  2.  The  luj^islature  is  to  convene  on  the  firs^t 
Wednesday  of  January  annually.  Art.  4,  part  '3, 
1.  A  representative  must  be  twenty-one  years  old 
at  leaat,  I'or  live  years  a  citizen  of  the  United  States, 
for  one  year  a  resident  of  the  state,  and  for  three 
months  immediately  preceding  his  election  a  resi- 
dent of  the  town  or  district  which  he  represents. 
He  must  continue  a  resident  during  his  term  of 
office. 

4.  The  Senate  is  to  consist  of  not  less  than 
twenty  nor  more  than  thirty-one  members,  elected, 
one  from  each  district,  at  the  same  time,  and  for 
the  same  term,  as  the  representatives,  by  the  quali- 
fied electors  of  the  districts  into  which  the  state 
shall  from  time  to  time  be  divided.  Art.  4,  part  2, 
^1.  A  senator  must  be  at  least  twenty-five  years 
old,  and  otherwise  possess  the  same  qualifications 
as  representatives. 

Every  bill  or  resolution  having  the  force  of  law, 
to  which  the  concurrence  of  both  branches  is  neces- 
sary, except  on  a  question  of  adjournment,  must  be 
approved  by  the  governor,  unless  upon  its  return 
to  the  house  in  which  it  originated,  with  his  objec- 
tions, it  shall  there  be  passed  over  his  veto  by 
receiving  in  each  house  the  votes  of  two-thirds 
thereof;  or  unless  he  shall  retain  it  for  more  than 
five  days.    Art.  4,  part  3,  ^  1. 

The  senate  has  power  to  try  all  impeachments. 
Art.  4,  part  2,  g  7. 

The  Executive  Power. 

The  Governor  is  elected  by  the  qualified  electors, 
iind  holds  his  office  for  one  year  from  the  first 
Wednesday  of  January  in  each  year.  Art.  1,  part 
1,      1  and  2. 

lie  must,  at  the  commencement  of  his  term,  be 
not  less  than  thirty  years  of  age,  a  natural-born 
•citizen  of  the  United  States,  five  years  a  resident 
of  the  state,  and  at  the  time  of  his  election,  and 
during  his  term,  be  a  resident  of  the  state.  Art.  5, 
part  1,  ^  4. 

5.  A  Council  consisting  of  seven  persons,  citi- 
zens of  the  United  States,  and  resident  within 
the  state,  to  advise  the  governor  in  the  executive 
part  of  government,  is  to  be  chosen  annually  by 
joint  ballot  of  the  senators  and  representatives  in 
convention.    Art.  5,  part  2,  'f^  1  and  2. 

The  governor,  with  the  advice  and  consent  of  the 
council,  is  to  nominate  and  appoint  all  judicial 
officers,  the  attorney-general,  sheriffs,  coroners, 
registers  ef  probate,  and  notaries  public ;  is  to  in- 
form the  legislature  of  the  condition  of  the  state, 
and  recommend  measux'es;  may,  after  conviction, 
with  the  advice  and  consent  of  council,  remit  for- 
feitures, and  grant  reprieves  and  pardons,  and  in 
cases  of  impeachment,*  may  convene  the  legisla- 
ture at  unusual  times  or  places,  if  necessary,  and 
adjourn  them,  in  case  of  disagreement  as  to  the 
time  of  adjournment. 

The  Judicial  Power, 
The  Supreme  Judicial  Court  is  composed  of  one 
chief  and  seven  assistant  judges,  appointed  by  the 
governor  and  council  for  the  term  of  seven  years. 
It  is  the  highest  court,  and  also  the  court  of  general 
original  jurisdiction, — having  the  jurisdiction  of 
the  former  district  court.  It  has  exclusive  civil 
jurisdiction  in  law  and  equity,  except  over  cases 
involving  small  amounts,  of  which  jurisdiction  is 
given  to  the  justices  of  the  peace.  Five  judges  are 
necessary  to  constitute  a  quorum  for  the  decision 
of  questions  of  law.  Annual  law  terms  are  held  in 
each  of  the  three  districts  into  which  the  state  is 
divided  for  the  purpose.  For  purposes  of  jury 
trials,  including  civil  and  criminal  cases,  the  court 
is  held  by  a  single  judge.  Two  or  more  terms  are 
held  annually  in  each  county  in  the  state,  as  pro- 
vided by  statute  from  time  to  time.  The  justices 
receive  a  stated  salary,  and  are  to  give  their  opi- 
nions upon  important  questions  of  law  upon  solemn 


occasions  when  re(|uired  by  the  governor,  senate,  or 
house  of  representatives. 

a.  probate  Courts  are  held  in  each  county  by 
judges  elected  for  three  years  by  the  people.  They 
are  to  appoint  guardians;  take  probate  of  wills; 
grant  letters  of  administration;  attend  to  the  set- 
tlement of  estates  of  persons  in  state  prison,  under 
sentence  of  death  or  imprisonment  for  life;  and  to 
have  jurisdiction  generally  for  these  and  similar 
purposes.  The  supreme  court  is  the  supreme  court 
of  probate,  and  an  appeal  lies  to  it  from  the  decision 
of  the  judge  of  probate. 

JuHticcH  of  the  Peace  are  appointed  by  the  gov- 
ernor and  council  for  the  term  of  seven  years.  They 
have  jurisdiction  over  all  civil  cases  (except  tho.se 
involving  the  title  to  land)  where  the  amount  in- 
volved does  not  exceed  twenty  dollars.  They  have 
a  limited  criminal  jurisdiction. 

Police  Courts  are  created  by  special  enactment 
in  the  larger  towns,  with  a  jurisdiction  substantially 
that  of  the  justices,  and  exclusive  thereof,  except 
in  specified  cases. 

County  Commissioners  are  chosen  by  the  people, 
three  in  each  county,  to  attend  to  the  internal  po- 
lice of  the  county.  They  have  the  care  of  roads, 
bridges,  etc.,  the  public  buildings  of  the  county, 
and  the  control  of  the  county  money.  One  is  elected 
annually  for  the  term  of  three  years. 

MAINOUR.    In  Criminal  Law.  The 

thing  stolen  found  in  the  hands  of  the  thief 
who  has  stolen  it. 

Hence,  when  a  man  is  found  with  property  which 
he  has  stolen,  he  is  said  to  be  taken  with  the  main- 
our, that  is,  it  is  found  in  his  hands. 

Formerly  there  was  a  distinction  made  between 
a  larceny,  when  the  thing  stolen  was  found  in  the 
hands  of  the  criminal,  and  when  the  proof  de- 
pended upon  other  circumstances  not  quite  so  irre- 
fragable ;  the  former  properly  was  termed  pris  ore 
maynovere,  or  ore  mainer,  or  mainour,  as  it  is  gene- 
rally written.    Barrington,  Stat.  315,  316,  note. 

MAINPERNABLE.  Capable  of  being 
bailed ;  one  for  whom  bail  may  be  taken  ; 
bailable. 

MAINPERNORS.    In  English  Law. 

Those  persons  to  whom  a  man  is  delivered 
out  of  custody  or  prison,  on  their  becoming 
bound  for  his  appearance. 

Mainpernors  difl'er  from  bail :  a  man's  bail  may 
imprison  or  surrender  him  up  before  the  stipulated 
day  of  appearance ;  mainpernors  can  do  neither, 
but  are  merely  sureties  for  his  appearance  at  the 
day ;  bail  are  only  sureties  that  the  party  be  an- 
swerable for  all  the  special  matter  for  which  they 
stipulate ;  mainpernors  are  bound  to  produce  him 
to  answer  all  charges  whatsoever.  6  Mod.  231 ;  7 
id.  77,  85,  98 ;  3  Blaekstone,  Comm.  128.  See  Dane, 
Abr. 

MAINPRISE.    In  English  Law.  The 

taking  a  man  into  friendly  custody,  who  might 
otherwise  be  committed  to  prison,  upon  secu- 
rity given  for  his  appearance  at  a  time  and 
place  assigned.    Wood,  Inst.  b.  4,  c.  4. 

MAINSWORN.  Forsworn,  by  making 
false  oath  with  Jiajid  {main)  on  book.  Used 
in  the  North  of  England.  Brownl.  4 ;  Hob. 
125. 

MAINTAINED.    In  Pleading.  A 

technical  word  indispensable  in  an  indictment 
for  maintenance.    1  Wils.  325. 

MAINTAINORS,    in  Criminal  Law. 

Those  who  maintain  or  support  a  cause  de- 


MAINTENANCE 


90 


MAKE 


pending  between  others,  not  being  retained 
as  counsel  or  attorney.  For  this  they  may  be 
fined  and  imprisoned.  2  Swift,  Dig.  328;  4 
Blackstone,Comm.l24;  Bacon,  Abr.  Barrator. 

MAINTENANCE.  Aid,  support,  as- 
sistance ;  the  support  which  one  person,  who 
is  bound  by  law  to  do  so,  gives  to  another  for 
his  living :  for  example,  a  father  is  bound  to 
find  maintenance  for  his  children;  and  a 
child  is  required  by  law  to  maintain  his 
father  or  mother,  when  they  cannot  support 
themselves,  and  he  has  ability  to  maintain 
them.    1  Bouvier,  Inst.  nn.  284-286. 

In  Criminal  Law.  A  malicious,  or,  at 
least,  officious,  interference  in  a  suit  in  which 
the  offender  has  no  interest,  to  assist  one  of 
the  parties  to  it  against  the  other,  with  money 
or  advice  to  prosecute  or  defend  the  action, 
without  any  authority  of  law.  1  Russell, 
Crimes,  176. 

The  intermeddling  of  a  stranger  in  a  suit 
for  the  purpose  of  stirring  up  strife  and  con- 
tinuing the  litigation.  2  Parsons,  Contr.  266. 
See  4  Term,  340 ;  6  Bingh.  299 ;  4  Q.  B.  883. 

But  there  are  many  acts  in  the  nature  of 
maintenance  which  become  justifiable  from 
the  circumstances  under  which  they  are  done. 
They  may  be  justified,  first,  because  the 
party  has  an  interest  in  the  thing  in  variance ; 
as  when  he  has  a  bare  contingency  in  the 
lands  in  question,  which  possibly  may  never 
come  in  esse.  Bacon,  Abr.  Maintenance; 
and  see  11  Mees.  &  W.  Exch.  675;  9  Mete. 
Mass.  489;  13  id.  262;  1  Me.  292;  6  id.  361; 
11  id.  Ill;  second,  because  the  party  is  of 
kindred  or  affinity,  as  father,  son,  or  heir  ap- 
parent, or  husband  or  wife,  3  Cow.  N.  Y.  623 ; 
third,  because  the  relation  of  landlord  and 
tenant  or  master  and  servant  subsists  between 
the  party  to  the  suit  and  the  person  who  as- 
sists him ;  fourth,  because  the  money  is  given 
out  of  charity,  1  Bail.  So.  C.  401 ;  fijth,  be- 
cause the  person  assisting  the  party  to  the 
suit  is  an  attorney  or  counsellor ;  the  assist- 
ance to  be  rendered  must,  however,  be  strictly 
professional,  for  a  lawyer  is  not  more  justi- 
fied in  giving  his  client  money  than  another 
man.  1  Russell,  Crimes,  179;  Bacon,  Abr. 
Maintenance;  Broke,  Abr.  Maintenance.  This 
offence  is  punishable  criminally  by  fine  and 
imprisonment.  4  Blackstone,  Comm.  124 ; 
2  Swift,  Dig.  328.  Contracts  growing  out  of 
maintenance  are  void.  11  Mass.  549 ;  5 
Humphr.  Tenn.  379;  20  Ala.  n.s.  521;  53 
B.  Monr.  Ky.  413;  5  Johns.  Ch.  N.Y.  44; 
4  Q.  B.  883.  See  3  Hawks,  No.  C.  86;  1  Me. 
292;  6  Mass.  421;  11  id.  553;  5  Pick.  Mass. 
359;  5  T.  B.  Monr.  Ky.  413;  3  Cow.  N.Y. 
647;  6  id.  431;  4  Wend.  N.Y.  306:  14 
Johns.  N.Y.  124;  3  Johns.  Ch.  N.Y.  508;  7 
Dowl.  &  R.  846;  S  Barnew.  &  C.  188. 

MAISON  DE  DIEU  (Fr.  house  of  God ; 
a  hospital).  A  hospital;  an  almshouse;  a 
monastery.    Stat.  39  Eliz.  c.  5. 

MAJESTY.  A  term  used  of  kings  and 
emperors  as  a  title  of  honor.  It  sometimes 
means  power:  as  when  we  say,  the  majesty 
of  the  people.    See  Wolff,  g  998. 


MAJOR.    One  who  has  attained  his  fu 
age  and  has  acquired  all  his  civil  rights; 
one  who  is  no  longer  a  minor;  an  adult. 

In  Military  Law.    The  officer  next  in 
rank  above  a  captain. 

MAJOR-GENERAL.  In  Military 
Law.  An  officer  next  in  rank  above  a  bri- 
gadier-general. He  commands  a  division 
consisting  of  several  brigades,  or  even  an 
army. 

MAJORS S  (Lat.).  The  male  ascendants 
beyond  the  sixth  degree.  The  term  was  used 
among  the  Romans ;  and  the  term  is  still  re- 
tained in  making  genealogical  tables. 

MAJORITY.  The  state  or  condition  of 
a  person  who  has  arrived  at  full  age.  He  is 
then  said  to  be  a  major,  in  opposition  to 
minor,  which  is  his  condition  during  infancy. 

The  greater  number.  More  than  all  the 
opponents. 

Some  question  exists  as  to  whether  a  majority  of 
any  body  is  more  than  one-half  the  whole  nuviher  or 
more  than  the  number  acting  in  opposition.  Thus,  in 
a  body  of  one  hundred  voters,  in  which  twenty  did 
not  vote  on  any  particular  question,  on  the  former 
supposition  fifty-one  would  be  a  majority,  on  the 
latter  forty-one.  The  intended  signification  is  gene- 
rally denoted  by  the  context,  and  where  it  is  not 
the  second  sense  is  generally  intended;  a  majority 
on  a  given  question  being  more  than  one-half  the 
number  of  those  voting. 

In  every  well-regulated  society,  the  majority  has  . 
always  claimed  and  exercised  the  right  to  govern 
the  whole  society,  in  the  manner  pointed  out  by  the 
fundamental  laws;   and  the  minority  are  bound 
whether  they  have  assented  or  not,  for  the  obvious  ' 
reason  that  opposite  wills  cannot  prevail  at  the  : 
same  time,  in  tlie  same  society,  on  the  same  subject. 
1  Tucker,  Blackstone,  Comm.  Appx.  168,  172;  9  ; 
Dane,  Abr.  37-43;  1  Story,  Const.  §  330. 

As  to  the  rights  of  the  majority  of  part-  , 
owners  of  vessels,  see  3  Kent,  Coram.  114  e<  ' 
seq.;  Parsons,  Marit.  Law;  Part-Owners,  { 
As  to  the  majority  of  a  church,  see  16  Mass.  \ 
488.  I 

In  the  absence  of  all  stipulations,  the  \ 
general  rule  in  partnerships  is  that  each  - 
partner  has  an  equal  voice,  and  a  majority  \ 
acting  bond  fide  have  the  right  to  manage 
the  partnership  concerns  and  dispose  of  the 
partnership  property  notwithstanding  the 
dissent  of  the  minority;  but  in  ever^  case 
when  the  minority  have  a  right  to  give  an 
opinion,  they  ought  to  be  notified.  2  Bouvier, 
Inst.  n.  1954.    See  Partner. 

As  to  the  majorities  of  companies  or  cor- 
porations, see  Angell,  Corp.  48  et  seq.;  3 
Mart.  La.  495.  See,  generally,  Rutherford, 
Inst.  249;  9  Serg.  &  R.  Penn.  99;  Brooke, 
Abr.  Corp.  pi.  63;  15  Viner,  Abr.  183.  184. 

MAKE.  To  perform  or  execute:  as,  to 
make  his  law,  is  to  perform  that  which  a  man 
had  bound  himself  to  do;  that  is,  to  clear 
himself  of  an  action  commenced  against  him, 
by  his  oath  and  the  oath  of  his  neighbors. 
Old  Nat.  Brev.  161.  To  make  default,  is  to 
fail  to  appear  in  proper  trial.  To  make  oath, 
is  to  swear  according  to  the  form  prescribed 
by  law.  It  is  also  used  intransitively  of  per- 
sons and  things,  to  have  effect ;  to  tend : 


MAKER 


91 


MALICE 


That  case  makes  for  me."  Ilardr.  133 ; 
Webster,  Diet. 

MAKER.  A  term  applied  to  one  who 
makes  a  promissory  note  and  promises  to  pay 
it  when  due. 

He  who  makes  a  bill  of  exchange  is  called  the 
drawer;  and  frequently  in  common  parlance  and  in 
books  of  reports  we  find  the  word  drawer  inaccu- 
rately applied  to  the  maker  of  a  promissory  note. 
See  Promissory  Note. 

MAKING  HIS  LAW.  A  phrase  used 
to  deuote  the  act  of  a  person  who  wages  his 
hxw.    Bacon,  Abr.  Wager  of  Law. 

MALA  FIDES  (Lat.).   Bad  faith.    It  is 

opposed  to  bond  files,  good  faith. 

MALA  PRAXIS  (Lat).  Bad  or  unskil- 
ful practice  in  a  physician  or  other  professional 
person,  whereby  the  health  of  the  patient  is 
injured. 

Wilful  mat-practice  takes  place  when  the 
physician  purposely  administers  medicines  or 
performs  an  operation  which  he  knows  and 
expects  will  result  in  damage  or  death  to  the 
individual  under  his  care :  as  in  the  case  of 
criminal  abortion.  Elwell,  Mal-Pract.  243  et 
seq.;  2  Barb.  N.  Y.  216. 

Negligent  mal-pradice  comprehends  those 
cases  where  there  is  no  criminal  or  dishonest 
object,  but  gross  negligence  of  that  attention 
which  the  situation  of  the  patient  requires  : 
as  if  a  physician  should  administer  medicines, 
while  in  a  state  of  intoxication,  from  which 
injury  would  arise  to  his  patient. 

Ignorant  mal-practice  is  the  administration 
of  medicines  calculated  to  do  injury,  which 
do  harm,  and  which  a  well-educated  and 
scientific  medical  man  would  know  were  not 
proper  in  the  case.  Elwell,  Mal-Pract.  198  et 
seq.;  7  Barnew.  &  C.  493,  497:  6  Bingh.  440; 
6  Mass.  134;  5  Carr.  &  P.  333  ;  1  Mood.  &  R. 
405 ;  5  Cox,  Cr.  Cas.  587. 

!2.  This  offence  is  a  misdemeanor  (whether 
it  be  occasioned  by  curiosity  and  experiment 
or  neglect),  because  it  breaks  the  trust  which 
the  patient  has  put  in  the  physician,  and 
tends  directly  to  his  destruction.  1  Ld.  Raym. 
213.  See  3  Chitty,  Crim.  Law,  863 ;  4  Went- 
worth,  Plead.  360 ;  2  Russell,  Crimes,  Greaves 
ed.  277  ;  1  Chitty,  Pract.  43  ;  6  Mass.  134  ; 
8  Mo.  561 ;  3  Carr.  &  P.  629 ;  4  id.  423. 

Besides  the  public  remedy  for  mal-practice, 
in  many  cases  the  party  injured  may  bring  a 
civil  action.  5  Day,  Conn.  260  ;  9  Conn.  209 ; 
3  Watts,  Penn.  355  ;  7  N.  Y.  397. 

3.  Civil  cases  of  mal-practice  are  of  very 
frequent  occurrence  on  those  occasions  where 
surgical  operations  are  rendered  necessary, 
or  supposed  to  be  so,  by  disease  or  injury, 
and  are  so  performed  as  either  to  shorten  a  ' 
limb  or  render  it  stiff,  or  otherwise  prevent  [ 
the  free,  natural  use  of  it,  by  which  the  party 
ever  after  suffers  damages.  This  may  em- 
brace almost  every  kind  of  surgical  opera- 
tion ;  but  nine-tenths  of  all  such  cases  arise 
from  amputations,  fractures,  or  dislocations. 
Elwell,  Mal-Pract.  55. 

4.  To  the  performance  of  all  surgical  ope- 
rations the  surgeon  is  bound  to  bring  at  least  j 


ordinary  skill  and  knowledge.  lie  must 
apply  without  mistake  what  is  settled  in  his 
profession.  He  must  possess  and  practically 
exercise  that  degree  and  amount  of  know- 
ledge and  science  which  the  leading  authori- 
ties have  pronounced  as  the  result  of  their 
researches  and  experience  up  to  the  time,  or 
within  a  reasonable  time  before  the  issue  or 
question  to  be  determined  is  made.  Elwell, 
Mal-Pract.  55.  Many  cases,  both  English 
and  American,  have  occurred,  illustrating  the 
nature  and  extent  of  this  liability.  H  East, 
347  ;  2  Wils.  259  ;  1  II.  Blackst.  61 ;  Wright, 
Ohio,  466;  22  Penn.  St.  261;  27  N.  II.  460, 
13  B.  Monr.  Ky.  219. 

MALA  PROHIBIT  A  (Lat.).  Th(,se 
things  which  are  prohibited  by  law,  and  there- 
fore unlawful. 

A  distinction  was  formerly  made,  in  respect  of 
contracts,  between  mala  prohihita  and  mala  in  ae  ; 
but  that  distinction  has  been  exploded,  and  it  is 
now  established  that  when  the  provisions  of  an  act 
of  the  legislature  have  for  their  object  the  protec- 
tion of  the  public,  it  makes  no  diflerence  with  re- 
spect to  contracts  whether  the  thing  be  prohibited 
absolutely  or  under  a  penalty.  5  Barnew.  &  Aid. 
385,  .340;  10  Barnew.  &  C.  98;  3  Stark.  61;  13 
Pick.  Mass.  618;  2  Bingh.  n.  c.  636,  646.  The  dis- 
tinction is,  however,  important  in  criminal  law  in 
some  cases  with  reference  to  the  question  of  intent. 
See  Intent  ;  1  Bishop,  Crim.  Law,  ^  2157. 

MALE.  Of  the  masculine  sex ;  of  the 
sex  that  begets  young ;  the  sex  opposed  to 
the  female. 

MALEDICTION  (Lat.).  In  Ecclesias- 
tical Law.  A  curse  which  was  anciently 
annexed  to  donations  of  lands  made  to 
churches  and  religious  houses,  against  those 
who  should  violate  their  rights. 

MALEFACTOR  (Lat.).  He  who  has 
been  guilty  of  some  crime ;  in  another  sense, 
one  who  has  been  convicted  of  having  com- 
mitted a  crime. 

MALEFICIUM  (Lat.).  In  Civil  Law. 
Waste;  damage;  torts;  injury.    Dig.  5.  18.  I. 

MALFEASANCE.  The  unjust  per- 
formance of  some  act  which  the  party  had  no 
right,  or  which  he  had  contracted  not,  to  do. 
It  differs  from  misfeasance  and  nonfeasance, 
which  titles  see.  See  1  Chitty,  Pract.  9 ;  1 
Chitty,  Plead.  134. 

MALICE.  In  Criminal  Law.  The 
doing  a  wrongful  act  intentionally  without 
just  cause  or  excuse.  4  Barnew.  &  C.  255  ; 
9  Mete.  Mass.  104. 

A  conscious  violation  of  the  iaw,  to  the 
prejudice  of  another.  9  Clark  &  F.  Hou.  L. 
321. 

Malice  is  never  understood  to  denote  general 
malevolence  or  unkindness  of  heart,  or  enmity  to- 
ward a  particular  individual,  but  it  signifies  rather 
the  intent  from  which  flows  any  unlawful  and  in- 
jurious act  committed  without  legal  justification. 
15  Pick.  Mass.  337;  9  Mete.  410;  4  Ga.  14;  33  Me. 
331 ;  7  Ala.  n.  s.  728  ;  2  Dev.  No.  C.  425 :  2  Rich. 
So.  C.  179;  1  Ball.  Penn.  335;  4  Mas.  C.  C.  115; 
1  Den.  Cr.  Cas.  63 ;  Russ.  &  R.  26.  465 ;  1  Mood. 
Cr.  Cas.  93.  It  is  not  confined  to  the  intention  of 
doing  an  injury  to  any  particular  person,  but  ex- 
tends to  an  evil  design,  a  corrupt  and  wicked  notion 


MALICE  AFORETHOUGHT  92 


MALICIOUS  PROSECUTION 


against  some  one  at  the  time  of  committing  the 
crime :  as,  if  A  intending  to  poison  B,  conceals  a 
quantity  of  poison  in  an  apple  and  puts  it  in  the 
way  of  B,  and  C,  against  whom  he  has  no  ill  will, 
and  who,  on  the  contrary,  is  his  friend,  happens  to 
eat  it  and  dies,  A  will  be  guilty  of  murdering  C 
with  malice  aforethought.  Bacon,  Max.  Reg.  15 ; 
2  Chitty,  Crim.  Law,  727 ;  3  id.  1104. 

Express  malice  exists  when  the  party 
evinces  an  intention  to  commit  the  crime.  3 
Bulstr.  171. 

Implied  malice  is  that  inferred  by  law 
from  the  facts  proved.  11  Humphr.  Tenn, 
172  ;  6  Blackf.  Ind.  299  ;  1  East,  PI.  Cr.  371. 

It  is  implied  in  every  case  of  intentional 
homicide  ;  and  the  fact  of  killing  being  first 
proved,  all  the  circumstances  of  accident, 
necessity  or  informality  are  to  be  satisfac- 
torily established  by  the  party  charged,  unless 
they  arise  out  of  the  evidence  produced  against 
him  to  prove  the  homicide,  and  the  circum- 
stances attending  it.  If  there  are,  in  fact, 
circumstances  of  justification,  excuse,  or  pal- 
liation, such  proof  will  naturally  indicate 
them.  But  where  the  fact  of  killing  is  proved 
by  satisfactory  evidence,  and  there  are  no  cir- 
cumstances disclosed  tending  to  show  justifi- 
cation or  excuse,  there  is  nothing  to  rebut  the 
natural  presumption  of  malice.  It  is  material 
to  the  just  understanding  of  this  rule  that  it 
applies  only  to  cases  where  the  killing  is 
proved  and  nothing  further  is  shown;  for  if 
the  circumstances  disclosed  tend  to  extenuate 
the  act,  the  prisoner  has  the  full  benefit  of 
such  facts.  9  Mete.  Mass.  93  ;  5  Cush.  Mass. 
295  ;  3  Gray,  Mass.  463. 

3.  It  is  a  general  rule  that  when  a  man 
commits  an  act,  unaccompanied  by  any  cir- 
cumstances justifying  its  commission,  the  law 
presumes  he  has  acted  advisedly  and  with  an 
intent  to  produce  the  consequences  which 
have  ensued.  And  therefore  the  intent  to  kill 
is  conclusively  inferred  from  the  deliberate 
violent  use  of  a  deadly  weapon.  9  Mete. 
Mass.  103  ;  5  Cush.  Mass.  305.  See  3  Maule 
&  S.  15  ;  1  Russ.  &  R.  Cr.  Cas.  207 ;  1  Wood. 
Cr.  Cas.  263  ;  1  East,  PI.  Cr.  223,  232,  340  ; 
15  Viner,  Abr.  506. 

In  Torts.  The  doing  any  act  injurious  to 
another  without  a  just  cause. 

4.  This  term,  as  applied  to  torts,  does  not  neces- 
sarily mean  that  which  must  proceed  from  a  spite- 
ful, malignant,  or  revengeful  disposition,  but  a  con- 
duct injurious  to  another,  though  proceeding  from 
an  ill-regulated  mind  not  sufficiently  cautious  before 
it  occasions  an  injury  to  another.  11  Serg.  &  R. 
Penn.  39,  40.  Indeed,  in  some  cases  it  seems  not  to 
require  any  intention  in  order  to  make  an  act  mali- 
cious. When  a  slander  has  been  published,  there- 
fore, the  proper  question  for  the  jury  is,  not  whether 
the  intention  of  the  publication  was  to  injure  the 
plaintifi',  but  whether  the  tendency  of  the  matter 
published  was  so  injurious.  10  Barnew.  &  C.  472. 
Again,  take  the  common  case  of  an  offensive  trade, 
the  melting  of  tallow,  for  instance  :  such  trade  is  not 
itself  unlawful,  but  if  carried  on  to  the  annoyance 
of  the  neigliboring  dwellings,  it  becomes  unlawful 
with  resfiect  to  them,  and  their  inhabitants  may 
maintain  an  action,  and  may  charge  the  act  of  the 
defendant  to  be  malicious.    3  Barnew.  &  C.  5S4. 

MALICE  AFORETHOUGHT.  Wicked 
purpose.    These  words  in  the  description  of 


murder  do  not  imply  deliberation,  or  the  lapse 
of  considerable  time  between  the  malicious 
intent  to  take  and  the  actual  execution  of 
that  intent,  but  rather  denote  purpose  and 
design  in  contradistinction  to  accident  and 
mischance.  5  Cush.  Mass.  306.  And  see  8 
Carr.  &  P.  616;  2  Mas.  C.  C.  60;  1  Dev.  & 
B.  No.  C.  121,  163 ;  6  Blackf.  Ind.  299 ;  3 
Ala.  N.  s.  497. 

These  words  distinguish  an  indictment  for 
murder  from  one  for  manslaughter,  Yelv. 
205  ;  1  Chitty,  Crim.  Law,  242,  and  must  be 
used  in  charging  the  crime  where  malice 
aforethought  is  necessary  to  its  commission. 
1  East,  PI.  Cr.  402 ;  2  Mas.  C.  C.  91. 

MALICIOUS  ABANDONMENT.  The- 
forsaking  without  a  just  cause  a  husband  by 
the  wife,  or  a  wife  by  her  husband.  See 
Abandonment;  Divorce. 

MALICIOUS  ARREST.  A  wanton 
arrest  made  without  probable  cause  by  a  regu- 
lar process  and  proceeding.  See  Malicious 
Prosecution. 

MALICIOUS  INJURY.  An  injury 
committed  wilfully  and  wantonly,  or  without 
cause.  1  Chitty,  Gen.  Pr.  136.  See  Wharton, 
Crim.  Law,  226  et  seq.,  as  to  malice.  See  4 
Sharswood,  Blackst.  Comm.  143,  198,  199, 
200,  206;  2  Russell,  Crimes,  544,  547. 

MALICIOUS  MISCHIEF.  An  expres- 
sion applied  to  the  wanton  or  reckless  destruc- 
tion of  property,  and  the  wilful  perpetration 
of  injury  to  the  person. 

The  word  malicious  is  not  sufficiently  de- 
fined as  the  wilfully  doing  of  any  act  prohi- 
bited bylaw,  and  for  which  the  defendant  has 
no  lawful  excuse.  In  order  to  a  conviction  of 
the  offence  of  malicious  mischief,  the  jury 
must  be  satisfied  that  the  injury  was  done 
either  out  of  a  spirit  of  wanton  cruelty  or  of 
wicked  revenge.  Jacob,  Law  Diet.  Mischief, 
Malicious;  Alison,  Scotch  Law,  448 ;  3  Cush. 
Mass.  558 ;  2  Mete.  Mass.  21 ;  3  Dev.  &  B. 
No.  C.  130  ;  5  Ired.  No.  C.  364 ;  8  Leigh,  Va. 
719;  3  Me.  177. 

MALICIOUS  PROSECUTION.  A 
wanton  prosecution  made  by  a  prosecutor  in 
a  criminal  proceeding,  or  a  plaintiff  in  a  civil 
suit,  without  probable  cause,  by  a  regular 
process  and  proceeding,  which  the  facts  did 
not  warrant,  as  appears  by  the  result. 

2.  Where  the  defendant  commenced  a  crimi- 
nal prosecution  wantonly,  and  in  other  re- 
spects against  law,  he  will  be  responsible. 
Addis.  Penn.  270 ;  12  Conn.  219.  The  prose- 
cution of  a  civil  suit,  when  malicious,  is  a 
good  cause  of  action,  even  when  there  has 
been  no  arrest.  1  Pet.  C.  C.  210;  11  Conn. 
582;  1  Wend.  N.  Y.  345.    See  1  Penn.  235. 

3.  The  action  lies  against  the  prosecutor, 
and  even  against  a  mere  informer,  when  the 
proceedings  are  malicious.  9  Ala.  367.  But 
grand  jurors  are  not  liable  to  an  action  for  a 
malicious  prosecution  for  information  given 
by  them  to  their  fellow-jurors,  on  which  a 
prosecution  is  founded.  Ilard.  Ky.  556.  Such 
action  lies  against  a  plaintiff  in  a  civil  action 


MALUM  IN  SE 


93 


MANDAMUS 


who  maliciourJy  sues  out  the  writ  and  prose- 
cutes it,  16  Pick.  Mass.  453  ;  but  an  action 
does  not  lie  against  an  attorney  at  law  for 
bringing  the  action,  when  regularly  employed. 
16  Pick.  Mass.  478.    See  6  Pick.  Mass.  193. 

4.  There  must  be  malice  and  want  of  pro- 
bable cause.  1  Wend.  N.  Y.  140,  345  ;  7 
Cow.  N.  Y.  281;  2  P.  A.  Browne,  Penn. 
Appx.  xlii. ;  Cooke,  Tenn.  90 ;  4  Litt.  Ky. 
334;  3  Gill  &  J.  Md.  377;  1  Nott  &  M'C.  So. 
C.  36  ;  2  id.  54,  143;  12  Conn.  219  ;  3  Call. 
Va.  446  ;  3  Mas.  C.  C.  112.    See  Malice. 

The  proceedings  under  which  the  original 
prosecution  or  action  was  held  must  have 
been  regular,  in  the  ordinary  course  of  jus- 
tice, and  before  a  tribunal  having  power  to 
ascertain  the  truth  or  falsity  of  the  charge 
and  to  punish  the  supposed  offender,  the  now 
plaintiff.  3  Pick.  Mass.  379,  383.  When  the 
proceedings  are  irregular,  the  prosecutor  is  a 
trespasser.    3  Blackf.  Ind.  210. 

5.  The  malicious  prosecution  or  action  must 
be  ended,  and  the  plaintiff  must  show  it  was 
groundless,  either  by  his  acquittal  or  by  ob- 
taining a  final  judgment  in  his  favor  in  a  civil 
action.  1  Root,  Conn.  553  ;  1  Nott  &  M'C. 
So.  C.  36 ;  2  id.  54,  143  ;  7  Cow.  N.  Y.  715 ; 
2  Dev.  &  B.  No.  C.  492.  _ 

The  remedy  for  a  malicious  prosecution  is 
an  action  on  the  case  to  recover  damages  for 
the  injury  sustained.  5  Stew.  &  P.  Ala.  367  ; 
2  Conn.  700;  11  Mass.  500;  6  Me.  421 ;  3 
Gill  &  J.  Md.  377.    See  Case. 

See,  generally,  Buller,  Nisi  P.  11 ;  1  Saund. 
228;  12  Mod.  208;  1  Tenn.  493-55 1 ;  Bacon, 
Ahv.  Actions  on  the  Case  (H. ) ;  Bouvier,  Inst. 
Index. 

MALUM  IN  SE  (Lat.).    Evil  in  itself. 

An  ofifence  malum  in  se  is  one  which  is  naturally 
evil,  as  murder,  theft,  and  the  like ;  olfences  at 
common  law  are  generally  mala  in  se.  An  offence 
malum  prohibitum,  on  the  contrary,  is  not  naturally 
'  an  evil,  but  becomes  so  in  consequence  of  its  being 
forbidden  :  as  playing  at  games  which,  being  inno- 
cent before,  have  become  unlawful  in  consequence 
of  being  forbidden.  See  Bacon,  Abr.  Assumpsit 
(a);  Mala  Prohibita. 

MALVEILLES.  Ill  will.  In  some  an- 
cient records  this  word  signifies  malicious 
practices,  or  crimes  and  misdemeanors. 

!      MALVERSATION.   In  French  Law. 

This  word  is  applied  to  all  punishable  faults 
committed  in  the  exercise  of  an  office,  such 
as  corruptions,  exactions,  extortions,  and  lar- 
ceny.   Merlin,  Repert. 

MAN.  A  human  being.  A  person  of  the 
male  sex.  A  male  of  the  human  species  above 
the  age  of  puberty. 

In  its  most  extended  sense  the  term  includes  not 
only  the  adult  male  sex  of  the  human  species,  but 
women  and  children:    examples:    "of  offences 
against  man,  some  are  more  immediately  against 
the  king,  others  more  immediately  against  the  snh- 
i   ject."    Hawkins,  PI.  Cr.  b.  1,  c.  2,  s.  1.  "Offences 
against  the  life  of  man  come  under  the  general 
name  of  homicide,  which  in  our  law  signifies  the 
killing  of  a  man  by  a  man."    Id.  book  1,  c.  8,  s.  2. 
It  was  considered  in  the  civil  or  Roman  law  that 
I    although  man  and  jiprson  are  synonymous  in  gram- 
!    mar,  they  had  a  diflferent  acceptation  in  law ;  all 


persons  were  men,  but  all  men — for  example,  slaves — 
were  not  persons,  but  things.  See  Barrington,  Stat. 
216,  note. 

MANAGER.  A  person  appointed  or 
elected  to  manage  the  affairs  of  another.  A 
term  applied  to  those  officers  of  a  corporation 
who  are  authorized  to  manage  its  affairs.  1 
Bouvier,  Inst.  n.  190. 

One  of  the  persons  appointed  on  the  part 
of  the  house  of  representatives  to  prosecute 
impeachments  before  the  senate. 

!2.  In  banking  corporations  these  officers 
are  commonly  called  directors,  and  the  power 
to  conduct  the  affairs  of  the  company  is  vested 
in  a  board  of  directors.  In  other  private  cor- 
porations, such  as  railroad  companies,  canal 
and  coal  companies,  and  the  like,  these  officers 
are  called  managers.  Being  agents,  when  their 
authority  is  limited,  they  have  no  power  to 
bind  their  principal  beyond  such  authority, 
17  Mass.  29 ;  1  Me.  81. 

3.  In  England  and  Canada  the  chief  execu- 
tive officer  of  a  branch  bank  is  called  a  man- 
ager. His  duties  are  those  of  our  presidents 
and  cashiers  combined.  His  signature  is 
necessary  to  every  contract  binding  on  the 
bank,  except  entries  in  the  pass-books  of  cus- 
tomers. He  indorses  bills,  signs  bills  of  ex- 
change and  drafts,  and  conducts  the  corre- 
spondence of  the  bank.  He  is  under  the  con- 
trol of  the  board  of  directors  of  the  bank,  and 
there  is  usually  a  local  or  branch  board  of  di- 
rectors, at  which  he  acts  as  presiding  officer. 
Sewell,  Bank. 

MANBOTE.  A  compensation  paid  the 
relations  of  a  murdered  man  by  the  murderer 
or  his  friends. 

MANCIPIUM.  The  power  acquired  over 
a  freeman  by  the  maticipatio. 

To  form  a  clear  conception  of  the  true  import  of 
the  word  in  the  Roman  jurisprudence,  it  is  neces- 
sary to  advert  to  the  four  distinct  powers  which 
were  exercised  by  the  pater  familias,  viz. :  the 
manus,  or  martial  power;  the  mancipium,  resulting 
from  the  mancipatio,  or  alienatio  per  ses  et  libram^ 
of  a  freeman  ;  the  dominica  potestas,  the  power  of 
the  master  over  his  slaves,  and  the  patria  potestas, 
the  paternal  power.  When  the  pater  familias  sold 
his  son,  venum  dai-e,  maneipare,  the  paternal  power 
was  succeeded  by  the  manciptium,  or  the  power  ac- 
quired by  the  purchaser  over  the  person  whom  he 
held  in  mancipio,  and  whose  condition  was  assimi- 
lated to  that  of  a  slave.  What  is  most  remarkable 
is,  that  on  the  emancipation  from  the  mancipium, 
he  fell  back  into  the  paternal  power,  which  was  not 
entirely  exhausted  until  he  had  been  sold  three 
times  by  the  pater  familias.  Si  pater  Jilium  ter 
veniim  duit,  filius  a  patre  liber  esto.  Gains  speaks 
of  the  mancipatio  as  imaginaria  qusedam  vcnditio, 
because  in  his  times  it  was  only  resorted  to  for 
the  purpose  of  adoption  or  emancipation.  See 
Adoption;  Pater  Familias;  1  Ortolan^  112  et 
seq. 

MANDAMUS.  In  Practice.  This  is  a 
high  prerogative  writ,  usually  issuing  out  of 
the  highest  court  of  general  jurisdiction  in  a 
state,  in  the  name  of  the  sovereignty,  directed 
to  any  natural  person,  corporation,  or  inferior 
court  of  judicature  within  its  jurisdiction, 
requiring  them  to  do  some  particular  thing 
therein  specified,  and  which  appertains  to 


MANDAMUS 


94 


MANDAMUS 


their  office  or  duty.  3  Blackstone,  Comm. 
110;  4  Bacon,  Abr.  495;  Opinion  of  Mar- 
shall, Ch.  J.,  in  Marbury  vs,  Madison;  1 
Cranch,  137,  168. 

2.  Its  use  is  well  defined  by  Lord  Mans- 
field, Ch.  J.,  in  Rex  vs.  Barker,  3  Burr.  1265: 
"It  was  introduced  to  prevent  disorder  from 
A  failure  of  justice  and  defect  of  police. 
Therefore  it  ought  to  be  used  upon  all  occa- 
sions when  the  law  has  established  no  specific 
remedy,  and  where  in  justice  and  good  gov- 
ernment there  ought  to  be  one.''  *'  If  there 
be  a  right,  and  no  other  specific  remedy,  this 
should  not  be  denied."  The  same  principles 
are  declared  by  Lord  Elletiborough,  Ch.  J.,  in 
Rex  vs.  Archbishop  of  Canterbury,  8  East, 
219.  See  6  Ad.  &  E.  321.  The  writ  of  man- 
damus is  the  supplementary  remedy  when 
the  party  has  a  clear  right,  and  no  other 
appropriate  redress,  in  order  to  prevent  a 
failure  of  justice.  12  Petersdorff,  Abr.  438 
(309).  It  is  the  absence  of  a  specific  legal 
remedy  which  gives  the  court  jurisdiction,  2 
Selwyn,  Nisi  P.  Mandamus;  29  Penn.  St. 
131;  32i(^.  219;  34  ic?.  496 ;  41  Me.  15  ;  2 
Pat.  &  H.  Va.  385  ;  but  the  party  must  have 
a  perfect  legal  right.  27  Mo.  225;  11  Ind. 
205;  20111.525;  25  Barb.  N.  Y.  73  ;  2  Dutch. 
N.  J.  135  ;  3  Cal.  167. 

3.  The  remedy  extends  to  the  control  of 
all  inferior  tribunals,  corporations,  public 
officers,  and  even  private  persons  in  some 
cases.  But  more  generally  the  English  court 
of  king's  bench,  from  which  our  practice  on 
the  subject  is  derived,  declines  to  interfere 
by  mandam,us  to  require  a  specific  perform- 
ance of  a  contract  when  no  public  right  is 
concerned.  Angell  &  A.  Corp.  761 ;  2  Term, 
260;  6  East,  356;  Bacon,  Abr.  Mandamus; 
28  Vt.  587,  592. 

It  is  a  proper  remedy  to  compel  the  per- 
formance of  a  specific  act  where  the  act  is 
ministerial  in  its  character,  12  Pet.  524 ;  34 
Penn.  St.  293  ;  26  Ga.  665  ;  7  Iowa.  186,  390  ; 
but  where  the  act  is  of  a  discretionary,  6  How. 
92;  IVid.  272;  17  id.  284;  12  Cush.  Mass. 
403  ;  20  Tex.  60 :  10  Cal.  376 ;  5  Harr.  Del. 
108;  12  Md.  329;  4  Mich.  187;  5  Ohio  St. 
628,  or  judicial  nature,  14  La.  Ann.  60 ;  7  Cal. 
130 ;  18  B.  Monr.  Ky.  423  ;  7  Ell.  &  B.  366, 
it  will  lie  only  to  compel  action  generally,  11 
Cal.  42  ;  30  Ala.  n.  s.  49;  28  Mo.  259  ;  and 
where  the  necessity  of  acting  is  a  matter  of 
discretion,  it  will  not  lie  even  to  compel  ac- 
tion.   6  IIow.  92;  5  Iowa,  380. 

4.  This  remedy  will  be  applied  to  compel 
a  corporation  or  public  officer,  14  La.  Ann. 
265;  41  Me.  15;  3  Ind.  452;  see  7  Gray, 
Mass.  280,  to  pay  money  awarded  against 
them  in  pursuance  of  a  statute  duty,  where 
no  other  specific  remedy  is  provided,  6  Ad.  & 
E.  335  ;  8  id.  438,  910  ;  34  Penn.  St.  496;  but  , 
if  debt  will  lie,  and  the  party  is  entitled  to  exe-  ' 
cution,  mandamus  will  not  be  allowed.    Red-  I 
field,  Railw.  §  196,  and  cases  cited  in  notes.  I 
But  mandamus  will  not  })e  granted  to  enforce 
a  matter  of  contract  or  right  upon  which  an 
action  lies  in  the  common-law  courts,  as  to 
enforce  the  duty  of  common  carriers,  7  Dowl. 


Pari.  Cas.  566,  or  where  the  proper  remedy 
is  in  equity.  3  Term,  646;  16  Mees.  &  W. 
Exch.  451.  But  where  compensation  is 
claimed  for  damages  done  under  a  statute, 
mandamus  is  the  proper  remedy.  2  Railw. 
Cas.  1 ;  Redfield,  Railw.  ^  196,  pt.  3,  4,  and 
notes  and  cases  cited. 

5.  Mandamus  is  the  appropriate  remedy 
to  compel  corporations  to  produce  and  allow 
an  inspection  of  their  books  and  records,  at 
the  suit  of  a  corporator,  where  a  controversy 
exists  in  which  such  inspection  is  material  to 
his  interest.  2  Strange,  1223  ;  3  Term,  141 : 
4  Maule  &  S.  162. 

It  lies"  to  compel  the  performance  by  a  cor- 
poration of  a  variety  of  specific  acts  within 
the  scope  of  its  duties.  34  Penn.  St.  496; 
26  Ga.  665  ;  2  Mete.  Ky.  56. 

It  is  the  common  remedy  for  restoring  per- 
sons to  corporate  ofl&ces,  of  which  they  are 
unjustly  deprived:  the  title  to  the  oflSce 
having  been  before  determined  by  proceeding 
by  quo  warranto.  1  Burr.  402 ;  1  Ld,  Raym. 
426  ;  1  Salk.  314;  2  Head,  Tenn.  650.  And 
see  the  cases  fully  review^ed  in  Redfield, 
Railw.  §  197,  pi.  5,  nn.  9-14. 

6.  This  remedy  must  be  sought  at  the 
earliest  convenient  time  in  those  cases  where 
important  interests  will  be  affected  by  the 
delay.  12  Q.  B.  448.  But  it  is  often  neces- 
sary to  delay  in  order  to  determine  definitely 
the  rights  and  injuries  of  the  several  parties 
concerned.  Parke's  ex  parte,  9  Dowl.  Pari. 
Cas.  014;  4  Q.  B.  877. 

It  is  no  sufficient  answer  to  the  application 
that  the  party  is  also  liable  to  indictment  for 
the  act  complained  of.  2  Railw.  Cas.  599 ; 
3  Q.  B.  528.  And  where  a  railway  company 
attempted  to  take  up  their  rails,  they  were  re- 
quired by  mandamus  to  restore  them,  notwith- 
standing they  were  also  liable  to  indictment, 
that  being  regarded  a  less  efficacious  remedy. 
Abbott,  Ch.  J.,  2  Barnew.  &  Aid.  646.  But 
mandamus  will  always  be  denied  when  there 
is  other  adequate  remedy.    11  Ad.  &  E.  69 ; 

1  Q.  B.  288 ;  Redfield,  Railw.  ^  199,  and 
cases  cited  in  notes. 

It  is  not  a  proper  proceeding  for  the  cor- 
rection of  errors  of  an  inferior  court.  13  Pet. 
279,  404;  18  Wend.  N.  Y.  79;  13  La.  Ann. 
481  ;  7  Dowl.  &  R.  334.  Indeed,  by  statute 
6  &  7  Vict.  ch.  67,  §  2,  the  decisions  of  the 
English  courts  upon  proceedings  in  manda- 
mus may  be  revised  on  writ  of  error,  and 
upon  principle  a  writ  of  error  will  lie  when 
the  decision  is  made  to  turn  upon  a  question 
of  law,  and  not  upon  discretion  merely-.  Red 
field,  Railw.  ^  200,  and  notes. 

7.  The  w^rit  is  not  demandable,  as  matter 
of  right,  but  is  to  be  aw^arded  in  the  discre- 
tion of  the  court.    1  Term,  331, 396,  404,  425  ; 

2  id.  336 ;  Redfield,  Railw.  441,  §  190,  and 
cases  cited  in  notes. 

The  power  of  granting  this  writ  in  Eng- 
land seems  originally  to  have  been  exercised 
by  the  court  of  chancery,  as  to  all  the  in- 
ferior courts,  but  not  as  to  the  king's  bench. 
1  Vern.  Ch.  175;  Angell  &  A.  Corp.  §  697. 
But  see  2  Barnew.  &  Aid.  646 ;  2  Maule  &  S. 


MANDAMUS  95 


MANDATE 


80  ;  3  Aid.  &  E.  416.  Sut  for  a  ^reat  num- 
ber of  years  the  granting  of  the  prerogative 
writ  of  mandamus  has  been  confined  in  Eng- 
land to  the  court  of  kirig's  bench. 

8.  In  the  United  States  the  writ  is  gene- 
rally issued  by  the  highest  court  of  judica- 
ture having  jurisdiction  at  law.   34  Penn.  St. 
I  496;  20  111.  525. 

The  thirteenth  section  of  the  act  of  con- 
gress of  Sept.  24,  1789,  gives  the  supreme 
court  power  to  issue  writs  of  mandamus,  in 
cases  warranted  by  the  principles  and  usages 
of  law,  t3  any  courts  appointed  or  persons 
j   holding  office  under  the  authority  of  the 
1  United  States.    The  issuing  of  a  mandamus 
i  to  courts  is  the  exercise  of  an  appellate  juris- 
j  diction,  and,  therefore,  constitutionally  vested 
I  in  the  supreme  court;  but  a  mandamus  di- 
i  rected  to  a  public  officer  belongs  to  original 
j   jurisdiction,  and,  by  the  constitution,  the  ex- 
ercise of  original  jurisdiction  by  the  supreme 
court  is  restricted  to  certain  specified  cases, 
which  do  not  comprehend  a  mandamus.  The 
!  latter  clause  of  the  above  section,  authorizing 
this  writ  to  be  issued  by  the  supreme  court,  to 
persons  holding  office  under  the  authority  of 
the  United  States,  is,  therefore,  not  warranted 
by  the  constitution,  and  void.    1  Cranch,  175. 
I  See  5  Pet.  190;  13      279,  404;  5  How.  103. 
[      The  circuit  courts  of  the  United  States  may 
'  also  issue  writs  of  mandamus ;  but  their  power 
in  this  particular  is  confined  exclusively  to 
those  cases  in  which  it  may  be  necessary  to 
the  exercise  of  their  jurisdiction.    7  Cranch, 
504;  8  Wheat.  598 ;  1  Paine,  C.  C.  453. 
(      9i  The  mode  of  proceeding  in  obtaining 
!  the  writ  is:  first,  to  demand  of  the  party  to 
perform  the  act.   And  it  would  seem  that  the 
party  should  be  made  aware  of  the  purpose 
\  of  the  demand.    3  Ad.  &  E.  217,  477.  The 
I  refusal  must  be  of  the  thing  demanded,  and 
I  not  of  the  right  merely.    5  Barnew.  &  Ad. 
'  978.   The  refusal  should  be  absolute  and  un- 
qualified ;  but  it  may  be  by  silence  only.  But 
the  party  should  understand  that  he  is  re- 
quired to  perform  the  duty  upon  pain  of  the 
legal  redress  being  resorted  to  without  fur- 
ther delay.   4  Railw.  Cas.  112.    But  any  ex- 
ception to  the  demand  should  be  taken  as  a 
preliminary  question.   10  Ad.  &  E.  531 ;  Red- 
field,  Railw.  I  190,  and  notes. 

The  application  for  a  mandamus  may  be 
by  motion  in  court,  and  the  production  of  ex 
parte  affidavits,  in  support  of  the  facts  al- 
leged;  in  which  case  an  alternative  writ 
issues,  as  matter  of  course,  generally,  and  the 
case  is  heard  upon  the  excuse  alleged  in  the 
return  to  the  alternative  writ.  See  2  Mete. 
Ky.  56.  Or  the  party  may  apply  for  the  writ 
by  formal  petition,  setting  forth  the  grounds 
in  detail,  in  which  case  the  merits  of  the 
question  are  determined  upon  the  traverse 
of  the  petition,  instead  of  the  traverse  of  the 
return  to  the  alternative  writ.  9  Ohio  St. 
599.  And  in  either  form,  if  the  application 
prevails,  a  peremptory  mandamus  issues ;  the 
only  proper  or  admissible  return  to  which  is  a 
certificate  of  compliance  with  its  requisitions, 
i  without  further  excuse  or  delay.  Ilodges  on 
Railw.  A40-644 ;  1  Q.  B.  616  ;  1  Iowa,  179. 


10.  The  English  practice  is,  that  if  the 
first  writ  is  denied,  even  on  the  ground  of 
defects  in  the  affidavits,  not  to  permit  a  second 
application  to  be  made.  8  Aid.  &  E.  413-  So, 
also,  if  it  fail  for  other  defects  of  form.  But 
a  more  liberal  practice  obtains  in  the  Ameri- 
can courts.    Redfield,  Railw.  ^  190,  notes. 

Costs  rest  in  the  discretion  of  the  court. 
In  the  English  courts  they  are  allowo(l  when 
the  application  fails,  but  not  always  when  it 
prevails.  Redfield,  Railw.  ^  190,  n.  8.  The 
more  just  rule  in  such  cases  is  to  allow  costs 
to  the  prevailing  party,  unless  there  is  some 
special  reason  for  denying  them  ;  and  this 
rule  now  generally  prevails.  8  Ad.  &  E.  901, 
905 ;  5  icL  804 ;  1  Q.  B.  636,  751 ;  6  Eng.  L. 
&  Eq.  267. 

11.  By  the  recent  Common-Law  Procedure 
Act,  17  &  18  Vict.  c.  125,  any  party  re- 
quiring any  order  in  the  nature  of  specific 
performance  may  commence  his  action  in 
any  of  the  superior  courts  of  common  law, 
in  Westminster  Hall,  except  in  replevin  and 
ejectment,  and  may  indorse  upon  the  writ 
and  copy  to  be  served  that  he  will  claim  a 
writ  of  mandamus,  and  may  renew  the  claim 
in  his  declaration,  and  if  the  writ  is  awarded 
in  the  final  judgment  in  the  case,  it  will  issue 
peremptorily  in  the  first  instance.  The  form 
of  this  statutory  mandamus  is  yery  brief, 
and  its  execution  is  enforced  by  attachment. 
The  prerogative  writ  of  mandamus  is  still 
retained  in  the  English  practice:  but  it  is  ob- 
vious that  the  foregoing  statute'  must  haye 
very  essentially  abridged  its  use,  as  well  as 
that  of  decrees  in  chancery,  for  specific  per- 
formance. See  8  Ell.  &  B.  512;  Redfield, 
Railw.  ^  190,  pi.  8.  _ 

Controverted  questions  of  fact,  arising  in 
the  trial  of  applications  for  mandamus  in  the 
English  practice,  are  referred  to  the  deter- 
mination of  a  jury.  1  Railw.  Cas.  377  ;  2  id. 
711 ;  8  Ell.  &  B.  512;  1  East,  114.  By  the 
American  practice,  questions  of  fact,  in  ap- 
plications for  mandamus,  are  more  commonly 
tried  by  the  court.    2  Mete.  Ky.  56. 

MANDANT.  The  bailor  in  a  contract 
of  mandate. 

MANDATARY,  MANDATARIUS. 

One  who  undertakes  to  perform  a  mandate. 
Jones,  Bailm.  53. 

MANDATE.  A  judicial  command  or 
precept  issued  by  a  court  or  magistrate, 
directing  the  proper  officer  to  enforce  a  judg- 
ment, sentence,  or  decree.  Jones,  Bailm. 
52. 

A  bailment  of  property  in  regard  to  which 
the  bailee  engages  to  do  some  act  without 
reward.    Story,  Bailm.  |  137. 

The  contract  of  mandate  in  the  civil  law  is  not 
limited  to  personal  property,  nor  does  it  require  a 
delivery  of  personal  property  when  it  relates  to 
that.  Pothier,  de  Mand.  n.  1 La.  Civ.  Code,  2954- 
2964.  It  is,  however,  restricted  to  things  of  a  per- 
sonal nature  at  common  law,  and  of  these  there 
must  be  a  deliverv,  actual  or  constructive.  Story, 
Bailm.  ^  142 ;  3  Strobh.  So.  C.  343. 

Mandates  and  deposits  closely  resemble  each 
other:  the  distinction  being  that  in  mandates  th© 
care  and  service  are  the  principal,  and  the  custody 


MANDATE 


96 


MANIA 


the  accessory ;  while  in  deposits  the  custody  is  the 
principal  thing,  and  the  care  and  service  are  merely 
accessory.    Story,  Bailm.  g  140. 

2.  For  the  creation  of  a  mandate  it  is 
necessary,  —  first,  that  there  should  exist 
something,  which  should  be  the  matter  of  the 
contract;  secondly,  that  it  should  be  done 
gratuitously;  and,  thirdly,  that  the  parties 
should  voluntarily  intend  to  enter  into  the 
contract.  Pothier,  Pand.  1.  17,  t.  1,  p.  1,  ^ 
1 ;  Pothier,  de  Mandat,  c.  1,  g  2. 

There  is  no  particular  form  or  manner  of 
entering  into  the  contract  of  mandate  pre- 
scribed either  by  the  common  law  or  by  the 
civil  law,  in  order  to  give  it  validity.  It  may 
be  verbal  or  in  writing ;  it  may  be  express 
or  implied ;  it  may  be  in  solemn  form  or  in 
any  other  manner.  Story,  Bailm.  §  160. 
The  contract  may  be  varied  at  the  pleasure 
of  the  parties.  It  may  be  absolute  or  con- 
ditional, general  or  special,  temporary  or  per- 
manent.   Wood,  Civ.  Law,  242;  1  Domat, 

b.  1,  t,  15,  U  h  6,  7,  8 ;  Pothier,  de  Mandat, 

c.  1,  §  3,  nn.  34-36. 

3.  The  mandatary,  upon  undertaking  his 
trust  and  receiving  his  article,  is  bound  to 
perform  it  as  agreed  upon,  2  Ld.  Raym.  919; 

1  Taunt.  523:  5  Barnew.  &  Aid.  117;  1 
Sneed,  Tenn.  248  ;  6  Binn.  Penn.  308  ;  5  Fla. 
38,  and  is  responsible  only  for  gross  negli- 
gence, 2  Kent,  Comm.  4th  ed.  571-573  ;  1 
H.  Blackst.  158 ;  4  Barnew.  &  C.  345 ;  2  Ad.  & 
E.  256;  16  How.  475;  3  Mas.  C.  C.  132;  14 
Serg.  &  R.*^Penn.  275;  17  Mass.  459;  2 
Hawks,  No.  C.  146 ;  8  Mete.  Mass.  91 ;  but 
in  considering  the  question  of  negligence, 
regard  is  to  be  had  to  any  implied  under- 
taking to  furnish  superior  skill  arising  from 
the  known  ability  of  the  mandatary.  Story, 
Bailm.  U  182;  Jones,  Bailm.  14-16; 
20  Mart.  La.  68.  Whether  a  bank  is  liable 
for  neglect  of  its  agents  in  collecting  notes, 
see  22  Wend.  N.  Y.  215  ;  3  Hill,  N.  Y.  560 ; 
8  N.  Y.  459;  3  Hill,  So.  C.  77;  4  Rawle, 
Penn.  384  ;  2  Gall.  C.  C.  565  ;  10  Cush.  Mass. 
583  ;  12  Conn.  303 ;  6  Harr.  &  J.  Md.  146 ; 
4  Whart.  105  ;  1  Pet.  25.  He  must  render 
an  account  of  his  proceedings,  and  show  a 
compliance  with  the  conditions  of  the  bail- 
ment.   Story,  Bailm.     191  et  seq. 

4.  The  dissolution  of  the  contract  may  be 
by  renunciation  by  the  mandatary  before 
commencing  the  execution  of  the  under- 
taking, 2  Mccs.  &  W.  Exch.  145 ;  1  Mood.  & 
R.  38 ;  2  Ld.  Raym.  909  ;  22  Eng.  L.  &  Eq. 
501  ;  8  B.  Monr.  Ky.  415  ;  3  Fla.  38;  l)y  revo- 
cation of  authority  by  the  mandator,  6  Pick. 
Mass.  198  ;  5  Binn.  Penn.  316;  5  Term,  213; 
see  4  Taunt.  541 ;  16  East,  382;  by  the  death 
of  the  mandator,  6  East,  356 ;  5  Esp.  118 ; 

2  Ves.  &  B.  Ch.  Ir.  51 ;  2  Mas.  C.  C.  244;  8 
Wheat.  174 ;  by  death  of  the  mandatary,  2 
Kent,  Comm.  504 ;  8  Tannt.  403 ;  and  by  a 
change  of  state  of  the  parties.  Story,  Ag.  § 
481  ;  and  in  some  cases  by  operation  of  law. 
Story,  Ag.  ^  500. 

The  question  of  gross  negligence  is  one  for 
the  .jury,  2  Ad.  &  E.  256  ;  3  Bingh.  n.  c.  468; 
II  Wend.  N.  Y.  25,  and  the  plaintiff  must 


show  it.  3  East,  192 ;  4  Esp.  165  ;  2  Ad.  & 
E.  80 ;  10  Watts,  Penn.  335.  See  3  Johns. 
N.  Y.  170 ;  2  Wheat.  100 ;  7  B.  Monr.  Ky. 
661  ;  8  Humphr.  Tenn.  430. 

In  Civil  Law.  The  instructions  which 
the  emperor  addressed  to  a  public  functionary, 
and  which  were  to  serve  as  rules  for  his  con- 
duct. These  mandates  resembled  those  of 
the  proconsuls,,  the  mandata  Jurisdictio,  and 
were  ordinarily  binding  on  the  legates  of 
lieutenants  of  the  emperor  of  the  imperial 
provinces,  and  there  they  had  the  authority 
of  the  principal  edicts.  Savigny,  Dr.  Rom. 
c.  3,  ^  24,  n.  4. 

MANDATOR.  The  person  employing 
another  to  perform  a  mandate.  Story,  Bailm. 
^38;  1  Brown,  Civ.  Law,  382 ;  Halif.  Anal. 
Civ.  Law,  70. 

MANDAVI  BALLIVO.  In  English 
Practice.  The  return  made  by  a  sheriff 
when  he  has  committed  the  execution  of  a 
writ  to  a  bailiff  of  a  liberty,  who  has  the 
right  to  execute  the  writ. 

MANHOOD.  In  Feudal  Law.  A 
term  denoting  the  ceremony  of  doing  homage 
j  by  the  vassal  to  his  lord.  The  formula  used 
j  was  devenio  vester  homo,  I  become  your  man. 
I  2  Blackstone,  Comm.  54.    See  Homage. 

I     MANIA.    In  Medical  Jurisprudence. 

This  is  the  most  common  of  all  the  forms  of 
1  recent  insanity,  and  consists  of  one  or  both 
!  of  the  following  conditions,  viz.:  intellectual 
■  aberration,  and  morbid  or  affective  obliquity, 
j     In  other  words,  the  maniac  either  misapprehends 
i  the  true  relations  between  persons  and  things,  in 
;  const  quence  of  which  he  adopts  notions  manifestly 
(  absurd,  and  believes  in  occurrences  that  never  did 
and  never  could  take  place,  or  his  sentiments,  af- 
l  fections,  and  emotions  are  so  perverted  that  what- 
ever excites  their  activity  is  viewed  through  a  dis- 
j  torting  medium,  or,  which  is  the  most  common 
\  fact,  both  these  conditions  may  exist  togetlitr,  in 
j  which  case  their  relative  share  in  the  disesise  may 
j  differ  in  such  a  degree  that  one  or  the  other  may 
I  scarcely  be  perceived  at  all.    According  as  the  in- 
tellectual or  moral  element  prevails,  the  disease  is 
called  inieUectnal  or  moral  mania.    Whether  the 
former  is  ever  entirely  wanting  has  been  stoutly 
questioned,  less  from  any  dearth  of  facts  than 
from  some  fancied  metaphysical  incongruity.  The 
logical  consequence  of  the  doubt  is  that  in  the 
absence  of  intellectual  disturbance  there  is  really 
no  insanity, — the  moral  disorders  proceeding  rather 
from  unbridled  passions  than  any  pathological  con- 
dition.   Against  all  such  reasoning  it  will  be  suf- 
j  ficient  here  to  oppose  the  very  common  fact  that 
in  every  collection  of  the  insane  may  be  found 
j  many  who  exhibit  no  intellectual  aberration,  but 
I  in  whom  moral  disorders  of  the  most  flagrant  kind 
I  present  a  marked  contrast  to  the  previous  cha- 
I  racter  and  habits  of  life. 

j  Both  forms  of  mania  may  be  either  general  or 
partial.  In  the  latter,  the  patient  has  adopted! 
some  notion  having  a  verj'  limited  influence  upon 
his  mental  movements,  while  outside  of  that  no> 

'  appearance  of  impairment  or  irregularity  can  be 

!  discerned.  Pure  monomania,  as  this  form  of  in- 
sanity has  been  often  called, — that  is,  a  mania 

I  confined  to  a  certain  point,  the  understanding, 
being  perfectly  sound  in  every  other  respect, — is, 
no  doubt,  a  veritable  fact,  but  one  of  very  rare 
occurrence.  The  peculiar  notions  of  the  insane, 
constituting  insane  belief,  are  of  two  kinds :  delu- 


MANIA 


97 


MANIA 


etona  and  hallucinotions.  By  the  former  is  meant 
a  firm  belief  in  something  impossible,  either  in  the 
nature  of  things  or  in  the  circumstances  of  the 
case,  or,  if  possible,  highly  improbable,  and  asso- 
ciated in  the  mind  of  the  patient  with  consequences 
tl|jat  have  to  it  only  a  fanciful  relation.  By  hallu- 
cination is  meant  an  impression  supposed  by  the 
patient,  contrary  to  all  proof  or  possibility,  to  have 
been  received  through  one  of  the  flenses.  For  in- 
stance, the  belief  that  one  is  Jesus  Christ  or  the 
Pope  of  Rome  is  a  delusion  ;  the  belief  that  one 
hears  voices  speaking  from  the  walls  of  the  room, 
or  sees  armies  contending  in  the  clouds,  is  a  hallu- 
cination. The  latter  implies  some  morbid  activity 
of  the  perceptive  powers;  the  former  is  a  mistake 
of  the  intellect  exclusively. 

2.  The  legal  consequences  of  partial  in- 
tellectual mania  in  criminal  cases  are  not 
yet  very  definitely  settled.  In  the  trial  of 
Hadfield,  Mr.  Erskine,  his  counsel,  declared 
that  delusion  was  the  true  test  of  the  kind 
of  mental  disease  which  annuls  criminal  re- 
sponsibility ;  and  the  correctness  of  the  prin- 
ciple was  unhesitatingly  recognized  by  the 
court.  In  subsequent  trials,  however,  it  has 
been  seldom  mentioned,  being  discarded  for 
other  more  favorite  tests.  In  the  authorita- 
tive statement  of  the  law  made  by  the  Eng- 
lish judges,  in  1843,  in  reply  to  queries  pro- 
pounded by  the  house  of  lords,  it  is  recognized 
as  a  sufficient  plea  in  defence  of  crime,  under 
certain  qualifications.  The  effect  of  the  de- 
lusion oa  the  quality  of  the  act  will  be  pre- 
cisely the  same  as  if  the  facts  in  connection 
with  it  were  real.  "For  example,"  they  say, 
"if  under  the  influence  of  delusion  the  per- 
son supposes  another  man  to  be  in  the  act  of 
attempting  to  take  away  life,  and  he  kills 
that  man,  as  he  supposes,  in  self-defence,  he 
would  be  exempt  from  punishment.  If  his 
delusion  was  that  the  deceased  had  inflicted 
a  serious  injury  to  his  character  and  fortune, 
and  he  killed  him  in  revenge  for  such  sup- 
posed injury,  he  would  be  liable  to  punish- 
ment." iO  Clark  &  F.  Hou.  L.  200.  "Ifaman 
had  the  delusion  that  his  head  M'as  made  of 
glass,  that  would  be  no  excuse  for  his  killing 
a  man:  he  M'ould  know  very  well  that,  al- 
though his  head  was  made  of  glass,  that  was 
no  reason  why  he  should  kill  another  man, 
and  that  itwa:  a  wrong  act;  and  he  would 
be  properly  subjected  to  punishment  for  that 
act."  Baron  Alderson,  in  Reg.  vs.  Pate,  Times, 
July  12,  1850.  In  Com.  vs,  Rogers,  7  Mete. 
Mass.  500,  this  view  was  adopted,  and  has 
become  authority  in  this  country.  At  first 
sight  this  doctrine  seems  to  be  very  reason- 
able; but  herein  consists  its  fallacy,  in  ex- 
pecting sound  logical  reasoning  from  the  in- 
sane. To  suppose  that  one  may  kill  another 
for  some  little  affront  or  injury  is  no  less  an 
indication  of  insanity  than  to*^  suppose  that 
one's  head  is  made  of  glass,  and  he  is  no  more 
responsible  for  one  than  for  the  other.  It  is 
a  characteristic  trait  of  the  insane  that  they 
do  not  gauge  the  measure  of  their  retaliation 
for  the  fancied  injuries  which  they  suffer  by 
the  standards  of  sane  men.  The  doctrine  of 
the  courts,  therefore,  is  in  direct  conflict  with 
the  facts  of  science.  It  also  indicates  the 
unwillingness  common  among  all  classes 
Vol.  II.— 7 


of  minds  to  regard  any  person  as  irrespon- 
sible who,  notwithstanding  some  delusicjns, 
conducts  with  shrewdness  and  discretion  ia 
most  of  the  relations  of  life. 

I  3.  In  civil  cases  the  prevailing  doctrine  is 
that  partial  intellectual  mania  invalidates,  as 
it  certainly  should,  any  act  performed  under 
its  influence.  The  principle  was  enlorced 
with  remarkable  clearness  and  ability  by  Sir 
John  Nicholl,  in  the  celebrated  case  of  Dew  vs. 
Clark,  3  Add.  Eccl.79.  See  Johnson  r.v.  Moore's 
heirs,  1  Litt.  Ky.  371.  This  is  noticeable  as 
being  opposed  to  the  principle  of  what  was 
then  the  leading  case  on  the  subject.  Green- 
wood vs.  Greenwood,  13  Ves.  Ch.  88,  sed  (on- 
tra,  3  Curt.  Eccl.  337,  whei  e  a  will  was  esta- 
blished which  was  made  under  the  direct  in- 
fluence of  a  delusion.  Recently,  however. 
Lord  Brougham  has  declared  that,  in  regard 
to  legal  consequences,  partial  is  not  to  be  dis- 
tinguished from  general  insanity,  because  it 
is  impossible  to  assign  limits  to  the  action  of 
the  former  in  any  given  case.  If  the  mind 
were  an  aggregate  of  various  faculties,  then 
it  might  be  possible,  perhaps,  to  indicate 
those  which  are  diseased  and  trace  the  opera- 
tion of  the  disease ;  but,  the  fact  being  that 
the  mind  is  one  and  indivisible,  insanity  on 
one  point  renders  it  unreliable  on  any  other, 
and,  consequently,  must  invalidate  any  civil 
act,  whether  sensible  and  judicious  or  mani- 
festly prompted  by  the  delusion.  If,  for  in- 
stance, a  person  believing  himself  to  be  Em^ 
peror  of  Germany  should  make  his  will,  and 
that,  while  so  doing,  something  should  occur 
to  lead  him  to  utter  his  delusion,  then  cer- 
tainly that  will  cannot  be  established,  how- 
ever correct  and  rational  its  dispositions  may 
be.  In  this  view  of  the  matter,  his  lordship 
said  he  had  the  concurrence  of  Lord  Lang- 
dale,  Dr.  Lushington,  and  Mr.  T.  Pembert(  n 
Leigh.  Waring  vs.  Waring,  6  Thornt.  It 
is  not  probable,  however,  that  the  common 
practice,  founded  as  it  is  on  our  maturest 
knowledge  of  insanitj^  will  be  readily  aban- 
doned on  the  strength  of  a  showy  speculation. 
It  may  now  be  considered  as  the  settled  doc- 
trine of  English  and  American  courts  that  par- 
tial insanity  may  or  may  not  invalidate  a  will. 

4.  In  general  intellectual  mania,  except- 
ing that  form  of  it  called  raving,  it  is  not  to 
be  understood  that  the  mind  is  irrational  on 
every  topic,  but  rather  that  it  is  the  sport 
of  vague  and  shifting  delusions,  or,  where 
these  are  not  manifest,  has  lost  all  nicet}'  of 
intellectual  discernment,  and  the  ability  to 
perform  any  continuous  process  of  thought 
with  its  customary  steadiness  and  correctness. 
It  is  usually  accompanied  by  feelings  of 
estrangement  or  indifference  towards  those 
who  at  other  times  were  objects  of  affection 
and  interest.  A  common  feature  of  the  dis- 
ease is  either  more  or  less  nervous  exaltation, 
manifested  by  loquacity,  turbulence,  and  great 
muscular  activity,  or  depression,  indicated 
by  silence,  gloom,  painful  apprehensions,  and 
thoughts  of  self-destruction. 

The  legal  consequences  of  general  intel- 

,  lectual  mania  depend  somewhat  on  the  vio- 


98 


MANIA 


leiice  of  the  disease,  the  instructions  of  the 
court,  the  opinions  of  experts,  and  the  intelli- 
gence of  the  jury.  In  its  higher  grades, 
where  all  reason  has  disappeared,  and  the 
person  knows  nothing  correctly,  responsibility 
18  unquestionably  annulled.  1  Hale,  PI.  Cr. 
30.  In  cases  where  reason  has  not  completely 
gone, — where  the  person  converses  rationally 
un  some  topics,  and  conducts  with  propriety 
in  some  relations  of  life, — the  law  does  not 
regard  him  as  necessarily  irresponsible.  It 
lays  dovrn  certain  criteria,  or  tests,  and  the 
manner  in  which  he  stands  these  decides 
the  question  of  guilt  or  innocence.  On  these 
points  the  practice  varied  to  such  a  degree 
that  it  was  impossible  to  say  with  any  confi- 
dence what  the  law  actually  was.  Ray, 
Med.  Jur.  42.  In  this  dilemma,  the  house 
of  lords  propounded  to  the  judges  of  Eng- 
land certain  queries,  for  the  purpose  of  ob- 
taining an  authoritative  exposition  of  the  law. 
10  Clark  &  F.  Hou.  L.  200.  These  queries 
had  reference  chiefly  to  the  efiect  of  delu- 
sions ;  and  the  reply  of  the  judges  has  been 
just  considered.  In  regard  to  the  effect  of 
insanity  generally,  they  reply  that  "  to  esta- 
blish a  defence  on  the  ground  of  insanity  it 
must  be  clearly  proved  that  at  the  time  of 
committing  the  act  the  party  accused  was 
laboring  under  such  a  defect  of  reason,  from 
disease  of  the  mind,  as  not  to  know  the  nature 
and  quality  of  the  act  he  was  doing,  or,  if  he 
did  know  it,  that  he  did  not  know  he  was 
doing  what  was  wrong."  In  regard  to  this 
criterion,  it  is  enough  to  say  that  had  it  been 
always  used  it  would  have  produced  the  con- 
viction of  most  of  those  who  are  universally 
regarded  as  having  been  properly  acquitted. 
Hadtield,  for  instance,  knew  that  in  attempt- 
ing the  life  of  the  king  he  was  doing  w^rong, 
and  that  the  act,  if  successful,  would  be  mur- 
der ;  but  he  thought  it  would  lead  to  the  ac- 
complishment of  great  ends,  and  he  was 
ready  to  meet  the  punishment  he  deserved. 
So,  too,  in  regard  to  the  common  case  of  a 
person  killing  his  children  to  prevent  their 
coming  to  want :  he  is  perfectly  aware  of  the 
nature  and  quality  of  the  act,  but  considers 
himself  justified  by  the  end  proposed.  And 
yet  such  persons  have  been  generally  ac- 
quitted. The  truth  is,  these  criteria  have  no 
foundation  in  nature,  and  do  not  truly  indi- 
cate the  extent  to  which  the  disease  has 
atfected  the  operations  of  the  mind.  Insanity 
once  admitted,  in  any  degree,  it  is  only  sheer 
presumption,  not  wisdom,  to  say  that  it  could 
not  have  perverted  the  action  of  the  mind  in 
regard  to  any  particular  criminal  act.  Ray, 
Med.  Jur.  Ins.  60,  04,  273-284. 

5.  In  moral  or  affective  mania,  the  disorder 
is  manifested  chiefly,  if  not  entirely,  in  the 
sentiments  or  propensities,  w^hich  are  essen- 
tial parts  of  our  mental  constitution,  and,  of 
course,  as  liable  to  disease  as  the  intellectual 
faculties.  It  may  be  partial  or  j^eneral.  In 
the  former,  a  single  propensity  is  excited  to 
such  a  degree  of  activity  as  to  impel  the  per- 
son to  its  gratification  by  an  irresistible  force, 
while  perfectly  conscious  of  the  nature  of  the 


act  and  deploring  the  necessity  that  controls 
him.    Our  limits  allow  us  to  do  but  little 
more  than  to  indicate  the  principal  of  these 
morbid  impulses: — propensity  to  kill,  homi- 
cidal monomania  ;  propensity  to  steal,  klepto- 
mania; sexual  propensity,  aicioiomama;  prV 
pensity  to  burn,  pr/romania;  propensity  to 
drink,  dipsomania.    In  the  first,  the  patient 
is  impelled  by  an  inward  necessity  to  take 
life,  without  provocation,  without  motive 
The  victim  is  often  the  patient's  child,  or 
some  one  to  whom  he  has  been  tenderly 
attached.    In  most  cases  there  has  been  some 
derangement  of  health,  or  some  deviation 
from  the  ordinary  physiological  condition, 
such  as  delivery,  suppressed  menstruation; 
but  occasionally  no  incident  of  this  kind 
can  be  detected  ;  the  patient  has  been,  appa- 
rently, in  his  ordinary  condition,  both  bodily 
and  mental.    Kleptomania  occurs  in  persons 
of  a  previously  irreproachable  life,  who  may 
be  in  easy  circumstances,  and,  by  education 
and  habit,  above  all  petty  dishonesty.  The 
objects  stolen  are  usually,  not  always,  of 
trifling  value,  and  put  away  out  of  sight  &.s 
soon  as  obtained.    It  generally  occurs  in  con- 
nection with  some  pathological  or  other  ab-  , 
normal  conditions, — as  a  sequel  of  fever  or 
blows  on  the  head,  of  pregnancy  and  dis-  • 
ordered  menstruation,  and  the  precursor  of  ; 
mania  and  organic  disease  of  the  brain.  Pyro-  ; 
mania  always  occurs  in  young  subjects,  and 
is  supposed  to  be  connected  with  disordered 
menstruation,  or  that  physiological  evolution  | 
which  attends  the  transition  from  youth  to  , 
manhood.    Doubts  have  been  inconsideratel}" 
expressed  as  to  the  maniacal  character  of  . 
these  singular  impulses,  which  are  attributed 
to  depravity  of  character  rather  than  disease. 
Nothing,  however,  is  better  established  by  an  > 
abundance  of  cases  related  by  distinguished  / 
observers.  In  spite  of  all  metaphysical  cavils,  j 
there  are  the  cases  on  record  ;  and  there  they  : 
will  remain,  to  be  increased  in  number  with  ' 
every  year's  observation.  | 
6.  Nothing  can  be  more  contrary  to  the  j 
spirit  of  the  common  law  than  to  show  any 
favor  to  the  plea  of  this  kind  of  insanity  in 
defence  of  crime.    Occasionally,  however, 
this  defence  has  prevailed  in  minor  offences, 
owing  more  to  favorable  accessory  circum- 
stances than  to  its  intrinsic  merits.  Juries 
have  been  loath  to  convict  of  theft  a  man  who 
towards  the  close  of  an  exemplary  life  has 
been  detected  in  stealing  things  of  insignifi- 
cant value,  or  a  lady  who  w  hen  pregnant, 
and  only  then,  forgets  entirely  the  distinctions 
of  meum  and  tuum,  though  at  all  other  times 
a  model  of  moral  propriety.    In  cases  of 
homicide,  the  defence  of  moral  mania  has 
been  too  seldom  made,  either  in  this  country 
or  England,  to  settle  the  law  on  the  sub- 
ject.   But  there  is  no  reason  to  suppose  that 
the  old  criteria  would  be  dispensed  with  un- 
less some  peculiar  features  of  the  case  con- 
veyed unquestionable  evidence  of  insanity. 
In  1846,  C.  J.  Gibson,  of  Pennsylvania,  ad- 
mitted that  "there  is  a  nloral  or  homicidal 
;  insanity,  consisting  of  an  irresistible  inchna- 


i 


MANIA 


99 


MANNER  AND  FORM 


tion  to  kill  or  to  commit  some  other  particular 
ofFence,"  which  would  be  a  competent  defence. 
Wharton,  Ment.  Unsound.  43.  JuHt  pre- 
viously, C.J.  Shaw,  in  Com.  vs.  R()o;ers,  7  M(!tc. 
Mass.  500,  had  mentioned  an  uncontrolla- 
ble impulse"  as  among  the  conditions  which 
would  annul  criminal  responsibility.  In  prac- 
tice, the  objection  would  always  be  urged 
that  such  impulses  as  those  under  considera- 
tion are  not  uncontrollable. 

•y.  In  gen(!ral  moral  mania,  it  is  not  to  be 
supposed  that  the  sentiments  and  propensi- 
ties are  all  and  equally  disordered.  On  the 
contrary,  the  propensities  may  not  be  excess- 
ively active,  though  occasionally  one  may 
crave  unusual  indulgence.  The  essential 
feature  of  general  moral  mania  is  that  the 
moral  relations,  whereby  the  conduct  is  gov- 
erned, more  than  by  the  deductions  of  reason, 
are  viewed  through  a  distorting  medium. 
This  condition  is  usually  accompanied  by  a 
perversion  of  some  of  the  sentiments  that 
inspire  hope,  fear,  courage,  self-reliance,  self- 
respect,  modesty,  veracity,  domestic  affec- 
tion. The  patient  is  eager  and  sanguine  in 
the  pursuit  of  whatever  strikes  his  fancy, 
ready  with  the  most  plausible  reasons  for 
the  success  of  the  wildest  projects,  viewing 
every  prospect  through  a  rose-colored  me- 
dium, and  regardless  of  the  little  proprieties 
and  amenities  of  life.  Love  for  others  is 
replaced  by  aversion  or  indifference ;  the  least 
contradiction  or  check  is  met  by  anger  or  im- 
patience ;  he  is  restless,  insensible  to  fatigue, 
and  sleeps  comparatively  little.  In  some 
cases,  and  often  at  different  periods  in  the 
same  case,  the  very  opposite  moral  condition 
occurs.  Without  cause,  true  or  delusive,  the 
person  is  completely  wretched.  The  past 
affords  him  no  pleasure,  the  future  reveals 
not  a  single  gleam  of  hope,  and  the  ordinary 
sources  of  comfort  and  joy  only  serve  to 
darken  the  cloud  of  doubt,  apprehension,  and 
despair  in  which  he  is  enveloped. 

8.  There  is  no  good  reason  why  general 
moral  mania  should  not  be  followed  by  the 
Bamc  legal  consequences  as  those  of  intellect- 
ual mania.  True,  the  intellect  is  supposed  to 
be  sound  ;  but  that  is  only  one  element  of  re- 
sponsibility, which  requires,  besides  a  know- 
ledge of  the  right  and  true,  the  power,  sup- 
plied only  by  the  moral  faculties,  to  obey 
their  dictates.  If  the  latter  are  diseased, 
then  is  respjnsibility  annulled  just  as  effect- 
ually as  if  the  knowing  faculties  were  dis- 
ordered by  delusion.  The  conduct  of  most 
men  is  determined  in  a  great  degree  as  much 
by  the  state  of  their  feelings  as  by  the  con- 
clusions of  their  understandings ;  and  when 
the  former  are  affected  by  disease,  nothing 
can  be  more  unphilosophical,  more  contra- 
dictory to  facts,  than  to  ignore  its  existence 
altogether  in  settling  the  question  of  respon- 
sibility. Theoretically,  this  form  of  insanity 
is  not  recognized  by  courts.  In  Reg.  vs. 
Barton,  it  was  pronounced  by  Baron  Parke 
to  be  "  a  dangerous  innovation  coming  in 
with  the  present  century."  3  Cox,  Cr.  Cas. 
275.    "A  man  might  say  he  picked  a  pocket 


from  soine  un(;ontrollable  impulse;  and  in 
that  cas(;  the  law  would  have  an  uncontrolla- 
bl<!  impulses  to  punish  him  for  it."  Baron 
Alderson,  in  R(!g.  vs.  Pat(!,  Lond.  Times,  July 
12,  1850.  See,  also,  Chiity,  Med.  Jur.  352 ; 
3  Carr.  &  Kir.  185.  In  Fi-(!re  ?;.v.  Peacock,  1 
Rob.  448,  the  court,  Sir  liorbert  Jenner  Fust, 
said  "  he  was  not  awai  e  of  any  case  decided 
in  a  court  of  law,  wdiere  moral  perversion  of 
the  feelings,  unaccompanied  with  delusion, 
has  been  held  a  sufficient  ground  to  invalidate 
and  nullify  the  acts  of  one  so  affected."  In 
this  country,  C.  J.  Iloriiblowor,  in  State  vs. 
Spencer,  I  Zabr.  lOG,  declared  himseif 
strongly  against  the  doctrine  of  moral  in- 
sanity. On  the  other  hand,  C.  J.  Lewis,  (jf 
Pennsylvania,  in  a  case  he  was  trying,  de- 
clared emphatically  that,  "where  its  existence 
is  fully  established,  this  species  of  insanity 
relieves  from  accountability  to  human  laws." 
Wharton,  Ment.  Unsound.  44.  In  cases  not 
capital,  the  verdict  would  probably  be  deter- 
mined rather  by  the  circumstances  of  the 
case  than  by  any  arbitrary  rule  of  law.  See 
Insanity. 

MANIA  A  POTU.  See  Delirium  Tre- 
mens. 

MANIFEST.  In  Commercial  Law.  A 

w^rittcn  instrument  containing  a  true  account 
of  the  cargo  of  a  ship  or  a  commercial  vessel. 

As  to  the  requirements  of  the  United  States 
laws  in  respect  to  manifests,  see  1  Story,  U. 
S.  Laws,  593,  594. 

The  want  of  a  manifest,  where  one  is  re- 
quired, and  also  the  making  a  false  manifest, 
are  grave  offences. 

In  Evidence.  That  which  is  clear  and 
requires  no  proof;  that  which  is  notorious. 
See  Notoriety. 

MANIFESTO.  A  solemn  declaration, 
by  the  constituted  authorities  of  a  nation, 
which  contains  the  reasons  for  its  public  acts 
towards  another. 

On  the  declaration  of  war,  a  manifesto  is 
usually  issued,  in  which  the  nation  declaring 
the  war  states  the  reasons  for  so  doing. 
Vattel,  1.  3,  c.  4,  ^  G4;  Wolffius,  |  1187. 

MANKIND.  Persons  of  the  male  sex; 
the  human  species.  The  statute  of  25  Hen. 
VIII.,  c.  6,  makes  it  felony  to  commit  sodomy 
with  mankind  or  beast.  Females  as  well  as 
males  are  included  under  the  term  mankind. 
Fortescue,  91 ;  Bacon,  Abr.  Sodomy.  See 
Gender. 

MANNER  AND  FORM.  In  Plead- 
ing. After  traversing  any  allegati'  n  in 
pleading,  it  is  usual  to  say,  "  in  manner  and 
form  as  he  has  in  his  declaration  in  that  be- 
half alleged,"  which  is  as  much  as  to  include 
in  the  traverse  not  only  the  mere  fact  opposed 
to  it,  but  that  in  the  manner  and  form  in 
which  it  is  stated  by  the  other  party.  These 
words,  however,  only  put  in  issue  the  sub- 
stantial statement  of  the  manner  of  the  fact 
traversed,  and  do  not  extend  to  the  time, 
place,  or  other  circumstances  attending  it,  if 
they  were  not  originally  material  and  neces- 


MANNOPUS 


100 


MANSLAUGHTER 


sary  to  be  proved  as  laid.  3  Bouvier,  Inst. 
297.    See  Modo  et  Forma. 

MANNOPUS  (Lat.).  An  ancient  word, 
which  signifies  goods  taken  in  the  hands  of 
an  apprehended  thief. 

MANOR. 

This  word  is  derived  from  the  French  manoir, 
and  signifies  a  house,  residence,  or  habitation.  At 
present  its  meanin^^  is  more  enl:irged,  and  includes 
not  only  a  dwelling-huuse,  but  also  lands.  See 
Coke,  Litt.  58,  108;  2  Eolle,  Abr.  121;  Merlin, 
Eepert,  Manoir.  See  Sergeant,  Land  Laws  of 
Penn.  195. 

In  English  Law.  A  tract  of  land  origin- 
ally granted  by  ilae  king  to  a  person  of  rank, 
art  of  which  [terrce  teneweutalcs)  were  given 
y  the  grantee  or  lord  of  tho  n);;n  ir  to  his 
followers,  the  rest  he  l  etained,  under  the  name 
of  his  demesnes  {terrce  domiincales).  That 
which  remained  uncultivated  was  called  the 
lord's  waste,  and  served  for  public  roads,  and 
commons  of  |iiistnre  for  the  h)rd  and  his 
tenants.  The  whole  fee  was  called  a  lordship, 
or  barony,  and  the  court  appendant  to  the 
manor  the  court-baron.  The  tenants,  in  re- 
spect to  their  relation  to  this  court  and  to 
each  other,  were  called  pares  ciirice;  in  rela- 
tion to  the  tenure  of  their  lands,  copyholders 
{q.v.),  as  holding  by  a  copy  of  the  record  in 
the  lord's  court. 

The  franchise  of  a  manor;  i.e.  the  right  to 
jurisdiction  and  rents  and  services  of  copy- 
holders. Cowel.  No  new  manors  were  cre- 
ated in  England  after  the  prohibition  of  sub- 
infeudation bv  Stat.  Quia  Empiores,  in  1290. 
1  Washburn.  Real  Prop.  30. 

In  American  Law,  A  manor  is  a  tract 
held  of  a  proprietor  hy  a  fee-farm  rent  in 
money  or  in  kind,  and  descending  to  oldest 
son  of  proprietor,  who  in  New  York  is  called 
a  patroon. 

Manor  is  derived  originally  either  from  Lat. 
manendo,  remaining,  or  from  Brit,  maer, 
stones,  being  the  place  marked  out  or  inclosed 
by  stones.  AVebst. 

MANSE.  Habitation ;  farm  and  land. 
Spelman,  Gloss.  Parsonage  or  vicarage 
house,  Paroch.  Antiq,  431 ;  Jacob,  Law  Diet. 
So  in  Scotland.    Bell,  Diet. 

MANSION-HOUSE.  Any  house  of 
dwelling,  in  the  law  of  burglary,  etc.  Coke, 
3d  Inst.  04. 

The  term  "  mansion-liouse,"  in  its  common 
sense,  not  only  includes  the  dwelling-house, 
but  also  all  the  buildings  within  the  curtilage, 
as  the  dairy-house,  the  cow-house,  the  stable, 
et(!. ;  though  not  under  the  same  roof  nor  con- 
tiguous. Burn,  Inst.  Burglary;  1  Thomas, 
Co.  Litt.  215,  21(3;  1  Ilaie,  PI.  Cr.  558;  4 
Sharswood,  Blackst.  Comm.  225.  See  3  Sero- 
&  K.  Penn.  IU9  ;  4  Strobh.  So,  C.  372;  h 
Bost.  Law  Rep.  157;  4  Call.  Va.  109;  14 
Mees.  &  W.  Exch.  181 ;  4  C.  B.  105. 

MANSLAUGHTER.  In  Criminal 
Law,  The  unlawlul  killing  of  another 
without  malic(!  either  express  or  implied.  4 
Blackstone,  Comm.  190;  1  Ilale,  PL  Cr.  400. 

Tho  distinctiun  between  manslaughter  and  mur- 


der consists  in  the  following.  In  the  former,  though 
the  act  which  occasions  the  death  be  unlawful,  or 
likely  to  be  attended  with  bodily  mischief,  yet  tho 
malice,  either  express  or  implied,  which  is  the  very 
essence  of  murder,  is  presumed  to  be  wanting  in 
manslaughter.    1  East,  PI.  Cr.  218:  Foster,  290: 

5  Cu^h.  Mass,  304, 

It  also  differs  from  murder  in  this,  that  there  can 
be  no  accessaries  before  the  fact,  there  having  been 
no  time  for  premeditation.  1  Hale,  PI.  Cr.  437;  1 
Russell,  Crimes,  485. 

Involuntary  manslaughter  is  such  as  hap- 
pens without  the  intention  to  inflict  the 
injury. 

Voluntary  manslaughter  is  such  as  hap- 
pens voluntarily  or  with  an  intention  to  pro- 
duce the  injury. 

2.  Homicide  may  become  manslaughter  in 
consequence  of  provocation;  mutual  com- 
bat ;  in  case  of  resistance  to  public  officers, 
etc. ;  killing  in  the  prosecution  of  an  unlaw- 
ful or  wanton  act ;  or  killing  in  the  prosecu- 
tion of  a  lawful  act  improperly  performed, 
or  performed  without  lawful  authority. 

3.  The   provocation  which  reduces  the 
killing  from  murder  to  manslaughter  is  an 
answer  to  the  presumption  of  malice,  which 
the  law  raises  in  every  case  of  homicide:  it' 
is,  therefore,  no  answer  when  express  malice : 
is  proved.    1  Russell,  Crimes,  440;  Foster, 
132  ;  1  East,  PI.  Cr.  239.  And  to  be  available  ' 
the  provocation  must  have  been  reasonable' 
and  recent;  for  no  words  or  slight  provocation 
will  be  sufficient,  and  if  the  party  has  had 
time  to  cool,  malice  will  be  inferred,   3  Wash. 
C.  C.  515  ;  4  Penn.  St.  204 ;  2  N.  Y.  193  ;  25  ' 
Miss.  383  ;  3  Gratt.  Va.  594 ;  6  Blackf.  Ind. 
299 ;  8  Ired.  No.  C.  344;  18  Ala.  n.  s.  720; 
15  Ga.  223  ;  10  Humphr.  Tenn,  141  ;  1  Carr. 

6  K.  550 ;  5  Carr.  «fe  P.  324 ;  6  How.  St. 
Tr.  769  ;  17  id.  bl :  1  Leach,  Cr.  Cas.  4th  ed.  , 
151.  ; 

4.  In  cases  of  mutual  combat,  it  is  gene-  i 
rally  manslaughter  only,  when  one  of  the  ' 
parties  is  killed.  J.  Kel.  58,  119;  4  Dev.  &  ' 
B.  No.  C.  191 ;  1  Jones,  No.  C.  280;  2  Carr.  \ 
&  K.  814.  When  death  ensues  from  duel-  ' 
ling,  the  rule  is  different;  and  such  killing  is 
murder. 

The  killing  of  an  officer  by  resistance  to 
him  while  acting  under  lawful  authority  is 
murder;  but  if  the  officer  be  acting  under  a 
void  or  illegal  authority,  or  out  of  his  juris- 
diction, the  killing  is  manslaughter,  or  ex- 
cusable homicide,  according  to  the  circum- 
stances of  the  case.  1  Mood.  Cr.  Cas.  80, 
132;  1  Hale,  PI.  Cr.  458;  1  East,  PI.  Cr. 
314;  2  Stark.  Nisi  P,  Cas,  205. 

5.  Killing  a  person  while  doing  an  act  of 
mere  wantonness  is  manslaughter :  as,  if  a 
person  throws  down  stones  in  a  coal-pit,  by 
which  a  man  is  killed,  although  the  offender 
was  only  a  trespasser.    Lew.  Cr.  Cas.  179. 

When  death  ensues  from  the  performance 
of  a  lawful  act,  it  may,  in  consequence  of  the 
negligence  of  the  offender,  amount  to  man- 
slaughter. For  instance,  if  the  death  has 
been  occasioned  by  negligent  driving.  lj| 
East,  PI.  Cr.  263  ;  1  Carr.  &  P.  320;  G  id.  129  J 
Again,  when  death  ensues  from  the  grosM 


MANSTEALING 


negligence  of  a  medical  or  surgical  prac- 
titioner, it  is  manslaughter.  It  is  no  crime 
for  any  to  administer  medicine;  but  it  is  a 
crime  to  administer  it  so  rashly  and  care- 
lessly, or  with  such  criminal  inattention,  as  to 
produce  death ;  and  in  this  respect  there  is 
no  difference  between  the  most  regular  prac- 
titioner and  the  greatest  quack.  1  Fost.  & 
F.  510,  521 ;  3  Carr.  &  K,  202;  4  Carr.  &  P. 
440;  1  Bennett  &  II.  Lead.  Crim.  Cas.  40- 
48.  And  see  G  Mass.  134 ;  1  Hale,  PI.  Cr. 
420 ;  3  Carr.  &  P.  G32. 

MANSTEALING.  A  word  sometimes 
used  synonymously  with  kidnapping.  The 
la<  tor  is  more  technical.  4  Blackstone,  Comm. 
210. 

MANTJ  FORTI  (Lat.  with  strong  hand). 
A  term  used  in  pleading  in  cases  of  forcible 
entry.  No  other  words  are  of  equal  import. 
8  Term,  362 ;  4  Cush.  Mass.  141 ;  Dane,  Abr. 
c.  132,  a.  6,  c.  203,  a.  12. 

MANU  OPERA.    See  Mannopus. 

MANUAL.  That  which  is  employed  or 
used  by  the  hand,  of  which  a  present  profit 
may  be  made.  Things  in  the  manual  occu- 
pation of  the  owner  cannot  be  distrained  for 
rent.    See  Tools. 

MANU  CAP  TIO  (Lat.).  In  Old  English 
Practice.  A  writ  which  lay  for  a  man  taken 
on  suspicion  of  felony,  and  the  like,  who 
could  not  be  admitted  to  bail  by  the  sheriff, 
or  others  having  power  to  let  to  mainprise. 
Fitzherbert,  Nat.  Brev.  240. 

MANUCAPTORS.  The  same  as  main- 
pernors. 

MANUFACTURE.    In  Patent  Law. 

A  term  which  is  used  to  denote  whatever  is 
made  directly  by  the  hand  of  man,  or  indi- 
rectly through  the  instrumentality  of  any 
machinery  which  is  controlled  by  human 
power.  It  is  also  applied  to  the  process  by 
which  those  results  are  produced.  A  com- 
modity may  be  regarded  as  being  in  itself  a 
manulacture,  or  as  being  produced  by  manu- 
facture, 

2.  The  term  is  used  in  its  widest  sense  in 
the  patent  law  of  Great  Britain.  The  statute 
of  that  kingdom  prohibits  the  granting  of 
letters  patent  except  for  the  making,  using,  or 
selling  of  some  new  manufacture.  The  term, 
therefore,  must  embrace  every  thing  which 
can  there  be  the  subject-matter  of  a  patent. 
See  2  Barnew.  &  Aid.  340  ;  8  Term,  00  ;  2  H. 
Blackst.  402;  1  Webst.  Pat.  Cas.  512. 

By  our  law,  a  patent  can  not  only  be  granted 
for  a  new  manufacture,  but  also  for  a  new 
and  useful  art,  machine,  or  composition  of 
matter.  There  are,  consequently,  with  us 
four  classes  of  patentable  inventions ;  and 
we  therefore  give  the  word  "  manufacture," 
when  used  as  the  subject-matter  of  a  patent, 
a  meaning  so  narrow  that  it  shall  cover  none 
of  the  ground  occupied  by  either  of  the  other 
classes.  Now,  all  these  classes  together  only 
include  what  is  embraced  by  the  word  "  manu- 
facture" in  the  English  law,  inasmuch  as 
nothing  is  the  subject-matter  of  a  patent  with 


101  klNUMI^SION  V 

us  which  is  not  so  also  in  England.  It^oWowi 


that  the  term  "  manufacture''  has  a  very  dif- 
ferent signification  in  the  patent  laws  of  the 
two  countries. 

3.  With  us,  it  has  been  defined  to  be  "any 
new  combinati(m  of  old  materials  constitu- 
ting a  new  result  or  producticm  in  the  form 
of  a  vendible  article,  not  being  machinery.'' 
The  contriver  of  a  substantially  new  com- 
modity, which  is  not  properly  a  machine  or  a 
composition  of  matter,  can  ol)tain  a  patent 
therefor  as  for  a  new  manufacture.  And 
although  it  might  properly  be  regarded  as  a 
machine  or  a  composition  of  matter,  yet  if 
the  claim  to  novelty  rests  on  neither  of  those 
grounds,  and  if  it  really  constitutes  an  essen- 
tially new  merchantable  commodity,  it  may 
be  patented  as  a  new  manufacture.  See 
Patents. 

The  vendible  substance  is  the  thing  pro- 
duced; and  that  which  operates  preserves  no 
permanent  form.  In  the  first  class  the  ma- 
chine, and  in  the  second  the  substance  pro- 
duced, is  the  subject  of  the  patent.  2  H. 
Blackst.  402.  See  8  Term,  00  ;  2  Barnew.  & 
Aid.  340;  Dav.  Pat.  Cas.  278;  Webster,  Pat. 
8 ;  Phillips,  Pat.  77 ;  Perpigny,  Manuel  des 
Inv.  c.  2,  s.  1 ;  Renouard,  c.  5,  s.  1 ;  Westm. 
Rev.  No.  44,  April,  1835,  p.  247  ;  1  Bell, 
Comm.  1.  1,  part  2,  c.  4,  s.  1,  p.  110,  5th  ed. 

MANUMISSION.  The  act  of  releasing 
from  the  power  of  another.  The  act  of  giv- 
ing liberty  to  a  slave. 

The  modern  acceptation  of  the  word  is  the  act 
of  giving  liberty  to  slaves.  But  in  the  Roman 
law  it  was  a  generic  expression,  equally  applicable 
to  the  enfranchisement  from  the  manns,  the  manci- 
pinm,  the  dominica  potentas,  and  the  patria  j'otestas, 
Manumittere  signifies  to  escape  from  a  power. — 
nianits.  Originally,  the  master  could  only  validly 
manumit  his  slave  when  he  had  the  dominium  jure 
Quirilium  over  him  :  if  he  held  him  merely  V?t  bonisy 
the  manumission  was  null,  according  to  the  civil 
law;  but  by  the  /««  honorarium  the  slave  was  per- 
mitted to  enjoy  his  liberty  de  fncto,  but  whatever 
he  acquired  belonged  to  his  master.  By  the  law 
Jiiiii<i  Norhana,  passed  under  Tiberius  in  the  year 
of  Rome  772,  the  position  of  this  class  of  quasi 
slaves  was  fixed,  by  conceding  to  them  the  same 
rights  which  were  formerly  enjoyed  by  the  people 
of  the  colonies  established  by  Lntium ;  and  they 
were  called  Lntini  Junia)ii, — Ladni  because  they  en- 
joyed the  /h«  latii, — -jus  latinitatis, — Juniani  because 
they  owed  this  status  to  the  law  Junio.  They  did 
not  possess  the  rights  of  Roman  citizens:  they 
could  neither  vote  nor  perform  any  public  functions; 
they  were  without  the  capacity  of  being  instituted 
heirs  or  legatees,  except  indirectly  by  a  Jideicom- 
missiim;  they  could  make  no  valid  will  or  act  as 
tutors;  but  they  had  the  commercium,  or  right  of 
buying  and  selling,  and  might  witness  a  will  made 
per  ses  et  Hbram.  But  at  their  death  their  masters 
were  entitled  to  all  their  property,  as  if  they  had 
never  ceased  to  be  slaves.  In  the  language  of  the 
law.  with  their  last  breath  they  lost  both  their  life 
and  their  liberty  :  in  ipso  xdtimo  spiritii  simul  ant- 
mam  atqne  libertatem  amittebaiit.  Inst.  3.  7.  4; 
Gains,  3,  ^  56  et  seq.  At  first  there  were  only  three 
modes  of  manumission,  viz.:  1,  vindicta ;  2,  census; 
and,  3,  teittamentum.  The  vindicta  consisted  in  a  fic- 
titious suit,  in  which  the  assertor  libertatis,  as  plain- 
tiff, alleged  that  the  slave  was  free ;  the  master  not 
denying  the  claim,  the  prjttor  rendered  a  decision 
declaring  the  slave  free.   In  this  proceeding  figured 


MANURE 


102 


MARESCALLUS 


a  rod, — festucn,  vhulicta, — a  sort  of  lance  (the  sym- 
bol of  property),  with  which  the  asaertor  libertatis 
touched  the  slave  when  he  claimed  him  as  free  : 
hence  the  expression  vindictn  viajiioniiisio.  Cenaiia, 
the  second  mode,  was  when  the  slave  was  inscribed 
at  the  instance  of  his  master,  by  the  censor,  in  the 
census  as  a  Rom;in  citizen.  Testamento  was  when 
the  testator  declared  in  express  terms  that  the  slave 
should  be  free, — servtia  mens  Crathius  liher  esto, — 
or  by  a  Jideicovimiasnm, — herea  mens  nxjo  tc  nt  Sanitm 
vicini  luei  sert  um,  7>ianumittoft  •  Jideicuinmitto  heredis 
met  ut  iste  eum  servum  manumittat. 

3.  Afterwards,  manumission  might  take  place  in 
various  other  ways :  in  sacrommctis  ecclesiis,  of  which 
we  have  a  form  :  Ex  henejicis  S.  per  Joaimem 
epincopum  et  per  Albertum  S.  4*  Casatum,  factuH  eat 
liber  Lemtbertns,  teate  hac  acncta  eccleaia.  Per  epis- 
tolam.  Justinian  required  the  letter  containing  the 
manumission  to  be  signed  by  five  witnesses.  Inter 
amicaa,  a  declaration  made  by  the  master  before  his 
friends  that  he  gave  liberty  to  his  slave:  five  wit- 
nesses were  required,  and  an  act  was  drawn  up  in 
which  it  was  stated  that  they  had  heard  the  de- 
claration. Per  codicillnm,  by  a  codicil,  which  re- 
quired to  be  signed  by  five  witnesses.  There  were 
many  other  modes  of  manumission,  which  were 
enumerated  in  a  Constitution  of  Justinian.  C.  76, 
3-12;  1  Ortolan,  35  et  seq. ;  1  Etienne,  78  et  aeq. ; 
Lagrange,  101  et  aeq. 

Direct  manumission  may  be  either  bj  deed 
or  will,  or  any  other  act  of  notoriety  done 
with  the  intention  to  manumit.  A  variety 
of  these  modes  are  described  as  used  by  an- 
cient nations. 

Indirect  manumission  may  be  either  by 
operation  of  law,  as  the  removal  of  a  slave 
to  a  non-slaveholding  state  animo  moraadi, 
or  by  implication  of  law,  as  where  the  master 
by  his  acts  recognizes  the  freedom  of  his  slave. 

In  the  absence  of  statutory  regulations,  it 
is  held  in  this  country,  in  accordance  with 
the  principles  of  the  common  law,  that  no 
formal  mode  or  prescribed  words  were  neces- 
sary to  effect  the  manumission;  it  may  be  by 
parol ;  and  any  words  are  sufficient  which 
evince  a  renunciation  of  dominion  on  the 
part  of  the  master.  8  Ilumphr.  Tenn.  189;  3 
Halst.  N.  J.  275.  But  mere  declarations  of  in- 
tention are  insufficient  unless  subsequently 
carried  into  effect.  Coxe,  N.  J.  259  ;  8  Mart. 
La.  149  ;  14  Johns.  N.  Y.  324;  19  id.  53. 
Manumission  may  be  made  to  take  effect  in 
future.  Coxe,  N.  J.  4 ;  2  Root,  Conn.  304.  In 
the  mean  time  the  slaves  are  called  statu  liberi. 
See  Cobb,  Law  of  Slavery,  passim  ;  Servus  ; 
Freedom  ;  Bondage. 

MANURE.  Dung.  When  collected  in  a 
heap  it  is  considered  as  personal  property, 
but  when  spread  it  becomes  a  part  of  the 
land  and  acquires  the  character  of  real  estate. 
Al.  31  ;  2  Ired.  No.  C.  326  ;  Washburn,  Real 
Prop. 

MANUS  (Lat.  hand),  anciently,  signified 
the  person  taking  an  oath  as  a  compurgator. 
The  use  of  this  word  probably  came  from  the 
party  laying  his  hand  on  the  New  Testament. 
Manus  signifies,  among  the  civilians,  power, 
and  is  frequently  used  as  synonymous  with 
poff'.stas.    Le<;.  Kl.  Dr.  Rom.  g  94. 

MANUSCRIPT.  An  unpublished  writ- 
ing, or  one  that  has  been  published  without 
the  consent  of  the  person  entitled  to  control  it. 


In  every  writing  the  author  has  a  property 
at  common  law,  which  descends  to  his  repre- 
sentative, but  is  not  liable  to  seizure  by  credit- 
ors so  that  they  can  publish  it.  1  Bell,  Dict. 
68.  And  an  unauthorized  publication  will 
be  restrained  in  equity.  4  Burr.  2320,  2408; 
2  Broxvn,  Pari.  Cas.  138;  2  Atk.  Ch.  342;  2 
Ed.  Ch.  329  ;  2  Mer.  Ch.  434 :  Ambl.  694, 
739 ;  1  Ball  &  B.  Ch.  Ir.  207  ;  2  Stor.  C.  C. 
100;  5  McLean,  C.  C.  32.  Letters  are  em- 
braced within  this  principle ;  for,  although 
the  receiver  has  a  qualified  property  in  them, 
the  rightto  object  to  their  publication  remains 
with  the  writer.  It  is  held,  however,  that  the 
receiver  may  publish  them  for  the  purposes  of 
justice  publicly  administered,  or  to  vindicate 
his  character  from  an  accusation  publicly 
made.  2  Ves.  &  B.  Ch.  Ir.  19;  2  Swanst. 
Ch.  418  ;  2  Mer.  Ch.  435  ;  2  Stor.  C.  C.  100 ; 
1  Mart.  La.  297  ;  2  Story,  Eq.  Jur.  ^  947  ;  4 
Du.  N.  Y.  379.  In  the  United  States,  the 
Copyright  Act  recognizes  the  right  of  pro- 
perty in  "any  manuscript  whatever,'*  which 
includes  private  letters,  5  McLean,  C.  C.  32, 
and  gives  a  remedy  for  the  unauthorized  pub- 
licati(m.  These  rights  will  be  considered 
as  abandoned  if  the  author  publishes  his 
manuscripts  without  securing  the  copyright  ; 
under  the  acts  of  congress.  See  Bouvier,  ^ 
Inst.  Index  ;  Copyright  ;  Curtis,  Copyright.  ' 

MARAUDER.  One  who,  while  employed 

in  the  army  as  a  soldier,  commits  a  larceny  , 

or  robbery  in  the  neighborhood  of  the  camp,  i 

or  while  wandering  away  from  the  army.  ? 
Merlin,  Report.     See  Halleck,  Int.  Laws ; 

Lieber.  Guerrilla  Parties.  ; 

MARC-BANCO.    The  name  of  a  coin. 

The  marc-banco  of  Hamburg,  as  money  of  i 

account,  at  the  custom-house,  is  deemed  and  i 

taken  to  be  of  the  value  of  thirty-five  cents.  '; 

Act  of  March  3,  1843.  | 

MARCH.  In  Scotch  Law.  A  bound-  | 
ary-line.    Bell,  Diet. ;  Ei  skine,  Inst.  2.  6.  4.  ? 

MARCHERS.    In  Old  English  Law.  ^ 

Nobles  who  lived  on  the  Marches,  and  had 
their  own  laws,  and  power  over  life  and  death, 
as  if  they  Wv^re  petty  princes.  Camden ;  Ja- 
cob, Law  Diet.  Abolished  by  stat.  27  Hen. 
VIII.  c.  26,  1  Edw.  VI.  c.  10,  &  1  and  2 
P.  &  M.  c.  15.  They  were  also  called  Lords 
Marchers. 

MARCHES.  Limits;  confines;  borders. 
Especially  used  of  the  limits  between  Eng- 
land and  Wales  and  between  England  and 
Scotland. 

MARESCALLUS  (fr.  Germ,  march, 
horse,  and  schaich,  master.  DuCange).  A 
groom  of  the  stables,  who  also  took  care  of  the 
diseases  of  the  horses.  DuCange. 

An  officer  of  the  imperial  stable  :  magister  i 
equorum.  DuCange. 

A  military  officer,  whose  duty  it  was  to  j 
keep  watch  on  the  enemy,  to  choose  place  of  i 
encampment,  to  arrange  or  marshal  the  army 
in  order  of  battle,  and,  as  master  of  the  horse»  I 
to  commence  the  battle.  This  office  was  second  I 


MARETUM 


103  MARITIME  CAUSE 


to  that  of  comes  stahuli,  or  constable.  Du- 
Cange. 

An  officer  of  the  court  of  exchequer.  51 

Hen.  nr.  5. 

An  officer  of  a  manor,  who  oversaw  the  hos- 

{)\\.'A\i\QS,  [mansionarius).  DuCange;  Fleta, 
ib.  2,  c.  74. 

Marescallus  auloc.  An  officer  of  the  royal 
household,  who  had  charge  of  the  person  of 
the  monarch  and  peace  of  the  palace.  Du- 
Cange. 

MARETUM  ( Lat. ) .  Marshy  ground  over- 
j3owed  by  the  sea  or  great  rivers.  Coke,  Litt.  5. 

MARINARIUS  (L.  Lat.).  An  ancient 
word  which  signified  a  mariner  or  seaman. 
In  England,  marinarius  capitaneus  was  the 
admiral  or  warden  of  the  ports. 

.  MARINE.  Belonging  to  the  sea ;  relating 
to  the  sea;  naval.  A  soldier  employed,  or 
liable  to  be  employed,  on  vessels  of  war,  un- 
der the  command  of  an  officer  of  marines, 
who  acts  under  the  direction  of  the  commander 
of  the  ship.  See  Marine  Corps.  It  is  also 
used  as  a  general  term  to  denote  the  whole 
naval  power  of  a  state  or  country. 

MARINE  CONTRACT.  One  which  re- 
lates to  business  done  or  transacted  upon  the 
sea  and  in  sea-ports,  and  over  which  the  courts 
of  admiralty  have  jurisdiction  concurrent  with 
the  courts  of  common  law.  See  Maritime 
Contract  ;  Parsons,  Marit.  Law ;  2  Gall.  C. 
C.  398. 

MARINE  CORPS.  A  body  of  officers 
and  soldiers  under  an  organization  separate 
and  distinct  from  that  of  the  army,  and  in- 
tended for  service,  in  detached  portions,  on 
board  of  ships  of  war. 

MARINE  COURT  IN  THE  CITY 
OF  NEW  YORK.    See  New  York. 

MARINE  INSURANCE.  A  contract 
of  indemnity  by  which  one  party,  for  a  stipu- 
lated premium,  undertakes  to  indemnify  the 
other,  to  the  extent  of  the,  amount  insured, 
against  all  perils  of  the  sea,  or  certain  enu- 
merated perils,  to  which  his  ship,  cargo,  and 
freight,  or  some  of  them,  may  be  exposed 
during  a  certain  voyage  or  a  fixed  period  of 
time. 

The  party  who  takes  the  risk  is  called  the 
insurer  or  underwriter  ;  and  the  party  to  be 
protected  is  called  the  insured  or  assured. 
The  sum  paid  as  a  consideration  for  the  in- 
surance is  called  the  premium  ;  and  the  in- 
strument containing  the  contract  is  called  the 
policy.  See  Phillips,  Arnould,  Duer,  Mar- 
shall, Insurance;  Parsons,  Marit.  Law  ;  Eme- 
rigon  on  Insurance,  by  Meredith  ;  and  title 
Insurance  in  the  Index  of  Kent's  Commen- 
taries and  Bouvier's  Institutes,  and  in  this 
work. 

MARINE  INTEREST.  A  compensa- 
tion paid  ibr  the  use  of  money  loaned  on 
bottomry  or  respondentia.  Provided  the 
money  be  loaned  and  put  at  risk,  there  is  no 
fixed  limit  to  the  rate  which  may  be  lawfully 
charged  by  the  lender ;  but  courts  of  admi- 
ralty, in  enforcing  the  contract,  will  mitigate 


the  rate  when  it  is  extortionate  and  uncon- 
scionable. See  Bottomry;  Maritime  Loan  ; 
Respondentia. 

MARINE  LEAGUE.  A  measure  equal 
to  the  twentieth  part  of  a  degree  of  latitude. 
Bcmcher,  Inst.  n.  1845.  It  is  generally  con- 
ceded that  a  nation  has  exclusive  territorial 
jurisdiction  upon  the  high  seas  for  a  marine 
league  from  its  own  shores.  1  Kent,  Comm.  29. 

MARINER.  One  whose  occupation  it  is 
to  navigate  vessels  upon  the  sea.  See  Seamen  ; 
Shipping  Articles.  Surgeons,  engineers, 
clerks,  stewards,  cooks,  porters,  and  chamber- 
maids, on  passenger-steamers,  "when  necessary 
for  the  service  of  the  ship  or  crew,  are  also 
deemed  mariners,  and  permitted  as  such  to  sue 
in  the  admiralty  for  their  wages.  1  Conk- 
ling,  Adm.  107.    See  Seamen;  Lien. 

MARIT AGIUM  (Lat.).  A  portion  given 
with  a  daughter  in  marriage. 

During  the  existence  of  the  feudal  law,  it  was  the 
right  which  the  lurd  of  the  fee  had,  under  certain 
tenures,  to  dispose  of  the  daughters  of  his  vassal 
in  marriage.  Beames,  Glanv.  1.38,  n. ;  Bracton,  21  a; 
Spelman,  Gloss. ;  2  Blackstone,  Comm.  69 ;  Coke, 
Litt.  21      76  c/. 

MARITAL.  That  which  belongs  to  mar- 
riage: as,  marital  rights,  marital  duties. 

Contracts  made  by  a  feme  sole  with  a  view 
to  deprive  her  intended  husband  of  his  mari- 
tal rights  with  respect  to  her  property  are  a 
fraud  upon  him,  and  may  be  set  aside  in 
equity.  By  the  marriage  the  husband  as- 
sumes the  duty  of  paying  her  debts  contracted 
previous  to  the  coverture,  and  of  supporting 
her  during  its  existence  ;  and  he  cannot,  there- 
fore, be  fraudulently  deprived,  by  the  intended 
wife,  of  those  rights  which  enable  him  toper- 
form  the  duties  which  attach  to  him.  New- 
land,  Contr.  424 ;  1  Vern.  Ch.  408  ;  2  id.  17  ; 
2  P.  Will.  Ch.  357,  674 ;  2  Brown,  Ch.  345 ; 
lYes.  Ch.22;  2  Cox,  Ch.  28  ;  2  Beav.  Rolls, 
528  ;  White,  Lead.  Cas.  in  Ea.  *277  ;  1  Hill, 
Ch.  1,4;  13  Me.  124;  1  M'Mull.  Eq.  So.  C. 
237  ;  3  Ired.  Eq.  No.  C.  487;  4  Wash.  C.  C. 
224. 

MARITAL  PORTION.  .  In  Louisiana. 

The  name  given  to  that  part  of  a  deceased 
husband's  estate  to  which  the  widow  is  en- 
titled. La.  Civ.  Code,  334,  art.  55  ;  3  Mart. 
La.  N.  s.  1. 

MARITIME  CAUSE.  A  cause  arising 
from  a  maritime  contract,  whether  made  at 
sea  or  on  land. 

2.  The  term  includes  such  causes  as  relate 
to  the  business,  commerce,  or  navigation  of 
the  sea:  as  charter-parties,  bills  of  lading, 
and  other  contracts  of  affreightment ;  bot- 
tomry and  respondentia  contracts  ;  and  con- 
tracts for  maritime  services  in  repairing,  sup- 
plying, and  navigating  ships  and  vessels ; 
contracts  and  qriasi  contracts  respecting  ave- 
rages, contributions,  and  jettisons,  when  the 
party  prosecuting  has  a  maritime  lien  ;  and 
also  those  arising  from  torts  and  injuries  com- 
mitted on  the  high  seas,  or  on  other  navigable 
waters  within  the  admiralty  jurisdiction. 

3.  Suits  for  the  recovery  of  damages  for 


MARITIME  CAUSE 


104 


MARITIME  LAW 


the  collision  of  ships  and  vessels  constitute  j 
an  important  class  of  the  causes  founded  upon  | 
marine  torts  ;  and  in  these  cases  the  admiralty  | 
courts  adopt  a  rule  of  decision  entirely  dit-  1 
ferent  from  that  acted  upon  in  common-law  | 
courts.    In  the  latter  a  plaintiff  whose  negli-  ! 
gence  has  contributed  to  the  injury  of  which  I 
he  complains  cannot  recover  damages,  al- 
though the  defendant  has  been  equally,  or 
even  more,  culpable ;  but  in  cases  of  collision 
the  admiralty  courts,  when  it  is  established 
that  both  vessels  were  in  fault,  or  that  the  col- 
lision must  be  attributed  to  the  fault  of  one 
or  both  of  the  vessels,  and  it  cannot  be  deter- 
mined which,  if  either  alone,  was  in  fault, 
aggregate  the  damage  to  both,  and  then  divide 
it  between  them,  decreeing  that  the  owners 
of  each  shall  bear  half  the  whole  loss.  2 
Dods.  Adm.  85;   3  W.  Rob.  Adm.  38;  17 
How.  172 ;  1  Conkling,  Adm.  374-380.. 

4.  Cases  of  salvage  are  also  within  the 
jurisdiction  of  the  admiralty  courts;  and  they 
likewise  exercise  jurisdiction  in  favor  of  a  part- 
owner  who  dissents  from  the  determination 
of  a  majority  of  the  owners  to  employ  the 
ship  in  a  particular  manner,  and  seeks  to  ob- 
tain security  for  the  safe  return  of  the  vessel. 
They  also  exercise  a  jurisdiction  (founded 
upon  a  rule  of  national  comity)  for  the  pur- 
pose of  enforcing  the  decrees  of  foreign  courts 
of  admiralty,  when  the  ends  of  justice  require 
it.  1  Conkling,  Adm.  2d  ed.  26  ;  2  Gall.  C. 
C.  191,  197. 

The  admiralty  courts  of  the  United  States 
also  have  jurisdiction  of  controversies  between 
part-owners  and  others  in  relation  to  the  title 
or  possession  of  ships  and  vessels.  Ware, 
Dist.  Ct.  232;  2  Curt.  C.  C.  426  ;  18  How. 
267  ;  also  of  all  seizures  under  laws  of  im- 
port, navigation,  or  trade  of  the  United  States, 
where  such  seizures  are  made  on  the  high 
seas  or  on  waters  which  are  navigable  from 
the  sea  by  vessels  of  ten  or  more  tons  burden. 
See  Judiciary  Act,  sec.  9,  1  U.  S.  Stat,  at 
Large,  77. 

5.  In  all  cases  of  contract  the  jurisdiction 
of  the  admiralty  courts  depends  upon  the  na- 
ture or  subject-matter  of  the  contract ;  but  in 
cases  of  maritime  tort  and  salvage  their  juris- 
diction depends  upon  the  place  in  which  the 
cause  of  action  accrued.  1  Conkling,  Adm. 
19,  32.  In  general,  the  courts  of  common  law 
have  a  concurrent  jurisdiction  with  courts  of 
admiralty  in  those  cases  which,  in  legal  par- 
lance, are  said  to  l)e  prosecuted  or  promoted 
on  the  instance  side  of  the  court.  But  the 
admiralty  also  has  jurisdiction  of  prize  cases, 
or  cases  arising  upon  captures  Jwre  belli;  and 
that  jurisdiction  is  exclusive. 

6.  In  the  United  States,  thejurisdiction  of 
the  admiralty  courts  is  not  limited  to  the  cases 
of  contracts  relating  to  the  navigation  of  the 
high  seas  or  other  waters  within  the  ebb  and 
flow  of  the  tide,  and  to  causes  of  action  for 
torts  committed  on  tide  waters,  as  was  gene- 
rally sunnosed  prior  to  1845,  10  Wheat.  428  ; 
7  Pet,  324,  3-13;  but  it  is  now  held  to  extend 
to  the  groat  lakes  and  to  the  other  navigal)le 
waters  of  the  United  States,  in  respect  to  com- 


merce with  foreign  nations  and  among  the 
states.  12  How.  443,  468  ;  5  McLean,  C.  C. 
269,  359  ;  20  How.  296. 

The  admiralty  jurisdiction  has  been  held 
not  to  extend  to  preliminary  contracts,  merely 
leading  to  the  execution  of  maritime  con- 
tracts, 3  Mas.  C.  C.  6  ;  4  id.  380  ;  3  Sumn.  C. 
C.  144  ;  nor  to  matters  of  account  between 
part-owners,  11  Pet.  175  ;  nor  to  trusts,  al- 
though they  may  relate  to  maritime  affairs, 
Dav.  Dist.  Ct.  71 ;  nor  to  enforce  a  specific 
performance  of  a  contract  relating  to  mari- 
time affairs ;  nor  to  a  contract  not  maritime 
in  its  character,  although  the  consideration 
for  it  may  be  maritime  services,  4  Mas.  C.  C. 
380  ;  nor  to  questions  of  possession  and  pro- 
perty between  owner  and  mortgagee,  17  How. 
399 ;  nor  to  contracts  of  affreightment  from 
one  port  of  the  great  lakes  to  another  port  in 
the  same  state,  21  How.  244 ;  nor  to  contracts 
for  supplies  furnished  a  vessel  engaged  in 
such  trade  only  ;  and,  of  course,  such  causes 
cannot  be  considered  maritime  causes.  21 
How.  248. 

MARITIME  CONTRACT.  One  which 
relates  to  the  business  of  navigation  upon  the 
sea,  or  to  business  appertaining  to  commerce 
or  navigation  to  be  transacted  or  done  upon 
the  sea,  or  in  sea-ports,  and  over  which  courts 
of  admiralty  have  jurisdiction  concurrent  with 
the  courts  of  common  law. 

2.  Such  contracts,  according  to  civilians 
and  jurists,  include,  among  others,  charter- 
parties,  bills  of  lading,  and  other  contracts  of 
affreightment,  marine  hypothecations,  con- 
tracts for  maritime  service  in  building,  repair- 
ing, supplying,  and  navigating  ships  or  vessels, 
contracts  and  quasi  contracts  respecting  ave- 
rages, contributions,  and  jettisons.  See  2 
Gall.  C.  C.  398,  etc.,  in  which  Judge  Story 
gave  a  very  elaborate  and  learned  opinion  on 
the  subject.    Parsons,  Marit.  Law. 

It  is,  however,  very  doubtful  whether  his 
views  in  respect  to  the  admiralty  jurisdiction 
in  cases  of  marine  insurance  would  now  be 
concurred  in  by  the  supreme  court  of  the 
United  States ;  and  that  learned  tribunal,  in 
the  late  case  of  The  People's  Ferry  Co.  vs. 
Beers,  20  How.  393,  intimated  that  a  contract 
for  building  a  vessel  was  not  a  maritime  con- 
tract.  See,  also,  7  How.  729;  19  id.  171. 

3.  The  term  "  maritime  contract,''  in  its 
ordinary  and  proper  signification,  does  not 
strictly  apply  to  contracts  relating  to  the  navi- 
gation of  our  great  inland  lakes  and  our  great 
navigable  rivers;  and  yet  contracts  in  respect 
to  their  navigation  from  state  to  state  are 
now  within  the  admiralty  jurisdiction  of  the 
United  States  to  the  same  extent  as  though 
they  were  arms  of  the  sea  and  subject  to 
tidal  influences.  12  How.  443,  468.  Such 
contracts  are,  therefore,  frequently  denomi- 
nated maritime  contracts,  and  may,  perhaps, 
be  properly  denominated  quasi  maritime,  as 
being  within  thejurisdiction  of  the  admiralty 
or  maritime  courts. 

MARITIME  LAW.  That  system  of  law 
which  particularly  relates  to  the  affairs  and 


MARITIME  LOAN 


105. 


MARRIAGE 


business  of  the  sea,  to  ships,  their  crews  and 
navigation,  and  to  the  marine  conveyance  of 
persons  and  property.  See  Admiralty,  and 
the  various  titles  in  regard  to  which  inform- 
ation is  sought. 

MARITIME  LOAN.  A  contract  or 
agreement  by  which  one,  who  is  the  lender, 
lends  to  another,  who  is  the  borrower,  a  cer- 
tain sum  of  money,  upon  condition  that  if 
the  thing  upon  w^hich  the  loan  has  been  made 
ehould  be  lost  by  any  peril  of  the  sea,  or  vis 
major,  the  lender  shall  not  be  repaid  unless 
■what  remains  shall  be  equal  to  the  sum  bor- 
rowed ;  and  if  the  thing  arrive  in  safety,  or 
in  case  it  shall  not  have  been  injured  but  by 
its  own  defects  or  the  fault  of  the  master  or 
mariners,  the  borrower  shall  be  bound  to  re- 
turn the  sum  borrow^ed,  together  with  a  cer- 
tain sum  agreed  upon  as  the  price  of  the  haz- 
ard incurred.  Emerigon,  Mar.  Loans,  c.  1, 
8.  2.  See  Bottomry  ;  Gross  Adventure  ;  In- 
terest, Maritime  ;  Respondentia. 

MARITIME  PROFIT.  A  term  used 
by  French  writers  to  signif}-  any  profit  derived 
from  a  maritime  loan. 

MARK.  A  sign,  traced  on  paper  or  parch- 
ment, which  stands  in  the  place  of  a  signature  ; 
usually  made  by  persons  who  cannot  write. 
It  is  most  often  the  sign  of  the  cross,  made  in 
a  little  space  left  between  the  Christian  name 
and  surname.  2  Sharswood,  Blackst.  Comm. 
30'i ;  2  Curt.  324  ;  Mood.  &  M.  51G  ;  12  Pet. 
150;  7  Bingh.  457;  2  Ves.  Sen.  Ch.  455;  1 
Ves.&B.Ch.  Ir.362  5  IVes.  Ch.  11.  A  mark 
is  now  held  to  be  a  good  signature  though  the 
party  was  able  to  w' rite.  8  Ad.  &  E.  94 ;  3 
Nev.  &  P.  228  ;  3  Curt.  752  ;  5  Johns.  N.  Y. 
144;  2  Bradf.  Surr.  N.  Y.  385  ;  24  Penn.  St. 
502 ;  29  id.  221 ;  19  Mo.  609  :  21  id.  17  ;  18 
Ga.  396 ;  16  B.  Monr.  Ky.  102 ;  1  Jarman, 
Wills,  Perkins  ed.  69,  112,  note;  1  Wil- 
liams, Exec.  63.    See  Penn.  Stat.  1848. 

The  sign,  writing,  or  ticket  put  upon  manu- 
factured goods  to  distinguish  them  from  others, 
Poph.  144;  3  Barnew.  &  C.  541 ;  2  Atk.  Ch. 
485  ;  2  Ves.  &  B.  Ch.  Ir.  218  ;  3  Mylne  &  C. 
Ch.  1 ;  Eden,  Inj.  314;  also  to  indicate  the 
price ;  and  if  one  use  the  mark  of  another  to 
do  him  damage,  an  action  on  the  case  will  lie, 
or  an  injunction  may  be  had  from  chancery. 
2  Croke,  47.    See  Trade-Marks. 

MARK  (spelled,  also.  Marc).  A  weight 
used  in  several  parts  of  Europe,  and  for  seve- 
ral commodities,  especially  gold  and  silver. 
When  gold  and  silver  are  sold  by  the  mark, 
it  is  divided  into  twenty-four  carats.  A 
money  of  accounts  in  England,  and  in  some 
I  other  countries  a  coin.  The  English  mark  is 
two-thirds  of  a  pound  sterling,  or  13*.  4d. ;  and 
the  Sct)t".h  ma  -k  is  of  equal  value  in  Scotch 
money  of  account.    Encyc.  Amer. 

MARKET  (Lat.  merx,  merchandise; 
anciently,  mercat).  A  public  place  and  ap- 
pointed time  for  buying  and  selling.  A  pub- 
lic place,  appointed  by  public  authority, where 
all  sorts  of  things  necessary  for  the  "subsist- 
ence or  for  the  convenience  ?f  life  are  sold. 


All  fairs  are  markets,  but  not  vice  versd. 
Bracton.l.  2,  c.  24;  Coke,  Litt.  22  ;  Coke,  2d 
Inst.  401 ;  Coke,  4th  Inst.  272.  Markets  are 
generally  regulated  by  local  laws. 

The  franchise  by  which  a  town  holds  a  mar- 
ket, which  can  only  be  by  royal  grant  or  im- 
memorial usage. 

By  the  term  market  is  also  understood  the 
demand  there  is  for  any  particular  article  :  as, 
the  cotton  market  in  Europe  is  dull.  See  15 
Viner,  Abr.  42 ;  Comyns,  Dig.  Market. 

MARKET  OVERT.  An  open  or  public 
market ;  that  is,  a  place  appointed  by  law 
or  custom  for  the  sale  of  g(  ods  and  chattels 
at  stated  times  in  public.  "  An  open,  public, 
and  legally  constituted  market."  Jervis,  C. 
J.,  9  J.  Scott,  601. 

2.  The  market-place  is  the  only  market 
overt  out  of  London ;  but  in  London  every 
shop  is  a  market  overt.  5  Coke,  83 ;  F.  Moore, 
300.  In  London,  every  day  except  Sunday 
is  market-day.  In  the  country,  particular 
days  are  fixed  for  market-days.  2  Sharswood, 
Blackst.  Comm.  449. 

3.  All  contracts  for  any  thing  vendible, 
made  in  market  overt,  shall  be  binding;  and 
sales  pass  the  property,  though  stolen,  if  it 
be  an  open  and  proper  place  for  the  kind  of 
goods,  there  be  an  actual  sale  for  valuable 
consideration,  no  notice  of  w^rongful  posses- 
sion, no  collusion,  parties  able  to  contract,  a 
contract  originally  and  wholly  in  the  market 
overt,  toll  be  paid,  if  requisite,  by  statute,  and 
the  contract  be  made  between  sun  and  sun. 
5  Coke,  83.  But  sale  in  market  overt  does 
not  bind  the  king,  though  it  does  infants,  etc. 
Coke,  2d  Inst.  713;  2  Sharswood,  Blackst. 
Comm.  449  ;  2  Chitty,  Com.  Law,  148-154  ; 
Comyns,  Dig.  Market  (E) ;  Bacon,  Abr.  Fairs 
and  Markets  (E)  ;  5  Barnew.  &  Aid.  624; 
Dane,  Abr.  c.  45,  a.  2 ;  Crabb,  Real  Prop.  § 
679  et  seq. 

4.  There  is  no  law  recognizing  the  efiect  of 
a  sale  in  market  overt  in  Pennsylvania.  3 
Yeates,  Penn.  347  ;  5  Serg.  &  R.  Ppnn.  130; 
in  New  York,  1  Johns.  N.  Y.  480 ;  in  Massa- 
chusetts, 8  Mass.  521  ;  14  id.  500;  in  Ohio, 
5  Ohio,  203  ;  nor  in  Verm(  nt,  1  Tyl.  Vt.  341  ; 
nor,  indeed,  in  any  of  the  United  States.  10 
Pet.  161 ;  2  Kent,  Comm.  324. 

MARLBRIDGE,  STATUTE  OF.  An 

iniportantEnglish  statute, 52Hen.  111.  (1267), 
relating  to  the  tenures  of  real  propert3%  and  to 
procedure.  It  derived  its  name  from  the  towrj 
in  Wiltshire  in  which  parliament  sat  when 
it  was  enacted,  now  known  as  Marlborough. 
Compare  2  Reeve,  Hist.  Eng.  Law,  62  ;  Crabb, 
Com.  Law,  156  ;  Barrington,  Stat.  66. 

MARQUE  AND  REPRISAL.  See 

Letters  of  Marque. 

MARRIAGE.  A  contract,  made  in  due 
form  of  law,  by  which  a  man  and  woman 
reciprocally  engage  to  live  with  each  other 
during  their  joint  lives,  and  to  discharge  to- 
wards each  other  the  duties  imposed  by  law 
on  the  relation  of  husband  and  wife. 

^^.  All  persons  are  able  to  contract  mar- 
riage unless  they  are  under  the  legal  age,  or 


MARRIAGE 


106 


MARRIAGE  BROKAGE 


unless  there  be  other  disability.    The  age  of  | 
consent  at  common  law  is  fourteen  in  males,  1 
and  twelve  in  females.    Reeve,  Dom.  Rel.  | 
236  ;  2  Kent,  Comm.  Cth  ed.  78  ;  1  N.  Chipm. 
Vt.  254:  10  Humphr.  Tenn.  61 ;  1  Gray,  Mass. 
119.    See  20  Ohio,  1.    When  a  person  under 
this  age  marries,  such  person  can,  when  he 
or  she  arrives  at  the  age  above  specified, 
avoid  the  marriage,  or  such  person  or  both 
may,  if  the  other  is  of  legal  age,  confirm  it. 
If  either  of  the  parties  is  under  seven,  the 
marriage  is  void.    1   Sharswood,  Blackst. 
Comm.  436,  and  note  9 ;  5  Ired.  Eq.  No.  C. 
487. 

If  either  party  is  no7i  compos  mentis,  or  in- 
sane, the  marriage  is  void.  21  N.  II.  52  ;  22 
id.  553  ;  4  Johns.  Ch.  N.  Y.  343. 

If  either  party  has  a  husband  or  wife  living, 
the  marriage  is  void.  4  Johns.  N.  Y.  53  ;  22 
Ala.  N.  s.  86;  1  Salk.  120;  1  Sharswood, 
Blackst.  Comm.  438.  See  Nullity  of  Mar- 
riage. 

Consanguinity  and  affinity  within  the  rules 
prescribed  by  law  in  this  country  render  a 
marriage  void.  The  statutes  of  particular 
states  will  be  referred  to  hereafter.  In  Eng- 
land they  render  the  marriage  liable  to  be 
annulled  by  the  ecclesiastical  courts.  10 
Mete.  Mass.'  451 ;  2  Blackstone,  Comm.  434. 
See  Conflict  of  Laws. 

3.  The  parties  must  each  be  willing  to 
marry  the  other. 

If  either  party  acts  under  compulsion,  or 
is  under  duress,  the  marriage  is  voidable.  2 
Hajrg.  Cons.  104,  246. 

Where  one  of  the  parties  is  mistaken  in 
the  person  of  the  other,  this  requisite  is 
wanting.  But  a  mistake  in  the  qualities  or 
character  of  the  other  party  will  not  avoid 
the  marriage.    Poynter,  Marr.  &  D.  c.  9. 

If  the  apparent'  willingness  is  produced 
by  fraud,  the  marriage  will  be  valid  till  set 
aside  by  a  court  of  chancery  or  by  a  decree 
of  divorce.  5  Paige,  Oh.  N.  Y.  43.  Fraud  is 
sometimes  said  to  render  a  marriage  void ; 
but  this  is  incorrect,  as  it  is  competent  for 
the  party  injured  to  waive  the  tort  and  af- 
firm the  marriage.  Im potency  in  one  of  the 
parties  is  sometimes  laid  down  as  rendering 
the  marriage  void,  as  being  a  species  of  fraud 
on  the  other  party;  but  it  is  only  a  ground 
for  annulling  the  contract  by  a  court,  or  for 
a  divonu'. 

4.  The  parties  must  actually  make  a  con- 
tract of  marriage :  the  form  and  requisites 
of  it  will  depend  on  the  law  of  the  place. 
See  Lex  Loci. 

At  common  law,  no  particular  form  of 
words  or  ceremony  was  necessary.  Mutual 
assent  to  the  relation  of  husband  and  wife 
was  sufficient.  Any  words  importing  a  pre- 
sent assent  to  being  married  to  each  other 
wore  sufficient  evidence  of  the  contract.  If 
the  words  imported  an  assent  to  a  future 
marriage,  if  followed  by  consummation,  this 
established  a  valid  nuirriage  by  the  canon 
law,  but  not  by  the  (ionnnon  law.  10  Clark 
&  F.  IIou.  L.  534 ;  15  N.  Y.  345 ;  2  Roper, 


Husb.  &  W.  445-475  ;  1  How.  219  ;  2  N.  H. 
268. 

5.  At  common  law,  the  consent  might  be 
given  in  the  presence  of  a  magistrate  or  of 
any  other  person  as  a  witness,  or  it  might  be 
found  by  a  court  or  jury  from  the  subsequent 
acknowledgment  of  the  parties,  or  from  the 
proof  of  cohabitation,  or  of  general  reputa- 
tion resulting  from  the  conduct  of  the  par- 
ties. In  the  original  United  States  the  com- 
mon-laM'  rule  prevails,  except  where  it  has 
been  changed  bv  legislation.  6  Binn.  Penn. 
405  ;  4  Johns.  N.  Y.  52  ;  7  AVend.  N.  Y.  47. 
See  10  N.  H.  388;  4  Burr.  2058;  1  How.  219, 
234;  1  Gray,  Mass.  119 ;  2  Me.  102. 

In  civil  cases,  a  marriage  can  generally  be 
proved  by  showing  that  the  parties  have  held 
themselves  out  as  husband  and  wile,  and  by 
general  reputation  founded  on  their  conduct. 
There  is  an  exception,  however,  in  the  case 
of  such  civil  suits  as  are  founded  on  the  mar- 
riage relation,  such  as  actions  for  the  seduc- 
tion of  the  wif  e,  where  general  reputation  and 
cohabitation  will  not  be  sufficient.  4  N.  Y. 
230 ;  3  Bradf.  Surr.  N.  Y.  369,  373  ;  6  Conn. 
446;  29  Me.  323;  14  N.  II.  450. 

6.  In  most  of  the  states,  the  degrees  of  re- 
lationship within  which  marriages  may  not 
be  contracted  are  prescribed  by  statute.  This 
limit  in  cases  of  consanguinity  is  generally, 
though  not  always,  that  of  first  cousins.  In 
some  of  the  states,  a  violation  of  the  rule  ren- 
ders, by  statute,  the  marriage  absolutely  void. 
In  others,  no  provision  of  this  kind  is  made. 
Various  statutes  have  been  passed  to  guard 
against  abuse  of  themarriageceremony.  Such 
of  them  as  require  license,  or  the  publica- 
tion of  banns,  or  the  consent  of  parents  or 
guardians,  are  regarded  as  directory,  and, 
unless  explicitly  declaring  the  marriage  to  be 
void,  if  not  complied  with  do  not  render  it 
void.  Mass.  Gen.  Stat.  (1860)  529;  Conn. 
Comp.  Stat.  (1854)  323;  Swan,  Rev.  Stat,  of 
Ohio  (1854),  569;  4  Iowa,  449;  26  Mo.  260; 
Reeve.  Dom.  Rel.  196,200;  1  Rev.  Swift's  Dig. 
CO:  2  Watts,  Penn.  9;  1  How.  219;  2  Ilalst. 
N.  J.  138  ;  2  N.  II.  268.  As  to  rights  of  mar- 
ried women,  see  Husband  and  Wife  ;  Wife. 

MARRIAGE  ARTICLES.  Articles 
of  agreement  between  parties  contemplating 
marriage,  in  accordance  with  which  the  mar- 
riage settlement  is  afterwards  to  be  drawn 
up.  They  are  to  be  binding  in  case  of  mar- 
riage. They  must  be  in  writing,  b}'^  Statute 
of  Frauds.  Burton,  Real  Prop.  484;  Crabb, 
Real  Prop.  ^  1809  ;  4  Cruise,  Dig.  274,  3?" 
See  2  Washburn,  Real  Prop.  App. 

MARRIAGE  BROKAGE. 

which  a  person  interferes,  lor  jn 
to  be  received  by  him,  betwe'  and  a 

woman,  for  the  purpose  o^  ^  a  mar- 

riage between  them.    *"  ^y  ])aid  for 

such  service  is  also  k  .nis  name. 

It  is  a  doctrine  o  i  ts  of  equity  that 

all  marriage-br(>'  iitracts  are  utterly 

void,  as  agains*  ,Jolicy,  and  are,  there- 

fore, incapaV  iination.  1  Fonblanque. 


MARRIAGE  PORTION 


107 


MARYLAND 


Eq.  b.  1,  c.  4,  s.  10,  note  s ;  2  Story,  Eq.  Jur. 
§  20;-5 ;  Nowlaiid,  Contr.  409. 

MARRIAGE  PORTION.  That  pro- 
perty which  is  ,i2;iven  to  a  woman  on  her  mar- 
riage.   See  DowRV. 

MARRIAGE,  PROMISE  OF.  A 
promise  of  marriage  is  a  contract  entered  into 
between  a  man  and  woman  that  they  will 
marry  each  other. 

When  the  promise  is  made  between  persons 
competent  to  contract  matrimony,  an  action 
lies  for  a  breach  of  it.  See  Promise  of  Mar- 
riage. 

MARRIAGE  SETTLEMENT.  An 

agreement  made  by  tlie  parties  in  contempla- 
tion of  marriage,  by  which  the  title  to  certain 
property  is  changed,  and  the  property  to  some 
extent  becomes  inalienable.  1  Rice,  Eq.  So.  C. 
315.  See  2  Hill,  Ch.  So.  C.  3  ;  8  Leigh,  Va. 
29 ;  1  Dev.  &  B.  Eq.  No.  C.  389  ;  2  id.  103  ; 
1  Baldw.  C.  C.  344  ;  15  Mass.  106  ;  1  Yeates, 
Penn.  221 ;  7  Pet.  348  ;  4  Bouvier,  Inst.  n. 
3947.    See  2  Washburn,  Real  Prop.  Appx. 

MARSHAL.  An  officer  of  the  United 
States,  whose  duty  it  is  to  execute  the  process 
of  the  courts  of  the  United  States.  His  duties 
within  the  district  for  which  he  is  appointed 
are  very  similar  to  those  of  a  sheriff.  See  U. 
S.  Stat,  at  Large,  Index ;  Sergeant,  Const. 
Law,  ch.  25  ;  2  Dall.402  ;  Burr's  Trial,  365  ; 
1  Mas.  C.  C.  100  ;  2  Gall.  C.  C.  101 ;  4Cranch, 
96  ;  7  id.  276  ;  9  id.  86,  212;  6  W^heat,  194  ; 
9  id.  645. 

MARSHAL.  To  arrange;  put  in  pro- 
per order :  e.  g.  "  the  law^  will  marshall  words, 
ut  res  magis  valeat."  Hill,  B.,  Hardr.  92.  So 
to  marshal  assets.  See  Assets.  So  to  mar- 
shal coat-armour:  this  now  belongs  to  her- 
alds.   Wharton,  Lex.  2d  Lond.  ed. 

MARSHALLING  ASSETS.  See 
Assets. 

MARSHALSEA.     In  English  Law. 

A  prison  belonging  to  the  king's  bench.  It 
has  now  been  consolidated  with  others,  under 
the  name  of  the  queen's  prison. 

MARSHALSEA,  COURT  OF.  A 
court  originally  held  before  the  steward  and 
marshal  of  the  royal  household. 

It  was  instituted  to  administer  justice  be- 
tween the  servants  of  the  king's  household, 
that  they  might  not  be  drawn  into  other  courts 
and  their  services  lost.  It  was  anciently  am- 
bulatory ;  but  Charles  I.  erected  a  court  of 
record,  by  the  name  of  curia  palaiii,  to  be 
held  before  the  steward  of  the  household,  etc., 
to  hold  pleas  of  all  personal  actions  wdiich 
should  arise  within  twelve  miles  of  the  royal 
palace  at  Whitehall,  not  including  the  city  of 
London.  This  court  was  held  w^eekly,  to  deter- 
mine causes  involving  less  than  twenty  pounds, 
together  with  the  ancient  court  of  Marshalsea, 
in  the  borough  of  Southwark.  A  writ  of  error 
lay  thence  to  the  king's  bench.  Both  courts 
were  abolished  by  the  stat.  12  &  13  Vict.  c. 
101,  §  13.    See  Jacob,  Whishaw,  Law  Diet. 

MARTIAL  LAW.  That  military  rule 
and  authority  which  exists  in  time  of  war, 


and  is  conferred  by  the  laws  of  war,  in  rela-^ 
tion  to  persons  and  things  under  and  within 
the  scope  of  active  military  operations,  in 
carrying  on  the  war,  and  which  extinguishes 
or  suspends  civil  rights  and  the  remedies 
j  I'ounded  upon  them,  for  the  time-being,  so  far 
j  as  it  may  appear  to  be  necessary  in  order  to 
the  full  accomplishment  of  the  purposes  of 
the  war.  Prof.  Joel  Parker,  in  N.  A.  Rev.,  Oct. 
1861.  ' 

The  application  of  military  government  to 
persons  and  property  within  the  Hcope  of  it, 
according  to  the  laws  and  usages  of  war,  to 
the  exclusion  of  the  municipal  government, 
in  all  respects  where  the  latter  would  impair 
the  efficiency  of  military  rule  and  military 
action.    Id.  ibid. 

2.  It  supersedes  all  civil  proceedings  which 
conflict  with  it,  Benet,  Mil.  Law,  l^ut  d(  es 
not  necessarily  supersede  all  such  proceed- 
ings. 

It  extends,  at  least,  to  the  camp,  environs, 
and  near  held  of  military  operations,  7  How. 
83  ;  3  Mart.  La.  530;  6  American  Archives, 
186  ;  and  see,  also.  2  H.  Blackst.  165  ;  1  Term, 
549 ;  1  Knapp,  Priv.  Conn.  316 ;  Dougl. 
573  ;  13  How\  115  ;  but  does  not  extend  to  a 
neutral  country.  1  Hill,  N.  Y.  377.  And  see 
25  Wend.  N.  Y.  483,  512,  n.  It  is  founded  on 
paramount  necessity,  and  imposed  by  a  mili- 
tary chief.  1  Kent,  Comm.  377,  n.  For  any 
excess  or  abuse  of  the  authority,  tlie  officer 
ordering  and  the  person  committing  the  act 
are  liable  as  trespassers.  13  How.  115,  154; 
1  Cowp.  180. 

Consult  the  article  Court  Martial;  Hal- 
leck,  Int.  Law ;  1  Hale,  PI.  Cr.  347  ;  1  Lie- 
ber.  Civ.  Lib.  130 ;  McArthur,  Courts  Mart. 
4th  Lond.  ed.  34 ;  DeHart,  Mil.  Law,  13-17  ; 
Tytler,  Courts  Mart.  11-27,  58-62,  105; 
Hough,  Mil.  Courts,  349,  350  ;  O'Brien,  Mil. 
Law,  26,  30;  Bowyer,  Const.  Law^  424;  3 
Webster,  Works,  459  ;  Story,  Const,  g  1342 ; 
8  Atty.  Gens.  Opinions,  365-374 ;  12  Mete. 
Mass.  56  ;  3  Mart.  La.  531 ;  1  Mart.  Cond. 
La.  169,  170,  n. ;  7  How.  59-88  ;  15  id.  115  ; 
16  id.  144;  10  Johns.  N.  Y.  328:  17  Bost. 
Law  Rep.  125;  24  id.  78;  4  West.  Law 
Monthl.  449. 

MARYLAND.  One  of  the  thirteen 
original  states  of  the  Union. 

2.  The  territory  of  Maryland  was  included  in 
the  grants  previously  made  to  companies  formed 
for  the  settlement  of  Virginia.    These  grants  were 
annulled,  and  Maryland  was  granted  by  Charles  the 
First,  on  the  20th  of  June,  1632,  to  CcciHus  Calvert, 
I  Baron  of  Baltimore.    The  first  settlement  under 
I  the  authority  of  Lord  Baltimore  was  made  on  the 
I  27th  of  March,  1634,  in  what  is  now  St.  Mary's 
!  county.    Some  settlements  were  previously  made 
on  Kent  Island,  under  the  authority  of  Virginia. 

During  its  colonial  period,  Maryland  was  gov- 
erned, with  slight  interruptions,  by  the  lord  pro- 
prietary, under  its  charter. 

The  government  of  Maryland  was  assumed  by 
commissioners  acting  under  the  Commonwealth  of 
England ;  but  in  a  few  years  Lord  Baltimore  waa 
restored  to  his  full  powers,  and  remained  undis- 
turbed until  the  revolution  of  1088,  when  the 
government  was  seized  by  the  crown,  and  not  re- 
stored  to  the  proprietary  till  1715.    From  this 


MARYLAND 


108 


MARYLAND 


period  there  was  no  interruption  to  the  proprietary 
rule  until  the  revolution. 

3.  The  territorial  limits  of  Maryland  seem  to 
have  been  plainly  described  in  the  charter;  still, 
long  disputes  arose  about  the  boundaries,  in  the  ad- 
justment of  which  this  state  was  reduced  to  her 
present  limits. 

The  lines  dividing  Maryland  from  Pennsylvania 
and  Delaware  were  fixed  under  an  agreement  be- 
tween Thomas  and  Richard  Penn  and  Lord  Balti- 
more, dated  in  1760.  These  lines  were  surveyed 
by  Mason  and  Dixon;  and  hence  the  line  between 
Maryland  and  Pennsylvania  is  called  Mason  and 
Dixon's  line. 

By  this  agreement,  the  rights  of  grantees  under 
the  respective  proprietaries  were  saved,  and  pro- 
vision made  for  confirming  the  titles  by  the  govern- 
ment in  whose  jurisdiction  the  lands  granted  were 
situated.  The  boundary  between  Maryland  and 
Virginia  has  never  been  finally  settled.  Maryland 
claimed  to  the  south  branch  of  the  Potomac;  but 
Virginia  has  held  to  the  north  branch,  and  exercised 
jurisdiction  up  to  that  line.  The  rights  of  the 
citizens  of  the  respective  states  to  fish  and  navigate 
the  waters  which  divide  Marj'land  and  Virginia 
were  fixed  by  compact  between  the  two  states  in 
1785. 

4.  The  first  constitution  of  this  state  was  adopted 
on  the  eighth  day  of  November,  1776.  The  pre- 
sent constitution  was  adopted  in  1851,  and  went 
into  operation  on  the  fourth  day  of  July  in  that 
year.  It  declared  that  no  person  ought  to  be  mo- 
lested on  account  of  his  religious  belief,  or  com- 
pelled to  frequent  or  maintain  any  place  of  worship 
or  any  mini.->try.  Any  person  who  believes  in  a 
God,  and  that  he  will  be  punished  or  rewarded  for 
his  acts  either  in  this  world  or  the  next,  is  compe- 
tent as  a  witness  or  a  juror.  The  jury  are  the 
judges  of  the  law  and  the  fact  in  criminal  cases. 
In  civil  cases  the  trial  by  jury  is  preserved  where 
the  amount  in  controversy  exceeds  five  dollars. 
Lotteries  are  prohibited  after  April  1,  1859.  No 
divorce  can  be  granted  by  the  legislature.  No 
holder  of  public  money,  while  indebted  to  the  state, 
no  person  who  fights  a  duel  or  sends  or  accepts  a 
challenge,  no  person  holding  any  office  under  the 
United  States,  no  minister  or  preacher  of  the 
gospel,  is  eligible  to  any  office  of  trust  or  profit. 
No  debt  can  be  created  for  purposes  of  internal  im- 
provement. Imprisonment  for  debt  is  not  allowed. 
The  legislature  may  not  pass  any  law  abolishing 
the  relation  of  master  and  slave  as  now  existing. 
Civil  officers  are  nearly  all  elected  by  the  people. 
Every  free  male  white  citizen  twenty-one  years  of 
age,  except  lunatics,  who  has  resided  a  year  in  the 
state  and  six  months  in  the  county  or  city,  is  en- 
titled to  vote.  Elections  are  to  be  held  on  the  first 
Wednesday  in  November  in  every  year,  commencing 
with  1851. 

The  statute  law  of  Maryland,  from  the  earliest 
colonial  times,  has  been  codified  in  two  volumes, 
which  were  adopted  "  in  lieu  of  and  as  a  substitute 
for  all  the  public  general  laws  and  public  local 
laws  heretofore  passed  by  the  legislature."  See 
Acts  of  1860,  ch.  I. 

The  Legislative  Power. 

5.  This  is  lodged  in  "  The  General  Assembly  of 
Maryland,"  composed  of  two  branches :  a  senate 
and  a  house  of  delegates. 

The  Senate  is  composed  of  members  elected,  one 
from  each  county  (the  city  of  Baltimore  also  elect- 
ing one),  for  the  term  of  four  years.  One-half  of 
the  senate  is  elected  every  two  years.  A  senator 
must  be  twenty-five  years  old,  a  citizen  of  the 
United  States,  have  resided  three  years  next  befoje 
election  in  the  state,  and  the  last  year  thereof  in 
the  county  or  city  from  which  he  is  elected. 

The  JJouse  of  JJeleyaten  consists  of  members 


elected  from  the  various  counties.  They  are  appor- 
tioned according  to  population;  but  the  smallest 
county  is  not  to  have  less  than  two,  the  city  of 
Baltimore  is  to  have  four  more  than  the  larsret^t, 
and  the  whole  number  is  never  to  exceed  eighty. 
A  delegate  must  be  twenty-one  years  of  age,  and 
otherwise  possess  the  same  qualifications  as  a 
senator. 

The  general  assembly  meets  the  first  Wednesday 
in  January  every  even  year,  and  the  session  closes 
the  tenth  of  Maich.  It  can  grant  no  act  of  incor- 
poration which  may  not  be  repealed.  It  cannot 
authorize  taking  private  property  without  first 
paying  or  tendering  a  just  compensation  to  the 
owner. 

The  Executive  Power. 

6.  The  Governor  is  elected  every  fourth  year  from 
1853,  for  the  term  of  four  years,  commencing  on 
the  second  Wednesday  in  January  next  after  his 
election.    The  state  is  divided  into  three  districts, 
from  each  of  which  the  governor  must  be  elected 
successively.    He  must  be  thirty  years  old,  have 
been  for  five  years  a  resident  of  the  state  and  throe 
years  of  the  district  from  which  he  is  elected.  The 
governor  is  commander  of  the  land  and  naval  forces ; 
appoints,  with  the  consent  of  the  senate,  all  mili- 
tary officers,  and  all  civil  officers  whose  appointment 
is  not  otherwise   provided  for;   in  case  of  the 
vacancy  of  any  office  during  the  recess  of  the  sen- 
ate, he  is  to  appoint  a  person  to  said  office,  to  hold  i 
until  the  end  of  the  next  session  of  the  legislature; 
may  suspend  or  arrest  any  military  officer  for  any  ; 
military  offence,  and  may  remove  any  civil  officer  • 
appointed  by  the  governor;  may  convene  the  legis-  ■ 
lature  or  the  senate  alone;  has  power  to  grant  re-  I 
prieves  and  pardons,  but  before  granting  sinal/e pro- 
sequi, or  pardon,  must  give  notice  of  the  application,  \ 
and  of  the  day  on  or  after  which  his  decision  will  i 
be  given.   When  required,  he  is  to  report  to  either  , 
branch  of  the  legislature  the  reasons  which  influ- 
enced his  decision.    He  may  not  appoint  to  an  office  , 
a  person  who  has  been  rejected  by  the  senate.    He  ' 
must  reside  at  Annapolis.    If  a  vacancy  occurs  in  - 
the  office  of  governor,  the  legislature,  if  in  session, 
appoints  a  substitute ;  and  if  not  in  session,  the 
president  of  the  senate  shall  act  as  governor;  and  t 
if  there  is  no  such  president,  the  speaker  of  the  i 
house  is  to  act.  | 

A  Secretary  of  State  is  appointed  by  the  governor,  < 
with  the  advice  of  the  senate.  J 

A  Treasurer  is  elected  by  the  house  of  delegates  " 
every  second  year. 

The  Judicial  Power. 

T.  The  Court  of  Appeals  consists  of  one  chief 
and  four  associate  judges,  elected,  one  from  each  of 
the  four  districts  into  which  the  state  is  divided, 
by  the  people  of  the  district,  for  ten  years.  It  has 
appellate  jurisdiction  only. 

The  Circuit  Court  consists  of  seven  judges,  elected 
one  in  each  of  the  seven  districts  into  which  the 
counties  of  the  state  are  arranged.  Each  judge 
holds  the  court  in  his  own  circuit,  and  has  full 
civil  and  criminal  jurisdiction. 

Ati  Orphans'  Court  exists  in  each  county,  and  in 
the  city  of  Baltimore,  composed  of  three  judges, 
elected  for  the  term  of  four  years  by  the  people  of 
the  county. 

The  City  of  Baltimore  constitutes  a  judicial  cir- 
cuit, and  has  four  courts,  the  judges  of  which  are 
elected  for  ten  years. 

The  superior  court  has  civil  jurisdiction  in  all 
equity  cases,  and  in  common-law  cases  involving 
more  than  five  hundred  dollars. 

The  circuit  court  has  an  equity  jurisdiction  con- 
current with  the  superior  court.  J 

The  court  of  common  pleas  has  civil  jurisd  <*m 
in  all  cases  where  the  debt  or  amount  of  dai.  ■  .;oB 


MASSACHUSETTS  109  MASSACHUSETTS 


claimed  is  over  one  hundred  dollars  and  under  five 
hundred  dollars. 

The  criminal  court  has  jurisdiction  of  all  crimes 
and  oflTenccs  committed  in  the  city. 

OomminsioiierH  of  Puhlic  Workn  are  elected,  one 
in  each  of  four  districts  into  which  the  state  is 
divided  for  this  purpose,  by  ihe  voters  of  the  dis- 
trict, for  the  terra  of  four  years.  A  comvitHHioncr 
of  the  land  office  is  elected  for  six  yi-ars.  He  is 
clerk  and  judge  of  the  land  office.  The  treuanrer 
is  elected  by  the  house  of  delegates  every  second 
year.  The  comptroller,  sheriffs,  county  covunia- 
sionera,  jmtlrca  of  the  jjeace,  conatablen,  etc.,  are 
elected  every  second  year. 

MASSACHUSETTS.  One  of  the  ori- 
ginal tiiirteeu  states  ot  the  United  States  of 
America. 

2.  In  1027,  a  company  of  Englishmen  obtained 
from  the  council  of  the  Plymouth  colony  a  grant 
of  "all  that  part  of  New  England  lying  three 
miles  south  of  Charles  river  and  three  miles  north 
of  Merrimac  river,  and  extending  from  the  Atlantic 
to  the  South  sea."  In  1628,  Charles  I.  granted 
them  a  charter,  under  the  name  of  "  The  Governor 
and  Company  of  the  Massachusetts  Bay  in  New 
England."  This  charter  continued  till  1684,  when 
it  was  adjudged  forfeited.  From  this  time  till  1091, 
governors  appointed  by  the  king  ruled  the  colony. 
In  1091,  William  and  Mary  granted  a  new  charter, 
by  which  the  colonies  of  Massachusetts  Bay  and 
New  Plymouth,  the  province  of  Maine,  and  the 
territory  called  Nova  Scotia,  were  incorporated  into 
one  government,  by  the  name  of  The  Province  of 
Massachusetts  Bay.  1  Story,  Const,  g  71.  This 
charter  continued  as  the  form  of  government  until 
the  adoption  of  the  state  constitution  in  1780. 

3.  The  constitution,  as  originally  adopted,  was 
drafted  by  John  Adams.  4  Adams,  Life  and  Works, 
213.  It  contained  a  provision  for  calling  a  con- 
vention for  its  revision  or  amendment  in  1795,  if 
two-thirds  of  the  voters  at  an  election  held  for 
this  purpose  should  be  in  favor  of  it.  Const.  Mass. 
c.  6,  art.  X.  But  at  that  time  a  majority  of  the 
voters  opi)osed  :iny  revision,  Bradford's  Hist.  Mass. 
294;  and  the  constitution  continued  without  amend- 
ment till  1820,  when  a  convention  was  called  for 
revising  or  amending  it.  Mass.  Stat.  1820,  c.  15. 
This  convention  proposed  fourteen  amendments, 
nine  of  which  were  accepted  by  the  people.  Since 
then,  sixteen  additional  articles  of  amendment 
hiive  been  adopted  at  different  times,  making 
twenty-five  in  all.  In  1853,  a  second  convention 
for  revising  the  constitution  was  held,  which  pre- 
pared an  entirely  new  draft  of  a  constitution.  This 
draft,  upon  submission  to  the  people,  was  rejected. 

The  constitution,  as  originally  drafted,  consists 
of  two  parts,  one  entitled  A  Declaration  of  the  Rights 
of  the  Inhabitants  of  the  Commonwealth  of  Massa- 
chusetts, and  the  other  The  Frame  of  Government. 
Const.  Mass.  Preamble. 

The  Declaration  of  Rights. 

4.  The  declaration  of  rights  asserts  that  all  men 
are  born  free  and  equal,  and  have  certain  natural 
and  unalienable  rights,  among  th.^m  the  rights  of 
hfe,  liberty,  and  property,  and,  in  fine,  the  right  of 
seekin;:;  safety  and  happiness.  Art.  i.  It  declares 
the  duty  of  public  worship,  and  the  right  of  religious 
liberty,  art.  ii.;  and  that  all  sects  shall  receive 
equal  protection  from  the  law.  Amcndts.  xi.  That  | 
the  commonwealth  is  a  sovereign  state,  enjoying  i 
every  power  not  expressly  delegated  to  the  United 
States.  Art.  iv.  That  all  power  is  derived  from 
the  people,  and  all  public  officers  are  at  all  times  \ 
accountable  to  them.  Art.  v.  That  no  man  has 
any  title  to  exclusive  privileges  except  from  his 
public  services;  and  this  title  is  not  heritable  or 
transmissible.    Art.  vi.    That  government  is  for  ] 


the  protection  of  the  people,  and  they  alone  have  a 
right  to  change  it  whm  tiieir  safety  requires.  Art. 
vii.  That,  to  prevent  those  in  power  from  bo- 
coming  oppresi-ors,  the  people  have  a  right  to 
cause  their  puldic  officers  to  return  to  private  life, 
and  to  fill  their  places  by  election,  art.  viii.;  and 
that  all  elections  should  be  free,  and  every  quali- 
fied voter  have  a  right  to  vote  and  to  be  elected  to 
office.  Art.  ix.  Each  individual  has  a  right  to 
be  protected  by  law,  and  must,  consequently,  jmy  his 
share  of  the  expense  of  this  protection;  but  his  pro- 
perty cannot  be  taken  or  applied  to  pul>lic  uses 
without  his  consent,  or  that  of  the  representative 
body;  and  wherever  the  property  of  any  person  is 
taken  for  public  uses,  he  shall  receive  reasonable 
compensation  therefor.  Art.  x.  Every  one  should 
find  in  the  laws  a  certain  remedy  for  all  wrongs  to 
person,  property,  or  character,  and  should  obtain 
justice  freely,  promptly,  and  completely.  Art.  xi. 
Every  person  accused  of  an  offence  shall  have  a 
right  to  have  it  formally  and  clearly  set  forth ; 
shall  not  be  compelled  to  furnish  evidence  against 
himself;  shall  be  allowed  to  produce  proofs  in  his 
favor,  and  to  be  heard  by  himself  or  his  counsel, 
and  shall  not  be  punished  (unless  in  the  army  or 
navy)  without  trial  by  jury.  Art.  xii.  The  proof 
of  facts  in  the  vicinity  where  they  happen  is  one  of 
the  greatest  securities  of  life,  liberty,  and  property. 
Art.  xiii.  All  warrants  should  be  su)  parted  by 
an  oath,  and,  if  for  the  search,  arrest,  or  seizure  of 
persons  or  property,  should  describe  such  persons 
or  property.  Art.  xiv.  In  all  civil  suits  (unless, 
in  causes  arising  on  the  seas,  or  suits  relating  to 
mariners'  wages,  the  laws  provide  otherwise)  the 
trial  by  jury  shall  be  held  sacred.  Art.  xv.  The 
liberty  of  the  press  ought  not  to  be  restrained.  Art. 
xvi.  The  people  have  a  right  to  keep  and  bear 
arms  for  the  common  defence ;  as,  in  peace,  armies 
are  dangerous  to  liberty,  they  ought  not  to  be 
maintained  without  legislative  consent;  the  mili- 
tary power  shall  be  in  exact  subordination  to  the 
civil  authority.  Art.  xvii.  Frequent  recurrence 
to  the  fundamental  principles  of  the  constitution, 
constant  adherence  to  piety,  justice,  moderation, 
temperance,  industry,  and  frugality,  are  necessary 
to  preserve  liberty  and  to  maintain  a  free  govern- 
ment; the  people  ought  especially  to  refer  to  these 
in  choosing  officers,  and  have  a  right  to  require  of 
their  officers  an  observance  of  them  in  making  and 
executing  the  laws.  Art.  xviii.  The  j  eople  have 
a  right  to  assemble  peaceably,  to  con>ult  on  the 
common  good,  to  instruct  their  representatives,  and 
to  petition  the  legislative  body.  Art.  xix.  The 
power  to  suspend  the  laws  should  never  be  ex- 
ercised but  by  the  legislature,  or  by  legislative 
authority  in  cases  provided  by  law.  Art.  xx. 
Freedom  of  debate  in  the  legislature  is  so  esst  ntial 
to  the  rights  of  the  people  that  it  cannot  be  the 
foundation  of  any  accusation,  prosecution,  action, 
or  complaint  in  any  court  or  place  whatsoever. 
Art.  xxi.  The  legislature  ought  to  assemble  fre- 
quently. Art.  xxii.  No  tax  ought  to  be  laid  with- 
out the  consent  of  the  people  or  their  represent- 
atives. Art.  xxiii.  Laws  to  punish  acts  already 
done,  and  not  declared  crimes  by  preceding  laws, 
are  unjust,  and  inconsistent  with  the  principles  of 
a  free  government.  Art.  xxiv.  No  subject  ought, 
in  any  case,  to  be  declared  guilty  of  treason  by  the 
legislature.  Art.  xxv.  No  magistrate  shall  take 
excessive  bail,  impose  excessive  fines,  or  inflict 
cruel  or  unusual  punishments.  Art.  xxvi.  In 
peace,  no  soldier  should  be  quartered  in  any  house 
without  the  owner's  consent;  and  in  war,  such 
quarters  should  not  be  made  but  by  the  civil  magis- 
trate, in  a  manner  provided  by  law.  Art.  xxvii. 
No  person  can  be  subjected  to  martial  law,  unless 
in  the  army  or  navy,  or  militia  in  actual  service, 
except  by  legislative  authority.  Art.  xxviii.  An 
impartial  interpretation  of  laws  and  administra* 


^1 


MASSACHUSETTS  110  MASSACHITSETTS 


tion  of  justice  is  essential  to  the  preservation  of 
every  right.  It  is  the  citizen's  right  to  be  tried  by 
judges  as  free,  impartial,  and  independent  as  the 
lot  of  humanity  will  admit.  It  is  not  only  the  best 
policy,  but  for  the  security  of  the  people,  that  the 
judges  of  the  supreme  court  should  hold  office  dur- 
ing good  behavior,  but  that  they  should  have 
honorable  salaries  established  by  standing  laws. 
Art.  xxix.  Neither  the  legislative,  judicial,  nor 
executive  department  shall  ever  exercise  any 
powers  of  government  except  its  own,  that  it  may 
be  a  government  of  laws,  and  not  of  men.  Art. 

XXX. 

The  Frame  of  Government. 

5.  The  name  of  the  state  is  the  Commonwealth 
of  Massachusetts. 

No  property  qualification  is  i*equired  for  voting 
or  for  eligibility  to  any  office,  except  those  of  gov- 
ernnr  or  lieutenant-governor.  Const.  Amend,  iii., 
xiii.  Every  male  citizen,  twenty-one  years  or 
more  of  age,  who  has  resided  within  the  common- 
wealth twelve  months,  and  in  the  town  where  he 
claims  to  vote  six  months,  preceding  an  election, 
who  has,  unless  exempt  from  taxation,  paid  a  tax 
within  two  years  (Amend,  iii.),  who  can,  unless 
physically  disabled,  read  the  constitution  in  the 
English  language,  and  write  his  name  (Amend. 
XX.),  and  who,  if  a  naturalized  foreigner,  has 
resided  in  the  United  States  two  years  subsequent 
to  his  naturalization  (Amend,  xxiii.),  may  vote  at 
any  election.  The  la^-t  two  amendments,  adopted 
respectively  in  1857  and  1859,  do  ni>t  disqualify 
persons  who  had  a  legal  right  to  vote  at  the  time 
of  their  adoption. 

Onthn  of  Office. 
Every  person  chosen  or  appointed  to  any  office  is 
obliged  to  take  an  oath  or  athrmation  faithfully  to 
discharge  the  duties  of  his  office  (c.  6,  a.  1),  and  to 
support  the  constitution  of  the  commonwealth. 
Amend,  vi.  An  oath  to  support  the  constitution 
of  the  United  States  is  required  by  the  laws  of  the 
United  States  of  every  member  of  a  state  legisla- 
ture, and  of  all  judicial  and  executive  officers  in 
the  states.  St.  1789,  c.  1,  §  3 ;  1  U.  S.  Stat,  at 
Large,  22. 

Amendments. 
Specific  amendments  may  be  proposed  by  the 
general  court,  and,  if  adopted  in  both  houses,  by  a 
vote  of  two-thirds  of  the  members  present,  taken  by 
yeas  and  nays,  in  two  successive  legislatures,  and 
afterwards  approved  and  ratified  by  a  majority  of 
the  voters  at  a  popular  election,  they  become  a  part 
of  the  constitution.    Amend,  ix. 

The  Leijislative  Potver. 

6.  The  Senate  is  composed  of  forty  members, 
elected  from  single  senatorial  districts,  each  con- 
taining as  nearly  as  possible  the  same  number  of 
legal  voters.  A  senator  must  be  an  inhabitant  of 
the  district  for  which  he  is  chosen,  and  must  have 
been  an  inh;ibitant  of  the  state  for  five  years  next 
preceding  his  election,  and  ceases  to  be  a  senator 
on  leaving  the  commonwealth.  Amend,  xxii. 
Any  vacancy  in  the  senate  may  be  filled  by  vote  of 
the  people  of  the  unrepresented  district,  upon  the 
order  of  a  majority  of  senators  elected.  Amend, 
xxiv. 

The  House  of  Representatives  consists  of  two  hun- 
dred and  forty  members,  chosen  in  each  of  the 
representative  <listrict8  into  which  the  counties  are 
divided  for  the  purfios  -.  The  number  of  represent- 
atives sent  by  any  district  de[)ends  on  the  number 
of  legal  voters  in  it;  but  no  district  can  send  more 
than  three  representatives.  A  representative  must 
have  been  an  inhabitant  of  the  district  for  which 
he  is  chosen  for  at  least  one  year  next  preceding  his 
election,  and  ceases  to  represent  his  district  on 
leaving  the  commonwealth. 


The  two  houses  together  constitute  the  •*  General 
Court  of  Massachusetts."  The  members  of  both 
houses  are  elected  annually,  at  the  state  elections, 
on  Tuesday  after  the  first  Monday  in  November. 
Amend,  xv.  If  the  people  of  any  representative 
district  fail  to  elect  a  representative  on  the  day  of 
the  annual  election,  they  may  hold  a  second  meet- 
ing for  this  purpose  on  the  fourth  Monday  of  No- 
vember. Amend,  xv.  The  general  court  meets  on 
the  first  "\Vedne^day  in  January,  and  is  dissolved 
on  the  day  before  the  sessif^n  of  the  next  gen(ral 
court.  Amend,  x.  It  may  be  prorogued  by  the 
governor  at  any  time,  at  the  request  of  both  houses, 
or,  without  their  request,  by  the  advice  of  the  coun- 
cil, for  a  period  noi  exceeding  ninety  days  (c.  2,  ^ 

1,  art.  6) ;  and  he  may  call  them  together  sooner 
than  the  time  ti»  which  they  were  adjourned,  if  the 
interests  of  the  commonwealth  require.  The  legis- 
lature has  power  to  create  courts  (c.  1,  ^  1,  art,  3); 
to  make  all  reasonable  laws  for  the  state;  to  pro- 
vide for  the  election  of  officers,  and  to  prescribe 
their  duties;  to  impose  taxes  and  duties  (c.  1,  ^  1, 
a.  4);  and,  upon  the  application  and  with  the  con- 
sent of  the  inhabitants,  to  create  cities,  in  towns 
of  not  less  than  twelve  thousand  inhabitants. 
Amend,  v.  That  taxes  may  be  equal,  there  shall 
be  a  new  valuation  of  estates  every  ten  years.  C,  1, 
^  1,  a.  4.  The  two  houses  are  quite  distinct,  and 
have  each  the  usual  privileges  in  regard  to  judging 
of  the  qualifications,  election,  etc.  of  nsembers, 
regulation  of  their  conduct,  etc.  The  members  of  • 
the  house  are  exempt  from  arrest  on  mesne  process 
in  going  to,  attending,  or  returning  from  the  assem-* 
bly.  C.  1,  ^  3,  a.  10,  11.  Sixteen  members  of  the; 
senate  and  one  hundred  members  of  the  house  con-" 
stitute  a  quorum  for  the  transaction  of  business;' 
but  a  less  number  may  organize  temporarily,  ad- 
journ from  day  to  day,  and  compel  the  attendance^ 
of  absent  members.    Amends,  xxi.,  xxii. 

The  Executive  Poicer. 
T.  The  Governor  is  the  supreme  executive  magis-. 
trate.  He  is  stj'led  the  *•  Governor  of  the  Common-' 
wealth  of  Massachusetts,"  and  his  title  is  His 
Excellency."  C.  2,  1,  a,  1.  He  is  elected  an-, 
nually.  C.  2,  ^  1,  a.  2.  Seven  years'  residence  in 
the  commonwealth,  and  the  possession  of  a  free-, 
hold  of  the  value  of  a  thousand  pounds,  are  the! 
necessary  qualifications  for  the  office  of  governor,' 
or  lieutenant-governor.  C,  2,  ^  1,  a,  1;  ^  2,  a,  1.' 
The  governor  has  authority  to  call  together  the,'' 
councillors,  and  shall,  with  them,  or  five  of  thern'^ 
at  least,  from  time  to  time  hold  a  council  for  order-' 
ing  and  directing  the  affairs  of  the  commonwealth. 
C.  2,  §  1,  a.  4.  He  is  commander-in-chief  of  the 
army  and  navy  of  the  commonwealth,  has  authority 
to  train  the  militia  for  the  defence  of  the  common- 
wealth, and  to  assemble  the  inhabitants  for  this 
purpose,  iind  is  intrusted  with  all  the  powers  inci- 
dent to  the  office  of  commander-in-chief,  except  that 
no  inhaliitants  arc  obliged  to  march  out  of  the 
state  without  their  own  consent  or  that  of  the  gene- 
ral court.  C.  2,  ^  1,  a.  7.  The  pardoning  power  is 
in  the  governor,  with  the  advice  of  the  council.  C. 

2,  ^  1,  a,  8.  No  money  can  i.<sue  from  the  treasury 
without  his  warrant.  C.  2,  ^  1,  a.  11.  He  has  the 
veto  power,  and,  with  the  advice  and  consent  of 
the  council,  the  appointment  of  all  judicial  officers, 
coroners,  and  notaries  public.  C.  2,  ^  1,  a.  9,  amend, 
iv. 

The  Lieutenant-Governor  is  elected  at  the  same 
time,  for  the  same  term,  and  must  have  the  same 
qualifications,  as  the  governor.  His  title  is  "His 
Honor."  He  is  a  member  of  the  council,  and,  in 
the  absence  of  the  governor,  its  president.  In  case 
of  a  vacancy  in  the  office  of  governor,  the  lieutenant- 
governor  acts  as  governor.    C.  2,  ^  2,  a  "  " 

The  Council  consists  of  eight  counc 
chosen  annually  from  a  separate  council 


MASSACHUSETTS 


111 


MASSACHUSETTS 


Thie  state  is  re-districted  every  ten  years.  Amend, 
xvi.  Five  councillors  c  mstitute  a  quorum,  and 
their  duty  is  to  advise  the  governor  in  the  execu- 
tive part  of  the  government.  C.  2,  ^  3,  a.  1.  In 
case  of  vacancies  in  both  the  offices  of  governor 
and  lieutenant-governor,  the  council,  or  the  major 
p.irt  of  thi'in,  shall  have  and  exercise  the  powers  of 
the  governor.  C.  2,  ^  3,  a.  6.  Vacancies  in  the 
council  are  filled  by  concurrent  vote  of  the  two 
branches  of  the  legislature;  or,  if  the  legislature  is 
not  in  session,  by  the  governor's  appointment. 
Amend,  xxv. 

The  Secretary  of  the  Commonwenlth,  the  Treafiiirer, 
Auditor,  and  Attorney-Genera/,  are  chosen  annually 
at  the  state  election  (Amend,  xvii.);  and,  that 
the  citizens  of  the  commonwealth  may  be  assured 
from  time  to  time  that  the  moneys  remaining  in 
the  public  treasury,  upon  t!ie  settlement  and  liquida- 
tion of  the  public  accounts,  are  their  property,  no 
man  shall  be  eligible  as  treasurer  more  than  five 
successive  years.  C.  2,  ^  4,  a.  1.  Every  councillor, 
the  secretary,  treasurer,  auditor,  and  attorney- 
general,  must  have  been  an  inhabitant  of  the  state 
for  the  five  years  immediately  preceding  his  elec- 
tion or  appointment.  Amends,  xvi.,  xvii.,  xxii. 
Sheriffs,  registers  of  probate,  clerks  of  courts,  and 
district  attorneys  are  chosen  by  the  people  of  the 
several  counties.    Amend,  xix. 

The  Judicial  Poioer. 

O.  The  Supreme  Judicial  Court  consists  of  one 
chief  and  five  associate  justices.  Four  justices 
constitute  a  quorum  to  decide  all  matters  requisite 
to  be  heard  at  law.  Gen.  Stat.  c.  112,  ^  1  et  seq. 
A  law  term  of  the  court  for  the  commonwealth  is 
held  at  Boston  on  the  first  Wednesday  of  January 
in  each  year,  which  may  be  adjourned  from  time  to 
time,  and  to  such  places  and  times  as  may  be  con- 
venient for  determining  questions  of  law  arising 
in  the  nine  eastern  counties,  and  one  term  a  year 
in  each  of  the  remaining  five  counties  for  cases 
in  those  counties  respectively.  These  are  regular 
terms  of  the  court;  but  no  jury  is  to  be  summoned 
except  in  certain  special  cases.  Jury  terms  of  the 
court  are  also  held  by  a  single  justice,  at  times  and 
places  prescribed,  once  a  year,  in  each  county,  ex- 
cept that  one  term  only  is  held  for  Barnstable  and 
Dukes  county,  and  two  terms  annually  for  Sufi'olk. 
■Questions  of  law  arising  at  the  jury  terms  are 
reported  by  the  presiding  judge  to  the  full  bench. 
It  is  provided  that  the  court  shnll  have  original 
and  exclusive  jurisdiction  of  petitions  for  divorce 
and  nullit3'^  of  marriage,  and  original  and  concur- 
rent jurisdiction  with  the  superior  court  of  peti- 
tions for  partition  and  writs  of  entry,  for  foreclosure 
of  mortgages,  and  of  civil  actions  in  which  the 
damages  demanded  or  the  property  claimed  exceed 
in  amount  or  value  four  thousand  dollars  if  brought 
in  the  county  of  Suffolk,  and  one  thousand  dollars 
if  brought  in  any  other  county,  if  the  plaintiff,  or 
some  one  in  his  behalf,  before  service  of  the  writ, 
makes  oath  or  affirmation  before  some  justice  of  the 
peace  that  he  verily  believes  the  mat'er  sought  to 
be  recovered  equals  in  amount  or  value  said  sums 
respectively,  a  certificate  of  which  oath  or  affirma- 
tion shall  be  indorsed  on  or  annexed  to  the  writ; 
and,  also,  that  it  shall  have  full  equity  jurisdiction, 
accordin;^  to  the  usage  and  practice  of  courts  of 
equity,  in  all  cases  where  there  is  not  a  complete 
remedy  at  law.  Trials  of  indictments  for  capital 
crimes,  questions  of  law  on  exceptions,  on  appeals 
from  the  superior  court,  on  cases  stated  by  the  par- 
ties, and  on  a  special  verdict,  and  all  issues  in  law, 
are  to  be  heard  and  determined  by  the  full  court. 

lO.  The  Superior  Court  is  composed  of  one  chief 
justice  and  nine  associate  justices.  It  is  to  be  held 
at  the  times  and  places  prescribed,  being  at  least 
two  terms  annually  in  each  county.  The  court  has 
exclusive  osiginal  jurisdiction  of  complaints  for 


flowing  land,  and  original  jurisdiction  of  all  civil 
actions  except  those  of  which  the  8U[)reme  judi- 
cial court,  police  courts,  or  justices  of  the  peace 
have  original  and  exclusive  jurisdiction;  jurisdic- 
tion of  all  civil  actions  and  proceedings  legally 
brought  before  it,  by  appeal  or  otherwise,  from 
justices  of  the  peace,  police  courts,  or  courts  of  in- 
solvency, and  from  the  decisions  of  commissioners 
on  insolvent  eHtat(;s  of  deceased  persons;  original 
jurisdiction  of  all  crimes,  offences,  and  misde- 
meanors, and  appellate  jurisdiction  of  all  offences 
tried  and  determined  before  a  police  court  or  justice 
of  the  peace;  and  in  criminal  cases  legally  brought 
bijfore  it  its  jurisdiction  shall  be  final,  except  as 
otherwise  provided.  It  has  concurrent  jurisdiction 
with  the  supreme  court,  as  stated  above. 

All  judicial  officers  are  api)ointed  by  the  gov- 
ernor, with  the  advice  of  the  council.  Every  nomi- 
nation for  a  judicial  appointment  must  be  made  by 
the  governor  to  the  council  at  least  seven  days 
before  the  council  can  approve  it.  C.  2,  ^  1,  a.  9. 
The  judges  hold  office  during  good  behavior,  but 
may  be  removed  by  the  governor,  with  the  conpent 
of  the  council,  upon  the  address  of  both  branches 
of  the  legislature.  C.  3,  a.  1.  The  governor  and 
council,  and  either  branch  of  the  legislature,  may 
require  the  opinion  of  the  justices  of  the  supreme 
judicial  court  upon  important  questions  of  law, 
and  upon  solemn  occasions.    C.  3,  a.  2. 

11.  Judc/es  of  Probate  and  IiiHohency  are  ap- 
pointed to  hold  office  according  to  the  tenor  of  their 
commissions,  so  that  there  may  be  one  judge  for 
each  county.  They  may  interchange  services  or 
perform  each  other's  duties  when  necessary  or  con- 
venient. The  courts  of  these  judges  are  courts  of 
record,  and  have  original  jurisdiction  of  all  pro- 
ceedings under  the  Insolvent  Act,  and  of  the  pro- 
bate of  wills,  granting  administration  of  the  estates 
of  persons  who  at  the  time  of  their  decease  were 
inhabitants  of  or  resident  in  the  county,  and  of 
persons  who  die  without  the  state,  leaving  estate  to 
be  administered  within  such  county;  of  the  ap- 
pointment of  guardians  to  minors  and  others,  and 
of  all  matters  relating  to  the  estates  of  such  de- 
ceased persons  and  wards  ;  and  of  petitions  for  the 
adoption  of  children  and  the  change  of  names. 
The  courts  are  to  be  held  at  such  times  and  places 
as  the  statutes  prescribe.  They  are  held  at  other 
places  as  well  as  at  the  shire  towns;  and  sessions 
occur  very  frequently.  At  the  time  of  the  adop- 
tion of  the  constitution,  original  jurisdiction  in 
probiate  matters  was  exercised  by  deputies  or  surro- 
gates appointed  by  the  governor  in  the  several 
counties,  from  whom  there  was  an  appeal  to  the 
governor  with  the  council.  21  Bost.  Law  Rep.  78. 
Under  a  constitutional  provision,  in  1784,  an  act 
was  passed  establishing  courts  of  probate  in  the 
several  counties,  and  making  the  supreme  judicial 
court  the  supreme  court  of  probate.  Sh.  1783,  c. 
46;  21  Bost.  Law  Rep.  80. 

12.  Justices  of  the  Pence  are  appointed  by  the 
governor.  The  commissions  of  justices  of  the  peace 
shall  continue  only  seven  years,  that  the  people  may 
not  suffer  from  the  long  continuance  in  place  of  any 
justice  who  shall  fail  of  discharging  the  important 
duties  of  his  office  with  ability  or  fidelity;  but  iny 
such  commission  may  be  renewed.  C.  3.  They 
have  conclusive  original  jurisdiction  of  replevin  for 
impounded  beasts,  and  original  and  concurrent 
jurisdiction  with  the  superior  court  of  all  actions 
of  contract,  tort,  or  replevin,  where  the  debt  or 
damages  demanded,  or  value  of  the  property 
alleged  to  be  detained,  is  more  than  twenty  and 
does  not  exceed  one  hundred  dollars.  A  certain 
number  in  each  county  are  designated  as  trial  jus- 
tices, who  have  jurisdiction  over  petty  criminal 
offences. 

A  Police  Court,  consisting  of  one  justice  and  two 
associate  justices,  is  established  in  many  of 


MASTER 


112 


MASTER  IN  CHANCERY 


cities  and  large  towns,  but  may  not  be  hereafter  in 
any  town  of  less  than  ten  thousand  inhabitants. 
They  have  the  same  jurisdiction  in  civil,  and  sub- 
stantially the  same,  with  some  additions,  in  criminal, 
matters,  as  justices  of  the  peace,  and  their  jurisdic- 
tion, when  both  plaintiff  and  defendant  reside  in 
■She  district,  is  exclusive  of  that  of  other  police 
courts  and  justices.  A  speedy  settlement  of  suits  is 
obtained  in  these  courts. 

Commissions.  All  commissions  are  to  be  in  the 
name  of  the  commonwealth,  and  to  be  signed  by 
the  governor  and  attested  by  the  secretary,  and 
under  the  seal  of  the  commonwealth.    C.  (5,  a.  4. 

Writs.  All  writs  are  in  the  name  of  the  com- 
monwealth, under  the  seal  of  the  court,  bearing 
toste  of  the  first  justice,  not  a  party  to  the  suit,  and 
signed  by  the  clerk.    C.  6,  a.  5, 

Habeas  Corpus.  This  writ  shall  be  enjoyed  in 
the  most  free,  easy,  cheap,  expeditious,  and  ample 
manner;  shall  not  be  suspended,  except  by  the 
legislature  on  the  most  urgent  and  pressing  occa- 
sions, and  for  not  more  than  twelve  months.  C.  6, 
a.  7. 

MASTER.  One  who  has  control  over  an 
apprentice. 

A  master  stands  in  relation  to  his  apprentices  in 
loco  parentis,  and  is  bound  to  fulfil  that  relation, 
which  the  law  generally  enforces.  He  is  also  en- 
titled to  be  obeyed  by  his  apprentices  as  if  they 
were  his  children.  Bouvier,  lust.  Index.  See  Ap- 
prenticeship. 

One  who  is  employed  in  teaching  children: 
known,  generally,  as  a  schoolmaster.  As  to 
his  powers,  see  Correction. 

One  who  has  in  his  employment  one  or 
more  persons  hired  by  contract  to  serve  him, 
either  as  domestic  or  common  laborers. 

2.  Where  the  hiring  is  for  a  definite  term 
of  service,  the  master  is  entitled  to  their  labor 
during  the  Avhole  term,  and  may  recover 
damages  against  any  one  who  entices  away 
or  harbors  them  knowing  them  to  be  in  his 
service,  6  Term,  221;  8  East,  39;  Anth. 
N.  Y.  94 ;  13  Johns.  N.  Y.  322 ;  6  Wend.  N.  Y. 
436  ;  4  Pick.  Mass.  425 ;  or  who  debauches  a 
female  servant,  4  Cow.  N.  Y.  412 ;  and  if  be- 
fore the  expiration  of  the  terra  the  servant 
leaves  without  just  cause,  he  forfeits  his 
wages.  2  Carr.  &  P.  510 ;  1  Watts  &  S.  Penn. 
265  ;  34  Me.  102;  43  id.  463;  19  Pick.  Mass. 
529;  12  Mete.  Mass.  286;  19  Mo.  60;  25 
Conn.  188  ;  6  N.  II.  481.  The  master  may 
dismiss  a  servant  so  hired  before  the  expira- 
tion of  the  term,  either  for  immoral  conduct, 
wnlful  disobedience,  or  habitual  neglect,  and 
the  servant  will  not  in  such  case  be  entitled 
to  his  wages,  4  Carr.  &  P.  518;  2  Stark.  256; 
3  Enp.  235  ;  but  if  the  dismissal  be  without 
reasonable  cause,  the  servant  may  recover 
damages  from  his  master  therefor,  to  such  an 
amount  as  to  indemnify  for  the  loss  of  wages 
during  the  time  necessarily  spent  in  obtain- 
ing a  fresh  situation,  and  for  the  loss  of  the 
excess  of  any  wages  contracted  for  above  the 
usual  rate.  2  IIou.  L.  Cas.  007  ;  13  C.  B. 
508  ;  20  Eng.  L.  &  Eq.  157. 

3.  A  master  may  justify  an  assault  in  de- 
fence of  his  servant,  and  a  servant  in  defence 
of  his  master:  the  master  ])ecauso  he  has  an 
interest  in  his  servant,  not  to  be  def)rivod  of 
his  service ;  the  servant  because  it  is  a  part 
of  his  duty,  for  which  ho  receives  his  wages, 


to  stand  by  and  defend  his  master.  1  Black- 
stone,  Comm.  429 ;  Lofft,  215.  The  master 
is  liable  to  be  sued  for  the  injuries  occasioned 
by  the  neglect  or  unskilfulness  or  the  tortious 
acts  of  his  servants  whilst  in  the  course  of 
his  employment,  3  Mass.  364  ;  19  Wend.  N. 
Y.  345  ;  40  Eng.  L.  &  Eq.  329 ;  4  Du.  N.  Y. 
473;  26  Vt.  178;  23  N.  H.  157;  although 
contrary  to  his  express  orders,  if  not  done  in 
wilful  disregard  of  those  orders,  14  How.  468 ; 

7  Cush.  Mass.  385;  10  111.  509;  but  he  is  not 
liable  for  acts  committed  out  of  the  course  of 
his  employment,  20  Conn.  284 ;  17  Mass.  508; 

8  Term,  533  ;  16  Eng.  L.  &  Eq.  448  ;  nor  for 
the  wilful  trespasses  of  his  servants.  1  East, 
106;  24  Conn.  40;  1  Smith,  Ind.  455;  2 
Mich.  519.  A  master  is  not  criminally  liable 
for  the  acts  of  his  servant  unless  committed 
by  his  command  or  with  his  assent.  8  Ind. 
312;  2  Strange,  885. 

4.  Where  a  master  uses  due  diligence  in 
the  selection  of  competent  and  trusty  servants, 
and  furnishes  them  with  suitable  means  to 
perform  the  service  in  which  he  employs 
them,  he  is  not  amenable  to  one  of  them  for 
an  injury  received  by  him  in  consequence  of 
the  carelessness  of  another  while  both  are 
engaged  in  the  same  service,  3  Mees.  &  W.  ; 
Exch.  1 ;  4  Mete.  Mass.  49 ;  3  Cush.  Mass. 
270  ;  10  id.  228  ;  5  N.  Y.  492  ;  3  Smith,  Ind.  = 
134,  153  ;  42  Me.  269 ;  40  Eng.  L.  &  Eq.  376,  ' 
491 ;  but  where  such  injury  results  from  the 
master's  neglect  to  provide  suitable  means  to  \ 
perform  the  service  or  to  use  reasonable  care  ; 
in  the  selection  of  his  servants,  the  master 
will  be  answerable.    20  Barb.  N.  Y.  449  ;  26 
id.  39 ;  6  Du.  N.  Y.  225 ;  6  Cal.  209 ;  33 
Eng.  L.  &  Eq.  1 ;  36  id.  486;  37  id.  281.  AU 
contracts  made  by  the  servant  within  the  , 
scope  of  his  authority,  express  or  implied,  , 
bind  the  master.    See  Principal;  Agent.  ] 

The  master  may  give  moderate  corporal  ; 
correction  to  his  menial  servant  while  under  '< 
age ;  for  then  he  is  considered  as  standing  in 
loco  parentis.    2  Kent,  Comm.  261.    The  . 
master  is  bound  to  supply  necessaries  to  an 
infant  servant  unable  to  provide  for  himself, 
2  Campb.  650;  1  Leach,  Cr.  Cas.  137;  1 
BLackstone,  Comm.  427,  n. ;  but  not  to  pro- 
vide even  a  menial  servant  with  medical  at- 
tendance and  medicines  during  sickness.  4 
Carr.  &  P.  80 ;  7  Vt.  76. 

MASTER  IN  CHANCERY.    An  offi- 

cer  of  a  court  (  f  chancery,  who  acts  as  an 
assistant  to  the  chancellor.  3  Edw.  Ch.N.  Y, 
458;  19  111.  131. 

The  masters  were  originally  clerks  afsociated 
with  the  chancellor,  to  discharge  some  of  the  more 
mechanical  duties  of  his  office.    They  were  called  I 
prrccptores,  and  gradually  increased  in  number  j 
until  there  were  twelve  of  them.    They  obtained  i 
the  title  of  masters  in  the  reign  of  Edw.  III.  j 
Their  office  is  mainly  judicial  in  its  character,  j 
but  sometimes  includes  ministerial  offices.    See  1  j 
Spcnce.  Eq.  Jur.  .300-367 ,'  1  Ilarr.  Ch.  Mich.  4.36  ;  I  j 
Bail.  Ch.  So.  C.  77;  1  Des.  Ch.  So.  C.  587.    The  I 
office  was  abolished  in  England  by  the  15  <t  16 
Vict.  c.  80.    In  the  United  States,  officers  of  this 
name  exist  in  many  of  the  states,  with  similar 
powers  to  thojsc  exercised  by  the  English  masters^ 


MASTERS  AT  COMMON  LAW       113  MASTER  OF  A  SHIP 


but  variously  modified,  restricted,  and  enlarged  by 
statute,  anil  in  some  of  the  states  similar  officers 
are  called  commissioners  and  by  other  titles. 

The  duties  of  the  masters  are,  generally: 
first,  to  take  accounts  and  make  computa- 
tions, 18  How.  295  ;  2  Munf.  Va.  129  ;  14  Vt. 
501 ;  27  id.  673  ;  Walk.  Oh.  Miss.  532 ;  second, 
to  make  inquiries  and  report  facts,  3  Woodb. 
&  M.  C.  C.  258  ;  3  Paige,  Ch.  N.  Y.  305  ;  23 
Conn.  529  ;  1  Stockt.  Ch.  N.  J.  309  ;  2  Jones, 
Eq.  No.  C.  238  ;  5  Gray,  Mass.  423  ;  5  Cal. 
90 ;  see  1  Freem.  Ch.  502  ;  9  Paige,  Ch.  N.  Y. 
372 ;  third,  to  perform  some  special  minis- 
terial acts  directed  by  the  court,  such  as  the 
sale  of  property,  11  Humphr.  Tenn.  278;  25 
Barb.  N.  Y._440,  settlement  of  deeds,  see  1 
Cow.  N.  Y.  711,  appointment  of  ncAV  trustees, 
and  the  like,  1  Barbour,  Chanc.  Pract.  408  ; 
fourth,  to  discharge  such  duties  as  are  spe- 
cially charged  upon  them  by  statute.  See 
Poor  Debtor ;  Insolvency. 

MASTERS  AT  COMMON  LAW. 
In  English  Law.  Officers  of  the  superior 
courts  of  common  law,  whose  duty  it  is  to  tax 
costs,  compute  damages,  take  affidavits,  and 
the  like.  They  are  five  in  number  in  each 
court.    See  stat.  7  Will.  IV.,  &  1  Vict.  c.  30. 

MASTER  OF  THE  CROWN  OF- 
FICE. The  queen's  coroner  and  attorney  in 
the  criminal  department  of  the  court  of 
queen's  bench,  who  prosecutes  at  the  relation 
of  some  private  person  or  common  informer, 
the  crown  being  the  nominal  prosecutor. 
Stat.  6  &  7  Vict.  c.  20;  Wharton,  Diet.  2d 
Lond.  ed. 

MASTER  OF  THE  ROLLS.  In  Eng- 
lish Law.  An  officer  of  chancery,  who  has 
the  keeping  of  the  rolls  and  grants  which 
pass  the  great  seal  and  the  records  of  the 
chancery,  and  exercises  extensive  judicial 
functions  in  a  court  which  ranks  next  to  that 
of  the  lord  chancellor. 

An  officer  with  this  title  existed  in  the  time  of 
the  Conqueror.  Ho  had  from  most  ancient  times 
an  office  in  chancery,  with  distinct  clerks.  In  early 
times  no  judicial  authority  was  conferred  by  an  ap- 
pointment as  master  of  the  rolls.  In  the  reigns  of 
Hen.  VI.  and  Edw.  IV.  they  are  found  sitting  in  a 
judicial  capacity,  and  from  1623  have  had  the 
regulation  of  some  branches  of  the  business  of  the 
court.  He  is  the  chief  of  the  masters  in  chancery  ; 
and  his  judicial  functions,  except  those  specially 
conferred  by  commission,  appear  to  have  properly 
belonged  to  him  in  this  character.  1  Spence,  Ea. 
Jur.  100,  357.  ^ 

All  orders  and  decrees  made  by  him,  except  those 
appropriate  to  the  great  seal  alone,  are  valid,  unless 
discharged  or  altered  by  the  lord  chancellor,  but 
must  be  signed  by  him  before  enrolment;  and  he  is 
especially  directed  to  hear  motions,  pleas,  demur- 
rers and  the  like.  Stat.  3  Geo.  II.  c.  30 ;  3  <fc  4 
Wdl.  IV.  c.  94:  3  Blackstone,  Comm.  442. 

MASTER  OP  A  SHIP.    In  Maritime 

Law     ihe  commander  or  first  officer  of  a 
merchant-ship ;  a  captain. 

The  master  of  an  American  ship  must  be 
a  citizen  of  the  United  States,  1  U.  S.  Stat,  at 
i^arge,  287  ;  and  a  similar  requirement  exists 
m  most  maritime  states.  In  some  countries 
tneir  qualifications  in  point  of  skill  and  ex- 
VoL.  II._8 


perience  must  be  attested  by  examination  by 
proper  authorities  ;  but  in  the  United  States 
the  civil  responsibility  of  the  owners  for  their 
acts  is  esteemed  sufficient.    A  vessel  sailing 
without  a  competent  master  is  deemed  unsea- 
I  worthy,  and  the  owners  are  liable  for  any  loss 
I  of  cargo  which  may  occur,  but  cannot  recover 
!  on  a  policy  of  insurance  in  cas^e  of  disaster. 
21JIow.7,2;3;  G  Cow.  N.  Y.  270  ;  12  Johns. 
N.  Y.pS,  136;  21  N.  Y.  378. 

2.  The  master  is  selected  by  the  owners, 
and,  in  case  of  his  death  or  disability  during 
the  voyage,  the  mate  succeeds;  if  he  also 
dies  in  a  foreign  country,  the  consignee  of 
the  vessel,  or  the  consul  of  the  nation,  may, 
in  a  case  of  necessity  and  in  the  absence  of 
other  authority,  appoint  a  master.  The  mas- 
ter himself  may,  in  similar  circumstances  of 
necessity  and  distance  from  the  owners,  ap- 
point a  substitute.  1  Parsons,  Mar.  Law, 
387;  2  Sumn.  C.  C.  206  ;  13  Pet.  387.  Dur- 
ing a  temporary  absence  of  the  master,  the 
mate  succeeds.    2  Sumn.  C.  C.  588. 

3.  lie  must,  at  the  commencement  of  the 
voyage,  see  that  his  ship  is  seaworthy  and  fully 
provided  with  the  necessary  ship's  papers, 
and  with  all  the  necessary  and  customary  re- 
quisites for  navigation,  as  well  as  with  a  pro- 
per supply  of  provisions,  stores,  etc.,  Bee, 
Adm.  80;  2  Paine,  C.  C.  291 ;  1  Pet  Adm. 
219  ;  Ware,  454,  for  the  vovage.  1  Pet.  Adm. 
407;  1  Woodb.  &  M.  C.^C.  338.  He  must 
also  make  a  contract  with  the  seamen,  if  the 
voyage  be  a  foreign  one  from  the  United 
States.  1  U.  S.  Stat,  at  Largo,  131 ;  2  id, 
203.  He  must  store  safely  under  deck  all 
goods  shipped  on  board,  unless  by  well-esta- 
blished custom  or  by  express  contract  they 
are  to  be  carried  on  deck  ;  and  he  must  stow 
them  in  the  accustomed  manner  in  order  to 
prevent  liability  in  case  of  damage.  In  re- 
spect to  the  lading  or  carriage  of  goods  shipped 
as  freight,  he  is  required  to  use  the  greatest 
diligence;  and  his  responsibility  attaches 
from  the  moment  of  their  receipt,  whether  on 
board,  in  his  boat,  or  at  the  quay  or  beach. 
3  Kent.  Comm.  206 ;  Abbott,  Shipp.  423. 

4.  He  must  proceed  on  the  voyage  in  which 
his  vessel  may  be  engaged  by  direction  of  the 
owners,  must  obey  faithfully  his  instructions, 
and  by  all  legal  means  (see  3  Cranch,  242) 
promote  the  interests  of  the  owner  of  the  ship 
and  cargo.  He  must  govern  his  crew  and 
prevent  improper  exercise  of  authority  by  his 
subordinates.  2  Sumn.  C.  C.  1, 584 ;  14  Johns, 
N.  Y.  19.  He  must  take  all  possible  care  of 
the  cargo  during  the  voyage,  and,  in  case  of 
stranding,  shipwreck,  or  other  disaster,  muf^t 
do  all  lawful  acts  which  the  safety  of  the  ship 
and  the  interests  of  the  owners  of  the  8hii> 
and  cargo  require.  Flanders,  Shipp.  190;  1& 
How.  150 ;  13  Pet.  387.  It  is  his  duty,  in 
case  of  disaster  or  interruption  of  the  voyage 
by  unexpected  circumstances,  to  file  a  state- 
ment of  circumstances,  called  a  protest.  As  to 
his  duty  with  respect  to  damaged  goods,  see 
1  Blatchf.  C.  C.  357 ;  1  Stor.  C.  C.  342. 

5.  In  time  of  war,  he  must  avoid  acts  which 
will  expose  his  vessel  and  cargo  to  seizure  and 


MASTER  OF  A  SHIP 


114 


MATERIAL  MEN 


confiscation,  and  must  do  all  acts  required  for 
the  safety  of  the  vessel  and  cargo  and  the  in- 
terests of  their  owners.  He  must  bring  home 
from  foreign  ports  destitute  seamen,  Act  of 
Congr.  Feb.  28,  1803,  g  4,  Feb.  28,  1811,  and 
must  retain  from  the  wages  of  his  crew  hos- 
pital-money. Act  of  Congr.  July  16,  1798, 
March  1,  1843. 

He  is  liable  to  the  owners,  and  he  and  they 
to  all  others  whose  interests  are  affected  by 
his  acts,  for  want  of  reasonable  skill,  care,  or 
prudence  in  the  navigation  or  management 
of  the  vessel,  1  Wash.  C.  C.  142,  including 
injuries  done  to  the  cargo  by  the  crew,  1  Mas. 
C.  C.  104 ;  and  this  rule  includes  the  impro- 
per discharge  of  a  seaman.  Ware,  Dist. 
Ct.  63. 

6.  His  authority  on  shipboard  (Ware,  Dist. 
Ct.  506)  is  very  great,  but  is  of  a  civil  cha- 
racter. He  has  a  right  to  control  and  direct 
the  efforts  of  the  crew,  and  to  use  such  force 
as  may  be  necessary  to  enforce  obedience  to 
his  lawful  demands.  He  may  even  take  life, 
if  necessary,  to  suppress  a  mutiny.  He  may 
degrade  officers.  1  Blatchf.  &  II.  Adm.  195, 
366;  1  Pet.  Adm.  244;  4  Wash.  C.  C.  338; 
6  Bost.  Law  Rep.  304 ;  21  id.  148  ;  2  C.  Rob. 
Adm.  261.  He  may  punish  acts  of  insolence, 
disobedience,  and  insubordination,  and  such 
other  offences  as  may  be  required  for  the  safety 
and  discipline  of  the  ship.  Flogging  is,  how- 
ever, prohibited,  9  U.  S.  Stat,  at  Large,  515 ; 
and  for  any  unreasonable,  arbitrary,  or  brutal 
exercise  of  authority  towards  a  seaman  or 
passenger  he  is  liable,  criminally  and  in  a 
civil  suit.  4  U.  S.  Stat,  at  Large,  776,  1235  ; 
1  Conkling,  Adm.  430-439  ;  14  Johns.  N.  Y. 
119. 

7.  If  the  master  has  not  funds  for  the 
necessary  supplies,  repairs,  and  uses  (see  3 
Wash.  C.  C.  484)  of  his  ship  when  abroad, 
he  may  borrow  money  for  that  purpose  on  the 
credit  of  his  owners  ;  and  if  it  cannot  be  pro- 
cured on  his  and  their  personal  credit,  he  may 
take  up  money  on  bottomry,  or,  in  extreme 
cases,  may  pledge  his  cargo.  3  Mas.  C.  C. 
255;  Abbott,  Shipp.  162;  3  Kent,  Comm. 
Lect.  49.    See  Bottomry;  Respondentia. 

In  such  cases,  and,  generally,  when  con- 
tracting within  the  ordinary  scope  of  his  pow- 
ers and  duties,  he  is  personally  responsible, 
as  well  as  his  owners,  when  they  are  person- 
ally liable.  On  bottomry  loans,  however,  there 
is  ordinarily  no  personal  liability  in  this  coun- 
try, or  in  England,  beyond  the  fund  which 
comes  to  the  hands  of  the  master  or  owners 
from  the  subject  of  the  pledge.  Abbott,  Shipp. 
90;  Story,  Ag.  ^  116,  123,  294.  In  most 
cases,  too,  the  ship  is  bound  for  the  perform- 
ance of  the  master's  contract,  Ware,  Dist. 
Ct.  322;  but  all  contracts  of  the  master  in 
chartering  or  freighting  his  vessel  do  not  give 
such  a  lien.    19  How.  82. 

8.  He  has  a  lien  upon,  and  a  consequent 
right  to  retain,  the  freight  earned  by  his  ship 
for  the  ro[)ayment  of  money  advanced  l)y  him 
for  necessary  repairs  and  supplies,  9  Mass. 
548 ;  4  Johns.  Ch.  N.  Y.  218,  or  for  seamen's 
wages;  and  payment  to  the  owner  after  notice 


of  the  master's  lien  does  not  discharge  the 
consignee,  5  Wend.  N.  Y.  315;  but  not,  it 
would  seem,  upon  the  ship  itself,  1  Parsons, 
Mar.  Law,  389 ;  nor  has  he  any  lien  on  the 
freight  for  his  wages.  11  Pet.  175 ;  5  Wend. 
N.  Y.  315.  Consult  Abbott,  Flanders,  on 
Shipping;  Parsons  on  Maritime  Law;  3 
Kent,  Commentaries. 

MATE,  In  Maritime  Law.  The  officer 
i  next  in  rank  to  the  master  on  board  a  mer- 
j  chant  ship  or  vessel. 

In  such  vessels  there  is  always  one  mate,  and 
sometimes  a  second,  third,  and  fourth  mate,  accord- 
:  ing  to  the  vessel's  size  and  the  trade  in  which  she 
I  may  be  engaged.    When  the  word  mate  is  used 
I  without  qualification,  it  always  denotes  the  first 
j  mate  ;  and  the  others  are  designated  as  above.  On 
!  large  ships  the  mate  is  frequently  styled  first  officer, 
and  the  second  and  third  mates,  second  and  third 
officers.    Parish,  Sea  OflF.  Man.  83-140. 

The  mate,  as  well  as  the  inferior  officers 
and  seamen,  is  a  mariner,  and  entitled  to  sue 
in  the  admiralty  for  his  wages  ;  and  he  has 
a  lien  on  the  vessel  for  his  security.  Even 
when  he  acts  as  master  in  consequence  of  the 
death  of  the  appointed  master,  he  can  sue  in 
the  admiralty  for  his  proper  wages  as  mate, 
but  not  for  the  increased  compensation  to 
which  he  is  entitled  as  acting  master.  And 
he  is  entitled,  when  sick,  to  be  cured  at  the 
expense  of  the  ship.  The  mate  should  possess 
a  sufficient  knowledge  of  navigation  to  take 
command  of  the  ship  and  carry  on  the  voyage 
in  case  of  the  death  of  the  master  ;  and  it 
may  well  be  doubted  whether  a  vessel  be  sea- 
worthy for  a  long  voyage  at  sea  when  only 
the  master  is  competent  to  navigate  her. 
Blount,  Comm.  Dig.  32 ;  Dana,  Seaman's 
Friend,  146;  Curtis,  Rights  and  Duties  of 
Merchant  Seamen,  96,  note.  It  is  the  special 
duty  of  the  mate  to  keep  the  log-book.  The 
mate  takes  charge  of  the  larboard  watch  at 
sea,  and  in  port  superintends  the  storage  and 
breaking  out  of  the  cargo. 

The  mate  succeeds,  of  course,  to  the  station, 
rights,  and  authorities  of  the  captain  or  mas- 
ter on  the  death  of  the  latter,  and  he  also  has 
command,  with  the  authority  required  by  the 
exigencies  of  the  case,  during  the  temporary 
absence  of  the  master.  See  Master  of  a 
Ship;  Dana,  Seaman's  Friend ;  Parish,  Sea- 
Officer's  Manual ;  Curtis,  Rights  and  Duties 
of  Merchant  Seamen ;  Parsons,  Maritime 
Law. 

MATER  FAMILIAS.    In  Civil  Law. 

The  mother  of  a  family ;  the  mistress  of  a 
family. 

A  chaste  woman,  married  or  single.  Cal- 
vinus.  Lex. 

MATERIAL  MEN.  Persons  who  fur- 
nish materials  to  be  used  in  the  construction 
or  erection  of  ships,  houses,  or  buildings. 

By  the  general  maritime  law,  material  men 
have  a  lien  on  a  foreign  ship  for  supplies  or 
materials  furnished  for  such  ship,  which  may 
be  recovered  in  the  admiralty,  9  Wheat.  409; 
19  IIow.  359  ;  but  no  such  lien  exists  in  the, 
case  of  domestic  ships.  4  Wheat.  438;  20 1 
i  IIow.  393  ;  21  id.  248.    See  Lien,  U 


MATERIALITY 


115 


MATTER  IN  PAIS 


By  statutory  provisions,  material  men  have 
a  lien  on  ships  and  buildings,  in  some  of  the 
states.    See  Likn, 

MATERIALITY.  The  property  of  sub- 
fitantial  importance  or  influence,  especially  as 
distinguished  from  formal  requirement.  Ca- 
pability of  properly  influencing  the  result  of 
the  trial. 

MATERIALS.  Matter  which  is  intended 
to  be  used  in  the  creation  of  a  mechanical 
structure.  The  physical  part  of  that  v^hich 
has  a  physical  existence. 

The  general  property  in  materials  furnished 
to  a  workman  remains  in  the  bailor  where  the 
contract  is  merely  one  for  the  employment  of 
labor  and  services;  otherwise  where  it  is  a 
sale.  See  Bailment;  Locatio  ;  Mandate; 
Trover;  Trespass. 

MATERNA  MATERNIS  (Lat.  from 
the  mother  to  the  mother's). 

In  French  Law.  A  term  denoting  the 
descent  of  property  of  a  deceased  person  de- 
rived from  his  mother  to  the  relations  on  the 
mother's  side. 

MATERNAL.  That  which  belongs  to, 
or  comes  from,  the  mother:  as,  maternal  au- 
thority, maternal  relation,  maternal  estate, 
maternal  line.    See  Line. 

MATERNAL  PROPERTY.  That 
which  comes  from  the  mother  of  the  party, 
and  other  ascendants  of  the  maternal  stock. 
Domat,  Liv.  Pre!,  t.  3,  s.  2,  n.  12. 

MATERNITY.  The  state  or  condition 
of  a  mother. 

It  is  either  legitimate  or  natural.  The 
former  is  the  condition  of  the  mother  who  has 
given  birth  to  legitimate  children  ;  while  the 
latter  is  the  condition  of  her  who  has  given 
birth  to  illegitimate  children.  Maternity  is 
always  certain ;  while  the  paternity,  is  only 
presumed. 

MATERTERA.    A  mother's  sister. 

MATERTERA  MAGNA.  A  grand- 
mother's sister. 

MATERTERA  MAJOR.  A  great- 
grandmother's  sister. 

MATERTERA  MAXIMA.  A  great- 
great-grandmother's  sister. 

MATHEMATICAL  EVIDENCE.  That 
evidence  which  is  established  by  a  demonstra- 
tion. It  is  used  in  contradistinction  to  moral 
evidence. 

MATIMA.    A  godmother. 

MATRICULA.  In  Civil  Law.  A  regis- 
ter in  which  are  inscribed  the  names  of  per- 
sons who  become  members  of  an  association 
or  society.  Dig.  50.  3.  1.  In  the  ancient 
ihurch  there  was  matricula  clericorum,  which 
was  a  catalogue  of  the  officiating  clergy,  and 
matricula  panperum,  a  list  of  the  poor  to  be 
relieved:  hence,  to  be  entered  in  the  univer- 
sity is  to  be  matriculated. 

MATRIMONIAL  CAUSES.  In  the 
English  ecclesiastical  courts  there  are  five 
kinds  of  causes  which  are  classed  under  this 
head,  viz. :  causes  for  a  malicious  jactitation ; 


suits  for  nullity  of  marriage,  on  account  of 
fraud,  incest,  or  other  bar  to  the  marriage,  2 
Ilagg.  Cons.  423  ;  suits  for  restitution  of  con- 
jugal rights  ;  suits  for  divorces  on  account 
of  cruelty  or  adultery,  or  causes  which  have 
arisen  since  the  marriage  ;  suits  for  alimony. 

MATRIMONIUM.  In  Civil  Law.  A 
legal  marriage.  A  marringe  celebi'aied  in 
conformity  with  the  rules  of  the  civil  law 
was  cixWedJnstitm  mairinioiiium:  the  husband 
^7^r,  the  wife  uxor.  It  was  exclusively  con- 
fined to  Roman  citizens,  and  to  those  t(>  whom 
the  connubhim  had  been  conceded.  It  al«  rie 
produced  the  paternal  power  over  tho  (  h  l- 
dren,  and  the  marital  power — manu  — <  \ cr 
the  wife.  The  J'armim,  the  coemptlo,  <  r  the 
usvs,  was  indispensable  for  the  fijrmation  of 
this  n)arriage.    See  Paterfamilias. 

MATRON.    A  woman  who  is  a  mother. 

By  the  laws  of  England,  when  a  widow 
feigns  herself  with  child,  in  order  to  exclude 
the  next  heir,  and  a  supposititious  birth  is  ex- 
pected, then,  upon  the  writ  de  ventre  iuspici- 
endo,  a  jury  of  women  is  to  be  impanelled  to 
try  the  question  whether  with  child  or  not. 
Croke  Eliz.  566.  Interesting  cases  will  be 
found  at  the  last  reference,  and  in  3  Moore, 
523,  and  Croke  Jac.  685.  So  when  a  woman 
was  sentenced  to  death,  and  she  pleaded  in 
stay  of  execution  that  she  was  quick  with 
child,  a  jury  of  matrons  was  impanelled  to 
try  whether  she  was  or  not  with  child.  4 
Blackstone,  Comm.  395.  See  Pregnancy  ; 
Quick. 

In  the  state  of  New  York,  if  a  female  con- 
vict sentenced  to  death  be  pregnant,  the  sheriff 
is  to  summon  a  jury  of  six  physicians,  who, 
with  the  sheriff,  are  to  make  an  inquisition ; 
and,  if  she  be  found  quick  with  child,  sen- 
tence is  to  be  suspended.  2  Rev.  Stat.  658, 
§^  20,  21. 

MATTER  IN  DEED.  Such  matter  as 
may  be  proved  or  established  by  a  deed  or 
specialty.  Matter  of  fact,  in  contradistinction 
to  matter  of  law.  Coke,  Litt.  320 ;  Stephen, 
PI.  197. 

MATTER  OF  FACT.     In  Pleading. 

Matter  the  existence  or  truth  of  which  is  de- 
termined by  the  senses  or  by  reasoning  based 
upon  their  evidence.  The  decision  of  such 
matters  is  referred  to  the  jury.  Hob.  127  ;  1 
Greenleaf,  Ev.  ^  49. 

MATTER  OF  LAW.  In  Pleading. 
Matter  the  truth  or  falsity  of  which  is  deter- 
mined by  the  established  rules  of  law  or  by 
reasoning  based  upon  them.  The  decision  of 
such  matters  is  referred  to  the  court.  Where 
special  pleading  prevails,  it  is  a  rule  that  mat- 
ter of  law  must  be  pleaded  specially.  The 
phrase  here  means  matter  which,  if  established 
as  true,  goes  to  defeat  the  plaintiff's  charges 
by  the  effect  of  some  rule  of  law,  as  distin- 
guished from  that  which  operates  a  direct 
negative. 

MATTER  IN  PAIS  (literally,  matter  in 
the  country).  Matter  of  fact,  as  distinguished 
from  matter  of  law  or  matter  of  record. 


MATTER  OF  RECORD 


116 


MAXIM 


MATTER  OF  RECORD.  Those  facts 
which  may  be  proved  by  the  production  of  a 
record.  It  differs  from  matter  in  deed,  which 
consists  of  facts  which  may  be  proved  by 
specialty. 

MATURITY.  The  time  when  a  bill  or 
note  becomes  due.  In  order  to  bind  the  in- 
dorsers,  such  note  or  bill  must  be  protested, 
v^'hen  not  paid,  on  the  last  day  of  grace.  See 
Days  of  Grace. 

MAXIM.  An  established  principle  or 
proposition.  A  principle  of  law  universally 
admitted,  as  being  just  and  consonant  with 
reason. 

2.  Maxims  in  law  are  somewhat  like 
axioms  in  geometry.  1  Blackstone,  Comm. 
C8.  They  are  principles  and  authorities,  and 
part  of  the  general  customs  or  common  law 
of  the  land,  and  are  of  the  same  strength  as 
acts  of  parliament,  when  the  judges  have  de- 
termined what  is  a  maxim ;  which  belongs  to 
the  judges  and  not  the  jury.  Termes  de  la 
Ley  ;  Doct.  &  Stud.  Dial.  1,  c.  8.  Maxims  of 
the  law  are  holden  for  law,  and  all  other  cases 
that  may  be  applied  to  them  shall  be  taken 
for  granted.  Coke,  Litt.  11,  07 ;  4  Coke. 
See  Plowd.  27  b. 

3.  The  application  of  the  maxim  to  the 
case  before  the  court  is  generally  the  only 
difficulty.  The  true  method  of  making  the 
application  is  to  ascertain  how  the  maxim 
arose,  and  to  consider  whether  the  case  to 
which  it  is  applied  is  of  the  same  character, 
or  whether  it  is  an  exception  to  an  apparently 
general  rule. 

4.  The  alterations  of  any  of  the  maxims 
of  the  common  law  are  dangerous.  Coke,  2d 
Inst.  210.  . 

The  following  are  some  of  the  more  import- 
ant maxims : 

A  comvmni  ohserrniitiu  non  est  rccedendum.  There 
should  he  no  departure  from  common  observance 
(f.r  usage).  Coke,  Litt.  186  ;  Wingate,  Max.  203 ;  2 
Coke,  74. 

A  (h'f/niori,  fieri  dehct  dcnominatio  et  resolutio. 
The  dciumination  and  explanation  of  a  person  or 
thing  ought  to  be  derived  from  the  more  worthy. 
Wingate,  Max.  265  ;  Fleta,  lib.  4,  c.  10,  §  12. 

A  Viuipossihle  nnl  n'est  tcnu.  No  one  is  bound  to 
do  what  is  impossible. 

A  lion  pause  ad  non  esse  seqnitnr  argnmentum  ne- 
cessarie  negative  licet  non  ojjirniative.  From  im- 
possibility to  non-existence  the  inference  follows 
necessarily  in  the  negative,  though  not  in  the  affirm- 
ative.   Hob.  330  h. 

A  piratis  ant  latronihus  capfi  liheri  permanent. 
Those  captured  by  pirates  or  robbers  remain  free. 
Dig.  49.  15.  19.  2;  Grotius,  de  Jure  Belli,  lib.  3,  c. 
3,  s.  1. 

A  piratis  et  latronihus  rapta  dominium  non  mutant. 
Things  captured  by  pirates  and  robbers  do  not 
change  ownership.  1  Kent,  Comm.  108,  184;  2 
Wooddeson,  Lect.  258,  259. 

A  rexcriptis  valet  arfpimentiim.  An  argument 
from  rescripts  {i.e.  original  writs  in  the  register)  is 
valid. 

A  summo  remedio  ad  in/eriorem  actionem  non 
lahetvr  rcyrrssns  iieffHc  avxilinm.  From  the  highest 
remedy  to  an  inlerior  action  there  is  no  return  or 
n.'-sisfancc.  Ficta,  lib.  6,  c.  1  ;  Eracton,  104  a, 
112  h;  3  Sharswood,  liiackst.  Comm.  193,  194. 

A  verbis  leyis  non  est  recedendum.     From  the 


words  of  the  law  there  should  be  no  departure. 
Broom,  Max,  3d  Lond.  ed.  555;  Wingate,  Max.  25j 
5  Coke,  119. 

Ah  assueiis  non  Jit  injuria.  No  injury  is  done  by 
things  long  acquiesced  in.  Jenk.  Cent.  Cas.  Introd. 
viii. 

Ahhreviatiomim  ille  numerus  et  sensus  accipiendua 
est,  ut  concessio  non  sit  inanis.  Such  a  number  and 
sense  is  to  be  given  to  abbreviations  that  the  grant 
may  not  fail.    9  Coke,  48. 

Ahsentem  accipere  dehemus  eum  qui  non  est  eo  loci 
in  quo  petitur.  We  must  call  him  absent  who  is 
not  in  that  place  in  which  be  is  sought.    Dig.  50. 

16.  199. 

Absentia  ejusqvi  reipuhlicte  cavsa  ahest,  neque  et 
neque  alii  damnosa  esse  debet.  The  absence  of  him 
who  is  employed  in  the  service  of  the  state,  ought 
not  to  be  prejudicial  to  him  nor  to  others.   Dig.  50. 

17.  140. 

Absolutn  sententia  expositore  non  indiget.  An  ab- 
solute, unqualitied  sentence  (or  proposition)  needs 
no  expositor.    Coke,  2d  Inst.  533. 

Ahuudans  caute/a  non  nocet.  Abundant  caution 
does  no  harm.    11  Coke,  6;  Fleta,  lib.  1,  c.  28,  ^  1. 

Accessorium  non  ducit  sed  seqiiitur  suvm  princi- 
pale.  The  principal  draws  after  it  the  accessory, 
not  the  accessory  the  principal.  Coke,  Litt.  152  er, 
389  a;  b  Ell.  &  B.  772  ;  Broom,  Max.  3d  Lond.  ed. 
433.  Literally,  The  accessory  does  not  draw,  but 
follows,  its  principal. 

A  cccssorius  sequilur  naturam  sui  principalis.  An 
accessory  follows  the  nature  of  his  principal.  Coke, 
3d  Inst.  139;  4  Sharswood,  Blackst.  Comm.  36  j  [ 
Broom,  Max.  3d  Lond,  ed.  440.  . 

Accnsare  nemo  debet  se,  visi  coram  Deo.    No  one  i 
is  obliged  to  accuse  himself,  unless  before  God. 
Hardr.  139. 

Acciisator post  rationabile  tempus  non  est  audien-  \ 
dus,  nisi  se  bene  de  omissione  excusaverit.    An  ac-  ' 
cuser  is  not  to  be  heard  after  a  reasonable  time,  ' 
unless  he  excuse  himself  satisfactorily  for  the  omis- 
sion.   F.  Moore,  817.  ; 

Acta  ejcteriora  indicant  interiora  secreta.  Out- 
ward acts  indicate  the  inward  intent.   Broom.  Max. 
3d  Lond.  ed.  270 ;  1  Smith,  Lead.  Cas.  4th  Am.  cd.  i 
115;  8  Coke,  291;  13  Johns.  N.  Y.  414;  15  id.  i 
401.  V 

Actio  non  datur  non  damnifico.     An  action  is  I 
not  given  to  one  who  is  not  injured.    Jenk.  Cent; 
Cas.  69.  J 

Actio  personalis  moritur  cum,  persond.  A  per-  o 
sonal  action  dies  with  the  person.  Noy,  Max.  14,  i 
See  this  phrase  as  a  title,  Actio  Personalis. 

Actio  quselibct  it  sua  vid.    Jenk.  Cent.  Cas.  77. 
Every  action  proceeds  in  its  own  course. 

Actionum  genera  mnxime  sunt  servanda.  Lofft, 
460,  The  kinds  of  actions  are  especially  to  be 
preserved. 

Actor  qui  contra  regulam  quid  adduxit,  non  est 
avdieiidus.  A  pleader  ought  not  to  be  heard  who 
advances  a  proposition  contrary  to  the  rules  of 
law. 

Actor  sequitur  forum  rei.  The  plaintiff  must 
follow  the  forum  of  the  thing  in  dispute.  Home, 
Law  Tr.  232 ;  Story,  Confl.  Laws,  g  325,  k;  2  Kent, 
Comm.  462. 

Actnre  non  prnhante  rent  ahsolvitnr.  If  the 
plaintiff  does  not  prove  his  case,  the  defendant  is 
absolved.    Hob.  103. 

Actori  inciinibif  onus  probandi.  The  burden  of  ' 
proof  lies  on  the  ])laintiff.    Hob.  103.  j 

Acts  iiidivntc  the  iuteution.  8  Coke,  291 ;  Broom,  ' 
Max.  3d  Lond.  ed.  270  ;  13  Johns.  N.  Y.  414. 

Actus  curire  neviinem  gravabit.  An  act  of  the  i 
court  shall  prejudice  no  man.  Jenk.  Cent.  Cas.  118;  ) 
Broom,  Max,  3d  Lond.  ed.  115:  1  Strange,  126;  j 
1  Smith,  Lead.  Cas.  245-255;  12  C.  B.  415 

Actus  Dei  nemiucm  fncit  injuriam.  The  act  of  [ 
God  does  wrong  to  no  one:  that  is,  no  one  is  re* 


MAXIM 


117 


MAXIM 


I  Bponsible  in  damages  for  inevitable  accidents.  2 
Bi.ickstone,  Comm.  122;  1  Coke,  97  b  ;  5  id.  87; 
Coke,  Litt.  206  a;  4  Taunt.  :iOy;  1  Term,  33.  See 
Act  01'  God. 

Actus  inteptus  cujm  pcr/tctio  petulet  ex  vuluntate 
parti nm,  rcvoairi  potest  ;  »i  autent  jjcudet  ex  volun- 

i     tute  tcrtise  pcrnouse,  vel  ex  coutinyciiti,  revucari  uou 

!     potent.    All  act  already  begun,  whose  completion 

j    depends  upon  the  will  of  the  parties,  may  be  re- 

I  called;  but  if  it  depend  on  the  consent  of  a  third 
person,  or  on  a  contingency,  it  cannot  be  recalled. 

i    Bacon,  Max.  Reg.  20.    See  Story,  Ag.  ^  424. 

ActHH  judiciariua  coram  non  Judice  irritua  hahetur; 
dc  ruinisteriali  autcm  a  quocmiqae  2}>ovc7iit  ratitni 
esto.    A  judicial  act  before  one  not  a  judge  is  void; 

I    as  to  a  ministerial  act,  from  whomsoever  it  pro- 

I    ceeds,  let  it  be  valid.    Lofft,  458. 

I  Actitu  leijis  iiemini  est  damuosns.  An  act  of  the 
law  shall  prejudice  no  man.    Coke,  2d  Inst.  287  ; 

I  Broom,  Max.  3d  Lond.  ed.  119;  11  Johns.  N.  Y. 
380 ;  6  Coke,  68  ;  8  id.  290 ;  Coke,  Litt.  264  b  ;  5 
Term,  381,385:  I  Ld.  Raym.  515;  Hob.  216 ;  2  11. 
Blackst.  324,  334  ;  5  East,  147  ;  1  Preston,  Abs.  of 
Tit.  346 ;  6  Bacon,  Abr.  559. 

Actus  leyis  nemini  facit  iiijnriam.  The  act  of  the 
law  does  no  one  wrong.  5  Coke,  116;  2  Shars- 
wood,  Blackst.  Comm.  123. 

Avtm  Icgitimi  non  redpinnt  modiini.    Acts  re- 

I  quired  by  law  admit  of  no  qualification.  Hob. 
153;  Branch,  Princip. 

Actus  me  invito  facttis,  non  est  meua  actus.  An 
act  done  by  me  against  my  will  is  not  my  act. 
Bracton,  101  b. 

Actus  non  ream  facit  nisi  mens  rea.  The  act  docs 
not  make  a  person  guilty  unless  the  intention  be 
guilty  also.  This  maxim  applies  only  in  criminal 
cases ;  in  civil  matters  it  is  otherwise.  Broom,  Max. 
3d  Lond.  ed.  270,  275,  329  ;  7  Term,  514;  3  Bingh. 
N.  c.  34,  468;  5  Mann.  &  G.  639  ;  3  C.  B.  229  ;  5  id. 
380  ;  9  Clark  &  F.  531 ;  4  N.  Y.  159,  163,  195 ;  2 
Bouvier,  Inst.  n.  2211. 

Actus  repugnum  non  potest  in  esse  jjroduci.  A  re- 
pugnant act  cannot  be  brought  into  being,  i.e.  can- 
not be  made  eflfectual.    Plowd.  355. 

Ad  ea  qux  frequentim  accidunt  Jura  adapfatitur. 
The  laws  are  adapted  to  those  cases  which  occur 
more  frequently.  Coke,  2d  Inst.  137 ;  Wingate, 
Max.  216;  Dig.  1.  3.  3;  19  Howell,  St.  Tr.  1061; 
3  Barnew.  «fe  C.  178,  183;  2  Crompt.  &  J.  Exch. 
108;  7  Mees.  &  W.  Exch.  599,  600  ;  Vaugh.  373  ; 
6  Coke,  38,  128;  6  id.  77;  11  Exch.  476;  12  How. 
312;  Broom,  Max.  3d  Lond.  ed.  4L 

Ad  ojfficium  justiciariorum  spectat,  unicuique  coram 
eis  placitanti  justitiam  exhibere.  It  is  the  duty  of 
justices  to  administer  justice  to  every  one  pleading 
before  them.    Coke,  2d  Inst.  451. 

Ad  proximum  antecedens  fiat  relatio,  nisi  impedia- 
tur  sententia.  A  relative  is  to  be  referred  to  the 
next  antecedent,  unless  the  sense  would  be  thereby 
impaired.  Noy,  Max.  9th  ed.  4;  2  Exch.  479;  17 
Q.  B.  833;  2  Hurlst.  &  N.  625;  3  Bingh.  n.  c.  217; 
9  Coke,  13  ;  13  How.  142. 

Ad  qusestiones  ley  is  judices,  et  non  juratores  re- 
spondent.   Judges,  and  not  jurors,  respond  to  ques- 

.   tions  of  law.    7  Mass.  279. 

Ad  questiones  facti  non  resjiondent  Judices ;  ad 
qnestiones  leyis  non  respondent  juratores.  The  judges 
do  not  answer  to  questions  of  fact;  the  jury  do  not 
answer  to  questions  of  law.  Coke,  Litt.  295 ;  8 
Coke,  308;  Vaugh.  149;  Broom,  Max.  3d  Lond. 
ed;  99. 

Ad  vim  majoremvel  ad  casus  fortuitos  non  tenetur 
quia,  nisi  sua  culpa  intervenen't.  No  one  is  held  to 
answer  for  the  effects  of  a  superior  force,  or  of  an 
accident,  unless  his  own  fault  has  contributed. 
Fleta,  lib.  2,  c.  72,  §  16. 

Additio  probnt  minoritatem.  An  addition  proves 
inferiority.  Coke,  4th  Inst.  80  ;  Wingate,  Max. 
211,  max.  60;  Littleton,  §  293;  Coke,  Litt.  189  a. 


uEdificare  in  tuo  propria  solo  non  licet  quod  ulteri 
noccat.  It  is  not  lawful  to  build  upon  one's  own 
land  what  may  be  injurious  to  another.  Coke,  3d 
Inst.  201  ;  Broom,  Max.  3d  Lond.  ed.  331. 

jEdificatum  solo,  solo  cedit.  That  which  is  built 
upon  the  land  goes  with  the  land.  Coke,  Litt.  4 
a  ;  Broom,  Max.  3d  Lond.  ed.  349,  355;  Inst.  2.  1. 
29;  Hig.  47.  3.  1. 

Aulijicia  solo  cedunt.  Buildings  pass  by  a  grant 
of  the  land.    Fleta,  lib.  3,  c.  2,  ^  12. 

jEquitas  ayit  in  personam.  Equity  acts  upon  the 
person.    4  Bouvier,  Inst.  n.  3733. 

yKqultas  sequitur  teycm.  Ecjuity  follows  the  law. 
1  Story,  Eq.  Jur.  ^64;  3  Wooddeson,  Lect.  479, 
482;  Branch,  Max.  8;  2  Sharswood,  Blackst.  Comm. 
3.30;  Gilb.136;  2  Ed.  316;  10  Mod.  3 ;  15  How. 
299. 

jEquior  est  dispositio  leyis  quam  hominis.  The 
disposition  of  the  law  is  more  impartial  than  that 
of  man.    8  Coke,  152 ;  Bracton,  3  a. 

^Equnm  et  bomu)i,  est  lex  Icyum.  What  is  just 
and  right  is  the  law  of  laws.    Hob.  224. 

jEstimutio  p>>  xteriti  delicti  ex  postremo  f acta  nun- 
quam  crescit.  The  estimation  of  a  crime  committed 
never  increases  from  a  subsequent  fact.  Bacon, 
Max.  Reg.  8 ;  Dig.  50.  17.  139 ;  Broom,  Max.  3d 
Lond.  ed.  17. 

Affectio  tua  nomen  imponit  operi  tno.  Your  mo- 
tive gives  a  name  to  your  act.    Bracton,  2  b,  101  b. 

Affectus  pnnitur  licet  non  sequitur  effectns.  The 
intention  is  punished  although  the  consequence  do 
not  follow.    9  Coke,  56. 

Affinis  niei  afiinis  non  est  mihi  affinis.  A  connec- 
tion [i.e.  by  marriage)  of  my  connection  is  not  a 
connection  of  mine.    Shelford,  Marr.  &  D.  174. 

Affirmanti,  non  neyanti,  incumbit  probatio.  The 
proof  lies  upon  him  who  affirms,  not  on  him  who 
denies.    See  Phillipps,  Ev.  493. 

Ajffirmantis  est  probatio.  He  who*  affirms  must 
prove.    9  Cush.  Mass.  535. 

Alienatio  licet  jirohibeatur,  consensu  tamen  om- 
nium, in  quorum  J'avorem  prohibita  est,  2>otest  fieri, 
et  quilibet  pr><e*^  l  enunciare  j'uri  pro  se  introducto. 
Although  alienation  be  prohibited,  yet^  by  the  con- 
sent of  all  in  whose  favor  it  is  prohibited,  it  may 
take  place,  for  it  is  in  the  power  of  any  man  to  re- 
nounce a  right  introduced  for  his  own  benefit. 
Coke,  Litt.  98;  9  N.Y.  291. 

Alienatio  rei  jjrspfertur  juri  accrescendi.  Aliena- 
tion is  favored  by  the  law  rather  than  accumulation. 
Coke,  Litt.  185  n,  381  a,  note;  Broom,  Max.  3d 
Lond.  ed.  393,  409 ;  Wright,  Tenures,  154  et  seq.  ; 

1  Cruise,  Dig.  4th  ed.  77,  78. 

Alienation  pendiny  a  suit  is  void.    2  P.  Will.  482  ; 

2  Atk.  Ch.  174;  3  id.  392;  11  Ves.  Gh.  194;  1 
Johns.  Ch.  N.  Y.  566,  580. 

Aliquid  concedilur  ne  injuria  remaneat  impnnita, 
quod  alias  non  concederetur.  Something  is  conceded 
lest  a  wrong  should  remain  unpunished  which  other- 
wise would  not  be  conceded.    Coke,  Litt.  197. 

Aliquis  non  debet  esse  judex  in  propria  causa, 
quia  non  potest  esse  judex  et  pars.  A  person  ought 
not  to  be  judge  in  his  own  cause,  because  he  can- 
not act  both  as  judge  and  party.  Coke,  Litt.  141  a  ; 
Broom.  Max.  3d  Lond.  ed.  112;  Littleton.^  212;  13 
Q.  B.  327  ;  17  id.  1 ;  15  C.  B.  769  ;  1  C.  B.  n.  s.  329. 

Aliud  eat  celare,  aliud  tacere.  To  conceal  is  one 
thing,  to  be  silent  another.  3  Burr.  1910.  See  2 
Wheat.  176;  9  id.  631;  3  Bingh.  77;  4  Taunt.  851; 
2  Carr.  &  P.  341;  Broom,  Max.  3d  Lond.  ed.  701. 

Aliud  est  distinctio,  aliud  separatio.  Distinction 
is  one  thing,  separation  another.  Bacon's  arg.  Case 
of  Postnati  of  Scotland,  Works,  iv.  351. 

Aliud  est  possidere,  aliud  esse  in  possessione.  It 
is  one  thing  to  possess,  it  is  another  to  be  in  pos- 
session.   Hob.  163  ;  Bracton,  206. 

Aliud  est  vendere,  aliud  vendenti  consentire.  To 
sell  is  one  thing,  to  give  consent  to  him  who  selli 
another.    Dig.  50.  17.  160. 


MAXIM 


118 


MAXIM 


AUegann  contraria  non  eat  audiendns.  One  mak- 
ing contradictory  allegations  is  not  to  be  heard. 
Jenk.  Cent.  Cas.  16  ;  Broom,  Max.  3d  Lond.  ed.  IfiO, 
268 ;  4  Term,  211 ;  3  Exch.  446,  527,  678  ;  4  id. 
187 ;  11  id.  493;  3  Ell.  &  B.  363  ;  5  id.  502;  5  C. 
B.  195,  886;  10  Mass.  163 ;  Coke,  4th  Inst.  279. 

Allerjans  suntn  tnrpitudinem  non  est  audiendns. 
One  alleging  his  own  infamy  is  not  to  be  heard. 
Coke,  4th  Inst.  299;  2  Johns'  Ch.  N.  Y.  339,  350. 

Alleyari  non  debuit  qnod  probatnm  van  relevnt. 
That  ought  not  to  be  alleged  which,  if  proved, 
would  not  be  relevant.    1  Chanc.  Cas.  45. 

Alterius  circumventio  alii  nun  p;ieZ)c<  actionem. 
Dig.  50.  17.  49.  A  deception  practised  upon  one 
person  does  not  give  a  cause  of  action  to  another. 

Alternativa  petitio  non  est  audienda.  An  alterna- 
tive petition  is  not  to  be  heard.    5  Coke,  40. 

Ambigua  responsio  contra  proferentem  est  arci- 
pienda.  An  ambiguous  answer  is  to  be  taken 
against  the  party  who  offers  it.    10  Coke,  58. 

Anihiguia  casibus  semper  prsESnmltnr  pro  rege.  In 
doubtful  cases  the  presumption  is  always  in  favor 
of  the  king.    LoflFt,  248. 

Amhiguitas  verbornm  latens  verificatione  supple- 
tur  /  nam  quod  ex  facto  oritur  ambiguum  verifica- 
tione facti  tollitnr.  A  latent  ambiguity  may  be 
supplied  by  evidence;  for  an  ambiguity  which 
arises  out  of  a  fact  may  be  removed  by  proof  of 
the  fact.  Bacon,  Max.  Reg.  23;  8  Bingh.  247. 
See  1  Powell,  Dev.  477;  2  Kent,  Comm.  557; 
Broom,  Max.  3d  Lond.  ed.  541;  13  Pet.  97;  8 
Johns.  N.  Y.  90;  3  Halst.  N.J.  71. 

Ambiguitas  verbornm  patens  nnlld  verificatione 
excluditur.  A  patent  ambiguity  is  never  holpen  by 
averment.  Lofft,  249  ;  Bacon,  Max.  25  ;  Cotoen,  J., 
21  Wend.  N.  Y.  651,  659;  23  id.  71.  78;  Story,  J., 
1  Mas.  C.  C.  11 ;  Lipscomb,  J.,  1  Tex.  377,  383. 

Ambiguum  placitum  interjvetari  debet  contra  pro- 
ferentem. An  ambiguous  plea  ought  to  be  inter- 
preted against  the  party  pleading  it.  Coke,  Litt. 
303  b;  Broom,  Max.  3d  Lond.  ed.  535:  Stephen, 
Plead.  5th  ed.  415;  Bacon,  Max.  Reg.  3 ;  2  H. 
Blaekst.  531;  2  Mees.  &  W.  Exch.  444. 

Ambulntoria  est  voluntas  defuncfi  usque  ad  vitse 
supremum  exitum.  The  will  of  a  deceased  person 
is  ambulatory  until  the  last  moment  of  life.  Dig. 
34.  4.  4;  Broom,  Max.  3d  Lond.  ed.  445;  2  Black- 
stone,  Comm.  502;  Coke,  Litt.  322  6/1  Vict.  c. 
26,  s.  24;  3  Ell.  &  B.  572 ;  1  Jarman,  Wills,  2d  ed. 
11;  1  Mylne  &  K.  Ch.  485;  2  id.  73. 

Angliai  jura  in  onini  casu  libertati  dant  favor  em. 
The  laws  of  England  are  favorable  in  every  case  to 
liberty.    Halkers,  Max.  12. 

Animus  ad  se  omnejns  diicit.  It  is  to  the  inten- 
tion that  all  law  applies. 

Animus  hominis  est  anima  scripti.  The  intention 
of  the  party  is  the  soul  of  the  instrument.  3 
Bulstr.  67 ;  Pitman,  Princ.  <fc  Sur.  26. 

Annicnlus  trecentesimo  sexageaimo-quinto  die  did 
tur,  incijnente  plani  non  exucio  die,  quia  annum 
civiliter  non  ad  momenta  tonporum  sed  ad  dies  nu- 
meramur.  We  call  a  child  a  year  old  on  the  three 
hundred  and  sixty-fifth  day,  when  the  day  is  fairly 
begun  but  not  ended,  because  we  calculate  the  civil 
year  not  by  moments,  but  by  days.  Dig.  50.  16. 
134;  id.  132;  Calvinus,  Lex. 

Annua  nec  debitum  judex  non  separat  ipse.  Even 
the  judge  divides  not  annuities  or  debt.  8  Coke, 
52.  See  Story,  Eq.  Jur.  480,  517;  1  Salk.  36, 
65. 

Annns  est  mora  motiis  quo  snum  planeta  pervolvat 
eircubnn.  A  year  is  the  duration  of  the  motion  by 
which  a  planet  revolves  through  its  orbit.  Dig.  40. 
7.  4.  5:  Cnlvinus,  Lex.;  Bracton,  359  b. 

Apicea  juris  non  sunt  jura.  Legal  niceties  are  not 
law.s.  Coke,  Litt.  304;  3  Scott,  773;  10  Coke,  126; 
Broom,  Max.  142.    See  Apkx  Juris. 

Applicatio  est  vita  regula.  Application  ia  the  life 
of  a  rulo.    2  Bulstr.  79. 


Aqua  cedit  solo.  The  water  yields  or  accompanies 
the  soil.  The  grant  of  the  soil  or  land  carries  ihe 
water.    Hale,  de  Jur.  Mar.  pt.  1.  c.  1. 

Aqua  citrrit  et  debet  cnrrere  ut  currere  solebat. 
Water  runs  and  ought  to  run  as  it  has  used  to 
run.  3  Rawle,  Penn.  84,  88;  26  Penn.  St.  413;  3 
Kent,  Coram.  439;  Angell,  Wat.  Cour.  413 ;  Gale 
&  W.  Easem.  182. 

Arbitrimentum  sequum  tribuit  cuique  aniim.  A  just 
arbitration  renders  to  every  one  his  own.  Noy, 
Max.  248. 

Arbitrinm  est  judicium.  An  award  is  a  judgment. 
Jenk.  Cent.  Cas.  137;  3  Bulstr.  64. 

Arbor  dum  crescit ;  lignum  dum  crescere  nescit. 
A  tree  while  it  is  growing ;  wood  when  it  cannot 
grow.    Croke  Jac.  166  ;  12  Johns.  N.  Y.  239,  241. 

Argumentum  a  divisione  eat  fortisaimum  in  jure. 
An  argument  arising  from  a  division  is  most  power- 
ful in  law.    6  Coke,  60 ;  Coke,  Litt.  213  6. 

Argumentum  a  majori  ad  minus  negative  non  valet; 
valet  e  converso.  An  argument  from  the  greater  to 
the  less  is  of  no  force  negatively ;  conversely  it  is. 
Jenk.  Cent.  Cas.  281. 

Argumentum  a  simili  ralet  in  lege.  An  argument 
drawn  from  a  similar  case,  or  analogy,  avails  in 
law.    Coke,  Litt.  191. 

Argtimentum  ab  auctoritate  est  fortissimum  in  lege. 
An  argument  drawn  from  authority  is  the  strongest 
in  law.    Coke,  Litt.  254. 

Argu7)ientum  ab  impossibili  plurimum  valet  in  lege. 
An  argument  deduced  from  impossibility  greatly 
avails  in  law.    Coke,  Litt.  92. 

Argumentum  ab  inconvenienti  est  validum  in  lege ; 
quia  lex  non  permittit  aliquod  inconveniens.  An 
argument  drawn  from  what  is  inconvenient  is  good 
in  law.  because  the  law  will  not  permit  any  incon- 
venience. Coke,  Litt.  66  a,  258;  7  Taunt.  527;  3 
Barnew.  &  C.  131 ;  6  Clark  &  F.  671. 

Armorum  appellatione,  non  solum  acuta  et  gladii 
et  galese,  aed  et  fuaiea  et  lapidea  continentur.  Under 
the  name  of  arms  are  included  not  only  shields  and 
swords  and  helmets,  but  also  clubs  and  stones. 
Coke,  Litt.  162. 

Assignatur  utitur  jure  auctoria.  An  assigner  is 
clothed  with  the  rights  of  his  principal.  Halkers, 
Max.  14;  Broom,  Max.  3d  Lond.  ed.  415,  416,  423, 
425;  Wingate,  Max.  p.  56;  1  Exch.  32;  18  Q.  B. 
878;  Perkins,  g  100. 

Auctoritatea  philoaophorum,  medicorum,  et poeta^ 
rtim,  aunt  in  tauais  allegandie  et  ienendse.  The 
opinions  of  philosophers,  physicians,  and  poets  are 
to  be  alleged  and  received  in  causes.  Coke,  Litt.  264. 

Aucupia  verborum  sunt  judice  indigna.  Catching 
at  words  is  unworthy  of  a  judge.    Hob.  343. 

Authority  to  execute  a  deed  must  he  given  by  deed. 
Comyn,  Dig.  Attorney  (C  5);  4  Term,  313;  7  id. 
207;  1  Holt,  141;  9  Wend.  N.  Y.  68,  75;  5  Mass. 
11;  6  Binn.  Penn.  613. 

Baratriam  committit  qui  propter  pecuniam  justi' 
tiam.  haractat.  He  is  guilty  of  baratry  who  for 
money  sells  justice.  Bell,  Diet.  Barratry  at  com- 
mon law  has  a  different  signification.  See  Bar- 
ratry. 

lielln  parta  cedunt  reipuhlicse.  Things  acquired 
in  war  go  to  the  state.  Cited  2  Russ.  &  M.  56 ;  1 
Kent,  Comm.  101;  5  C.  Rob.  Adm.  165,  163;  1 
Gall.  C.  C.  558. 

Benedlcta  est  expositio  quando  rea  redimiUtr  a  de- 
atructione.  Blessed  is  the  exposition  when  the  thing 
is  saved  from  destruction.    4  Coke,  26. 

Benignc  faciendee  sunt  interpretaiionea  chartarum, 
ut  res  magis  valeat  qnam  pereat;  et  quielibet  concesaio 
fortisalme  contra  donatorem  interpretanda  eat.  Libe- 
ral interpretations  are  to  be  made  of  deeds,  so  that 
more  may  stand  than  fall ;  and  every  grant  is  to  be 
taken  most  strongly  against  the  grantor.  4  Mass. 
134;  1  Sandf.  Ch.  N.  Y,  268,  268  j  compare  375, 
I  277. 


MAXIM 


119 


MAXIM 


Benigne  faciendm  aunt  inter])retatiunca  propter 
tiniplicitdtem  laicorum,  ut  res  inayia  valeal  qaam 
perent;  et  verba  iiitentioiie,  uon  e  contra,  debent  in- 
aervire.  Constructions  should  be  liberal,  on  account 
of  the  ignorance  of  the  laity,  or  non-professional 
persons,  so  that  the  subject-matter  may  avail  rather 
than  perish;  and  words  must  be  subject  to  the  in- 
tention, not  the  intention  to  the  words.  Coke,  Litt. 
Sfi  a:  Broom,  Max.  3d  Lond.  ed.  481,  504 ;  11  Q.  B. 
852,  856,  868,  870;  4  Hou.  L.  Cas.  556;  2  Blackst. 
Comm.  21st  ed.  379  ;  1  Bulstr.  175  ;  Hob.  304. 

IieHi(/nior  seiitentia,  in  verbiH  (jenerultbns  nen  dnblis, 
est  preferanda.  The  more  favorable  construction 
is  fo  be  placed  on  general  or  doubtful  expressions.  4 
Coke,  15;  Dig.  50.  17.  192.  1;  2  Kent,  Comm.  557. 

Benigiii'ua  leges  interjyretandcB  sunt  quo  voluntaa 
earum  conservetur.  Laws  are  to  be  more  favorably 
interpreted,  that  their  intent  may  be  preserved. 
Dig.  1.  3.  16. 

Bis  idem  exiyi  bona  fides  non  patitur,  et  in  sntis- 
factionibns,  non  permittitur  amplitis  fieri  quam  sernel 
factum  est.  Good  faith  docs  not  suffer  the  same 
thing  to  be  exacted  twice ;  and  in  making  satisfac- 
tion, it  is  not  permitted  that  more  should  be  done 
after  satisfaction  is  once  made.  9  Coke,  53 ;  Dig. 
50.  17.  57. 

Bona  fides  exigitnt  quod  convenit  fiat.  Good  faith 
demands  that  what  is  agreed  upon  shall  be  done. 
Dig.  19.  20.  21;  id.  19.  1.  50;  id.  50.  8.  2.  13. 

Bona  fides  non  j>atitur,  nt  bis  idem  exigatur.  Good 
faith  does  not  allow  us  to  demand  twice  the  pay- 
ment of  the  same  thing.    Dig.  50.  17.  57. 

Bonse  fidei  possessor  in  id  tantum  quod  ad  se  per- 
venerit  tenetur,  A  bond  fide  possessor  is  bound  for 
that  only  which  has  come  to  him.  Coke,  2d  Inst. 
285 ;  Grotius,  de  Jure  Bell.  lib.  2,  c.  10,  ^  Z  et  seq. 
,  Boni  judicis  est  ampliare  jurisdictionem  (justi- 
tiam  in.  1  Burr.  304).  It  is  the  part  of  a  good 
.judge  to  enlarge  his  jurisdiction  ;  that  is,  his  reme- 
dial authority.  Chanc.  Prec.  329;  1  Wils.  284;  9 
Mees.  &  W.  818 ;  1  C.  B.  n.  s.  255  ;  4  Bingh.  n.  c. 
233;  4  Scott,  N.  R.  229;  17  Mass.  310. 

Boni  judicis  est  causas  litium  dirimere.  It  is  the 
duty  of  a  good  judge  to  remove  causes  of  litigation. 
Coke,  2d  Inst.  306. 

Boni  judicis  est  judicium  sine  dilatione  mandare 
executioni.  It  is  the  duty  of  a  good  judge  to  cause 
execution  to  issue  on  a  judgment  without  delay. 
Coke,  Litt.  289. 

Boni  judicis  est  lites  dirimere,  ne  lis  ex  lite  oritur, 
et  interest  reijmblicse  ut  sint  fines  litium.  It  is  the 
duty  of  a  good  judge  to  prevent  litigations,  that 
suit  may  not  grow  out  of  suit,  and  it  concerns  the 
welfare  of  a  state  that  an  end  be  put  to  litigation. 
4  Coke,  15  ;  5  id.  31a. 

Bonum  defendentis  ex  integra,  caund,  malum  ex 
quolibet  de/ectn.  The  good  of  a  defendant  arises 
from  a  perfect  case,  his  harm  from  some  defect.  11 
Coke,  68. 

Bonum  necessarium  extra  terminos  necessitatis  non 
est  bonum.  A  thing  good  from  necessity  is  not  good 
beyond  the  limits  of  the  necessity.    Hob.  144. 

Bonus  judex  secundum  lequum  et  bonum  judi cat,  et 
Kquitatem  strictojuri  prsefert.  A  good  judge  decides 
according  to  justice  and  right,  and  prefers  equity  to 
strict  law.  Coke,  Litt.  24  ;  4  Term,  344 ;  2  Q.  B.  837 ; 
Broom,  Max.  3d  Lond.  ed.  77. 

Breve  judiciale  debet  sequi  suum  originale,  et  ac- 
cessorium  suum  principale.  A  judicial  writ  ought  to 
follow  its  original,  and  an  accessory  its  principal. 
Jenk.  Cent.  Cas.  292. 

Breve  judiciale  non  cadit  pro  defectu  firmm.  A 
judicial  writ  fails  not  through  defect  of  form.  Jenk. 
Cent.  Cas.  43. 

Career  ad  homines  custndiendos,  non  ad puniendns, 
dari  debet.  A  prison  ought  to  be  given  to  the  cus- 
tody, not  the  punishment,  of  persons.  Coke,  Litt. 
260.    See  Dig.  48.  19.  8.  9. 


Casus  fortuitus  non  est  aperandus,  et  nemo  tenetur 
divinare.  A  fortuitous  event  is  not  to  be  loreseen, 
and  no  person  is  held  bound  to  divine  it.  4  Coke, 
66. 

Casus  fortuitua  non  eat  aupponendua.  A  fortuitous 
event  ia  not  to  be  presumed.    Hardr.  82,  arg. 

Casus  omissus  et  oblivioui  datus  dispositioni  com- 
munis juris  reltnquitur.  A  case  omitted  and  for- 
gotten is  left  to  the  disposal  of  the  common  law.  5 
Coke,  37 ;  Broom,  Max.  3d  Lond.  ed.  45  ;  1  Exch. 
476. 

Catalla  juste  possessa  amitti  non  poeaunt.  Chat- 
tels justly  possessed  cannot  be  lost.  Jenk.  Cent. 
Cas.  28. 

Catalla  rcputantur  inter  minima  in  lege.  Chat- 
tels are  considered  in  law  among  the  minor  things. 
Jenk.  Cent.  Cas.  52. 

Causa  vausse  est  cauaa  cansati.  The  cause  of  a 
cause  is  the  cause  of  the  effect.  Freem.  329;  12 
Mod.  639. 

Causa  ecelesise  publicis  sequiparatur;  et  summa  est 
ratio  qute  ])ro  religioue  facit.  The  cause  of  the 
church  is  equal  to  public  cause;  and  paramount  ia 
the  reason  which  makes  for  religion.  Coke,  Litt. 
341. 

Causa  et  origo  est  materia  negotii.  Cause  and 
origin  is  the  material  of  business.  1  Coke,  99  ;  Win- 
gate,  Max.  41,  Max.  21. 

Causa  proxima,  non  remofa  spectatur.  The  im- 
mediate and  not  the  remote  cause  is  to  be  consi- 
dered.   Bacon,  Max.  Reg.  1;  Story,  Bailm.  515; 

3  Kent,  Comm.  8th  ed.  374;  2  East,  348.  See 
Causa  Proxima. 

Causa  vaga  et  incerta  non  est  cauaa  rationabilis. 
A  vague  and  uncertain  cause  is  not  a  reasonable 
cause.    5  Coke,  57. 

Causse  dotis,  vitse,  lihertatia,fiaci  aunt  inter  favnra- 
bilia  in  lege.  Causes  of  dower,  life,  liberty,  reve- 
nue, are  among  the  things  favored  in  law.  Coke, 
Litt.  341. 

Caveat  emptor.  Let  the  purchaser  beware.  See 
Caveat  Emptor. 

Caveat  emptor;  qui  ignorare  non  debtiit  quod  jua 
alienum  emit.  Let  a  purchaser  beware ;  who  ought 
not  to  be  ignorant  that  he  is  purchasing  the  rights 
of  another.  Hob.  99 ;  Broom,  Max.  3d  Lond.  ed. 
690 ;  Coke,  Litt.  102  a;  3  Taunt,  439  ;  1  Bouvier, 
Inst.  383;  Sugden,  Vend.  &  P.  13th  ed.  272  et 
seq.;   1  Story,  Eq.  Jur.  6th  ed.  ch.  6. 

Caveat  venditor.  Let  the  seller  beware.  Lofft. 
328:  18  Wend.  N.  Y.  449,453;  23  353 ;  2  Barb. 
N.  Y.  323;  5  N.  Y.  73,  82. 

Cavendum  est  a  fragmentia.  Beware  of  fragments. 
Bacon,  Aph.  26. 

Certa  debet  esse  intentio,  etnarratio  et  cerium  fun- 
dametitum,  et  certa  res  quse  deducitur  in  judicium. 
The  intention,  count,  foundation,  and  thing,  brought 
to  judgment,  ought  to  be  certain.    Coke,  Litt.  303  n. 

Certum  est  quod  certum  reddi  potest.  That  is  suffi- 
ciently certain  which  can  be  made  certain.  Noy, 
Max.  481 ;  Coke,  Litt.  45  b,  96  a,  142  a;  2  Shars- 
wood,  Blaekst.  Comm.  143;  2  Maule  &  S.  50; 
Broom,  Max.  3d  Lond.  ed,  555-558 ;   3  Term,  463 ; 

4  Cruise,  Dig,  4th  ed.  269  ;  3  Mylne  &  K.  Ch.  353  ; 
11  Cush.  Mass.  380. 

Cessante  causa,  cessat  effectus.  The  cause  ceas- 
ing, the  effect  must  cease.  1  Exch.  430 ;  Broom, 
Max.  3d  Lond.  ed.  151. 

Cessante  rat'one  legis  cesaat,  et  ipsa  lex.  Reason 
is  the  soul  of  the  law,  and  when  the  reason  of  any 
particular  law  ceases,  so  does  the  law  itself.  4  Coke, 
38;  7  id.  69;  Coke,  Litt.  70  b,  122  a;  Broom, 
Max.  3d  Lond,  ed,  151,  152;  4  Rep.  38 ;  13  East, 
348  ;  4  Bingh.  n.  c.  388. 

Cessante  statu  primitivo,  cesaat  derivativua.  The 
primary  state  ceasing,  the  derivative  ceases.  8 
Rep.  34 ;  Broom,  Max.  3d  Lond.  ed.  p.  438 ;  4 
Kent,  Comm.  32. 

C'est  le  crit^e  qui  fait  la  honte,  et  non  paa  I'Scho'. 


MAXIM  120  MAXIM 


fand.  It  is  the  crime  which  causes  the  shame,  and 
not  the  scaffold. 

Ceatnti  que  doit  hiheriter  al  pere  doh  tiihen'ter  al 
JjIs.  He  who  would  have  been  heir  to  the  father  of 
the  deceased  shall  also  be  heir  of  the  son.  Fitz- 
herbert,  Abr.  Descent,  2;  2  Sharswood,  Blackst. 
Comm.  239,  250. 

Chacen  est  ad  communem  leyem,  A  chace  is  by 
common  law.    Reg.  Brev.  806. 

Churta  de  non  ente  non  valet,  A  charter  or  deed 
of  a  thing  not  in  being  is  not  valid.    Coke,  Litt.  36. 

Chartitrum  super  Jidetn,  mortuis  testibta,  ad  pa- 
tn'am  de  necessitudhie.  reeurrendtim  est.  The  wit- 
nesses being  dead,  the  truth  of  charters  must,  of 
necessity,  be  referred  to  the  country.  Coke,  Litt. 
36. 

Chirographnm  apud  debitorem  repertnm  presumi- 
titr  sohitum.  An  evidence  of  debt  found  in  posses- 
sion of  the  debtor  is  presumed  to  be  paid.  Halk. 
Max.  30.   See  14  Mees.  &  W.  379. 

Circuitus  est  evitandus.  Circuity  is  to  be  avoided. 
Coke,  Litt.  384  a;  Smith,  Lead.  Cas.  4th  Am.  ed. 
20;  Wingate,  Max.  179;  Broom,  Max.  3d  Lond. 
ed.  309  ;  6  Coke,  34j  16  Mees.  &  W.  208;  5E.xch. 
829.  ^ 

Citatio  est  de  juri  natiirnU.  A  summons  is  by 
natural  right.  Cases  trt  Banco  Hegis  Will.  III. 
453. 

Citationes  non  concedantur  priusquam  exprtma- 
tur  super  qua  re  fieri  debet  citatio.  Citations  should 
not  be  granted  before  it  is  stated  about  what  matter 
the  citation  is  to  be  made.  (A  maxim  of  ecclesias- 
tical law.)    12  Coke,  44. 

Clausula  generalis  de  residua  non  ea  complectitur 
qnss  non  ejusdem  sint  generis  cum  lis  quse  speciattm 
dicta  /iterant.  A  general  clause  of  remainder  does 
not  embrace  those  things  which  are  not  of  the  same 
kind  with  those  which  had  been  specially  men- 
tioned.   Lofft.  419. 

Clausula  generalis  non  re/ertur  ad  expressa.  A 
general  clause  does  not  refer  to  things  expressed. 
8  Coke,  154. 

Clausida  quse  abrogatio)iem  excludit  ah  initio  non 
valet.  A  clause  in  a  law  which  precludes  its  abro- 
gation is  invalid  from  the  beginning.  Bacon,  Max. 
Re^r.  19,  p.  89;  2  Dwar-is,  Stat.  673;  Broom,  Max. 
3d  Lond.  ed.  27. 

Clausida  vel  dispositio  inutilis per  prsesumptionem 
remotam  vel  causont,  ex  post  facto  non  fulcifur.  A 
useless  clause  or  disposition,  i.e.  one  which  the  law 
would  have  implied,  is  not  supported  by  a  remote 
presumption,  or  by  a  cause  arising  afterwards. 
Bacon,  Max.  Reg.  21 ;  Broom,  Max.  3d  Lond.  ed. 
599. 

Clausulse  inconsuefm  semper  inducvnt  suspicionem. 
Unupual  clauHcs  always  excite  a  suspicion.  3  Coke, 
81 ;  Broom,  Max.  3d  Lond.  ed.  264. 

C'lgUationin  poenam  nemo  patitur.  No  one  is  pun- 
ished for  his  thoughts.  Broom,  Max.  3d  Lond.  ed. 
279. 

Cohseredes  una  persona  censentur, propter  iivitaiem 
juris  quod  habeut.  Coheirs  are  deemed  as  one  per- 
son, on  account  of  the  unity  of  right  which  they 
possess.    Coke,  Litt.  163. 

Commercium  jure  gentium  commune  esse  debet,  et 
non  in  monopvUum  et  privatum  paucorum  quiestum 
conrerteudum.  Commerce,  by  the  law  of  nations, 
<  ught  to  be  common,  and  not  to  bo  converted  into  a 
monopoly  and  the  private  gain  of  a  few.  Coke,  3d 
Inst.  181,  in  marg. 

Commodum  ex  in/Jurtd  sud  von  habere  debet.  No 
man  ought  to  derivt*  any  benefit  of  his  own  wrf)tig. 
Jenk.  Cent.  Cag.  161 ,  Finch,  Law,  b.  1,  c.  3,  n.  02. 

Common  opinion  is  q.xid  authority  in  law.  Coke, 
Litt.  186  a  ;  3  Barb."Ch.  N.  Y.  628,  577. 

Communis  error  /arit  pts.  A  common  error  makes 
law.  What  was  nt  first  illegal,  being  repeated  many 
tliBCH,  is  presumed  to  havo  ao(|uir('d  the  force  of 
48age;  and  then  it  would  b«i  wrong  to  depart  from 


it.  Hilliard,  Real  Prop.  268  ;  1  Ld.  Raym.  42  ;  6 
Clark  &  F.  172;  3  Maule  &  S.  396;  4  N.  H.  458; 
2  Mass.  357.  The  converse  of  this  maxim  is  com- 
munis error  non  facit  jus.  A  common  error  does  not 
make  law.  Coke,  4th  Inst.  242 ;  3  Term,  725 ;  6  id. 
564. 

Compendia  sunt  dispendia.  Abridgments  are  hin- 
drances.   Coke,  Litt.  305. 

Compromissarii  sunt  judiees.  Arbitrators  are 
judges.    Jenk.  Cent.  Cas.  128.  I 

Compromissum  ad  similitudinem  judiciorum  redi- 
gitur.  A  compromise  is  brought  into  aflBnity  with 
judgments.    9  Cush.  Mass.  57 1. 

Concessio  per  regem  fieri  debet  de  certitudine.'  A 
grant  by  the  king  ought  to  be  a  grant  of  a  certainty. 

9  Coke,  46. 

Concessio  versus  concedentcm  latam  interpretatio- 
nem  habere  debet.  A  grant  ought  to  have  a  liberal 
interpretation  against  the  grantor.  Jenk.  Cent.  Cas. 
279. 

Concordid  p^arvm  res  crescunt  et  opulentid  lites. 
Small  means  increase  Vjy  concord,  and  litigations 
by  opulence.    Coke,  4th  Inst.  74. 

Conditio  beneficialis,  quec  statum  eonstruit,  benign^, 
secundum  verborum  intentionem  est  interpretanda; 
odiosa  autem,  quse  statum  destrtiit,  stride,  necundum 
verborum  proprietatem,  accipienda.  A  beneficial 
condition,  which  creates  an  estate,  ought  to  be  con- 
strued favorably,  according  to  the  intention  of  the 
words  ;  but  an  odious  condition,  which  destroys  an 
estate,  ought  to  be  construed  strictly,  according  to  > 
the  letter  of  the  words.  8  Coke,  90;  Sheppard, 
Touchst.  134. 

Conditio  dicitur,  cum  quid  in  casum  incertum  qui 
potest  tendere  ad  esse  ant  non  esse,  con/ertur.    It  is 
called  a  condition  when  something  is  given  on  an  ' 
uncertain  event,  which  may  or  may  not  come  into 
existence.    Coke,  Litt.  201. 

Conditio  il/icila  habetur  pro  non  adjicta.   An  un- 
lawful condition  is  deemed  as  not  annexed. 

Conditio  prsecedens  adimpleri  debet  priusquam 
sequatur  effcctus.    A  condition  precedent  must  be 
fulfilled  before  the  effect  can  follow.    Coke,  Litt.  ' 
201.  : 

Conditiones  quselihet  odioste;  maxim^  avtem  cnntrA  « 
matrimonium  et  commercium.    Any  conditions  are 
odious,  but  especially  those  against  matrimony  and  ^ 
commerce.    Loftt,  644,  j 

Cou/essio  facta  in  judicio  omni  probatione  major  | 
est.    A  confession  made  in  court  is  of  greater  effect 
than  any  proof,    Jenk.  Cent,  Cas.  102.  | 

Confessus  in  judicio  pro  judicata  hahetur  et  quo- 
dammodo  sua  sententid  damnatur.  A  person  who  ' 
has  confessed  in  court  is  deemed  as  having  had 
judgment  parsed  upon  him,  and,  in  a  manner,  is 
condemned  by  his  own  sentence.  11  Coke,  30.  See 
Dig.  42.  2.  1. 

Confirniare  est  id  quod  prius  infirmunt  fuit  simul 
firmare.  To  confirm  is  to  make  firm  what  was  be- 
fore infirm.    Coke,  Litt.  295. 

Confirmare  nemo  potest  pri}isquam  jus  ei  acciderit. 
No  one  can  confirm  before  the  right  accrues  to  him. 

10  Coke,  48. 

Confirmatio  est  nulla,  uhi  donum  prsecedens  est  in- 
validum.  A  confirmation  is  null  where  the  preced- 
ing gift  is  invalid.    Coke,  Litt,  295  ;  F.  Moore,  764. 

Confirmatio  omnes  supplet  defectus,  licet  id  quod 
actum  est  ah  initio  non  valuit.  Confirmation  sup- 
plies all  defects,  though  that  which  has  been  done 
was  not  valid  at  the  beginning.    Coke,  Litt.  295  b.  j 

Coifiimat  usum  qui  iollit  abusum.  He  confirms  a  j 
use  who  removes  an  abuse.    F.  Moore,  764.  { 

Conjunctio  mariti  et  feminie  est  de  jure  naturm.  j 
The  union  of  a  man  and  a  woman  is  of  the  law  of 
nature. 

Consensus  facit  legem.  Consent  makes  the  law. 
A  contract  is  law  between  the  parties  having  re- 
ceived their  consent.    Branch.  Princ, 

Consensus  non  concubitus  facit  matrimonium.  Con- 


MAXIM 


121 


MAXIM 


sent,  not  coition,  constitutes  marriage.  Coke,  Litt. 
33  a;  Dig.  50.  17.  30.  See  10  Clark  &  F.  534;  1 
Bouvier,  Inst.  103  ;  Broom,  Max.  3d  Lond.  ed.  129. 

ConaeitsHH  tollit  errorem.  Consent  removes  or  ob- 
viates a  mistake.  Coke,  Litt.  126;  Coke,  2d  Inst. 
123;  Broom,  Max.  3d  Lond.  ed.  120;  1  Bingh.  N. 
C.  68;  6  Ell.  A  B.  338 ;  7  Johns.  N.  Y.  611. 

Connetims  voluntas  ninltorutu  ad  (juos  res  pertinet, 
stnnd  juncta.  Consent  is  the  united  will  of  several 
interested  in  one  subject-matter.  Dav.  48 ;  Branch, 
Princ. 

CotiBe.nfientes  et,  agentes  pari  pa-itd  plectentur. 
Those  consenting  and  those  perpetrating  shall  re- 
ceive the  same  punishment.    5  Coke,  80. 

Consentire  matrimoiu'o  non  possunt  infra  annon 
nuhileH.  Persons  cannot  consent  to  marriage  before 
marriageable  years.    5  Coke,  80  ;  6  id.  22. 

Conaeqnentim  nnn  ext  conseqaeutia.  A  consequence 
ought  not  to  be  drawn  from  another  consequence. 
Bacon,  Aph.  16. 

Consi/ia  midfornm  requiruutur  in  magnis.  The 
advice  of  many  persons  is  requisite  in  great  affairs. 
Coke,  4th  Inst.  1. 

Conatitutum  esse  earn  domuni  unicuique  nostrum 
debcre  existimari,  ubi  qiiiaque  aedea  et  tabnlas 
h'iberet,  auarumqne  rerumconatitutionevi  fecisset.  It 
is  settled  that  that  is  to  be  considered  the  home  of 
each  one  of  us  where  he  may  have  his  habitation 
and  account-books,  and  where  he  may  have  made 
an  establishment  of  his  business.    Dig.  50. 16.  203. 

Cmtstrnctio  legis  non  facit  itijuriam.  The  con- 
struction of  law  does  not  work  aa  injury.  Coke, 
Litt.  183 ;  Broom,  Max.  3d  Lond.  ed.  537. 

Consuetudo  contra  rationem  introdnctay  potiils 
uaurpntio  quam  conauetudo  ajipellari  debet.  A  cus- 
tom introduced  against  reason  ought  rather  to  be 
called  an  usurpation  than  a  custom.  Coke,  Litt. 
113. 

Conauetudo  debet  ease  certa.  A  custom  ought  to 
be  certain.    Dav.  33. 

Consuetudo  eat  altera  lex.  Custom  is  another 
law.    4  Coke,  21. 

Conauetudo  eat  opfimus  ivterpres  legum.  Custom 
is  the  best  expounder  of  the  law.    Coke,  2d  Inst. 
>  IS;  Dig.  1.  3.  37;  Jenk.  Cent.  Cas.  273. 
I      Conauetudo  et  communis  aaauetudo  vincit  legemnon 
I  scriptam,  ai  ait  apecialia ;   et  interpretatur  legem 
ecriptam,  ai  lex  ait  generalis.    Custom  and  common 
usage  overcome  the  unwritten  law,  if  it  be  special ; 
and  interpret  the  written  law,  if  the  law  be  general. 
I  Jenk.  Cent.  Cas.  273. 

Conauetudo  ex  certa,  cauad  rationabili  uaitata 
privat  communetn  legem.  Custom  observed  by  rea- 
son of  a  certain  and  reasonable  cause  supersedes 
the  common  laws.  Littleton,  ^  169 ;  Coke,  Litt. 
33  6.  See  Judgt.  5  Bingh.  293 ;  Broom,  Max.  3d 
Lond.  ed.  p.  825. 

Conauetudo,  licet  ait  magnie  auctoritatia,  nunqnam 
tamen  priejtidicnt  mani/estse  veritati.  A  custom, 
though  it  be  of  great  authority,  should  never,  how- 
ever, be  prejudicial  to  manifest  truth.    4  Coke,  18. 

Conauetudo  loci  obaervanda  e^^  The  custom  of 
the  place  is  to  be  observed.  4  Coke,  28  b;  6  id.  67 ; 
10  id.  139 ;  4  C.  B.  48. 

Conauetudo  neque  injurid  oriti,  neque  tolli  potest. 
A  custom  can  neither  arise,  nor  be  abolished,  by  a 
wrong.    LoflFt,  340. 
^  ^   Consuetudo  non  habitur  in  conaequentiam.  Custom 
is  not  to  be  drawn  into  a  precedent.    3  Kebl.  499. 

Consuetudo  prmacripta.  et  legitima  vincit  legem. 
A  prescriptive  and  legitimate  custom  overcomes 
the  law.    Coke,  Litt.  113. 

Conauetudo  regni  Angliae  eat  lex  Anglise.  The 
custom  of  the  kingdom  of  England  is  the  law  of 
England.    Jenk.  Cent.  Cas.  119. 

Consuetudo  aemel  reprohala  non  potest  ampliiis 
induci.    Custom  once  disallowed  cannot  again  be 
produced.    Dav.  33  ;  Grounds  &  Rud.  of  Law,  53. 
Consuetudo  vincit  communem  legem.   Custom  over- 


rules common  law.  1  Roper,  Ilusb.  &  Wife,  351  j 
Coke,  Litt.  33  b. 

Conauetudo  volentea  ducit,  lex  nolentea  trahtt. 
Custom  leads  the  willing,  law  compels  or  draws  the 
unwilling.    Jenk.  Cent.  Cas.  274. 

Conteiuporanea  expoaitio  eat  optima  et  fortiaaima 
in  lege.  A  contemporaneous  exj)osition  is  the  best 
and  most  powerful  in  the  law.  Coke.  2d  Inst.  11 ; 
3  Coke,  7;  Broom,  Max.  3d  Lond.  ed.  608. 

Conteatatio  litis  eget  terminoa  contradicttirioa.  An 
issue  requires  terms  of  contradiction  ;  that  is,  there 
can  be  no  issue  without  an  affirmative  on  one  side 
and  a  negative  on  the  other.    Jenk.  Cent.  Cas.  117. 

Contra  legem  facit  qui  id  facit  quod  lex  prohibet; 
in  fraudem  vero  qui,  aalvia  verbia  legia,  sententiam  ejus 
circumvenit.  He  does  contrary  to  the  law  who  does 
what  the  law  prohibits;  he  acts  in  fraud  of  the  law 
who,  the  letter  of  the  law  being  inviolate,  uses  the 
law  contrary  to  its  intention.    Dig.  1.  3.  29. 

Contid  negantem  principia  non  est  diaputandum. 
There  is  no  disputing  against  one  who  denies 
principles.  Coke,  Litt.  43;  Grounds  &  Rud.  of 
Law,  67. 

Contra  non  valentem  agere  nulla  currit  prseacriptio. 
No  prescription  runs  against  a  person  unable  to 
act.  Broom,  Max.  3d  Lond.  ed.  810 ;  Evans, 
Pothier,  451. 

Contra  veritatcm  lex  nunquam  aliqnid  permittit. 
The  law  never  suffers  any  thing  contrary  to  truth. 
Coke.  2d  Inst.  252.  But  sometimes  it  allows  a  con- 
clusive presumption  in  opposition  to  truth.  See  3 
Bouvier,  Inst.  n.  3061. 

Contractus  ex  turjji  cauad,  vel  contrd  bonos  mores 
nullus  eat.  A  contract  founded  on  a  base  and  un- 
lawful consideration,  or  against  good  morals,  is 
null.    Hob.  167  ;  Dig.  2.  14.  27.  4. 

Contractus  legem  ex  conveniione  accipiunt.  The 
agreement  of  the  parties  makes  the  law  of  the  con- 
tract.   Dig.  16.  3.  1.  6. 

Contrariorum  contraria  eat  ratio.  The  reason  of 
contrary  things  is  contrary.    Hob.  344. 

Contrectatio  rei  aliense  animo  furnndi,  eat  furtum. 
The  touching  or  removing  of  another's  property, 
with  an  intention  of  stealing,  is  theft.  Jenk. 
Cent.  Cas.  132. 

Conventio  privatorum  non  poteat  publico  juri  derO" 
gare.  An  agreement  of  private  persons  cannot 
derogate  from  public  right.  Wing.  746,  Max.  201 ; 
Coke,  Litt.  166  a;  Dig.  50.  17.  46.  1. 

Conventio  vincit  legem.  The  agreement  of  the 
parties  overcomes  or  prevails  against  the  law. 
Story,  Ag.  g  368 ;  6  Taunt.  430.  See  Dig.  16.  3. 
1.  6. 

Copulntio  verborum  indicat  acceptationem  in  eodem 
aensu.  Coupling  words  together  shows  that  they 
ought  to  be  understood  in  the  same  sense.  Bacon, 
Max.  Reg.  3;  Broom,  Max.  3d  Lond.  ed.  523. 

Corporalia  injuria  non  recipit  teafimationem  de 
futuro.  A  personal  injury  does  not  receive  satis- 
faction from  a  future  course  of  proceeding.  Bacon, 
Max.  Reg.  6 ;  3  How.  St.  Tr.  71 ;  Broom,  Max.  3d 
Lond.  ed.  254. 

Corpus  humnnum  non  recipit  seatimationem,  A 
human  body  is  not  susceptible  of  appraisement. 
Hob.  69. 

Creditorum  appellatione  non  hi  tantum  accipiuntur 
qui  peeuniam  crediderunt,  aed  omnea  quibus  ex 
qualibet  cauad  debetur.  Under  the  head  of  credit- 
ors are  included  not  alone  those  who  have  lent 
money,  but  all  to  whom  from  any  cause  a  debt  is 
owing.    Dig.  50.  16.  11. 

Creacente  malitid  crescere  debet  et  poena.  Vice 
increasing,  punishment  ought  also  to  increase. 
Coke,  2d  Inst.  479. 

Crimen  falsi  dicittir,  cum  quia  illicitur,  cui  non 
fuerit  ad  hiec  data  auctoritas,  de  aigillo  regia  rapto 
vel  incento  brevia,  cartaave  conaignaverit.  The 
crimen  falsi  (crime  of  falsifying)  is  when  any  one 
illicitly,  to  whom  power  has  not  been  given  for 


MAXIM 


122 


MAXIM 


such  purposes,  has  signed  writs  or  charters  with  the 
king's  seal,  which  he  has  either  stolen  or  found. 
Fleta,  1.  1,  c.  23. 

Crimen  laesse  majeatatis  omnia  alia  crimina  excedit 
quoad  pcenam.  The  crime  of  treason  exceeds  all 
other  crimes  as  far  as  its  punishment  is  concerned. 
Coke,  3d  Inst.  210. 

Crimen  omnia  ex  se  vata  viliat.  Crime  vitiates 
every  thing  which  springs  from  it.  5  Hill,  N.  Y. 
623,  531. 

Crimen  trahit  jjcrsonam.  The  crime  carries  the 
person ;  i.e.  the  commission  of  a  crime  gives  the 
courts  of  the  place  where  it  is  committed  jurisdic- 
tion over  the  person  of  the  offender.  3  Den.  N.  Y. 
190,  210. 

Crimina  morte  extinguuntur.  Crimes  are  ex- 
tinguished by  death. 

Cai  jurisdictio  data  est,  ea  quoque  concessa  esse 
videntur  sine  quihus  jurisdictio  exp/icari  non  potest. 
To  whom  jurisdiction  is  given,  to  him  those  things 
also  are  held  to  be  granted  without  which  the  juris- 
diction cannot  be  exercised.  Dig.  2. 1.  2  ;  1  Wood- 
deson,  Lect.  Introd.  Ixxi. ;  1  Kent,  Comm.  339. 

Cui  Jus  est  donandi,  eidem  et  vendendi  et  concedendi 
jus  est.  He  who  has  a  right  to  give  has  also  a 
right  to  sell  and  to  grant.    Dig.  50.  17.  163. 

Cui  licet  quod  majus  non  debet  quod  minus  est  non 
licere.  He  who  has  authority  to  do  the  more  im- 
portant act  shall  not  be  debarred  from  doing  that 
of  less  importance.  4  Rep.  23  ;  Coke,  Litt.  355  h  ; 
2  Inst.  307;  Noy,  Max.  26;  Finch,  Law,  22;  3 
Mod.  382,  392;  Broom,  Max.  3d  Lond.  ed.  165; 
Dig.  50.  70.  21. 

Cui  pater  est  populus  non  hahet  ille  patrem.  He 
to  whom  the  people  is  father  has  not  a  father. 
Coke,  Litt.  123. 

Cuicunqne  aliquis  quid  concedit  concedere  videtur  et 
id,  sine  quo  res  ipsa  esse  non  potuit.  Whoever  grants 
a  thing  is  supposed  also  tacitly  to  grant  that  with- 
<)nt  which  the  grant  itself  would  be  of  no  elfect.  11 
Coke,  52;  Broom,  Max.  3d  Lond.  ed.  426  ;  Hob.  234; 
Vaugh.  109;  11  Exch.  775;  Sheppard,  Touchst. 
89 ;  Coke,  Litt.  56  a. 

Cuilibet  in  arte  sud  perito  est  credcndum.  Cre- 
dence should  be  given  to  one  skilled  in  his  peculiar 
art.  Coke,  Litt.  125;  1  Sharswood,  Blackst.  Comm. 
75:  Phillips,  Ev.  Cowen  <fe  H.  notes,  pt.  1,  p.  759; 
11  Clark  &  F.  85.    See  Expert;  Opinion. 

Cuique  in  sua  arte  credendum  est.  Every  one  is 
to  be  believed  in  his  own  art.    9  Mass.  227. 

Cujus  est  commodum  ejus  debet  esse  incommodum. 
He  who  receives  the  benefit  should  also  bear  the 
disadvantage.  1  Kaimes,  Eq.  289 ;  Broom,  Max. 
3d  Lond.  ed.  837. 

Cujus  est  dare  ejus  est  disponere.  He  who  has 
a  right  to  give  has  the  right  to  dispose  of  the  gift. 
Wiiigate,  Max.  53;  Broom,  Max.  3d  Lond.  ed. 
440  ;  2  Coke,  71. 

Cujus  est  divisio  alterins  est  electio.  Whichever 
of  two  parties  has  the  division,  the  other  has  the 
choice.    Coke,  Litt.  166. 

CijuH  est  instituere  ejus  est  abrocjare.  Whose  it  is 
to  in-^titute,  his  it  is  also  to  abrogate.  Sydney, 
Grov.  15;  Broom,  Max.  3d  Lond.  ed.  785. 

Cujus  est  solum  ejus  est  usque  ad,  coelum.  Ho  who 
owns  the  soil  owns  it  up  to  the  sky.  Broom,  Max. 
3d  Lond.  ed.  309 ;  Sheppard,  Touchst.  90 ;  2  Bou- 
vier,  Inst.  nn.  15,  70  ;  2  Sharswood.  Blackst.  Comm. 
18;  9  Coke,  54;  4  Campb.  219;  11  Exch.  822;  6 
Ell.  <fe  I^;  76. 

Cujus  juris  {i.e.  jurisdictionis)  est  principale, 
ejusdem  juris  erit  arcessorium.  He  who  has  jurisdic- 
tion of  the  principal  has  also  of  the  accessory. 
Coke,  2d  Inst.  493;  Bracton,  481. 

CujuH  per  errorem  dati  npetitio  est,  ejus  consulto 
dati,  lonatio  est.    That  which,  when  given  through 
mistake,  can  be  recovered  back,  when  given  with 
knowledge  of  the  facts,  is  a  gift.    Dig.  50.  17.  53, 
;    Cujusque  ret  potissimu  pars  principium  eat.  The 


principal  part  of  every  thing  is  the  beginning.  Dig. 
1.  2.  1;  10  Coke,  49. 

Culpa  caret,  qui  scit,  sed  prohibere  non  potest.  He 
is  clear  of  blame  who  knows  but  cannot  prevent. 
Dig.  50.  17.  50, 

Culpa  est  inimiscwe  ae  ret  ad  se  non  pertinenti. 
It  is  a  fault  to  meddle  with  what  does  not  belong 
to  or  does  not  concern  you.  Dig.  60. 17. 36 ;  Coke, 
2d  Inst.  208. 

Culpa  lata  dolo  sequiparalur.  Gross  neglect  is 
equivalent  to  fraud.    Dig.  11.  6.  1. 

Culpa  tenet  auos  auctores.  A  fault  binds  its  own 
authors.  Erskine,  Inst.  b.  4,  tit.  1,  g  14;  6  Bell, 
App.  Cas.  539. 

Culjise  poena  par  esto.  Let  the  punishment  be 
proportioned  to  the  crime.    Branch,  Princ. 

Cum  actio  Juerit  mere  criminalis,  institui  poterit 
ab  initio  criminaliter  vel  civiliter.  When  an  action 
is  merely  criminal,  it  can  be  instituted  from  the 
beginning  either  criminally  or  civilly.  Bracton, 
102. 

Cum  adsunt  testimonia  rertim,  quid  opus  eat  verbis? 
When  the  proofs  of  facts  are  present,  what  need  is 
there  of  words  ?    2  Bulstr.  53. 

Cinn  conjitente  sponte  mitius  est  agendum.  One 
making  a  voluntary  confession  is  to  be  dealt  with 
more  mercifully.  Coke,  4th  Inst.  66 ;  Branch, 
Princ. 

Cum  de  lucro  duorum  quseritur  melior  est  causa 
possidentis.  When  the  question  of  gain  lies  be- 
tween two,  the  cause  of  the  possessor  is  the  better. 
Dig.  50.  17.  126. 

Cum  duo  inter  se  p>ugnantia  reperiuntur  in  testa- 
mento,  ullimum  ratum  est.  When  two  things  re- 
pugnant to  each  other  are  found  in  a  will,  the  last 
is  to  be  confirmed.  Coke,  Litt.  112;  Sheppard, 
Touchst.  451;  Broom,  Max.  3d  Lond.  ed.  518;  1 
Jarman,  Wills,  2d  ed.  394;  16  Johns.  N.  Y.  146  ;  1 
Phill.  536. 

Cum  in  testamento  ambigue  aut  etiam  perperam 
scriptum,  est  beniyne  interjjretari,  et  secundum  id  quod 
credibile  est  cogitatum  credendum  est.  When  an 
ambiguous  or  even  an  erroneous  expression  occurs 
in  a  will,  it  should  be  construed  liberally,  and  in 
accordance  with  the  testator's  probable  meaning. 
Dig.  34.  5.  24;  Broom,  Max.  3d  Lond.  ed.  606; 
3  Pothier,  ad  Pand.  ed.  1819,  46. 

Cum  legitimse  nuptive  factse  sunt,  patrem  liberi 
seqnuntur.  Children  born  under  a  legitimate  mar- 
riage follow  the  condition  of  the  father. 

Cum  par  delictum  est  duorinn,  semper  oneratnr  t. 
petitor,  et  melior  habetur  possessoris  causa.    Where  ' 
two  parties  are  equally  in  fault,  the  claimant  J 
always  is  at  a  disadvantage,  and  the  party  in  pos- 
ses.-ion  has  the  better  cause.    Dig.  60.  17.  164 j 
Broom,  Max.  3d  Lond.  ed.  644. 

Curia  parliamenti  suis  j^ropriia  legibua  aubatstit. 
The  court  of  parliament  is  governed  by  its  own 
peculiar  laws.  Coke,  4th  Inst.  60;  Broom,  Max; 
3d  Lond.  ed.  82;  12  C.  B.  413,  414. 

Curioan  et  captiosn  interprctatioiu  lege  reprobatur* 
A  curious  and  captious  interpretation  in  the  law  is 
to  be  reproved.    1  Bulstr.  6. 

Currit  tempus  contra  desidea  et  aui  juria  contemp- 
tores.  Time  runs  against  the  slothful  and  those 
who  neglect  their  rights.  Bracton,  100  b;  Fleta, 
lib.  4,  c.  5,  ^  12. 

Cnrsus  curise  est  lex  curiee.  The  practice  of  the 
court  is  the  law  of  the  court.  3  Bulstr.  53 ;  Broom, 
Max.  3d  Lond.  ed.  126;  12  C.  B.  414;  17  Q.  B. 
86;  8  Exch.  199;  2  Maule  &  S.  25;  15  East,  226; 
12  Mees.  &  W.  7;  4  Mylne  &  C.  636 ;  5  Scott,  n.  lu 
599. 

Custom  is  the  beat  interpreter  of  the  law.  Coke, 
4th  Inst.  75;  2  Ed.  Ch.  74;  5  Cranch,  32;  1  Serg. 
&  11.  Pcnn.  106;  2  Barb.  Ch.  N.  Y.  232,  269,  8 
id.  528,  577.  I 

Custome  serra  prise  stricte.  Custom  must  be  j 
taken  strictly.    Jenk.  Cent.  Caa  83. 


MAXIM 


123 


MAXIM 


Ciistan  Htntiim  hfcrcdii  in  cKstodiu  exixtrutiH  mc- 
lio'-m  noil  drti-riureiii,  fdcere  poUst.  A  guardian 
can  make  the  estate  of  an  heir  living  under  his 
guardianfship  better,  not  worse.    7  Coke,  7. 

Da  tun  dum  tua  mint,  pout  mortem  tunc  tun  von 
sunt.  Give  the  things  which  are  yours  whilst  they 
arc  yours;  after  death  then  they  are  not  yours.  3 
Bulstr.  18. 

Batur  diffniori.  It  is  given  to  the  more  worthy. 
2  Vcntr.  2G8. 

Be  fide  et  officio  judicin  non  recipifur  quscntio,  scd 
de  fivivntin  ei've  sit  error  jurin  sire  facti.  The  bona 
fides  and  honesty  of  purpose  of  a  judge  cannot  be 
questioned,  but  his  decision  may  be  impugned  for 
error  either  of  law  or  of  fact.  Bacon,  Max.  Reg. 
17;  5  Johns.  N.  Y.  291;  9  id.  896;  1  N.  Y.  45; 
Broom,  Max.  3d  Lund.  ed.  82. 

De  Jure  Judicet,  de/actojnrotorcs, respondent .  The 
judges  answer  concerning  the  law,  the  jury  concern- 
ing the  facts.  See  Coke,  Litt.  295;  Broom,  Max. 
3d  Lond.  ed.  99. 

De  majori  et  minori  non  variant  jura.  Concern- 
ing major  and  minor  laws  do  not  vary.  2  Vern. 
Ch.  552. 

De  minimis  mm  curat  lex.  The  law  does  not  no- 
tice (or  care  for)  trifling  matters.  Broom,  Max.  3d 
Lond.  ed.  134;  Hob.  88 ;  5  Hill,  N.  Y.  170. 

De  molendino  de  novo  erecto  non  jacet  prohibitio. 
A  prohibition  lies  not  against  a  new-erected  mill. 
Croke  Jac.  429. 

De  morte  hominis  nulla  est  cunctatio  lonr/a.  When 
the  death  of  a  human  being  may  be  concerned,  no 
delay  is  long.  Coke,  Litt.  134.  When  the  ques- 
tion is  Concerning  the  life  or  death  of  a  man,  no 
delay  is  too  long  to  admit  of  inquiring  into  facts. 

De  nomine  propria  non  est  curandum  cum  in  suh- 
etantid  non  erretur;  quia  nomina  mntahilia  sunt,  res 
avtem  immolnles.  As  to  the  proper  name,  it  is  not 
to  be  regarded  when  one  errs  not  in  substance  ;  be- 
cause mimes  are  changeable,  but  things  are  immu- 
table.   6  Coke,  66. 

De  non  apparentibus  et  non  existcntibus  eadem  est 
lex.  The  law  is  the  same  respecting  things  which 
do  not  appear  and  those  which  do  not  exist.  6  Ired. 
No.  C.  61 ;  12  How.  253;  5  Coke,  6;  6  Bingh.  n.  c. 
453 ;  7  Clark  &  F.  Hou.  L.  872 ;  5  C.  B.  53 ;  8  id. 
280;  1  Term,  404;  Broom,  Max.  3d  Lond.  ed.  150. 

De  nnllo,  quod  est  sua  naturd  indivisibile,  et  divi- 
eionein  non  patitur,  nullam partem  habebit  vidua,  sed 
satis/aciat  ei  ad  valentiam.  A  widow  shall  have  no 
part  from  that  which  in  its  own  nature  is  indivisi- 
ble, and  is  not  susceptible  of  division ;  but  let  [the 
heir]  satisfy  her  with  an  equivalent.  Coke,  Litt. 
32. 

De  similibus  ad  similia  eadem  ratione  proceden- 
dum  est.  From  similars  to  similars  we  are  to  pro- 
ceed hy  the  same  rule.    Branch,  Princ. 

De  similibus  idem  est  judicium.  Concerning  simi- 
lars the  judgment  is  the  same.    7  Coke,  18. 

Debet  esse  finis  litiinn.  There  ought  to  be  an  end 
of  lawsuits.    Jenk.  Cent.  Cas.  61. 

Debet  quis  juri  subjacere  ubi  delinquit.  Every  one 
ought  to  be  subject  to  the  law  of  the  place  where  he 
oflFends.  Coke,  3d  Inst.  34;  Finch,  Law,  14,  36; 
Wingate,  Max.  113,  114;  3Coke,231:  S.Scott,  n.r. 
667. 

Debet  sua  cvique  domus  esse  perfugium  tutissimnm. 
Every  man's  house  should  be  a  perfectly  safe  refuge. 
12  Johns.  N.  Y.  31,  54. 

Debile  fiindamentum,  fallit  opus.  Where  there  is 
a  weak  foundation,  the  work  falls.  2  Bouvier,  Inst. 
n.  2068;  Broom,  Max.  3d  Lond.  ed.  169,  171. 

Debita  sequuntur  personnm  dcbitoris.  Debts  fol- 
low the  person  of  the  debtor.  Story,  Confl.  Laws, 
g  362;  2  Kent,  Comm.  429;  Halkers.  Max.  13. 

Debitor  non  prtesnmitur  donare.  A  debtor  is  not 
presumed  to  make  a  gift.  See  1  Karnes,  Eq.  212; 
Dig.  50.  16.  108;  1  P.  WiU.  239.       •  . 


Debitorum  jjactiouibus,  creditornm  petit lo  nee  toll!, 
ncc  minui  potest.  The  right  to  sue  of  creditors  can- 
not be  taken  away  or  lessened  by  the  contracts  of 
their  debtors.  Pothier,  Obi.  87,  108;  Broom,  Max. 
3d  Lond.  ed.  622. 

Debitum  et  contractus  sunt  nullius  loci.  Debt  and 
contract  are  of  no  particular  place.  7  Coke,  61  ;  7 
Mann.  &  G.  1019,  n.;  1  Smith,  Lead.  Cas.  4th  Am. 
ed.  528,  n. 

Debitum  in  presenti,  solrendnm  in  fufvro.  A  pre- 
sent debt  to  be  discharged  in  the  future.  2  Barb. 
N.  Y.  457,  470 ;  16  id.  171,  176 ;  19  id.  442,  445. 

Deficiente  vuo  sanrjuine  non  potest  esse  hwres.  One 
blood  being  wanted,  he  cannot  be  heir.  3  Coke,  41  ; 
Grounds  &  Rud.  of  Law,  77. 

Delc(jata  potestas  non  potest  dclnjari.  A  dele- 
gated authority  cannot  be  again  delegated.  Coke, 
2d  Inst.  597  ;  5  Bingh.  n.  c.  310 ;  2  Bouvier,  Inst, 
n.  1300;  Story,  Ag.  ^  1 3 ;  11  How.  233. 

Delegatus  debitor  est  udiosus  in  lege.  A  delegated 
debtor  is  hateful  in  law.    3  Bulstr.  148. 

Delegatus  non  potest  delegare.  A  delegate  or 
depiitv  cannot  appoint  another.  2  Bouvier,  Inst, 
n.  1 936 ;  Story,  Ag.  ^  13 ;  Broom,  Max.  3d  Lond.  ed. 
756-758;  9  C  ke,  77  ;  2  Scott,  n.  r.  509  ;  12  Mee3. 

6  W.  712;  6  Exch.  156;  8  C.  B.  627. 
Delinqiiens  jier  irani  provocatus  jmniri  debet  miiius. 

A  delinquent  provoked  by  anger  ought  to  be  pun- 
ished more  mildly.    Coke,  3d  Inst.  55. 

Deriratira  2^f>testas  non  potest  esse  major  primi- 
tira.  The  power  which  is  derived  cannot  be  greater 
than  that  from  which  it  is  derived.  Wingate,  Max. 
36;  Finch,  Law,  b.  1,  c.  3,  p.  11. 

Derogatur  Icgi,  cum  pars  detrahitur;  abrogatur 
legi,  citm  prorsus  tollitur.  To  derogate  from  a  law 
is  to  take  awav  part  of  it ;  to  abrogate  a  law  is  to 
abolish  it  entirely.  Dig.  50.  16.  102.  See  1  Bou- 
vier, Inst.  n.  91. 

Designatio  iinius  est  exclnsio  alterius,  et  expressum 
facit  cessare  taciturn.  The  appointment  or  desig- 
nation of  one  is  the  exclusion  of  another;  and  that 
expressed  makes  that  which  is  implied  to  cease. 
Coke,  Litt.  210. 

Dens  solus  hieredem  facere  potest,  non  lo'^u,.  God 
alone,  and  not  man,  can  make  an  heir.    (_  i  ki-.  Litt. 

7  b;  cited  5  Barnew.  &  C.  440,  454;  Eiooui,  Max. 
3d  Lond.  ed.  457. 

Dies  dominieus  non  est  jnridicns.  F  nnday  is  not 
a  day  in  law.  Coke,  Litt.  135  a:  2  Siiuiid.  291  ; 
Broom.  Max.  3d  Lond.  ed.  21 ;  Finch,  Law,  7  ;  Nov, 
Max.  2 ;  Plowd.  265 ;  3  Dowl.  &  L.  328 ;  13  Mass. 
327.    See  Sunday. 

Dies  inccptus  pro  completo  habetur.  A  day  begun 
is  held  as  complete. 

Dies  incertus  pro  conditione  habetur.  A  day  un- 
certain is  held  as  a  condition.  Bell,  Diet.  Compu- 
tation of  Time. 

Dilationes  in  lege  sunt  odiosse.  Delays  in  law  are 
odious.    Branch,  Princ. 

Discretio  est  discernere  per  legem  quid  sit  justum. 
Discretion  is  to  discern  through  law  wh;tt  is  just. 
5  Coke,  99, 100  ;  10  id.  140;  Broom.  Max.  3d  Lond. 
ed.  p.  81 ;  Coke,  4th  Inst.  41 ;  1  W.  Blackst.  152; 
1  Burr.  570;  3  Bulstr.  128:  6  Q.  B.  700. 

Discretio  est  scire  per  legem  quid  sit  justum.  Dis- 
cretion consists  in  knowing  what  is  just  in  law.  4 
Johns.  Ch.  N.  Y.  352,  356. 

Disparata  non  debent  jungi.  Dissimilar  things 
ought  not  to  be  joined.    Jenk.  Cent.  Cas.  24. 

Dispensatio  est  minus,  quod  vulnerat  jus  commune, 
A  dispensation  is  a  wound,  because  it  wounds  a 
common  right.    Dav.  69;  Branch,  Princ. 

Disseisinam  satis  facit,  qui  uti  non  permittit  pos- 
sessorem,  rel  minus  commode,  licet  omnino  non 
expellat.  He  makes  disseisin  enough  who  does 
not  permit  the  possessor  to  enjoy,  or  makes  his 
enjoyment  less  commodious,  although  he  does  ml 
expel  altogether.  Coke,  Litt.  331 ;  Bracton,  lib.  4, 
tr.  2. 


MAXIM 


124 


MAXIM 


Di-^niini/idm  disaivn'lis  eat  ratio.  Of  dissimilars 
ihc  rule  is  dissimilar.    Coke,  Litt.  191, 

DissiiHulatiune  tollltitr  injuria.  Wrong  is  wiped 
out  by  reconciliation.  Erskine,  Inst.  b.  4,  tit.  4,  ^ 
108. 

Distinr/nenda  sunt  tempora.  The  time  is  to  be 
considered.    1  Coke,  16  a;  14  N.  Y.  380,  393. 

Distinyiienda  sunt  tempora;  aliud  est  faccre,  aliud 
pe  ficere.  Times  must  be  distinguished  ;  it  is  one 
thing  to  do  a  thing,  another  to  complete  it.  3  Leon. 
243 ;  Branch,  Princ. 

Distinj/ueiida  sunt  tempora;  distinyue  tempora,  et 
concordabis  lef/es.  Times  are  to  be  distinguished; 
distinguish  times,  and  you  will  attune  laws.  1 
Coke,  24. 

Divinatio  non  interpretatio  est,  quse  omnino  recedit 
■a  litem.  It  is  a  guess,  not  interpretation,  which 
altogether  departs  from  the  letter.  Bacon,  Max. 
Reg.  3,  p.  47. 

JJolosus  versatur  in  qeneralibns.  A  deceiver  deals 
in  generals.  2  Coke.  34;  2  Bulstr.  226  ;  Lofft,  782; 
1  Rolle,  157;  Wingate,  Max.  636;  Broom,  Max. 
3d  Lond.  ed.  264. 

Dolum  ex  indiciia  perspicuis  prohari  convenit. 
Fraud  should  be  proved  by  clear  tokens.  Code,  2. 
21.  6 ;  1  Story,  Contr.  4th  ed.  p.  602. 

Dolus  auctoris  non  nocet  sticcessori.  The  fraud  of 
a  predecessor  does  not  prejudice  the  successor. 

Dolus  circtiitu  non  puryator.  Fraud  is  not  purged 
by  circuity.  Bacon,  Max.  Reg.  1;  Noy,  Max.  9, 
12;  Broom,  Max.  3d  Lond.  ed.  210;  6  Ell.  &  B. 
948. 

Dolus  et  fraus  nemini  jjatrocinentur  {patrocinari 
detent).  Deceit  and  fraud  shall  excuse  or  benefit 
no  man.  (They  themselves  need  to  be  excused.) 
Year  B.  14  Hen.  VIII.  8 ;  Story,  Eq.  Jur.  ^  395;  3 
Coke,  78 ;  2  Fonblanque,  Eq.  b.  2,  ch.  6,  ^'3. 

Dominium  non  potest  esse  in  pendent!.  The  right 
of  property  cannot  be  in  abeyance.  Halkers,  Max. 
39. 

Domns  sua  cuique  cat  ttitiseinium  refaqium.  Every 
man's  house  is  his  castle.  5Coke,  91,  92;  Dig.  2. 14. 
18;  Broom,  Max.  3d  Lond.  ed.  384;  1  Hale,  PI.  Cr. 
481;  Foster,  Homicide,  320;  8  Q.  B.  757;  U  id. 
546,  556;  19  How.  St.  Tr.  1030.    See  Ahrest.* 

Domus  tntissimum  cuique  re/ugium  atqne  recepta- 
culum.  The  habitation  of  each  one  is  an  inviolable 
asylum  for  him.    Dig.  2.  4.  18. 

Dona  clandestina  sunt  semper  suspiciosa.  Clan- 
destine gifts  are  always  suspicious.  3  Coke,  81 ; 
Noy,  Max.  9th  ed.  152;  4  Barnew.  &  C.  652;  1 
Maule  <fc  S.  253;  Broom,  Max.  3d  Lond.  ed.  264. 

Donari  videtur  quod,  nulli  jure  cogente  conceditur. 
That  is  considered  to  be  given  which  is  granted 
when  no  law  compels.    Dig.  50.  17.  82. 

Donatio  non  prmsumitur.  A  gift  is  not  presumed. 
Jenk.  Cent.  Cas.  109. 

Donatio  perjic.itur  possessione  accipientis.  A  gift 
is  rendered  complete  by  the  possession  of  the  re- 
ceiver. Sec  1  Bouvier,  Inst.  n.  712;  2  Johns.  N. 
Y.  52  ;  2  Leigh,  Va.  337 ;  2  Kent,  Comm.  438. 

Donationum  alia  per/ecta,  alia  incejjta,  et  non per- 
fev.ta;  ut  si  donatio  lecta  fuit  et  coneessa,  ac  traditio 
nondum  fnerit  subaecnta.  Some  gifts  are  ]ierfect, 
others  incipient  and  not  perfect;  as  if  a  gift  were 
read  and  agreed  to,  but  delivery  had  not  then  fol- 
lowed.   Coke,  Litt.  56. 

Donator  nunqnam  dcsinit  posaidere  antcquam  do- 
natariua  incipiat  posaidere.  He  that  gives  never 
ceases  to  possess  until  he  that  receives  begins  to 
possess.    ]>yer,  281 ;  Bracton,  41  h. 

Dorminnt  aliquando  legea,  nunquam  moriuntvr. 
The  laws  sometimes  sleep,  but  never  die.  Coke,  2d 
Inst.  161. 

DoH  de  dote  peti  non  debet.  Dower  ought  not  to 
be  sought  from  dower.  4  Coke,  122;  Coke,  Litt. 
3i  ;  4  Dane,  Abr.  671 ;  1  Washburn,  Real  Prop.  209. 

Doti  Ifx  /avct;  prwmium  pudoria  est,  ideii  parca- 
tur.    The  law  favors  dower ;  it  is  the  reward  of 


chastity,  therefore  let  it  be  preserved.    Coke,  Litt. 
31 ;  Branch,  Princ. 

Droit  ne  done  pluia  que  soit  demavnde.  The  law 
gives  no  more  than  is  demanded.  Coke,  2d  Inst.  286. 

Droit  ne  jwet  pae  morier.  Right  cannot  die.  Jenk. 
Cent.  Cas.  100. 

Duaa  uxores  endem  tempore  habere  non  potest.  It 
is  not  lawful  to  have  two  wives  at  one  time.  Inst. 
1.  10.  6 ;  1  Sharswood,  Blackst.  Comm.  436. 
I     Duo  non  possunt  in  aolido  unam  rem  posaidere. 
I  Two  cannot  possess  one  thing  each  in  entirety. 
'  Coke,  Litt.  368 ;  1  Preston,  Abstr.  318 ;  2  id.  86, 
326;  2  Dods.  Adm.  157;   2  Carth.  76;  Broom, 
Max.  3d  Lond.  ed.  415. 

Duo  aunt  instrumenta  ad  omnes  res  aut  conjirman- 
dasaut  impugnandas,  ratio  et  aucoritas.  There  are 
two  instruments  for  confirming  or  impugning  every 
thing,  reason  and  authority.    8  Coke,  16. 

Duorum  in  aolidam  dominium  vel  possensib  esse 
non  potest.  Ownership  or  possession  in  entirety  can- 
not be  in  two  of  the  same  thing.  Dig.  13.  6.  5. 15  j 
1  Mackeldey,  Civ.  Law,  245,  g  236;  Bracton,  28  b. 

Duplicationem  possibilitatis  lex  non  patitur.  The 
law  does  not  allow  a  duplication  of  possibility.  1 
Rolle,  32L 

Ea  est  accipienda  interpretatio,  qusR  vitio  caret. 
That  interpretation  is  to  be  received  which  is  free 
from  fault.    Bacon,  Max.  Reg.  3,  p.  47. 

Ea  quse  commendandi  causa  in  venditionibua  di- 
cuntiir  si  palam  appareant  venditorem  non  obligant.  ' 
Those  things  which,  by  way  of  commendation,  are 
stated  at  sales,  if  they  are  openly  apparent,  do  not 
bind  the  seller.    Dig.  18.  43.  m. 

Ea  quse  dart  impossibilia  aunt,  vel  quse  in  rerum  , 
natura  non  aunt,  jjro  non  adjectis  habentur.    Those  ' 
things  which  cannot  be  given,  or  which  are  not  in 
existence,  are  held  as  not  expressed.  Dig.  50. 17. 135.  ^ 

Ea  quse  rai  d  accidunt,  non  temere  in  agendia  ne~  ' 
gotiis  computantur.     Those  things  which  rarely  \ 
happen  are  not  to  be  taken  into  account  in  the 
transaction  of  business  without  sufficient  reason.  ; 
Dig.  50.  17.  64. 

Eadem  mens  prseavmitiir  regia  quse  est  juris  et  quse 
ease  debet,  jircBsertim  in  duhiis.    The  mind  of  the  i 
sovereign  is  presumed  to  be  coincident  with  that  of  , 
the  law,  and  with  that  which  ought  to  be,  especially 
I  in  ambiguous  matters.   Hob.  154;  Broom,  Max.  3d  | 
'  Lond.  ed.  53.  '  I 

Ecclesin  ecclesise  decimaa  aolvere  non  debet.    It  ! 
is  not  the  duty  of  the  church  to  pay  tithes  to  the 
church.    Croke  Eliz.  479. 

Eccleaite  magis  favendum  eat  guam  personse.  Tho 
church  is  more  to  be  favored  than  an  individual. 
Godb.  172. 

Ecclesin  non  moritur.  The  church  does  not  die. 
Coke,  2d  Inst.  3. 

Effectus  sequitur  causom.  The  effect  follows  the 
I  cause.    Wingate,  Max.  226. 

Ei  incumbit  probatio  qui  dicit,  non  qui  ncgat. 
The  burden  of  the  proof  lies  upon  him  who  affirms, 
not  he  who  denies.  Dig.  22.  3.  2;  Tait.  Ev.  1;  1 
Phillips,  Ev.  194  ;  1  Greenleaf,  Ev.  |  74  ;  3  La.  83 ;  2 
Daniell,  Chanc.  Pract.  408 ;  4  Bouvier,  Inst.  n.  441 1. 

Ei  nihil  turpe,  cut  nihil  satis.  Nothing  is  base 
to  whom  nothing  is  sufficient.    Coke,  4th  Inst.  53. 

Ejus  est  non  nolle  qui  jmteat  velle.  He  may  con- 
sent tacitly  who  may  consent  expressly.  Dig.  50. 
17.  3. 

Ejua  eat  periculum  cujtia  est  dominium  aut  com- 
niodum.  He  has  the  risk  who  has  the  right  of  pro- 
perty or  advantage. 

Ejus  nulla  culpa  eat  cut  parere  neceaae  ait.  No 
guilt  attaches  to  him  who  is  compelled  to  obey. 
Dig.  50.  17.  l'>i). 

Electa  und  vid,  non  datur  recuraua  ad  alteram. 
When  there  is  concurrence  of  means,  he  who  has 
chosen  one  cannot  have  recourse  to  another.  10 
Toull.  n.  170. 


MAXIM 


125 


MAXIM 


'      Electio  eat  iniima  [internix],  libera,  et  spontanea 
teparntio  uuius  rei  ah  olid,  sine  eijiiipidsione,  con- 
Biatens  in  aniuio  et  volnntate.    Election  is  an  internal,  ! 
free,  and  spontaneous  separation  of  one  thing  from  \ 
another,  without  compulsion,  consisting  in  intention 
and  will.    Dy.  281.  I 
!      Electio  semel  facta,   et  placitvm   testatum,  non 
1  patitHi'  refjressum.    Election  once  made,  and  plea 

witnessed,  suffers  not  a  recall.    Coke,  Litt.  146.  I 
I       Electi ones  fiant  rite  ct  liherc  sine  interrnptinne  ali- 
qua.    Elections  should  be  made  in  due  form  and 
freely,  without  any  interruption.    Coke,  2d  Inst. 
1C9.  _  I 

I      Emptor  emit  quam  minimo  jyotest ;  venditor  vendit.  j 
I  quam  nuxximo  jiotest.    The  buyer  buys  for  as  little 
I  as  possible;  the  vendor  sells  for  as  much  as  possible. 

2  Johns.  Ch.  N.  Y.  252,  256,  486. 
i      Ell  eschanye  il  covient  que  lea  estates  soient  egales. 
I  In  an  exchange  it  is  necessary  that  the  estatea 
j  be  equal.    Coke,  Litt.  50 ;  2  Hilliard,  Real  Prop. 
298. 

Ennmeratio  injirmat  rerfitlani  in  casibus  nan  enn- 
meratis.  Enumeration  disaffirms  the  rule  in  cases 
not  enumerated.    Bacon,  Aph.  17. 

Ennmeratio  unius  est  exclusio  alterins.  Specifica- 
tion of  one  thing  is  an  exclusion  of  the  rest.  Mat- 
ter of  Washburn,  4  Johns.  Ch.  N.  Y.  106,  113. 

Eodem  modo  quo  oritur,  eodem  modo  dissolvitnr. 
It  is  discharged  in  the  same  way  in  which  it  arises. 
Bacon,  Abr.  Release;  Croke  Eliz.  697;  2  Wms. 
Saund.  48,  n.  1;  11  Wend.  N.  Y.  28,30;  24  id.  294, 
298. 

Eodem  modo  quo  quid  constifnitur,  eodem  modo 
destruitiir.  In  the  same  way  in  which  any  thing 
is  constituted,  in  that  way  is  it  destroyed.  6  Coke, 
63. 

Equality  is  equity.  Francis,  Max.,  Max.  3 ;  4 
Bouvier,  Inst.  n.  3725;  1  Story,  Eq.  Jur.  §  64. 

Equitas  seqiiitur  lecfem.  Equity  follows  the  law. 
1  Story,  Eq.  Jur.  4 :  5  Barb.  N.  Y.  277,  282. 

Eqiiiti/  de/iyhts  to  do  justice,  and  that  not  by  halves, 
■b  Barb.'N.Y.  277,  280  ;  Story,  Eq.  Plead.  ^  72. 

Equiti/  follows  the  law.  Cas.  temp.  Talb.  62;  1 
Story,  Eq.  Jur.  ^  64. 

Equity  looks  upon  that  as  done,  ichich  ought  to  be 
done.  4  Bouvier,  Inst.  n.  3729;  1  Fonblanque,  Eq. 
b.  1,  ch.  6,  s.  9,  note;  3  Wheat.  663. 

Equity  suffers  not  a  right  without  a  remedy.  4 
Bouvier,  Inst.  n.  3726. 

Error  fucatus  nudd  veritate  in  midtis  est  proba- 
hilior ;  et  ssepenumero  ralionibus  vincit  veritatem 
error.  Error  artfully  colored  is  in  many  things 
more  probable  than  naked  truth ;  and  frequently 
error  conquers  truth  and  argumentation.  2  Coke, 
73. 

Error  juris  nocet.  Error  of  law  is  injurious. 
See  4  Bouvier,  Inst.  n.  3828 ;  1  Story,  Eq.  Jur.  3 
139,  n.  >  J>    H  ^ 

Error  nominis  nunquam  nocet,  si  de  identitate  rei 
constat.  Mistake  in  the  name  never  injures,  if  there 
is  no  doubt  as  to  the  identity  of  the  thing.  1  Duer, 
Ins.  171. 

Error  qui  non  resistifur,  approbatur.  An  error 
not  resisted  is  approved.    Doctor  &  Student,  c.  70. 

Error  scribentis  nocere  non  debet.  An  error  made 
by  a  clerk  ought  not  to  injure ;  a  clerical  error  may 
be  corrected.    1  Jenk.  Cent.  Cas.  324. 

Errores  ad  sua  priiicipia  referre,  est  refellere.  To 
refer  errors  to  their  origin  is  to  refute  them.  Coke, 
3d  Inst.  15. 

Erubescit  lex  fiHos  castigare  parentes.  The  law 
blushes  when  children  correct  their  parents.  8 
Coke,  116. 

Est  aliquid  quod  7ion  opcrtet,  etiam  si  licet;  quic- 
quid  vero  non  licet  certi  non  oportet.  There  are 
some  things  which  are  not  proper  though  lawful ; 
but  certainly  those  things  are  not  proper  which  are 
not  lawful.    Hob.  159. 

Est  autem  jus  publicum  et  privatum,  quod  ex  na- 


tnratihus  prwreptis  aut  gentium,  ant  cicilibus  est  col- 
lectuni;  et  quod  in  jure  scrlpto  jus  appellatur,  id  in 
lege  Anglisp,  rectum  esse  dicitur.  Public  and  j>rivale 
law  is  that  which  is  collected  from  natural  precepts, 
on  the  one  hand  of  nations,  on  the  other  of  citizens; 
and  that  which  in  the  civil  law  ifl  called  jm*,  that  in 
the  law  of  England  is  said  to  be  right.  Coke, 
Litt.  558. 

Est  autem  vis  legem  simulans.  Violence  may  also 
put  on  the  mask  of  law. 

Est  boni  judicis  ampliare  jnrisdictionem .  It  is 
the  part  of  a  good  judge  to  extend  the  jurisdiction. 
Gill).  14. 

Est  ipsorum  legislatorum  tanquam,  viva  vox;  rebut 
et  non  verbis  legem  iniponimus.  The  utterance  of 
legislators  themselves  is  like  the  living  voice ;  we 
impose  law  upon  things,  not  upon  words.  10  Coke, 
101. 

Estoveria  sunt  ardendi,  arundi,  construendi,  et 
claudendi.  Estovers  are  for  burning,  ploughing, 
building,  and  inclosing.    13  Coke,  68. 

Euni  qui  nocentem  infamat,  non  est  srquum  et 
bonum  ob  earn  rem  condemnari ;  delicta  enim  no- 
ceutium  nota  esse  oj)ortet  et  capedit.  It  is  not  jusf 
and  proper  that  he  who  speaks  ill  of  a  bad  man 
should  be  condemned  on  that  account;  for  it  is 
fitting  and  expedient  that  the  crimes  of  bad  men 
should  be  known.  Dig.  47.  10.  17;  1  Blackstone, 
Comm.  125. 

Eventus  varioa  res  nova  semper  habet.  A  new 
matter  always  produces  various  events.  Coke^ 
Litt.  379. 

Every  man  ia  presumed  to  intend  the  natural  and 
pirobable  consequences  of  his  own  voluntary  acts.  1 
Green.  Evid.  |  18;  9  East,  277;  9  Barnew.  A  C. 
643;  3  Maule  &  S.  11,  17. 

Ex  antecedentibus  et  consequentibna  fit  optima  in- 
terprctafio.  The*  best  interpretation  is  made  from 
antecedents  and  consequents.  2  Parsons,  Contr. 
12,  n.  (>•);  Broom,  Max.  3d  Lond.  ed.  513:  Coke, 
2d  Inst.  317:  2  Sliarswood,  Blaekst.  Comm.  379; 
1  Bulstr.  101;  15  East,  541. 

Ex  diuturnitate  temporis,  omnia  prsesumuntur 
soletnniter  esse  acta.  From  length  of  time,  all 
things  are  presumed  to  have  been  done  in  due 
form.  Coke,  Litt.  6;  1  Greenleaf,  Ev.  g  20;  Best, 
Ev.  g  43. 

Ex  dolo  mala  non  oritur  actio.  A  right  of  action 
cannot  arise  out  of  fraud.  Broom,  Max.  349; 
Cowp.  343;  2  C.  B.  501,  612,  515;  5  Scott,  n.  k. 
668;  10  Mass.  276. 

Ex  facto  jus  oritur.  The  law  arises  out  of  the 
fact.  Coke,  2d  Inst.  479;  2  Sharswood,  Blaekst. 
Comm.  329  ;  Broom,  Max.  3d  Lond.  ed.  99. 

Ex  freqnenti  delicto  augeiur  poena.  Punishment 
increases  with  increasing  crime.  Coke,  2d  Inst. 
479. 

Ex  malefcio  non  oritur  contractus.  A  contract 
cannot  arise  out  of  an  act  radically  wrong  and 
illegal.  Broom,  Max.  3d  Lond.  ed.  660;  1  Term, 
7,34;  3  id.  422;  1  H.  Blaekst.  32i;  6  EU.  &  B. 
999.  1016, 

Ex  malis  moribvs  house  leges  natse  sunt.  Good 
laws  arise  from  evil  manners.    Coke,  2d  Inst.  161. 

Ex  multitudine  signorum,  colligitur  idcutitaa  vera. 
From  the  great  number  of  signs  true  identity  is 
ascertained.  Bacon,  Max.  Reg.  25 ;  Broom,  Max. 
3d  Lond.  ed.  569. 

Ex  nihi/o  nihil  ft.  From  nothing  nothing 
comes.    13  Wend.  N.  Y.  178,  221  ;  18  id.  257,  301. 

Ex  nudo  pacto  non  oritur  actio.  No  action  arises 
on  a  contract  without  a  consideration.  Noy,  Max. 
24;  3  Burr.  1670:  2  Sharswood,  Blaekst.  Comm. 
445;  Chitty,  Contr.  10th  Am.  ed.  25;  1  Story, 
Contr.  §  526.    See  NuDrji  Pactum. 

Ex  pacto  illicito  non  oritur  actio.  From  an 
illicit  contrnct  no  action  arises.  Broom,  Max.  3d 
Lond.  ed.  666;  7  Clark  &  F.  Hou.  L.  729. 

Ex  procedentibua  et  comequentihua  optima  Jit  in- 


MAXIM 


126 


MAXIM 


terprefaft'o.  The  best  interpretation  is  made  from 
things  preceding  and  following ;  i.e.  the  context.  1 
RoUe,  o75. 

Ex  totd  materia  emergat  resolutio.  The  construc- 
tion or  explanation  should  arise  out  of  the  whole 
subject-matter.    Wingate,  Max.  238. 

Ejc  turpi  cntifid  non  oritur  actio.  No  action  arises 
out  of  an  immoral  consideration.  Selwyn,  Nisi  P. 
63 ;  2  Pet.  539. 

Ex  turpi  contractu  non  oritur  actio.  No  action 
arises  on  an  immoral  contract.  Dig.  2.  14.  27.  4 ; 
2  Kent  Comm.  466  j  1  Story,  Contr.  g  592;  22  N.  Y. 
272. 

Ex  uno  disces  omnes.  From  one  thing  you  can 
discern  all. 

Exceptio  ejus  rei  cuj'us  jjetittir  dissolutio  nulla  est. 
A  plea  of  that  matter  the  dissolution  of  which  is 
the  object  of  the  action  is  of  no  effect.  Jenk.  Cent. 
Cas.  37. 

Exceptio  falsi  omnium  ultima.  A  false  plea  is 
the  basest  of  all  things. 

Exceptio  firmat  reynlam  in  caaihus  non  exceptia. 
The  exception  affirms  the  rule  in  cases  not  ex- 
cepted.   Bacon,  Aph.  17. 

Exceptio  firmat  retjidam  in  contrarinm,.  The  ex- 
ception affirms  the  rule  to  be  the  other  way.  Bacon, 
Aph.  17. 

Exceptio  nxdla  eat  versus  actionem  qtise  excep- 
tiunem  perimit.  There  can  be  no  plea  against  an 
action  which  entirely  destroys  the  plea.  Jeuk. 
Cent.  Cas.  106. 

Exceptio  py'obat  rerjulam  de  rebus  non  exceptia. 
An  exception  proves  the  rule  concerning  things 
not  excepted.    11  Coke,  41. 

Exceptio  quse  firmat  leyem,  exponit  le'jem.  An 
exception  which  confirms  the  law,  expounds  the 
law.    2  Bulstr.  189. 

Exceptio  qnoque  regulam  declarat.  The  excep- 
tion also  declares  the  rule.    Bacon,  Aph.  17. 

Exceptio  semper  ultima  ponenda  est.  An  excep- 
tion is  always  to  be  put  last.    9  Coke,  53. 

ExcfiHSus  in  jure  reprohatur.  Exceasua  in  re 
qnalibct  Jure  reprohatur  communi.  Excess  in  law  is 
reprehended.  Excess  i'n  any  thing  is  reprehended 
by  common  law.    1  Coke,  44. 

Excusat  out  extenuat  delictum  in  capitalibus,  quod 
non  operatur  idem  in  civHibus.  That  excuses  or  ex- 
tenuates a  wrong  in  capital  causes  which  does  not 
have  effect  in  civil  suits.  Bacon,  Max.  Reg.  7 ; 
Broom,  Max.  3d  Lond.  ed.  291. 

Executio  est  exccntio  juria  secuudum  Judicium.  An 
execution  is  the  executi  m  of  the  law  according  to 
the  judgment.    Coke,  3d  Inst.  212. 

Executio  est  finis  ct  fructus  Icjis.  An  execution 
is  the  end  and  the  fi'uit  of  the  law.    Coke,  Litt.  289. 

Exilium  cxt  palrise  privatio,  natalia  soli  mutatio, 
legum  natirarum  a.nissio.  Exile  is  a  privation  of 
country,  a  change  of  natal  soil,  a  loss  of  native 
laws.    7  Coke,  20. 

Expedit  reipublicce  ne  sud  re  quia  male  ufatur. 
It  is  for  the  interest  of  the  state  that  a  man  should 
not  u?e  his  own  property  improperly.  Inst.  1.  8. 
2;  Broom,  Max.  3d  Lond.  ed.  328. 

Experientia  per  varioa  actus  legem  facit.  Magiatra 
rerum  experientia.  Experience  by  various  acts 
makes  laws.  Experience  is  the  mistress  of  things. 
Coke,  Litt.  60;  Branch.  Princ. 

Expositio,  qua;  ex  viaceribus  cavate  naacitur,  eat 
aptlasima  et  fortissima  in  lege.  That  exposition 
Avhich  springs  from  the  vitals  of  a  cause  is  the 
fittest  and  most  j)owcrful  in  law.    10  Coke,  24. 

Expretsa  nocent,  non  erpressii  non  nocent.  Things 
expressed  may  be  prejudicial ;  things  not  expressed 
are  not.    Calvinus,  Lex.;  Dig.  50.  17.  19.  5. 

Expresoa  non  prosuut  quwnon  expreaaa  proderunt. 
Thiiig-J  expressed  may  be  prejudicial  which  not 
expressed  will  profit.    4  Coke,  73. 

Erpressio  eorum  quir.  tacit^  insunt  nihil  operatur. 
Tho  expression  of  those  things  which  are  tacitly 


implied  operates  nothing.  2  Parsons,  Contr.  28 ; 
4  Coke,  73;  5  id.  11;  Hob.  170;  3  Atk.  138;  11 
Mees.  &  W.  569 ;  7  Exch.  28. 

Expressio  tiuiua  eat  excluaio  alterius.  The  ex- 
pression of  one  thing  is  the  exclusion  of  another. 
Coke,  Litt.  210;  Broom,  Max.  3d  Lond.  ed.  596; 

2  Parsons,  Contr.  28  ;  3  Bingh.  n.  c.  85  ;  8  Scott,  n. 
R.  1013,  1017:  5  Terra,  21;  6  /d.  320 ;  12  Mees.  & 
W.  761;  15  id.  110  ;  16  id.  244;  2  Curt.  C.  C.  365; 
6  Mass.  84;  11  Cush.  Mass.  328. 

Expresaum  J'acit  ccaaare  taciturn.  That  which 
is  expressed  puts  an  end  to  (renders  ineffective) 
that  which  is  implied.  Smith,  Contr.  2d  ed.  390  ;  5 
Bingh.  N.  c.  185;  6  Barnew.  &  C.  609;  2  Crompt. 
&  M.  459;  2  EU.  &  B.  856;  7  Mass.  106;  24  Me. 
374 ;  6  N.  H.  481 ;  1  Dougl.  Mich.  330 ;  4  Wash. 
C.  C.  185. 

Extincto  subjecto,  tollitur  adjunctum.  When  the 
substance  is  gone,  the  adjuncts  disappear.  16  Johns. 
N.  Y.  438,  492. 

Extra,  legem  poaitua  eat  ciriliter  mortuua.  One 
out  of  the  pale  of  the  law  (an  outlaw)  is  civilly 
dead.    Coke,  Litt.  130. 

Extra  territorium  Jus  dicenfi  non  paretur  impune. 
One  who  exercises  jurisdiction  out  of  his  territory 
cannot  be  obeyed  with  impunity.  10  Coke,  77; 
Dig.  2.  1.  20 ;  Story,  Confl.  Laws,  §  539. 

Facta  sunt  potentiora  verbis.  Facts  are  more 
powerful  than  words. 

Factum  ajudice  quod  ad  ejus  officiuvx  von  spectat, 
non  rntnm  est.  An  act  of  a  judge  which  does  not 
pertain  to  his  office  is  of  no  force.  10  Coke,  76; 
Dig.  50.  17.  170 ;  Broom,  Max.  3d  Lond.  ed.  89. 

Factum  cuique  suum,  non  adversaria,  nocere  debet, 
A  man's  actions  should  injure  himself,  not  his  ad- 
versary.   Dig.  50.  17.  155. 

Factum  in/ectum  fieri  nequit.  What  is  done  can- 
not be  undone.    1  Kames,  Eq.  96,  259. 

Factum  negantis  nulla  pro}>atio.  No  proof  is  in- 
cumbent on  him  who  denies  a  fact. 

Factum  non  dicitur  quod  non  peraeverat.  That  is 
not  said  to  be  done  which  does  not  last.  5  Coke, 
96;  Sheppard,  Touchst.  Preston  ed.  391. 

Factum  unitis  alteri  nocere  non  debet.  The  deed 
of  one  should  not  hurt  another.    Coke,  Litt.  152. 

Facultas  jjrobationum  non  est  anguatanda.  The 
right  of  offering  proof  is  not  to  be  narrowed.  Coke, 
4th  Inst.  279. 

Falsa  demonatratio  non  nocet.  A  false  descrip- 
tion does  not  vitiate.  6  Term,  676.  See  2  Story, 
Rep.  291 ;  1  Greenleaf,  Ev.  ^  301 ;  Broom,  Max. 
3d  Lond.  ed.  562  ;  2  Parsons^  Contr.  62,  n.,  69,  n., 
72,  n.,  76,  n.;  4  C.  B.  328;  11  id.  208;  14  id.  122. 

Fahd  demonstratione  legatum  von  perimi.  A 
legacy  is  not  destroyed  by  an  incorrect  description. 

3  Bradf.  Surr.  N.  Y.  144,  149. 

Falsa  orthographia,  aire  J'alaa  grammatica,  non 
vitiat  conceaaionem.  False  spelling  or  false  gram- 
mar does  not  vitiate  a  grant.  9  Coke,  48 ;  Sheppard, 
Touchst.  55. 

Falsus  in  uno,  falaua  in  omnibus.  False  in  one 
thing,  false  in  every  thing.  1  Sumn.  C.  C.  356 ;  7 
Wheat.  338;  3  Wise.  645;  2  Jones,  No.  C.  257. 

Fama,  fides,  et  ocnlus  non  patiuntur  ludum.  Fame, 
plighted  faith,  and  eyesight  do  not  endure  deceit. 
3  Bulstr.  226. 

Fatetur  J'acinus  qui  Judicium  fugit.  He  who  flees 
judgment  confesses  his  guilt.  Coke,  3d  Inst.  14; 
5  Coke,  109  b.   But  see  Best,  Pres.  ^  248. 

Fatuus  prmuinitur  qui  in  propria  nomine  errat. 
A  man  is  presumed  to  be  simple  who  makes  a  mis- 
take in  his  own  name.  Code,  6.  24.  14;  5  Johns. 
Ch.  118.  161. 

Facorahilia  in  lege  aunt  fiacus,  doa,  vita,  libertaa. 
The  treasury,  dower,  life,  and  liberty,  are  things 
favored  in  law.    Jenk.  Cent.  Cas.  94. 

F(trorabili(ire8  rei  potiua  quam  actores  habentur. 
Defendants  are  rather  to  bo  favored  than  plaintiffs. 


MAXIM 


127 


jyiAXIM 


i  Dig.  50.  17.  125.  See  8  Wheat.  195,  196;  Broom, 
Max.  3d  Lond.  ed.  039. 

Facurftbi/iorcs  sunt  e.rccntionea  aliis  procetsnihiis 
quHniHcunque.  Executions  are  preferred  to  all  other 
processes  whatever.    Coke,  Litt.  287. 

Furores  (nitp/iandi  mint;  odia  re>itriuijenda.  Fa- 
vorable inclinations  are  to  be  enlarged ;  animosi- 
ties restrained.    Jenk.  Cent.  Cas.  180. 

Felix  qui potiiit  rernm  cogiioscere  cait/^an.  Happy 
is  he  who  has  been  able  to  understand  the  causes 
of  things.    Coke,  Litt.  231. 

Felonia,  ex  vi  termini,  significat  quodJihet  cnpt- 
tale  crimen  feUen  aninio  perpefrntum.  Felony,  by 
force  of  the  term,  signifies  some  capital  crime  per- 
petrated with  a  malignant  mind.    Coke,  Litt.  391. 

Felonia  implicatur  iu  qnolibet  proditione.  Felony 
is  implied  in  every  treason.    Coke,  3d  Inst.  15. 

Feodum  eat  quod  quia  tenet  ex  qudcunqne  caund, 
sive  ait  tenementum  aive  redditua.  A  fee  is  that  which 
any  one  holds  from  whatever  cause,  whether  tene- 
ment or  rent.    Coke,  Litt.  1. 

Featinatio  jnstitise  cat  novercn  infortunii.  The 
hurrying  of  justice  is  the  stepmother  of  misfortune. 
Hob.  97. 

Fiat  juatitia  mat  coehim.  Let  justice  be  done, 
though  the  heavens  should  fall.  Branch,  Princ. 
161. 

Fiat  prout  fieri  conauerit,  nil  temere  7iovandum. 
Let  it  be  done  as  formerly,  let  no  innovation  be 
made  rashly.  Jenk.  Cent.  Cas.  116;  Branch, 
Princ. 

Fictio  cedit  veritati.  Fictio  juria  non  est,  tibi 
Veritas.  Fiction  yields  to  truth.  Where  truth  is, 
fiction  of  law  does  not  exist. 

Fictio  est  contra  veritatem,  aed  pro  veritate  habe- 
tur.  Fiction  is  against  the  truth,  but  it  is  to  be 
esteemed  truth. 

Fictio  leg  is  inique  operatur  alieni  damnnm  vel  in- 
Juriam.  Fiction  of  law  is  wrongful  if  it  works  loss 
or  injury  to  any  one.  2  Coke,  35  :  3  id.  36  ;  Gill, 
Md.  223;  Broom,  Max.  3d  Lond.  ed.  122. 

Fictio  legia  ncminem  Isedit.  A  fiction  of  law  in- 
jures no  one.  2  Rolle,  502;  3  Sharswood,  Blackst. 
43;  17  Johns.  N.  Y.  348. 

Fidelitaa.  De  nullo  tenemento,  quod  tenettir  ad 
terminum  fit  homagii;  fit  tamen  inde  fidelitutia  sa- 
crnmentum.  Fealty.  For  no  tenement  which  is 
held  for  a  term  is  there  the  oath  of  homage,  but 
there  is  the  oath  of  fealty.    Coke,  Litt.  67  b. 

Fides  servanda.  Good  faith  must  be  observed. 
1  Mete.  Mass.  551;  3  Barb.  N.  Y.  323,  330 ;  23  id. 
521,  524. 

Fidea  acrvandn  eat;  aimplicitaa  juria  gentium pree- 
valeat.  Good  faith  is  to  be  preserved  ;  the  simpli- 
city of  the  law  of  nations  should  prevail.  Story, 
Bills,  §  15. 

Fieri  non  debet,  aed  factum  rnlet.  It  ought  not 
to  be  done,  but  done  it  is  valid.  5  Coke,  39;  1 
Strange,526;  19Johns.  N.Y.84,92;  12  11,376. 

Filiatin  non  potest  probari.  Filiation  cannot  be 
proved.  Coke,  Litt.  126  a.  But  see  7  &  8  Vict.  c. 
101. 

Filiua  eat  nomen  naturte,  aed  hseres  nomen  juris. 
Son  is  a  name  of  nature,  but  heir  a  name  of  law. 
1  Sid.  193;  1  Powell,  Dev.  311. 

Filiua  in  utero  mntris  est  pars  viscerum  matria.  A 
son  in  the  mother's  womb  is  part  of  the  mother's 
vitals.    7  Coke,  8. 

Finis  finem  lilibus  imponit.  A  fine  puts  an  end 
to  litigation.    Coke,  3d  Inst.  78. 

Finis  rei  affendendua  est.  The  end  of  a  thing  is 
to  be  attended  to.    Coke,  3d  Inst.  51. 

Finis  uniua  diet  est  principium  alteriua.  The  end 
of  one  day  is  the  beginning  of  another.  2  Bulstr. 
305. 

Firmior  et  potent ior  eat  operatio  legia  qnam  diapo- 
titio  hoininia.  The  operation  of  law  is  firmer  and 
mrtre  powerful  than  the  will  of  man.  Coke,  Litt. 
102. 


Flumina  et  porfua  piiblica  aunt,  ideoque  jus  pia- 
candi  tmnibua  vonnuune  eat.  Rivers  and  p(<rtH  are 
publi,;;  therefore  the  right  of  fishing  there  is  com- 
mon to  all.    Dav.  55  ;  Branch,  Princ. 

Faiminm  ob  oninibua  ofiiciia  civilihua  vel  publicia 
rcmotip.  sunt.  Women  arc  excluded  from  all  civil 
and  pu))lic  charges  or  offices.  Dig.  50.  17.  2;  1 
Exch.  645;  6  Mces.  &  W.  Exch.  216. 

Ftpminse  non  aunt  capacea  de  publicia  oj[ftcii$. 
Women  are  not  admissible  to  public  oflices.  Jenk. 
Cent.  Cas.  237.  But  a  woman  may  be  elected  to  the 
office  of  sexton,  Olive  va.  Ingram,  7  Mod.  203;  Str. 
1114,  s.  c,  or  governor  of  a  work-house,  and  act  by 
deputy.  Anon.,  2  Ld.  Raym.  1014,  or  an  overseer. 
2  Term,  395.    See  Women. 

Forma  dat  csae.  Form  gives  being.  Lord  Hen- 
ley, Ch.  2;  Ed.Ch.  99. 

Forma  Icgalie  forma  eaaentialia.  Legal  form  is 
essential  form.  10  Coke,  100  j  9  C.  B.  493 ;  2  Hopk. 
319. 

Forma  non  observata,  infertur  admdlatio  actus. 
When  form  is  not  observed,  a  nullity  of  the  act  is 
inferred.    12  Coke,  7. 

Forstellariua  est  paupernm  depressor,  et  totina  com- 
mnnitatis  et  patriie  publicus  inimicus.  A  forestaller 
is  an  oppressor  of  the  poor,  and  a  public  enemy  to 
the  whole  community  and  the  country.  Coke,  3d 
Inst.  196. 

Fortior  est  cuatodia  legia  qnam  hominis.  The  cus- 
tody of  the  law  is  stronger  than  that  of  man.  2 
Roile,  325. 

Fortior  et  potentior  est  dispositio  legis  qnam  homi- 
nis. The  disposition  of  the  law  is  stronger  and 
more  powerful  than  that  of  man.  Coke,  Litt.  234; 
Broom,  Max.  3d  Lond.  ed.  622;  10  Q.  B.  944;  18 
id.  87  ;  10  C.  B.  661.;  3  Hou.  L.  Cas.  507  :  13  Mees. 
&  W.  Exch.  285,  806:  8  Johns.  N.  Y.  401. 

Fractionem  diet  non  recij)it  lex.  The  law  does  not 
regard  a  fraction  of  a  day.  LofFt,  572.  But  see 
Day. 

Frater  fratri  uterino  non  succedet  in  hsereditate 
paternd.  A  brother  shall  not  succeed  an  uterine 
brother  in  the  paternal  inheritance.  Fort,  de  Laud. 
Leg.  Ang.  hy  Amos,  p.  15;  2  Sharswood,  Blackst. 
Comm.  This  maxim  is  now  superseded  in  Eng- 
land by  3  &  4  Wm.  IV.  c.  106,  s.  9.  Broom, 
Max.  3d  Lond.  ed.  471;  2  Sharswood,  Blackst. 
Comm.  232. 

Fraus  eat  celare  frandem.  It  is  a  fraud  to  con- 
ceal a  fraud.    1  Vern.  270. 

Fraus  est  odiosa  et  non  prsesumenda.  Fraud  is 
odious  and  not  to  be  presumed.    Croke  Car.  550. 

Fraua  et  dolua  nemini  patrocianari  debent.  Fraud 
and  deceit  should  excuse  no  man.    3  Coke,  78. 

Fraua  et  jus  nunquam  cohabitant.  Fraud  and  jus- 
tice never  dwell  together.    Wingate,  Max.  680. 

Frnus  latet  in  generalibus.  Fraud  lies  hid  in 
general  expressions. 

Fraus  meretur  fraudem.  Fraud  deserves  fraud. 
Plowd.  100;  Branch,  Princ.  This  is  very  poor  law. 

Freiqht  is  the  mother  of  wages.  2  Show.  283  ;  3 
Kent,  Comm.  196;  1  Hagg!  227;  Smith,  Merc. 
Law,  548;  Cauders,  Mar.  Law,  339-343,  391,  398; 
Hilt.  N.  Y.  1,  17;  5  Johns.  N.  Y.  154;  11  id.  279; 
12  id.  324. 

Frequentia  actus  multum  operatur.  The  frequency 
of  an  act  effects  much.  4  Coke,  78 ;  Wingate,  Max. 
192. 

Fructus  augeat  hsereditatem.  Fruits  enhance  an 
inheritance. 

Fructus  j-)endentea  para  fundi  videntur.  Hanging 
fruits  make  part  of  the  land.  Dig.  6.  1.  44;  2 
Bouvier,  Inst.  n.  1578.    See  Larceny. 

Fructus  perceptoa  villse  non  esse  constat.  Gathered 
fruits  do  not  make  a  part  of  the  farm.  Dig.  19.  1. 
17.  1 :  2  Bouvier,  Inst.  n.  1578. 

Frumenta  quee  sata  sunt  solo  cedere  intelliguntur. 
Grain  which  is  sown  is  understood  to  form  a  part 
of  the  soil.    Inst.  2.  1.  32. 


MAXIM 


128 


MAXIM 


Fnistrd  agit  qui  judicium  prosequi  neqin't  cum  ef- 
fectu  He  in  vais  sues,  who  cannot  prosecute  his 
iudgment  with  effect.    Fleta,  lib.  6,  c.  37,  g  9. 

friistid  est  potentia  quse  nnnquam  renit  in  acliim. 
The  power  which  never  comes  to  be  exercised  is 
vain.    2  Coke,  61. 

/'rxistrd  expcctattir  eventns  cufus  effectus  nullns  fte~ 
quitur.  An  event  is  vainly  expected  from  which  no 
effect  follows. 

Frustfd  feruntur  leges  nisi  suhditis  et  ohedientih\i8. 
Laws  are  made  to  no  purpose  unless  for  those  who 
are  subject  and  obedient.    7  Coke,  1.3. 

Fnistrd  Jit  per  plnra,  quod  Jieri  potest  per  pauci- 
ora.  That  is  done  vainly  by  many  things,  which 
might  be  accomplished  by  fewer.  Jenk.  Cent.  Cas. 
68;  Wingate,  Max.  177. 

Fnistrd  fegis  nnxilinm  qiiserit  qui  in  legem  com- 
mittit.  Vainly  does  he  who  offends  against  the  law 
seek  the  help  of  the  law.  2  Hale,  PI.  Cr.  386; 
Broom,  Max.  3d  Lond.  ed.  255. 

Fnistrd  petis  quod  statim  alteri  reddere  cogeris. 
Vainly  you  ask  that  which  you  will  immediately 
be  compelled  to  restore  to  another.  Jenk.  Cent. 
Cas.  256  ;  Broom,  Max.  3d  Lond.  ed.  310. 

Fnistrd  probntur  quod  ]>robatum  non  relevat.  It 
is  vain  to  prove  that  which  if  proved  would  not  aid 
the  matter  in  question.  Broom,  Max.  3d  Lond.  ed. 
255. 

Furiosi  nulla  voluntas  est.  A  madman  has  no 
will.  Dig.  50.  17.  5;  id.  1.  18. 13.  1 ;  Broom,  Max. 
3d  Lond.  ed.  282. 

Furiosus  ahsentis  loco  est.  A  madman  is  consi- 
dered as  absent.    Dig.  50.  17.  24.  1. 

Furiosus  nullum,  negotiuin  contrahere  (gerere) potest 
(quia  non  intelligit  quod  agit).  A  lunatic  cannot 
make  a  contract.  Dig.  50.  17.  5;  1  Story,  Contr. 
4th  ed.  p.  76. 

Furiosus  solo  furore  punitur.  A  madman  is  pun- 
ished by  his  madness  alone.  Coke,  Litt.  247 ; 
Broom,  Max.  3d  Lond.  ed.  14  4  Sharswood, 
Blackst.  Comm.  24,  25. 

Furiosus  stipulari  non  potest  nee  aliqnod  negotixm 
agere,  qui  non  intelligit  quid  agit.  An  insane  per- 
son who  knows  not  what  he  does  cannot  make  a 
bargain,  nor  transact  any  business.    4  Coke,  126. 

Furor  contrahi  matrimoniuni  von  sinit,  quia  con- 
sensu opus  est.  Insanity  prevents  marriage  from 
being  contracted,  because  consent  is  needed.  1 
Ves.  &  B.  Ch.  140;  1  Blackstone,  Comm.  439;  4 
Johns.  Ch.  N.  Y.  34.3,  345. 

Furtutn  non  est  ubi  initium  habct  detentionis  per 
dominum  rei.  It  is  not  theft  where  the  commence- 
ment of  the  detention  arises  through  the  owner  of 
the  thing.    Coke,  3d  Inst.  107. 

Generate  dictum  generaliter  est  interpretandum. 
A  general  expression  is  to  be  construed  generally. 
8  Coke,  116;  1  Ed.  Ch.  96. 

Generate  nihil  certum  impllcat.  A  general  ex- 
pression implies  nothing  certain.  2  Coke,  34} 
Wingate,  Max.  164. 

Generate  tantum  valet  in  generatibu»,  quantum 
singulare  in  singutii.  What  is  general  prevails,  or 
is  worth  as  much,  among  things  general,  as  what  is 
particular  among  things  particular.    11  Coke,  59. 

Gcnernlla  prifcedunt,  speci'itia  sequuntur.  Things 
general  precede,  things  special  follow.  Reg.  Brev.  : 
Branch,  Princ. 

Generntia  specintibus  non  derogant.  Things  gene- 
ral do  not  derogate  from  things  special.  Jenk. 
Cent.  Cas.  120. 

Generatin  sunt  prspponenda  aingularibus.  Gene- 
ral things  are  to  be  put  before  particular  things. 

Genernlift  verba  sunt  generaliter  intettigenda. 
General  words  are  undcrsto 'd  in  a  general  sense. 
Coke,  3(1  Inst,  76;   Broom,  Max.  3d  Lond.  ed.  577. 

Generalittus  speciatia  derogant.  Things  special 
take  from  things  general.    Haikers,  Max.  51. 

Oeneralis  clausula  non  porrigitur  ad  ea  quie  antea 


I  special  iter  sunt  compi'ehensa.  A  general  clause  doe* 
nut  extend  to  those  things  which  are  previously 
provided  for  specially.    8  Coke,  154, 

Generalis  reguta  generaliter  est  intettigenda.  A 
general  rule  is  to  be  understood  generally.  6  Coke» 
65. 

Gtossa  viperina  est  quse  corrodit  viscera  fextHs^ 
That  is  a  viperine  gloss  which  eats  out  the  vitals 
of  the  text.    10  Coke,  70 ;  2  Bulstr.  79. 

Grawmatica  falsa  non  vitiat  chartam.  False 
grammar  does  not  vitiate  a  deed.    9  Coke,  48. 

Gravius  est  divinam  quam  teniporatem  Isedere  ma- 
jestatevi.  It  is  more  serious  to  hurt  divine  than 
temporal  majesty.    11  Coke,  29.  ^ 

Habemus  optimum  testem  conftentem  renm.  We 
have  the  best  witness,  a  confessing  defendant. 
Foster,  Crim.  Law,  243.  See 2  Hagg.  315;  1  Phillips, 
Ev.  397. 

Hseredem  Deus  facit,  non  homo.  God,  and  not 
man,  makes  the  heir.    Bracton,  62  b. 

Hseredem  est  nomen  collectivum.  Heir  is  a  col- 
lective name. 

Hmredipetee  suo  propinquo  vet  exfraneo  pericvtoso 
sane  custodi  nullus  committatnr.  To  the  next  heir, 
whether  a  relation  or  a  stranger,  certainly  a  dan- 
gerous guardian,  let  no  one  be  committed.  C<>ke, 
Litt.  88  b. 

Heereditas  est  successio  in  nniversvm  jus  quod  dc" 
functus  kahuerat.  Inheritance  is  the  succession 
to  every  right  which  was  possessed  by  the  late 
possessor.    Coke,  Litt.  237. 

Heereditas  nihil  aliud  eat,  qudm  successio  in  uni' 
versum  jus,  quod  defunctus  habnerit.    The  right  of 
inheritance  is  nothing  else  than  the  faculty  of  sue-  \ 
ceeding  to  all  the  rights  of  the  deceased.    Dig.  50.  ' 
17.  62. 

Hseredifas  nunquam  ascendit^.     The  inheritance  ' 
never  ascends.    Glanville,  1.  7,  c.  1 ;  Broom,  Max*  • 
2d  Lond.  ed.  469;  2  Sharswood,  Blackst.  Comm.  ' 
212,  n.:  3  Greenleaf,  Cruise,  Real  Prop.  331;  1 
Stephen.  Comm.  378.    Abrogated  by  stat.  3  4  4 
Will.  IV.  c.  106,  g  6. 

Hvereduni  appetlatione  veniunt  hseredes  hmredum  ' 
in  infinitum.  By  the  title  of  heirs,  come  the  heirs  I 
ot  heirs  to  infinity.    Coke,  Litt.  9.  , 

H seres  est  alter  ipse,  et  jllius  est  pars  patris.  An  '• 
heir  is  another  self,  and  a  son  is  a  part  of  the  | 
father.  { 

Hseres  est  ant  jure  proprietatis  aut  jure  represen-  ■ 
tationis.  An  heir  is  either  by  right  of  property  or  , 
right  of  representation.    3  Coke,  40.  j 

Hseres  est  eadeni  persona  cum  aniecessore.  The 
heir  is  the  same  person  with  the  ancestor.  Coke> 
Litt.  22. 

Hseres  est  nomen  juris,  fitius  est  nomen  natursB* 
Heir  is  a  term  of  law ;  son,  one  of  nature. 

Hseres  est  pars  antecessoris.  The  heir  is  apart 
of  the  ancestor.  Coke,  Litt.  22  6  y  3  Hill,  N.  Y. 
165,  167. 

j     Hseres  hseredis  met  est  mens  hseres.    The  heir  of 
my  heir  is  my  heir.    Wharton,  Law  Diet. 

Hirres  legit imus  est  qvcm  nuptise  detnonatrant.  He 
is  the  lawful  heir  whom  the  marriage  demonstrates. 
Mirror  of  Just.  70;  Fleta,  1.  6,  c.  1  ;  Dig.  2.  4.  6} 
Coke,  Litt.  7  b  ;  Broom,  Max.  3d  Lond.  ed.  457. 
As  to  the  application  of  the  principle  when  the 
!  marriage  is  subsequent  to  the  birth  of  the  childy 
'  see  2  Clark  &  V.  Hou.  L.  571 ;  6  Bingh.  N.  c.  385; 

5  Wheat.  22R,  262,  n. 
I      Hseres  minor  uno  et  vigenfi  annia  non  respondehit, 
nisi  in  casu  dotis.    An  heir  minor,  under  twenty- 
I  one  years  of  age,  is  not  answerable^  except  in  the 
matter  of  dower.    F.  Moore,  348. 

He  u-ho  has  committed  iniquity  shall  not  have  j 
equitf/.    Francis,  2d  Max. 

He  u:ho  will  have  equity  done  to  him  must  do 
equity  to  the  same  persrm.    4  Bouvier,  Inst.  n.  3723. 
Hoc  aervabitur  quod  initio  convenit.    This  shall 


MAXIM 


129 


MAXIM 


be  preserved  which  is  useful  in  the  beginning. 
Dig  50.  17.  2',i;  Bracton,  73  b. 

Home  lie  sera  puuy  par  mter  ties  hriefes  en  court 
le  roy,  soil  il  a  droit  ou  a  tort.  A  man  .shall  not 
be  punished  for  suing  out  writs  in  the  king's  court, 
whether  he  be  right  or  wrong.    Coke,  2(1  Inst.  228. 

Jioininum  causa  jus  constitutum  est.  Law  is  esta- 
blished for  the  benefit  of  man. 

Homo  potest  esse  habih's  et  inhahilis  direr  sis  tem- 
pnrilnia.  A  man  may  be  capable  and  incapable  at 
divers  times.    5  Coke,  i)8. 

Homo  vocabulum  est  naturm  ;  persona  juris  civilis. 
Man  {homo)  is  a  term  of  nature;  person  {persona), 
of  the  civil  law.    Calvinus,  Lex. 

Hoi  a  non  est  viuUum  de  substantid  netjotti,  licet  in 
appcflo  de  cd  aliqnando  fiat  nienlio.  The  hour  is 
not  of  much  consequence  as  to  the  substance  of 
business,  although  in  appeal  it  is  sometimes  men- 
tioned.   1  Bulstr.  82. 

Hostes  sunt  qui  nobis  vel  quibus  nos  bellum  decer- 
nimns ;  cseteri  traditores  vel  prmlones  sunt.  Ene- 
mies are  those  upon  whom  we  declare  war,  or  who 
declare  it  against  us ;  all  others  are  traitors  or 
pirates.  7  Coke,  24;  Dig.  50.  16.  118;  1  Shars- 
wood,  Blackst.  Comm.  257. 

Id  certnm  est  quod  certvm  reddt  potest.  That  is 
certain  which  may  be  rendered  certain.  1  Bouvier, 
Inst.  n.  929;  2  Blackstone,  Comm.  143;  4  Kent, 
Comm.  462;  4  Pick.  Mass.  179;  Broom,  Max.  3d 
Lond.  ed.  556. 

Id  per/ectum  est  quod  ex  omnibus  snis  partibna 
constat.  That  is  perfect  which  is  complete  in  all 
its  parts.    9  Coke,  9. 

Id  2)(>s>'Vmvs  quod  de  jure  possumus.  We  are  able 
to  do  that  which  we  can  do  lawfully.    Lane,  116. 

Id  quod  est  magis  remotum,  non  trahit  ad  se  quod 
eetmayis  junctum,  sed  e  contrario  in  omni  casu.  That 
which  is  more  remote  does  not  draw  to  itself  that 
which  is  nearer,  but  the  contrary  in  every  case. 
Coke,  Litt.  164. 

Id  quod  nostrum  est,  sine  facto  nostro,  ad  alium 
transferri  non  potest.  What  belongs  to  us  cannot 
be  transferred  to  another  without  our  consent.  Dig. 
60.  17.  11.  But  this  must  be  understood  with  this 
qualification,  that  the  government  may  take  pro- 
perty fur  public  use,  paying  the  owner  its  value. 
The  title  to  property  may  also  be  acquired,  without 
the  consent  of  the  owner,  by  a  judgment  of  a  com- 
petent tribunal. 

Idem  agens  et  2^(^tien8  esse  non  potest.  To  be  at 
once  the  person  acting  and  the  person  acted  upon 
is  impossible.    Jenk.  Cent.  Cas.  40. 

Idem  est  facere,  et  nolle  prohibere  c^tm  possia.  It 
is  the  same  thing  to  do  a  thing  as  not  to  prohibit  it 
when  in  your  power.    3  Coke,  Inst.  158. 

Ide^n  est  nihil  dicere  et  insufficienter  dicere.  It  is 
the  same  thing  to  say  nothing  and  not  to  say 
sufficiently.    Coke,  2d  Inst.  178. 

Idem  est  non  probari  et  non  esse ;  non  deficit  jus, 
»ed  probatio.  What  does  not  appear,  and  what  is 
not,  are  the  same ;  it  is  not  the  defect  of  the  law, 
but  the  want  of  proof. 

Idem  est  scire  aut  scire  debet  aui  potuisse.  To  be 
able  to  know  is  the  same  as  to  knoAv.  "  h  s  maxim 
is  applied  to  the  duty  of  5vcry  one  to  know  the 
law. 

Idem  non  esse  et  mm  apparct.  It  is  the  same 
thing  not  to  exist  and  not  to  appear.  Jenk.  Cent. 
Cas.  207. 

Idem  semper  antecedenti  proximo  refertur.  Idem 
always  relates  to  the  next  antecedent.  Coke,  Litt. 
3S5. 

Identitaa  vera  colligitvr  ex  muhitndine  signorum. 
True  identity  is  collected  from  a  number  of  signs. 
Bacon,  Reg.  29. 

Ignoraiitia  eorum  qum  qtiis  scire  fenetnr  non  ex- 
cusai.  Ignorance  of  those  things  which  every  one 
is  bound  to  know  excuses  not.  Hale,  PI.  Cr.  42. 
Vol.  II.— 9 


S(e  Tindal,  C.  J.,  10  Clark  &  F.  IIou.  L.  210; 
Brof  in,  Max.  3d  Lond.  ed,  245 ;  4  Sharswood, 
Blackst.  Comm.  27. 

Ignorantia  excusatur,  non  juris  sed  faeti.  Igno- 
rance of  fact  may  excuse,  but  not  ignorance  of  law. 
See  Ignokanck. 

Ignorantia  facti  excnsat,  ignorantia  juris  non  ex- 
cvsat.  If^norance  of  fac^s  excuses,  ignorance  of 
law  does  not  excuse.  1  Col(e,  177;  4  Bouvier,  Inst, 
n.  3828;  Broom,  Max.  3d  Lond.  ed.  231;  1  Fon- 
blanque,  Eq.  5th  ed.  119,  n.    Bee  Ignorance. 

Jgnorantia  judicis  est  calamitas  innoeentis.  The 
ignorance  of  the  judge  is  the  misfortune  of  the  inno- 
cent.   Coke,  2d  Inst.  591. 

Jgnorautia  juris  non  excnsat.  Ignorance  of  the 
law  is  no  excuse.  8  Wend.  N.  Y.  267,  284;  18  id. 
586,  588 ;  6  Paige,  Ch.  N.  Y.  189,  196 ;  1  Edw.  Ch. 
N.  Y.  467,  472. 

Ignoraiitia  juris  quod  quisqve  scire  tenetur,  nemi- 
nem  excusat.  Ignorance  of  law  which  every  one  is 
bound  to  know,  excuses  no  ( iie.  2  Coke,  3  b ;  1 
Plowd.  343 ;  per  Ld.  Campbell,  9  Clark  k  F.  324 ; 
Broom,  Max.  3d  Lond.  ed.  232;  7  Carr.  &  P.  456; 
2  Kent,  Comm.  491. 

Ignorantia  legis  neminem  excusat.  Ignorance  of 
law  excuses  no  one.  See  Ignorance;  4  Bouvier, 
Inst.  n.  3828;  1  Story,  Eq.  Jur.  g  111. 

Ignoratis  terminis,  ignoratur  et  ars.  Terms  being 
unknown,  the  art  also  is  unknown.    Coke,  Litt.  2. 

Ignoscitur  ei  qui  sanguinem  suum  qualiter  redemp- 
turn  voluit.  The  law  holds  him  excused  who  chose 
that  his  blood  should  be  redeemed  on  any  terms. 
Dig.  48,  21.  1 ;  1  Sharswood,  Blackst,  Comm. 
131. 

Illud  quod  alias  licitum  non  est,  necessitas  facit 
licitum,  et  necessitas  inducit  priiilegium  quod  jure 
privatur.  That  which  is  not  otherwise  lawful 
necessity  makes  lawful,  and  necessity  makes  a 
privilege  which  supersedes  the  law.    10  Coke,  61. 

Illud  quod  alteri  unitur  extinguitur,  neque  am^ 
pliiis  per  se  vacare  licet.  That  which  is  united  to 
another  is  extinguished,  nor  can  it  be  any  more 
independent,    Godolph,  169. 

Immobilia  situm  sequuntur.  Immovables  follo\r 
(the  law  of)  their  locality.    2  Kent,  Comm.  67, 

Imperitia  culpse  senumeratur.  Ignorance,  or  want 
of  skill,  is  considered  a  fault,  i.e.  a  negligence,  for 
which  one  who  professes  skill  is  responsible.  Dig. 
50.  17.  132;  1  Bouvier,  Inst.  n.  1004;  2  Kent, 
Coram.  688;  4  Ark.  523. 

Imperitia  est  maxima  mechaneorum  poena.  Lack 
of  skill  is  the  greatest  punishment  of  artisans.  11 
Coke,  64  a. 

Impersonalitas  non  concludit  nec  ligat.  Imper- 
sonality neither  concludes  nor  binds.  Coke,  Litt. 
352. 

Impius  et  crudelis  judicandns  est  qui  h'bertati  non 
favet.  He  is  to  be  judged  impious  and  cruel  who 
does  not  favor  liberty.    Coke,  Litt.  124, 

Impossibilinm  nulla  obligatio  est.  There  is  no 
obligation  to  perform  impossible  things.  Dig.  60. 
18.185;  1  Pothier,  Obi.  pt.  1,  c.  ],s.4,|  3  ;  2  Story, 
Eq.  Jur.  6th  ed.  763;  Broom„  Max.  3d  Lond  ed. 
228. 

Impotentia  excusat  legem.  Impossibility  is  an 
excuse  in  the  law.  Coke,  Litt.  29 ;  Broom,  Max. 
3d  Lond.  ed.  223. 

Impunitas  continuum  affectum  tribuit  delinquenti. 
Impunity  offers  a  continual  bait  to  a  delinquent. 
4  Coke,  46. 

Impunitas  semper  ad  deteriora  invitat.  Impunity 
always  invites  to  greater  crimes.    6  Coke,  109. 

In  sedificiis  lapis  male  positus  non  est  removendua. 
In  buildings  a  stone  badly  placed  is  not  to  be  re- 
moved.   11  Coke,  69. 

In  sequali  jure  mclior  est  conditio  possidentia. 
When  the  parties  have  equal  rights,  the  condition 
of  the  possessor  is  the  better,  Mitford,  Eq.  Plead. 
215;  Jeremy,  Eq,  Jur.  286;  1  Maddock,  Chano. 


MAXIM 


130 


MAXIM 


Pract.  170;  Dig.  50.  17.  128  j  Broom,  Max.  3d 
Lond.  ed.  634;  Plowd.  296. 

In  a/ternativis  electio  eat  debitoris.  In  alterna- 
tives, the  debtor  has  the  election. 

Jn  ambiyud  voce  leyis  ea  potius  acclpienda  est 
tignijicatio,  qtiee  vitio  caret;  preesertivi  cum  etiam 
voluntas  leyis  ex  hoc  colliyi  possit.  When  obscuri- 
ties, ambiguities,  or  faults  of  expression  render  the 
meaning  of  an  enactment  doubtful,  that  interpreta- 
tion shall  be  preferred  which  is  most  consonant  to 
equity,  especially  where  it  is  in  conformity  with  the 
general  design  of  the  legislature.  Dig.  1.  3.  19; 
Broom,  Max.  3d  Lond.  ed.  513;  Bacon,  Max.  Reg. 
3;  Coke,  2d  Inst.  173. 

In  amhiyuis  orationibua  maxime  sententia  spec- 
tanda  est  ejus  qui  eas  prolidisset.  When  there  are 
ambiguous  expressions,  the  intention  of  him  who 
uses  them  is  especially  to  be  regarded.  This 
maxim  of  Roman  law  was  confined  to  wills.  Dig. 
50.  17.  96;  Broom,  Max.  3d  Lond.  ed.  506. 

In  atrocioribus  del'tctis  ptuuitur  affectus  licet  non 
aequatur  effectus.  In  more  atrocious  crimes,  the 
intent  is  punished  though  the  effect  does  not  fol- 
low.   2  Rolle,  89. 

lu  casn  extiemas  necessitatis  omnia  sunt  com- 
tnunia.  In  cases  of  extreme  necessity,  every  thing 
is  in  common.    Hale,  PI.  Cr.  54;  Broom,  Max.  1. 

Jn  commodato  hsec  pactio,  ne  dolus  prsestetur,  rata 
non  est.  If  in  a  contract  for  a  loan  there  is  inserted 
a  clause  that  fraud  should  not  be  accounted  of, 
such  clause  is  void.    Dig.  13.  7.  17. 

In  conjunctivis  oportet  utramque  partem  esse  veram. 
In  conjunctives  each  part  must  be  true.  Wingate, 
Max.  13. 

Jn  consimili  casu  consimile  debet  esse  remedium. 
In  similar  cases,  the  remedy  should  be  similar. 
Hardr.  65. 

In  consuetudinibus  non  diuturnitas  temjioris  sed 
eoliditas  rutlonis  est  consideranda.  In  customs, 
not  the  length  of  time  but  the  strength  of  the  rea- 
son should  be  considered.    Coke,  Litt.  141. 

In  contractibus,  beniyna  ;  in  testamentis,  benignior; 
in  restitutionibus,  benignissima  interpretado  facieuda 
est.  In  contracts,  the  interpretation  or  construc- 
tion should  be  liberal;  in  wills,  more  liberal;  in 
restitutions,  most  liberal.    Coke,  Litt.  112  a. 

In  contractibus  tacite  inswit  qnse  sunt  moris  et  con- 
auetudinis.  In  contracts,  those  things  which  are 
of  custom  and  usage  are  tacitly  implied.  Broom, 
Max.  3d  Lond.  ed.  759;  3  Bingh.  n.  c.  814,  818 ; 
Story,  Bills,  ^  143 ;  3  Kent,  Comm.  260. 

In  co)itrahenda  venditione,  amblguum  pactum  con- 
tra venditoreni  inteipretandum  est.  In  negotiating 
a  sale,  an  ambiguous  agreement  is  to  be  interpreted 
against  the  seller.    Dig.  50.  17.  172;  18.  1.  21. 

In  conventionibus  contrahentium  voluntatem  potius 
quam  verba  spectari  placuit.  In  agreements,  the 
rule  is  to  regard  the  intention  of  the  contracting 
parties  rather  than  their  words.  Dig.  50.  16.  219; 
2  Kent,  Comm.  555;  Broom,  Max.  3d  Lond.  ed. 
491;  17  Johns.  N.  Y.  150. 

In  criniinalibus,  probationes  debent  esse  luce  cla- 
riores.  In  criminal  cases,  the  proofs  ought  to  be 
clearer  than  the  light.    Coke,  3d.  Inst.  210. 

In  criminalibus  sujjicit  yoierah's  malitia  inten- 
tionis  cum  facto  paris  gradCis.  In  criminal  cases,  a 
general  malice  of  intention  is  sufficient,  with  an  act 
of  equal  or  correspondirig  degree.  Baeon,  Max. 
Reg.  15;  Broom,  Max.  3d  Lond.  ed.  291. 

In  critniiialibus  voluntas  rep)ut(ibit}ir  pro  facto. 
In  criminal  acts,  (he  will  will  be  taken  for  the  deed. 
C(;ke,  3d  Inst.  106. 

In  disjunctivis  suffrcit  alteram  partem  esse  veram. 
In  disjunctives,  it  is  sufficient  if  either  part  be 
true.  Wingate,  Max.  13;  Coke,  Litt.  225  a;  10 
Coke,  50;  Dig.  50.  17.  110. 

Jn  dubiis  benigniora  prfrferenda  sunt.  In  doubt- 
ful matters,  the  more  favorable  are  to  be  preferred. 
Dig.  50.  17.  66 ;  2  Kent,  Comm.  557. 


In  dubiis  magis  dignum  eat  accipiendum.  In 
doubtful  cases,  the  more  worthy  is  to  be  taken. 
Branch,  Princ. 

In  dubiis  non  praesumitur  pro  testamento.  In 
doubtful  cases,  there  is  no  presumption  in  favor  of 
the  will.    Croke  Car.  51. 

Jn  diibio  hsec  leyis  constructio  quam  verba  osten- 
dunt.  In  a  doubtful  case,  that  is  the  construction 
of  the  law  which  the  words  indicate. 

Jn  dub io  pars  meiior  est  sequenda.  In  doubt,  the 
gentler  course  is  to  be  followed. 

In  dubio  sequendum  quod  tutius  est.  In  doubt, 
the  safer  course  is  to  be  adopted. 

Jn  eo  quod  plus  sit  semper  inest  et  minus.  The 
less  is  always  included  in  the  greater.  Dig.  50.  17. 
110. 

/»  expositione  instrumentorum,  mala  grammatica, 
quod  jieri  potest,  vitanda  est.  In  the  construction 
of  instruments,  bad  grammar  is  to  be  avoided  as 
much  as  possible.  6  Coke,  39 ;  2  Parsons,  Contr. 
26. 

In  facto  quod  se  habet  ad  bonum  et  malum  magis 
de  bono  quam  de  mala  lex  intendit.  In  a  deed 
which  may  be  considered  good  or  bad,  the  law 
looks  more  to  the  good  than  to  the  bad.  Coke, 
Litt.  78. 

In  favorabilibus  magis  attenditur  quod  prodest 
quam  quod  nocet.  In  things  favored,  what  does 
good  is  more  regarded  than  what  does  harm.  Ba- 
con, Max.  Reg.  12. 

Jn  favoreni  vitse,  libertatis,  et  innocentise  omnia 
2)rsrstimuntur.  In  favor  of  life,  liberty,  and  inno- 
cence, all  things  are  to  be  presumed.    Lofit,  125. 

In  fctione  juris  semper  sequitas  existit.  A  legal 
fiction  is  alwaj's  consistent  with  equity.  11  Coke, 
51 ;  Broom,  Max.  3d  Lond.  ed.  120,  123;  17  Johns. 
N.  Y.  348;  3  Sharswood,  Blackst.  Comm.  43-283. 

In  generalibus  versalur  error.  Error  dwells  in 
general  expressions.    3  Sumn.  C.  C.  290. 

In  genere  quicunque  uliquid  dicit,  sive  actor  sire 
reus,  necesse  est  ut  j^'obat.  In  general,  whoever 
says  anything,  whether  plaintiff  or  defendant,  must 
prove  it.    Best,  Ev.  294,  §  252. 

hi  hseredes  non  solent  transire  actiones  qnse  poenales 
ex  malcficio  stint.  Penal  actions  arising  from  any 
thing  of  a  criminal  nature  do  not  pass  to  heirs. 
Coke,  2d  Inst.  442. 

In  hiis  enim  quse  sunt  favorahilia  animse,  quamvit 
swit  daninosa  rebus,  fat  aliquando  extenlio  staiuti. 
In  things  that  are  favorable  to  the  spirit,  though 
injurious  to  property,  an  extension  of  the  statute 
should  be  sometimes  made.    10  Coke,  101. 

In  his  quse  de  jure  conimuni  omnibus  conceduntur, 
consuetudo  alicujus  jjatrise  vel  loci  non  ext  allcganda. 
In  those  things  which  \>y  common  right  are  con- 
ceded to  all,  the  custom  of  a  particular  country  or 
place  is  not  to  be  alleged.  ■  11  Coke,  85. 

In  judiciis  minori  setoti  succurritur.  In  judicial 
proceedings,  infancy  is  aided  or  favored.  Jenk. 
Cent.  Cas.  46. 

Injudicio  non  creditur  nisi  juratis.  In  law,  none 
is  credited  unless  he  is  sworn.  All  the  facts  must, 
when  established  by  witnesses,  be  under  oath  or 
affirmation.    Croke  Car.  64. 

In  jure  non  rcmota  causa,  sed  proximo,  spectofur. 
In  law,  the  proximate  and  not  the  remote  cause  is 
to  be  looked  to.  Bacon,  Max.  Reg.  1  ;  Broom, 
Max.  3d  Lond.  ed.  202.    See  2  Parsons,  Contr.  456. 

In  mnjore  summa.  continetur  minor.  In  the  greater 
sum  is  contained  the  less.    5  Coke,  115. 

In  malejiciis  voluntas  spevtatur  non  exitus.  In 
offences,  the  intention  is  regarded,  not  the  event. 
Dig.  48.  8.  14;  Bacon,  Max.  Reg.  7;  Broom,  Max. 
3d  Lond.  ed.  292. 

In  malefcio  ratihabitio  mandato  comparetur.  In 
a  tort,  ratification  is  equivalent  to  a  command.  Dig. 
50.  17.  152.  2. 

Iti  ma.rimd  pntcnfid  minima  licentia.  In  the 
greatest  power  there  is  the  least  liberty.    Hob.  159. 


MAXLM 


131 


MAXIM 


In  mercilnis  illicitia  non  ait  commerchim.  No 
coinmcrcc  should  be  in  illicit  goods.  3  Kent, 
Comm.  2G2,  n. 

In  ohacurn  volnntate  manuniittenfis  favendvm  est 
lihertati.  Where  the  expression  of  the  will  of  one 
who  seeks  to  manumit  a  slave  is  ambiguous,  liberty 
is  to  be  favored.    Dig.  50.  17.  179. 

In  uhncuris  itispici  aolere  quud  veriiimilins  e«t, 
ant.  quod  plenimqne  fieri  aolet.  Where  there  is  ob- 
scurity, we  usually  regard  what  is  probable  and 
what  is  generally  done.    Dig.  50.  17.  114. 

In  o(i«curi»  qtiod  mininnnn  ent  nequintttr.  In  ob- 
scure cases,  we  follow  that  which  is  least  so.  Dig. 

50. 17.  y. 

In  odium  spoliatoris  omnia  prseaumuntnr.  All 
things  are  presumed  against  a  wrong-doer.  1 
Yern.  Ch.  19;  IP.  Will.  T.n  ;  1  Chanc.  Cas.  292. 

In  omni  actione  ubi  diise  concurrent  dintrictiones, 
videlicit  in  rem  et  in  personam,  ilia  districtio  tenenda 
est  quse  mar/is  timetur  et  mar/is  liijat.  In  every  ac- 
tion where  two  distresses  concur,  as  those  in  rem  and 
in  personam,  that  is  to  be  chosen  which  is  most 
dreaded,  and  which  binds  most  firmly.  Bracton, 
372;  Fleta,  1.  6,  c.  14,  ^  28. 

In  omni  re  nascitur  res  quse  ipsam  rem  exterminat. 
In  every  thing,  the  thing  is  born  which  destroys 
the  thing  itself.    Coke,  2d  Inst.  15. 

In  omnibus  contractibus,  sive  uom iuatis  sive  inno- 
minatis,  permutatio  eontiuetur.  In  every  contract, 
whether  nominate  or  innominate,  there  is  implied 
an  exchange,  i.e.  a  consideration. 

In  omnibus  obliyationibus,  in  quibtis  dies  non 
ponitur,  prseaenti  die  debetur.  In  all  obligations, 
when  no  time  is  fixed  for  the  payment,  the  thing  is 
due  immediately.    Dig.  50.  17.  14. 

In  omnibus  poenalibus  judicils,  et  setati  et  inipru- 
dentife  succurritur.  In  all  trials  for  penal  offences, 
allowance  is  made  for  youth  and  lack  of  discretion. 
Dig.  60.  17.  108  ;  Broom,  Max.  3d  Bond.  ed.  282. 

In  omnibus  quidem  maxime  tamen  in  Jure,  spquifas 
spectanda  sit.  In  all  affairs  indeed,  but  principally 
in  those  which  concern  the  administration  of  justice, 
equity  should  be  regarded.    Dig.  50.  17.  90. 

In  pari  causa  jwssessor  potior  haberi  debet.  When 
two  parties  have  equal  rights,  the  advantage  is 
always  in  favor  of  the  post<essor.    Dig.  50.  17.  128. 

In  pari  delicto  melior  est  conditio  j^ossidentis. 
When  the  parties  are  equally  in  the  wrong,  the 
condition  of  the  possessor  is  better.  11  Wheat. 
258;  3  Cranch,  244;  Cowp.  341;  Broom,  Max. 
325 ;  4  Bouvier,  Inst.  n.  37^:4. 

Jn  pari  delicto  potior  est  conditio  de/endentis  (et 
possidentis).  Where  both  parties  are  equally  in 
fault,  the  condition  of  the  defendant  is  i>rcfcrable. 
11  Mass.  376;  Broom,  Max.  3d  Bond.  ed.  265;  1 
Story,  Contr.  4th  ed.  591,  592. 

In  personam  actio  est,  qua  cum  eo  agimus  qui  ob- 
ligatus  est  nobis  ad  faciendum  aliquid  vel  dandum. 
The  action  in  personam  is  that  by  which  we  sue 
him  who  is  under  obligation  to  us  to  do  something 
or  give  something.    Dig.  44.  7.  25;  Bracton,  101  b. 

In  pmnalibus  caiisis  benignius  iiiterpi  eiandttm  est. 
In  penal  cases,  the  more  favorable  interpretation  is 
to  be  made.  Dig.  50.  17.  155.  2;  Plowd.  86  b;  2 
Hale,  PI.  Cr.  365. 

In  prseparatoriis  ad  judicium  faiietur  actori.  In 
ihings  preparatory  before  trial,  the  plaintiff  is 
favored.    Coke,  2d  Inst.  57. 

In  prtenentia  mojoris  pofestatis,  minor  potestna 
cessat.  In  the  presence  o^  the  superior  power,  the 
minor  power  ceases.  Jenk.  Cent.  Cas.  214;  Cas. 
temp.  liardw.  28;  13  How.  142;  13  Q.  B.  740. 

Jn  pretio  emptionia  et  venditionis  naturaliter  licet 
contr ahenti bus  se  circumvenire.  In  the  price  of  buy- 
ing and  selling,  it  is  naturally  allowed  to  the  con- 
tracting parties  to  overreach  each  other.  1  Story, 
Contr.  4th  ed.  606. 

In  propria  causa  nemo  judex.  No  one  can  be 
judge  in  his  own  cause.    12  Coke,  13. 


In  quo  quia  dellnquit,  in  eo  de  jure  est  punienduj. 
In  whatever  thing  one  offends,  in  that  he  is  right- 
fully to  Oc  punished.    Coke,  Litt.  233  />. 

Jn  re  v.oiiimuni  neniiiiem  dominorum  jure  faeere 
quicquam,  invito  ultero,  posse.  One  co-proj  rietor 
can  exercise  no  authority  over  the  d  mni(jn  pro- 
perty against  the  will  of  the  other.    Di>!.  10.  3.  28. 

In  re  dubia  benigniorcm  interjjretafionem  heqirl, 
lion  minus  justiua  est,  quum  tulins.  In  a  doubtful 
case,  to  follow  the  milder  interpretation  is  not  less 
the  more  just  than  it  is  the  safer  course.  Dig.  50. 
17.  192.  2;  28.  4.  3. 

In  re  dubia,  magis  infieiato  quam  ajffirmntio  intcl- 
ligenda.  In  a  doubtful  matter,  the  negative  is  to 
be  understood  rather  than  the  affirmative.  Godb. 
37. 

In  re  lupanari,  testes  Ivpannres  admiitentur.  In 
a  matter  concerning  a  biothel,  pri  stitutes  are  ad- 
mitted as  witnesses.    6  Barb.  N.  Y.  320,  324. 

In  re  pari,  lyotiorem  causam  esse  p>r'>1i  ib»  ntis  con- 
stat. Where  a  thing  is  owned  in  comm<  n,  it  is 
agreed  that  the  c;  use  of  him  prohibiting  (its  use) 
is  the  stronger.  Dig.  10.  3.  28;  3  Kent,  Con  m. 
Ab  ;  Pothier,  Traite  du  Con.  de  S'oc.  n.  90  ;  16  Johns. 
N.  Y.  438,  491. 

In  re  piopria  iniquum  admodum  est  alicui  licen- 
tiam  tribueie  sentuitifc.  It  is  extnmely  unjust  that 
any  one  should  be  judge  in  his  own  cause. 

Jn  rebus  manifestis  errat  qui  auetoritatea  hgunx 
allegat ;  quia  pei  spicua  vera  non  sunt  probanda. 
He  errs  who  alleges  the  authorities  of  law  in  things 
manifest;  because  obvious  truths  need  not  be 
proved.    5  Coke,  67. 

In  rem  actio  est  per  quam  rem  nostraw  quse  vb  alio 
possidetur  potimxia,  et  semper  adversus  eum  tst  qui 
rem  possidet.  The  action  in  rem  is  that  by  which 
wo  seek  our  property  which  is  possessed  by  another, 
and  is  always  against  him  who  possesses  the  pro- 
perty.   Dig.  44.  7.  25;  Bracton,  102. 

In  republicd  maxiiiie  conservanda  sunt  jura  belli. 
In  the  state,  the  laws  of  war  are  to  be  greatly  pre- 
served.   Coke,  2d  Inst.  58. 

In  restitutionent,  nun  in  poevam,  litprea  succedit. 
The  heir  succeeds  to  the  restitution,  not  the  penalty. 
Coke,  2d  Inst.  198. 

In  restituftionibus  benignissima  interpretntio  fa- 
cienda  est.  The  most  favorable  cot.stiuction  is  to 
be  made  in  restitutions.    Coke,  Litt.  112. 

In  saiis/actionibus  non  permittifur  aniplius  fieri 
quam  semel  fucttnn  est.  In  pay  mints,  mere  must 
not  be  received  than  has  been  received  once  for  all. 
9  Coke,  53. 

In  stipiilationibus  cum  quseritur  quid  actum  sit 
verba  contra  stipulatorem  interpretunda  sunt.  In 
contracts,  when  the  question  is  what  was  agieed 
upon,  the  terms  are  to  be  interpreted  a.irainst  the 
party  offering  them.  Dig.  45. 1.  38. 18.  Chancellor 
Kent  remarks  th-at  the  true  principle  appears  to  be 
"to  give  the  contract  the  sense  in  which  the  j  erson 
making  the  promise  believes  the  other  party  to 
have  accepted  it,  if  he  in  fact  did  so  understand 
and  accept  it."  2  Kent,  Comm.  7th  ed.  721  ;  2 
Day,  Conn.  281;  1  Duer,  Ins.  159,160;  Broom, 
Max.  3d  Bond.  ed.  534;  Dig.  45.  1.  38.  ^  18. 

In  stiptdntionibus  id  ten^pus  spectatur  quo  confra- 
himus.  In  agreements,  reference  is  had  to  the  time 
at  which  they  were  made.    Dig.  50.  17.  144.  1. 

In  sua  quisque  negotio  habetior  est  quam  in  alieno. 
Every  one  is  more  dull  in  his  own  business  than 
in  that  of  another.    Coke,  Litt.  377. 

In  iestamentis  plenius  testatoris  intentionem  scru- 
tamur.  In  testaments,  we  should  seek  diligently 
the  will  of  the  testator.  But,  says  Dodderidge,  C.  J., 
"this  is  to  be  observed  with  these  two  limitations: 
1st,  his  intent  ought  to  be  agreeable  to  the  rules  of 
the  law :  2d,  his  intent  oujiht  to  be  collected  out  of 
the  words  of  the  will."  3  Bulstr.  103  ;  Broom,  Max. 
3d  Bond.  ed.  494. 

In  testamentia  plenius  voluntatea  tcatantium  inter» 


MAXIM 


132 


MAXIM 


pretantur.  In  testaments,  the  will  of  the  testator 
should  be  liberally  construed.  That  is  to  say,  a 
will  shall  receive  a  more  liberal  construction  than 
iti  strict  meaning,  if  alone  considered,  would  per- 
mit. Dig.  50.  17.  12;  Cujac.  ad  loc.  cited  3  *Po- 
thier,  Pand.  46 ;  Broom,  Max.  3d  Lond.  ed.  507. 

In  tuto  et  pars  continetur,  A  part  is  included  in 
the  whole.    Dig.  50.  17.  113. 

In  traditionibus  acriptorum  chartarxim  non  quod 
dictum  est,  aed  quod  gesturn  factum  eat,  inapicitnr. 
In  the  delivery  of  writings  (deeds),  not  what  is 
said  but  what  is  done  is  to  be  considered.  9  Coke, 
137. 

In  veram  quantitatam  Jidejuasor  teneatur,  nini  pro 
certd  quantitate  acceaait.  Let  the  surety  be  holden 
for  the  true  quantity  unless  he  agreed  for  a  certain 
quantity.    17  Mass.  697. 

In  verbis  non  verba  sed  res  et  ratio  quserenda  eat. 
In  words,  not  the  words,  but  the  thing  and  the  mean- 
ing is  to  be  inquired  after.    Jenk.  Cent.  Cas.  132. 

In  vocibus  lu'd^iuluu/n  non  a  quo  acd  ad  qtiid 
tumatnr.  In  discourses,  it  is  to  be  seen  not  from 
what,  but  to  what,  it  is  advanced.  Ellesmere,  Postn. 
62. 

Incendtum  sere  alievo  non  exuit  debiforum.  A  fire 
does  not  release  a  debtor  from  his  debt.    Code,  4. 

2.  11. 

Incerta  pro  mdlius  habentnr.  Things  uncertain 
are  held  for  nothing.    Dav.  33. 

Incerta  quantitas  vitiat  actum.  An  uncertain 
quantity  vitiates  the  act.    1  Rolle,  465. 

Incivile  eat,  riiai  tota  lege  prospecta,  una  ah'qua 
particula  ejus  proposita,  jndicare,  vel  respondere. 
It  is  improper,  unless  the  whole  law  has  been  ex- 
amined, to  give  judgment  or  advice  upon  a  view 
of  a  single  clause  of  it.  Dig.  1.  3.  24.  See  Ilob. 
171  a. 

Incivile  eat  nisi  tota  nententia  inapectd,  de  aliqua 
parte  Judicare.  It  is  improper  to  pass  an  oiunion 
on  any  part  of  a  sentence  without  examining  the 
whole.    Hob.  171. 

Inclusio  uniua  est  exclusio  alterius.  The  inclusion 
of  one  is  the  exclusion  of  another.    11  Coke,  58. 

Incolaa  domicilium  J'ucit.  Residence  creates  do- 
micile. Arnold,  United  Ins.  Co.,  1  Johns.  Cas.  N. 
Y.  36.3,  366.    See  Domicile. 

Incommodum  non  solvit  (tnjumentum.  An  incon- 
venience does  not  solve  an  argument. 

Incorporalia  be/lo  non  adquiruntur.  Things  in- 
corporeal are  not  acquired  by  war.  6  Maule  &  S. 
104. 

hide  datse  legea  ne  fortior  omnia  posaet.  Laws 
were  made  lest  the  stronger  should  have  unlimited 
power.    Dav.  36. 

Lidejinitum  mpiijmllet  universali.  The  undefined 
is  equivalent  to  the  whole.    1  Ventr.  368. 

Indejinitum  aupplet  locum  univcrsalia.  The  un- 
defined supplies  the  place  of  the  whole.  4  Coke, 
77. 

Independenter  ae  habet  aaaecuratio  aviaggio  navia. 
The  voyage  insured  is  an  independent  or  distinct 
thing  from  the  voyage  of  the  ship.  3  Kent,  Comm. 
318,  n. 

Index  animi  aermo.  Speech  is  the  index  of  the 
mind. 

Inease  potest  donationi,  modus,  conditio  aive  cavaa: 
ut  modus  est;  si  conditio;  quia  causa.  In  a  gift 
tliere  may  be  manner,  condition, and  cause:  as  (ut), 
introduces  a  manner;  if  {si),  a  condition;  because 
('y»(m),  a  cause.    Dy.  138. 

Infans  non  multum  a  furioao  distat.  An  infant 
does  not  differ  much  from  a  lunatic.    Rracton,  1. 

3.  c.  2,  g  8;  Dig.  60.  17.  6.  40;  1  Story,  Eq.  Jur.  3<J 
223,  224,  242. 

Injlnitnm  in  jure  reprohatur.  That  which  is  in- 
finite orcndlesa  is  reprehensible  in  law.    9  Coiie,  45. 

/niquissirnn  pax  cat  avtcponcnda  jiiHtissimo  hello. 
Th';  niest  unjust  peace  is  to  be  preferred  to  the 
iustest  war.    18  Wend.  N.  Y.  267,  306. 


Iniquum  est  alios  permittere,  alios  inhibere  mer^ 
caturam.  It  is  inequitable  to  permit  some  to  trade 
and  to  prohibit  others.    Coke,  3d  Inst.  181. 

Iniquum  est  aliquem  rei  sui  ease  judicem.  It  is 
unjust  for  any  one  to  be  judge  in  his  own  cause. 
12  Coke,  13. 

Iniquum  eat  ingenuia  hominibus  non  ease  liberain 
rerum  auarum  alienationem.  It  is  against  equity 
for  freemen  not  to  have  the  free  disposal  of  their 
own  property.  Coke,  Litt.  223.  See  1  Bouvier, 
Inst.  nn.  455,  460. 

Injuria  Jit  ei  cut  convicium  dictum  eat,  vel  de  eo 
factum  carmen  famosum.  An  injury  is  done  to 
him  of  whom  a  reproachful  thing  is  said,  or  con- 
cerning whom  an  infamous  song  is  made.  9  Coke, 
60. 

Injuria  non  excuaat  injuriam.  A  wrong  does  not 
excuse  a  wrong.  Broom,  Max.  3d  Lond.  cd.  247, 
343,  349;  11  Exch.  822;  16  Q.  B.  276;  6  Eil.  &  B. 
76;  Branch,  Princ. 

Injuria  non  prseaumitur.  A  wrong  is  not  pre- 
sumed.   Coke,  Litt.  232. 

Injuria  propria  non  cadet  in  benejicium  facientis. 
No  one  shall  profit  by  his  own  wrong. 

Injuatum  eat,  nisi  tota  lege  inspectse,  de  una  aliquQ 
ejus  particula  propoaitu  judicare  vel  respondere.  It 
is  unjust  to  give  judgment  or  advice  concerning 
any  particular  clause  of  a  law  without  having  ex- 
amined the  whole  law.    8  Coke,  117  6. 

Insanus  eat  qui,  abjectd  rati  one,  omnia  cum  im- 
petu  et  furore  facit.  He  is  insane  who,  reason 
being  thrown  away,  does  every  thing  with  violence 
and  rage.    4  Coke,  128. 

Inatans  est  jinis  nnius  temporia  et  principium 
alterius.  An  instant  is  the  end  of  one  time  and 
the  beginning  of  another.    Coke,  Litt.  186. 

Intentio  cseca  mala.  A  hidden  intention  is  bad. 
2  Bulstr.  179. 

Intentio  inaervire  debet  legibua,  non  leges  inten- 
tioni.  Intentions  ought  to  be  subservient  to  the 
laws,  not  the  laws  to  intentions.    Coke,  Litt.  314. 

Intentio  mea  imponit  nomen  operi  meo.  My  intent 
gives  a  name  to  my  act.    Hob.  123. 

Inter  aliat  cauaaa  acquiaitionea  magna,  Celebris, 
et  famoaa  est  causa  donationis.  Among  other  me- 
thods of  acquiring  property,  a  great,  much-used, 
and  celebrated  method  is  that  of  gift.    Bracton,  11. 

Inter  alios  res  gestas  aliis  non  posae  prsejndivium 
facere  ssepe  constitutum  est.  It  has  been  often  set- 
tled that  things  which  took  place  between  other 
parties  cannot  prejudice.    Code,  7.  60.  1.  2. 

Interdum  evenit  ut  exceptio  qua'  prima  facie  justa 
vidctur,  tamen  iniqiie  noccat.  It  sometimes  hap- 
pens that  a  plea  which  seems  prima  facie  just, 
nevertheless  is  injurious  and  unequal.  Inst.  4.  14; 
4.  14.  1.  2. 

Interest  reipnhlicse  ne  malcfcia  remaneant  im- 
punita.  It  concerns  the  commonwealth  that  crimes 
do  not  remain  unpunished.   Jenk.  Cent.  Cas.  30,  31. 

Intereat  reljiublicse  ne  sua  quia  male  utatur.  It 
concerns  the  republic  that  no  one  misuse  his  pro- 
perty.   6  Coke,  36. 

Interest  reipublicse  quod  homines  conserventur.  It 
concerns  the  commonwealth  that  we  be  preserved. 
12  Coke,  62. 

Interest  reipublicse  res  judicaiaa  non  reacindi.  It 
concerns  the  commonwealth  that  things  adjudged 
be  not  rescinded.    See  Rks  Judicata. 

Interest  reipublicse  auj^rema  hominum  testantevtn 
rata  haberi.  It  concerns  the  commonwealth  that 
men's  last  wills  be  sustained.    Coke,  Litt.  236. 

Interest  reipublicse  ut  cnrceres  aint  in  tuto.  It  con- 
cerns the  cftmmonwealth  that  prisons  be  secure. 
Coke,  2d  Inst.  589. 

Intereat  reipublicse  ut  pax  in  regno  conaervetur, 
et  qusrcunqiie  jiaci  adveraentnr  j^rovidi  declinentur. 
It  benefits  the  state  to  preserve  peace  in  the  king- 
dom, and  to  priulcntly  decline  whatever  is  adverie 
to  it.    Coke,  2d  Inst.  168. 


MAXIM 


133 


MAXIM 


Interest  relpnhlicse  nt  (jualibet  re  una  bene  uUitur. 
It  concerns  the  coiuuaonwealth  that  every  one  use 
his  property  properly.    (5  Coke,  37. 

Intercut  reipuhlii  se  utnit  Jim's  iitium.  It  concerns 
the  commonwealth  that  there  be  a  limit  to  litiga- 
tion.   Coke,  Litt.  303. 

Interpretare  et  coiicordare  leyes  leyibua  est  opti- 
mus  interpretaiidi  modus.  To  interpret  and  recon- 
cile laws  so  that  they  harmonize  is  the  best  mode 
of  construction.    8  Coke,  109. 

Jnterpretatio  Jicnda  est  ut  res  magis  vafcat  quam 
pereat.  Such  a  construction  is  to  be  made  thiit 
the  subject  may  have  an  effect  rather  than  none. 
Jenk.  Cent.  Cas.  198. 

Jnterpretatio  Udis  ambif/iiis  semper  Jie.nda  est,  id 
evitetitr  inconveniens  et  absurdnm.  In  ambiguous 
things,  such  a  construction  should  be  made,  that 
what  is  inconvenient  and  absurd  may  be  avoided. 
Coke,  4th  Inst.  328. 

Jnterrrqytio  multiplex  non  tolJit  preescriptionem 
ttemel  obtentnm.  Repeated  interruptions  do  not 
defeat  a  prescription  once  obtained.  Coke,  2d  Inst. 
664. 

Intestatus  decedit,  qui  aut  omuino  testamentum  non 
fecit  aut  non  juri  fecit,  aut  id  quod  fecerat  rtiptum 
irritnmve  factum  cut,  aut  nemo  ex  eo  hseres  exxtitit. 
He  dies  intestate  who  either  has  made  no  will  at 
all  or  has  not  made  it  legally,  or  vphose  will  which 
he  had  made  has  been  annulled  or  become  ineffect- 
ual, or  from  Avhom  there  is  no  living  heir.  Inst.  3. 
1.  pr.;  Dig.  38.  16.  1;  50.  16.  04. 

luutilis  labor,  et  sine  frnctu,  non  est  effectus  legis. 
Useless  labor  and  without  fruit  is  not  the  effect  of 
law.    Coke,  Litt.  127;  Wingate,  Max.  38. 

Inveniens  libellmn  fninosum  et  non  corrumjjena 
punitur.  He  who  finds  a  libel  and  does  not  destroy 
it,  is  punished.    F.  Moore,  813. 

Invito  bencficium  non  datnr.  No  one  is  obliged 
to  accept  a  benefit  against  his  consent.  Dig.  60. 
17.  09;  Broom,  Max.  3d  Lond.  ed.  626.  But  if  he 
docs  not  dissent,  he  will  be  considered  as  assenting. 
See  Assent. 

Ipsse  leges  cupiunt  nt  Jure  regantur.  The  laws 
themselves  desire  that  they  should  be  governed  by 
right.    Coke,  Litt.  174  b,  quoted  from  Cato. 

Ira  furor  brevis  est.  Anger  is  a  short  insanity. 
4  Wend.  N.  Y.  336,  355. 

Ita  lex  scripta  est.  The  law  is  so  written.  26 
Barb.  N.Y.  374,  380. 

Ita  semper  fiat  relatio  vt  valeat  di-tpositio.  Let 
the  relation  be  so  made  that  the  disposition  may 
stand.    6  Coke,  76. 

Iter  est  Jus  eundi,  ambnlandi  hominis  ;  non  etiam 
jumetitum  agendi  vel  vehiculum.  Iter  is  the  right  of 
going  or  walking,  and  does  not  include  the  right 
of  driving  a  beast  of  burden  or  a  carriage.  Coke, 
Litt.  56  a;  Inst.  2.  3.  pr.;  1  Mack.  Civ.  Law,  343, 
§314. 

Judex  sequitatem  semper  spectare  dehet.  A  judge 
ought  always  to  regard  equity.   Jenk.  Cent,  Cas.  45. 

Judex  ante  oculos  sequitatem  semper  habere  debet. 
A  judge  ought  always  to  have  equity  before  his 
eyes.    Jenk.  Cent.  Cas.  68. 

Judex  bonus  nihil  ex  arbitrio  sno  faciat,  nee  pro- 
positions domestic^  voluntatis,  sed  juxta  leqes  et  jura 
pronunciet.  A  good  judge  should  do  nothing  irom 
his  own  arbitrary  will,  or  from  the  dictates  of  his 
private  wishes;  but  he  should  pronounce  according 
to  law  and  justice.    7  Coke,  27  a. 

Judex  damnatur  cum  noecns  ahsolvifur.  The  judge 
is  condemned  when  the  guilty  are  acquitted. 

Judex  debet  Judicare  secundum  allegata  etjjrobata. 
The  jud(;e  ought  to  decide  according  to  the  allega- 
tions and  the  proofs. 

Judex  est  lex  loquens.  The  judge  is  the  speaking 
law.    7  Coke,  4  a. 

Judex  habere  debet  duos  sales,  sa^em  snpifptire,  ne 
ait  insipidus,  et  ealem  conscientise,  ne  sit  diabolus.  A 


'  judge  should  have  two  salts:  the  salt  of  wisdom^ 
lest  he  be  insipid  ;  and  the  salt  of  conscience,  lest 
he  be  devilish.    Coke,  3d  Inst.  147. 

Judex  non  jwlest  esse  testis  in  proprid  causd.  A 
judge  cannot  be  u  witness  in  his  own  cause.  Coke, 
4th  Inst.  279. 

Judex  non  potest  injuriam  sibi  datam  pnnire.  A 
judge  cannot  punish  a  wrong  done  to  himself.  12 
Coke,  114. 

Judex  non  reddit  plus  quam  quod  petens  ipse  re- 
quirit.  The  judge  does  not  give  more  than  the 
plaintiff  demands.    2  lust.  286,  case  84. 

Judicandum  est  hyibus  non  excmplis.  We  are  to 
judge  by  the  laws,  not  by  examples,  4  Coke,  33 
b;  4  Sharswood,  Blackst,  Comm.  405 ;  19  Johns. 
N,  Y.  513. 

Judices  non  tenentur  exprimere  causam  eententiae 
suse.  Judges  are  not  bound  to  explain  the  reason 
of  their  sentence.    Jenk.  Cent.  Cas.  75. 

Judiei  offieium  suuni  excedcnti  non  paretur.  To 
a  judge  who  exceeds  his  ofiRce  or  jurisdiction  no 

i  obedience  is  due.    Jenk.  Cent.  Cas.  139. 

!      Judici  satis  poena  est  quod  Deum  habet  ultorem.  It 

I  is  punishment  enough  for  a  judge  that  he  is  respon- 
sible to  God.    1  Leon.  295. 

!  Judicia  in  curia  regis  non  adnihilentnr,  sed  stent 
in  robore  sua  quousque  per  errorem  aut  attinctum  ad- 
nullentur.    Judgments  in  the  king's  courts  are  not 

1  to  be  annihilated,  but  to  remain  in  force  until  an- 
nulled by  error  or  attaint.    Coke,  2d  Inst.  639. 
Judicia  in  deliberationibus  crebro  niatureseunt,  in 

\  accelerato processu  nunquam.  Judgments  frequently 

I  become  matured  by  deliberation,  never  by  hurried 

i  process.    Coke,  3d  Inst.  210. 

Judicia  poster iora  sunt  in  lege  fortiora.  The  lat- 
ter decisions  are  stronger  in  law.    8  Coke,  97. 

j  Judicia  sunt  tanquam.  juris  dicta,  et  pro  veritate 
accipitaittir.  Judgments  are,  as  it  were,  the  dicta 
or  sayings  of  the  law,  and  are  received  as  truth. 
Coke,  2d  Inst.  637. 

!  Jvdiciis  juisterioribus  fdes  est  adhibenda.  Faith 
or  credit  is  to  be  given  to  the  later  decisions.  13 
Coke,  14. 

Judicis  est  in  pronuntiando  sequi  regulam,  excep- 
I  tione  non  probata.  The  judge  in  his  deciei<in  ought 
1  to  follow  the  rule,  when  the  exception  is  not  proved. 
I      Judicis  est  Judicare  secundum  allegata  et  jirobata. 

A  judge  ought  to  decide  according  to  the  allega- 
I  tions  and  proofs.    Dyer,  12  a;  Halkers,  Max.  73. 
'      Judicis  est  Jus  dicere  non  dare.    It  is  the  dutj'  of 

a  judge  to  declare  the  law,  not  to  enact  it.  Lofft, 
!  42. 

'      Judicis  ojficium  est  ojms  diei  in  die  sua  perjicere. 

It  is  the  duty  of  a  judge  to  finish  the  work  of  each 
■  day  within  that  day.    Dy.  12. 

Judicis  officium  est  ut  res  ita  tempora  rerum  quse- 
1  rere,  qusesito  tempore  tutus  eris.    It  is  the  duty  of  a 

judge  to  inquire  the  times  of  things,  as  well  as  into 

things;  by  inquiring  into  the  time  you  will  be  safe. 

Coke,  Litt.  171. 
!      Judicium  a  non  suo  Judice  datum  nullius  est  mo- 
I  wenti.    A  judgment  given  by  an  improper  judge  is 
j  of  no  moment.    10  Coke,  76  b;  2  Q.  B.  1014;  13 

id.  143;  14  Mees.  &  W.  Exch.  124;  11  Clark  k  F. 
I  Hou.  L.  610. 

I  Judicium  est  quasi  Juris  dictum.  Judgment  is  as 
I  it  were  a  saying  of  the  law.  Cuke,  Litt.  168. 
!  Judicium  non  debet  esse  illusorium,  suum  effectvjn 
j  habere  debet.  A  judgment  ought  not  to  be  illu- 
sory, it  ought  to  have  its  proper  effect.  Coke,  2d 
1  Inst.  341. 

Judicium  redditur  in  invitum,  in  prtesumptiong 
legis.  In  presumption  of  law,  a  judgment  is  given 
against  inclination.    Coke,  Litt.  248  b,  314  b. 

Judicium  semper  pro  veritate  aecipitur,  A  judg- 
ment is  always  taken  for  truth.  Coke,  2d  Inst.  380  ; 
17  Mass.  237. 

Juncta  Juvant.  Things  joined  have  effect.  11 
East,  220. 


MAXIM 


134 


MAXIM 


Jura  eccleaiastica  limitata  aunt  infra  limites  sepn- 
raton.  Ecclesiastical  laws  are  limited  within  sepa- 
rate bounds.    3  Bulstr.  53. 

Jura  eodem  vwdo  destituuntur  quo  constituimtur. 
Laws  are  abrogated  or  repealed  by  the  same  means 
by  which  they  are  made.  Broom,  Max.  3d  Lond. 
ed.  785. 

Jura  naturse  sunt  immntabih'a.  The  laws  of  nature 
are  unchangeable.  Branch,  Princ.  j  Oliver,  Forms, 
66. 

Jura  publica  anteferenda  privatts.  Public  rights 
are  to  be  preferred  to  private.    Coke,  Litt.  130. 

Jura  publica  ex  privato  promiscue  decidi  non  de- 
bent.  Public  rights  ought  not  to  be  decided  pro- 
miscuously with  private.    Coke,  Litt.  181  b. 

Jura  ref/is  specialia  non  conceduntur  per  generalia 
verba.  The  special  rights  of  the  king  are  nut 
granted  by  general  words.    Jenk.  Cent.  Cas.  103. 

Jura  sanguinis  nidl,o  jure  civili  dirimi  poHsunt. 
The  right  oif  blood  and  kindred  cannot  be  destroyed 
by  any  civil  law.  Dig.  50.  17.  9  ;  Bacon,  Max. 
11 ;  Broom,  Max.  3d  Lond.  ed.  474, 

Juramentum  est  indivisibile,  et  non  est  admitlendum 
in  parte  verum  et  in  parte  faham.  An  oath  is  indi- 
visible; it  is  not  to  be  held  partly  true  and  partly 
false.    Coke,  4th  Inst.  274. 

Jurare  est  Deum  in  testum  vocare,  et  est  actus  di- 
vini  cttltus.  To  swear  is  to  call  God  to  witness,  and 
is  an  act  of  religion.  Coke,  3d  Inst.  165.  See  3 
Bouvier,  Inst.  3180,  note;  1  Bentham,  Ev.  376, 
371,  note. 

Jnroto  creditur  in  judicio.  He  who  makes  oath 
is  to  be  believed  in  judgment.    Coke,  3d  Inst.  79. 

Juratores  debent  esse  vicini,  sujffirientes  et  minus 
suspecti.  Jurors  ought  to  be  neighbours,  of  suffi- 
cient estate,  and  free  from  suspicion.  Jenk.  Cent. 
Cas.  141. 

Juratores  sunt  judices  f acti.  Jurors  are  the  judges 
of  the  facts.    Jenk.  Cent.  Cas.  68. 

Jure  naturse  sequum  est,  neminem  cum  alterius  de- 
trimento,  et  injuria  jieri  locupletiorem.  According 
to  the  laws  of  nature,  it  is  just  that  no  one  should 
be  enriched  with  detriment  and  injury  to  another, 
i.e.  at  another's  expense.    Dig.  50.  17.  200. 

Juri  non  est  consonum  quod  aliquis  accessoriua  in 
curia  regis  convincatur  antequam  aliquis  de  facto 
fuerit  aitlnctus.  It  is  not  consonant  to  justice  that 
any  accessory  should  be  convicted  in  the  king's 
court  before  any  one  has  been  attainted  of  the  fact. 
Coke,  2d  Inst.  183. 

Juris  effectus  in  cxccnfione  consistit.  The  etfeft 
of  a  law  consists  in  the  execution.  Coke,  Litt. 
289  b. 

Jurisdictio  est  potestas  de  publico  introducta,  cum 
necessitate  juris  dicendi.  Jurisdiction  is  a  power 
introduced  for  the  public  good,  on  account  of  tha 
necessity  of  dispensing  justice.    10  Coke,  73  a. 

Jurisprudent i a  est  dicinarum.  atque  humanarnm 
rerum  notiiia;  justi  atque  injusfi  scicntia.  Jurispru- 
dence is  the  knowledge  of  things  divine  and  human ; 
the  science  of  the  ju?t  and  the  unjust.  Dig.  1. 1.  10. 
2 :  Inst.  1.  1.  1 ;  Bracton,  3 ;  8  Johns.  N.  Y.  290, 
295. 

Jurisprudentia  legis  communis  Anglia  est  scientia 
Bocialis  et  copiosa.  The  jurisprudence  of  the  com- 
mon law  of  England  is  a  science  sociable  and  copi- 
ous.   7  Coke,  28  a. 

Jus  accrescendi  inter  mercatores  locum  non  habet, 
pro  benrjicio  commercii.  The  right  of  survivorship 
does  not  exist  among  merchants,  for  the  benefit  of 
commerce.  Coke,  Litt.  182 ;  1  Bouvier,  Inst.  n. 
682. 

Jus  accrescendi  prwfertur  oncribus.  The  right  of 
survivorship  is  preferred  to  incumbrances.  Coke, 
Litt.  185. 

Jus  accresceiidi  prtrfertur  nltimse  xuduntati.  The 
right  of  survivorship  is  preferred  to  a  last  will. 
Coke,  Litt.  185  6. 

Jua  civile  eat  quod  aibi  populua  conatituit.  The 


civil  law  is  what  a  people  establishes  for  itself.  1 
Johns.  N.  Y.  424,  426. 

Jus  descendit,  et  non  terra.  A  right  descends,  not 
the  land.    Coke,  Litt.  345. 

Jus  dicere,  et  nun  jus  dare.  To  declare  the  law, 
not  to  make  it.  7  Term,  696 :  Arg.  10  Ji.hns.  N. 
Y.  566 ;  7  Exch.  543 ;  2  Ed.  Ch.  29 ;  4  C.  B.  560, 
561 ;  Broom,  Max.  3d  Lond.  ed.  140. 

Jua  dicere,  non  jus  dare.  To  declare  the  law,  not 
to  make  it.    10  Johns.  N.  Y.  563,  566. 

Jus  est  ars  boni  et  seqni.  Law  is  the  science  of 
what  is  good  and  just.    Dig.  1.  1.  1.  1. 

Jus  est  norma  recti;  et  quicquid  est  contra  normam 
recti  cKt  injtiria.  The  law  is  the  rule  of  right;  and 
whatever  is  contrary  to  the  rule  of  right  is  an  in- 
jury.   3  Bulstr.  313. 

Jus  et  fraus  nunquam  cohabitant.  Right  and 
fraud  never  live  together. 

Jus  ex  injuria  non  oritur.  A  right  cannot  arise 
from  a  wrong.    4  Bingh.  639. 

Jus  in  re  inheerit  onsibus  usufructuarii.  A  right 
in  the  thing  cleaves  to  the  person  of  the  usufruc- 
tuary. 

Jus  naturale  est  quod  apud  homines  eandem  habet 
potentiam.  Natural  right  is  that  which  has  the 
same  force  among  all  men.    7  Coke,  12. 

Jus  nec  inflecti  gratia,  nec  frangi  potentid,  nec 
adulterari  pecunid  potest;  quod  si  non  niodo  oppres- 
sum,  sed  desertnm  out  negligtntid  asservatum  fuerit, 
nihil  est  quod  quisquam  se  habere  certum,  aut  d  patre 
accepturum,  aut  liberis  esse  relicturvm,  arbitretur. 
Favor  ought  not  to  be  able  to  bend  justice,  power 
to  break  it,  nor  money  to  corrupt  it ;  for  not  only 
if  it  be  overborne,  but  if  it  be  abandoned  or  negli- 
gently observed,  no  one  can  think  that  he  holds 
any  thing  securely,  or  that  he  will  inherit  any  thing 
from  his  father,  or  be  able  to  leave  any  thing  to  his 
children.  Cic. 

Jus  non  habenti,  tuti  non  paretur.  It  is  safe  not 
to  obey  him  who  has  no  right.    Hob.  146. 

Jus  publicum  privatorum  pactis  mutari  non  potest. 
A  public  right  cannot  be  changed  by  agreement  of 
private  parties. 

Jus  quo  universitntes  utuntur,  est  idem  quod  habent 
privati.  The  law  which  governs  corporations  is  the 
same  which  governs  individuals.    16  Mass.  44. 

Jus  respicit  eequitatem.  Law  regards  equity. 
Coke,  Litt.  24  b;  Broom,  Max.  3d  Lond.  ed.  143; 
17  Q.  B.  292. 

Jus  superveniens  nuctori  accresait  aucceasori.  A 
right  growing  to  a  possessor  accrues  to  a  successor. 
Halkers,  Max.  76. 

J  as  vend  it  quod  nana  approbavit.  The  law  dis- 
penses what  use  has  approved,  Ellesmere,  Postn. 
35,  • 

Jusjurandi  forma  verbis  differt,  re  convenit;  hune 
enim  sensum  habere  debet,  ut  Deus  invocetur.  The 
form  of  taking  an  oath  differs  in  language,  agrees 
in  meaning;  for  it  ought  to  have  this  sense,  that 
the  Deity  is  invoked.    Grotius,  b.  2,  c.  13,  s.  10. 

Juxjurandum  inter  alios  factum  nec  nocere  nec  pro- 
desse  debet.  An  oath  made  in  another  cause  ought 
neither  to  hurt  nor  profit.    Coke,  4th  Inst,  279, 

Justicia  est  virtus  excellens  et  Allissimo  compla- 
cens.  Justice  is  an  excellent  virtue  and  pleasing  to 
the  Most  High,    Coke,  4th  Inst,  58, 

Justitia  debet  esse  LIBERA,  quia  nihil  iniquius  ve- 
nali  juatitid;  plena,  quia  justitia  non  debet  claudi- 
care;  et  CRLERlS,  quia  dilatio  est  qusedam  negatio. 
Justice  ought  to  be  unbought,  because  nothing  is 
more  hateful  than  venal  justice;  full,  for  justice 
ought  not  to  halt ;  and  quick,  for  delay  is  a  kind  of 
denial.    Coke,  2d  Inst,  56, 

Justitia  est  constans  et  perpetua  voluntas  Jua  auunk 
cuique  tribncndi.    Inst.  11.  pr, ;   Dig,  1,  1.  10. 

Justitia  firm  at  ur  solium.  By  justice  the  throne  ifl 
established.    Coke,  3d  Inst.  140. 

Justitia  nrmini  vegandn  est.  Justice  is  to  be  denied 
to  none.    Jenk.  Cent.  Cas.  178. 


MAXIM 


135 


MAXIM 


Ju8tit:a  non  cat  neffanda,  non  differenda.  Justice 
IS  not  to  be  denied  nor  delayed.  Jenk.  Cent.  Cas.  76. 

Justitia  non  novit  patrem  nec  matrem,  Holum  veri- 
tntem  spectat  justitia.  Justice  knows  neither  father 
nor  mother,  justice  looks  to  truth  alone.  1  Bulstr. 
199. 

Juatum  non  est  aliquem  antenatum  mortiinm  /acere 
haatardum,  qui  pro  totd  vitd  sua  pro  letjitimo  habe- 
tur.  It  is  not  just  to  make  a  bastard  after  his  death 
one  elder  born  who  all  his  life  has  been  accounted 
legitimate.    8  Coke,  101. 

L'obligation  aana  cause,  ou  aur  une /ausse  cause,  ou 
aur  cause  illicite,  ne  peut  avoir  aucun  effet.  An  obli- 
gation without  consideration,  or  upon  a  false  consi- 
deration (which  fails),  or  upon  unlawful  considera- 
tion, cannot  have  any  effect.  Cod.  3.  3.  4;  Chitty, 
Contr.  10th  Am.  ed.  25,  note. 

Z'ou  le  ley  done  chose,  la  ceo  done  remedie  a  vener 
a  ceo.  Where  the  law  gives  a  right,  it  gives  a 
remedy  to  recover.    2  Rolle,  17. 

La  conscience  est  la  plus  changeante  dea  riglea. 
Conscience  is  the  most  changeable  of  rules. 

La  ley  favour'  la  vie  d'nn  home.  The  law  favors 
a  man's  life.    Year  B.  Hen.  VI.  51. 

Ln  ley  favour  Vinheritance  d'un  home.  The  law 
favors  a  man's  inheritance.  Year  B.  Hen.  VI.  51. 

La  ley  vuit  plus  tost  suffer  un  mischief e  que  un  in- 
convenience. The  law  would  rather  suffer  a  mis- 
chief than  an  inconvenience.    Littleton,  ^  231. 

Lata  culpa  dolo  sequiparatur.  Gross  negligence 
is  equal  to  fraud. 

Law  couatrueth  every  act  to  he  lawful  when  it  stand- 
eth  indifferent  whether  it  he  lawful  or  not.  Wingate, 
Max.  194;  Finch,  Law;  Coke,  b.  1,  c.  3,  n.  76. 

Law  conatrueth  things  according  to  common  poaai- 
bility  or  intendment.    Wingate,  Max.  189. 

Law  conatrueth  thinga  to  the  beat.  Wingate,  Max. 
193. 

Laio  conatrueth  things  loith  equity  and  moderation. 
Wingate,  Max.  183 ;  Finch,  Law  j  Coke,  b.  1,  c.  3,  n. 
74. 

Law  diafavoreth  impoaaibilitiea.  Wingate,  Max. 
165. 

La%o  diafavoreth  improbahilitiea.  Wingate,  Max. 
.161. 

Law  favoreth  charity.    Wingate,  Max.  135. 

Law  favoreth  common  right.    Wingate,  Max.  144. 

Law  favoreth  diligence,  and  therefore  hateth  folly 
and  negligence.  Wingate,  Max.  172  ;  Finch,  Law, 
b.  1,  c.  3,  n.  70. 

Law  favoreth  honor  and  order.  Wingate,  Max. 
199. 

Law  favoreth  justice  and  right.  Wingate,  Max. 
141. 

Law  favoreth  life,  liberty,  and  dower.  4  Bacon, 
Works,  345. 

Law  favoreth  mutual  recompense.  Wingate, 
Max.  100  ;  Finch,  Law,  b.  1,  c.  3,  n.  42. 

Law  favoreth  possession  where  the  right  ia  equal. 
Wingate,  Max.  98;  Finch,  Law,  b.  1,  c.  3,  n.  36. 

Law  favoreth  public  commerce.  Wingate,  Max. 
198. 

Lato  favoreth  public  quiet.  Wingate,  Max.  200  ; 
Finch,  Law,  b.  1,  c.  3,  n.  54. 

Law  favoreth  speeding  of  men'a  cauaea.  Win- 
gate, Max.  175. 

Lato  favoreth  thinga  for  the  commonwealth.  Win- 
gate, Max,  197 ;  Finch,  Law,  b.  1,  c.  3,  n.  53. 

Law  favoreth  truth,  faith,  and  certainty.  Winsrate, 
Max.  154.  J         B  , 

Law  hateth  delays.  Wingate,  Max.  176;  Finch, 
Law,  b.  1,  c.  3,  n.  71. 

Law  hateth  new  inventions  and  innovations.  Win- 
gate, Max.  204. 

Law  hateth  wrong.  Wingate,  Max.  146;  Finch, 
Law,  b.  1,  c.  3,  n.  62. 

Law  of  itself  prejudiceth  no  man.  Wingate,  Max. 
148 ;  Finch,  Law,  b.  1,  c.  3,  n.  63. 


Law  respecteth  matter  of  aubatance  more  than  mat' 
ter  of  circumatance.  Wingate,  Max.  101 ;  Finch, 
Law,  b.  1,  c.  3,  n,  39. 

Law  respe<'teth  possibility  of  thinga.  Wingate, 
Max.  104;  Finch,  Law,  b.  1,  c.  3,  n.  40. 

Laio  respecteth  the  bonds  of  nature.  Wingate, 
Max.  78 ;  Finch,  Law,  b.  1,  c.  3,  n.  29. 

Lawful  thinga  are  well  mixed,  unless  a  form  of  law 
oppose.  Bacon,  Max.  Reg.  23.  "  The  law  giveth 
that  favour  to  lawful  acta,  that  although  they  be  exe- 
cuted by  several  authorities,  yet  the  whole  act  ia 
good."    Id.  ibid. 

Le  contrat  fait  la  loi.  The  contract  makes  the 
law. 

Le  ley  de  Dieu  et  le  leyde  terre  aont  tout  un,  et  I'un 
et  Vautre  preferre  et  favour  le  common  et  publique 
bien  del  terre.  The  law  of  God  and  the  law  of  the 
land  are  all  one;  and  both  preserve  and  favor 
the  common  and  public  good  of  the  land.  Keilw. 
191. 

Le  ley  est  le  plua  haut  enheritance  que  le  roy  ad, 
car  par  le  ley,  il  meame  et  touts  aes  aujeta  aont  rules, 
et  si  le  ley  ne  fuit,  nul  roy  ne  nul  enheritance  aerra. 
The  law  is  the  hi^ihest  inheritance  that  the  king 
possesses;  for  by  the  law  both  he  and  all  his  sub- 
jects are  ruled ;  and  if  there  were  no  law,  there 
would  be  neither  king  nor  inheritance. 

Le  aalut  du  pevple  eat  la  supreme  loi.  Montes. 
Esprit  des  Lois,  1.  xxvii.  ch.  23 ;  Broom,  Max.  3d 
Lond.  ed.  1. 

Legatos  violare  contra  jus  gentium  eat.  It  is  con- 
trary to  the  law  of  nations  to  do  violence  to  am- 
bassadors.   Branch,  Princ. 

Legatum  morte  testatoria  tantum  conf  rmatur,  aicut 
donatio  inter  vivos  traditione  sold.  A  legacy  is 
confirmed  by  the  death  of  the  testator,  in  the  same 
manner  as  a  gift  from  a  living  person  is  by  delivery 
alone.    Dy.  143. 

Legatus,  regis  vice  fungitur  a  quo  destinatur,  et 
honorandua  est  sicut  ille  cujus  vicem  gerit.  An  am- 
bassador fills  the  place  of  the  king  by  whom  he  is 
sent,  and  is  to  be  honored  as  he  is  whose  place  he 
fills.    12  Coke,  17. 

Legem  enim  contractus  dat.  The  contract  makes 
the  law.    22  Wend.  N.  Y.  215,  233. 

Legem  terrse  amittentea  perpetuam  infamies  notam 
inde  meritd  incurrunt.  Those  who  do  not  preserve 
the  law  of  the  land,  thence  justly  incur  the  inefface- 
able brand  of  infamy.    Coke,  3d  Inst.  221. 

Leges  Anglise  aunt  tripartitse  :  jua  commune,  con- 
suetudines,  ac  decreta  comitiorum.  The  laws  of 
England  are  threefold  :  common  law,  customs,  and 
decrees  of  parliament. 

Leges  fgendi  et  refgendi  conauetudo  eat  periculo- 
sissiina.  The  custom  of  making  and  unmaking  laws 
is  a  most  dangerous  one.    4  Coke,  pref. 

Leges  humanse  nascuntur,  vivunt,  et  moriunfur. 
Human  laws  are  born,  live,  and  die.  7  Coke,  25 ; 
2  Atk.  674 ;  11  C.  B.  767 ;  1  Blackst.  Comm.  89. 

Leges  natures  perfectissimse  sunt  et  immutabilea; 
humani  vero  juria  conditio  aeniper  in  infinitum  decur- 
rit,  et  nihil  est  in  eo  quod  perpetuo  stare  poaait, 
Legea  humanse  nascuntur,  vivunt,  moriuntur.  The 
laws  of  nature  are  most  perfect  and  immutable; 
but  the  condition  of  human  law  is  an  unending 
succession,  and  there  is  nothing  in  it  which  can 
continue  perpetually.  Human  laws  are  born,  live, 
and  die.    7  Coke,  25. 

Legea  non  verbia  sed  rebua  sunt  impositse.  Laws 
are  imposed  on  things,  not  words.    10  Coke,  101. 

Leges  posteriores  priorea  contrarias  abrogant. 
Subsequent  laws  repeal  prior  conflicting  ones.  2 
Rolle,  410  ;  11  Coke,  626,  630. 

Leges  suum  ligent  latorem.  Laws  should  bind  the 
proposers  of  them.    Fleta,  b.  1,  c.  17,  §  11. 

Leges  vigilantibus,  non  durmientibus  aubveniunt. 
The  laws  aid  the  vigilant,  not  the  negligent.  Fan- 
ning;  Dunham;  5  Johns.  Ch.  122,  145;  Toole; 
Cook;  16  How.  Pr.  142,  144. 


MAXIM 


136 


MAXIM 


Leg\hu8  sumptis  desinentibus,  lege  naturse  utenduvi 
est.  When  laws  imposed  by  the  state  fiiil,  we  must 
act  by  the  law  of  nature.    2  Rolle,  298. 

Legia  constrnctio  non  facit  injurinm.  The  con- 
struction of  law  does  no  wrong.    Coke,  Litt.  183. 

Legis  fiijendi  et  refigendi  consvetudo  periculosiasi- 
ma  est.  The  custom  of  fixing  and  refixing  (mak- 
ing and  annulling)  laws  is  most  dangerous. 

Legis  inter jjretntio  legis  vim  ohtinet.  The  con- 
struction of  law  obtains  the  force  of  law.  Branch, 
Princ. 

Legis  minister  non  tenetur,  in  executione  officii  svi, 
fugere  ant  retrocedere.  The  minister  of  the  law  is 
not  bound,  in  the  execution  of  his  office,  either  to 
fly  or  retreat.    6  Coke,  68. 

Legiiilatorum  est  viva  vox,  rebus  et  non  verbis, 
legem  imponere.  The  voice  of  legislators  is  a  living 
voice,  to  impose  laws  on  things  and  not  on  words. 
10  Coke,  101. 

Legitime  imperanti  parere  necesse  est.  One  who 
commands  lawfully  must  be  obeyed.  Jenk.  Cent. 
Gas.  120. 

Les  fictions  naissent  de  la  loi,  et  non  la  loi  des  fic- 
tions. Fictions  arise  from  the  law,  and  not  law 
from  fictions. 

Les  lois  ne  se  chargent  de  piinir  qve  les  actions 
txterienres.  Laws  do  not  undertake  to  punish  other 
than  outward  actions.  Montes.  Es.  de  Lois,  b.  12, 
c.  11 ;  Broom,  Max.  3d  Lond.  ed.  279. 

Lex  spquitate  gaudet;  appetit  per/ectum;  est  nor- 
ma recti.  The  law  delights  in  equity ;  it  covets 
perfection ;  it  is  a  rule  of  right.  Jenk,  Cent.  Cas. 
36. 

Lex  aliquando  sequitur  sequitatem.  The  law  some- 
times follows  equity.    3  Wils.  119. 

Lex  Anglise  est  lex  misericordise.  The  law  of  Eng- 
land is  a  law  of  mercy.    Coke,  2d  Inst.  315. 

Lex  Anglise  non  pntitttr  absurdum.  The  law  of 
England  does  not  suffer  an  absurdity.    9  Coke,  22. 

Lex  Anglise  nunquam  matris  scd  semper  patris 
conditionem  imifari  partum  judicat.  The  law  of 
England  rules  that  the  offspring  shall  always  fol- 
low the  condition  of  the  father,  never  that  of  the 
mother.    Coke,  Litt.  123. 

Lex  Anglise  nunquam  sine  parliamento  mutari 
notest.  The  law  of  England  cannot  be  changed  but 
by  parliament.    Coke,  2d  Inst.  218,  619. 

Lex  beneficialis  rei  consimili  remedium  prsestat. 
A  beneficial  law  affords  a  remedy  in  a  similar  case. 
Coke,  2d  Inst.  689. 

Lex  citius  tolerare  vult  privatum  damnum  qttam 
publicum  malum.  The  law  would  rather  tolerate  a 
private  loss  than  a  public  evil.    Coke,  Litt.  152  b. 

Lex  de  fufuro,  judex  de  prseterito.  The  law  pro- 
vides for  the  future,  the  judge  for  the  past. 

Lex  dfficere  non  potest  injustltid  erhibendd.  The 
law  ought  not  to  fail  in  dispensing  justice.  Coke, 
Litt  197. 

Lex  dilationes  semper  exhorref.  The  law  always 
abhors  delay.    Coke,  2d  Inst.  240, 

Lex  est  ab  seterno.  The  law  is  from  everlasting. 
Branch,  Princ, 

Jycx  eat  dictamen  rationis.  Law  is  the  dictate  of 
reason.    Jenk.  Cent.  Cas.  117. 

Lex  est  norma  recti.    Law  is  a  rule  of  right. 

Lex  est  ratio  suvima,  qute  j'ubet  qvse  sunt  utilia  et 
ntcessaria,  et  contraria  prohibet.  Law  is  the  per- 
fection of  reason,  which  commands  what  is  useful 
and  necessary,  and  forbids  the  contrary.  Coke, 
Litt,  319  b. 

Ijcx  est  sanctio  sancta,  juhcns  Jionesta,  et  prohibcns 
contraria.  Law  is  a  sacred  sanction,  commanding 
what  is  right  and  prohibiting  the  contrary.  Coke, 
2d  Inst,  587. 

Lex  est  tutiasima  cassis;  sub  clypeo  legis  nemo  de- 
cipitur.  Law  is  the  safest  helmet;  under  (he  shield 
of  the  law  no  one  is  deceived.    Coke,  2d  Inst.  56. 

Lex  favet  doti.  The  law  favors  dowet  3  &  4 
Will.  IV.  c.  105. 


Lex  fingit  ubi  subaistit  sequiias.  Law  feigns  where 
equity  subsists.    11  Coke,  90;  Branch,  Princ. 

Lex  intendit  vicinum  vicini  facta  scire.  The  law 
presumes  that  one  neighbor  knows  the  actions  of 
another.    Coke,  Litt.  78  b. 

Lex  judicat  de  rebus  necesaario  faciendis  quasire 
ipsa  factis.  The  law  judges  of  things  which  must 
necessarily  be  done  as  if  actually  dtne.  Branch, 
Princ. 

Lex  neceaaitatia  eat  lex  temporis,  i.e.  instantis. 
The  law  of  necessity  is  the  law  of  time,  that  is,  time 
present.    Hob.  159. 

Lex  neminem  cogit  ad  vana  seu  inutilia peragenda. 
The  law  forces  no  one  to  do  vain  or  useless  things. 
Winixate,  Max.  600  ;  3  Sharswood.  Blackst.  Comm. 
144;  2  Bingh.  n.  c.  121  ;  13  East,  420;  7  Penn.  St. 
206,  214;  3  Johns.  N.  Y.  598. 

Lex  neminem  cogit  ostendere  quod  nescire prspsumi- 
tur.  The  law  forces  no  one  to  make  known  what  he 
is  presumed  not  to  know.    Lofft,  569. 

Lex  nemini  facit  injuriam.  The  law  does  wrong 
to  no  one.    Branch,  Princ. 

Lex  nemini  operatur  iniqmim,  nemini  facit  inju- 
riam. The  law  never  works  an  injury,  or  does  him 
a  wrong.    Jenk.  Cent.  Cas.  22. 

Lex  nil  facit  frtistra,  nil  jubet  frvstra.  The  law 
does  nothing  and  commands  nothing  in  vain.  3 
Bulstr.  279;  Jenk,  Cent,  Cas.  17. 

Lex  non  cogit  ad  impossibilia.  The  law  requires 
nothing  impossible.  Coke,  Litt.  231  Hob.  96  ;  1 
Bouvier,  Inst.  n.  851. 

Lex  non  curat  de  minimis.  The  law  does  not  re- 
gard small  matters.    Hob.  88. 

Lex  non  deficit  in  fustitia  exibenda.  The  law  does 
not  fail  in  showing  justice.    Jenk.  Cent,  Cas.  31. 

Lex  non  favet  votis  delicatorum.  The  law  favors 
not  the  wishes  of  the  dainty.    9  Coke,  58  a. 

Lex  non  intendit  aliquicl  impossibile.  The  law 
intends  not  siny  thing  impossible.    12  Coke,  89  a. 

Lex  non  patitur  fractiones  et  divisiones  statuum. 
The  law  suffers  no  fractions  and  divisions  of  estates. 
1  Coke,  87  ;  Branch,  Princ. 

Lex  lion  prsicipit  inutilia,  quia  inutilis  labor  stul- 
tus.  The  law  commands  not  useless  things,  because 
useless  labor  is  foolish.  Coke,  Litt,  197;  5  Coke, 
89  a. 

Lex  non  requirit  rerificare  quod  apparet  curise.  { 
The  law  does  not  require  that  to  be  proved  which  I 
is  apparent  to  the  court.    9  Coke,  54.  \ 

Lex  plus  laudotur  quando  ratione  probatur.  The  ' 
law  is  the  more  praised  when  it  is  consonant  to  ,1 
reason.  3  Term,  146;  7  id.  252:  7  Adolph.  &  E,  " 
657;  Broom,  Max.  3d  Lond.  ed.  151, 

Lex  posterior  derogat  priori.  A  prior  statute 
shall  give  place  to  a  later.  Mackeldey,  Civ.  Law, 
5 ;  Broom,  Max,  3d  Lond.  ed.  27. 

Lex  prospicit,  non  rcspicit.  The  law  looks  for- 
ward, not  backward.  Jenk.  Cent.  Cas.  284.  See 
Retrospective. 

Lex  punit  mendacium.    The  law  punishes  false- 
hood,   Jenk.' Cent.  Cas.  15. 

Lex  rejicit  superfiua,  pugnantia,  incongrun.  The 
law  rejects  superfluous,  contradictory,  and  incon- 
gruous things.    Jenk.  Cent.  Cas.  133.  140,  176. 

Lex  reprobat  moram.    The  law  disapproves  of 
delay. 

Lex  reapicit  sequitatem.  Law  regards  equity.  See 
14  Q.  B,  504,  511,  512. 

Lex  semper  dabit  remedium.  The  law  will  always 
give  a  remedy.  3  Bouvier,  Inst.  n.  2411;  Bacon, 
Abr.  Actions  in  General  (B);  Branch,  Princ; 
Broom,  Max.  3d  Lond.  ed.  181 ;  12  Adolph.  A  E. 
266;  7  Q.  B.  451. 

Lex  semper  intendit  quod  convenit  rationi.  The 
law  always  intends  what  is  agreeable  to  reascn. 
Coke,  Litt.  78. 

Lex  spectat  naturse  ordinem.  The  law  regards 
the  order  of  nature.  Cok«,  Litt.  197;  Broom,  Max. 
3d  Lond.  ed.  231. 


MAXIM 


137 


MAXIM 


Lex  aiiccurnt  igvoraiid.  The  laws  succor  the 
ignorant.    Jenk.  Cent.  Cas.  15. 

Lex  sticc.urrit  minoribua.  The  law  assists  minors. 
Jenk.  Cent.  Cas.  57. 

Lex  nno  ore  omnen  alloquitur.  The  law  speaks  to 
all  with  one  mouth.    Coke,  2d  Inst.  184. 

Lex  viiplantibuH  non  dormientihua  nuhvenit.  Law 
assists  the  wakeful,  not  the  sleeping.  1  Story, 
Contr.  4th  ed.  502. 

Liberata  pcciinia  non  liberal  offerentem.  Money 
being  restored  docs  not  set  free  the  party  offering. 
Coke,  Litt.  207. 

Libertaa  eat  naturalia  fncultaa  ejus  quod  cuique 
favere  libet,  niai  quod  de  jure  out  vi  prohibcttir. 
Liberty  is  the  natural  power  of  doing  whatever  one 
pleases,  except  that  which  is  restrained  by  law  or 
force.    Coke,  Litt.  1 1 6. 

Libertaa  ineestimabilia  rea  eat.  Liberty  is  an  in- 
estimable good.  Dig.  50.  17.  106;  Flela,  lib.  2,  c. 
51,  I  13. 

Libertaa  non  recijyit  seatimatinnem.  Freedom  does 
not  admit  of  valuation.    Bracton,  14. 

Libertaa  omnibus  rebus /avorabilior  est.  Liberty 
is  more  favored  than  all  things.    Dig.  50,  17.  122. 

Liberum  corpus  seatimationem  non  recijnt.  The 
body  of  a  freeman  does  not  admit  of  valuation. 
Dig.  9.  3.  7. 

Liberum  est  cuique  apud  ae  explorare  an  expediaf 
sibi  conailium.  Every  one  is  free  to  ascertain  for 
himself  whether  a  recommendation  is  advantageous 
to  his  interests.    6  Johns.  N.  Y.  181,  184. 

Librorum  appellatione  continentur  omnia  volu- 
mina,  sire  in  chartd,  aire  in  membrand  aint,  site  in 
quavia  alia  materia.  Under  the  name  of  books  are 
contained  all  volumes,  whether  upon  paper,  or  parch- 
ment, or  any  other  material.  Dig.  32.  52.  pr.  et 
per  tot. 

Licet  dispnsitio  de  interease  futuro  ait  inutilia  tamen 
potest  fieri  declara.tio  prsecedens  quse  sortiatnr  effec- 
tum  intervenietite  novo  actu.  Although  the  grant  of 
a  future  interest  be  inoperative,  yet  a  declaration 
precedent  may  be  made  which  may  take  effect,  pro- 
vided a  new  act  intervene.  Bacon,  Max.  Reg.  14; 
Broom,  Max.  3d  Lond.  ed.  600. 

Licifa  bene  miscentur,  formula  niai  juris  obstet. 
Lawful  acts  may  well  be  fused  into  one,  unless  some 
form  of  law  forbid  :  e.  g.  two  having  a  right  to  con- 
vey, each  a  moiety,  may  unite  and  convey  the 
whole.    Bacon,  Max.  94;  Crabb,  Real  Prop.  179. 

Ligeantia  est  quasi  legia  essentia;  est  viucuhtm 
fidei.  Allegiance  is,  as  it  were,  the  essence  of  the 
law;  it  is  the  bond  of  faith.    Coke,  Litt.  129. 

Ligeantia  naturalia,  uullis  clauatris  coercefur, 
nullis  metis  refrsenatur,  nnllis  finibus  pjremitur.  Na- 
tural allegiance  is  restrained  by  no  barriers,  curbed 
by  no  bounds,  compressed  by  no  limits.  7  Coke,  10. 

Lxgna  et  lapides  sub  armorum  aj^pellatioue  non 
continentur.  Sticks  and  stones  are  not  contained 
under  the  name  of  arms.    Bracton,  144  b. 

Jjinea  recta  eat  index  aui  et  obliqui;  lex  est  linea 
recti.  A  right  line  is  an  index  of  itself  and  of  an 
«blique ;  law  is  a  line  of  right.  Coke,  Litt.  158. 
^  Linea  recta  semper  prse/ertur  transrersnli.  The 
right  line  is  always  preferred  to  the  collateral. 
Coke,  Litt.  10;  Fleta,  lib.  6,  c.  1 ;  1  Stephen, 
Comm.  4th  ed.  406. 

Litene  pafenfea  regis  non  erunt  vacuse.  Letters- 
patent  of  the  king  shall  not  be  void.    1  Bulstr.  6. 

Lhus  est  quousque  maximus  fiuctua  a  mari pervenit. 
The  shi>re  is  where  the  highest  wave  from  the  sea 
has  reached.  Dig.  60.  16.  96 ;  Angell,  Tide-Waters, 
67. 

Litia  nomen  actionem  significat,  aive  in  rem,  aire  in 
personam  ait.  The  word  "  lex,"  i.e.  a  lawsuit,  sig- 
nifies every  action,  whether  in  rem  or  in  peraonam. 
Coke,  Litt.  292. 

Locna  contractus  regit  actum.  The  place  of  the 
contract  governs  the  act.    2  Kent,  Comm.  458. 

Locus  pro  aolutione  reditus  aut  pecuniae  secundum 


condifionem  dimissionis  aut  oljllgationis  cat  strict^, 
obserrandus.  The  place  for  the  payment  of  renter 
money  is  to  be  strictly  observed  according  to  the 
condition  of  the  lease  or  obligation.    4  Coke,  73. 

Longa  putientia  trahitur  ad  ronsensum.  Long 
sufferance  is  construed  as  consent.  Fleta,  lib.  4,  c. 
26,  ?  4. 

Longa  possessio  eat  pacia  jus.  Long  possession 
is  the  law  of  peace.    Coke,  Litt.  6. 

Longa  possessio  parit  jus  poaaidendi,  et  tollit  ac- 
tionem rero  domino.  Long  possession  produces  the 
right  of  possession,  and  takes  away  from  the  true 
owner  his  action.    Coke,  Litt.  110. 

Longum  tempua,  et  longus  nsus  qui  excedit  memoria 
hominum,  sufficit  pro  jure.  Long  time,  and  long  use 
beyond  the  memory  of  man,  suffices  for  right.  Coke, 
Litt.  115. 

Loquenduin  ut  vnlgus,  sentiendum  ut  docti.  We 
should  speak  as  the  common  people,  we  should 
think  as  the  learned.    7  Coke.  11. 

Lubricum  lingute  nan  facile  trahendum  eat  in 
poenam.  The  slipperiness  of  the  tongue  i.e.  its  lia- 
bility to  err — ought  not  lightly  to  be  subjected  to 
punishment.    Croke  Car.  117. 

Lucrum  facere  ex  pupilli  tutela  tutor  non  debet. 
A  guardian  oujiht  not  to  make  money  out  of  the 
guardianship  of  his  ward.  1  Johns.  Ch.  N.  Y.  527, 
535. 

Lunaticus,  qui  gaudet  in  lucidia  intervallia.  He 
is  a  lunatic  who  enjoys  lucid  intervals.  1  Story, 
Contr.  4th  ed.  70. 

Jfagia  dignnm  trahit  ad  ae  minua  dignum.  The 
more  worthy  draws  to  itself  the  less  worthy.  Year 
B.  20  Hen.  VI.  2  arg. 

Magister  rerum  usus;  magiatra  rerum  experientia. 
Use  is  the  master  of  things  ;  experience  is  the  mis- 
tress of  things.  Coke,  Litt.  69,  229;  Wingate, 
Max.  752. 

Magna  Charta  and  Chartn  de  Forestd  are  called 
les  deux  grand  charters.  Magna  Charta  and  the 
Charter  of  the  Forest  are  called  the  two  great  char- 
ters.   Coke,  2d  Inst.  570. 

Magna  culpa  dolus  est.  Great  neglect  is  equiva- 
lent to  fraud.  Dig.  50.  16.  226;  2  Spears,  So.  C. 
256  ;  1  Bouvier,  Inst.  n.  646. 

3Iagna.  negligentia  cxdpa  est,  magna  culpa  dolus 
est.  Gross  negligence  is  a  fault,  gross  fault  is  a 
fraud.  Dig.  50.  16.  226.  Culpa  is  an  intermediate 
degree  of  negligence  between  negligentia,  or  lack  of 
energetic  care,  and  dolus,  or  fraud,  seeming  to  ap- 
proach nearly  to  our  "negligence"  in  meaning. 

Mahemium  est  homicidium  Inchoatum.  Mayhem 
is  incipient  homicide.    Coke,  3d  Inst.  118. 

Maihemitim  est  inter  crimina  majora  minimum,  et 
inter  minora  maximum.  Mayhem  is  the  least  of 
great  crimes,  and  the  greatest  of  small.  Coke,  Litt. 
127. 

3fajor  hsereditaa  venit  unicuique  nostrum  a  jure  et 
legibus  quam  a  parentibua.  A  greater  inheritance 
comes  to  every  one  of  us  from  right  and  the  laws 
than  from  parents.    Coke,  2d  Inst.  56. 

Major  numei-ua  in  se  continet  minorem.  The  greater 
number  contains  in  itself  the  less.    Bracton,  16. 

Majore  poena  affectua  quam  legibua  atafuta  est,  non 
eat  infamis.  One  affected  with  a  greater  punish- 
ment than  is  provided  by  law  is  not  infamous. 
Coke,  4th  Inst.  66. 

Mnjori  continet  in  se  minua.  The  greater  includes 
the  less.    19  Viner,  Abr.  379. 

Majori  aumnise  7ninor  inesf.  The  lesser  is  included 
in  the  greater  sum.  2  Kent,  Comm.  618;  Story, 
Ag.  §172. 

Majua  dignum  trahit  ad  ae  minua  dignum.  The 
more  worthy  or  the  greater  draws  to  it  the  less 
worthy  or  the  lesser.  5  Viner,  Abr.  584,  586  ;  Coke, 
Litt.  43,  355  b;  Coke,  2d  Inst.  307  ;  Finch,  Law,  22. 

Mnjus  eat  delictum  seipsum  occidere  quam  alium. 
It  is  a  greater  crime  to  kill  one's  self  than  another. 


MAXIM 


138 


MAXIM 


Mala  grammatica  non  viiiat  chartam;  sed  in  cx- 
posiiione  inatritmentoriim  inula  grammatica  quoad 
fieri  jiossit  evitanda  est.  Bad  grammar  does  not 
vitiate  a  deed;  but  in  the  construction  of  instru- 
ments, bad  grammar,  as  far  as  it  can  be  done,  is  to 
be  avoided.  6  Coke,  oU ;  9  id.  48;  Viner,  Abr. 
Grammar  (A) ;  Loflft,  441 ;  Broom,  Max.  3d  Lond. 
ed.  612. 

Maledicta  expositio  qiise  corrumpit  texium.  It  is 
a  cursed  construction  which  corrupts  the  text.  2 
Coke,  24;  4  id.  35  ;  11  id.  34;  Wingate,  Max.  26. 

Jifaleficia  non  debcnt  remanere  impunita ,  et  im- 
punitas  continnum  affectum  tribuit  delinquenti.  Evil 
deeds  ought  not  to  remain  unpunished,  and  impunity 
alfords  continual  incitement  to  the  delinquent.  4 
Coke,  45. 

Mahficia  propositis  distinguunttir.  Evil  deeds 
are  distinguished  from  evil  purposes.  Jenk.  Cent. 
Cas.  290. 

Malitia  est  acida,  est  malt  animi  affectus.  Malice 
is  sour,  it  is  the  quality  of  a  bad  mind.  2  Bulstr.  49. 

3fali(ia  snpplet  tetatem.  Malice  supplies  age.  Dy. 
104;  1  Blackstone,  Comm.  464;  4  )^.22,23,  312, 
Broom,  Max.  3d  Lond.  ed.  284.    See  Malice. 

Malum  hominum  est  obviandum.  The  malicious 
plans  of  men  must  be  avoided.    4  Coke,  15. 

Malum  non  habet  efficientem,  sed  deficientem  cau- 
sam.  Evil  has  not  an  efficient,  but  a  deficient, 
cause.    Coke,  3d  Inst.  Proeme. 

Malum  non  prifsumitur.  Evil  is  not  presumed.  4 
Coke,  72  ;  Branch,  Princ. 

Malum  quo  communins  en  pejus.  The  more  com- 
mon the  evil,  the  worse.    Branch,  Princ. 

Mains  usus  est  abolendns.  An  evil  custom  is  to 
be  abolished.  Coke,  Litt.  141  ;  Broom,  Max.  3d 
Lond.  ed.  827:  Littleton,  ^212;  5  Q.  B.  701;  12 
id.  845;  2  Mylne  &  K.  449. 

Mandata  liciia  strictam  recipiunt  interpretationem, 
sed  illicita  latam  et  extensam.  Lawful  commands 
receive  a  strict  interpretation,  but  unlawful,  a  wide 
or  broad  construction.    Bacon,  Max.  Reg.  16. 

Mandatarins  terminos  sibi  positos  transgredi  non 
potest.  A  mandatary  cannot  exceed  the  bounds  of 
his  authority.    Jenk.  Cent.  Cas.  53. 

Mandatuin  nisi  gratuitnm  nullum  est.  Unless  a 
mandate  is  gratuitous,  it  is  not  a  mandate.  Dig. 
17.  1.  1.  4;  Inst.  3.  27;  1  Bouvier,  Inst.  n.  1070. 

Manifesta  probatione  non  iudi(/ent.  Manifest 
things  require  no  proof.    7  Ccke,  40  b. 

Maris  et  fveminse  conjunctio  est  de  jure  nntur/e. 
The  union  of  male  and  female  is  founded  on  the 
law  of  nature.    7  Coke,  13. 

Matrimonia  debent  esse  libera.  Marriages  ought 
to  be  free.    Halkers,  Max.  86  ;  2  Kent,  Comm.  102. 

Matrimonium  subsequens  tollit peccattim prsecedens. 
A  subsequent  marriage  cures  preceding  criminality. 

Matter  en  ley  ne  serra  mise  en  bonche  del  jurors. 
Matter  of  laws  shall  not  be  put  into  the  mouth  of 
jurors.    Jenk.  Cent.  Cas.  180. 

ifaturiora  sunt  vota  mulierum  qunm  rirornm.  The 
wishes  of  women  are  of  quicker  growth  than  those 
of  men  ;  i.e.  women  arrive  at  maturity  earlier  than 
men.    6  Coke,  71  a;  Bracton,  86  b. 

Maxime  ita  dicta  quia  maxima  est  ejus  dignitaa  et 
certitsima  anctoritas,  atque  quod  maxime  omnibus 
probrtur.  A  maxim  is  so  called  because  its  dignity 
is  chiefest,  and  its  authority  the  most  certain,  and 
because  universally  approved  by  all.  Coke,  Litt. 
11. 

Maximi  pnci  snnt  contraria,  vis  et  injuria.  The 
greatest  enemies  to  peace  are  force  and  wrong. 
Coke,  Litt.  161. 

Maximus  erroris  populua  magiater.  The  people  is 
the  greatest  master  of  error.  Bacon. 

Melior  est  causa  poasidentis.  The  cause  of  the 
pos8Pfi.«or  is  preferable.    Dig.  50.  17.  126.  2. 

Melior  est  conditio  de/endcntis.  The  cause  of  the 
defendant  is  the  better.  Broom,  Max.  3d  Lond.  ed. 
^39,  642  ;  Dig.  50.  17.  126.  2  ;  liob.  199 ;  1  Mass.  66. 


Melior  est  conditio  possidentis  et  rei  quam  actoris. 
Better  is  the  condition  of  the  possessor  and  that  of 
the  defendant  than  that  of  the  plaintiflF.  Coke, 
4th  Inst.  180;  Vaugh.  58,  60;  Hob.  103. 

Melior  est  conditio  possidentis,  ubi  neuter  jus  habet. 
Better  is  the  condition  of  the  possessor  whero 
neither  of  the  two  has  a  right.  Jenk.  Cent.  Cas, 
118. 

Jfelior  est  justitia  vere  prsereniens  quam  aeveri 
puniena.  That  justice  which  justly  prevents  a  crime 
is  better  than  that  which  severely  punishes  it. 

j      Mcliorem  conditionem  auum  j'acere  jyotest  minor. 

i  deteriorem  ncquaquam.  A  minor  can  improve  ov 
make  his  condition  better,  but  never  worse.  Coke, 
Litt.  337  b. 

Melius  est  in  tempore  occurrere,  quam  post  causajn 
vulneratum  rcmedium  quserere.  It  is  better  to  re- 
strain or  meet  a  thing  in  time,  than  to  seek  a 
remedy  alter  a  wrong  has  been  inflicted.  Coke, 
2d  Inst.  299. 

Melius  est  omnia  mala  pati  quam  conseniire.  It  is 
better  to  suffer  every  wrong  or  ill,  than  to  consent 
to  it.    Coke,  3d  Inst.  23. 

jicliua  est  recurrere  quam  malo  currere.  It  is 
better  to  recede  than  to  proceed  wrongly.  Coke, 
4th  Inst.  170. 

Helena  testotoria  in  testamentia  spectanda  est.  In 
wills,  the  intention  of  the  testator  is  to  be  regarded. 
Jenk.  Cent.  Cas.  277. 

Mentiri  est  contra  mentem  ire.  To  lie  is  to  go 
against  the  mind.    3  Bulstr.  260. 

3Iercia  ajjpellatio  ad  res  mobiles  tantum  periinet. 
The  term  merchandise  belongs  to  movable  things 
only.    Dig.  50.  16.  66. 

3Iercis  appeilatione  homines  non  contineri.  Under 
the  name  of  merchandise  men  are  not  included. 
Dig.  50.  16.  207. 

31erx  est  quidquid  vendi  potest.  Merchandise  is 
whatever  can  be  sold.  3  Mete.  Mass.  365.  See 
Merchandise. 

Messis  semeniem  aequitur.  The  harvest  follows 
the  sowing.    Erskine,  Inst.  174.  26  ;  Bell,  Diet. 

Metim  est  jiromiltere,  non  dimittere.  It  is  mine  to 
promise,  not  to  discharge.    2  Rolle,  39. 

Minima  pcena  corporalia  eat  major  qualibet  pecu- 
niarid.  The  smallest  bodily  punisiiment  is  greater 
than  any  pecuniary  one.    Coke,  2d  Inst.  220. 

Minime  mutanda  sunt  quse  certain  habueruut  inter' 
prctaiionem.  Things  which  have  had  a  certain  in- 
terpretation are  to  be  altered  as  little  as  possible. 
Coke,  Litt.  365. 

Minimum  est  nihilo  jvoximum.  The  least  is  next 
to  nothing.    Bacon,  Arg.  Low's  Case  of  Tenures. 

Minor  ante  tempus  agere  no7}  potest  in  cnsu  pro- 
prietatis,  nec  etiam  convenire.  A  minor  before  ma- 
jority cannot  act  in  a  case  of  property,  nor  even 
agree.    Coke,  2d  Inst.  291. 

Minor  jurarc  non  potest.  A  minor  cannot  make 
oath.  Coke,  Litt.  172  6.  An  infant  cannot  be 
sworn  on  a  jury.    Littleton,  289. 

Minor  nrinorem  custodire  non  debet;  alios  enim 
prseaumitur  male  regere  qui  seipsum  regere  nescit.  A 
minor  ought  not  to  be  guardian  of  a  minor,  for  ho 
is  presumed  to  govern  others  ill  who  dues  not  know 
how  to  govern  himself.    Coke,  Litt.  88. 

31inor  non  tenet ur  respondere  durante  minori  trtati; 
I  nisi  in  causa  dotia,  propter  favorem.  A  minvir  is  not 
bound  to  answer  during  his  minority,  except  as  a 
matter  of  favor  in  a  cause  of  dower.    3  Bulstr.  14,3. 

3linor,  qui  infra  setatem  12  annorum  fuerit,  utlo' 
gari  non  potest,  nec  extra  legem  poni,  quia  ante  talem 
tctatemy  non  est  sub  lege  aliqud,  nec  in  decennd.  A 
minor  who  is  under  twelve  years  of  age  cannot  be 
outlawed,  nor  placed  without  the  laws,  because  be- 
fore such  age  he  is  not  under  any  laws,  nor  in  a 
decennary.    Coke,  Litt.  128. 

Minor  17  annis,  non  admittitur  fore  executoretn. 
A  minor  under  seventeen  years  of  age  is  not  ad- 
mitted to  be  an  executor.    6  Coke,  67. 


MAXIM 


139 


MAXIM 


Minus  dohit,  qui  Inrdiua  solvit;  nam  ct  tcvipnre 
minus  solritur.  lie  docs  not  pay  who  jyjiyH  too  late  : 
for,  from  the  delay,  he  is  judged  not  to  pay.  Dig. 
50.  16.  12.  1. 

Misera  est  srrvitus,  nhijus  est  vn<jum  nut  inrertum. 
It  is  a  miserable  slavery  where  tlio  law  is  vague  or 
uncertain.  Coke,  4th  Inst.  24G ;  9  Johns.  N.  Y. 
427:  II  Pet.  286. 

Mitius  impcrnnii  melius 2)aretur.  The  more  mildly 
one  commands,  the  better  is  he  obeyed.  Coke,  .'3d 
Inst.  24. 

Mobilin  non  hnbet  situm.  Moyablcs  have  no 
titus.    4  Johns.  Ch.  N.  Y.  472. 

Mohilia  personam  sequuntur,  tmmohilia  situm. 
Movable  things  follow  the  person  ;  immovable,  their 
locality.    Story,  Confl.  Laws,  3d  ed.  6H8,  6:59. 

Mohilia  sequuntur  personam.  Movables  follow 
the  person.  Story,  Confl.  Laws,  3d  ed.  638,  639  j 
Broom,  Max.  3d  Lond.  ed.  462. 

Modica  circumstantia  facti  jus  mutat.  A  small 
Circumstance  attending  an  act  may  change  the  law. 

Modus  de  noil  deeimando  non  valet.  A  modus 
(prescription)  not  to  pay  tithes  is  void.  Lofft,  427; 
Croke  Eliz.  511  ;  2  Sharswood,  Blackst.  Comm.  31. 

Modus  et  conventin  vincunt  legem.  The  form  of 
agreement  and  the  convention  of  the  parties  over- 
rule the  law.    2  Coke,  73.  ^ 

Modus  legem  dat  douationi.  The  manner  gives 
law  to  a  gift.  Coke,  Litt.  19  a;  Broom,  Max.  3d 
Lond.  ed.  615. 

Moneta  est  justum  meditim  et  mensura  rerum  com- 
ntutabilium',  namp>er  medium  monetie Jit  omnium  rerum, 
coni'euiens,  et  justa  sestimatio.  Money  is  the  just 
medium  and  measure  of  all  commutable  things,  for 
by  the  medium  of  money  a  convenient  and  just 
estimation  of  all  things  is  made.  See  1  Bouvier, 
Inst.  n.  922. 

Mouetandi  jus  comprehenditur  in  regalihus  qnie 
nunquam  a  regio  sceptro  abdicantur.  The  right  of 
coining  is  comprehended  amongst  those  rights  of 
royalty  which  are  never  relinquished  by  the  kingly 
sceptre.    Dav.  18. 

Mora  reprobatur  in  lege.  Delay  la  disapproved 
of  in  law.    Jenk.  Cent.  Cas.  51. 

Mors  dicitur  ulti/num  supplicinm.  Death  is  de- 
nominated the  extreme  penalty.  Coke,  3d  Inst. 
212. 

Mors  omnia  solvit.    Death  dissolves  all  things. 

Mortis  momentum  est  nltimuni  vif.se  momentum. 
The  last  moment  of  life  is  the  moment  of  death.  4 
Bradf.  Surr.  N.  Y.  245,  250. 

Mortuus  exitus  non  est  exitus.  To  be  dead-born  is 
not  to  be  born.  Coke,  Litt.  29.  See  2  Paige,  Ch. 
N.  Y.  35;  Domat,  liv.  prel.  t.  2,  s.  1,  n.  4,  6;  2 
Bouvier,  Inst.  nn.  1721,  1935. 

Mos  retinendus  est  Jjdelissimse  vetustatis.  A  cus- 
tom of  the  truest  antiquity  is  to  be  retained.  4 
Coke,  78. 

Mulcta  damnum  famse  non  irrogat.  A  fine  does 
not  impose  a  loss  of  reputation.  Code,  1.  54 ;  Cal- 
vinus.  Lex. 

Multa  conceduntur  per  ohliqunm  qum  non  conce- 
duntur  de  directo.  Many  things  are  conceded  indi- 
rectly which  are  not  allowed  directly.    6  Coke,  47. 

Multa  fidem  promissa  levant.  Many  promises 
lessen  confidence.    11  Cush.  Mass.  350. 

Multa  ignoramus  quse  nobis  non  laterent  si  vetervm 
li,ctio  nobis  fuit  fnmilinris.  We  are  ignorant  of 
many  things  which  would  not  be  hidden  from  us  if 
the  reading  of  old  authors  were  familiar  to  us.  10 
Coke,  73. 

Multa  in  jure  communi  contra  rationem  disputandi 
pro  communi  utilitate  introducta  sunt.  Many  things 
have  been  introduced  into  the  common  law,  with  a 
view  to  the  public  good,  which  are  inconsistent  with 
sound  reason.  Coke,  Litt.  70 ;  Broom,  Max.  3d 
Lond.  ed.  150;  2  Coke,  75.  See  3  Term,  146;  7  id. 
252. 

Multa  multa  exercitatione  facilius  quam  regulia 


pcrcipies.  You  will  perceive  many  things  much 
more  easily  by  practice  than  by  rules.  Coke,  4th 
Inst.  50. 

Multa  non  vctaf  lex,  qua;  tamen  tacitf!  (himnatnt. 
The  law  fails  to  forbid  many  things  which  yet  it  haa 
silently  condemned. 

Multa  transi  uut  cum  nniversitate  qnir  von  per  se 
transeunt.  Many  things  pass  as  a  whole  which 
would  not  pass  separately.    Coke,  Litt.  12  a. 

Mtdti  multa,  nemo  omnia  vorit.  Many  men  know 
many  things,  no  one  knows  every  thing.  Coke,  4th 
Inst.  348. 

Multi  ntilius  est  pauca  idonea  effnndere,  quam 
multis  iuutilibus  homines  gravari.  It  is  much  more 
useful  to  pour  forth  a  few  useful  things  than  to 
oppress  men  with  nmn}'  useless  thinj:s.    4  Coke,  20. 

Jfultiplex  et  indinti actum  j)arit  cunf nsionem;  et 
questiones  quo  simpl.iciores,  eo  hnidiores.  Multi- 
plicity and  indistinctness  produce  confusion  :  the 
more  simple  questions  are,  the  more  lucid  they  are. 
Hob.  335. 

Multiplicatd  transgressione  crescnt  poense  injlivtio. 
The  infliction  of  punishment  should  lie  in  propor- 
tion to  the  increase  of  crime.    Coke,  2d  Inst.  479. 

Multitudinem  decem  faciunt.  Ten  make  a  multi- 
tude.   Coke,  Litt.  247. 

Multitndo  erranfium  non  parit  errori  patrocinium. 
The  multitude  of  those  who  err  is  no  protection  for 
error.    11  Coke,  75. 

Multitudo  imperitorum  perdit  curiam.  A  multi- 
tude of  ignorant  practitioners  destroys  a  court. 
Coke,  2d  inst.  219. 

Nnturn  appetit  perfectum,  ita  et  lex.  Nature 
aspires  to  perfection,  and  so  does  the  law.  Hob. 
144. 

Natura  fidejnssionis  sit  strictissimi  juris  et  non 
durat,  vel  extendatur  de  re  ad  rem,  de  persona  ad 
personam,  de  sempore  ad  tempus.  The  nature  of  the 
contract  of  suretyship  is  strictissimi  juris,  and  cannot 
endure  nor  beextended  from  thing  to  thing,  from  per- 
son to  person,  or  from  time  to  time.  Burge,  Sur.  40. 

Natura  non  facit  saltum,  ita  nec  lex.  Nature 
makes  no  leap,  nor  does  the  law.    Coke,  Litt.  238. 

Natura  non  facit  vacuum,  nec  lex  supervacuum. 
Nature  makes  no  vacuum,  the  law  nothing  purpose- 
less.   Coke,  Litt.  79. 

Naturse  vis  maxima;  natura  bis  maxima.  The 
force  of  nature  is  greatest;  nature  is  doubly  great. 
Coke,  2d  Inst.  564. 

Naturale  est  quidlibet  dissolvi  eo  modo  quo  ligntur. 
It  is  natural  for  a  thing  to  be  unbound  in  the  same 
way  in  which  it  was  bound.  Jenk.  Cent.  C  as.  66  ;  4 
Dev.  N.  Y.  414,  417;  Broom,  Max.  3d  Lond.  ed. 
785. 

Nec  curia  dejiceret  in  justitid  exhibendd.  Nor 
should  the  court  be  deficient  in  showing  justice. 
Coke,  4th  Inst.  63. 

Nec  tempus  nec  locus  occurrit  regi.  Neither  time 
nor  place  bars  the  king.    Jenk.  Cent.  Cas.  190. 

Nec  veniam  effuso  sanguine,  casus  habet.  Where 
blood  is  spilled,  the  case  is  unpardonable.  Coke,  3d 
Inst.  57. 

Nec  veniam,  Iseso  numine,  casus  habet.  Where  tho 
Divinity  is  insulted  the  case  is  unpardonable.  Jenk. 
Cent.  Cas.  167. 

Necessarium  est  quod  non  potest  nliter  se  habere. 
That  is  necessary  which  cannot  be  otherwise. 

Necessitus  est  lex  temporis  et  loci.  Necessity  is 
the  law  of  a  particular  time  and  place.  8  Coke,  69; 
Hale,  Hist.  PI.  Cr.  54. 

Necessitas  excusat  aut  extenuat  delictum  in  capi- 
talihus,  quod  non  vperatur  idem  in  rivilibus.  Neces- 
sity excuses  or  extenuates  delinquency  in  capital 
cases,  but  not  in  civil.    See  Necessity. 

Necexsitas  facit  licitum  quod  alias  non  est  licitum. 
Necessity  makes  that  lawful  which  otherwise  is  un- 
lawful.   10  Coke,  61. 

Necessitas  inducit  privileyium  quoad  jura  privaia 


MAXIM 


140 


MAXIM 


With  re.2;ard  to  private  rights,  necessity  privileges. 
Bacon,  Max.  Reg.  5. 

Ntcessitas  non  habet  legem.  Necessity  has  no  law. 
Plowd.  18.  See  Necessity,  and  15  Viner,  Abr.  534 ; 
22  id.  540. 

Necessitas  pxihlica  major  est  quam  privata.  Pub- 
lic necessity  is  greater  than  private.  Bacon,  Max. 
Reg.  5 ;  Noy,  Max.  9th  ed.  34 ;  Broom,  Max.  3d 
Lond.  ed.  18. 

Necessitas,  quod  cogit,  defendit.  Necessity  de- 
fends what  it  compels.    Hale,  Hist.  PI.  Cr.  54. 

Necessitas  sab  lege  non  continetur,  quia  quod  alias 
non  est  licitum  necessitas  facil  licitum.  Necessity  is 
not  restrained  by  law;  since  what  otherwise  is  not 
lawful,  necessity  makes  lawful.  Coke,  2d  Inst. 
326 ;  Fleta,  1.  5,  c.  23,  g  14. 

Necessitas  vincit  legem.  Necessity  overcomes  the 
law.    Hob.  144. 

Necessity  creates  equity. 

Negntio  concltisionis  est  error  in  lege.  The  denial 
of  a  conclusion  is  error  in  law.  Wingate,  Max. 
268. 

Negatio  destruit  negationem,  et  ambse/aciunt  affi,r- 
mationem.  A  negative  destroys  a  negative,  and 
both  make  an  affirmative.    Coke,  Litt.  146. 

Negntio  duplex  est  ajffirmatio.  A  double  negative 
is  an  affirmative. 

Negligentia  semper  habet  infortuniam  r.omitem. 
Negligence  always  has  misfortune  for  a  companion. 
Coke,  Litt.  246;  Sheppard,  Touchst.  476. 

Neminem  oportet  esse  sapientiorem  iegihus.  No 
man  need  be  wiser  than  the  laws.    Coke,  Litt.  97. 

Nemo  aduiittendus  est  inhabilitare  seipsum.  No 
one  is  allowed  to  incapacitate  himself.  Jenk.  Cent. 
Cas.  40.  But  see  To  Stultify;  5  Whart.  Penn. 
371 ;  2  Kent,  Comm.  451,  n. 

Nemo  agit  in  seipsum.  No  man  acts  against  him- 
self, Jenk.  Cent.  Cas.  40:  therefore  no  man  can  be 
a  judire  in  his  own  cause.  Broom.  Max.  3d  Lond. 
ed.  201,  n. ;  4  Bingh.  151 ;  2  Exch.  595  ;  18  C.  B. 
253  ;  2  Barnew.  &  Aid.  822. 

Nemo  alienee  rei,  sine  satisdati one,  defensor  idoneus 
intelligitur.  No  man  is  considered  a  competent  de- 
fender of  another's  property,  without  security.  1 
Curt.  C.  C.  202. 

Nemo  alieno  nomine  lege  agere  potest.  No  man 
can  sue  at  law  in  the  name  of  another.  Dig.  50. 
17.  123. 

Nemo  aliquam  partem  recte  intelligere  potest,  ante- 
guain  totum  iterum  atque  iterum  perlegit.  No  one 
can  properly  understand  any  part  of  a  thing  till  he 
has  read  through  the  whole  again  and  again.  3 
Coke,  59. 

Nemo  allegam  suam  tnrpitndinem,  audiendns  est. 
No  one  alleging  his  own  turpitude  is  to  be  heard  as 
a  witness.  Coke,  4th  Inst.  279 ;  3  Stor.  C.  C.  514, 
516. 

Nemo  bis  punitur  pro  eodem  delicto.  No  one  can 
be  punished  twice  for  the  same  crime  or  misde- 
meanor. 2  Hawkins,  PI.  Cr.  377;  4  Sharswood, 
Blackst.  Comm.  315. 

Nemo  cogitnr  rem  suam  vendere,  etiam,  Justo  pretio. 
No  one  is  l30und  to  sell  his  property,  even  for  a  just 
price.    But  see  Eminent  Domain. 

Nemo  contra  factum  suum  venire  potest.  No  man 
can  contradict  his  own  deed.    Coke,  2d  Inst.  66. 

Nemo  damnum  facit,  nisi  qui  id  fecit  quod  fa  cere 
jus  non  habet.  No  one  is  considered  as  doing 
damage,  unless  he  who  is  doing  what  he  has  no 
right  to  do.    Dig.  50.  17.  151. 

Nemo  dot  qui  non  habet.  No  one  can  give  who 
does  not  possess.    Jenk.  Cent.  Cas.  250. 

Nemo  dc  domo  sua  extrahi  debet.  A  citizen  can- 
not be  taken  by  force  from  his  house  to  be  conducted 
before  a  judge  or  to  prison.  Dig.  50. 17.  103.  This 
maxim  in  favor  of  Roman  liberty  is  much  the  same 
as  that  every  man's  house  is  his  castle.  Broom,  Max. 
3d  Lond.  ed.  384. 

Nemo  debet  aliend  jacturd  locupletari.    No  one 


ought  to  gain  by  another's  loss.    2  Kent,  Comm. 
336. 

Nemo  debet  bis  puniri  pro  uno  delicto.  No  one 
ought  to  be  punished  twice  for  the  same  offence.  4 
Coke,  43;  11  id.  59  6. 

Nemo  debet  bis  vexari  pro  eadem  causa.  No  one 
should  be  twice  harassed  for  the  same  cause.  2 
Johns.  N.  Y.  24,  27,  182;  13  id.  153;  8  Wend  N. 
Y.  10,  38;  2  Hall,  N.  Y.  454;  3  Hill,  N.  Y.  420;  6 
id.  133 ;  2  Barb.  N.  Y.  285 ;  6  id.  32. 

Nemo  debet  bis  vexari  pro  una  et  eadem  causa.  No 
one  ought  to  be  twice  vexed  for  the  same  cause.  5 
Pet.  61;  1  Archbold,  Pract.  Chitty  ed.  476  {Nemo 
bis  debet,  etc.);  2  Mass.  355;  17  id.  42^. 

Nemo  debet  bis  vexari,  si  constat  cnrise  quod  sit  pro 
una  et  eadem  causa.  No  man  ought  to  be  twice 
punished,  if  it  appear  to  the  court  that  it  is  for  one 
and  the  same  cause.  5  Coke,  61 ;  Broom,  Max.  3d 
Lond.  ed.  294. 

Nemo  debet  esse  judex  in  propria  causa.  No  one 
should  be  judge  in  his  own  cause.  12  Coke,  114; 
Broom,  Max.  3d  Lond.  ed.  111. 

Nemo  debet  immiscere  se  rei  alienee — ad  se  nihil 
pertinehti.  No  one  should  interfere  in  what  no  way 
concerns  him.    Jenk.  Cent.  Cas.  18. 

Nemo  debet  in  communione  invitus  teneri.  No  one 
should  be  retained  in  a  partnership  against  his  will. 
2  Sandf.  Jr.  Y.  568,  593:  1  Johns.  N.  Y.  106,  114. 

Nemo  debet  locupletari  ex  altcrius  incommodo.  No 
one  ought  to  be  made  rich  out  of  another's  loss, 
Jenk.  Cent.  Cas.  4;  10  Barb.  N.  Y.  626,  633. 

Nemo  debet  rem  suam  sine  facto  out  -defectu  sua 
amittere.  No  one  should  lose  his  property  without 
his  act  or  negligence.    Coke,  Litt.  263. 

Nemo  duobuH  ntatur  ojfficiis.  No  one  should  fill 
two  offices.    Coke,  4th  Inst.  100. 

Nemo  ejusdem  tenementi  simul  potest  esse  heeres  et 
dominus.  No  one  can  be  at  the  same  time  heir  and 
lord  of  the  same  fief.  1  Reeve,  Hist.  Eng.  Law, 
106. 

Nemo  est  heeres  viventis.  No  one  is  an  heir  to  tho 
living.  Coke,  Litt.  22  b;  2  Blackstone,  Comm.  70, 
107,  208;  Viner,  Abr.  ^6e^once;  2  Bouvier,  Inst. 
1694,  1832 ;  2  Johns.  N.  Y.  36. 

Nemo  ex  alterius  facto  prsegravari  debet.  No  man 
ought  to  be  burdened  in  consequence  of  another's 
act.  2  Kent,  Comm.  646:  Pothier,  Obi.  Evans  ed, 
133. 

Nemo  ex  consilio  obligatur.  No  man  is  bound  for  I 
the  advice  he  gives.    Storj',  Bailm.  ^  155,  '  ' 

Nemo  ex  propria  dolo  cnnsequitur  actionem.  No 
one  acquires  a  right  of  action  from  his  own  wrong. 
Broom,  Max.  3d  Lond.  ed.  270. 

Nemo  ex  suo  delicto  meliorem  suam  conditionem 
facere  potest.  No  one  can  improve  his  condition  by 
his  own  wrong.    Dig.  60.  17.  134.  1. 

Nemo  in  propria  causa  testis  esse  debet.  No  one 
can  be  a  witness  in  his  own  cause.  But  to  this  rule 
there  are  many  exceptions.  1  Sharswood,  Blackst. 
Comm.  443;  3  id.  370. 

Nemo  inauditus  condemnari  debet,  si  non  sit  con^ 
tumax.  No  man  ought  to  be  condemned  unheard, 
unless  he  be  contumacious.    Jenk.  Cent.  Cas.  18. 

Nemo  militans  Deo  iniplicetur  secularibus  negotiia. 
No  man  warring  for  God  should  be  troubled  by 
secular  business.    Coke,  Litt.  70. 

Nemo  nascitur  artifex.  No  one  is  born  an  artifi- 
cer.   Coke,  Litt.  97. 

Nemo  patriam  in  qua  vatus  est  exuere,  nec  ligean- 
tite  debitum  ejurare  possit.  No  man  can  renounce 
the  country  in  which  he  was  born,  nor  abjure  the 
obligation  of  liis  allegiance.  Coke,  Litt.  129  a;  3 
Pet.  155  ;  Broom,  Max.  3d  Lond.  ed.  72.  See  Al- 
legiance ;  Expatriation;  Nati'iialization. 

Nemo  plus  commodi  heredi  suo  relinquit  quam  tpat 
habuit.  No  one  leaves  a  greater  benefit  to  hil 
heir  than  he  had  himself.    Dig.  50.  17.  120. 

Nemo  plus  juris  ad  alienum  transferre  potest,  qucLtn 
ipse  habet.    One  cannot  transfer  to  another  a  larger 


MAXIM 


141 


MAXIM 


rigbt  than  he  himself  has.  C(/ke,  Litt.  309  b; 
Wingate,  Max.  56;  2  Kent,  Comm.  324;  1  Story, 
Contr.  4th  ed.  417,  n. ;  5  Coke,  113;  10  Pet.  161, 
175. 

Nemo  potest  contra  recordum  verijicare  per  pn- 
tn'am.  No  one  can  verify  by  the  country  a;rainst 
a  record.  The  issue  upon  a  record  cannot  be  tried 
by  a  jury.    Coke,  2d  Inst.  380. 

Netiio  pnti'Ht  eHue  domiiiuH  et  hfcrcs.  No  one  can 
be  both  owner  and  heir.  Hale,  Hist.  Com.  Law,  c.  7. 

Nemo  j^ottHt  esse  simnl  actor  et  judex.  No  one  can 
be  at  the  same  time  judge  and  suitor.  Broom,  Max. 
3d  Lond.  ed.  112;  13  Q.  B.  327  ;  17  id.  1 ;  15  C. 
B.  796;  1  C.  B.  n.  s.  323. 

Nemo  potest  esse  tenens  et  dovnnits.  No  man  can 
be  at  the  same  time  tenant  and  landlord  (of  the 
same  tenement).    Gilbert,  Ten.  102. 

Nemo  pottat  facere  per  dlhim  quod  per  se  non  po- 
test. No  one  can  do  that  by  another  which  he  can- 
not do  by  himself.    Jenk.  Cent.  Cas.  237. 

Nemo  potest  facere  per  ohliquum  quod  non  potest 
far  ere  per  directum.  No  one  can  do  that  indirectly 
which  cannot  be  done  directly.    1  Ed.  Ch.  512. 

Nemo  potest  vintare  consilium  simm  in  alterius  in- 
juriam.  No  one  can  change  his  purpose  to  the  in- 
jury of  another.  Dig.  50.  17.  75;  Broom,  Max.  3d 
Lond.  ed.  33 ;  7  Johns.  N.  Y.  477. 

Nemo  potest  sibi  debcre.  No  one  can  owe  to  him- 
self.   See  Confusion  of  Rights. 

Nemo  prgp.sens  nisi  intelligat.  One  is  not  present 
unless  he  understands.    See  Presence. 

Nemo  prsesuntitur  alievam  posteritatem  snse  prsetu- 
lisse.  No  one  is  presumed  to  have  preferred  an- 
other's posterity  to^his  own.    Wingate,  Max.  285. 

Nemo  prxmmitur^donare.  No  one  is  presumed  to 
give. 

Nemo  prsesumitur  esse  immemor  suse  seternm  salufis, 
et  maxime  in  articuto  mortis.  No  man  is  presumed 
to  be  forgetful  of  his  eternal  welfare,  and  particu- 
larly at  the  point  of  death.    6  Coke,  76. 

Nemo  prsBHumitur  ludere  in  extremis.  No  one  is 
presumed  to  trifle  at  the  point  of  death. 

Nemo  preesumitur  malus.  No  one  is  presumed  to 
be  bad. 

Nemo  prohibetur  plures  negotiationes  sive  artes 
exercere.  No  one  is  restrained  from  exercising 
several  kinds  of  business  or  arts.    11  Coke,  54. 

Nemo  prohibetur  pluribus  defensionibus  uti.  No 
one  is  restrained  from  using  several  defences.  Coke, 
Litt.  304;  Wingate,  Max.  479. 

Nemo  prudens  punit  ut  preeterita  revocentur,  sed  ut 
futura  prseveniantur.  No  wise  one  punishes  that 
things  done  may  be  revoked,  but  that  future  wrongs 
may  be  prevented.    3  Bulstr.  17. 

Nemo  punitur  pro  al  'eno  delicto.  No  one  is  to  be 
punished  for  the  crime  or  wrong  of  another.  Win- 
gate, Max.  3.''>6. 

Nemo  punitnr  sine  injuria,  facto,  sen  defalto.  No 
one  is  puni,«hed  unless  for  some  wrong,  act,  or  de- 
fault.   Coke,  2d  Inst.  287. 

Nemo,  qui  condemnare  potest,  absolvere  non  potest. 
No  one  who  may  condemn  is  unable  to  acquit.  Dig. 
50.  17.  37. 

Nemo  sibi  esse  judex  vel  suis  jus  dicere  debet.  No 
man  ought  to  be  his  own  judge,  or  to  administer 
justice  in  cases  where  his  relations  are  concerned. 
12  Coke,  113;  Cod.  3.  5.  1;  Broom,  Max.  3d  Lond. 
cd.  111. 

Nemo  sine  actione  experitur,  et  hoc  non  sine  breve 
sive  libeflo  conventionali.  No  one  goes  to  law  with- 
out an  action,  and  no  one  can  bring  an  action  with- 
out a  writ  or  bill.    Bracton,  112. 

Nemo  teuetnr  ad  impo.'sibife.  No  one  is  bound  to 
an  impossibility.    Jenk.  Cent.  Cas.  7. 

Nemo  tenetur  armare  adrersnrvm  contra  se.  No 
one  is  bound  to  arm  his  adversary.  Wingate,  Max. 
665. 

Nemo  tenetur  divinare.  No  one  is  bound  to  fore- 
teU.    4  Coke,  28;  10  id.  55  a. 


Nemo  tenetur  edere  instrumenta  contra  se.  No  man 
ft  bound  to  produce  writings  against  himself.  Bell, 
Diet. 

I  Nemo  tenetur  informare  qui  nescit  sed  quisquit 
scire  quod  inj'ormat.  No  one  who  is  ignorant  of  a 
thing  is  bound  to  give  information  of  it,  but  every 
one  is  bound  to  know  that  which  he  gives  inlbrma- 

I  tion  of.    Branch,  Princ. ;  Lane,  Exch.  110. 

1  Nemo  tenetur  jurare  in  suam  tnrpitudinem.  No 
one  is  bound  to  testify  to  his  own  baseness. 

Nemo  tenetur  seipsuni  accusare.    No  one  is  bound 

'  to  accuse  himself.  Wingate,  Max.  486;  Broom, 
Max.  3d  Lond.  ed.  871;    1  Sharswood,  Blackst. 

I  Comm.  443;  14  Mees.  &  W.  Exch.  286. 

I      Nemo  tenetur  seijisuyn  infortuniis  et  periculis  ex- 

\  ponere.  No  one  is  bound  to  expose  himself  to  mis- 
fortune and  dangers.    Coke,  Litt.  253. 

Nemo  tenetur  scipsnm  prodere.  No  one  is  bound 
to  expose  himself.  10  N.  Y.  10,  33  ;  7  How.  Pract. 
N.  Y.  57,  58. 

Nemo  vnquam  vir  magnus  fuit  sine  aliquo  dii'ino 
affiatu.  No  one  was  ever  a  great  man  without 
some  divine  inspiration.  Cicero. 

Nemo  videtur  J'raudare  eos  qui  sciunt,  et  consen- 
tiunt.  No  one  is  considered  as  deceiving  those  who 
know  and  consent.    Dig.  20.  17.  145. 

Nihil  uliud  potest  rex  quum  quod  de  jure  potest. 
The  king  can  do  nothing  but  what  he  can  do  justly. 
11  Coke,  74. 

Nihil  consensui  tarn  contrarium  est  quam  vis  atque 
melus.  Nothing  is  so  contrary  to  consent  as 
force  and  fear.    Dig.  50.  17.  116. 

Nihil  dat  qui  non  habet.  He  gives  nothing  who 
has  nothing. 

Nihil  de  re  accrescit  ei  qui  nihil  in  re  quando  jus 
accresceret  habet.  Nothing  accrues  to  him  who, 
when  the  right  accrues,  has  nothing  in  the  subject- 
matter.    Coke,  Litt.  188. 

Nihil  est  enim  liberale  quod  non  idem  jnstum.  For 
there  is  nothing  generous  which  is  not  at  the  same 
time  just.    2  Kent,  Coram.  441,  note  a. 

Nihil  est  magis  rationi  consentaneum  quam  eodem 
modo  quodque  dissolvere  quo  conflatum  est.  Nothing 
is  more  consonant  to  reason  than  that  every  thing 
should  be  dissolved  in  the  same  way  in  which  it 
was  made.    Sheppard,  Touchst.  323. 

Nihil  facit  error  nominis  cum  de  corpore  constat. 
An  error  in  the  name  is  nothing  when  there  is  cer- 
tainty as  to  the  thing.  11  Coke,  21;  2  Kent,  Comm. 
292. 

Nihil  habet  forum  ex  scend.  The  court  has  no- 
thing to  do  with  what  is  not  before  it. 

Nihil  in  lege  intolerabilius  est,  eandem  rem  diverso 
jure  censeri.  Nothing  in  law  is  more  intolerable 
than  that  the  same  case  should  be  subject  (in  dif- 
ferent courts)  to  different  views  of  the  law.  4 
Coke,  93. 

Nihil  infra  regnum  subditos  magis  conservat  in 
tranquilitate  et  concordid  quam  debita  legum  ad- 
minisfratio.  Nothing  preserves  in  tranquillity  and 
concord  those  who  are  subjected  to  the  same  gov- 
ernment better  thun  a  due  administration  of  the 
I  laws.    Coke,  2d  Inst.  158. 

1  Nihil  magis  justum  ext  quam  quod  necessarium  est. 
Nothing  is  more  just  than  what  is  necessary.  Dav. 
12. 

Nihil  nequam  est  prsesumendum.  Nothing  wicked 
is  to  be  presumed.    2  P.  Will.  583. 

Nihil  perfectum  est  dum  aliquid  restat  agendum. 
Nothing  is  perfect  while  something  remains  to  be 
done.    9  Coke,  9. 

Nihil  peti  potest  ante  id  tempus,  quo  per  rerum 
naturam  persolvi  possit.  Nothing  can  be  demanded 
before  that  time  when,  in  the  nature  of  things,  it 
can  be  paid.    Dig.  50.  17.  186. 

Nihil  possumus  contra  veritatem.  We  can  do 
nothing  against  truth.  St.  Albans,  Doct.  &  Stu. 
Dial.  2,  c.  6. 

Nihil  prseecribitur  nisi  quod  poaaidetur.    There  is 


MAXIM 


142 


MAXIM 


no  prescription  for  that  which  is  not  possessed.  5 
Barnew.  &  Aid.  277.  • 

Nihil  quod  est  contra  rationem  est  licitum.  No- 
thing against  reason  is  lawful.    Coke,  Litt.  97. 

iMhil  quod  est  inconvenietis  eat  licitum.  Nothing 
inconvenient  is  lawful.    4  Hou.  L.  Cas.  145,  195. 

Nihil  simiil  iiiventum  est  et  perfectum.  Nothing 
is  invented  and  perfected  at  the  same  moment. 
Coke,  Litt.  2;;0 ;  2  Sharswood,  Blackst.  Comm. 
298,  n. 

Nihil  tain  conveniens  est  naturali  aeqvitati  quam 
nnumqaudqae  dissolvi  eo  liyamine  quo  liyatum  est. 
Nothing  is  so  consonant  to  natural  equity  as  that 
each  thing  should  be  dissolved  by  the  same  means 
by  which  it  was  bound.  Coke,  2d  Inst.  360  ;  Broom, 
Max.  3d  Lond.  ed.  785.  Sec  Sheppard,  Touchst. 
323. 

Nihil  tarn,  conveniens  est  naturali  lequitati,  qudm 
voluntatem  doinini  volentis  rem  suam  iii  alinin  trans- 
ferre,  ratam  haberi.  Nothing  is  more  conformable 
to  natural  equity  than  to  confirm  the  will  of  an 
owner  who  desires  to  transfer  his  property  to  an- 
other.   Inst.  2.  1.  40;  1  Coke,  100. 

Nihil  tarn  naturale  est,  qudm  eo  (jenere  quidque 
dissolvere,  quo  colliyatuni  est.  Nothing  is  so  natural 
as  that  an  obligation  should  be  dissolved  by  the 
same  principles  which  were  observed  in  contracting 
it.  Dig.  50.  17.  35.  See  1  Coke,  100;  Coke,  2d 
Inst.  359. 

Nihil  tnm  projyrium  imperio  qunm  lerjibus  vivere. 
Nothing  is  so  becoming  to  authority  as  to  live  ac- 
cording to  the  law.  Fleta,  1.  1,  c.  17,  §  11 ;  Coke, 
2d  Inst.  63. 

Nil  ay  it  exeniplu  m  litem  quod  lite  resolvit.  An 
example  does  no  good  which  settles  one  question 
by  another.    Hatch  vs.  Mann,  15  Wend,  44,  49. 

Nil  facit  error  voininis  si  de  corpnre  constat.  An 
error  in  the  name  is  immaterial  if  the  body  is  cer- 
tain. Broom,  Max.  3d  Lond.  ed.  566;  11  C.  B. 
406. 

Nil  sine  prudenti  fecit  rntinne  vetustas.  Antiquity 
did  nothing  without  a  good  reason.    Coke,  Litt.  65. 

Nil  teinere  novandum.  Nothing  should  be  rashly 
changed.    Jenk.  Cent.  Cas.  163. 

Niinia  subtilitas  in  jure  reprobatur,  et  talis  certi- 
tudo  certitudinem  confundit.  Too  great  subtlety 
is  disapproved  of  in  law;  for  such  nice  pretence 
of  certainty  confounds  true  and  legal  certainty. 
Broom,  Max.  3d  Lond.  ed.  175;  4  Coke,  5. 

Niniiuni  altercando  Veritas  amittitur.  By  too 
much  altercation  truth  is  lost.    Hob.  344. 

No  man  can  hold  the  same  land  immediately  of 
two  several  landlords.    Coke,  Litt.  152. 

No  man  is  presumed  to  do  any  thiny  ayainst  na- 
ture.   22  Viner,  Abr.  154. 

No  man  may  bejudye  in  his  own  cause. 

No  man  shall  set  up  his  infamy  as  a  defence.  2 
W.  Blackst.  364. 

No  man  shall  take  by  deed  but  parties,  unless  in 
remainder. 

No  one  can  qrant  or  convey  what  he  does  not  own. 
25  Barb,  N.  y!  284,  301.  See  20  Wend.  N.  Y.  267; 
23  N.Y.  252;  13  id.  121;  6  Du.  N.  Y.  232.  And 
Bee  EsTOPPKL. 

Nobiles  mayia  plectnntur  pecvnid;  plebes  vera  in 
corpora.  The  higher  classes  are  more  punished  in 
money;  but  the  lower  in  person.  Coke,  3d  Inst. 
220. 

Nobiles  aunt  qui  armo  yentilitia  antfC€»sorum 
euorum  proferre  poasunt.  The  gentry  are  those  who 
are  able  to  produce  armorial  benrings  derived  by 
descent  from  their  own  ancestors.  Coke,  2d  Inst. 
695. 

Nohiliorea  et  beniyniorea  preaumptionea  in  dubiia 
aunt  praferendfp..  When  doubts  arise,  the  most 
generous  and  benign  presumptions  are  to  be  pre- 
ferred.   Keg.  Jur.  Civ. 

Nonien  est  quasi  rei  uotamen.  A  name  is  as  it 
were  \he  note  of  a  thing.    11  Coke,  20. 


Nomen  non  suj/icit  si  res  non  sit  de  jure  aut  de 
facto.  A  name  does  not  suffice  if  the  thing  do  not 
exist  by  law  or  by  fact.    4  Coke,  107. 

Nomina  si  tiescis  ^je/tt  coynitio  rerum.  If  you 
know  not  the  names  of  things,  the  knowledge  of 
things  themselves  perishes.    Coke,  Litt.  86, 

Nomina  sunt  inutabilia,  res  uutem  immobiles. 
Names  are  mutable,  but  things  immutable.  6 
Coke,  66. 

Nomina  stint  noise  rerum.  Names  are  the  notes 
of  things.    11  Coke,  20. 

Nomina  sunt  eymbola  rerum.  Names  are  the 
symbols  of  things. 

Non  accipi  debent  verba  in  demonstrationem 
falsam,  quse  competunt  in  limitaiionem  veram. 
Words  ought  nut  to  be  accepted  to  import  a  false 
description,  which  may  have  efl'ect  by  wjiy  of  true 
limitation.  Bacon,  Max,  Reg.  13 ;  2  Parsons, 
Contr.  01'-65;  Broom,  Max.  3d  Lond,  ed.  573;  3 
Barncw.  &  Ad.  469;  4  Exch,  604;  3  Taunt,  147. 

Non  alio  niodo  puniatur  aliquis,  quam  seczivdum 
qimd  se  habet  condemnatio.  A  person  may  not  be 
pi  ni.^hed  difftrently  than  according  to  what  the 
sentence  enjoins.    C(  ke,  3d  Inst.  217. 

Non  aliter  d  siynifcutione  verborum,  recedi  oportet 
quam  cum  manijestum  est,  aliud  sensisse  textotorem. 
We  must  never  depart  from  the  signification  of 
words,  unless  it  is  evident  that  they  are  not  con- 
formable to  the  will  of  the  testator.  Dig.  32.  69 
pr. ;  Broom,  Max.  3d  Lond,  ed.  500;  2  De  Gex.  M. 
&  G.  Ch.  313. 

Non  auditur  perire  volena.  One  who  wishes  to 
perish  ought  not  to  be  beard.    Best,  Ev,  ^  385. 

Non  conceduntur  citationes  priusquam  euprimafur  ; 
super  qua  re  Jieri  decet  citatio.    Summonses  or  cita-  ! 
tions  should  not  be  granted  before  it  is  expressed 
upon  what  ground  a  citation  ought  to  be  issued. 
12  Coke,  47.  , 

Niin  consentit  qui  errat.  He  who  errs  does  not 
consent.    1  Bouvier,  Inst.  n.  581;  BracUm,  44.  ' 

Non  dat  qui  non  habet.  He  gives  nothing  who 
has  nothing.    Broom,  Max.  3d  Lond.  ed.  417. 

Non  dcbeo  melioris  conditionis  esse,  quam  uuctor _ 
mens  d  quo  jus  in  me  transit.  I  ought  not  to  be  in  , 
better  condition  than  he  to  whose  rights  I  succeed. ' 
Dig.  50,  17.  175.  1.  f 

Non  deberet  alii  nocere,  quod  inter  alios  actutn'i^ 
esset.  No  one  ought  to  be  injured  by  that  which{ 
has  taken  place  between  other  parties.  Dig.  12.  2.; 
10.  ^  i 

Non  debet  adduci  eocceptio  ejus  rei  cujus  petitur''' 
dissolutio.  A  plea  of  the  same  matter  the  dissolu-j 
tion  of  which  is  sought  ought  not  to  be  made. 
Bacon,  Max.  Reg.  2;  Broom,  Max.  3d  Lond.  ed. 
157;  3  P,  Will.  317;  1  Ld.  Raym.  57;  2  id.  1433. 

Non  debet  alteri  per  alterum  iuiqua  conditio  in- 
ferri.  A  burdensome  condition  ought  not  to  be 
brought  upon  one  man  by  the  act  of  another.  Dig. 
50.  17.  74. 

Non  debet,  cui  plus  licet,  quod  minus  est,  non 
licere.  He  who  is  permitted  to  do  the  greater  may 
with  greater  reason  do  the  less.  Dig.  50.  17.  21 ; 
Broom,  Max.  3d  Lond.  ed.  165. 

Non  debit  actori  licere,  quod  reo  non  permittiiur. 
That  which  is  not  permitted  to  the  defendant  ought  i 
not  to  be  to  the  plaintiff.    Dig.  50.  17.  41.  ) 

Non  decet  homines  dcdcre  causa  non  coynita.    It  [ 
is  unbecoming  to  surrender  men  when  no  cause  is 
shown.    4  Johns.  Ch.  N.Y.  106,  114;  3  Wheel. 
Crim.  N.  Y.  473,  482, 

Non  decipitur  qui  scit  se  decipi.  He  is  not  de- 
ceived who  knows  himsqlf  to  be  deceived.  6  Coke, 
60. 

Non  dejtnitur  in  jure  quid  ait  conatua.  What  an 
attempt  is,  is  not  defined  in  law.    6  Coke,  42. 

Non  differunt  quae  concordant  re,  tametsi  non  in 
verbis  iisdcm.  Those  things  which  agree  in  sub- 
stance, though  not  in  the  same  words,  do  not  differ. 
Jenk.  Cent.  Cas.  70. 


MAXIM 


143 


MAXIM 


Non  dubitatur,  etsi  specialiter  venditor  evictionem  j 
«tort  pnmu'neril,  re  evicfd,  ex  empto  competere  actionem. 
It  is  certain  that  although  the  vendor  has  not 
given  a  special  guarantee,  an  action  ex  empto  lies  | 
against  hiui,  if  the  purchaser  is  evicted.    C.  8.  45. 

But  see  Doctor  <fc  Stud.  b.  2,  c.  47;  Broom, 
Max.  3d  L  )nd.  ed.  690.  I 

Non  eJjUcit  ajfectiLS  nisi  sequatur  effectus.  The 
intention  amounts  to  nothing  unless  some  eflfect 
follows.    1  RoUe,  226.  t 

Non  est  arctius  vinculum  inter  homines  qnom  jus- 
jurandiun.  There  is  no  stronger  link  among  men 
than  an  oath.    Jenk.  Cent.  Cas.  126.  j 

Noti  est  certandntn  de  regulis  juris.  There  is  no 
disputing  about  rules  of  law. 

Non  est  dinputandum  contra  principia  negnntem. 
There  is  no  disputing  against  a  man  denying  prin- 
ciples.   Coke,  Litt.  343. 

Non  est  justnni  aliquem  antenatum  post  mortem 
facere  bnstardum,  qui  toto  tempore  vitse  suas  jjro 
legitimo  habehatur.  It  is  not  just  to  make  an  eUler- 
born  a  bastard  after  his  death,  who  during  his 
lifetime  was  accounted  legitimate.    12  Coke,  44. 

Non  est  novum  tit  priores  legis  ad  posteriores 
trnhantur.  It  is  not  a  new  thing  that  prior  statutes 
shall  give  place  to  later  ones.  Dig.  1.  3.  26;  1.  1. 
4  :  Broom,  Max.  3d  Lend.  ed.  27. 

Non  est  recedendum  d  communi  observantid.  There 
should  be  no  departure  from  a  common  observance. 
2  Coke,  74. 

Non  est  requla  quin  fallat.  There  is  no  rule  but 
what  may  fail.    Ofif.  Ex.  212. 

Non  est  singulis  concedendum,,  quod  per  magis- 
tratnm  public^  possit  fieri,  ne  occasio  sit  majoris 
tumultus  faciendi.  That  is  not  to  be  conceded  to 
private  persons  which  can  be  publicly  done  by  the 
magistrate,  lest  it  be  the  occasion  of  greater  tumults. 
Dig.  50.  17.  176. 

Non  ex  opinionibus  singidorum,  sed  ex  communi 
usu,  nomina  exaudiri  debent.  Names  of  things 
ought  to  be  understood  according  to  common  usage, 
not  according  to  the  opinions  of  individuals.  Dig. 
33.  10.  7.  2. 

Non  facias  malum,  ut  inde  veniat  bonum.  You 
are  not  to  do  evil  that  good  may  come  of  it.  11 
Coke,  74  a. 

Non  impedit  clausula  derogatoria,  quo  minus  ab 
eadem  potentate  res  dissolvantur  a  quibus  constitu- 
untur.  A  derogatory  clause  does  not  prevent  things 
or  acts  from  being  dissolved  by  the  same  power, 
by  which  they  were  originally  made.  Bacon,  Max. 
Reg.  19. 

Non  in  legendo  sed  in  intelligendo  leges  consistunt. 
The  laws  consist  not  in  being  read,  but  in  being 
understood.    8  Coke,  167. 

Non  jus,  sed  seisina  facit  stipitem.  Not  right, 
but  seisin,  makes  a  stock  from  which  the  inheritance 
must  descend.  Fleta,  1.  6,  cc.  14,  2,  §  2 ;  Noy, 
Max.  9lh  ed.  72,  n.  (6);  Broom,  Max,  3d  Lond.  ed. 
466;  2  Sharswood,  Blackst.  Comm.  209 ;  1  Stephen, 
Comm.  365,  368,  394;  4  Kent,  Comm.  388,  389;  4 
Scott,  N.  R.  468. 

Non  licet  quod  dispendio  licet.  That  which  is 
permitted  only  at  a  loss  is  not  permitted  to  be 
done.    Coke,  Litt.  127. 

Non  nasci,  et  natum  mori,  paria  sunt.  Not  to  be 
born,  and  to  be  dead-born,  are  the  same. 

Non  obliqat  lex  nisi  promulgata.  A  law  is  not 
obligatory  unless  it  be  promulgated. 

Non  observatd  forma,  infertur  adnullatio  actus. 
When  the  form  is  not  observed,  it  is  inferred  that 
the  act  is  annulled.    12  Coke,  7. 

Non  officii  conatua  nisi  sequatur  effectus.  An 
attempt  does  not  harm  unless  a  consequence  follow. 
11  Coke,  98. 

Non  omne  damnum  inducit  injnriam.  Not  every 
loss  produces  an  injury,  i.e.  gives  a  right  of  action. 
See  3  Blackstone,  Comm.  219 ;  1  Smith,  Lead.  Cas. 
131;  Broom,  Max.  93;  2  Bouvier,  Inst.  n.  2211. 


Non  omne  quod  licet  honestum  est.  It  is  not 
every  thing  which  is  permitted  that  is  honorable. 
Dig.  50.  17.  144. 

Non  omnium  qute  a  majoribus  noatris  constifnta 
sunt  ratio  reddi  potest,  A  reason  cannot  always  be 
given  for  the  institutions  of  our  ancestors.  4  Coke, 
78;  Broom,  Max.  3d  Lond.  ed.  149;  Branch,  Princ. 

Non  posscHsori  incumbit  neccssltas  probandi  poa- 
sessiones  ad  ae  jjertinere.  It  is  not  incumbent  on 
the  possessor  of  property  to  i)rove  his  right  to  bis 
possessions.  Code,  4.  19.  2;  Broom,  Max.  3d  Lond. 
ed.  639. 

Non  potest  adduci  exceptio  ejusdem  rei  cujua  petilur 
diasolutio.  A  plea  of  the  same  matter,  the  dissolu- 
tion of  which  is  sought  by  the  action,  cannot  be 
brought  forward.  Bacon,  Max.  Reg.  2.  Wheu 
an  action  is  brought  to  annul  a  proceeding,  the 
defendant  cannot  plead  such  proceeding  in  bar. 
Broom,  Max.  3d  Lond.  ed.  154;  Wingate,  Max, 
647;  3  P.  WUl.  317. 

Non  potest  probari  quod  probatum  non  relevat. 
That  cannot  be  proved  which  proved  is  irrelevant. 
See  1  Exch.  91,  92,  102. 

Non  potest  quis  sine  brevi  agere.  No  one  can  sue 
without  a  writ.    Fleta,  I.  2,  c.  13,  ^  4. 

Non  potest  rex  gratia m  facere  cum  injuria,  et 
datnno  aliorum.  The  king  cannot  confer  a  favor 
which  occasions  injury  and  loss  to  others.  Coke, 
3d  Inst.  236;  Broom,  Max.  3d  Lond.  ed.  60; 
Vaugh.  338;  2  Ell.  <fe  B.  874. 

Non  potest  rex  subditum  renitentem  onerare  im- 
positionibus.  The  king  cannot  load  a  subject  with 
imposition  against  his  consent.    Coke,  2d  Inst.  61. 

Non  potest  videri  desisse  habere,  qui  nunquam 
habuit.  He  cannot  be  considered  as  having  ceased 
to  have  a  thing,  who  never  had  it.  Dig.  50.  17. 
208. 

Non  prsestat  impedimentum  quod  de  jure  non  sorti- 
tur  effect uni.  A  thing  which  has  no  effect  in  law 
is  not  an  impediment.  Jenk.  Cent.  Cas.  162 ;  Win- 
gate,  Max.  727. 

Non  quod  dictum  est,  sed  quod  factum  est,  inspici- 
tur.  Not  what  is  said,  but  what  is  done,  is  to  be 
regarded.  Coke,  Litt.  36;  6  Bingh.  310 ;  1  Mete, 
Miiss.  353;  11  Cush.  Mass.  536. 

Nou  refert  an  quis  assensum  suum  prsefert  verbis, 
an  rebus  ipsis  et  factis.  It  is  immaterial  whether 
a  man  gives  his  assent  by  words  or  by  acts  and 
deeds.    10  Coke,  52. 

Non  refert  quid  ex  fequipoHentibus  fiat.  It  mat- 
ters not  what  becomes  of  equipollent  expressions. 
5  Coke,  122. 

Non  refert  quid  notum  sit  judici,  si  notum  non  sit 
in  forma  judicii.  It  matters  not  what  is  known 
to  the  judge,  if  it  is  not  known  to  him  judicially. 
3  Bulstr.  115. 

Non  refert  verbis  an  factis  fit  revocatio.  It  mat- 
ters not  whether  a  revocation  be  by  words  or  by 
acts.    Croke  Car.  49;  Branch,  Princ. 

Non  retnota  causa  sed  proxima  spectatur.  See 
Causa  Proxima. 

Non  respondebit  minor,  nisi  in  cau^d  dotis,  et  hoc 
pro  favore  doti.  A  minor  shall  not  answer  unless 
in  a  case  of  dower,  and  this  in  favor  of  dower.  4 
Coke,  71. 

Non  reus  nisi  mens  sit  rea.  Not  guilty  unless 
the  intent  be  guilty.    1  Story,  Contr.  4th  ed.  87. 

N^on  Solent  quas  abundant  vitiare  scripturas.  Sur- 
plusage does  not  usually  vitiate  writings.  Dig.  50. 
17.  94;  Broom,  Max.  3d  Lond.  ed.  559,  n. 

Non  solum  quid  licet,  sed  quid  est  conveniens  con- 
siderandum,  quia  nihil  quod  inconveniens  est  licitum. 
Not  only  what  is  permitted,  but  what  is  convenient, 
is  to  be  considered,  because  what  is  inconvenient  is 
illegal.    Coke,  Litt.  66  a. 

Non  sunt  longa  ubi  nihil  est  quod  demere  posaia. 
There  is  no  prolixity  where  there  is  nothing  that 
can  be  omitted.    Vaugh.  138. 

Non  temere  credere,  eat  nervut  aapientx.    Not  to 


MAXIM 


144 


MAXIM 


believe  rashly  is  the  nerve  of  wisdom.  6  Coke, 
iU. 

No)i  valet  exceptio  ejusdem  rei  cujus  petitur  dis- 
aolutio.  A  plea  of  that  of  which  the  dissolution  is 
sought  is  not  valid.    2  Ed.  Ch,  134. 

Non  valet  impedimentum  quod  dc  jure  non  sortitur 
effectum.  An  impediment  is  of  no  avail  which  by 
law  has  no  effect.    4  Coke,  31  a. 

Non  verbis  sed  ipsrs  rebus,  leges  imponimua.  Not 
upon  words,  but  upon  things  themselves,  do  we 
impose  law.    Code,  6.  43.  2. 

Non  videntur  qui  errant  consentire.  He  who  errs 
is  not  considered  as  consenting.  Dig.  50.  17.  116; 
Broom,  Max.  3d  Lond.  ed.  240;  2  Kent,  Comm. 
477;  14  Ga.  207. 

Non  videntur  rem  amittere  quihua  propria  non 
fuit.  They  are  not  considered  as  losing  a  thing 
whose  own  it  was  not.    Dig.  50.  17.  85. 

Non  videtur  consensum  retinuisse  si  quis  ex  prse- 
acripto  minantis  aliquid  immntavit.  He  does  not 
appear  to  have  retained  his  consent,  who  has 
changed  any  thing  at  the  command  of  a  party 
threatening.  Bacon,  Max.  lleg.  22;  Broom,  Max. 
3d  Lond.  ed.  254. 

Non  videtur  perfecte  cnjusque  id  esse,  quod  ex 
casu  auferri  potest.  That  does  not  truly  belong 
to  any  one  which  can  be  taken  from  him  upon  oc- 
casion.   Dig.  50.  17.  159.  1. 

Non  videtur  quisquam  id  capere,  quod  ei  necesse 
est  alii  restituere.  One  is  not  considered  as  acquir- 
ing property  in  a  thing  which  he  is  bound  to  re- 
store.   Dig.  50.  17.  51. 

No7i  videtur  vim  facere,  qui  jure  suo  iititur,  et  or- 
dinaria  actione  experitur.  He  is  not  judged  to  use 
force  who  exercises  his  own  right  and  proceeds  by 
ordinary  action.    Dig.  50.  17.  155.  1. 

Non  volet  conjirmatio,  nisi  ille,  qui  conjirmat,  sit 
in  possessione  rei  vel  juris  nude  fieri  debet  confirma- 
tio  ;  et  eodem  modo,  nisi  ille  cvi  confirmatio  fit,  sit 
in  jyossessione.  Confirmation  is  not  valid  unless  he 
who  confirms  is  either  in  possession  of  the  thing 
itself,  or  of  the  right  of  which  confirmation  is  to  be 
made,  and.  in  like  manner,  unless  he  to  whom  con- 
firmation is  made  is  in  possession.  Coke,  Litt. 
295. 

Noscitur  d  sociia.  It  is  known  from  its  associates. 
The  meaning  of  a  word  may  be  ascertained  by 
reference  to  the  meaning  of  words  associated  with 
it.  Broom,  Max.  3d  Lond.  ed.  523;  9  East,  267, 
13  id.  531 ;  6  Taunt.  294;  1  Ventr.  225  ;  1  Barnew. 

6  C.  644;  Arg.  10  id.  496,  519;  18  C.  B.  102,  893; 
5  Mann.  &  G.  639,  667;  3  C.  B.  437;  6  id.  380;  4 
Exch.  511,519;  5  u/.294;  11  id.  113;  3  Term,  87; 
8  id.  118;  1  N.  Y.  47,  69;  11  Barb.  N.  Y.  43,  63; 
20  id.  644. 

Noscitur  ex  socio,  qui  non  cognnscitnr  ex  ae.  He 
who  cannot  be  known  from  himself  may  be  known 
from  his  associate.  F.  Moore,  817;  1  Ventr.  225; 
3  Term,  87;  9  East,  267;  13  jW.  531 ;  6  Taunt.  294; 
1  Barnew.  &  C.  614. 

Notitia  dicitur  d  nosrendn  ;  et  nntitia  non  debet 
claudicare.  Notice  is  called  from  a  knowledge  being 
had;  and  notice  ought  not  to  halt,  i.e.  be  imper- 
fect.   6  Coke,  29. 

Nova  conatitntio  faturis  formam  imponere  debet,  non 
prvrtcrida.  A  new  enactment  ought  to  impose  form 
upon  what  is  to  come,  not  upon  what  is  past.  Coke, 
2d  Inst.  292;  Broom,  Max.  3d  Lond.  ed.  33,  .36;  T. 
Jones,  108;  2  Show.  16;  6  Mecs.  &  W.  Exch.  2^5; 

7  id.  536;  2  Mass.  122;  2  Gall.  C.  C.  139;  2  N.  Y. 
245;  7  Johns.  N.  Y,  503  et  seq.,  where  this  rule  is 
fully  considered  and  the  authorities  reviewed. 

Novatio  uon  prresiiniitur.  A  novation  is  not  pre- 
sumed.   Halkcrs,  Max.  104. 

Novitaa  von  tarn  utilitate  prndest  quam  noritnte 
perfnrhat.  Novelty  benefits  not  so  much  by  its 
utility  aa  it  disturbs  by  its  novelty.  Jenk.  Cent. 
Cas.  167. 

Novum  judicium  non  dat  novum  jus,  Bed  declarat 


antiquum.  A  new  judgment  does  not  make  a  new 
law,  but  declares  the  old.    10  Coke,  42. 

Noxa  sequitur  caput.  The  injury  {i.e.  liability  to 
make  good  an  injury  caused  by  a  slave)  follows  the 
head  or  person,  i.e.  attaches  to  his  master.  Heinec- 
cius,  Elem.  Jur.  Civ.  L  4,  t.  8,  ^  1231. 

Nuda  pactio  obligationem  non  parit.  A  naked 
promise  does  not  create  an  obligation.  Dig.  2.  14. 
7.4;  Code,  4.  65.27;  Broom,  Max.  3d  Lond.  ed. 
670  ;  Brisson,  Nudus. 

A'uda  ratio  et  nuda  pactio  non  ligant  aliquem 
debitorem.  Naked  reason  and  naked  promise  do 
not  bind  any  debtor.    Fleta,  1.  2,  c.  60,  ^  25. 

Nudum  pactum  est  ubi  nulla  subest  cauaa  propter 
conventionem  ;  sed  ubi  subest  cauaa,  fit  obllgatio,  et 
parit  actionem.  Nudum  pactum  is  where  there  is 
no  consideration  for  the  undertaking  or  agreement ; 
but  when  there  is  a  consideration,  an  obligation  is 
created  and  an  action  arises.  Dig.  2.  14.  7.  4;  2 
Sharswood,  Blackst.  Comm.  445;  Broom,  Max.  3d 
Lond.  ed.  669  ;  Plowd.  309  ;  1  Powell,  Contr.  330  et 
acq.;  3  Burr.  1670  et  acq.;  Viner,  Abr.  Nudum 
Pactum  (A) ;  1  Fonblanque,  Eq.  5th  ed.  335  a. 

Nudum  pactum  ex  quo  non  oritur  actio.  Nudum 
pactum  is  that  upon  which  no  action  arises.  Code, 
2.  3.  10;  5.  14.  1 ;  Broom,  Max.  3d  Lond.  ed.  676. 

Nul  ne  doit  s'enrichir  aux  depens  dea  autres.  No 
one  ought  to  enrich  himself  at  the  expense  of 
others. 

N^ul  prendra  advantage  de  aon  tort  demeane.  No 
one  shall  take  advantage  of  his  own  wrong. 
Broom,  Max.  3d  Lond.  ed.  265. 

N^ulla  curia  quie  recordum  non  Jiabet  poteat  ivi- 
ponere  finem,  neque  aliquem  mandare  carceri  ;  quia 
ista  apectant  tantummodo  ad  curiaa  de  recordo.  No 
court  which  has  not  a  record  can  impose  a  fine,  or 
commit  anj  person  to  prison  :  because  those  powers 
belonu;  onlj  to  courts  of  record.    8  Coke,  60. 

Nulla  impossibilia  aut  inkonesta  aunt  prsesumenda; 
vera  autem  et  honesta  et  poaaibilia.  No  impossible 
or  dishonorable  things  are  to  be  presumed;  but 
things  true,  honorable,  and  possible.  Coke,  Litt. 
78. 

Nulld  pactions  efiUci  poteat  ne  dolua  prseatetur. 
By  no  agreement  can  it  be  effected  that  there 
shall  be  no  accountability  for  fraud.  Dig.  2.  14. 
27.  3;  Broom,  Max.  3d  Lond.  ed.  622,  118,  n.;  5 
Maule  &  S.  466. 

Nulle  regie  aana  faute.  There  is  no  rule  without 
a  fault. 

Nulle  terre  aana  aeigneur.  No  land  without  a 
lord.    Guyot,  Inst.  Feod.  c.  28. 

Nulli  enim  rea  sua  aervit  jure  aervitvtia.  No  one 
can  have  a  servitude  over  his  own  property.  Dig. 
8.  2.  26;  17  Mass.  443;  2  Bouvier,  Inst.  n.  1600. 

Nulliua  hominia  auctoritas  apnd  nos  valere  debet, 
nt  meliora  non  sequerenntr  si  quia  atinlerit.  The 
authority  of  no  man  ou<;ht  to  avail  with  us,  that 
we  should  not  follow  better  [opinions]  should  any 
one  present  them.    Coke,  Litt.  383  b. 

Nullum,  crimen  majua  eat  innbedientid.  No  crime 
is  greater  than  disobedience.    Jenk.  Cent.  Cas.  77. 

Nullum  exemplum  est  idem  omnibus.  No  exam- 
ple is  the  same  for  all  purposes.    Coke,  Litt.  212  a. 

Nullum  iniqnum  est  prfcsuniendum  in  jure.  No- 
thing unjust  is  to  be  presumed  in  law.  4  Coke, 
72. 

Nullum  matrimnnium,  ihi  nulla  doa.  No  marriage, 
BO  dower,    4  Barb.  N.  Y.  11^2,  194. 

Nullum  aimile  cat  idem.  Nothing  which  is  like 
another  is  the  same,  i.e.  no  likeness  is  exact  iden- 
tity. 2  Stor.  C.  C,  51?;  Story,  Partn.  90;  Coke, 
Litt.  3       2  Sharswood,  Blackst.  Comm.  162. 

Nullum  aimile  quatuor  pedibua  cnrrit.  No  simile 
runs  upon  four  feel,  or,  as  ordinarily  expressed,  "on 
all  fours."  Coke,  Litt,  3  a;  Eunomus,  Dial.  2  p. 
155;  1  Stor.  C.  C.  143. 

Nullum  tenipus  ocrurrit  rcgi.  Lapse  of  time  does 
not  bar  the  right  of  the  crown.    Coke,  2d  Inst.  273; 


MAXIM 


145 


MAXIM 


1  Sharswood,  Blackst.  Comm.  247;  Broom,  Max. 
3d  Lond.  62;  Hob.  347;  2  Stephen,  Comm.  504; 
1  Mass.  356;  2  Brock.  C.  C.  3'J3 ;  18  Johns.  N.  Y. 
227;  10  Barb.  N.  Y.  139. 

Nullum  tevijjim  occnrt-it  reipubliae.  Lapse  of 
time  does  not  bar  the  commonwealth.  11  (Jrat. 
572;  Hilliard,  Real  Prop.  173;  8  Tex.  410;  16  id. 
305;  5  McLean,  C.  C.  133;  19  Mo.  667. 

NulluH  coniiiiodinn  capere  jiotcut  de  ivjtin'd  una 
propria.  No  one  shall  take  advantage  of  Lis  own 
wrong.  Coke,  Litt.  148  6;  Broom,  Max.  3d  Lond. 
ed.  265;  4  Bingh.  n.  c.  395;  4  Barnew.  &  Aid.  409; 
lO  iMees.  &  W.  Exch.  309;  11  id.  680. 

Anlliiv  debet  ((<jere  de  dole,  ubi  alia  actio  subeat. 
Where  another  form  of  action  is  given,  no  one 
ought  to  sue  in  the  action  de  dolo.    7  Coke,  92. 

Nnllna  dicitur  accc-ssorius  post  feloniam  ned  Hie 
qui  novit  princlpnlem  feloniam  feciaae,  ct  -ilium,  re- 
ceptavit  et  coui/ortavit.  No  one  is  called  an  acces- 
sory after  the  fact  but  he  who  knew  the  principal 
to  Lave  committed  a  felony,  and  received  and  com- 
forted him.    Coke,  3d  Inst.  138. 

Nuilus  dicitur  j'eio  priucipalia  irisi  actor,  nut  qui 
prseseiis  est,  abettann  aut  auxilians  actorem  ad  felo- 
niam fuelendam.  No  one  shall  be  called  a  princi- 
pal felon  except  the  party  actually  committing  the 
felony,  or  the  party  present  aiding  and  abetting  in 
its  commission.    Coke,  3d  Inst.  138. 

Nullu8  idoneua  testis  in  le  sua  intellic/ifur.  No 
one  is  understood  to  be  a  competent  witness  in  his 
own  cause.    Dig.  22.  5.  10  ;  1  Sumn.  C.  C.  328,  344. 

Nitllux  jus  alienum  forisfacere  p>otest.  No  man 
can  forfeit  another's  right.    Fleta,  1.  1,  c.  28,  ^11. 

Nullus  reeedat  e  curia  cancellarid  sine  rcmedio. 
No  one  ought  to  depart  out  of  the  court  of  chancery 
without  a  remedy.    Year  B.  4  Hen.  VII.  4. 

Nullus  videtur  dolo  facere  qui  suo  jure  ntitur.  No 
man  is  to  be  esteemed  a  wrong-doer  who  avails 
himself  of  his  legal  right.  Dig.  50.  17.  55;  Broom, 
Max.  3d  Lond.  ed.  124,  118,  n.  (j);  14  Wend.  N. 
Y.  399,  492. 

Nunquam  crescit  ex  post  facto  prseteriti  delicti 
lestimatio.  The  quality  of  a  past  oflfence  is  never 
aggravated  by  that  which  happens  subsequent. 
Dig.  50.  17.  138.  1;  Bacon,  Max.  Reg.  8;  Broom, 
Max.  3d  Lond.  ed.  41. 

Nunqnam  devurritur  ad  extraordinarium  sed  ubi 
deficit  ordinarium.  We  are  never  to  recur  to  what 
is  extraordinary,  till  what  is  ordinary  fails.  Coke, 
4th  Inst.  84. 

Nunquam  fictio  sine  lege.  There  is  no  fiction 
witLout  law. 

Nunquam  nimis  dicitur  quod  nunquam  satis  dicitur. 
What  is  never  sufficiently  said  is  never  said  too 
much.    Coke,  Litt.  375. 

Nunquam  prmcribitur  in  falso.  There  is  never 
prescription  in  case  of  falsehood  (crimen  falsi). 
Bell,  Diet. 

Nimquam  res  humanse  prospere  succedunt  ubi 
nef/litjuntur  divinse.  Human  things  never  prosper 
when  divine  things  are  neglected.  Coke,  Litt.  95; 
Wingate,  Max.  2. 

Nuptias  non  concubitus,  sed  consensus  facit.  Not 
co-habitation  but  consent  makes  the  marriage. 
Dig.  50.  17.  30;  1  Bouvier,  Inst.  n.  239;  Coke, 
Litt.  33. 

Ohedientia  est  legis  essentia.  Obedience  is  the 
essence  of  the  law.    11  Coke,  100. 

Obtemjjerandum  est  consuetudini  rationabili  tan- 
quam  leyi.  A  reasonable  custom  is  to  be  obeyed 
like  law.    4  Coke,  38. 

Ovcupautis  Jxunt  derelicta.  Things  abandoned 
become  the  property  of  the  (first)  occupant.  1  Pet. 
Adm,  53. 

Odiosa  et  inhonesta  non  stint  in  lege  prmumando. 
Odious  and  dishonest  acts  are  not  presumed  in  law. 
Coke,  Litt.  78;  6  Wend.  N.  Y.  228,  231 ;  18  N.  Y. 
29.5,  300. 

Vol.  II.— 10 


Odiosa  non  prasuninntur.  Odious  things  are  not 
presumed.    Burr.  Sett.  Cas.  190. 

OJJicers  may  not  examine  the  judicial  acts  of  the 
court. 

(JJficia  judicialia  non  conceduntur  antequam  vn- 
cent.  Judicial  offices  ought  not  to  be  granted  before 
they  arc  vacant.    11  Coke,  4. 

Oj/icia  inagistratus  non  debent  esse  venalia.  The 
offices  of  magistrates  ought  not  to  be  sold.  Coke, 
Litt.  234. 

Ojfficit  conatus  si  cffectus  seqnatvr.  The  attempt 
becomes  of  consequence,  if  the  eff'ect  follows. 

Officium  nemini  debet  ense  dainnosnm.  An  offico 
ought  to  be  injurious  to  no  one.    Bell,  Diet. 

Omissio  eorum  qnse  tacite  insunt  nihil  operatur. 
The  omission  of  those  things  which  are  t-ikntly 
expressed  is  of  no  consequence.    2  Bulstr.  131. 

Omne  actum  ab  intentione  ageiitis  est  judicandum. 
Every  act  is  to  be  estimated  by  the  intention  of  the 
doer.    Branch,  Princ. 

Omne  crimen  ehrietas  et  incendit  et  detegit.  Drunk- 
enness inflames  and  reveals  every  crime.  Coke, 
Litt.  247. 

Omne  jus  aut  consensus  fecit,  aut  necessitas  con- 
stituit,  aut  f  rmavit  connuetudo.  All  law  has  either 
been  derived  from  the  consent  of  the  people,  esta- 
blished by  necessity,  or  confirmed  by  custom.  Dig. 
1.  3.  40:  Broom,  Max.  3d  Lond.  ed.  616,  n. 

Omne  niagis  dignvm  traliit  ad  se  minus  dignum  sit 
antiquius.  Every  worthier  thing  draws  to  it  the 
less  worthy,  though  the  latter  be  more  ancient. 
Coke,  Litt.  365. 

Omne  magnum  exemplum  habet  aliquid  ex  iniqtin, 
quod  publicd  utilitute  compensatur.  Every  great 
example  has  some  portion  of  evil,  which  is  com- 
pensated by  its  public  utility.    Hob.  279. 

Omne  majus  continet  in  se  minus.  The  greater 
contains  in  itself  the  less.  6  Coke,  115  a;  Win- 
gate,  Max.  206 ;  Story,  Ag.  §  172  ;  Broom,  Max.  3d 
Lond.  ed.  173. 

Omne  majus  dignum  continet  in  se  minus  dignum. 
The  more  worthy  contains  in  itself  the  less  worthy. 
Coke,  Litt.  143. 

Omne  majus  minus  in  se  conipleeifur.  Every 
greater  embraces  in  itself  the  minor.  Jenk.  Cent. 
Cas.  208. 

Omne  principale  trahit  ad  se  accessor'um.  Every 
principal  thing  draws  to  itself  the  accessory.  17 
Mass.  425;  1  Johns.  N.Y.  580. 

Omne  quod  insedifcatur  solo  cedit.  Every  thing 
belongs  to  the  soil  which  is  built  upon  it.  Dig.  41. 
1.  7.  10;  47.  3.  1:  Inst.  2.  1.  29;  Broom,  Max.  3d 
Lond.  ed.  355;  Fleta,  1.  .3,  c.  2,  ^  12. 

Omne  sacramentum  debet  esse  de  certa  scientiu. 
Every  oath  ought  to  be  founded  on  certain  know- 
ledge.   Coke,  4th  Inst.  279. 

Omne  testamentum  morte  consummatum  est.  Every 
will  is  consummated  by  death.  3  Coke,  29  b ;  4 
irf.  61  b;  2  Sharswood,  Blackst.  Comm.  500  ;  Shep- 
pard,  Touchst.  401. 

Omnes  acliones  in  viundo  infra  certa  tempora 
habent  limitntionem.  All  actions  in  the  world  are 
limited  within  certain  periods.    Bracton,  52. 

Omnes  homines  aut  liberi  sunt  aut  servi.  All  men 
are  freemen  or  slaves.  Inst.  1.  3.  pr. ;  Fleta,  1.  1, 
c.  1,  g  2. 

Omnes  licentiam  habere  his  quse  pro  se  indvlta 
sunt,  rennnciare.  All  shall  have  liberty  to  renounce 
thoi^e  things  which  have  been  established  in  their 
favor.  Code,  2.  3.  29 ;  1.  3.  51 ;  Broom,  Max.  3d 
Lond.  el.  625. 

Omnia  prsesumuntvr  rtti  et  solenniter  esse  acta. 
All  things  are  presumed  to  have  been  rightly  and 
regularly  done.  Coke,  Litt.  232  b  ;  Broom,  Max. 
3d  Lond.  ed.  847:  12  C.  B.  788;  3  Exch.  191  ;  6  id. 
716.  Omnia  rite  esse  acta  prs'sumu7itur.  11  Cush. 
Mass.  441;  2  Ohio  St.  246,  247;  4  id.  148;  6  id. 
293. 

Omnia  prtesumiintur  rit^  et  solenniter  esse  acta 


MAXIM 


146 


MAXIM 


donee  probetnr  in  confrarium.  All  things  are  pre- 
sumed to  have  been  done  regularly  and  with  due 
formality  until  the  contrary  is  proved.  Broom, 
Max.  3d  Lond.  ed.  157,  849;  3  Bingh.  381;  2 
Campb.  44;  1  Crompt.  &  M.  Exch.  461;  17  C.  B. 
183 ;  5  Barnew.  &  Ad.  550 ;  12  Mees.  &  W.  Exch. 
251 ;  12  Wheat.  69,  70. 

Omnen  prudentes,  ilia  odmiftere  solent  qiise  pro- 
hantur  iia  qui  in  arte  sua  bene  versnti  hunt.  All 
prudent  men  are  accustomed  to  admit  those  things 
which  are  approved  by  those  who  are  well  versed 
in  the  art.    7  Coke,  19. 

Omnia  delicta  in  aperto  leviora  sunt.  All  crimes 
committed  openly  are  considered  lighter.  8  Coke, 
127. 

Omnia  prsesurnuntur  contra  spoliatorem.  All 
things  are  presumed  against  a  wrong-doer.  Broom, 
Max.  3d  Lond.  ed.  843. 

Omnia  prieaumnntur  legitime  facta  donee  probetnr 
in  contrarium.  All  things  arc  presumed  to  be  done 
legitimately  until  the  contrary  is  proved.  Coke, 
Litt.  232. 

Omnia  prsemmuntnr  rite  esse  acta.  All  things 
are  presumed  to  be  done  in  due  form.  Coke, 
Litt.  6. 

Omnia  qupe  jure  contrail untuVy  contrario  jure  pe- 
reunt.  Obligations  contracted  under  a  law  are 
destroyed  by  a  law  to  the  contrary.  Dig.  50.  17. 
100. 

Omnia,  quse  sunt  tixoris  sunt  ipsiua  viri.  All 
things  which  are  the  wile's  belong  to  the  husband. 
Coke,  Litt.  112;  2  Kent,  Comm.  130,  143. 

Omnis  actio  est  loqaela.  Every  action  is  a  com- 
plaint.   Coke,  Litt.  292. 

Omnis  conclusio  boni  et  veri  judicii  sequitnr  ex 
bonis  et  veris  prsemissis  et  dictis  juratorum.  Every 
conclusion  of  a  good  and  true  judgment  arises  from 
good  and  true  premises,  and  the  verdicts  of  jurors. 
Coke,  Litt.  226. 

Omnis  consensus  tollit  errorem.  Every  consent 
removes  error.    Coke,  2d  Inst.  123. 

Omnis  definitio  injure  civili  periculosa  est,  parnm 
est  enim  ut  non  subverti  possit.  Every  definition  in 
the  civil  law  is  dangerous,  for  there  is  very  little 
that  cannot  be  overthrown.  There  is  no  rule  in  the 
civil  law  which  is  not  liable  to  some  exception: 
and  the  least  difference  in  the  facts  of  the  case  ren- 
ders its  application  useless.  Dig.  50.  17.  202 ;  2 
Wooddeson,  Lect.  196. 

Omnis  di'jinitio  in  jure  periculosa  est;  parum  est 
enim  ut  non  subverti  posset.  Every  definition  in 
law  is  perilous,  for  it  is  within  an  ace  of  being  sub- 
verted.   Dig.  50.  17.  202;  2  Wooddeson,  Lect.  196. 

Omnis  exceptio  est  ipsa  quoque  regula.  An  ex- 
ception is  in  itself  also  a  rule. 

Omnis  innovatio  plus  novitate  perturbat  quam 
utilitate  prodest.  Every  innovation  disturbs  more 
by  its  novelty  than  it  benefits  by  its  utility.  2 
Bulstr.  338 ;  1  Salk.  20. 

Omnis  interpretatio  si  fieri  potest  ita  fienda  est  in 
instrumentis,  ut  omnes  contrnriefates  amoveantur. 
The  interpretation  of  instruments  is  to  be  made,  if 
they  will  admit  of  it,  so  that  all  contradictions  may 
be  removed.    Jenk.  Cent.  Cas.  96. 

Omnis  interpretatio  vcl  daclarat,  rel  extendit,  vcl 
restrinr/it.  Every  interpretation  either  declares, 
extencls,  or  restrains. 

Omnis  7iova  constitutio  futuris  temporibus  formnm 
impouerc  debet,  non  prseterilis.  Every  new  statute 
ought  to  set  its  stamp  upon  the  future,  not  the  past. 
Brac.ton,  228;  Coke,  2d  Inst.  95. 

Omnis  persona  est  homo,  sed  non  viciasim.  Every 
person  is  a  man,  but  not  every  man  a  person.  Cal- 
vinus,  Lex. 

Omnis  privatio  prirsupponit  habitnm.  Every  pri- 
vation presupposes  former  enjoyment.  Coke,  Litt. 
339. 

Omnis  querela  et  omnia  actio  injuriarum  limitata 
Ml  infra  certa  tempdra.    Every  plaint  and  every 


action  for  injuries  is  limited  within  certain  times. 
Coke,  Litt.  114. 

Omnis  ratihabitio  retro  trahifur  et  mandato  sequi- 
paratur.  Every  subsequent  ratification  has  a  retro- 
spective effect,  and  is  equivalent  to  a  prior  com- 
mand. Coke,  Litt.  207  a;  Story,  Ag.  4th  ed.  102; 
Broom,  Max.  3d  Lond.  ed.  715;  2  Bouvier,  Inst. 
25;  4  id.  26;  8  Wheat.  363;  7  Exch.  726;  10  id. 
845;  9  C.  B.  532,  607;  14  id.  53. 

Omnis  regula  suas  patitur  exceptiones.  Eve 
rule  of  law  is  liable  to  its  own  exceptions. 

Omnium  contributione  sarciatur  quod  ptro  omnib 
datum  est.    What  is  given  for  all  shall  be  ( om 
pensated  for  by  the  contribution  of  all.    4  Bing'^ 
121 ;  2  Marsh.  309. 

Omnium  rerum  quorum  usus  est,  potest  esse  abusus, 
virtute  sold  exceptd.  There  may  be  an  abuse  of 
every  thing  of  which  there  is  an  use,  virtue  only 
excepted.    Dav.  79. 

Once  a  fraud,  always  a  fraud.  13  Viner.  Abr. 
539. 

Once  a  mortgage,  always  a  mortgage.  1  Hilliard, 
Real  Prop.  378. 

0}ice  a  recompense,  always  a  recompense.  19 
Viner,  Abr.  277. 

Once  quit  and  cleared,  ever  quit  and  cleared. 
Skene,  de  verb.  sign,  iter  ad  fin. 

One  may  not  do  an  a<  t  to  himself. 

One  should  be  jtist  before  he  is  generous. 

Opinio  quse  fatet  testamento  est  tenenda.  That 
opinion  is  to  be  followed  which  favors  the  will. 

Oportet  quod  certse  personse,  terrse,  et  certi  status, 
conijirehend antur  in  declaratione  tisuum.  It  is  ne- 
cessary that  certain  persons,  lands,  and  estates  be 
comprehended  in  a  declaration  of  uses.    9  Coke,  9. 

Oportet  quod  certa  res  deducatur  in  judicium.  A 
thing,  to  be  brought  to  judgment,  must  be  certain 
or  definite.    Jenk.  Cent.  Cas.  84;  Bracton,  15  b. 

Oportet  quod  coin  sit  res  quse  venditur.  A  thing, 
to  be  sold,  must  be  certain  or  definite. 

Opposita  juxta  se  posita  magis  elucescunt.  Op- 
posites  placed  next  each  other  appear  in  a  clearer 
light.    4  Bacon,  Works,  256,  258,  353. 

Optima  enim  est  legis  interpres  consvefudo.  Usage 
is  the  best  interpreter  of  law.  Coke,  2d  Inst.  18; 
Broom,  Max.  3d  Lond.  ed.  823. 

Optima  est  lex,  quse  minimum  relinquit  arbitrio 
judicis.  That  is  the  best  system  of  law  which  con- 
fides as  little  as  possible  to  the  discretion  of  the 
judge.    Bacon,  Aph.  46. 

Optima  statuti  interpretatrix  est  [omnibus  par- 
ticutis  ejusdem  inspectis)  ipsum  statutum.  The  best 
interpretress  of  a  statute  is  (all  the  separate  parts 
being  ccnsidered)  the  statute  itself.  8  Coke,  117  j 
Wingate,  Max.  239,  max.  68. 

Optimam  esse  legem,  quse  minimum  relinquit  ar- 
bitrio judicis ;  id  quod  certitudo  ejus  prsestat.  That 
law  is  the  btst  which  leaves  the  least  discretion  to 
the  judge;  and  this  is  an  advantage  which  results 
from  its  certainty.    Bacon,  Aph.  8. 

Optimus  interpres  rernm  usus.  Usage  is  the  best 
interpreter  of  things.    Coke,  2d  Inst.  282. 

Optimus  inteipretandi  modus  cat  sic  hgis  interprc- 
tare  ut  leges  legibus  accordant.  The  best  mode  of 
interpreting  laws  is  to  make  them  accord.  8  Coke, 
169. 

Optimus  judex,  qui  minimum  sibi.  He  is  the  best 
judge  who  r<  lies  as  little  as  possible  on  his  own 
discretion.    Bacon,  Aph.  46. 

Optimus  legum  interpres  conauetudo.  Custom  is 
the  best  interpreter  of  laws.  Coke,  4th  Inst.  75 ; 
2  Parsons,  Contr.  53. 

Ordine  placitandi  aervato,  servatur  ct  jus.  The 
order  of  pleading  being  preserved,  the  law  is  pre- 
served.   Coke,  Litt.  303. 

Origine  proprid  neniinem  posse  vohintate  md 
eximi  manifesfum  est.  It  is  manifest  that  no  one 
by  his  own  will  can  renounce  his  origin  (put  off 
or  discharge  his  natural  allegiance).    Code,  10.  34< 


MAXIM 


147 


MAXIM 


4.  See  1  Sharswood,  Blackst.  Comm.  c.  10;  20  Johns, 
N.  Y.  313  ;  3  Pet.  122,  240 ;  Broom,  Max.  3d  Lond. 
ed.  74. 

Orifjo  rci  inspur  debet.  The  origin  of  a  thing 
ought  to  be  inquired  into.    1  Coke,  99. 

Pact  «iiut  maccime  contrnria,  viset  injuria.  Force 
and  wrong  are  especially  contrary  to  ijcuce.  Coke, 
Litt.  101. 

Pacta  convcnta,  qiisc  neque  contra  leges,  neque  dolo 
vudo  inita  Hunt,  o)niii  inodo  obnervanda  sunt.  Con- 
tracts which  are  not  illegal,  and  do  not  originate  in 
fraud,  must  in  all  respects  be  observed.  Cod.  2.  3. 
29  ;  Broom,  Max.  3d  Lond.  ed.  624. 

Pacta  dant  leycm  contractui.  Agreements  give 
the  law  to  the  contract.    Halkers,  M.ix.  118. 

Pacta  privata  juri  puhl  'n  o  deroyare  )/oi»  possunt. 
Private  contracts  cannot  derogate  from  the  public 
law.    7  Coke,  23. 

Pacta  qttie  contra  lerjes  conntitutionesque  vel  contra 
honos  mores  Jiunt,  nulluiti  vim  habere,  indubitati  juris 
est.  It  is  indubitable  law  that  contracts  against 
the  laws,  or  good  morals,  have  no  force.  Cod.  2.  3. 
6;  Broom,  Max.  3d  Lond.  ed.  620. 

Pacta  quse  turpem  causani  continent  nan  sunt  ohser- 
vanda.  Contracts  founded  upon  an  immoral  consi- 
deration arc  not  to  be  observed.  Dig.  2.  14.  27.  4; 
2  Pet.  539;  Broom,  Max.  3d  Lond.  ed.  658. 

Pactis privatorumjuri  publico  non  deroyatnr.  Pri- 
vate contracts  do  not  derogate  from  public  law. 
Broom,  Max.  3d  Lond.  fd.,021  ;  per  Dr.  Lushing- 
ton,  Arg.  4  Clark  &  F.  Hou.  L.  2-11;  Arg.  3  id. 
621. 

Pacta  aliquod  licitum  est,  quid  sine  pocto  non 
admittitur.  By  a  contract  something  is  permitted, 
which,  without  it,  could  not  be  admitted.  Coke, 
Litt.  166. 

Pur  in  parem  imperium  non  habet.  An  equal  has 
no  power  over  an  equal.  Jenk.  Cent.  Cas.  174. 
Example:  One  of  two  judges  of  the  same  court 
cannot  commit  the  other  for  contempt. 

Parens  est  nonien  fjenerale  ad  onine  yenus  cogna- 
tionis.  Parent  is  a  general  name  for  every  kind  of 
relationship.  Coke,  Litt»  80;  Littleton,  §108; 
Mag.  Cart.  Joh.  c.  50. 

Paria  cojyulantur  j^aribus.  Similar  things  unite 
with  similar. 

Paribus  sententiis  reus  absolvitur.  When  opinions 
are  equal,  a  defendant  is  acquitted.  Coke,  4th 
Inst.  64. 

Parols  font  plea.  Words  make  the  plea.  6  Mod. 
458;  Year  B.  19  Hen.  VI.  48. 

Parte  quacunique  inteyrante  sublata,  tollitur  totuni. 
An  integnal  part  being  taken  away,  the  whole  is 
taken  away.    8  Coke,  41. 

Partus  ex  leyitimo  thoro  non  certius  noscit  matrem 
quain  yenitorem  suam.  The  offspring  of  a  legiti- 
mate bed  knows  not  his  mother  more  certainly  than 
his  father.    Fortescue,  c.  42. 

Partus  sequitnr  ventreni.  The  offspring  follow 
the  condition  of  the  mother.  Inst.  2.  1.  19.  This 
is  the  law  in  the  case  of  slaves  and  animals,  1  Bou- 
vier,  Inst.  n.  167,  502;  but  with  regard  to  freemen, 
children  follow  the  condition  of  the  father. 

Parum  caret  natura.  Nature  takes  little  heed.  2 
Johns.  Cas.  N.  Y.  127,  166. 

Paruni  dijfernnt  quae  re  concordant.  Things  differ 
but  little  which  agree  in  substance.    2  Bulstr.  86. 

Paruiu  est  latam  esse  senlentiain,  nisi  mandetur 
e^recuiioni.  It  is  not  enough  that  sentence  should 
be  given  unless  it  be  committed  to  execution.  Coke, 
Litt.  289. 

Parum  proficit  scire  quid  fieri  debet,  si  non  coynos- 
cas  quowado  sit  facturum.  It  avails  little  to  know 
what  ought  to  be  done,  if  you  do  not  know  how  it 
is  to  be  done.    Coke,  2d  Inst.  503. 

Pater  is  est  quern  nuptise  demon stratit.  The  father 
is  he  whom  the  marriage  points  out.  1  Blackst. 
Comm.  446;  7  Mart.  n.  s.  548,  553;  Dig.  2.  4.  6; 


1  Bouvier,  Inst.  n.  273,304,  322;  Broom,  Max.  3d 
Lond.  ed.  458. 

Patria  laboribus  ct  cxpensis  non  debet  fatiyari.  A 
jury  ought  not  to  be  harassed  by  labors  and  ex- 
penses.   Jenk.  Cent.  Cas.  6. 

Patria  j}otestas  in  jtietate  debet,  non  in  atrocitate 
consistere.  Pafernal  power  should  consist  in  affec- 
tion, not  in  atrocity. 

Peccata  contra  natnram  sunt  yravissima.  Of- 
fences against  nature  are  the  heaviest.  Coke,  3d 
Inst.  20. 

Peccatum  peccato  addit  qui  culpa;  quam  facit  pa- 
trocinium  defensionis  adjunyit.  lie  adds  one  offence 
to  another,  who,  when  he  commits  a  crime,  joins  to 
it  the  protection  of  a  defence.    5  Coke,  49. 

Pendente  lite  nihil  innoretur.  During  a  litigati(  n 
nothing  should  be  changed.  Coke,  Litt.  344.  hee 
20  How.  100;  Cross,  Lien,  IJO;  1  Story,  Eq.  Jur. 
I  400 ;  2  Johns.  Ch.  N.  Y.  441;  6  Barb.  N.  Y.  33. 

Per  alluvionem  id  videtur  adjici,  quod  ita  paulatini 
adjicitur,  ut  intelliyere  non  possuvnts  quantum  quo- 
quo  mornento  temporis  adjiciatur.  That  is  said  to  be 
added  by  alluvion  which  is  so  added  little  by  little 
that  we  cannot  tell  how  much  is  added  at  any  one 
moment  of  time.  Dig.  41.  1.  7.  1:  Hale,  de  Jur. 
Mar.  pars  1,  c.  4;  Fleta,  1.  3,  c.  2,  §  6. 

Per  rafiones  2y<^i'^'ciiitur  ad  leyitlmam  rationcm. 
By  reasoning  we  come  to  legal  reason.  Littleton, 
g  386. 

Per  rertim  naturam,  factum  neyantis  nulla  probatio 
est.  It  is  in  the  nature  of  things  that  he  who  denies 
a  fiict  is  not  bound  to  give  proof. 

Per  varios  <tctus,  leyem  exjjerientia  facit.  By 
various  acts  experience  frames  the  law.  Coke,  4th 
Inst.  50. 

Perfectum  est  cut  nihil  deest  secundum  suse perfec- 
tionis  vel  naturse  modum.  That  is  perfect  which 
wants  nothing  according  to  the  measure  of  its  per- 
fection or  nature.    Hob.  151. 

Periculosiim  est  res  novai  et  inusitatas  inducere. 
It  is  dangerous  to  introduce  new  and  unaccus- 
tomed things.    Coke,  Litt.  379. 

Perieulosum  existimo  quod  bonorum  virorum  non 
comprvbatur  exemplo.  I  think  that  dangerous  which 
is  not  warranted  by  the  example  of  good  men.  9 
Coke,  97. 

Periculum  rei  renditse,  nondum  traditsr,  est  ewp- 
toris.  The  purchaser  runs  the  risk  of  the  loss  of  a 
thing  sold,  though  not  delivered.  1  Bouvier,  Inst, 
n.  939  ;  2  Kent,  Comm.  498,  499;  4  Barnew.  <fc  C. 
481,  941. 

Perjuri  sunt  qui  servatis  verbis  juramenti  decipiunt 
aures  eorem  qui  accipiunt.  They  are  perjured  who, 
preserving  the  words  of  an  oath,  deceive  the  ears 
of  those  who  receive  it.    Coke,  Sd  Inst.  166. 

Peipetua  lex  est,  nullam  leyem  humanam  ac  positi- 
vam  perp)etuam  esse;  et  clausula  quse  abroyationem 
excludit  ab  initio  non  valet.  It  is  a  perpetual  law 
that  no  human  or  positive  law  can  be  perpetual ; 
and  a  clause  in  a  law  which  precludes  the  power  of 
abrogation  is  void  ab  initio.  Bacon,  Max.  Reg. 
19  ;  Broom,  Max.  3d  Lond.  ed.  27. 

Perpetuities  are  odious  in  late  and  equity. 

Persona  conjvncta  sequiparatnr  interesse  j^roprio. 
The  interest  of  a  personal  connection  is  sometimes 
regarded  in  law  as  that  of  the  individual  himself. 
Bacon,  Max.  Reg.  18;  Broom,  Max.  3d  Lond.  ed. 
474. 

Persona  est  homo,  cum  statu  quodam  considerafus. 
A  person  is  a  man  considered  with  reference  to  a 
certain  status.  Heineccius,  Elem.  Jur.  Civ.  1.  1,  tit. 
3,  ^  75. 

Personie  vice  funyitur  municipium  et  decuria. 
Towns  and  boroughs  act  as  if  persons.  23  Wend. 
N.  Y.  103,  144. 

Personal  thinys  cannot  he  done  by  another.  Finch, 
Law,  b.  1,  c.  3.  n.  14. 

Personal  thinys  cannot  be  yranted  over.  Finch, 
Law,  b.  1,  c.  3,  n.  15. 


MAXIM 


148 


MAXIM 


Personal  things  die  tcith  the  2)e)-son.  Fiuch,  Law, 
b.  1,  c.  3,  n.  16. 

Perspictia  vera  non  sunt  probanda.  Plain  truths 
need  not  be  proved.    Coke,  Litt.  16. 

Pirata  est  hostis  hiiniani  generis.  A  pirate  is  an 
enemy  of  the  human  race.    Coke,  3d  Inst.  113. 

Plena  et  ce/eris  Jusiitia  fiat  partibiis.  Let  full  and 
speedy  justice  be  done  to  the  parties.  Coke,  4th 
Inst.  67. 

Pluralls  niimerns  est  duobus  contentus.  The  plural 
number  is  contained  in  two.    1  Rolle,  476. 

Pluralities  are  odious  in  law. 

Plnrcs  cohseredes  sunt  quasi  unntn  corpus,  propter 
nnitntem  juris  quod  habent.  Several  co-heirs  are  as 
one  body,  by  reason  of  the  unity  of  right  which 
they  possess.    Coke,  Litt.  163. 

Plures  participes  sunt  quasi  iiniim  corpus,  in  eo 
quod  unum  jits  habent.  Several  part-owners  are  as 
one  body,  by  reason  of  the  unity  of  their  rights. 
Coke,  Li'tt.  164, 

Plus  exempla.  quam  peccata  nocent.  Examples 
hurt  more  than  offences. 

Plus  peccat  auctor  quam  actor.  The  instigator 
of  a  crime  is  worse  than  he  who  perpetrates  it.  5 
Coke,  99. 

Plus  valet  nnus  oculatus  testis,  quam  anriti  decern. 
One  ej'e-witness  is  better  than  ten  ear-ones.  Coke, 
4th  Inst.  279. 

Plus  vident  oculi  quam  oculus.  Eyes  see  more 
than  one  eye.    Coke,  4th  Inst,  160. 

Poena  ad  ]}aucos,  nietus  ad  omnes.  Punishment 
to  few,  dread  or  fear  to  all. 

Poena  ad  paucos,  metus  ad  omnes  perveniat.  If 
punishment  be  inflicted  on  a  few,  a  dread  comes  to 
all. 

Poena  ex  delicto  dcfuncti,  hseres  teneri  non  debet. 
The  heir  ought  not  to  be  bound  in  a  penalty  inflicted 
for  the  crime  of  the  ancestor.    Coke.  2d  Inst.  198. 

*  Poena  non  potest,  culpa  perennis  erit.  Punishment 
cannot  be,  crime  will  be,  perpetual.  21  Viner,  Abr. 
271. 

Poena;  pot i us  molliendse  quam  exasperandse  sunt. 
Punishment*  should  rather  be  softened  than  aggra- 
vated.   Coke,  3d  Inst.  220. 

Poenpe  sint  resfringendse.  Punishments  should  be 
restrained.    Jefik.  Cent.  Cas.  29. 

Poenx  suos  tenere  debet  adores  et  non  alios.  Pun- 
ishment ought  to  be  inflicted  upon  the  guilty,  and 
•not  upon  others.  Bracton,  3S0  b;  Fleta,  1.  1,  c. 
38.  ^  12  ;  1.  4,  c.  17,  ^  17. 

J*olitipe  legibus  non  leges  pnlitiis  adaptandse.  Poli- 
tics arc  to  be  adapted  to  the  laws,  and  not  the  laws 
to  politics.    Hub.  164. 

Pondei  (ditur  testes  non  numerantur.  Witnesses 
are  weighed,  not  counted.  1  Stai'kie,  Ev.  654; 
Best,  Ev.  426,  ^  389;  14  Wend.  N,  Y.  105,  109. 

Posito  uno  oppositorum  negatur  alterum.  One  of 
two  opposite  positions  being  affirmed,  the  other  is 
denied.    3  Rolle,  422. 

Possessio  est  quasi  pedis  positio.  Possession  is, 
as  it  were,  the  position  of  the  foot.    3  Coke,  42. 

Possessio  fratris  de  feodo  simplici  facit  sororem 
esse  hieredem.  Possession  of  the  brother  in  fee- 
simple  makes  the  sister  to  be  heir.  3  Coke,  42;  2 
Sharswood,  Blackst.  Comm.  227 ;  Broom,  Max.  3d 
Lond.  ed.  473. 

/*(>ssessio  pacifica  pour  anns  60  facit  jus.  Peace- 
able possession  for  sixty  years  gives  a  right.  Jenk. 
Cent.  Ca.s.  26. 

possession,  is  a  good  title,  where  no  better  title  ap- 
pears.   20  Viner,"  Abr.  278. 

Possession  of  the  termor,  possession  of  the  rever- 
sioner. 

/'assessor  has  right  against  all  men  but  him  who 
has  the  very  right. 

I'osslbility  cannot  be  on  a  poasibilitij. 

Posteriora  derogant  prioribus.  Posterior  things 
derogate  from  things  prior.    1  Bouvicr,  Inst.  n.  90. 

Postliminium  fingit  eum  qui  captua  est  in  civitutc 


semper  fuisse.  Postliminy  feigns  that  he  who  has 
been  captured  has  never  left  the  state.  Inst.  1.12. 
5:  Dig.  49.  51. 

Potentia  debet  sequi  justitiam,  non  antecedere. 
Power  ought  to  follow,  not  to  precede  justice.  3 
Bulstr.  199. 

Potentia  inutilis  frustra  est.  Useless  power  is 
vain. 

Potentia  non  est  nisi  ad  bomm.  Power  is  not 
conferred  but  for  the  public  good. 

Potest  quis  renunciare  pro  se,  et  suis,  jus  qnod  pro 
se  introductum  est.  A  man  may  relinquish,  for  him- 
self and  those  claiming  under  him,  a  right  which 
was  introduced  for  his  own  benefit.  See  1  Bou\ier, 
Inst.  n.  83. 

Potestas  stricte  interpretatur.  Power  should  be 
strictly  interpreted.    Jenk.  Cent.  Cas.  17. 

Potestas  suprenia.  seipsum  dissolrare  jjotest,  ligarr 
non  potest.  Supreme  power  can  dissolve,  but  can- 
not bind  itself.    Bacon,  Max.  Reg.  19. 

Potior  est  conditio  defendentis.  Better  is  the  con- 
dition of  the  defendant,  than  that  of  the  plaintiff. 
Broom,  Max.  3d  Lond.  ed.  664;  16  Pet.  471. 

Potior  est  conditio  possidentis.  Better  is  the  con- 
dition of  the  possessor.  Broom,  Max.  3d  Lond. 
ed.  201,  n. 

Preepropera  consilia,  raro  sunt  prosper  a.  Hasty 
counsels  are  seldom  prosperous.  Coke,  4th  Inst. 
57.  _ 

Prsescriptio  est  titulus  ex  vsu  et  temj>ore  suhstan- 
tiam  capiens  ab  aiu  toritate  legis.  Prescription  is  a 
title  by  authority  of  law,  deriving  its  force  from  use 
and  time.    Coke,  Litt.  113. 

Prsescriptio  et  executio  non  pertinent  ad  valorem 
contractus,  sed  ad  tcmpus  et  modum  actionis  institu- 
endue.  Prescription  and  the  execution  of  a  contract 
do  not  affect  the  validity  of  the  contract,  but  the 
time  and  manner  of  bringing  an  action.  3  Mass. 
84;  Decouche  vs.  Savetier,  3  Johns.  Ch.  N.  Y.  190, 
219. 

Prsesentare  nihil  aliud  est  quam  prsesto  dare  sen 
offerre.  To  present  is  no  more  than  to  give  or  offer 
on  the  spot.    Coke.  Litt.  120. 

Prsesentia  corporis -tollit  errorem  nominis,  et  Veri- 
tas nominis  tollit  errorem  demonstrationis.  The 
presence  of  the  bodj-  cures  the.  error  in  the  name; 
the  truth  of  the  name  cures  an  error  in  the  descrip- 
tion. Bacon,  Max.  Reg.  25;  Broom,  Max.  3d 
Lond.  ed.  668;  6  Coke,  66  ;  3  Barnew.  &  Ad.  640; 
6  Term,  676;  11  C.  B.  996;  1  Hou.  L.  Cas.  792; 
3  De  Gex,  M.  &  G.  Ch.  140. 

Pi  sestat  cautela  quam  medela.  Prevention  is  bet- 
ter than  cure.    Coke,  Litt.  304. 

Pjscsumatur  pro  justitia  seutentise.  The  justice 
of  a  sentence  should  be  presumed.  Best,  Ev.  Int. 
42;  Mascardus  de  prob.  cone.  1237.  n.  2. 

Preesiimitur  ]>ro  legitimatione.  Legitimacy  is  to 
be  presumed.  5  Coke,  98  b;  1  Sharswood,  Blackst. 
Comm.  457. 

Priesumitur  pro  legitimatione.  There  is  a  pre- 
sumption in  favor  of  legitimation.  5  Coke,  98  b; 
1  Sharswood,  Blackst.  Comm.  467. 

Prsesumptio,  ex  eo  quod pterumque  fit.  Presump- 
tions arise  from  what  generally  happens.  22  Wend. 
N.  Y.  425,  475. 

Prfpsuinptio  riolenta, plena  ]irobatio.  Violent  pre- 
sumption is  full  proof. 

PriTsumptio  violcnta  valet  in  lege.  Strong  pre- 
sumption avails  in  law.    Jenk.  Cent.  Cas.  58. 

Prtesumptiones  snnt  conjecturte  ex  signo  verisimili 
ad  proband um  assumptw.  Presumptions  are  conjec- 
tures from  ])robab^e  proof,  assumed  for  purposes  of 
evidence.    J.  Vo  t.  ad  Pand.  1.  22,  tit.  3,  n.  14. 

Prsetcxtu  liciti  non  debet  admitti  illicituni.  Under 
pretext  of  legjility,  what  is  illegal  ought  not  to  be 
admitted.    10  Coke,  88. 

Praxis  judieum  est  interpres  legum.    The  practico 
of  the  judges  is  the  interpreter  of  the  laws.  Ho^ 
96 ;  Branch,  Princ. 


MAXIM 


149 


MAXIM 


Prcc  ilciits  hitce  aa  much  law  as  jtistice. 

J*rc'C':deiit«  that  pass  Hub-«ilent!o  are  of  little  or  no 
nuthority.    16  Viner,  Abr.  499. 

Pretium  succedit  In  locum  reL  The  price  stands 
in  the  place  of  the  thing  sold.  1  Bouvicr,  Inst.  n. 
«39  ;  2  Bulstr.  312. 

PrexlouH  intentions  are  judged  by  aubscqnent  acts. 
4  Den.  N.  Y.  319,  320. 

Prima  pant  sfquitatin  sequalitas.  The  radical  ele- 
ment of  justice  is  equality. 

Piiino  exeutienda  est  verhi  vis,  ne  sermunis  vitio 
ohxtructar  orntio,  sire  lex  sine  arynmentis.   The  force  | 
of  a  word  is  to  be  first  examined,  lest  by  the  fault 
of  diction  the  sentence  be  destroyed  or  the  law  be 
without  arguments.    Coke,  Litt.  68. 

Priiiceps  et  respublica  ex  jnstd  causa  possunt  rem 
meain  auferre.  The  king  an  l  the  commonwealth 
for  a  just  cause  can  take  away  my  property.  12 
Coke,  13. 

Princeps  legibus  solutus  est.  The  emperor  is  free 
from  laws.  Dig.  1.  3.  31 ;  Hallifax,  Anal.  pref. 
Vi,  vii,  note. 

Principalis  debet  semper  exeuti  anteqiiam  ]ierve- 
vlatnr  adjidei  jussores.  The  principal  should  alwayS 
be  exhausted  before  coming  upon  the  sureties.  Coke, 
2d  Inst.  19. 

Prinripia  data  sequnntnr  conconiitantia.  Given 
principles  are  followed  by  their  concomitants. 

Principia  probant,  noa  probanlnr.  Principles 
prove,  they  are  not  proved.  3  Coke,  40.  See  Prin- 
ciples. 

Principiis  obsta.  Oppose  beginnings.  Branch, 
Princ. 

Priucipiornm  non  ext  ratio.  There  is  no  reason- 
ing of  prinsiples.   2  Bulstr.  239.   See  Prixciples 

Principiiun  est  potissiina  pars  cujnsqae  rei.  The 
bef^innin:^  is  the  most  powerful  part  of  a  thing.  10 
Coke,  49. 

Prior  tempore,  potior  Jure.  He  who  is  first  in 
time  is  preferred  in  right.  Coke,  Litt.  14  a;  2  P. 
Will.  491;  1  Term,  733;  9  Wheat.  App.  24. 

Privatio  prsesiippoiiit  habitnr.  A  deprivation  pre- 
supposes a  possession.    2  Rolle,  419. 

Privatis  imctionlbas  non  dubitim  est  nor  Jsedi  jus 
cfeteroriim.    There  is  no  doubt  that  the  rights  of 
others  cannot  be  prejudiced  by  private  agreements.  | 
Difj.  2.  15.  3.  pr  ;  Broom,  Max.  3d  Lond.  ed.  623. 

Pricatorum  eonrentio  juri  publico  non  derogat. 
Private  agreements  cannot  derogate  from  public 
law.    Dig.  50.  17.  45.  1. 

Privatum  comvioduni  publico  cedit.  Private  yields 
to  public  good.    Jenk.  Cent.  Cas.  273. 

Priratum  incommodnm publico  bono pensatur.  Pri- 
vate inconvenience  is  made  up  for  by  public  good. 

Pririlegium  est  benejtciuui  pereonale  et  extinguitnr 
cum  persitud,  A  privilege  is  a  personal  benefit  and 
dies  with  the  person.    3  Bulstr.  8. 

Pririleginm  est  quasi  pricata  lex.  A  privilege  is, 
as  it  were,  a  private  law.    2  Bulstr.  189. 

Privilegium  non  i^alet  contra  rempublieam,  A 
privilege  ^.vails  not  against  the  commonwealth. 
Bacon.  Max.  25  ;  Broom,  Max.  3d  Lond.  ed.  17  : 
Noy,  Max.  9th  ed.  34. 

Pro  possessore  habftur  qui  dolo  injuridre  desiit 
possidere.  He  is  esteemed  a  possessor  whose  pos- 
session hijs  been  disturbed  by  fraud  or  iniury.  OS. 
of  Ex.  166. 

Probandi  necessitas  incumbit  illi  qui  agit.  The 
necessity  of  proving  lies  with  him  who  sues.  Inst. 
2.  20.  4. 

Probationes  detent  esse  evidentes,  (id  est)  perspi- 
"CHIP  et  faciles  intelligi.  Proofs  ought  to  be  made 
■evident,  (that  is)  clear  and  easy  to  be  understood. 
Coke,  Litt.  283. 

Probntis  extremis,  prsesumitnr  media.  The  ex- 
tremes being  proved,  the  intermediate  proceedings 
are  ])resumed.    1  Grcenleaf,  Ev.  ^  20. 

Processus  legis  est  gravis  vexatio,  executio  legis 
eorotiat  opus.    The  process  of  the  law  is  a  grievous 


vexation;  the  execution  of  the  law  crowns  the 
work.    Coke,  Litt.  289. 

Prohibetar  ne  qiiis  facia t  in  sua  quod  nocere  possit 
alieno.  It  is  prohibited  to  do  on  one's  own  pro- 
perty that  which  may  injure  another's.   9  C<^ke,  59. 

Proles  seqnitur  sortem  paternuin.  The  offspring 
follows  the  condition  of  the  father.  1  Sandf.  Ch. 
N.  Y  583,  660. 

Propinquior  excludit  propinqnnm ;  propinquus 
remotnm;  et  remotus  remotiorem.    He  who  is  nearer 
excludes  him  who  is  near;  he  who  is  near,  him 
I  who  is  remote  ;  he  who  is  remote,  him  who  is  more 
remote.    Coke,  Litt.  10. 

Propositum  iudefinitum  sequipollet  unirersali.  An 
indefinite  proposition  is  equal  to  a  general  one. 

Proprietas  totius  navis  carinse  causam  seqnitur. 
The  property  of  the  whole  ship  follows  the  owner- 
ship of  the  keel.  Dig.  6.  1.  61.  Provided  it  had 
not  been  constructed  with  the  materials  of  another. 
Id.;  2  Kent,  Comm.  362. 

Proprietas  verboruiu  est  salus  proprietatum.  The 
propriety  of  words  is  the  safety  of  property. 

Proprietates  verborum  observandm  sunt.  The  pro- 
prieties (t.  e.  proper  meanings;  of  words  are  to  be 
observed.    Jenk.  Cent.  Cas.  136, 

Protcctio  trahit  subjectionem,  subjectio protect ionem. 
Protection  draws  to  it  subjection  ;  subjection,  pro- 
tection.   Coke,  Litt.  65. 

Proviso  est providere  prteaentia  et  fntura,  nonprse- 
terita.  A  proviso  is  to  provide  for  the  present  and. 
the  future,  not  the  past.  2  Coke,  72  ;  Vaugh.  279 ; 
Broom.  Max.  3d  Lond.  ed.  275. 

Proximus  est  cui  nemo  antecfdit /  supremus  est 
quern  nemo  sequitur.  He  is  next  whom  no  one  pre- 
cedes; he  is  last  whom  no  one  follows.  Dig.  50. 
16.  92. 

Pr\identur  agit  qui  prseccpio  legis  obtemperat.  He 
act  prudently  who  obeys  the  commands  of  the  law. 
5  Coke,  49. 

Pueri  sunt  de  sanguine  parentum,  sed  pater  et  mater 
noil  sunt  de  sanguine  pnerorum.  Children  are  of  the 
blood  of  their  parents,  but  the  father  and  mother 
are  not  of  the  blood  of  their  children.   3  Coke,  40. 

Pu2)illus  2y<iti  posse  non  intelligirur.    A  puj)il  is 
not  considered  able  to  do  an  act  which  would  be 
I  prejudicial  to  him.    Dig.  50.  17.  110.  2^  2  Kent, 
Comm.  245. 

Purchaser  ivithout  notice  not  obliged  to  discover  to 
his  own  hurt.  See  4  Bouvier,  Inst.  n.  4336.  See 
Infra  Pr^sidia. 

Quse  ab  hostibus  capiuntnr,  statim  capienfiunt  fiunf. 
Things  taken  from  public  enemies  immediately  be- 
come the  property  of  the  captors.  Inst.  2.  1.  17; 
Grotius  de  jur.  Bell.  1.  3.  c.  6,  g  12. 

Quae  ab  initio  inuiilis  fuit  institutio,  ex  post  facto 
conralesrere  non  potest.  An  institution  void  in  the 
beginning  cannot  acquire  validity  from  after-mat- 
ter.   Dig.  50.  17.  210. 

Quse  accessiorium  locum  obtinent,  extingnuntur 
cum  principales  res  peremptse  fuerint.  When  the 
principal  is  destro3'ed,  those  things  which  are  ac- 
cessory to  it  are  also  destioyed.  Pothier,  Obi  pt. 
3,  c.  6,  art.  4;  Dig.  33.  8.  2 ;  Broom,  Max.  3d  Lond. 
ed.  439. 

Quse  ad  nnum  Jinem  loquuta  sunt;  non  debent  ad 
alium  detorqueri.  Words  spoken  to  one  end  ought 
not  to  be  perverted  to  another.    4  Coke,  14. 

Quse  cohserent  personse  d  persona  separari  neque- 
vnt.  Things  which  belong  to  the  person  ought  not 
to  be  separated  from  the  person.  Jenk.  Cent. 
Cas.  28. 

Quse  comniuni  legi  derogant  stride  interpretantur. 
Laws  which  derogate  from  the  common  law  ought 
to  be  strictly  construed.    Jenk.  Cent.  Cas.  221. 

Quse  contra  rationem  juris  introducta  sunt,  non 
debent  trahi  in  consequentiam.  Things  introduced 
contrary  to  the  reason  of  the  law  ought  not  to 
be  drawn  into  precedents.    12  Coke,  75. 


MAXIM 


150 


MAXIM 


Quse  dubitationis  camd  toUendse  inseruntur  cnm- 
mnnem  legem  non  Isedunt.  Whatever  is  inserted  for 
the  purpose  of  removing  doubt  does  not  hurt  or 
affect  the  common  law.    Coke,  Litt.  205. 

Qitue  dubitationis  tollendse  causa  coniractibns  in- 
teruuiur,  jus  commune  non  Isedunt.  Particular  clauses 
inserted  in  agreements  to  avoid  doubts  and  am- 
biguity do  not  prejudice  the  common  law.  Dig. 
50!  17.  81. 

Qua:  in  curia  acta  sunt  rite  agi  prseswnuvtur. 
Whatever  is  done  in  court  is  presumed  to  be  rightly 
dme.    3  Bulstr.  43. 

Quse  in  partes  diridi  nequeunt  solida,  a  singulis 
prsEstantur.  Things  {i.e.  services  and  rent.>)  which 
cannot  be  divided  into  parts  are  rendered  entire  by 
each  severally.    6  Coke,  1. 

Quee  in  testamento  ita  sunt  scripta  ut  intelligi  non 
possunt,  perinde  sunt  ac  si  scripta  non  essent.  Things 
which  are  so  written  in  a  will  that  they  cannot  be 
understood,  are  as  if  they  had  not  been  written. 
Dig.  50.  17.  73.  3. 

Qus-  incontinenter  vel  certo  fiunt  in  esse  videntnr. 
Whatever  things  are  done  at  once  and  certainly, 
appear  part  of  the  same  transaction.  Coke,  Litt. 
236.  ,  ,  , 

Quse  inter  alios  acta  sunt  nemimnocere  debent,  sect 
prodesse  possunt.  Transactions  between  strangers 
may  benefit,  but  cannot  injure,  persons  who  are 
parties  to  them.    6  Coke,  1. 

Quse  legi  communi  derogant  non  sunt  trahendn  in 
exemplum.  Things  derogatory  to  the  common  law 
are  not  to  be  drawn  into  precedent.  Branch, 
Princ. 

Quse  legi  communi  derogant  stricte  interpretantur. 
Those  things  which  derogate  from  the  common  law 
are  to  be  construed  strictly.    Jenk.  Cent.  Cas.  29. 

Qnie  mala  sunt  inckoata  in  principio  vix  bono 
perngantnr  exitn.  Things  bad  in  the  condmence- 
ment  seldom  end  well.    4  Coke,  2. 

Quse  non  valmnt  singula,  juncta  juvant.  Things 
which  may  not  avail  singly,  when  united  have  an 
effect.    3  Bulstr.  132. 

Quse  prseter  consuetndinem  et  morem  ma  jorum  fiunt, 
neque  placent,  ncque  recta  videntur.  What  is  done 
contrary  to  the  custom  and  usage  of  our  ancestors, 
neither  pleases  nor  appears  right.    4  Coke,  78. 

Quse  propter  neressitatem  recepta  sunt,  non  debent 
in  argumentum  irahi.  Things  which  are  tolerated 
on  account  of  necessity  ought  not  to  be  drawn  into 
precedent.    Dig.  50.  17.  162. 

Quse  rerun  natnrd  prohibentur,  nulla  lege  con- 
firmata  siinf.  What  is  prohibited  in  the  nature  of 
things  can  be  confirmed  by  no  law.    Finch,  Law, 

Quse  sunt  minoris  cnlpse  sunt  majoris  infamise. 
Things  which  are  of  the  smaller  guilt  are  of  the 
greater  infamy.    Coke,  Litt.  6. 

Qusecunque  intra  rationem  Icgis  inveniuntur,  infra 
legem  ipsam  esse  judicantur.  Whatever  appears 
within  the  reason  of  the  law,  is  considered  within 
the  law  itself.    Coke,  2d  Inst.  689. 

Qusflibet  concessio  fortissime  contra  donatorem 
interpretanda  est.  Every  grant  is  to  be  taken 
most  strongly  against  the  grantor.  Coke,  Litt. 
183  a. 

QitP'libet  jurisdictio  cancellos  snos  hahet.  Every 
jurisdiction  has  its  bounds.    Jenk.  Cent.  Cas.  139. 

Qumlibet  prrna  corporalis,  quamvis  winima,  major 
est  quAlibtt  poend  pecuniarid.  Every  corporal  pun- 
ishment, although  the  very  least,  is  greater  than 
any  pecuniary  punishment.    Coke,  3d  Inst.  220. 

Qnir.ras  de  dnhils,  legem  bene  discere  si  vis.  In- 
quire into  doubtful  points  if  you  wish  to  under- 
stand the  law  well.    Littleton,  ^  413. 

Qnsnre  de  dubiis,  quia  per  rationes  pervenitur  ad 
Ic.qitiinain  rationem.  Inquire  into  doubtful  points, 
because  by  reasoning  wo  arrive  at  legal  reason. 
Littleton,  {}  377. 

Queerere  dai  tapere  quee  sunt  legitinia  ver^.  To 


investigate  is  the  way  to  know  what  things  ara 
really  lawful.    Littleton,  g  443. 

Qiialit'is  quse  inesse  debet,  facile  prsesumitur.  A 
quality  which  ought  to  form  a  part  is  easily  pre- 
sumed. 

Quam  longum  debet  esse  rationabile  tempus,  non 
definitnr  in  lege,  sed  pendet  ex  discretione  justiciario- 
rum.  What  is  reasonable  time  the  law  ddcs  not 
define:  it  is  left  to  the  discretion  of  the  judges. 
Coke,  Litt.  56.    See  11  Coke,  44. 

Quam  rutionabilis  debet  esse  finis,  non  definitur, 
sed  omnibus  cxrcumstantiis  inspectis  pendet  ex  jus- 
ticiariorum  discretione.  What  a  reasonable  fine 
ought  to  be  is  not  defined,  but  is  left  to  the  dis- 
cretion of  the  judges,  all  the  circumstances  being 
considered.    11  Coke,  44. 

Quamvis  aliquid  per  se  non  sit  malum,  tarn  en  si 
sit  viali  exempli,  non  est  faciendum.  Although  in 
itself  a  thing  may  not  be  bad,  yet  if  it  holds  out 
a  bad  example  it  is  not  to  be  done.  Coke,  2d  Inst. 
564.  . 

Quamvis  lex  generaliter  loquitur,  restnngenda 
tamen  est,  ut  cessante  ratione  et  ipsa  cessat.  Al- 
though the  law  speaks  generally,  it  is  to  be  re- 
strained, since  when  the  reason  on  which  it  is 
founded  fails,  it  fails.    Coke,  4th  Inst.  330. 

Qnando  abest  provisio  partis,  adest  provixio  legis. 
When  a  provision  of  the  party  is  lacking,  the  pro- 
vision of  the  law  is  at  hand.    13  C.  B.  960. 

Quando  aliqttid  conceditur,  conceditur  id  sine  quo 
illud  fieri  non  possit.  When  any  thing  is  granted, 
that  &ho  is  granted  without  which  it  cannot  be  of 
eff"ect.    9  Barb.  N.  Y.  516,  518 ;  10  id.  354,  359. 

Qnando  aliquid  mandatur,  mandatur  et  omne  per  ; 
quod  pervenitur  ad  illud.    When  any  thing  is  com-  , 
manded,  every  thing  by  which  it  can  be  accom- 
plished is  also  commanded.    5  Coke,  116.    See  7 
C.  B.  886;  14  id.  107;  6  Exch.  886,  889;  10  id.  ' 
449;  2  Ell.  &  B.  301;  Story,  Ag.  4lh  ed.  110,  179, 
242,  299 ;  Broom,  Max.  3d  Lond.  ed.  431. 

Quando  aliquid  per  se  non  sit  malum,  tamen  si  sit 
mail  exempli,  non  est  faciendum.  When  any  thing 
by  itself  is  not  evil,  and  yet  may  be  an  example 
for  evil,  it  is  not  to  be  done.    Coke,  2d  Inst.  564. 

Quando  aliquid  prohibetur  ex  directo,  prohibetur 
et  per  obliqunm.  When  any  thing  is  prohibited 
directly,  it  is  also  prohibited  indirectly.  Coke, 
Litt.  223. 

Quando  aliquid  prohibetur,  prohibetur  omne  per 
quod  devenitur  ad  illud.  When  any  thing  is  pro- 
hibited, everv  thing  by  which  it  is  reached  is 
prohibited.  Coke,  2d  Inst.  48;  Broom,  Max.  3d 
Lond.  ed.  432  ;  Wingate,  Max.  618.  See  7  Clark  & 
F.  Hou.  L.  509,  546;  4  Barnew.  &  C.  187,  193;  2 
Term,  251, 252;  8  301, 415 ;  15  Mees.  &  W.  Exch. 
7;  11  Wend.  N.  Y.  329. 

Quando  aliquis  aliquid  concedit,  concedere  videtur 
et  id  sine  quo  res  uti  non  potest.  When  a  person 
grants  a  thing,  he  is  supposed  to  grant  that  also 
without  which  the  thing  cannot  be  used.  3  Kent, 
Comm.  421. 

Quando  charta  continet  generulem  clau8ulam,po»t- 
eaque  descendit  ad  verba  specialia  quse  clansulte 
gencrali  sunt  consentanea,  interpretanda  est  charta 
secundum  verba  specialia.  When  a  deed  contains  a 
general  clause,  and  afterwards  descends  to  special 
words,  consistent  with  the  general  clause,  the  deed 
is  to  be  construed  according  to  the  special  words. 
8  Coke,  154. 

Qnando  de  nnd  et  eddem  re,  duo  onernhiles  exia- 
tunty  vnus,  pro  insufiTrcientid  alterius,  de  integro  one- 
rabitur.  When  two  persons  are  liable  concerning 
one  and  the  same  thing,  if  one  makes  defauU  the 
other  must  bear  the  whole.    Coke,  2d  Inst.  277. 

Qnando  dispositio  referri  potest  ad  duas  res,  ita 
quod  secundum  rvlationem  nnam  vitiatur  et  secundxim 
alteram  utilis  sit,  turn  facienda  est  relntio  ad  illam 
ut  raleat  dispositio.  When  a  disposition  may  be 
made  to  refer  to  two  things,  so  that  according  to 


MAXIM  151  MAXIM 


one  reference  it  would  be  vitiated  and  by  the 
other  it  would  be  made  effectual,  such  a  reference 
must  be  made  that  the  disposition  shall  have  effect. 
6  Coke,  76  6. 

Qaando  diversi  deaiderantnr  actus  ad  aliquem 
atdtiiiii  po-Jiiuendum,  ]>lua  respicit  lex  actum,  oru/i- 
natein.  When  different  acts  are  required  to  the 
formation  of  an  estate,  the  law  chiefly  regards  the 
original  act.    10  Coke,  49. 

Quaudo  duo  jura  concurrent  in  iind  pej'sotid, 
sequuni  eat  ac  hi  eanent  in  diveraia.  When  two  rights 
concur  in  one  person,  it  is  the  same  as  if  they  were 
in  two  separate  persons.    4  Coke,  118. 

Quando  jus  domini  reyia  et  auhditi  concvrruut 
jua  reyia  prse/'erri  debet.  When  the  right  of  the 
sovereign  and  of  the  subject  concur,  the  right  of 
the  sovereign  ought  to  be  preferred.  1  Coke,  129; 
Coke,  Litt  30  b  ;  Broom.  Max.  3d  Lond.  ed.  66. 

Quando  lex  allquid  alicui  concedit,  coucedere  vide- 
tur  id  Nine  quo  rea  ipaa  eaae  non  poteat.  When  the 
law  gives  any  thing,  it  gives  the  means  of  obtaining 
it.    5  Coke,  47;  3  Kent,  Comm.  421. 

Quando  lex  aliqiiid  alicui  concedit,  omnia  inci- 
dentia  tacite  conceduntur.  When  the  law  gives  any 
thing,  it  gives  tacitlv  what  is  incident  to  it.  Coke, 
2d  Inst.  326;  Hob.  234. 

Quando  lex  aliqnid  aliquo  concedit,  conceditur  et 
id  sine  qua  ref  ipaa  esac  non  potest.  When  the  law 
grants  a  thing  to  any  one,  it  grants  that  also  with- 
out which  the  thing  itself  cannot  exist.  15  Barb. 
N.  Y.  153,  160. 

Quando  lex  eat  apecialia,  ratio  nutem  generalis, 
generaliter  lex  eat  intellifjenda.  When  the  law  is 
special,  but  its  reason  is  general,  the  law  is  to  be  un- 
derstood generally.  Coke,  2d  Inst.  83;  10  Coke,  10] . 

Quando  licet  id  quod  majua,  videtur  licere  id  quod 
minua.  When  the  greater  is  allowed,  the  less 
seems  to  be  allowed  also.    Sheppard,  Touchst.  429. 

Quando  plua  Jit  quant  fieri  debet,  videtur  etiani 
illud  fieri  quod  faciendum  eat.  Wlien  more  is  done 
than  ought  to  be  done,  that  too  shall  be  considered 
as  performed  which  should  have  been  performed : 
as,  if  a  man  having  a  power  to  make  a  lease  for 
ten  years,  make  one  for  twenty  years,  it  shall  be 
void  only  for  the  surplus.  Broom,  Max.  3d  Lond. 
ed.  166;  5  Coke,  115;  8  id.  85  a. 

Quando  quod  ago  non  valet  ut  ago,  valeat  quan- 
tum valere  poteat.  When  that  which  I  do  does  not 
have  effec*^  as  I  do  it,  let  it  have  as  much  effect  as 
it  can.  16  Johns.  N.  Y.  172,  178;  3  Barb.  Ch.  N. 
Y.  242,  261. 

Quando  rea  non  valet  ut  ago,  valeat  quantum 
valere  poteat.  When  a  thing  is  of  no  force  as  I  do 
it,  it  shall  hav^e  as  much  as  it  can  have.  Cowp. 
600;  Broom,  Max.  3d  Lond.  ed.  483;  2  Smith, 
Lead.  Cas.  291;  6  East,  105;  1  Ventr.  216;  1  H. 
Blackst.  614,  620. 

Quando  verba  et  mena  congrnunt,  non  eat  inferpre- 
tationi  locus.  When  the  words  and  the  mind  agree, 
there  is  no  place  for  interpretation. 

Quando  verba  atatuti  aunt  apecialia,  ratio  autem 
generalis,  generaliter  at'itutum  eat  intelligendum. 
When  the  words  of  a  statute  are  special,  but  the 
reason  or  object  of  it  general,  the  statute  is  to  be 
construed  generally.    10  Coke,  101  b. 

Quemadmodum  ad  qusestionem  facti  non  respon- 
dent judices,  ita  ad  qusestionem  juris  non  respondent 
juratores.  In  the  same  manner  that  judges  do  not 
answer  to  questions  of  fact,  so  jurors  do  not  answer 
to  questions  of  law.    Coke,  Litt.  295. 

Qui  accusal  integrse  famse  sit  et  non  criminosua. 
Let  him  who  accuses  be  of  clear  fame,  and  not 
criminal.    Coke,  3d  Inst.  26. 

Qui  adimit  medium  dirimit  finem.  He  who  takes 
away  the  means  destroys  the  end.    Coke.  Litt.  161. 

Qui  aliqnid.  atatuerit  parte  inaudifd  altn  d,  rrqnum 
licet  direrit,  hand  aquum  facerit.  He  who  decides 
Any  thing,  a  party  being  unheard,  though  he 
should  decide  right,  does  wrong.  6  Coke,  52:  4 
Blackstone,  Comm.  483. 


Qui  alterius  jure  utitur,  eodem  jure  uti  debet.  Ho 
who  uses  the  right  of  another  ought  to  use  the  samo 
right.  Pothier,  Tr.  JJe  Change,  pt.  1,  c.  4,  ^  114; 
Broom,  Max.  3d  Lond.  ed.  421. 

Qui  bene  distinguit,  bene  docet.  He  who  distin^ 
guishcs  well,  teaches  well.    Coke,  2d  Inst.  470. 

Qui  bene  interrogat,  bene  docet.  He  who  questions 
well  learns  well.    3  Bulstr.  227. 

Qui  cadit  d  syllaba  cadit  d  totd  cauaa.  He  who 
fails  in  a  syllable  fails  in  his  whole  cause.  Bract, 
fol.  211;  Stat.  Wales,  12  Edw.  I.;  3  Sharswood, 
Blackst.  Comm.  407. 

Qui  concedit  aliqnid,  concedere  videtur  et  id  sine 
quo  coneeasio  eat  irrita,  sine  quo  rea  ijiea  esse  non 
potuit.  He  who  grants  any  thing  is  considered  aa 
granting  that  without  wliich  his  grant  would  be 
idle,  without  which  the  thing  itself  could  not  exist. 
11  Coke,  52;  Jenk.  Cent.  Cas.  32. 

Qui  confirmat  nihil  dat.  He  who  confirms  does 
not  give.    2  Bouvier,  Inst.  n.  2069. 

Qui  contemnit  prseceptum,  contemnit  jirvecijnentem. 
He  who  contemns  the  precept  contemns  the  party 
giving  it.    12  Coke,  96. 

Qui  cum  alio  contrahit,  vel  est,  vel  debet  esse  non 
ignarus  conditionia  ejus.  He  who  contracts  knows, 
or  ought  to  know,  the  quality  of  the  person  with 
whom  he  contracts  (otherwise  he  is  riot  excusable). 
Dig.  50.  17.  19;  2  Hagg.  Cons.;  Story,  Confl.  Laws, 

Qui  dat  finem,  dat  media  ad  finem  necessaria.  He 
who  gives  an  end  gives  the  means  to  that  end.  3 
Mass.  129. 

Qui  deatruit  medium,  destrvit  finem.  He  who 
destroys  the  means  destroys  the  end.  11  Coke, 
51 ;  Sheppard,  Touchst.  342 ;  Coke,  Litt.  161  a. 

Qui  doit  inheriter  al  pere,  doit  inheriter  al  fitz. 
He  who  ought  to  inherit  from  the  father  ought  to 
inherit  from  the  son.  2  Sharswood,  Blackst.  Comm. 
250,  273;  Broom,  Max.  3d  Lond.  ed.  459. 

Qui  evertit  cauaam,  evert^'t  cauaatum  futurum.  He 
who  overthrows  the  cause  overthrows  its  future 
effects.    10  Coke,  51. 

Qui  ex  damnato  coitu  naacuntur,  inter  liberoa  non 
computentur.  They  who  are  born  of  an  illicit  union 
should  not  be  counted  among  children.  Coke,  Litt. 
8.  See  1  Bouvier,  Inst.  n.  289 ;  Bracton,  5 ;  Broom, 
Max.  3d  Lond.  ed.  460. 

Qui  facit  id  quod  plua  eat,  fucit  id  quod  minua 
est,  aed  non  convertitur.  He  who  does  that  which  is 
more  does  that  which  is  less,  but  not  vice  versa. 
Bracton,  207  b. 

Qui  facit  per  alium  facit  per  ae.  He  who  acts 
by  or  through  another  acts  himself;  i.e.  the  acts  of 
an  agent  are  the  acts  of  the  principal.  1  Shars- 
wood, Blackst.  Comm.  429;  Story,  Ag.  ^440;  2  Bou- 
vier, Inst.  nn.  1273,  1335,  13.36;  7  Mann.  &  G.  32, 
33 ;  16  Mees.  &  W.  26 ;  8  Scott,  N.  r.  590 ;  6  Clark 
&  F.  Hou.  L.  600;  10  Mass.  155. 

Qui  habet  jurisdietionem  absolvendi,  habet  juriS' 
dictionem  ligandi.  He  who  has  jurisdiction  to 
loosen  has  jurisdiction  to  bind.    12  Coke,  59. 

Qui  haeret  in  litera,  hierct  in  cortice.  He  who  ad- 
heres to  the  letter  adheres  to  the  bark.  Coke, 
Litt.  289;  5  Coke,  4  b;  11  id.  34  b;  12  East,  372. 

Qui  iqnorat  qnantitm  solvere  d'ebeat,  non  poteat  in 
prohns  videre.  He  who  does  not  know  what  he 
ought  to  pay  does  not  want  probity  in  not  paying. 
Dig.  50.  17.  99. 

Qui  in  jus  dominiumve  alterius  auccedit  jure  eju« 
nti  debet.  He  who  succeeds  to  the  right  or  pro- 
perty of  another  ought  to  use  his  right,  i.e.  holds  it 
subject  to  the  same  rights  and  liabilities  as  at- 
tached to  it  in  the  hands  of  the  assignor.  Dig.  50. 
17.  177;  Broom,  Max.  3d  Lond.  ed.  420,  425. 

Qui  in  utero  eat,  pro  jam  nato  habetur  quotiea  de 
ejus  commodo  quseritur.  He  who  is  in  the  womb  is 
considered  as  born,  whenever  his  benefit  is  con- 
cerned. 

Qui  jure  sua  utitur.  neviini  facit  injuriam.  Ho 
who  uses  his  legal  rights  harms  no  one. 


MAXIM 


152 


MAXIM 


Qui  JitssH  juflicis  aliquod  fecerit  non  videfur  dolo 
tnalo  feciHHe,  quia  parere  necesae  est.  He  who  does 
any  thing  by  command  of  a  judge  will  not  be  sup- 
posed to  have  acted  from  an  improper  motive,  be- 
cause it  was  necessary  to  obey.  10  Coke,  76 ;  Dig. 
50.  17.  167.  1. 

Qui  male  agit,  odit  hicem.  He  who  acts  badly 
hates  the  light.    7  Coke,  66. 

Qui  inandnt  ipse  feciasi  videtur.  He  who  com- 
mands (a  thing  to  be  done)  is  held  to  have  done  it 
himself.    Story,  Bailm.  §  147. 

Qtii  meliua  probat,  melius  habet.  He  who  proves 
most  recovers  most.    9  Viner,  Abr.  235. 

Qui  molitur  ilisidiaa  in  patriam,  id  facit  quod 
insanus  nauta  perforans  nai:em  in  qua  vehilur.  He 
who  betrays  his  country  is  like  the  insane  sailor 
who  bores  a  hole  in  the  ship  which  carries  him. 
Coke,  3d  Inst.  36. 

Qui  nascitnr  aine  legitimo  matrimonio,  matrem 
aequitur.  He  who  is  born  out  of  lawful  matri- 
mony follows  the  condition  of  the  mother. 

Qui  non  cadunt  in  constantem  virum,  vani  timores 
aunt  sestimnndi.  Those  are  to  be  esteemed  vain 
fears  which  do  not  aflFect  a  man  of  a  firm  mind. 
7  Coke,  27. 

Qui  non  habet,  ille  non  dat.  Who  has  not,  he 
gives  not.  Sheppard,  Touchst.  24:3;  4  Wend.  N. 
Y.  619. 

Qui  non  habet  in  sere  Inat  in  corpore,  ne  quia 
peccetur  imjmne.  He  who  cannot  pay  with  his 
purse  must  suffer  in  his  person,  lest  he  who  offends 
should  go  unpunished.  Coke,  2d  Inst.  173;  4 
Blackst.)ne,  Comm.  20. 

Qui  non  habet  poteatatem  alienandi  habet  necesai- 
tatem  retinendi.  He  who  has  not  the  power  of 
alienating  is  obliged  to  retain.    Hob.  336. 

Qui  non  improbnt,  approbat.  He  who  does  not 
disapprove  approves.    Coke,  3d  Inst.  27. 

Qui  non  libere  veritatem  pronnnciat,  proditor  eat 
veritatis.  He  who  does  not  freely  speak  the  truth 
is  a  betrayer  of  the  truth. 

Qui  non  obatat  quod  obatare  poteat  facere  videtur. 
He  who  does  not  prevent  what  he  can,  seems  to 
commit  the  thing.    Coke,  2d  Inst.  146. 

Qui  non  prohibet  cum  prohibere  poaait,jubet.  He 
who  does  not  forbid  when  he  can  forbid,  commands. 
1  Sharswood,  Blackst.  Comm.  430. 

Qui  non  prohibet  quod  prohibere  poteat  aasentire 
videfur.  He  who  does  not  forbid  what  he  can  for- 
bid, seems  to  assent.  Coke,  2d  Inst.  308  ;  8  Exch. 
304. 

Qui  non  propnlaat  injuriam  quando  poteat,  infert. 
He  who  does  not  repel  a  wrong  when  he  can,  occa- 
sions it.    Jenk.  Cent.  Cas.  271. 

Qui  obatruit  aditum,  deatrnit  commodum.  He  who 
obstructs  an  entrance  destroys  a  conveniency. 
Coke,  Litt.  161. 

Qui  omne  dicit,  nihil  excludit.  He  who  says  all 
excludes  nothing.    Coke,  4th  Inst.  81. 

Qui  pitrcit  nocentibua  innocentibua  punit.  He 
wlio  spares  the  guilty  punishes  the  innocent. 
Jenk.  Cent.  Cas.  126. 

Qui  peccnt  ebriua,  Inat  aobriua.  He  who  offends 
drunk  must  be  punished  when  sober.    Car.  133. 

Qui  per  alinm.  favit  per  aeipaum  facere  ridetur. 
He  who  does  any  thing  through  another  is  con- 
sidered as  doing  it  himself.    Coke,  Litt.  258. 

Qui  per  fraudem  agit,  fruatra  agit.  He  who 
acts  fraudulently  acts  in  vain.    2  Rolle,  17. 

Qui  poteat  et  debet  retare,  Jnbet.  He  who  can  and 
ought  to  forbid,  and  does  not,  commfinds. 

Qui  primum  peccnt  ille  facit  rixam.  Ho  who 
first  offends  causes  the  strife. 

Qui  prior  cat  tempore,  potior  cat  jure.  Ho  who  is 
first  or  before  in  time  is  stronger  in  right.  Coke, 
Litt.  14  a;  1  Story,  Kq.  Jnr.  >/  64  d;  Story,  Bailm. 
jPH2  ;  1  Bouvicr,  Inst.  n.  952  ;'  4  id.  3728  ;  1  Smith, 
Lead.  Cas.  4th  Haro  &  W.  ed.  440  j  3  East,  93 ;  24 
Miss.  208. 


Qui  pro  me  aliquid  facit,  mihi  feciaae  videtur. 
Ho  who  does  any  benefit  (to  another)  for  nie  is 
considered  as  doing  it  to  me.    Coke,  2d  Inst.  501. 

^(u'  providet  aibi,  providet  hseredibus.  He  who 
provides  for  himself  provides  for  his  heirs. 

Qui  rationem  in  omnibua  quserunt,  rationem  aub- 
vertunt.  He  who  seeks  a  reason  for  every  thing 
subverts  reason.  2  Coke,  75;  Broom,  Max.  3d 
Lond.  ed.  149. 

Qui  semel  actionem  renunciaverit,  ampliua  repetere 
non  potest.  He  who  renounces  his  action  once 
cannot  any  more  bring  it.  8  Coke,  69.  See  Re- 
traxit. 

Qui  sernel  malua,  semper  prmsumitur  ease  malua 
in  eodem  genere.  He  who  is  once  bad  is  presumed 
to  be  always  so  in  the  same  degree.  Croke  Car. 
317;  Best,  Ev.  345. 

Qui  aentit  commodum,  aentire  debet  et  onna.  He 
who  derives  a  benefit  from  a  thing  ought  to  bear 
the  disadvantages  attending  it.  2  Bouvier,  Inst.  n. 
1433;  2  Woodb.  &  M.  C.  C.  217;  1  Stor.  Const.  78; 
Broom,  Max.  3d  Lond.  ed.  630. 

Qui  aentit  onua,  aenlire  debet  et  commodum,  1 
Coke,  99  a;  Broom,  Max.  3d  Lond.  ed.  638;  1 
Serg.  &  R.  Penn.  180 ;  Coote,  Mortg.  3d  ed.  617 
{d);  Francis,  Max.  5. 

Qui  tacet  consentire  videtur.  He  who  is  silent 
appears  to  consent.    Jenk.  Cent.  Cas.  32. 

Qui  tacet  consentire  videtur  nbi  tractatur  de  ejus 
commodo.  He  who  is  silent  is  considered  as  assent- 
ing, when  his  advantage  is  debated.    9  Mod.  38. 

Qui  tacet  non  utique  fatetur,  aed  tamen  verum  est 
eum  non  negare.  He  who  is  silent  does  not  indeed 
confess,  but  yet  it  is  true  that  he  does  not  deny. 
Dig.  50. 17.  142. 

Qui  tardius  solvit,  minus  solvit.  He  who  pays 
tardily  pays  less  than  he  ought.  Jenk.  Cent.  Cas. 
38. 

Qui  timent,  cavent  et  vitant.  They  who  fear  take 
care  and  avoid.    Off.  Ex.  162;  Branch,  Princ. 

Qui  vult  decipi,  dccipiatur.  Let  him  who  wishes 
to  be  deceived,  be  deceived.  De  Gex,  M.  &  G.  Ch. 
687,  710;  Sheppard,  Touchst.  66. 

Quicquid  acquiritur  aerro,  acquiritur  domino. 
Whatever  is  acquired  by  the  servant  is  acquired 
for  the  master.    15  Viner,  Abr.  327. 

Quicquid  demonatratse  rei  additur  satia  demon- 
stratse  fruatra  eat.  Whatever  is  added  to  the  de- 
scription of  a  thing  already  sufficiently  described 
is  of  no  effect.  Dig.  33.  4.  1.  8;  Broom,  Max.  3d 
Lond.  ed.  562. 

Quicquid  est  contra  norm  am  recti  est  injuria. 
Whatever  is  against  the  rule  of  right  is  a  wrong. 
3  Bulstr.  313. 

Quicquid  in  excessu  actum  est,  lege  prohibitur. 
Whatever  is  done  in  excess  is  prohibited  by  law. 
Coke,  2d  Inst.  107. 

Quicquid  judicia  auctoritati  subjicitur,  novitati 
non  subjicitur.  Whatever  is  subject  to  the  autho- 
rity of  a  judge  is  not  subject  to  innovation.  Coke, 
4th  Inst.  66. 

Quicquid  plantatur  solo,  solo  cedit.  Whatever  is 
affixed  to  the  soil  belongs  to  it.  Went.  Off.  Ex. 
145.    SeeAmbl.  113;  3  East,  61 ;  Fixtuhes. 

Quicquid  recipifur,  rccipitur  secundum  modum 
recipientis.  Whatever  is  received  is  received  ac- 
cording to  the  intention  of  the  recipient.  Broom, 
Max.  3d  Lond.  ed.  727;  Halkers,  Max.  149;  Law 
Mag.  1855,  p.  21  :  2  Bingh.  n.  c.  461;  2  Barnew.  & 
C.  72;  14  Sim.  Ch.  522;  2  Clark  &  F.  Hou.  L.  681; 
2  Crompt.  &  J.  Exch.  678;  14  East,  239,  243  c. 

Quicquid  solvitnr,  aolvitnr  accundum  modum  sol- 
ventis.  Whatever  is  paid  is  to  be  applied  accord- 
ing to  the  intention  of  the  payor.  2  Vern.  606. 
See  Apphopriation  op  Payments. 

Quid  sit  jua,  et  in  quo  consistit  injuria,  legia  eat 
dcfinire.  What  constitutes  right,  and  what  injury, 
it  is  the  business  of  the  law  to  declare.  Coke,  Litt; 
168  b. 


Maxim 


153 


MAXIM 


Qui'etn  lion  mocere.  Not  to  unsettle  things  which 
arc  established.    28  Barb.  N.  Y.  9,  22. 

Qni'libet  potent  reimiiciare  jnri  pro  fie  iiiducto. 
Any  one  may  renounce  a  hiw  introduced  for  his 
own  benefit.  To  this  rule  there  are  some  excep- 
tions. See  1  Bouvier,  Inst.  n.  83  j  3  Curt.  C.  C.  393 ; 
1  Exch.  657. 

QniHquiH  est  qui  velit  juris  consultus  haheri,  eon- 
liiiiiet  studiuni,  velit  a  quocunque  dvccri.  Who- 
ever wishes  to  be  held  a  jurisconsult,  let  him  con- 
tinually study,  and  desire  to  be  taught  by  every 
body. 

Quo  ligatur,  en  dissolvitnr.  As  a  thing  is  bound, 
so  it  is  unbound.    2  Rolle,  21. 

Qiiocumjite  modo  velit,  quocumqiie  modo  possit. 
In  any  way  he  wishes,  in  any  way  he  can.  14 
Johns.  N.  Y.  484,  492. 

Quod  d  quoque  poetise  nomine  exncfum  est  id  eidem 
restituere  nemo  cogitur.  That  which  has  been  ex- 
acted as  a  penalty  no  one  is  obliged  to  restore. 
Dig.  50.  17.  46. 

Quod  ah  initio  non  valet,  in  tractu  temporis  non 
convalescet.  What  is  not  good  in  the  beginning 
cannot  be  rendered  good  by  time.  Merlin,  Rep. 
verb.  Regie  de  Droit.  This,  though  true  in  general, 
is  not  universally  so.  4  Coke,  26  ;  Broom,  Max.  3d 
Lond.  ed.  166,  172,  n. 

Quod  ad  jus  naturale  attinet,  omnes  homines 
sequales  sunt.  All  men  are  equal  as  far  as  the 
natural  law  is  concerned.    Dig.  50.  17.  32. 

Quod  sedijicatur  i)iared  legatd  ccdif  legato.  What- 
ever is  built  upon  land  given  by  will  passes  with 
the  gift  of  the  land.  Amos  &  F.  Fixtures,  2d  ed. 
246;  Broom,  Max.  3d  Lond.  ed.  377. 

Quod  alias  bonum  et  justum  est,  si  per  vim  vel 
fraudem  petatur,  malum  et  injnstim  efficitur.  What 
is  otherwise  good  and  just,  if  sought  by  force  or 
fraud,  becomes  bad  and  unjust.    3  Coke,  78. 

Quod  alias  non  fuit  licitum  necessitas  licitum  facit. 
Necessity  makes  that  lawful  which  otherwise  were 
unlawful.    Fleta,  1.  5,  c.  23,  g  14. 

Quod  approbo  non  reprobo.  What  I  accept  I  do 
not  reject.    Broom,  Max.  3d  Lond.  ed.  6H6. 

Quod  attinet  ad  jus  civile,  servi  pro  uullis  haben- 
tur,  non  tamen  et  jure  naturali,  quia,  quod  ad  jna 
noturale  attinet,  omnes  Jiomines  fequali  sunt.  So  far 
fts  the  civil  law  is  concerned,  slaves  are  not  reckoned 
as  persons,  but  not  so  by  natural  law,  for  so  far  as 
regards  natural  law  all  men  are  equal.  Dig.  50. 
17.  32. 

Quod  constat  dare,  non  debet  verijioari.  What 
is  clearly  apparent  need  not  be  proved.  10  Mod. 
150. 

Quod  constat  curise  opere  testium  non  indiget. 
What  appears  to  the  court  needs  not  the  help  of 
witnesses.    Coke,  2d  Inst.  662. 

Quod  contra  juris  rationem  reeeptum  est,  non  est 
producendnm  ad  consequentias.  What  has  been  ad- 
mitted against  the  reason  of  the  law,  ought  not  to 
be  drawn  into  precedents.  Dig.  50.  17.  141  j  12 
Coke,  75. 

Quod  contra  legem  fit, pro  in  fecto  habetnr.  What 
is  done  contniry  to  the  law,  is  considered  as  not 
done.  4  Coke,  31.  No  one  can  derive  any  advan- 
tage from  such  an  act. 

Quod  datum  est  ecclesiw,  datum  est  Deo.  W'hat  is 
given  to  the  church  is  given  to  God.  Coke,  2d 
Inst.  590. 

Quod  demonstrandi  causa  additur  ret  satis  de- 
nion8tratse,frustra  fit.  What  is  added  to  a  thing 
sufficiently  palpable,  for  the  purpose  of  demonstra- 
tion, is  vain.    10  Coke,  113. 

Quod  dubitasy  ne  feceris.  When  you  doubt  about 
a  thing,  do  not  do  it.    1  Hale,  PI.  Cr.  310. 

Quod  cnim  semel  aut  bis  existit,  jyrsetereunt  legis- 
Idtores.  That  which  never  happens  but  once  or 
twice,  legislators  pass  by.    Dig.  1.  3.  17. 

Quod  est  ex  necessitate  nunquam  introducitur,  nisi 
quando  necessariuni.    What  is  introduced  of  neces- 


sity, is  never  introduced  except  when  necessary. 
2  Rolle,  512. 

Quod  est  inconvcniens,  aut  contra  rationem  non 
perrnissum  est  in  lege.  What  is  inconvenient  or  con- 
trary to  reason,  is  not  allowed  in  law.  Coke,  Litt. 
178. 

Quod  est  necessarium  est  licitum.  What  is  neces- 
sary is  lawful.    Jenk.  Cent.  Cas.  76. 

Quod  factum  est,  cum  in  obscuro  sit,  ex  affectione 
cujusque  capit  intcrpretationem.  When  there  is 
doubt  about  an  net  or  expression,  it  receives  inter- 
pretation from  the  (known)  feelings  or  affections 
of  the  actor  or  writer.    Dig.  50.  17.  168.  1. 

Quod  fi,eri  debet  facile  prasnmitur.  Thiit  is  easily 
presumed  which  ought  to  be  done.  Ilalkers,  Max. 
153. 

Quod  fieri  non  debet,  factum  valet.  What  ought 
not  to  be  done,  when  done,  is  valid,  5  Coke,  38  j 
12  Mod.  438;  6  Mees.  &  W.  Exch.  58;  9  id.  636. 

Quod  in  jure  scripto  ''jus"  ajjjjellatttr,  id  in  lege 
Auglifs  "  rectum"  esse  dicitnr.    What  in  the  civil 
law  is  called  "jus,"  in  the  law  of  England  is  said 
I  to  be  "  rectum"  (right).    Coke,  Litt.  260  ;  Fleta,  1. 
j  6,  c.  1,  I  1.  _ 

Quod  in  minori  valet,  valehit  in  majori;  et  quod 
'  in  majori  non  valet,  nec  valebit  in  minori.  What 
i  avails  in  the  less,  will  avail  in  the  greater;  and 
'  what  will  not  avail  in  the  greater,  will  not  avail  in 

the  less.    Coke,  Litt.  260. 
;      Quod  in  uno  similium  valet,  valebit  in  altere. 

What  avails  in  one  of  two  similar  things,  will  avail 
,  in  the  other.    Coke,  Litt.  191. 

Quod  inconsidto  fecimus,  consultius  revocemus. 
What  is  done  without  consideration  or  reflection, 
upon  better  consideration  we  should  revoke  or  undo. 
Jenk  Cent.  Cas.  116.  .. 

Quod  initio  viliosum  est,  non  potest  tractu  temjjoris 
convalescei  €.  Time  cannot  render  valid  an  act  void 
in  its  origin.    Dig.  50.  17.  29. 

Quod  ijisis,  qui  contraxerunt,  obstat;  el  sucressori- 
bus  eorum  obstabit.  That  which  bars  those  who 
have  contracted  will  bar  their  successors  also. 
Dig.  50.  17.  103. 

Quod  jussu  ulterius  solvitur  2)ro  eo  est  quasi  ipsi 
solutum  esset.  That  which  is  paid  by  the  order  of 
another  is,  so  far  as  such  person  is  concerned,  as  if 
it  had  been  paid  to  himself.    Dig.  50.  17.  IbO. 

Quod  meum  est,  sine  facto  sire  defectu  nostra, 
amitti  scu  in  alium  transferri  non  j^^^cst.  That 
which  is  ours  cannot  be  lost  or  transferred  to  an- 
other without  our  own  act  or  default.  8  Coke,  92, 
Broom,  Max.  3d  Lond.  ed.  415;  1  Preston,  Abstr. 
147,  318. 

Quod  meum  est  sine  me  auferri  non  potest.  What 
is  mine  cannot  be  taken  away  without  my  consent. 
Jenk.  Cent.  Cas.  251.    But  see  Eminent  Domain. 

Quod  minus  est  in  obligationem  videtur  deductum. 
That  which  is  the  less  is  held  to  be  imported  into 
the  contract:  e.  g.  A  offers  to  hire  B's  house  at  six 
hundred  dollars  at  the  same  time  B  offers  to  let  it 
for  five  hundred  dollars;  the  contract  is  for  five 
hundred  dollars.    1  Story,  Contr.  4th  ed.  481. 

Quod  naturalis  ratio  inter  omnes  homines  con- 
stituit,  vacatur  jus  gentium.  That  which  natural 
reason  has  established  innong  all  men,  is  called  the 
I  law  of  nations.  Dig.  1.  1.  9;  Inst.  1.  2.  1;  1 
Sharswood,  Blackst.  Comm.  43. 

Quod  necessarie  intelligitur  id  non  deest.  What 
is  necessarily  understood  is  not  wanting.  1  Bulstr. 
71. 

Quod  necessitas  cogit,  defendit.  What  necessity 
forces,  it  justifies.    Hale,  PI.  Cr.  54. 

Quod  non  apparet  non  est,  et  non  ajjparet  judi- 
cialiter  ante  judicium.  What  appears  not  does  not 
exist,  and  nothing  appears  judicially  before  judg- 
ment.   Coke,  2d  Inst.  479;  Jenk.  Cent.  Cas.  207. 

Quod  non  capit  Christus,  capit  fiscus.  What  the 
church  does  not  take,  the  treasury  takes.  I'ear  B. 
19  Hen.  VL  1. 


MAXIM 


154 


MAXIM 


Quod  non  hobet  principium  non  habet  Jinum, 
What  has  no  beginning  has  no  end.  Coke,  Litt. 
345;  Broom,  Max.  3d  Lond.  ed.  170,  171 . 

Qnod  Hint  le<filur,  non  creditui:  What  is  not  read 
ig  not  believed.    4  Coke,  304. 

Quod  non  valet  in  pn'ncipalia,  in  accessoria  sen 
cnmeqaentia  non  valebit;  et  quod  non  valet  in  mayis 
propinquo,  non  valebit  in  matjis  revioto.  What  is 
not  good  as  to  things  principal,  will  not  be  good  as 
to  accessories  or  consequences  ;  and  what  is  not  of 
force  as  regards  things  near,  will  not  be  of  force  as 
to  things  remote.    8  Coke,  78. 

Quod  nullius  esse  potest,  id  ut  alieujns fieret  nulla 
obliijatio  calet  ejfficere.  No  agreement  can  avail  to 
make  that  the  property  of  any  one  which  cannot 
be  acquired  as  property.    Dig.  50.  17.  182. 

Quod  nul/iiis  est,  est  doniini  retjis.  That  which 
belongs  to  nobody  belongs  to  our  lord  the  king, 
rieta,  1.  3  ;  Broom,  Max.  3d  Lond.  ed.  317  ;  Bacon, 
Abr.  Prero'jatice  ( B ) ;  2  Sharswood,  Blackst. 
Comm.  260. 

Quod  nullius  est  id  ratione  natnrali  occnj)anti 
conceditur.  What  belongs  to  no  one,  by  natural 
reason  belongs  to  the  first  occupant.  Inst.  2.  1. 
12;  1  Bouvier,  Inst.  n.  491;  Broom,  Max.  3d 
Lond.  ed.  316. 

Quod  omncH  tancjit,  ab  omnibus  debet  snpportari. 
That  which  concerns  all  ought  to  be  supported  by 
all.    3  How.  St.  Trials,  818,  1087. 

Quod  pendct,  non  est  pro  eo,  quasi  sit.  What  is 
in  suspense  is  considered  as  not  existing  during 
such  suspense.    Dig.  50.  17.  169,  1. 

Quod  jier  me  non  possum,  nee  per  alium.  What  I 
cannot  do  in  person,  I  cannot  do  through  the 
agency  of  another.    4  Coke,  24  b;  11  id.  87  a. 

Quod  jjer  me  non  possum,  nee  per  alium.  What  1 
cannot  do  for  myself  I  cannot  do  through  the 
agency  of  another.    4  Coke,  24  h;  11  id.  87  a. 

Quod  per  recordnm  probatum,  non  debet  esse  nerja- 
tum.  What  is  proved  by  the  record,  ought  not  to 
be  denied. 

Quod  populus  postremum  jussit,  id  jus  ratum  esto. 
What  the  people  h;ive  last  enacted,  let  that  be  the 
established  law.  1  Sharswood,  Blackst.  Comm.  89. 

Quod  prinelpi  placuit,  legis  habet  rvjorem;  ntpote 
cum  lege  reyia,  qnse  de  imperio  ejus  lata  est,  populus 
ei  et  in  euin  omne  snum  imperium  ct  potestatem  con- 
ferat.  The  will  of  the  emperor  has  the  force  of 
law ;  for,  by  the  royal  law  which  has  been  made 
concerning  his  authority,  the  people  has  conferred 
upon  him  all  its  own  sovereignty  anJ  power.  Dig. 

1.  4.  1  ;  Inst.  1.  2.  1 ;  Fleta,  1.  1,  c.  17,  ^  7  j  Brac- 
ton,  107 ;  Soldcn,  Diss,  ad  Flet.  c.  3,  2-5. 

Quod  prius  est  verius  est;  et  quod  prius  est  tem- 
pore potius  est  jure.  What  is  first  is  truest;  and 
what  comes  first  in  time  is  best  in  law.  Coke,  Litt. 
347. 

Quod  pro  minore  licitum  est,  et  pro  niajore  licitnm 
est.  What  is  lawful  in  the  less  is  lawful  in  the 
greater.    8  Coke,  43. 

Quod  quia  ex  culpa  sua  damnum  seritit,  non  intel- 
lifjitur  damnum  sentire.  He  who  sulfcrs  a  damage 
by  his  own  fault  is  not  held  to  suffer  damage.  Dig. 
60.  17.  203. 

Quod  quis  sciena  indebitum  dcdit  hue  mente,  nt 
postea  repeteret,  repetere  non  potest.  What  one  has 
paid  knowing  it  not  to  be  due,  with  the  intention 
of  recovering  it  back,  he  cannot  recover  back.  Dig. 

2.  6.  50. 

Quod  quisquia  norit  in  hoc  ae  exerceaJ.  Let  every 
one  employ  himself  in  what  he  knows.  11  Coke, 
10. 

Quod  remedio  destituitur  ipsd  re  valet  si  culpa 
absit.  What  is  without  a  remedy  is  by  that  very 
fact  valid  if  there  be  no  fault.  Bacon,  Max.  lleg. 
9 ;  3  Bla/;kstone,  Comm.  20. 

Qnod  seincl  aut  bis  e.ristit  prirtereunt  lef/islatores. 
Lcgi.siators  pass  over  what  happens  (only)  once  or 
twice.    Dig.  I.  3.  6;  Broom,  Mux.  3d  Lond.  ed.  45. 


Quod  aemel  meum  est  ampliua  meum  ease  non 
jyotest.  What  is  once  mine  cannot  be  mine  more 
completely.  Coke,  Litt.  49  b;  Sheppard,  Touchst. 
212  ;  Broom,  Max.  3d  Lond.  ed.  415,  n. 

Quod  aemel  placuit  in  electione,  ampliua  diaplicere 
non  potest.  That  which  in  making  his  election  a 
man  has  once  been  pleased  to  choose,  he  cannot 
afterwards  quarrel  with.    Coke,  Litt.  146. 

Quod  solo  insedijicatur  solo  cedit.  Whatever  is 
built  on  the  soil  is  an  accessory  of  the  soil.  Inst. 
2.1.29;  16  Mass.  449;  2  Bouvier,  Inst,  n,  1671. 

Quod  sub  certd  forma  coneessum  vel  reaervatum 
est,  non  trahitur  ad  valorem  vel  conipenaationem. 
That  which  is  granted  or  reserved  under  a  certain 
form,  is  not  to  be  drawn  into  valuation  or  compen- 
sation.   Bacon,  Max.  Reg.  4. 

Quod  subintelliifitur  non  deest.  What  is  under- 
stood is  not  wanting.    2  Ld.  Raym.  832. 

Quod  tacite  intelligitur  deesse  non  videtvr.  What 
is  tacitly  understood  does  not  appear  to  be  want- 
ing.   4  Coke,  22. 

Quod  vanum  et  inutile  eat,  lex  non  requirit.  The 
law  does  not  require  what  is  vain  and  useless. 
Coke,  Litt.  319. 

Quod  verb  contra  rationem  juris  receptum  eat,  non 
est  producendnni  ad  coiiaequentiaa.  But  that  which 
has  been  admitted  contrary  to  the  reason  of  the  law, 
ought  not  to  be  drawn  into  precedents.  Dig.  1.  3, 
14;  Broom,  Max.  3d  Lond.  ed.  150. 

Quod  voluit  non  dixit.  He  did  not  say  what  he 
intended  to.  1  Kent,  Comm.  468,  n.;  4  Maule  & 
S.  522,  arg.;  1  Johns.  Ch.  N.  Y.  235. 

Quo<lcunque  aliquia  ob  futelam  corporia  sui  fecerii 
jure  id  fecisse  videtur.  Whatever  one  does  in  de- 
fence of  his  person,  that  he  is  considered  to  have 
done  legally.    Coke,  2d  Inst.  590. 

Quodque  dissolvitur  eodem  modo  quo  ligatur.  In 
the  same  manner  that  a  thing  is  bound,  it  is  un- 
bound. 2  RoUe,  39 ;  Broom,  Max.  3d  Lond.  ed. 
788;  2  Mann.  &  G.  729. 

Quomodo  quid  constituitur  eodem  viodo  dissolvitur. 
In  whatever  mode  a  thing  is  constituted,  in  the 
same  manner  is  it  dissolved.    Jenk.  Cent.  Cas.  74. 

Quortim  prsetexta,  nec  auyet  nec  minuit  aenientiam, 
aed  tuntum  conjirmat prae  misaa.  "  Quorum  prsetexta" 
neither  increases  nor  diminishes  the  meaning,  but 
only  confirms  that  which  went  before.    Plowd.  52. 

Quotiena  dubia  interpretatio  libertatis  est,  secun- 
dum iibeVlatem  respondendum  erit.  W^henevtr  there 
is  a  doubt  between  liberty  and  slavery,  the  de(;ision 
must  be  in  favor  of  liberty'.    Dig.  50.  17.  20. 

Quotiens  idem  aermo  duaa  aenfentlaa  exprimif,  e<t 
potlssimum  excipiatur,  quse  rei  gerendse  aptior  eat. 
Whenever  the  same  words  express  two  meanings, 
that  is  to  be  taken  which  is  the  better  fitted  for 
carrying  out  the  proposed  end.    Dig.  50.  17.  67. 

Quoties  in  stipulationibua  ambigua  oratio  est,  com- 
modissimum  est  id  accipi  quo  rea  de  quo  agitur,  in 
tuto  sit.  Whenever  in  stipulations  the  expression 
is  ambiguous,  it  is  most  proper  to  give  it  that  in- 
terpretation by  which  the  subject  matter  may  be  in 
safety.    Dig.  41.  1.80  ;  50.  16.  219. 

Quoties  in  verbia  nulla  est  ambiguitaa  ibi  nulla 
expositio  contra  verba  fienda  est.  When  there  is  no 
ambiguity  in  the  words,  then  no  exposition  con- 
trary t6  the  words  is  to  be  made.  Coke,  Litt.  147; 
Broom,  Max.  3d  Lond.  ed.  850. 

Quum  de  lucro  duorum  quteratur,  melior  eat  con- 
ditio poasidentia.  When  the  gain  of  one  of  two  is 
in  question,  the  condition  of  the  possessor  is  the 
better.    Dig.  50.  17.  126.  2. 

Quum  in  teatamento  ambigiie  ant  etiam  perperam 
acriptum  eat,  benigne  interpretari  et  8€cu)idum  id 
quod  credibile  et  cogitatum,  credendum  eat.  When 
in  a  will  an  ambiguous  or  even  an  erroneous  ex- 
pression occurs,  it  should  bo  construed  liberally 
and  in  accordance  with  what  is  thought  the  proba- 
ble meaning  of  the  testator.  Dig.  .34.  5.  24  ;  Broom, 
Max.  3d  Loud.  ed.  437.    See  Brisson,  Perperam. 


MAXIM 


155 


MAXIM 


Quiim  {ciim)  principalis  causa  non  consistit  ne  ea 
quiden  quie  sequuntur  locum   haheut.     When   the  j 
principal  does  not  hold  its  ground,  neither  do  the  i 
accessories  find  place.    Dig.  50.17.  129.  1;  Broom,  | 
Max.  3d  Lond.  ed.  438;  1  Pothier,  Obi.  413. 

Ratihahitio  mandato  spqulparatur.  Ratification 
is  equal  to  a  command.  L)ig.  46.  3.  12.  4;  Broom, 
Max.  3d  Lond.  ed.  771 ;  Story,  Ag.  4th  ed.  302. 

Ratio  est  j'orvialin  causa  consuetndinis.  Reason 
is  the  source  and  mould  of  custom. 

Ratio  est  le;/is  auiiiia,  viuiata  Icyis  rationc  mutn- 
tur  et  lex.  Reason  is  the  soul  of  the  law ;  the 
reason  of  the  law  being  changed,  the  law  is  also 
changed.    7  Coke,  7. 

Ratio  est  radius  divini  huiiinis.  Reason  is  a  ray 
of  divine  light.    Coke,  Litt.  232. 

Ratio  et  anctoritas  duo  cl(n-i8»ima  mundi  Inmina. 
Reason  and  authority  are  the  two  brightest  lights 
in  the  world.    Cnke.  4th  Inst.  320, 

Ratio  in  jure  tequitas  inteyra.  Reason  in  law  is 
perfect  equity. 

Ratio  Icgis  eat  anima  legis.  The  reason  of  the 
law  is  the  soul  of  the  law.    Jenk.  Cent.  Cas.  45, 

Ratio  uou  clauditur  loco.  Reason  is  not  confined 
to  any  place. 

Ratio  po  est  allegari  deficiente  lege,  sed  vera  et 
legalis  et  non  apparens.  Reason  may  be  alleged 
when  the  law  is  defective,  but  it  must  be  true  and 
legal  reason,  and  not  merely  apparent.  Coke,  Litt, 
191, 

i?e,  verbis,  scripto,  consensu,  traditione,  junctura 
veites,  sumere  pacta  solent.  Compacts  usually  t.ike 
their  clothing  from  the  thing  itself,  from  words, 
from  writing,  from  consent,  from  delivery,  Plowd, 
161. 

Recedittir  a  jylacitis  juris,  potiua  quam  infurise  et 
delictn  maneant  impunita.  Positive  rules  of  law 
will  be  receded  from  rather  than  crimes  and  wrongs 
should  remain  unpunished.  Bacon,  Max.  Reg.  12  ; 
Broom,  Max.  3d  Lond.  ed.  9.  This  applies  only  to 
such  maxims  as  are  called  placita  juris ;  these  will 
be  dispensed  with  rather  than  crimes  should  go  un- 
punished, quia  salus  populi  suprema  lex,  because 
the  public  safety  is  the  supreme  law, 

Recorda  sunt  vestigia  vetustatis  et  veritatis.  Re- 
cords are  vestiges  of  antiquity  and  truth.  2  Rolle, 
296, 

Recurrendum  est  ad  extranrdinarium  quando  non 
valet  ordlnaritim.  We  must  have  recourse  to  what 
is  extraordinary  when  what  is  ordinary  fails. 

Regula  est,  juris  quidem  ignorantiam  cuique  nocere, 
^acti  vera  ignorantiam  non  nocere.  The  rule  is, 
that  ignorance  of  the  law  does  not  excuse,  but  that 
ignorance  of  a  fact  may  excuse  a  party  from  the 
legal  consequences  of  his  conduct.  Dig.  22.  6.  9; 
Broom,  Max.  3d  Lond.  ed,  232,  See  Irving,  Civ. 
Law,  4th  ed,  74, 

Regula.  pro  leg?,  si  dejicit  lex.  In  default  of  the 
law,  the  maxim  rules, 

Regida riter  non  valet  pactum  de  re  mea  non  alie- 
nanda.  Regularly  a  contract  not  to  alienate  my 
property  is  not  binding.    Coke,  Litt.  223. 

Rei  turpis  nullum,  mandatum  est.  A  mandate  of 
an  illegal  thing  is  void.    Dig,  17.  1.  6.  3. 

Reipuhlicse  interest  l  oluntates  defunctorum  effectum 
aorfiri.  It  concerns  the  state  that  the  wills  of  the 
dead  should  have  their  efiFet  t. 

Relatio  est  Jtctio  juris  et  intenta  ad  unum.  Rela- 
tion is  a  fiction  of  law,  and  intended  for  one  thing. 
3  Coke.  28. 

Relatio  semper  Jiat  nt  valeat  dispositin.  Reference 
should  always  be  had  in  such  a  manner  that  a  dis- 
position in  a  will  may  avail.    6  Coke,  76. 

Relation  never  defeats  collateral  acta.  18  Viner, 
Abr.  292. 

Relation  shall  never  make  good  a  void  grant  or 
devise  of  the  parti/.    18  Viner,  Abr.  292. 

Relative  tcords  fefer  to  the  next  antecedent,  unless 


the  sense  be  thereby  impaired.  Noy,  Max.  4;  Win- 
gate,  Max.  19;  Broom,  Max.  3d  Lond.  ed.  606; 
Jenk.  Cent.  Cas.  180. 

Relativoruni  cognito  uno,  cognoacittir  et  altervm. 
Of  things  relating  to  each  other,  one  being  known, 
the  other  is  known.    Croke  .Jac.  539. 

Remainder  can  depend  vjjon  no  estate  but  what 
beginncth  at  the  same  lime  the  rentainder  doth. 

Remainder  must  vest  at  the  same  instant  that  the 
jMirticular  estate  determines. 

Remainder  to  a  person  not  of  a  capacity  to  talci 
at  the  time  of  appointing  it,  is  void.     Plowd.  27. 

Remedies  for  ri(/hts  are  ever  favorably  extended. 
18  Viner,  Abr.  521. 

Remedies  ought  to  be  reciprocal, 

Remissius  iniperanti  melius  paretur.  A  man  com- 
manding not  too  strictly  is  better  obeyed.  Coke, 
3d  Inst.  233. 

Rcmoto  impcdimentf),  emergit  actio.  The  impedi- 
ment being  removed,  the  action  arises.  5  Coke,  76; 
Wingate,  Max.  20. 

Rent  must  be  reserved  to  him  from  whom  the  state 
of  the  land  movcth.     Coke,  Litt.  143. 

Repellitnr  a  sacramento  infamis.  An  infamous 
person  is  repelled  or  prevented  from  taking  an 
oath.    Coke,  Litt.  158;  Bracton,  185. 

Repeltitur  exceptione  cedendarum  actionum.  He 
is  defeated  by  the  plea  that  the  actions  have  been 
assigned.    1  Johns.  Ch.  N.  Y.  409,  414. 

Reprobata  pecunia  liberat  solventem.  Money 
refused  liberates  the  debtor.  9  Coke,  79.  But 
this  must  be  understood  with  a  qualification.  See 
Tender, 

Reputatio  est  vulgaris  opinio  nbi  non  est  Veritas, 
Reputation  is  a  common  opinion  where  there  ia 
no  certain  knowledge.  4  Coke,  107,  But  see 
Character. 

Rerum  ordo  confunditur,  si  iinicuique  jurisdictio 
non  servatur.  The  order  of  things  is  confounded 
if  every  one  preserves  not  his  jurisdiction.  Coke, 
4th  Inst.  Proem, 

Rerum  progressu  ostendunt  multa,  quee  in  initio 
])rsecaveri  aeu  prsevideri  non  possunt.  In  the  course 
of  events  many  mischiefs  arise  which  at  the  begin- 
ning could  not  be  guarded  against  or  foreseen,  6 
Coke,  40. 

Rerxun  suarum  quilibet  est  moderator  et  arbiter. 
Every  one  is  the  manager  and  disposer  of  his  own 
matters.    Coke,  Litt.  223. 

Res  acceasoria  sequitur  rem  principalem.  An  ac- 
cessory follows  its  principal.  Broom,  Max.  3d 
Lond.  ed.  433.  For  a  definition  of  res  acceasoria, 
see  Mackeldey,  Civ.  Law,  155. 

Res  denominatur  a  principaliori  parte.  A  thing 
is  named  from  its  principal  part.    5  Coke,  47. 

Res  est  misera  ubi  jus  est  vagnm  et  incertum.  It 
is  a  miserable  state  of  things  where  the  law  is 
vague  and  uncertain.    2  Salk.  512. 

Rea,  generalem  habet  signifcationem,  quia  tarn 
corporea,  quam  incorporea,  cujuscunque  sunt  generis, 
naturse  sive  sjjeci^i,  comprehendit.  The  word  things 
has  a  general  signification,  because  it  comprehends 
as  well  corporeal  as  incorporeal  objects,  of  whatever 
nature,  sort,  or  species.  Coke,  3d  Inst.  482  ;  1  Bou- 
vicr,  Inst.  n.  415. 

Res  inter  alios  acta  alteri  nocere  non  debet.  Things 
done  between  strangers  ought  not  to  injure  those 
who  are  not  parties  to  them.  Coke,  Litt,  132;  3 
Curt,  C.  C.  403;  11  Q,  B,  1028. 

Res  inter  alios  judicatse  ntillutn  aliis  prsejudicium 
faciant.  Matters  adjudged  in  a  cause  do  not  pre- 
judice those  who  were  not  parties  to  it.  Dig.  44. 
2.  1. 

Rea  judicata  facit  ex  albo  nigrum,  ex  nigra  album, 
ex  (urvo  rectum,  ex  recto  curvum.  A  thing  adjudged 
makes  white,  black ;  black,  white ;  the  crooked, 
straight;  the  straight, crooked.  1  Bouvier.  Inst.  n. 
840. 

Rea  judicata  p^o  veritate  accipitur,     A  thing 


MAXIM 


156 


MAXIM 


adjudged  must  be  taken  for  truth.  Coke,  Litt.  103  ; 
Dig.  50.  17.  207;  2  Kent,  Comm.  120^  13  Mees.  & 
V^  Exch.  679.    See  Res  Judicata. 

Jteii  per  pecuniam  sestimatur,  et  nan  pentnia  per 
res.  The  value  of  a  thing  is  estimated  by  its  worth 
in  mone}',  and  the  value  of  money  is  not  ei'timated 
by  reference  to  the  thing.  9  Coke,  76;  1  Bouvier, 
Inst.  n.  922. 

Re8  perit  domino  suo.  The  destiuction  of  the 
thing  is  the  loss  of  its  owner.  2  Bouvier,  Inst.  nn. 
1456,  1466;  Story,  Bailm.  426  ;  2  Kent,  Comm.  591. 

lies  propria  cut  qiise  communis  non  <st.  A  thing  is 
private  which  is  not  common.  8  Paige,  Ch.  N.  Y. 
261,  270. 

lies  quse  intra  prsrsidia  perdiicfie  nondum  sunt, 
quanqtiam  ab  hostibus  occupatse,  ideo  poHtliminii  non 
ejent,  quia  doniinum  nondum  inutnrunt  ex  (/entium 
jure.  Things  which  have  not  yet  been  introduced 
within  the  enemy's  lines,  although  held  by  the 
enemy,  do  not  need  the  fiction  of  postliminy  on 
this  account,  because  their  ownership  by  the  law 
of  nations  has  not  yet  changed.  Grotius,  de  Jur. 
Hell.  1.  3,  c.  9,  g  16;  1.  3,  c.  6,  g  3. 

Be-f  sacra  non  recipit  sestimntionem.  A  sacred 
thing  does  not  admit  of  valuation.    Dig.  1.  8.  9.  5. 

lies  transit  cum  suo  onere.  The  thing  passes 
with  its  burden.    Fleta,  1.  3,  c.  10,  ^  3. 

Meservatio  non  debet  esse  de  projicuis  ijixis  quia  ea 
conceduntur,  sed  de  redditit  novo  ejctra  jii  ojicna.  A 
reservation  ought  not  to  be  of  the  annual  increase 
itself,  because  it  is  granted,  but  of  new  rent  apart 
from  the  annual  increase.    Coke,  Litt.  142. 

Resignation  est  juris  proprii  sptontctnea  refutatio. 
Resignation  is  the  spontaneous  relinquishment  of 
own's  own  right.    Godb.  284. 

Resoluto  jure  concedentis  resolvitur  jus  concessum. 
The  right  of  the  grantor  being  extinguished,  the 
right  granted  is  extinguished.  Mackeldey,  Civ. 
Law,  179 ;  Broom,  Max.  3d  Lond.  ed.  417. 

Bespiciendum  est  judicanti,  nequid  aut  durius  aut 
remissius  constrxiattir  quam  causa  deposcit ;  nec  enim 
nut  severitatis  aut  clementise  gloria  offecianda  est. 
It  is  a  matter  of  import  to  one  adjudicating  that 
nothing  should  be  either  more  leniently  or  more 
severely  construed  than  the  cause  itself  demands ; 
for  the  glory  neither  of  severity  ror  clemency 
should  be  affected.    Coke,  3d  Inst.  220. 

Respondeat  rapttor,  qui  iijnnrart  non  potuit  quod 
jmpilhini  alienum  abdujcit.  Let  the  ravisher  an- 
swer, for  he  could  not  be  ignorant  that  he  has 
taken  away  another's  ward.    Hob.  99. 

Respondeat  superior.  Let  the  principal  answer. 
Cokt',  4th  Inst.  114;  2  Bouvier,  Inst.  n.  1337;  4  id. 
n.  3586;  3  Lev.  352;  1  Salk.  408;  1  Bingh.  n.  c. 
418;  4  Maule  &  S.  259;  10  Exch.  656;  2  E;l.  & 
B.  210;  7  id.  426;  1  Bos.  &  P.  404;  1  C.  B.  578; 
8  Mees.  &  W.  Exch.  302;  10  Exch.  656. 

Resjiondcra  son  soverair/ne.  His  superior  or 
master  shall  answer.    Articuli  sup.  Chart,  c.  18. 

Rcsponsio  uniuH  non  omnino  audilur.  The  answer 
of  one  witness  shall  not  be  heard  at  all.  1  Green- 
leal',  Ev.  ^  260.  This  is  a  maxim  of  the  civil  law, 
where  every  thing  must  be  proved  by  two  wit- 
nesses. 

Retia  excipiendo  fit  actor.    The  defendant  "by  a 
plea  becomes  plaintiff.    Bannier,  Tr.  des  preuves, 
152,  320;  Best,  Evid.  294,  ^  252. 

Reus  Icesse  majestatis  punitur,  nt  pereat  unus  ne 
pereant  omnes.  A  traitor  is  punis^hed  that  one 
may  die  lest  all  perish.    4  Coke,  124. 

Rex  in  n  debet  esse  sub  honiine  sed  sub  Deo  et  lege. 
The  king  should  not  be  under  the  authority  of  man, 
but  of  God  and  the  law.  Broom,  Max.  3d  Lond. 
ed.  46,  111;  Bracton,  5. 

Rex  non  potest  falbre  nec  falli.  The  king  can- 
not deceive  or  be  deceived.  Grounds  k  Rud.  of 
Law,  438. 

Rex  non  potest  peccare.  The  king  can  do  no 
wrong.    2  lloUe,  304  j  Jcnk.  Cent.  Cas.  9,  308; 


Broom,  Max.  3d  Lond.  ed.  51  j  1  Sharswood, 
Blackst.  Comm.  246. 

Rex  nunquam  moritur.  The  king  never  dies. 
Broom,  Max.  3d  Lond.  ed.  49;  Branch,  Max.  5th 
ed.  197;  1  Sharswood,  Blackst.  Comm.  249. 

Rights  never  die. 

Riparum  usus  publicus  est  jure  gentium,  sictit 
ipsius  Jluminis.  The  use  of  river-banks  is  by  the 
law  of  nations  public,  like  that  of  the  stream 
itself.  Dig.  1.  8.  5.  pr.;  Fleta,  1.  3,  c.  1,  g  6 ;  Loc- 
cenius  de  Jur.  3Jar.  1.  1,  c.  6,  ^  12. 

Roy  n'est  lie  per  ascun  statute,  si  il  ne  aoit  ex- 
pressement  nosme.  The  king  is  not  bound  by  any 
statute,  if  he  is  not  expressly  named.  Jcnk.  Cent. 
Cas.  307;  Broom,  Max.  3d  Lond.  ed.  69. 

Sacramentum  Tiabet  in  se  tres  comites,  veritatem, 
justitiam  et  judicium:  vciitos  habcnda  e«f  in  juralo; 
justitia  et  justicium  in  judicc.  An  oath  has  in  it 
three  component  partf — truth,  justice,  ai  d  judg- 
ment: truth  in  the  pivrty  swearinj:  ;  justice  and 
judgment  in  the  judge  administering  the  oath. 
Coke,  3d  Inst.  160. 

Sacramentum  si  fatuum  fuerit,  licet  /ahum,  tamen 
non  committit  2i€ijurium.  A  foolish  <  ath,  though 
false,  makes  net  perjury.    Coke,  2d  Inst.  167. 

Sacrilegtis  omnium  prscdorum  cupiditatem  et  scele- 
rem  superot.  A  sacrilegious  person  transcends  the 
cupidity  and  wickedness  of  all  other  robbers.  4 
Coke,  106. 

Ssepe  constitutum  est,  res  inter  alios  judicatas  aliis 
non  prsejudicare.  It  has  often  been  settled  that 
matters  adjudged  between  others  ought  not  to  pre- 
judice those  who  wire  not  parties.    Dig.  42.  1.  63. 

Sspe  viatorem  nova  non  vctus  orbita  f  allit.  Often 
it  is  the  new  track,  not  the  old  one,  which  deceives 
the  traveller.    Coke,  4th  Inst.  34. 

Ssepenumero  ubi  proprietas  verborem  attenditur, 
sensus  veritatis  amittiiur.  Frequently  where  the 
propriety  of  words  is  attended  to,  the  meaning  of 
truth  is  lost.    7  Coke,  27. 

Solus  populi  est  supjrcma  lex.  The  safety  of  the 
people  is  the  supreme  law.  Bacon,  Max.  Reg.  12; 
Broom,  Max.  1 ;  13  Coke,  139. 

Salus  ubi  midti  consiliarii.  In  many  counsellors 
there  is  safety.    Coke,  4th  Inst.  1. 

Sanguinis  conjunctio  benevolentia  devincit  homines 
et  caritate.  A  tie  of  blood  overcomes  men  through 
benevolence  and  family  affection.  5  Johns.  Ch.  N. 
Y.  1,  13. 

Sapiens  incipit  a  fine,et  quod  primum  est  in  inten- 
tione,  ttltimum  est  in  cxecutione.  A  wise  man  begins 
with  the  last,  and  what  is  first  in  intention  is  last  in 
execution.    10  Coke,  25. 

Sapiens  omnia  agit  cum  consilio.  A  wise  man 
does  every  thing  advisedly.    Coke,  4th  Inst.  4. 

Sajiientia  legis  nummario  prctio  non  est  vrsti- 
vianda.  The  wisdem  of  the  law  cannot  le  valued 
by  money.    Jcnk.  Cent.  Cas.  168. 

Sap>ientis  judicis  est  cogitare  tanium  sibi  esse  per- 
missiim,  quantum  commissum  et  creditum.  It  is  the 
duty  of  a  wise  judge  to  think  so  much  (  nly  per- 
mitted to  him  as  is  committed  and  intrusted  to  him. 
Coke,  4th  Inst.  103. 

Satisfaction  should  be  made  to  that  fund  which 
has  sustained  the  loss.    4  Bouvier,  Inst.  n.  3731. 

Satins  est  petere  fontcs  quam  sectari  rivulos.  It  is 
better  to  seek  the  fountain  than  to  follow  rivulets. 
10  Coke,  118.  It  is  better  to  drink  at  the  f  ountain 
than  to  sip  in  the  streams. 

Scicntia  sciolorum  est  mixta  ignorantia.  The 
knowledge  of  smatterers  is  mixed  ignorance.  8 
Coke,  159. 

Ai  irntia  vtriusque  par  pares  contrahentes  facit. 
E(jiiul  knowledge  on  both  sides  makes  the  contract- 
ing iarti(s  ciiual.    3  Burr.  1910. 

Scientii  et  lohtnti  non  jit  injuria.  A  wrong  is  not 
done  to  one  who  knows  and  wills  it. 

Scire  debee  cum  quo  contrahia.    You  ought  t© 


MAXIM 


157 


MAXIM 


know  with  whom  you  deal.  11  Mees.  &  W.  Exch. 
405,  632;  13  id.  171. 

Scire  letjes,  non  hoc  eat  verba  eorum  teuere,sed  vim 
et  potentatem.  To  know  the  laws,  is  not  to  observe 
their  mere  words,  but  their  force  and  power.  Dig. 
1.  3.  17. 

Scire  proprie  eat,  rem  ratinne  et  per  canaam  co(j- 
noacere.  To  know  properly  is  to  know  a  thing  by 
its  cause  and  in  its  reason.    Coke,  Litt.  183. 

Scriljere  eat  oyere.  To  write  is  to  act.  2  Rolle, 
89;  4  Sharswood,  Blackst.  Comm.  80. 

ScriptBS  obligationea  acriptia  tolluntur,  et  nudi 
cnnaemna  nbli'jdtio,  contrnrio  conaenm  diaaolvitur. 
Written  obligations  are  dissolved  by  writing,  and 
obligations  of  naked  agreement  by  naked  agree- 
ment to  the  contrary. 

Secta  eat  pugna  civilia,  aicut  adores  armantur 
actionibita,  et  quaai  accinyvutur  gladiia,  ita  rei 
{e  contra)  muninntur  exccptionibiia,  et  dcfevduntur 
quasi  cljpeia.  A  suit  is  a  civil  battle,  as  the  plain- 
tiffs are  armed  with  actions  and  as  it  were  girt  with 
swords,  so  on  the  other  hand  the  defendants  are 
fortified  with  pleas,  and  defended  as  it  were  by  hel- 
mets.   Hob.  20;  Bracton,  33y  6. 

Secta  quse  acripto  nititur  a  acripto  variari  non 
debet.  A  suit  which  relies  upon  a  writing  ought 
not  to  vary  from  the  writing.    Jenk.  Cent.  Cas.  65. 

Secundum  naturam  eat,  commoda  cujuaque  rei  eum 
sequi,  qnem  acquentnr  incommoda.  It  is  natural 
that  he  who  bears  the  charge  of  a  thing  should 
receive  the  profits.    Dig.  50.  17.  10. 

Securiua  expediuntur  neyotia  commtaaa  phtribua, 
et plua  vident  ocnli  quani  ocnlua.  Business  intrusted 
to  several  speeds  best,  and  several  eyes  see  more 
than  one  eye.    4  Coke,  46. 

Seiaina  facit  atipitem.  Seisin  makes  the  stock. 
2  Sharswood,  Blackst.  Comm.  209;  Broom,  Max. 
3d  Lond.  ed.  466;  1  Stephen,  Comm.  367  ;  4  Kent, 
Comm.  388,  389;  13  Ga.  238. 

Semel  ntalua  aemper  prseaumitur  eaae  malua  in 
endem  genere.  Whoever  is  once  bad  is  presumed 
to  be  so  always  in  the  same  degree.  Croke  Car. 
317. 

Semjyer  in  dubiia  benigniora  prseferunda  aunt.  In 
dubious  cases  the  more  liberal  constructions  are  al- 
ways to  be  preferred.    Dig.  50.  17.  56. 

Semper  in  dubiia  id  agendum  eat,  ut  quam  tutiaaimo 
loco  rea  ait  bona  fide  contravta,  nisi  quuni  aperte 
contra  legea  acriptum  eat.  Always  in  doubtful  cases 
that  is  to  be  done  by  which  a  bona  fide  contract 
may  be  in  the  greatest  safety,  except  when  its  pro- 
visions are  clearly  contrary  to  law.    Dig.  34.5.21. 

Semper  in  obacuria  quod  minimum  est  aequitnur 
(aequere).  In  obscure  cases  we  always  follow  that 
which  is  least.  Dig.  50.  17.  9 ;  Broom,  Max.  3d 
Lond.  ed.  613,  n;  3  C.  B.  962. 

Semper  in  stipulationibua  et  in  neteria  contractibua 
id  aequimur  quod  actum  eat.  In  stipulations  and 
other  contracts  we  always  follow  that  which  was 
done  (i.e.  agreed).    Di,>r.'50.  17.  34. 

Semper  ita  fiat  re/atlo  ut  valeat  dispositio.  Let 
the  reference  always  be  so  made  that  the  disposition 
may  avail.    6  Coke,  76. 

Semper  necessitaa  probandi  incumbit  ei  qui  agii. 
The  claimant  is  always  bound  to  prove  :  the  burden 
of  proof  lies  on  him. 

Semper  prnaiimitur  pro  Icgitimatione  jmerorum,  et 
filiutio  non  poteat  probari.  The  presumption  is 
always  in  favor  of  legitimacy,  for  filiation  cannot 
be  proved.  Coke,  Litt.  126.  See  1  Bouvier,  Inst, 
n.  303 ;  5  Coke,  98  b. 

Semper  prseaumitur  pro  negante.  The  presump- 
tion is  always  in  favor  of  the  one  who  denies.  See 
10  Clark  &  F.  Hou.  L.  534 ;  3  Ell.  &  B.  723. 

Semper  jjrspsumitur pro  sententid.  Presumption  is 
always  in  favor  of  the  sentence.    3  Bulstr.  42. 

Semper  qui  non  prohibet  pro  ae  intervenire,  man- 
dare  creditur.  He  who  does  not  prohibit  the  inter- 
vention of  another  in  his  behalf  is  supposed  to  au- 


thorize it.  2  Kent,  Comm.  616 ;  Dig.  14.  6.  16;  4a 
3.  12.  4. 

Semper  aexua  maaculinua  etiam  f<Bmininum  conti' 
net.  The  male  sex  always  includes  the  female. 
Dig.  32.  62. 

Sempjer  apecialia  generalihua  inaunt.  Special 
clauses  are  always  comprised  in  general  ones.  Dig. 
50.  17.  147. 

Senatorea  Huntpnrtea  corporia  regis.  Senators  are 
part  of  the  body  of  the  king.  Staundford,  72  E; 
Coke,  4th  Inst.  53,  in  marg. 

Senaua  rerbornm  eat  anima  legia.  The  meaning 
of  words  is  the  spirit  of  the  law.    5  Coke,  2. 

Senaua  verborum  eat  duplex,  mitia  et  aaper,  et 
verba  aemper  accipienda  aunt  in  mitiore  aenau.  Tho 
meaning  of  words  is  twofold,  mild  and  harsh;  and 
words  are  to  be  received  in  their  milder  sense.  4 
Coke,  13. 

Senaua  verborum  ex  cauad  dicendi  accipiendua  eat, 
et  aermonea  aemper  accipiendi  a^mt  secundum  aub- 
jectam  materiam.  The  sense  of  words  is  to  be  taken 
from  the  occasion  of  speaking  them,  and  discourse* 
are  always  to  be  interpreted  according  to  the  sub- 
ject-matter.   4  Coke,  14. 

S.ententia  d  non  judice  lata  nemini  debet  nncere.  A 
sentence  pronounced  by  one  who  is  not  a  judge 
should  not  harm  any  one.    Fleta,  I.  6,  c.  6,  |  7. 

Sententia  contra  matrimonium  mmquam  tranait  in 
rem  Judiratam.  A  sentence  against  marriage  never 
passes  into  a  judgment  (conclusive  upon  the  par- 
ties).   7  Coke,  43. 

Sententia  facit  jua,  et  legia  interpretatio  legr'a  vim 
obtinet.  The  sentence  makes  the  law,  and  the  in- 
terpretation has  the  force  of  law. 

Sententia  facit  jus,  et  res  judicata  pro  veritate  ac- 
cipitur.  Judgment  creates  the  right,  and  what  is 
adjudicated  is  taken  for  truth.  Ellesmere,  Postn. 
55. 

Sententia  interl<Jtutoria  revoeari  poteat,  difinitiva 
non  poteat.  An  interlocutory  sentence  or  order  may 
be  revoked,  but  not  a  final.    Bacon,  Max.  Reg.  20. 

Sententia  non  fertur  de  rebua  non  liquid  is.  Sen- 
tence is  not  given  upon  a  thing  which  is  not  clear. 

Sequi  debet  potentia  justitiam,  non  prsecedere. 
Power  should  follow  justice,  not  precede  it.  Coke, 
2d  Inst.  454. 

Sermo  index  animi.  Speech  is  an  index  of  the 
mind.    5  Coke,  118. 

Sermo  relata  ad  personam,  infelligi  debet  de  con- 
dilione  personse.  A  speech  relating  to  the  person  is 
to  be  understood  as  relating  to  his  condition.  4 
Coke,  16. 

Servanda  est  consuetudo  loci  ubi  causa  agitur. 
The  custom  of  the  place  where  the  action  is 
brought  is  to  be  observed.  3  Johns.  Ch.  N.  Y. 
190,  219. 

Serviiia  personalia  aequnntur personam.  Personal 
services  follow  the  person.  Coke,  2d  Inst.  374 ; 
Fleta,  1.  3,  c.  11,  p. 

aSV  n  jure  discedaa  vagus  eria,  et  erunt  omnia  omni- 
bus incerta.  If  you  depart  from  the  law,  you  will 
wander  without  a  guide,  and  every  thing  will  be  in 
a  state  of  uncertainty  to  every  one.  Coke,  Litt.  227, 

Si  alicnjua  rei  sovielas  sit,  et  finis  negotio  impo  ' 
si!us  est,  finitur  aocietas.  If  there  is  a  partnership 
in  any  matter,  and  the  business  is  cndeH,  the  part- 
nership ceases.    16  Johns.  N.  Y.  438,  489. 

Si  aliquid  ex  sulemnibna  deficiat,  rum  irquitas 
poscit  subreniendum  est.  If  any  thing  be  wanting 
from  required  forms,  when  equity  requires  it  will  be 
aided.    1  Kent,  Comm.  157. 

Si  assuetia  mederi  poaaia  nova  non  sunt  tentanda. 
If  you  can  be  relieved  by  accustomed  remedies,  new 
ones  should  not  be  tried.    10  Coke,  142. 

Si  jndicaa,  cognosce.    If  you  judge,  understand. 

*SV  meliores  aunt  quos  ducit  amor,  plurea  aunt  quo* 
corrigit  timor.  If  those  are  better  who  are  led  by 
love,  those  are  the  greater  number  corrected  by  fear. 
Coke,  Litt.  392. 


MAXIM 


158* 


MAXIM 


i 


Si  nan  ojyp'n  eat  quid  actum  est  erit  consequens,  ut  id 
eequniiiur  (jtiod  in  rcyione  in  qua  actum  cut,  frequen- 
tntur.  If  it  does  not  appear  what  was  agreed  upon, 
the  consequence  will  be  that  we  must  follow  that 
which  is  the  usage  of  the  place  where  the  agree- 
ment was  made.    Dig.  50.  17.  34. 

Si  nulla  nit  conjectura  quse  ducat  alio,  verba  intel- 
ligenda  Hunt  ex  proprietote,  non  yrantmatica  sed 
popit'ari  cx  usu.  If  there  be  no  inference  which 
leads  to  a  different  result,  words  are  to  be  under- 
stood according  to  their  proper  meaning,  not  in  a 
grammatical,  but  in  a  popular  and  ordinary,  sense. 
2  Kent,  Comm.  555. 

Si  jiiures  conditiones  ascn'ptse  fuerunt  douationi 
conjunctiin,  omnibus  est  parendum  ;  et  ad  veritatem 
copulative  requin'tur  quod  utrdque  jjors  sit  vera,  si 
divisim,  cuilibet  vel  alteri  eoruui  satis  est  ohtempe- 
rare;  et  in  disjunctivis,  sufficit  alteram  partem  esse 
veram.  If  some  conditions  are  conjunctively  writ- 
ten in  a  gift,  the  whole  of  them  must  be  complied 
with  ;  and  with  respect  to  their  truth,  it  is  necessary 
that  every  part  be  true,  taken  jointly  ;  if  the  con- 
ditions are  separate,  it  is  sufficient  to  comply  with 
either  one  or  other  of  them ;  and  being  disjunc- 
tive, that  one  or  the  other  be  true.  Coke,  Litt. 
225. 

Si  plurea  sint  fidejussores,  qnodquit  erunt  numero, 
ainguli  rn  solidum  tenentur.  If  there  are  more  sure- 
ties than  one,  how  many  soever  they  shall  be,  they 
shall  each  be  held  for  the  whole.  Inst.  3.  21.  4;  4. 
116;  1  W.  Blackst.  388. 

Si  quid  universifaii  debetur  singulis  non  debctur, 
nec  quod  debet,  universitaa  singuli  debeut.  If  iiny 
thing  is  due  to  a  corporation,  it  is  not  due  to  the 
individual  members  of  it,  nor  do  the  members  indi- 
vidually owe  what  the  corporation  owes.  Dig.  3.  4. 
7 ;  1  Sharswood,  Blackst.  Comm.  484. 

Si  quidem  in  nomine,  cognomine,  jireenomine,  agno- 
tnine  legatarii  enaverit;  cum  de persona  constat,  nihi- 
hominiis  valet  legatum.  If  the  testator  has  erred  in 
the  name,  cognomen,  prtenomen,  or  title  of  the 
legatee,  whenever  the  person  is  rendered  certain, 
the  legacy  is  nevertheless  valid.  Inst.  2.  20.  29  ; 
Broom,  Max.  3d  Lond.  ed.  574;  2  Domat,  b.  2,  t.  1, 
s.  6,  II  10,  19. 

*S'/  quia  custos  fraudem  pupillo  fecerit,  a  tiitela  re- 
tnovendus  est.  If  a  guardian  behave  fraudulently 
to  his  ward,  he  shall  be  removed  from  the  guardian- 
ship.   Jenk.  Cent.  Cas.  39. 

Si  quis  prseguantem  uxorem  reliquit,  non  videtur 
sine  liberis  decessisse.  If  a  man  dies,  leaving  his 
wife  pregnant,  he  shall  not  be  considered  as  having 
died  childless. 

Si  quis  unum  percusaerif,  cum  alium  percutere  vel- 
let,  in  fclonid  tenetur.  If  a  man  kill  one,  meaning 
to  kill  another,  he  is  held  guilty  of  felony.  Coke, 
3d  Inst.  51. 

Si  suggestio  non  ait  vera,  litem  patentes  vacuse 
eunt.  If  the  suggestion  of  a  patent  is  false,  the 
patent  itself  is  void.    10  Coke,  113. 

*SVc  enim  debere  quem  meliorem  agrum  aunm  fa- 
cere,  ne  vicini  dcteriorem  faciat.  Every  one  ought 
80  to  improve  his  land  as  not  to  injure  his  neigh- 
bor's.   3  Kent,  Comm.  441. 

Sic  inteiprctanduin  eat  ut  verba  accipiantur  cum 
effectu.  Such  an  interpretation  is  to  be  made  that 
the  words  may  have  an  effect.     Coke,  3d  Inst.  80. 

Sic  utere  tuo  ut  alienum  non  Isedaa.  So  use  your 
own  as  not  to  injure  another's  property.  1  Black- 
stone,  Comm.  306;  Broom,  Max.  3d  Lond.  cd.  206, 
h.,  246,  327,  332,  3:56,  310,  348,  353;  2  Bouvier, 
Inst.  n.  2379;  SExch.  797;  12Q.  B.  739;  4  Adolph. 
&  E.  384  ;  15  Johns.  N.  Y.  218  ;  1 7  irf.  99 ;  17  Mass. 
334;  4  M'Cord,  So.  C.  472;  9  Coke,  .59. 

Sicut  natura  nil  facit  per  salfum,  ita  nec  lex.  As 
nature  does  nothing  )»y  a  bound  or  leap,  so  neither 
does  the  law.    Coke,  Litt.  238. 

Sigillum  est  cera  imprrssft,  quia  cera  aine  impres- 
tione  non  est  eiyillum.    A  seal  is  a  piece  of  wax  im- 


pressed, because  wax  without  an  impj  not 
a  seal.    Coke,  3d  Inst.  169.    But  see  i 

Silence  shows  consent.    6  Barb.  N.  Y.  28,  35. 

Silent  leges  inter  arma.  Laws  are  silent  amidst 
arms.    Coke,  4th  Inst.  70. 

Similitudo  legnlis  eat,  casuum  diveraorum  inter  ae 
collatorum  aimilia  ratio  ;  quod  in  una  aimilium  valet, 
valt.bit  in  altero.  Diaaimilium,  diaaimilia  est  ratio. 
Legal  similarity  is  a  similar  reason  which  governs 
various  cases  when  compared  with  each  other,  for 
what  avails  in  one  similar  case  will  avail  in  the 
other.  Of  things  dissimilar,  the  reason  is  dissimi- 
lar.   Coke,  Litt.  191. 

Simplex  commendatio  non  obligat.  A  simple  re- 
commendation does  not  bind.  Dig.  4.  3.  37;  2 
Kent,  Comm.  485 ;  Broom,  Max.  3d  Lond.  ed.  700  ;  4 
Taunt.  488;  16  Q.  B.  282,  283 ;  Croke  Jac.  4 ;  5 
Johns.  N.  Y.  354;  4  Barb.  N.  Y.  95. 

Simplex  et  pura  donatio  did  poterit,  ubi  nulla  eat 
adjecta  conditio  nec  modua.  A  gift  is  said  to  be  pure 
and  simple  when  no  condition  or  qualification  is 
annexed.    Braeton.  1. 

Simplicitas  eat  legibus  arnica,  et  nimia  subfilitaa 
in  jure  reprobutur.  Simplicity  is  favorable  to  the 
law,  and  too  much  subtlety  is  blameworthy  in  law. 
4  Coke,  8. 

Sine  posaesaione  uaucapio  procedere  non  potest. 
There  can  be  no  prescription  without  possession. 

Singuli  in  solidum  tenentur.  Each  is  bound  for 
the  whole.    6  Johns.  Ch.  N.  Y.  242,  252. 

Sive  tota  res  evincatur,  sive  pars  habet  regreaaum 
emptor  in  venditorem.  The  purchaser  who  has  been 
evicted  in  whole  or  in  part  has  an  action  against 
the  vendor.  Dig.  21.  2.  1 ;  Broom,  Max.  3d  Lond. 
ed,  690. 

Socii  mei  aociua,  meua  aocius  non  eat.  The  partner 
of  my  partner  is  not  my  partner.  Dig.  50.  17.  47.  1. 

Sola  ac  per  ae  aenectua  douationem  teatamentum 
ant  trauaactionem  non  vitiat.  Old  age  does  not 
alone  and  of  itself  vitiate  a  will  or  a  gift.  5  Johns. 
Ch.  N.  Y.  148,  158. 

Solemnitatea  juria  aunt  obaervandse.  The  solemni- 
ties of  law  are  to  be  observed.  Jenk.  Cent.  Cas.  13. 

Solo  cedit  quod  aolo  implantatur.  What  is  planted 
in  the  soil  belongs  to  the  soil.  Inst.  2.  ).  32;  2 
Bouvier,  Inst.  n.  1572. 

Solo  cedit  quod  aolo  insedijicatur.  Whatever  is 
built  on  the  soil  belongs  to  the  soil.  Inst.  2.  1.  29. 
See  1  Mackeldey,  Civ.  Law,  ^  268;  2  Bouvier,  Inst, 
n.  1571. 

Solua  Deua  hseredem  facit.  God  alone  makes  tht, 
heir.    Coke,  Litt.  5. 

Sidutio  pretii,  emptionia  loco  habetur.  The  pay- 
ment of  the  price  stands  in  the  place  of  a  sale. 
Jenk.  Cent.  Cas.  56. 

Solvendo  ease  nemo  intelligitur  nisi  qui  solidum 
potest  solvere.  No  one  is  considered  to  be  solvent 
unless  he  can  pay  all  that  he  owes.   Dig.  50. 16. 114. 

Solvitur  adhuc  societas  etiam  morte  socii.  A 
partnership  is  moreover  dissolved  by  the  death  of  a 
partner.    Inst.  3.  26.  5:  Dig.  17.  2. 

Spea  est  vigilantis  aomnium.  Hope  is  the  dream 
of  the  vigilant.    Coke,  4th  Inst.  203. 

Spes  impunitatis  continuum  affectum  tribuit  delin- 
quendi.  The  hope  of  impunity  holds  out  a  con- 
tinual temptation  to  crime.    Coke,  3d  Inst.  236. 

Spoliatua  debet  ante  omnia  reatitui.  He  who  has 
been  despoiled  ought  to  be  restored  before  any  thing 
else.  Coke,  2d  Inst.  714;  4  Sharswood,  Blackst. 
Comm.  353. 

Spondet  peritiam  artia.  He  promises  to  use  the 
skill  of  his  art.  Pothier,  Louage,  n.  425 ;  Jones, 
Bailm.  22,  53,  62,  97,  120  ;  Domat,  liv.  1,  t.  4,  s.  8, 
n.  1 ;  1  Story,  Bailm.  ^31;  1  Bell,  Comm.  6th  ed. 
469;  1  Bouvier,  Inst.  li.  1004. 

Sponte  virum  fugiena  nmlier  et  adultera  facta, 
doti  ana  careat,  nisi  sponte  retracta.  A  woman 
leaving  her  husband  of  her  own  accord,  and  com- 
mitting adultery,  loses  her  dower,  unless  her  bus- 


MAXIM 


150 


MAXIM 


band  takes  her  back  of  his  own  accord.  Coke, 
Litt.  37. 

Stabit  prsEsnmptio  donee  prohetur  in  cnntrarium. 
A  presumption  will  stand  good  until  the  contrary 
is  proved.  Hob.  297  ;  3  Sharswood,  Blackst.  Comm. 
371 ;  Broom,  Max.  3d  Lond.  ed.  852;  16  Mass.  87. 

(S'<a/e  decisis,  ct  non  quieta  niovere.  To  adhere  to 
precedents,  and  not  to  uns^ettle  things  which  are 
established.  Yates  vs.  Lansing,  9  Johns.  395,  428  ; 
Driggs  vs.  Rockwell,  11  Wend.  504,  507  ;  Bates  vs. 
Relyea,  23  id.  336,  340 ;  Moore  vs:  Lyons,  25  id. 
119,  142;  Hanford  vs.  Artcher,  4  Hill,  271,  323; 
Taylor  vs.  Heath,  4  id.  592,  595 ;  Calkins  vs.  Long, 
22  Barb.  97,  106. 

Stat  pro  ratione  voluntas.  The  will  stands  in 
place  of  a  reason.  1  Barb.  N.  Y.  408,  411 ;  16  id. 
514,  525. 

Stat  pro  ratione  voluntas  popnli.  The  will  of  the 
people  stands  in  place  of  a  reason.  25  Barb.  N.  Y. 
344,  376. 

Statuta  pro  publico  commodo  late  interpretantur. 
Statutes  made  for  the  public  good  ought  to  be  libe- 
rally construed.    Jenk.  Cent.  Cas.  21. 

Statutuin  affirmativiini  non  deroijat  communi  le(fi. 
An  affirmative  statute  does  not  take  from  the  com- 
mon law.    Jenk.  Cent.  Cas.  24. 

Statutum  geiieraliter  est  intelligendum  qnnndo  verba 
statuti  sunt  specialia,  ratio  uutem  (jeneralis.  When 
the  words  of  a  statute  are  special,  but  the  reason 
of  it  general,  it  is  to  be  understood  generally.  10 
Coke,  101. 

Stntutum  speciale  statuto  speciali  non  derogat.  One 
special  statute  does  not  take  away  from  another 
special  statute.    Jenk.  Cent.  Cas.  199. 
•  Sublatd  causa  tollitur  effectus.    Remove  the  cause 
and  the  effect  will  cease.   2  Blackstone,  Comm.  203. 

Sublatd  veneratioiie  magistratuum,  respublica  rnit. 
The  commonwealth  perishes,  if  respect  for  magis- 
trates be  taken  away.    Jenk.  Cent.  Cas.  48. 

Suhlato  fnndamento  cadit  opus.  Remove  the 
foundation,  the  structftre  or  work  falls.  Jenk.  Cent. 
Cas.  106. 

Sublato  principali  tollitur  adjunetum.  If  the 
principal  be  taken  away,  the  adjunct  is  also  taken 
away.    Coke,  Litt.  389. 

Subrogatio  est  trans/usio  unius  creditoria  in 
alium,  eadem  vel  mitiori  conditione.  Subrogation 
is  the  substituting  one  creditor  in  the  place  of  an- 
other in  the  same  or  a  better  condition.  Merlin, 
Qu.  de  Droit.  Subrogation. 

Succurritur  minori ;  facilis  est  lapsus  jnventutia, 
A  minor  is  to  be  aided;  youth  is  liable  to  err. 
Jenk.  Cent.  Cas.  47. 

Suinma  caritas  est  facer e  justiti am  singulis  et  omni 
tempore  quando  necesse  fuerit.  The  greatest  charity 
is  to  do  justice  to  every  one,  and  at  any  time  when- 
ever it  may  be  necessary.    11  Coke,  70. 

Summa  est  lex  quae  pro  religione  facit.  That  is 
the  highest  law  which  favors  religion.  10  Mod. 
117,  119;  2  Chanc.  Cas.  18. 

Summa  ratio  est  quse  pro  religione  facit.  That 
consideration  is  strongest  which  determines  in  favor 
of  religion.  Coke,  Litt.  341  a;  Broom,  Max.  3d  Loud, 
ed.  18;  5  Coke,  14  b;  10  id.  55  o;  2  Chanc.  Cas.  18. 

Summam  esse  rationem  qnse  pro  religione  facit. 
That  consideration  is  strongest  which  determines 
in  favor  of  religion.  Dig.  11.  7.  43,  cited  in  Gro- 
tius  de  Jur.  Bello,  1.  3,  c  12,  s.  7.  See  10  Mod. 
117,  119. 

Snmmum  jus,  summa  injuria.  The  rigor  or  height 
of  law  is  the  height  of  wrong.    Hob.  125. 

Sunrlaii  is  dies  non  iuridicus.  12  Johns.  N.  Y. 
178,  180. 

Sitperjlua  non  nocent.  Superfluities  do  no  injury. 
Jenk.  Cent.  Cas.  184. 

Suppressio  veri,  expressio  falsi.    Suppression  of 
the  truth  is  (equivalent  to)  the  expression  of  what 
is  false.    11  Wend.  N.  Y.  374,  417. 
'  Suppressio  veri,  suggestio  falsi.    Suppression  of 


the  truth  is  (equivalent  to)  the  suggestion  of  what 
is  false.    23  Barb.  N.  Y.  521,  525. 

Supremus  eat,  quern  nemo  sequitur.  He  is  last 
whom  no  one  follows.    Dig.  50.  16.  92. 

Surplusagiuni.  non  nocct.  Surplusage  does  no 
harm.  3  Bouvier,  Inst.  n.  2949;  Broom,  Max.  3d 
Lond.  ed.  559. 

Tacita  qumdam  habentur  pro  expressis.  Certain 
things  though  unexpressed  are  considered  as  ex- 
pressed.   8  Coke,  40. 

7'((lis  interpretatio  semper  fenda  est,  ut  evite.tur 
absurdum,  et  inconveniens,  et  ne  judicium  sit  illuao- 
rium.  Interpretation  is  always  to  be  made  in  such 
a  manner  that  what  is  absurd  and  inconvenient  is 
to  be  avoided,  and  so  that  the  judgment  be  not 
nugatory.    1  Coke,  52. 

Talis  non  est  eadem,  nam.  nullum  simile  est  idem. 
What  is  like  is  not  the  same,  for  nothing  similar  is 
the  same.    4  Coke,  18. 

Tantum  bona  valeut,  quantum  vendi  possunt. 
Things  are  worth  what  they  will  sell  for.  Coke, 
3d  Inst.  305. 

Tempus  tnim  modus  tollendi  obligationes  ct  ac- 
tiones,  quia  tempus  currit  contra  desides  et  sui  juris 
contemptores.  For  time  is  a  means  of  destroying 
obligations  and  actions,  because  time  runs  against 
the  slothful  and  contemners  of  their  own  rights. 
Fleta,  1.  4,  c.  5,  ^  12. 

Tenor  est  qui  legem  dat  feudo.  It  is  the  tenor  of 
the  feudal  grant  which  regulates  its  effect  and  ex- 
tent. Craig,  Jtts  Feud.,  3d  ed.  66.  See  Coke,  Litt. 
19  a;  2  Sharswood,  Blackst.  Comm.  310;  2  Coke, 
71 ;  Broom,  Max.  3d  Lond.  ed.  410;  Wright,  Ten. 
21,  52,  162. 

Termimis  onnorum  certus  debet  esse  et  determi- 
natus.  A  term  of  years  ought  to  be  certain  and 
determinate.    Coke,  Litt.  45. 

Termimis  et  (ac)  feodum  non  possunt  consfare 
simtd  in  una  eddemque  persona.  A  term  and  the 
fee  cannot  both  be  in  one  and  the  same  person  at 
the  same  time.    Plowd.  29;  3  Mass.  141. 

Terra  manens  vacua  occxq^anti  concedifur.  Land 
lying  unoccupied  is  given  to  the  occupant.  1  Sid.  347. 

Terra  transit  cum  onere.  Land  passes  with  the 
incumbrances.  Coke,  Litt.  231;  Broom,  Max.  3d 
Lond.  ed.  437,  630. 

Testamenfa  latissimam  inierpretationem  habere 
debent.  Wills  ought  to  have  the  broadest  interpret- 
ation.   Jenk.  Cent.  Cas.  81. 

Testamentum  est  voluntates  nostra  justa  sententia, 
de  eo  quod  quis  post  mortem  suam  fieri  velit.  A 
testament  is  the  just  expression  of  our  will  con- 
cerning that  which  any  one  wishes  done  after  his 
death:  or,  as  Blackstone  translates,  "the  legal 
declaration  of  a  man's  intentions  which  he  wills 
to  be  performed  after  his  death."  2  Sharswood, 
Blackst.  Comm.  499;  Dig.  28.  1.  1 ;  29.  3.  2.  1. 

Tesfamcnttim  omne  morte  consummalum.  Every 
will  is  completed  by  death.    Coke,  Litt.  232. 

Testatoris  ultima  voluntas  est  perimjtlenda  secun- 
dum veram  intentionem  auam.  The  last  will  of  a 
testator  is  to  be  fulfilled  according  to  his  real 
intention.    Coke,  Litt.  322. 

Testes  povderantur,  non  numerantur.  See  the 
maxim  Ponderantia  Testes. 

Testibus  deponentibus  in  pari  numero  dignioribua 
est  credendum.  When  the  number  of  witnesses  is 
equal  on  both  sides,  the  more  worthy  are  to  be  be- 
lieved.   Coke,  4th  Inst.  279. 

Testis  de  visu  prseponderat  aliis.  An  eye-witness 
outweighs  others.    Coke,  4th  Inst.  470. 

Testis  nemo  in  sua  causa  esse  potest.  No  one  can 
be  a  witness  in  his  own  cause.  Otherwise  in  Eng- 
land, by  Stat.  14  <fe  15  Vict.  99,  and  many  of  the 
states  of  the  United  States. 

Testis  ocnlatus  unus  plus  valet  quam  auriti  decern. 
One  eye-witness  is  worth  ten  ear-witnesses.  Coke, 
4th  Inst.  279.    See  3  Bouvier,  Inst.  n.  3154. 


MAXIM 


160 


maxim: 


^  Testmoignes  ne  poent  testifie  le  nerjative,  mcs  V af- 
firmative. Witnesses  cannot  witness  to  a  negative ; 
they  must  witness  to  an  affirmative.  Coke,  4th 
Inst.  279. 

That  which  I  may  defeat  by  my  entry  I  make 
good  by  my  confirmation.    Coke,  Litt.  300. 

27ie  fund  which  has  received  the  benefit  should 
make  the  satiafactiou.    4  Bouvier,  Inst.  n.  3730. 

Things  accessary  are  of  the  nature  of  the  j^rinci- 
pal.    Finch,  Law,  h.  1,  c.  3,  n.  25. 

Things  are  construed  according  to  that  tchich  was 
the  cause  thereof.    Finch,  Law,  b.  1,  c.  3,  n.  4. 

Things  are  dissolved  as  they  be  contracted.  Finch, 
Law,  b.  1,  c.  3,  n.  7. 

Things  grounded  ujjon  an  ill  and  void  beginning 
cannot  have  a  good  perfection.  Finch,  Law,  b.  1, 
c.  3,  n.  8. 

Thimjs  in  action,  entry,  or  re-entry  cannot  be 
granted  over.    19  N.  Y.  100,  103. 

Things  incident  cannot  be  severed.  Finch,  Law, 
b.  3,  c.  1,  n.  12. 

Thinqs  incident  pass  by  the  grant  of  the  principal. 
25  Barb.  N.  Y.  284,  310. 

Things  incident  shall  pass  by  the  grant  of  the 
pri)tcipal,  but  not  the  principtd  by  the  grant  of  the 
incident.  Coke,  Litt.  152  a,  151  b ;  Broom,  Max. 
3d  Lond.  ed.  433. 

Things  shall  not  be  void  tchich  may  possibly  be 
good. 

Tiniores  vani  sunt  sestimandi  qui  nan  cadunt  in 
constantem  virum.  Fears  which  do  not  affect  a 
brave  man  are  vain.    7  Coke,  17. 

Titulus  est  justa  causa  possidendi  id  quod  nostrum 
est.  Title  is  a  just  cause  of  possessing  that  which 
is  ours.    8  Coke,  153  (305)  ;  Coke,  Litt.  345  b. 

Tolle  volnntatem  et  erit  omnis  actus  indifferens. 
Take  away  the  will,  and  every  action  will  be  indif- 
ferent.   Bractun,  2. 

Totum  preefertur  unicuique  parte.  The  whole  is 
preferable  to  any  single  part.    3  Coke,  41  a. 

Tout  ce  que  la  loi  nie  defend  jms  est  permis. 
Every  thing  is  permitted  which  is  not  forbidden  by 
law. 

Tonte  exception  non  surveillee  tend  d  prendre  la 
place  du  jirincipe.  Every  exception  not  watched 
tends  to  assume  the  place  of  the  principle. 

Tractent  fabrilia  fabri.  Let  smiths  perform  the 
work  of  smiths.    3  Coke,  Epist. 

Traditio  loqui  facit  chartam.  Delivery  makes 
the  deed  speak.    5  Coke,  1. 

Traditio  nihil  ampliiis  transferre  debet  vel  potest, 
ad  eum  qui  accipit,  quum  est  apud  eum  qui  tradit. 
Delivery  cannot  and  ought  not  to  transfer  to  him 
who  receives  more  than  was  in  possession  of  him 
who  made  the  delivery.    Dig.  41.  1.  20. 

TransgrcHsione  multiplicttta,  crescat ])(xna  inflictio. 
When  transgression  is  multiplied,  let  the  infliction 
of  j)unishment  be  increased.    Coke,  2d  Inst.  479. 

Transit  in  rem  judicatam.  It  passes  into  a  judg- 
ment. Broom,  Max.  3d  Lond.  ed.  298;  11  Pet. 
100.  See,  also,  18  Johns.  N.  Y.  463  j  2  Sumn.  C.  C. 
436;  6  East,  251. 

Transit  terra  cum  onere.  The  land  passes  with 
its  burden.  Coke,  Litt.  231  a;  Sheppard,  Touchst. 
178;  5  Barnew.  &  C.  607;  7  Mees.  &  W.  Exch. 
530;  3  Iiarn.;w.  &  Aid.  587;  18  C.  B.  845;  24 
Barb.  N.  Y.  365 ;  Broom,  Max.  3d  Lond.  ed.  437,  630. 

IVes  faciunt  collegiu7n.  Three  form  a  corpora- 
tion. Dig.  50. 16.  85 ;  1  Sharswood,  Blackst.  Comm. 
469. 

Trintio  ibi  semper  debet  fieri,  ubi  juratnres  melio- 
reni  possunt  habere  Motitiani.  Trial  ought  always  to 
be  had  where  the  jury  can  have  the  best  knowledge. 
7  Coke,  1. 

Trnsis  survive. 

Titrfyis  est  para  qum.  non  convenit  cum  sua  toto. 
That  i)art  is  bad  which  nccorda  not  with  its  whole, 
I'lowd.  161. 

J'uta  est  cuBtodia  qua  sibimet  creditur.  That 


guardianship  ia  secure  which  trusts  to  itself  alon<».; 
Hob.  340. 

Tutius  erratur  ex  parte  mitiori.  It  is  safer  to  er^ 
on  the  side  of  mercy.    Coke,  3d  Inst.  220. 

Tutius  semper  est  err  are  acquietando,  quam  in 
puniendo ;  ex  parte  misericordid  quam  ex  parte 
justifid.  It  is  always  safer  to  err  in  acquitting 
than  punishing,  on  the  side  of  mercy  than  on  the 
side  of  justice.    Branch,  Princ.;  2  Hale,  PL  Cr.  290. 

Ubi  aliquid  conceditur,  conceditur  et  id  sine  quo 
res  ipsa  esse  non  jwtest.  When  any  thing  is  granted, 
that  also  is  granted  without  which  the  thing 
granted  cannot  exist.  Broom,  Max.  3d  Lond.  ed. 
429;  13  Mees.  &  W.  Exch.  706. 

Ubi  aliquid  impeditur  propter  unum,  eo  remoto^ 
tollitur  impedimentum.  When  any  thing  is  imjieded 
by  one  single  cause,  if  that  be  removed  the  impedi- 
ment is  removed.    5  Coke  77  a. 

Ubi  cessat  remedium  ordinarium  ibi  deeurritur 
ad  extraordinarium.  When  a  common  remedy 
ceases  to  be  of  service,  recourse  must  be  had  to  an. 
extraordinary  one.    4  Coke,  93. 

Ubi  culpa  est,  ibi  poena  subesse  debet.  Where  the 
crime  is  committed,  there  the  punishment  should  be 
inflicted.    Jenk.  Cent.  Cas.  325. 

Ubi  damna  dantur,  victus  victori  in  expensis  con- 
demnari  debet.  Where  damages  are  given,  the, 
losing  party  should  be  adjudged  to  pay  the  costs 
of  the  victor.  Coke,  2d  Inst.  289 ;  3  Sharswood, 
Blackst.  Comm.  399. 

Ubi  eadem  ratio,  ibi  idem  lex.  Where  there  is 
the  same  reason,  there  is  the  same  law.  7  Coke,. 
18;  Broom,  Max.  3d  Lond.  ed.  145. 

Ubi  et  dantis  et  accipientia  turpitudo  veraatur,  < 
non  posse  repeti  dicimus ;  quotiena  autem  accipientia 
iurjjitudo  rersatur,  repeti  posse.  Where  there  is 
turpitude  on  the  part  of  both  giver  and  receiver, 
we  say  it  cannot  be  recovered  back,  but  as  often  as 
the  turpitude  is  on  the  side  of  the  receiver  (alone)  ' 
it  can  be  recovered  back.    17*  Mass.  562. 

Ubi  factum  nullum,  ibi  fortia  nulla.  Wher© 
there  is  no  act,  there  can  be  no  force.    4  Coke,  43. 

Ubi  jus,  ibi  remedium.  Where  there  is  a  right,, 
there  is  a  remedy.  1  Term,  512;  Coke,  Litt.  197 
b;  3  Bouvier,  Inst.  n.  2411 ;  4  id.  3726. 

Ubi  jus  incertum,  ibi  jus  nullum.    Where  the  law 
is  uncertain,  there  is  no  law. 

Ubi  lex  aliquem  cogit  ostender^  cauaam,  necesse 
est  quod  causa  sit  justa  et  legitima.  Where  the  law 
compels  a  man  to  show  cause,  it  is  necessary  that 
the  cause  be  just  and  legal.    Coke,  2d  Inst.  269. 

Ubi  lex  est  specialia,  et  ratio  ejus  generalis,  gene- 
raliter  accipienda  eat.  Where  the  law  is  special 
and  the  reason  of  it  is  general,  it  ought  to  be 
taken  as  being  general.    Coke,  2d  Inst.  43. 

Ubi  lex  non  distinguit,  nec  nos  distinguere  dcbe- 
mus.  Where  the  law  does  not  distinguish,  we 
ought  not  to  distinguish.    7  Coke,  5. 

Ubi  major  pars  est,  ibi  totum.    Where  is  the 
greater  part,  there  is  the  whole.    F.  Moore,  578. 

Ubi  matrimonium,  ibi  dos.    Where  there  is  mar« 
riage,  there  is  dower.    Bracton,  92. 

Ubi  non  adent  norma  legis,  omnia  quasi  pro  axiai 
pectia  habenda  sunt.  When  the  law  fails  to  serve 
as  a  rule,  almost  every  thing  ought  to  be  suspected. 
Bacon,  Aph.  25. 

Ubi  non  est  rondendi  auctoritaa,  ibi  non  eat  parendi 
necpssiias.  Where  there  is  no  authority  to  esta- 
blish, there  is  no  necessity  to  obey.    Dav.  69. 

Ubi  non  est  directa  lex,  stondum  est  arbitrio  judi-  j 
cia,  vel  procedendum  ad  similia.    Where  there  is  no 
direct  law,  the  judgment  of  the  judge  must  be  de- 
pended upon,  or  reference  made  to  similar  cases. 

Ubi  non  est  lex,  ibi  non  est  iransgressio  quoad  , 
mundum.  Where  there  is  no  law,  there  is  no  trans-  | 
gression,  as  it  regards  the  world.    4.  Coke,  1  b. 

Ul>i  non  est  manifesta  injustitia,  judices  hahentur 
pro  bonis  viria,  et  judicatum  pro  vtritate.  Where 


MAXIM 


161 


MAXIM 


there  is  no  manifest  injustice,  the  judges  arc  to  be 
rci^ardcd  as  honest  men,  and  their  judgment  as 
truth.    1  Johns.  Cas.  N.  Y.  341,  345. 

Ul)i  non  est  jirincipalis,  non  potest  esse  accessorius. 
AVhere  there  is  no  principal,  there  can  be  no  ac- 
cessory.   4  Coke,  43. 

nulla  est  cunjecturn  quse  ducat  alio,  verba 
intelliyenda  sunt  ex  proprietate  non  grammatica  sed 
populari  ex  mu.  Where  there  is  no  inference 
■which  would  lead  in  any  other  direction,  words  are 
to  be  understood  according  to  their  proper  mean- 
ing, non  grammatical,  but  according  to  popular 
usage.    Grotius,  de  Jar.  Belli,  1.  2,  c.  16,  ^  2. 

Ubi  nullum  matrimonium,  ibi  nullum  dos.  Where 
there  is  no  marriage  there  is  no  dower.  Coke,  Litt. 
32  a. 

Ubi  pericnlum,  ibi  et  lucrum  collocatur.  He  at 
whose  risk  a  thing  is,  should  receive  the  profits 
arising  from  it. 

Ubi  pugnantia  inter  ae  in  testamento  juberentur, 
neutruin  ratum  est.  When  two  directions  conflict- 
ing with  each  other  are  given  in  a  will,  neither  is 
held  valid.    Dig.  50.  17.  188  pr. 

Ubi  quid  generaliter  conceditur,  in  est  hsec  excep- 
tio,  si  non  aliquid  sit  contra  jus  fasque.  Where  a 
thing  is  conceded  generally,  this  exception  arises, 
that  there  shall  be  nothing  contrary  to  law  and 
right.    10  Coke,  78. 

Ubi  quis  delinquit  ibi  punietur.  Let  a  man  be 
punished  where  he  commits  the  offence.  6  Coke, 
47. 

Ubi  verba  conjuncta  non  sunt,  sufficit  alteratum 
esse  factum.  Where  words  are  used  disjunctively, 
it  is  sufficient  that  either  one  of  the  things  enume- 
rated be  performed.    Dig.  50.  17.  110.  3. 

Ubicunque  est  injuria,  ibi  damnum  sequitur. 
Wherever  there  is  a  wrong,  there  damage  follows. 
10  Coke,  116. 

Ultima  voluntas  testatoris  est  perimplenda  secun- 
dum veram  intentionem  suam.  The  last  will  of  a 
testator  is  to  be  fulfilled  according  to  his  true 
intention.  Coke,  Litt.  322  ;  Broom,  Max.  3d  Lond. 
ed.  505. 

Ultimum  supplicium  esse  mortem  solam  interpreta- 
mur.  The  extremest  punishment  we  consider  to  be 
death  alone.    Dig.  48.  19.  21. 

Ultra  posse  non  p)otest  esse,  et  vice  versa.  What 
is  beyond  possibility  cannot  exist,  and  the  reverse, 
what  cannot  exist  is  not  possible.  Wingate,  Max. 
100. 

Un  ne  doit  prise  advantage  de  son  tort  demesne. 
One  ought  not  to  take  advantage  of  his  own  wrong. 
2  And.  38,  40. 

Una  persona  vix  potest  supplere  vices  duarum. 
One  person  can  scarcely  supply  the  place  of  two. 
4  Coke,  118. 

Unius  omnino  testis  responsio  non  audiatnr.  Let 
not  the  evidence  of  one  witness  be  heard  at  all. 
Code,  4.  20.  9  5  3  Sharswood,  Blackst.  Comm.  370. 

Uniuscujusque  contractus  initium  spectandum  est, 
et  causa.  The  beginning  and  cause  of  every  con- 
tract must  be  considered.  Dig.  17.  1.  8;  Story, 
Bailm.  g  56. 

Universalia  sunt  notiora  aingularibus.  Things 
universal  are  better  known  than  things  particular. 
2  Ilolle,  294;  2  C.  Rob.  Adm.  294, 

^  Unicersitas  vel  corporatio  non  dicitur  aliquid 
facere  nisi  id  sit  collegialiter  deliberatum,  etiamsi 
major  2)ars  id  faciat.  An  university  or  corpora- 
tii)n  is  not  said  to  do  any  thing  unless  it  be  de- 
liberated upon  coUegiately,  although  the  majority 
should  do  it.    Dav.  48. 

Uno  absurdo  dato,  injinita  sequuntur.  One  ab- 
surdity being  allowed,  an  infinity  follow.  1  Coke, 
102. 

Unumqundque  dissnlvatur  eodem  ligamine  quo 
ligatur.  Every  thing  is  dissolved  by  the  same  mode 
in  which  it  is  bound  together.  Broom,  Max.  3d 
Lond.  ed.  792. 

Vol.  IL— 11 


Unumquodque  eodem  modo  quo  colligaturn  ext 
dissolvitur.  in  the  same  manner  in  which  any 
thing  is  bound  it  is  loosened.    2  Rolle,  39. 

Unuinquodque  est  id  quod  est  principnliu  i  in  ipso. 
That  which  is  the  principal  part  of  a  thing  is  the 
thing  itself.    Hob.  123. 

Unumquodque  liganicn  dissolvitur  eodem  ligamine 
quod  ligatur.  Every  obligation  is  dissolvcl  in  tlio 
same  manner  in  which  it  is  contracted.  12  Barb. 
N.  Y.  366,  375. 

Unumquodque  principorum  est  sibimetlpsi  ftdes ; 
et  perspicua  vera  non  sunt  probanda.  Every  prin- 
ciple is  its  own  evidence,  and  plain  truths  are  not 
to  be  proved.    Coke,  Litt.  11  j  Branch,  Princ. 

Usucapio  constituta  est  nt  aliquis  litium  Jinis  essel. 
Prescription  was  instituted  that  there  might  be  an 
end  to  litigation.  Dig.  41.  10.  5;  Broom,  Max.  3d 
Lond.  ed.  801,  n.;  Wood,  Civ.  Law,  3d  ed.  123. 

UsurT/  is  odious  in  law. 

Usus  est  dominium  Jiduciarium.  A  use  is  a  fidu- 
ciary ownership.    Bacon,  Uses. 

Ut  pana  ad  paucos,  mefus  ad  omnes  perveniot. 
That  punishment  may  happen  to  a  few,  the  fear 
of  it  affects  all.    Coke,  4th  Inst.  63. 

Ut  res  magis  valeat  quarn  pereat.  That  the  thing 
may  rather  have  effect  than  be  destroyed. 

Utile  2ier  inutile  non  vitiatur.  What  is  useful  is 
not  vitiated  by  the  useless.  3  Bouvier,  Inst.  nn. 
2949,  3293  ;  2  Wheat.  221 ;  2  Serg.  &  R.  Penn.  298  ; 
17  id.  297;  6  Mass.  303;  12  id.  4.38;  9  Ired.  Ko. 
C.  254.    See  18  Johns.  N.  Y.  93,  94. 

Uxor  et  Jilius  sunt  nomina  naturse.  Wife  and  son 
are  names  of  nature.    4  Bacon,  Works,  350. 

Uxor  non  est  sui  juris,  sed  sub  j)otestate  viri.  A 
wife  is  not  her  own  mistress,  but  is  under  the  power 
of  her  husband.    Coke,  3d  Inst.  108. 

Vagabunduni  nuncupamus  enm  qui  nullibi  domi- 
cilium  contraxit  habifationis.  We  call  him  a  vaga- 
bond who  has  acquired  nowhere  a  domicile  of 
residence.    Phillimore,  Dom.  23,  note. 

Valeat  quantum  valere  potest.  It  shall  have 
effect  as  far  as  it  can  have  effect.  Cowp.  600 ;  4 
Kent,  Comm.  493 ;  Sheppard,  Touchst.  87. 

Vana  est  ilia  potentia  quse  nunquam  venit  in 
actum.  Vain  is  that  power  which  is  never  brought 
into  action.    2  Coke,  51. 

Vani  timores  sunt  sestimandi,  qui  non  cadunt  in 
cnnstantem  virum.  Vain  are  those  fears  which  affect 
not  a  firm  man.    7  Coke,  27. 

Vani  timoris  justa  excusatio  non  est.  A  frivolous 
fear  is  not  a  legal  excuse.  Dig.  50.  17.  184:  Coke, 
.2d  Inst.  483 ;  Broom,  Max.  3d  Lond.  ed.  256,  n. 

Velle  non  creditur  qui  obsequitur  impterio  patria 
vel  domini.  He  is  not  presumed  to  consent  who 
obeys  the  orders  of  his  father  or  his  master.  Dig. 
50.  17.  4. 

Vendens  eandem  rem  dnobua  falsariua  est.  He 
is  fraudulent  who  sells  the  same  thing  twice.  Jenk. 
Cent.  Cas.  107. 

Veniee  facilitaa  incentivnm  est  delinquendi.  Fa- 
cility of  pardon  is  an  incentive  to  crime.  Coke,  3d 
Inst.  236. 

Verba  accipienda  aunt  secundum  aubjectum  ma- 
feriam.  Words  are  to  be  interpreted  according  to 
the  subject-matter.    6  Coke,  6,  n. 

Verba  accijnenda  ut  sortientur  effectum.  Words 
are  to  be  taken  so  that  they  may  have  some  effect. 
4  Bacon,  Works,  258. 

Verba  lequivoca  ac  in  dubio  senan  posita,  intelh\ 
gjintur  digniori  et  jjotentiori  sensu.  Equivocal  word^ 
and  those  in  a  doubtful  sense  are  to  be  taken  ia 
their  best  and  most  effective  sense.    6  Coke,  20. 

Verba  aliquid  operari  debent — debent  intelligi  ut 
aliquid  operentur.  Words  ought  to  have  somo 
effect — words  ought  to  be  interpreted  so  as  to  give 
them  some  effect.    8  Coke,  94. 

Verba  aliquid  operari  debent,  verba  cum  effectn 
aunt  accipienda.    Words  are  to  be  taken  go  as  to 


MAXIM 


Id 


MAXIM 


have  effect.  Bacon,  Max.  Reg.  3,  p.  47.  Sea  1 
Duer.  Ins  210,  211,  216. 

Verba  artis  ex  arte.  Terms  of  art  should  be  ex- 
plained from  the  art.    2  Kent,  Comm.  556,  n. 

Verba  chnrtarum  fortius  accipiuntur  contra  pro- 
ferentem.  The  words  of  deeds  are  to  be  taken 
most  strongly  against  the  person  offering  them. 
Coke.  Litt.  y6  a;  Bacon,  Max.  Reg.  3;  Noy,  Max. 
9th  ed.  p.  48;  3  Bos.  &  P.  399,  403;  1  Crompt.  & 
M.  Exch.  657;  8  Term,  605:  15  East,  546;  1  Ball 
k  B.  335;  2  Parsons,  Contr.  22;  Broom,  Max.  3d 
Lond.  ed.  72  (n.),  529. 

Verba  cum  effectu  accipienda  sunt.  Words  are  to 
be  interpreted  so  as  to  give  them  effect.  Bacon, 
Max.  Reg.  3. 

Verba  cnrrentis  monetie,  tempus  solutionis  de- 
signant.  The  words  *•  current  money"  refer  to  the 
time  of  payment.    Dav.  20. 

Verba  dehent  intelligi  cum  effectu.  Words  should 
be  understood  effectively.  2  Johns.  Cas.  N.  Y.  97, 
101. 

Verba  debent  intelligi  ut  aliquid  operentur.  Words 
ought  to  be  so  understood  that  they  may  have  some 
effect.    8  Coke,  94  a. 

Verba  dicta  de  jiersona,  intelligi  debent  de  condi- 
iione  2)ersonse.  Words  spoken  of  the  person  are  to 
be  understood  of  the  condition  of  the  person.  2 
Rolle,  72. 

Verba  generalia  generaliter  sunt  intelligenda. 
General  words  are  to  be  generally  understood.  Coke, 
3d  Inst.  76. 

Verba  generalia  restringnntur  ad  habilitatem  ret 
vel  aptitudinem  personse.  General  words  must  be 
restricted  to  the  nature  of  the  subject-matter  or 
the  aptitude  of  the  person.  Bacon,  Max.  Reg.  10; 
11  C.  B.  254,  356. 

Verba  generalia  restringnntur  ad  habilitatem  rei 
vel  personse.  General  words  must  be  confined  or 
restrained  to  the  nature  of  the  subject  or  the  apti- 
tude of  the  person.  Bacon,  Max.  Reg.  10;  Broom, 
Max.  3d  Lond.  ed.  575. 

Verba  illata  (relata)  inesse  videntur.  Words 
referred  to  are  to  be  considered  as  if  incorporated. 
Broom,  Max.  3d  Lond.  ed.  600,  603;  11  Mees.  & 
W.  Exch.  183,  188;  10  C.  B.  261,  263,  266. 

Verba  in  differenti  materia  per  prius,  non  per 
posterius,  intelligenda  sunt.  Words  referring  to  a 
different  subject  are  to  be  interpreted  by  what  goes 
before,  not  by  what  follows.    Calvinus,  Lex. 

Verba  intelligenda  sunt  in  casu  possibili.  Words 
are  to  be  understood  in  reference  to  a  possible  case. 
Calvinus,  Lex. 

Verba,  intentioni,  ef  non  i.  contra,  debent  inservire. 
Words  ought  to  wait  upon  the  intention,  not  the 
reverse.  8  Coke,  94 ;  2  Sharswood,  Blackst.  Comm. 
379. 

Verba  intentioni,  non  e  contra,  debent  inservire. 
Words  ought  to  be  made  subservient  to  the  intent, 
not  contrary  to  it.  8  Coke,  94;  1  Spence,  Eq.  Jur. 
527. 

Verba  ita  sunt  intelligenda,  nt  res  magis  valeat 
quam  pereat.  Words  are  to  be  so  understood  that 
the  subject-matter  may  be  preserved  rather  than 
destroyed.  Bacon,  Max.  Reg.  3 ;  Plowd.  156 ;  2 
Blackstone,  Comm.  380 ;  2  Kent,  Comm.  555. 

Verba  mere  sequivoca,  si  per  communcm  usum 
loquendi  in  intellectu  ccrto  anmuntur,  talis  intel- 
lectuH  prse/erendus  est.  When  words  are  merely 
equivocal,  if  by  common  usage  of  speech  they 
acquire  a  certain  meaning,  such  meaning  is  to  be 
preferred.    Calvinus,  Lex. 

Verba  nihil  operari  melius  est  quam  absurde. 
It  is  better  that  words  should  have  no  operation, 
than  to  operate  ab,«urdly.    Calvinus,  Lex. 

Verba  non  mm  intnenda,  qnam.  caxisa  et  natura 
rei,  nt  mens  contrahentium  ex  eis  potius  quam  ex 
verbis  appareat.  Words  are  not  to  be  looked  at  so 
much  as  the  cause  and  nature  of  the  thing,  since 
the  intention  of  the  contracting  parties  may  appear 


from  those  rather  than  from  the  words.  Calvinui, 
Lex. 

Verba  offendi  possunt,  imp  ah  eis  recedere  licet,  ut 
verba  ad  sanum  intellectum  reducantur.  You  may 
disagree  with  words,  nay,  you  may  recede  from 
them,  in  order  that  they  may  be  reduced  to  a  sensi- 
ble meaning.    Calvinus,  Lex. 

Verba  ordinationis  quando  verificari  possunt  in 
sua  vera  signijicatione,  trohi  ad  extraneum  intellec- 
tum non  debent.  When  the  words  of  an  ordinance 
can  be  made  true  in  their  true  signification,  they 
ought  not  to  be  warped  to  a  foreign  meaning. 
Calvinus,  Lex. 

Verba  posteriora  propter  certitudinem  addita,  ad 
priora  quae  certitudine  indigent,  sunt  referenda. 
Subsequent  words  added  for  the  purpose  of  cer- 
tainty are  to  be  referred  to  preceding  words  in 
which  certainty  is  wanting.  Wingate,  Max.  167; 
6  Coke,  236. 

Verba  pro  re  et  subjecta  materia  accipi  debent. 
Words  should  be  received  most  favorably  to  the 
thing  and  the  subject-matter.    Calvinus,  Lex. 

Verba  quse  aliquid  operari  possunt  non  debent 
esse  snperflua._  Words  which  can  have  any  effect 
ought  not  to  be  treated  as  surplusage.  Calvinus, 
Lex. 

Verba  quantumvis  generalia,  ad  aptitudinem  re- 
stringnntur, etiamsi  nullum  aliam  paterentur  restric- 
tionem.  Words,  howsoever  general,  are  restrained 
to  fitness  {i.e.  to  harmonize  with  the  subject-mat- 
ter) though  they  would  bear  no  other  restriction. 
Spiegelius. 

Verba  relata  hoc  maxime  op)erantur  per  referen- 
tiam  nt  in  eis  inesse  videntur.  Words  to  which 
reference  is  made  in  an  instrument  have  the  same 
effect  and  operation  as  if  they  were  inserted  in 
the  clause  referring  to  them.  Coke,  Litt.  359;  Broom, 
Max.  3d  Lond.  ed.  599  ;  14  East,  568. 

Verba  secundum  materiam  subjectam  intelligi  nemo 
est  qui  nescit.  There  is  no  one  who  is  ignorant 
that  words  should  be  understood  according  to  the 
subject-matter.    Calvinus,  Lex. 

Verba  semper  accipienda  sunt  in  mitiori  sensu. 
Words  are  always  to  be  taken  in  their  milder  sense. 
4  Coke,  17. 

Verba  sti-icta  significationis  ad  latam  extendi 
possunt,  si  subsit  ratio.  Words  of  a  strict  significa- 
tion can  be  given  a  wide  signification  if  reason 
require.    Calvinus,  Lex  ;  Spiegelius. 

Verba  sunt  indices  animi.  Words  are  indications 
of  the  intention.    Latch,  106. 

Verhum  imperfecti  temporis  rem  adhuc  imperfec- 
tam  signifivat.  The  imperfect  tense  of  the  verb  indi- 
cates an  incomplete  matter.   6  Wend.  N.  Y.  103, 120. 

Veredictum,  quasi  dictum  veritatis;  ut  judicium, 
quasi  juris  dictum.  A  verdict  is  as  it  were  the  say- 
ing of  the  truth,  in  the  same  manner  that  a  judg- 
ment is  the  saying  of  the  late.    Coke,  Litt.  226. 

Veritas  demonstrationis  tollit  errorem  nominis. 
The  truth  of  the  description  removes  the  error  of 
the  name.    1  Ld.  Raym.  303.    See  Lkgatee. 

Veritas  habenda  est  in  juratore;  juslitia  et  ju- 
dicium in  judice.  Truth  is  the  desideratum  in  a 
juror ;  justice  and  judgment,  in  a  judge.  Bracton, 
185  6. 

Veritas  nihil  veretur  nisi  abscondi.  Truth  fear* 
nothing  but  concealment.    9  Coke,  20. 

Veritas  nimium  altercando  amittitur.  By  too 
much  altercation  truth  is  lost.    Hob.  344. 

Veritas  nominis  tollit  errorem  demonstrationis. 
The  truth  of  the  name  takes  away  the  error  of 
description.  Bacon,  Max.  Reg.  25 ;  Broom,  Max. 
3d  Lond.  ed.  571;  8  Taunt.  313;  2  Jones,  Eq.  No. 
C.  72. 

Veritatem  qui  non  liher^  pronunciat,  proditor  est 
veritatis.  He  who  does  not  speak  the  truth  freelj 
is  a  traitor  to  the  truth.    Coke,  4th  Inst.  Epil. 

Via  antiqua  via  est  tula.  The  old  way  is  th« 
safe  way.    1  Johns.  Ch.  N.  Y.  527,  630. 


MAXIM 


163 


MAYHEM 


Via  trita  cat  tutlmima.  The  beaten  road  is  the 
safest.    10  Coke,  142;  4  Maule  &  .S.  1G8. 

Vid  trita,  via  tuta.  The  old  way  is  the  safe  way. 
6  Pet.  223. 

Vicarius  non  habet  vicarium.  A  deputy  cannot 
appoint  a  deputy.  Branch,  Max.  38 ;  Broom,  Max. 
3d  Lond.  ed.  758  j  2  Bouvier,  Inst.  n.  1300. 

Viciiti  viciuiora  2^i'scsunutiitHr  scire.  Neighbors 
arc  presumed  to  know  things  of  the  neighborhood. 
Coke.  4th  Inst.  173. 

Videhis  ea  scepe  committi,  qum  ssepe  viitdiamtiir. 
You  will  see  those  things  frequently  committed 
which  are  frequently  punished.  Coke,  3d  Inst. 
E}>i!og. 

Videtur  qui  surdus  et  mutua  ne  poet  /aire  aliena- 
tion. It  seems  that  a  deaf  and  dumb  man  cannot 
alienate.    4  Johns.  Ch.  N.  Y.  441,  444. 

Vi;/ilantibu8  et  non  dormientibuH  jura  anbaerviunt. 
The  laws  serve  the  vigilant,  not  those  who  sleep. 
2  Bouvier,  Inst.  n.  2327.  See  Laches  ;  Broom, 
Max.  3d  Lond.  ed.  799. 

Vim  vi  rejiellere  licet,  modo  fiat  moderamine  incul- 
patfe  tutelse,  non  ad  aumendam  vindictam,  aed,  ad 
popiilaandam  injuriain.  It  is  lawful  to  repel  force 
by  force;  but  let  it  be  done  with  the  self-control  of 
blameless  defence, — not  to  take  revenge,  but  to 
repel  injury.    Coke,  Litt.  162. 

Viperina  est  e.cpositio  quie  corrodit  viscera  textus. 
That  is  a  viperous  exposition  which  gnaws  or  eats 
out  the  bowels  of  the  text.    11  Coke,  34. 

Vir  et  uxor  consentur  in  lecje  una  persona.  Hus- 
band and  wife  are  considered  one  person  in  law. 
Coke,  Litt.  112;  Jenk.  Cent.  Cas.  27. 

Vires  acquirit  eundo.  It  gains  strength  by  con-' 
tinuance.    1  Johns.  Ch.  N.  Y.  231,  237. 

Via  leqibus  est  inimica.  Force  is  inimical  to  the 
laws.    Coke,  3d  Inst.  176. 

Vitiurn  clerici  nocere  non  debet.  Clerical  errors 
ought  not  to  prejudice.  Jenk.  Cent.  Cas.  23;  Dig. 
34.  5.  3. 

Vitium  eat  quod  fnqi  debet,  ne,  si  rationem  non 
invcniaa,  max  lef/em  sine  ratione  esse  vlamea.  It  is 
a  fault  which  ought  to  be  avoided,  that  if  you  can- 
not discover  the  reason  you  should  presently  ex- 
claim that  the  law  is  without  reason.  Ellesmere, 
Postn.  86. 

Vix  ulla  lex  fieri  potest  quse  omnibus  commoda  ait, 
aed  ai  mojori  parti  prospiciat,  utilis  est.  Scarcely 
any  law  can  be  made  which  is  beneficial  to  all ;  but 
if  it  benefit  the  majority  it  is  useful.    Plowd.  369. 

Voeabula  artium  explicanda,  sunt  seciinditm  defi- 
nitionea  prndentium.  Terms  of  art  should  be  ex- 
plained according  to  the  definitions  of  those  who 
are  most  experienced  in  that  art.  Puffendorff,  de  Off. 
Horn.  1.  1,  c.  17,  d  3;  Grotius,  Jur.  de  Bell.  \.  2,  c. 
16,  ?  3. 

Void  in  part,  void  in  toto.    15  N.  Y.  9,  96. 
Void  thinga  are  as  no  thinqa.    9  Cow.  N.  Y.  778, 
784. 

Volenti  non  fit  injuria.  He  who  consents  cannot 
receive  an  injury.  2  Bouvier,  Inst.  nn.  2279.  2327  ; 
Broom,  Max.  3d  Lond.  ed.  245  ;  Shelford,  Marr.  & 
D.  449 ;  Wingate,  Max.  482 ;  4  Term,  657  ;  Plowd. 
501. 

Voluit  sed  non  dixit.  He  willed  but  did  not  say. 
4  Kent,  Comm.  538. 

1  olnntaa  donatoria,  in  chartd  doni  sui  manifcate 
expreasa  obaerretnr.  The  will  of  the  donor,  clearly 
expressed  in  the  deed,  should  be  observed.  Coke, 
Litt.  21  a. 

Vidnntas  et  propoaitnm  distinrjunnt  malefiria.  The 
will  and  the  proposed  end  distinguish  crimes.  Brac- 
ton,  2     136  b. 

Vofinitas  facit  quod  in  tcatamento  scriptum  valeat. 
The  will  of  the  testator  gives  validity  to  what  is 
written  in  the  will.    Dig.  30.  1.  12.  3. 

^  olnntaa  in  delictia  non  cxitua  apectatur.  In 
offences,  the  will  and  not  the  consequences  are  to 
be  looked  to.    Coke,  2d  Inst.  57. 


Voluntas  rcputabaiur  pro  facto.  The  will  is  to  be 
taken  for  the  deed.    Coke,  3d  Inst.  69. 

Voluntas  teatatoria  anibulatoria  est  uaqne  ad 
mortem.  The  will  of  a  testator  is  ambulatory  until 
his  death:  that  i.s,  he  may  change  it  at  any  time. 
See  1  Bouvier,  In.st.  n.  8;5 ;  4  Coke,  61. 

Voluntaa  testaforia  habet  interprctutionem  latam  et 
benifjn<tm.  The  will  of  a  testator  has  a  broad  and 
liberal  interpretation.  Jenk.  Cent.  Cas.  260  j  Dig. 
50.  17.  12. 

Voluntas  idtinia  teatatoria  eat  perimplenda  aecun- 
dum  veram  intentionein  suarii.  The  last  will  of  a 
testator  is  to  be  fulfilled  according  to  his  true  inten- 
tion.   Coke,  Litt.  322. 

Vox  emissa  volat, — litera  acripta  manet.  "Words 
spoken  vanish,  words  written  remain.  A  written 
contract  cannot  be  varied  by  parol  proof.  Broom, 
Max.  3d  Lond.  ed.  594;  1  Johns.  N.  Y.  571,  572. 

What  a  man  cannot  transfer,  he  cannot  bind  by 
articles. 

When  many  join  in  one  act,  the  law  aaya  it  ia  the 
act  of  him  ivho  could  best  do  it;  and  thinga  should 
be  done  by  him  who  haa  the  best  skill.     Noy,  Max. 

When  no  time  ia  limited,  the  law  appointa  the  moat 
convenient. 

When  the  common  law  and  atatute  law  concur,  the 
common  law  is  to  be  jweferred.    4  Coke,  71. 

When  the  foundation  fails,  all  fails. 

When  the  law  gives  any  thing,  it  gives  a  remedy  for 
the  same. 

When  the  law  presumes  the  affirmative,  the  negative 
is  to  be  proved.  1  Rolle,  S3  ;  3  Bouvier,  Inst.  nn. 
3063,  3090. 

When  two  titles  concur,  the  best  ia  preferred.  Finch, 
Law,  b.  1,  c.  4,  n.  82. 

Where  there  ia  equal  equity,  the  law  must  prevail. 
4  Bouvier,  Inst.  n.  3727. 

Where  two  rights  concur,  the  more  ancient  shall  be 
preferred. 

MAY.  Is  permitted  to;  has  liberty  to. 
Whenever  a  statute  directs  the  doing  of 
a  thing  for  the  sake  of  justice  or  the  public 
good,  the  word  may  is  the  same  as  shall.  For 
example,  the  23  H.  VI.  says  the  sheriff  may 
take  bail ;  that  is  construed  he  shall,  for  he  is 
compellable  to  do  so.  Carth.  293  ;  Salk.  609  ; 
Skinn.  370. 

3.  The  words  shall  and  may,  in  general 
acts  of  the  legislature  or  in  private  constitu- 
tions, are  to  be  construed  imperatively,  3  Atk. 
Ch.  166  ;  but  the  construction  of  those  words 
in  a  deed  depends  on  circumstances.  3  Atk. 
Ch.  282.  See  1  Vern.  Ch.  152,  case  142; 
18  Ala.  390. 

MAYHEM.    In  Criminal  Law.  The 

act  of  unlawfully  and  violently  depriving  an- 
other of  the  use  of  such  of  his  members  as 
may  render  him  less  able,  in  fighting,  either 
to  defend  himself  or  annoy  his  adversary.  8 
Carr.  &  P.  167.  The  cutting  or  disabling,  or 
weakening,  a  man's  hand  or  finger,  or  strik- 
ing out  his  eye  or  foretooth,  or  depriving  him 
of  those  parts  the  loss  of  which  abates  hia 
courage,  are  held  to  be  mayhems.  7  Humphr. 
Tenn.  But  cutting  off  the  ear  or  nose,  or  the 
like,  are  not  held  to  be  mayhems  at  common 
law.    4  Blackstone,  Comm.  205. 

These  and  other  severe  personal  injuries 
are  punished  by  the  Coventry  Act,  which  has 
been  re-enacted  in  several  of  the  states,  Rvan, 
Med.  Jur.  191,  Phil.  ed.  1832:  and  by  con- 
gress.   See  Act  of  April  30,  1790,  s.  13,  1 


MAYHEMAVIT 


164 


MEASURE 


Story,  U.  S.  Laws,  85  ;  Act  of  March  3, 1825, 
6.  22,  3  id.  2006 ;  10  Ala.  n.  s.  928 ;  5  Ga. 
404;  7  Mass.  245;  1  Ired.  No.  C.  121;  6 
Serg.  &  R.  Penn.  224 ;  2  Va.  Cas.  198 ;  4 
Wise.  168.  Mayhem  is  not  an  offence  at  com- 
mon law,  but  only  an  aggravated  trespass.  7 
Mass.  248  ;  3  Binn.  Penn.  595.  See  11  Rich. 
So.  C.  165. 

MAYHEMAVIT.  Maimed.  This  is  a 
term  of  art  which  cannot  be  supplied  in  plead- 
ings by  any  other  word,  as  mvlilavit,  trun- 
cavit,  etc.  3  Thomas,  Co.  Litt.  548  ;  7  Mass. 
247. 

MAYOR  (Lat.  major;  Spelman,  Gloss. 
3/e//r,  miret,  maer,  one  that  keeps  guard. 
Cowel;  Blount;  Webster).  The  chief  gov- 
ernor or  executive  magistrate  of  a  city.  The 
old  word  was  portgreve.  The  word  mayor 
first  occurs  in  1189,  when  Rich,  I.  substituted 
a  mayor  for  the  two  bailiffs  of  London.  The 
word  is  common  in  Bracton.  Bracton,  57. 
In  London,  York,  and  Dublin,  he  is  called 
lord  mayor.    AVharton,  Lex.  2d  Lond.  ed. 

He  is  usually  elected  annually  ;  and  it  is 
generally  his  duty  to  cause  the  laws  of  the 
city  to  be  enforced,  and  to  superintend  inferior 
officers,  such  as  constables,  watchmen,  and 
the  like.  But  the  power  and  authority  which 
mayors  possess,  being  given  to  them  by  local 
regulations,  vary  in  different  places. 

MAYOR'S  COURT.    The  name  of  a 

court  usually  established  in  cities,  composed 
of  a  mayor,  recorder,  and  aldermen,  gene- 
rally havi ng  j urisdiction  of  offences  committed 
within  the  city,  and  of  other  matters  specially 
given  them  by  the  statute. 

MAYORAZGO.  In  Spanish  Law.  A 
snecies  of  entail  known  to  Spanish  law.  1 
White,  New  Rec.  119. 

MEANDER.  To  wind  as  a  river  or 
stream,  Webster. 

The  winding  or  bend  of  a  stream. 

To  survey  a  stream  according  to  its  mean- 
ders or  windings.  Wise.  Rev.  Stat.  c.  34,  ^  1  ; 
2  Wise.  317. 

MEASURE.  A  means  or  standard  for 
computing  amount.  A  certain  quantity  of 
something,  taken  for  a  unit,  and  which  ex- 
presses a  relation  with  other  quantities  of  the 
same  thing. 

2.  The  constitution  of  the  United  States 
gives  power  to  congress  to  "  fix  the  standard 
of  weights  and  measures.^'  Art.  1,  s.  8. 
Hitherto  this  has  remained  as  a  dormant 
power,  though  frequently  brought  before  the 
attention  of  congress. 

The  states,  it  seems,  possess  the  power  to 
legislate  (m  this  subject,  or,  at  least,  the  ex- 
isting standards  at  the  adoption  of  the  consti- 
tution remain  in  full  force.  3  Story,  Const 
21  ;  Rawle,  Const.  102. 

3.  IJy  a  resolution  of  congress,  of  the  14th 
of  .Juno,  1836,  the  secretary  of  the  treasury 
is  directed  to  cause  a  complete  set  of  all 
weights  and  measures  adopted  as  standards, 
and  now  either  made  or  in  the  progress  of 
manufacture,  for  the  use  of  the  several  cus- 


tom-houses and  for  other  purposes,  to  be  de- 
livered to  the  governor  of  each  state  in  the 
Union,  or  to  such  person  as  he  may  appoint, 
for  the  use  of  the  states  respectively,  to  the 
end  that  a  uniform  standard  of  weights  and 
measures  may  be  established  throughout  the 
United  States. 

4.  Measures  of  Length. 

12  inches  =  1  foot. 

3  feet  =  1  yard. 

52^  yards  =  1  rod  or  pole. 
40  poles  =  1  furlong. 

8  furlongs  =  1  mile. 
69     miles  =  1  degree  of  a  great  circle  of 
the  earth. 

An  inch  is  the  smallest  lineal  measure  to 
which  a  name  is  given,  but  subdivisions  are 
used  for  many  purposes.  Among  mechanics, 
the  inch  is  commonly  divided  into  eighths. 
By  the  officers  of  the  revenue,  and  by  scien- 
tific persons,  it  is  divided  into  tenths,  hun- 
dredths, etc.  Formerly  it  was  made  to  con- 
sist of  twelve  parts,  called  lines;  but  these 
have  fallen  into  disuse. 

Particular  Measures  of  Length, 

First.  Used  for  measuring  cloth  of  all  kinds. 

1  nail  =  2^  inches. 
1  quarter  =  4  inches. 
1  yard  =  4  quarters. 
1  ell  =  5  quarters. 

Second.  Used  for  the  height  of  horses. 
1  hand  =  4  inches. 
Third.  Used  in  measuring  depths. 
1  fathom  =  6  feet. 

Fourth.  Used  in  land  measure,  to  facilitate  i 
computation  of  the  contents,  10  square  chains 
being  equal  to  an  acre.  , 

1  link  =  7jV(y  inches. 

1  chain  =  100  links. 

5.  Measures  of  Surface. 

144  square  inches  =  1  square  foot. 

9  square  feet  =  1  square  yard. 
ZOl  square  yards  =  1  perch  or  rod. 
40  perches  =  1  rood. 

4  roods  or  160  perches  =  1  acre. 
640  acres  =  1  square  mile. 

Measures  of  Solidity  and  Capacity. 
First.  Measures  of  solidity. 
1728  cubic  inches  =  1  cubic  foot. 
27  cubic  feet  =  1  cubic  yard. 

Second.  Measures  of  capacity  for  all  liquids 
and  for  all  goods  not  liquid,  except  such  as 
are  comprised  in  the  next  division. 

4  gills  =  1  pint  =  34^  cubic  inches  nearly. 

2  pints  =  1  quart  =  69J  " 

4  quarts  =  1  gallon  =  277}  " 
2  gallons  =  1  peck  =  554^  " 
8  gallons  =  1  bushel  =  2218i^" 

8  bushels=  1  qunrter=  10}  cubic  feet  " 

5  quarters  =  1  load  =  51 J     '*  " 


MEASURE 


165 


MEASURE 


The  last  four  denominations  are  used  only 
for  goixls,  not  liquids.  For  liquids,  several 
denominations  have  heretofore  been  adopted, 
namely,  for  beer  the  firkin  of  9  gallons,  the 
kilderkin  of  18,  the  barrel  of  3G,  the  hogshead 
of  54,  and  the  butt  of  108  gallons.  For  wine 
or  spirits  there  are  the  anker,  runlet,  tierce, 
hogshead,  puncheon,  pipe,  butt,  and  tun : 
these  are,  however,  rather  the  names  of  the 
casks  in  which  the  commodities  are  imported, 
'than  as  expressing  any  definite  number  of 
gallons.  It  is  the  practice  to  gauge  all  such 
vessels,  and  to  charge  them  according  to  their 
actual  contents. 

Third.  Measures  of  capacity  for  coal,  lime, 
potatoes,  fruit,  and  other  commodities  sold  by 
heaped  measure. 

2  gallons  =  1  peck=704  cubic  in.  nearly. 
8  gallons  =  1  bushel  =  2815^  " 

3  bushels  =  1  sack  =  4f  cubic  feet, 
12  sacks  =  1  chaldron  =  58| 

6.    Measures  of  Weights. 
See  Weights. 
Angular  Measure  ;  or,  Division  of  the 
Circle. 

60  seconds  =  1  minute. 
60  minutes  =  1  degree. 
30  degrees  =  1  sign. 
90  degrees  =  1  quadrant. 
360  degrees,  or  12  signs  =  1  circumference. 

Formerly  the  subdivisions  were  carried  on 
"by  sixties ;  thus,  the  second  was  divided  into 
sixty  thirds,  the  third  into  sixty  fourths,  etc. 
At  present,  the  second  is  more  generally 
divided  decimally  into  tens,  hundreds,  etc. 
The  degree  is  frequently  so  divided. 

Measure  of  Time. 

60  seconds  =  1  minute. 
60  minutes  =  1  hour. 
24  hours  =  1  day. 

7  days  =  1  week. 
28  days,  or  4  weeks  =  1  lunar  month. 
28,  29,  30,  or  31  days  =  1  calendar  month. 
12  calendar  months  =  1  year. 

365  days  =  1  common  year. 

366  days  =  a  leap  year. 

The  second  of  time  is  subdivided  like  that 
of  angular  measure. 

FRENCH  MEASURES. 

•y.  The  fundamental,  invariable,  and  stand- 
ard measure,  by  w^hich  all  weights  and 
measures  are  formed,  is  called  the  mMre,  a 
word  derived  from  the  Greek,  which  signifies 
measure.  It  is  a  lineal  measure,  and  is  equal 
to  3  feet,  0  inches,  Uy^^f^  lines,  Paris  mea- 
Bure,  or  3  feet,  3  inches,  /^'^Oj,  English.  This 
unit  is  divided  into  ten  parts;  each  tenth, 
into  ten  hundredths ;  each  hundredth,  into 
ten  thousandths,  etc.  These  divisions,  as 
well  as  those  of  all  other  measures,  are  in- 
finite. As  the  standard  is  to  be  invariable, 
something  has  been  sought  from  which  to 
make  it,  which  is  not  variable  or  subject  to 


any  change.  The  fundamental  base  of  the 
metre  is  the  quarter  of  the  terrestrial  meri- 
dian, or  the  distance  from  the  pole  to  the 
equator,  which  has  been  divided  into  ten 
millions  of  equal  parts,  one  of  which  is  the 
length  of  the  metre.  All  the  other  measures 
are  formed  from  the  metre,  as  follows : 

Measure  of  Capacity. 

8.  The  litre.  This  is  the  decimetre,  or  one- 
tenth  part  of  the  cubic  mhtre ;  that  is,  if  a 
vase  be  made  of  a  cubic  form,  of  a  decimetre 
every  way,  it  would  be  of  the  capacity  of  a 
litre.  This  is  divided  by  tenths,  as  the  m^tt'e. 
The  measures  which  amount  to  more  than  a 
single  litre  are  counted  by  tens,  hundreds, 
thousands,  etc.  of  litres. 

Measures  of  Weights. 

The  gramme.  This  is  the  weight  of  a  cubic 
centimetre  of  distilled  water  at  the  tempera- 
ture of  zero:  that  is,  if  a  vase  be  made  of  a 
cubic  form,  of  a  hundredth  part  of  a  metre 
every  way,  and  it  be  filled  with  distilled 
water,  the  weight  of  that  water  will  be  that 
of  the  gramme. 

Measures  of  Surfaces. 

The  arc,  used  in  surveying.  This  is  a 
square,  the  sides  of  which  are  of  the  length 
of  ten  metres,  or  what  is  equal  to  one  hun- 
dred square  metres.  Its  divisions  are  the 
same  as  in  the  preceding  measures. 

Measures  of  Solidity. 

9.  The  stere,  used  in  measuring  fire- wood. 
It  is  a  cubic  metre.  Its  subdivisions  are  simi- 
lar to  the  preceding.  The  term  is  used  only 
for  measuring  fire-wood.  For  the  measure  of 
other  things,  the  term  cvbe  mUre,  or  cubic 
metre,  is  used,  or  the  tenth,  hundredth,  etc. 
of  such  a  cube. 

Money. 

The  franc.  It  weighs  five  grammes.  It 
is  made  of  nine-tenths  of  silver,  and  one- 
tenth  of  copper.  Its  tenth  part  is  called  a 
decime,  and  its  hundredth  part  a  centhne. 

One  measure  being  thus  made  the  standard 
of  all  the  rest,  they  nmst  be  all  equally  in- 
variable ;  but,  in  order  to  make  this  certainty 
perfectly  sure,  the  following  precautions  have 
been  adopted.    As  the  temperature  was  found 
to  have  an  influence  on  bodies,  the  term  zero, 
or  melting  ice,  has  been  selected  in  making 
the  models  or  standard  of  the  mfetre.  Dis- 
!  tilled  water  has  been  chosen  to  make  the 
I  standard  of  the  gramme,  as  being  purer  and 
i  less  encumbered  with  foreign  matter  than 
\  common  water.     The  temperature  having 
also  an  influence  on  a  determinate  volume  of 
water,  that  with  which  the  experiments  were 
:  made  was  of  the  temperature  of  zero,  or 
;  melting  ice.    The  air,  more  or  less  charged 
'  with  humidity,  causes  the  weight  of  bodies 
I  to  vary :    the  models  which  represent  the 
j  weight  of  the  gramme  have,  therefore,  been 
I  taken  in  a  vacuum. 


MEASURE  OF  DAMAGES 


166 


MEASURE  OF  DAMAGES 


10.  It  has  already  been  stated  that  the 
divisions  of  these  measures  are  all  uniform, 
namely,  by  tens,  or  decimal  fractions  ;  they 
may,  therefore,  be  written  as  such.  Instead 
of  writing, 

1  metre  and  1-tenth  of  a  metre,  we  may 

write,  1  m.  1. 

2  metre  and  8-tenths, — 2  m.  8. 

10  metre  and  4-hundredths, — 10  m.  04. 
7  litres,  1-tenth,  and  2-hundredths, — 7  lit. 
12,  etc. 

Names  have  been  given  to  each  of  these 
divisions  of  the  principal  unit ;  but  these 
names  always  indicate  the  value  of  the  i Tac- 
tion, and  the  unit  from  which  it  is  (icrived. 
To  the  name  of  the  unit  have  been  prciiXC;! 
the  particles  dtci,  for  tenth,  centi,  lor  hun- 
dredth, and  milli,  for  thousandth.  They 
are  thus  expressed:  a  decimetre,  a  deci- 
litre, a  decigramme,  a  decistere,  a  declare, 
a  centimetre,  a  centilitre,  a  centigramme, 
etc.  The  facility  with  which  the  divisions 
of  the  unit  are  reduced  to  the  same  expres- 
sion is  very  apparent;  this  cannot  be  done 
with  any  other  kind  of  measures. 

11.  As  it  may  sometimes  be  necessary  to 
express  great  quantities  of  units,  collections 
have  been  made  of  them  in  tens,  hundreds, 
thousands,  tens  of  thousands,  etc.,  to  which 
names  derived  from  the  Greek  have  been 
given  :  namely,  deca,  for  tens  ;  hecto,  for  hun- 
dreds ;  kilo,  for  thousands ;  and  myria,  for 
tens  of  thousands  ;  they  are  thus  expressed  : 
a  decametre,  a  decalitre,  etc.;  a  hectometre,  a 
Tiectogramme,  etc. ;  a  kilometre,  a  kiloyramme, 
etc. 

The  following  table  will  facilitate  the  re- 
duction of  these  weights  and  measures  into 
our  own : 

The  MUre  is  3.28  feet,  or  39.371  in. 
Are    is  1076.441  square  feet. 
Litre  is  61.028  cubic  inches. 
St^re  is  35.317  cubic  feet. 
Gramme  is  15.4441  grains  troy,  or  5.6481 
drams  avoirdupois. 

MEASURE  OF  DAMAGES.  In 

Practice.  A  rule  or  method  by  which  the 
damage  sustained  is  to  be  estimated  or  mea- 
sured. 

The  defendant  is  to  make  compensation 
for  all  the  natural  and  proximate  conse- 
quences of  his  wrong,  but  not  for  secondary 
or  remote  consequences.  There  are  cases  in 
which  this  principle  of  compensation  is  de- 
parted from :  as,  where  exemplary  damages 
are  awarded,  or  double  or  treble  damages  are 
aHowed  by  statute.  But,  in  general,  the  law 
seeks  to  give  compensation.  The  measure 
of  this  compensation  has  been  somewhat 
definitely  fixed,  as  to  many  cl.isses  of  cases, 
by  rules,  of  which  the  following  are  important 
and  well  estal)liHlied  : 

2.  Bills  of  Exchange.  The  rate  of 
dan)agoH  to  be  paid  to  the  holder  of  a  bill  of 
exchange  which  is  dishonored  has  been 
the  subject  of  distinct  statute  regulation 


n  nearly  all  the  states  of  the  Union.  \ 
following  is  an  abstract  of  these  regulations, 
and  is  believed  to  contain  all  in  force  at  the 
present  time : 

Alabama.  Damages  on  inland  bills  of  ex- 
change protested  for  non-payment  are  ten 
per  cent.,  and  on  foreign  bills  fifteen  per 
cent.,  on  the  sum  drawn  for.  Code  of  Ala. 
1852,  c.  3,  pt.  2,  I  1537. 

These  damages  are  in  lieu  of  all  charges 
except  costs  of  protests  incurred  previous  to 
and  at  the  time  of  giving  notice  of  non-pay- 
ment ;  but  the  holder  may  recover  legal  in- 
terest on  the  amount  of  the  bill  and  damages, 
from  the  time  at  which  payment  was  de- 
manded, and  costs  of  protest.    Id.  I  1538. 

The  same  damages  are  allowed  on  protest 
for  non-acceptance ;  but  interest  is  recover- 
able on  the  amount  of  the  bill  only.  Id.  § 
1541. 

3.  Arkansas.  It  is  provided  by  an  act 
passed  Feb.  28,  1838,  that  every  bill  of  ex- 
change, expressed  to  be  for  value  received, 
drawn  or  negotiated  within  the  state,  payable 
after  date,  to  order  or  bearer,  which  shall  be 
duly  presented  for  acceptance  or  payment,  and 
protested  lor  non-acceptance  or  non-payment, 
shall  be  subject  to  damages  in  the  foUowing 
cases.  First,  if  the  bill  have  been  drawn  on 
any  person  at  any  place  within  the  state,  at 
the  rate  of  two  per  cent,  on  the  principal  sum 
specified  in  the  bill ;  second,  if  the  bill  shall 
be  drawn  on  any  person,  and  payable  in 
Alabama,  Louisiana,  Mississippi,  Tennessee, 
Kentucky,  Ohio,  Indiana,  Illinois,  or  Mis- 
souri, or  at  any  point  on  the  Ohio  river,  at 
the  rate  of  four  per  cent,  on  the  principal 
sum  ;  third,  if  the  bill  shall  have  been  drawn 
on  any  person,  and  payable  at  any  other  place 
within  the  United  States,  at  the  rate  of  five 
per  cent,  on  the  principal  sum  ;  fourth,  if 
the  bill  shall  have  been  drawn  on  any  per- 
son, and  payable  at  any  port  or  place  beyond 
the  United  States,  at  the  rate  of  ten  per  cent, 
on  the  sum  specified  in  the  bill.  Digest  of 
Statutes,  1858,  209,  c.  25,  ^  8. 

If  any  bill  of  exchange,  expressed  to  be  for 
value  received,  and  made  payable  to  order  or 
bearer,  shall  be  drawn  on  any  person  at  any 
place  within  the  state,  and  accepted  and  pro- 
tested for  non-payment,  there  shall  be  allowed 
and  paid  to  the  holder,  by  the  acceptor, 
damages  in  the  following  cases.  First,  if 
the  bill  be  drawn  by  any  person  at  an^^  place 
within  the  state,  at  the  rate  of  two  per  cent, 
on  the  principal  sum  ;  second,  if  the  bill  be 
drawn  at  any  place  without  the  state,  but 
within  the  United  States,  at  the  rate  of  six 
per  cent,  on  the  sum  therein  specified;  third, 
if  the  bill  be  drawn  on  any  person  at  any 
place  without  the  United  States,  at  the  rate 
of  ten  per  cent,  on  the  sum  therein  speci- 
fied.   Id. J  9. 

In  addition  to  the  damages  allowed  in  the 
two  preceding  sections  to  the  holder  of  any 
bill  of  exchange  protested  for  non-payment  or 
non-acceptance,  he  shall  be  entitled  to  costs 
of  protest,  and  interest  at  the  rate  of  ten  per 
cent,  per  annum  on  the  amount  specified  in 


MEASURE  OF  DAMAGES 


1G7  MEASURE  OF  DAMAGES 


ihe  bill,  from  the  date  of  the  protest  until  the 
amount  of  the  bill  shall  be  paid.    Id.  'i  10. 

4.  California.  The  damages  allowed  on 
protest  for  non-payment  of  bills  drawn  or 
negotiated  within  the  state  are, — if  the  bill 
were  drawn  on  any  person  in  any  of  the 
United  States  east  of  the  Rocky  Mountains, 
fifteen  per  cent. ;  if  drawn  on  a  person  in 
any  foreign  country,  twenty  per  cent.  Laws 
of  Cal.  1850-53,  148,  §  12. 

These  damages  are  in  lieu  of  interest,  pro- 
test fees,  and  all  other  charges  up  to  the  time 
of  notice  of  non-payment.  But  the  holder  is 
entitled  to  recover  interest  on  the  amount  of 
the  principal  sum,  and  the  damages  from 
the  time  at  which  notice  of  protest  for  non- 
payment was  given,  and  payment  of  the 
principal  sum  demanded.    Id.  I  13. 

5.  Connecticut.  AVhen  drawn  on  another 
place  in  the  United  States.  When  drawn 
upon  persons  in  the  city  of  New  York,  two 
per  cent.  When  in  other  parts  of  the  state 
of  New  York,  or  the  New  England  states 
(other  than  this),  New  Jersey,  Pennsylvania, 
Delaware,  Maryland,  Virginia,  or  the  Dis- 
trict of  Columbia,  three  per  cent.  When  on 
persons  in  North  or  South  Carolina,  Georgia, 
or  Ohio,  five  per  cent.  On  other  states,  terri- 
tories, or  districts  in  the  United  States,  eight 
per  cent,  on  the  principal  sum  in  each  case, 
with  interest  on  the  amount  of  such  sum, 
with  the  damage  after  notice  and  demand. 
Stat.  tit.  71,  Notes  and  Bills,  413,  414.  When 
drawn  on  persons  residing  in  Connecticut,  no 
damages  are  allowed. 

When  the  bill  is  drawn  on  persons  out  of 
the  United  States,  twenty  per  cent,  is  said  to 
be  the  amount  which  ought  reasonably  to  be 
allowed.  Swift,  Ev.  336.  There  is  no  statu- 
tory provision  on  the  subject. 

6.  Delaware.  The  damages  on  bills  drawn 
on  any  person  beyond  seas  and  returned  un- 
paid with  legal  protest,  are,  as  to  all  con- 
cerned, twenty  per  cent,  on  the  contents  of 
the  bill.  Rev.  Code  of  Del.  1852, 183,  c.  63,  g  4. 

Florida.  Damages  on  foreign  protested 
bills  of  exchange  shall  be  at  the  rate  of  five 
per  cent.  Thompson,  Digest  of  Laws  of 
Florida,  1847,  349,  ^  6. 

8.  Georgia.  No  damages  are  allowed  on 
protested  bills  drawn  in  the  state  on  a  person 
in  the  state;  except  that  on  bank  bills  ten 
per  cent,  damages  are  allowed  for  refusal  to 
pay  in  specie.  On  bills  drawn  or  negotiated 
within  the  state  on  persons  out  of  the  state 
but  within  the  United  States,  five  per  cent, 
and  interest  is  allowed.  On  bills  drawn  on  a 
person  out  of  the  United  States,  ten  per  cent, 
damages,  and  postage,  protest,  and  necessary 
expenses;  also  the  premium,  if  any,  on  the 
bill ;  but  if  a  discount,  the  discount  must  be 
deducted.  Cobb,  Dig.  of  Laws  of  Georgia, 
1851,521. 

9.  Illinois.  On  foreign  bills  protested  for 
non-acceptance  or  non-payment,  legal  interest 
on  the  bill  from  the  time  it  ought  to  have 
been  paid,  with  ten  per  cent,  damages  in 
addition,  and  charges  of  protest.  On  bills 
drawn  payable  within  the  United  States  or 


their  territories,  but  out  of  the  state,  the  same 
rule  apj)lies,  except  that  the  damages  are  only 
five  per  cent.    Laws  of  111.  1858,  2'Jl. 

10.  Indiana.  No  damages  are  allowed  on 
a  bill  drawn  within  the  state  on  a  person 
within  the  state.  On  a  bill  drawn  for  value 
on  a  person  in  another  state,  territory,  or  dis- 
trict, five  per  cent,  damages  are  recoverable; 
and  if  on  a  person  out  of  the  United  States, 
ten  per  cent.  No  interest  or  charges  prior  to 
protest  are  allowed ;  but  interest  from  date 
of  protest  may  be  recovered.  And  no  damages 
are  recoverable  of  drawer  or  indorser  beyond 
costs  of  protest,  if  the  principal  sum  is  paid 
on  notice  of  protest  and  demand.  1  Rev. 
Stat,  of  Ind.  cc.  77,  379,  P^l  7,  8,  9,  10. 

11.  loica.  On  bills  drawn  on  a  person  out 
of  the  United  States,  or  in  California,  Oregon, 
Utah,  or  New  Mexico,  ten  per  cent,  damages, 
with  interest  from  date  of  protest,  are  allowed. 
If  drawn  on  a  person  in  Iowa,  Missouri, 
Illinois,  W^isconsin,  or  Minnesota,  three  per 
cent,  with  interest.  If  drawn  on  a  person  in 
Arkansas,  Louisiana,  Mississippi,  Tennessee, 
Kentucky,  Indiana,  Ohio,  Virginia,  the  Dis- 
trict of  Columbia,  Pennsylvania,  Maryland, 
New  Jersey,  New  York,  Massachusetts, 
Rhode  Island,  or  Connecticut,  five  per  cent, 
and  interest;  if  on  any  other  place  in  the 
United  States,  eight  per  cent,  and  interest. 
Rev.  Code  of  Iowa,  1851,  151,  ^  965. 

12.  Kentucky.  On  bills  drawn  on  a  per- 
son at  any  place  within  the  United  States,  no 
damages  are  allowed.  Bills  drawn  on  a  per- 
son out  of  the  United  States,  and  protested 
for  non-acceptance  or  non-payment,  bear  in- 
terest at  the  rate  of  ten  per  cent,  per  year 
from  the  date  of  protest  for  not  longer  than 
eighteen  months,  unless  payment  be  sooner 
demanded  from  the  party  to  be  charged. 
Such  interest  is  then  recoverable  up  to  the 
time  of  judgment;  and  the  judgment  bears 
legal  interest.  No  other  damages  are  allowed. 
Rev.  Stat,  of  Ky.  1852,  193,  c.  22, 1  10. 

13.  Louisiana.  On  protest  for  non-accept- 
ance or  for  non-payment  of  bills  drawn  on  for- 
eign countries,  ten  per  cent,  is  allowed  ;  on  bills 
drawn  in  other  states  of  the  United  States, 
five  per  cent.    Rev.  Stat,  of  La.  1856,  44,  ^  2. 

These  damages  are  in  lieu  of  interest  and 
all  other  charges  incurred  previous  to  time  of 
giving  notice  of  non-acceptance  or  non-pay- 
ment ;  but  the  principal  and  damages  bear 
interest  thereafter.    Id.  ^  3. 

If  the  bill  is  drawn  in  United  States  moneys, 
the  damages  are  to  be  ascertained  without 
any  reference  to  the  rate  of  exchange  existing 
between  the  state  and  the  place  on  which  the 
bill  was  drawn.    Id.  ^  4. 

14.  Maine.  Damages  are  allowed  as  fol- 
lows, in  addition  to  interest:  On  bills  for 
$100  or  more,  drawn,  accepted,  or  indorsed 
in  the  state,  at  a  place  seventy-five  miles  dis- 
tant from  the  place  where  drawn,  one  per 
cent.  ;  on  bills  for  any  sum  drawn,  accepted, 
or  indorsed  in  the  state,  if  payable  in  New 
Y'ork  or  in  any  state  north  of  it,  except  Maine, 
three  per  cent.:  if  payable  in  any  Atlantic 
state  south  of  New  York  and  north  of  Florida, 


MEASURE  OF  DAMAGES 


168 


MEASURE  OF  DAMAGES 


1 


six  per  cent, ;  if  payable  in  any  other  state, 
nine  per  cent.  Rev.  Stat,  of  Me.  1857,  519, 
ch,  82,  I  35. 

As  to  bills  drawn  payable  out  of  the  United 
States,  there  is  no  statutory  provision.  It  is 
the  usage  to  allow  the  holder  of  the  bill  the 
money  for  which  it  was  drawn,  reduced  to  the 
currency  of  the  state,  at  par,  and  also  the 
charges  of  protest,  with  American  interest, 
upon  those  sums  from  the  time  when  the  bill 
should  have  been  paid ;  and  the  further  sum 
of  one-tenth  of  the  money  for  which  the  bill 
was  drawn,  with  interest  upon  it  from  the 
time  payment  of  the  dishonored  bill  was  de- 
manded of  the  drawer.  But  nothing  has 
been  allowed  for  re-exchange,  whether  it  is 
below  or  above  par.  Per  Parsons,  Ch.  J.,  6 
Mass.  157,  161.    See  6  Mass.  162. 

15.  Maryland.  No  damages  are  allowed 
when  the  bill  is  drawn  in  the  state  on  another 
person  in  Maryland. 

When  it  is  drawn  on  any  person  in  any 
other  of  the  United  States,  eight  per  cent, 
damages  on  the  amount  of  the  bill  are  al- 
lowed, and  an  amount  to  purchase  another 
bill,  at  the  current  exchange,  and  interest  and 
losses  of  protest. 

If  the  \)\\\  be  drawn  on  a  foreign  country, 
fifteen  per  cent,  damages  are  allowed,  and 
the  expense  of  purchasing  a  new  bill,  as 
above,  besides  interest  and  costs  of  protest. 
1  Dorsey,  Laws  of  Md.  197,  ch.  38. 

16.  Massachusetts.  When  a  bill  drawn  or 
indorsed  within  the  state,  and  payable  with- 
out the  limits  of  the  United  States  (except- 
ing places  in  Africa  beyond  the  Cape  of  Good 
Hope,  and  places  in  Asia  and  the  islands 
thereof),  is  protested  for  non-acceptance  or 
non-payment,  the  party  liable  on  such  bill 
shall  pay  the  same  at  the  current  rate  of  ex- 
change at  the  time  of  the  demand,  and  five 
per  cent,  damages,  with  interest,  from  date 
of  protest,  in  full  of  all  damages,  charges, 
and  expenses.    Gen.  Stat,  of  Mass.  1860,  293, 

When  the  bill  is  payable  at  a  place  in 
Africa  beyond  the  Cape  of  Good  Hope,  or  at 
any  place  in  Asia  or  the  islands  thereof,  the 
party  liable  shall  pay  the  same  at  the  par 
value,  with  twenty  per  cent.,  in  full  of  all 
damages,  interest,  and  charges.    Id.  ^  12. 

When  the  bill  is  drawn  payable  without  the 
state,  but  within  the  United  States,  damages 
are  as  follows:  if  payable  in  Maine,  New 
Hampshire,  Vermont,  Rhode  Island,  Connec- 
ticut, or  New  York,  two  per  cent. ;  if  in  New 
Jersey,  Pennsylvania,  Maryland,  or  Dela- 
ware, three  per  cent. ;  if  in  Virginia,  North 
Carolina,  South  Carolina,  Georgia,  or  the  Dis- 
trict of  Columbia,  four  per  cent. ;  if  in  any 
other  of  the  states  or  territories  of  the  United 
States,  five  per  cent.    Id.  I  13. 

When  the  bill  is  paya})le  within  the  state, 
if  it  is  for  not  less  than  $100,  and  is  payable 
at  a  place  not  less  than  seventy-five  miles  dis- 
tant from  the  place  wlnn-e  it  is  drawn  or  in- 
dorsed, two  per  cent,  damages  are  payable. 
Id.  <J  14. 

til,  Michnan.    When  a  bill  is  drawn  in 


the  state  on  a  person  in  the  state,  no  damagesf 
are  allowed. 

When  drawn  or  indorsed  within  the  state, 
and  payable  out  of  it,  within  the  United 
States,  if  payable  within  the  states  of  Wiscon- 
sin, Illinois,  Indiana,  Pennsylvania,  Ohio,  or 
New  York,  three  per  cent,  interest  on  the  con- 
tents of  the  bill,  and  charges,  are  allowed  ;  if 
payable  within  the  states  of  Missouri,  Ken- 
tucky, Maine,  New  Hampshire,  Vermont, 
Massachusetts,  Rhode  Island,  Connecticut, 
New  Jersey,  Delaware,  Maryland,  Virginia, 
or  the  District  of  Columbia,  five  per  cent. ;  if 
payable  elsewhere  in  the  United  States,  out 
of  Michigan,  ten  per  cent.  1  Compiled  Laws 
of  Mich.  408,  ch.  31,  U  8,  9. 

IS.  Minnesota.  When  a  bill  payable  out 
of  the  United  States  is  protested  for  non-ac- 
ceptance or  non-payment,  the  party  liable 
shall  pay  the  bill  at  the  current  rate  of  ex- 
change and  ten  per  cent,  damages,  with  inte- 
rest from  date  of  protest,  in  full  of  all  damages, 
charges,  and  expenses.  Stat,  of  Minnesota, 
1858,  375,  g  8.^ 

When  the  bill  is  drawn  on  a  person  out  of 
Minnesota,  but  within  the  United  States,  the 
party  shall  pay  the  bill,  with  interest,  and  five 
per  cent,  damages,  together  with  costs  and 
charges  of  protest.    Id.  I  9. 

19.  Mississippi.  Bills  drawn  on  a  person 
out  of  the  state,  but  within  the  United  States, 
draw  five  per  cent,  damages,  and  interest  on 
the  principal ;  bills  payable  out  of  the  United 
States,  ten  per  cent.,  besides  interest.  In  all 
cases  the  holder  is  entitled  to  all  costs  and 
charges.  No  damages  allowed  on  domestic 
bills.    Rev.  Code  of  Miss.  1857,  356,  sect.  ii. 

5,  6.  ^ 

Missouri.  On  bills  drawn  on  a  person 
within  the  state,  the  damages  are  four  per 
cent. ;  when  on  a  person  in  another  state  or 
territory  of  the  United  States,  ten  per  cent.; 
when  on  a  person  out  of  the  United  States, 
twentv  per  cent.  Rev.  Stat,  of  Mo.  1855, 
294,  (I  7,  8. 

20.  New  York.  Upon  bills  drawn  or  ne- 
gotiated within  the  state  upon  any  person 
at  any  place  within  the  six  states  east  of 
New  York,  or  in  New  Jersey,  Pennsylvania, 
Ohio,  Delaware,  Maryland,  Virginia,  or  the 
District  of  Columbia,  the  damages  are  three 
per  cent.  If  drawn  upon  a  person  at  a  place 
within  North  or  South  Carolina,  Georgia, 
Kentucky,  or  Tennessee,  five  per  cent.  If 
upon  any  person  in  any  other  state  or  terri- 
tory of  the  United  States,  or  at  any  other  place 
on,  or  adjacent  to,  this  continent,  and  north  of 
the  equator,  or  in  any  British  or  foreign  pos- 
sessions in  the  West  Indies,  or  elsewhere  in  the 
western  Atlantic  ocean,  or  in  Europe,  ten  per 
cent.  These  damages  are  in  lieu  of  interest, 
charges  of  protest,  and  all  other  charges  in- 
curred previous  to,  and  at  the  time  of,  giving 
notice  of  non-acceptance  or  non-payment.  But 
the  holder  is  entitled  to  interest  upon  the  ag- 
gregate amount  of  the  principal  sum  and  dam- 
ages from  time  of  notice  of  the  protest.  If  the 
contents  of  the  bill  are  expressed  in  the  money 
of  the  United  States,  the  amount  due  and  the 


MEASURE  OF  DAMAGES 


1G9 


MEASURE  OF  DAMAGES 


damages  for  non-payment  are  to  be  ascer- 
tained and  determined  without  reference  to 
the  rate  of  exchange  existing  between  New 
York  and  the  place  on  which  the  bill  is 
drawn.  But  if  in  the  currency  of  any  for- 
eign country,  then  the  amount  due,  exclusive 
of  the  damages,  is  to  be  ascertained  by  the 
rate  of  exchange,  or  the  value  of  such  foreign 
currency,  at  the  time  of  the  demand  of  pay- 
ment. 1  Rev.  Stat,  of  N.  Y.  1st  ed.  770,  ^ 
18 ;  3  id.  5th  ed.  1859,  70,  18-22. 

These  damages  are  only  recoverable  by  a 
holder  who  has  purchased  the  bill  or  some 
interest  therein  for  a  valuable  consideration. 
11.  71,  I  23. 

21.  North  Carolina.  On  bills  drawn  on 
a  person  in  any  other  state  or  territory  of  the 
United  States,  three  per  cent,  damages  are 
allowed ;  if  drawn  on  any  other  place  in 
North  America,  except  the  northwest  coast, 
or  on  any  of  the  West  India  or  Bahama 
Islands,  ten  per  cent. ;  if  on  tlie  island  of 
Madeira,  the  Canary  Islands,  the  Azores, 
the  Cape  Verd  Islands,  or  in  any  other  state 
or  place  in  Europe,  or  in  South  America, 
fifteen  per  cent. ;  if  on  any  other  part  of  the 
world,  twenty  per  cent.  In  all  cases,  interest 
is  recoverable  from  maturity  of  the  bill.  Rev. 
Code  of  N.  C.  1855,  111,  ^  8. 

Ohio.  By  a  late  statute  the  former 
laws  relative  to  damages  on  bills  of  exchange 
were  repealed  ;  and  it  is  provided  that  dam- 
ages on  protested  bills  of  exchange  drawn  by 
any  person  or  corporation  within  the  state 
shall  not  be  recoverable  on  any  contract  en- 
tered into  after  the  passage  of  this  act.  Laws 
of  Ohio,  1859,  153. 

23.  Oregon.  On  bills  drawn  payable  out 
of  the  United  States,  and  protested  for  non- 
acceptance  or  non-payment,  the  party  liable 
shall  pay  the  same  at  the  current  rate  of  ex- 
change at  the  time  of  demand,  and  damages 
at  the  rate  of  ten  per  cent,  with  interest  on 
the  contents  of  the  bill  from  the  date  of  pro- 
test ;  the  amount  of  contents,  damages,  and 
interest  to  be  in  full  of  all  damages,  charges, 
and  expenses. 

On  bills  drawn  within  the  United  States 
but  out  of  Oregon,  the  drawer  or  indorser 
shall  pay  the  bill  with  legal  interest  accord- 
ing to  its  tenor,  and  five  per  cent,  damages, 
"with  costs  and  charges  of  protest.  Stat,  of 
Oregon,  1855,  531,  c.  1,  U  8,  9. 

24.  Pejinsi/lvania.  The  following  damages 
are  allowed  on  protest  of  a  bill  of  exchange 
for  non-payment.  They  are  in  lieu  of  interest 
and  all  other  charges,  except  charges  of  pro- 
test, to  the  time  when  notice  of  protest  is 
given  and  demand  of  payment  made,  but 
are  in  addition  to  the  charges  of  protest  and 
interest  on  the  amount  of  principal,  damages, 
and  charges  from  the  time  of  such  notice  and 
demand.  If  the  bill  is  drawn  on  a  person  in 
any  place  in  the  United  States  or  the  terri- 
tories, except  California  (Upper  or  Lower), 
New  Mexico,  and  Oregon,  five  per  cent. ;  if 
upon  any  place  on  the  west  coast  of  South 
America,  fifteen  per  cent. ;  if  upon  any  place 
in  China,  India,  or  other  parts  of  Asia 


or  Africa,  or  islands  in  the  Pacific  ocean, 
twenty  per  cent. ;  if  upon  any  other  part  of 
the  world  (including  California,  New  Mexico, 
and  Oregon  above  excepted),  ten  per  cent. 

The  amount  of  the  bill  and  damages  are 
ascertained  by  the  rate  of  exchange  or  value 
of  the  currency  mentioned  in  the  bill  at  the 
time  of  notice  of  protest  and  demand  of  pay- 
ment.   Purdon,  Digest,  91,  2. 

Rhode  Island.  On  foreign  bills  drawn  or 
indorsed  within  the  state  and  return (;d  from 
any  place  without  the  United  States,  pro- 
tested for  non-acceptance  or  non-payment, 
the  damages  are  ten  per  cent,  and  charges  of 
protest,  and  the  bill  carries  interest  at  six 
per  cent,  from  date  of  protest.  The  same 
rule  applies  to  inland  bills,  except  that  the 
damages  are  five  per  cent.  only.  Rev.  Stat, 
of  R.  I.  278,  c.  122,  ^§  1,  3.  _ 

25.  South  Carolinu.  This  state  does  not 
appear  to  have  any  statute  fully  covering  the 
subject  of  damages  on  bills  of  exchange.  It 
is  decided  that  on  inland  bills  the  damages 
to  be  recovered  are  the  costs  of  protest  and 
interest.  On  foreign  bills  the  damages  are 
compounded  of  the  ordinary  expenses  in- 
curred, and  the  price  of  re-exchange,  which 
is  the  difference  between  the  value  of  money 
where  the  bill  is  drawn  and  the  value  where 
it  is  payable.  1  Const.  R.  (by  Mills)  108. 
The  distinction  between  an  inland  and  a 
foreign  bill  as  established  in  South  Carolina 
is  that  an  inland  bill  is  one  that  is  to  be  paid 
where  it  is  drawn ;  while  a  foreign  bill  is 
drawn  within  one  state  and  is  payable  in 
another.    1  Const.  R.  100,  107 ;  1  Hill,  44. 

By  section  six  of  the  act  of  1811  and  sub- 
sequent acts,  banks  in  South  Carolina  are 
authorized  to  discount  inland  bills  of  ex- 
change at  the  ordinary  rates  of  exchange 
among  merchants.  From  the  preamble  of 
this  act, — "to  facilitate  the  exchange  be- 
tween this  and  our  sister  states,^' — it  has 
been  held  to  apply  to  bills  drawn  in  South 
Carolina  and  payable  in  others  of  the  United 
States,  as  well  as  bills  drawn  and  payable 
within  the  state  of  South  Carolina.  What- 
ever sum  is  paid  as  discount  is  recoverable, 
if  it  does  not  exceed  the  current  rate  of  ex- 
change.   11  Richardson,  679. 

If  bills  such  as  these,  drawn  in  South  Caro- 
lina and  payable  in  another  state,  are  dis- 
honored, the  plaintifi"  is  entitled  to  recover, 
in  the  absence  of  other  proof,  ten  per  cent, 
damages.    11  Richardson,  684. 

26o  Tennessee.  On  bills  payable  out  of 
the  state  and  protested  for  non-payment, 
damages  in  addition  to  interest  and  charges 
of  protest  are  recoverable  as  follows :  if  the 
bill  was  drawn  on  a  person  in  any  of  the 
states  (except  Tennessee)  or  territories  of  the 
United  States,  three  per  cent. ;  if  on  any 
other  state  or  place  in  North  America,  bor- 
dering upon  the  Gulf  of  Mexico,  or  in  any  of 
the  West  India  Islands,  fifteen  per  cent. ;  if 
on  any  other  part  of  the  world,  twenty  per 
cent.    Code  of  Tenn.  400,  §  1963. 

UK,  Texas.  The  holder  of  any  protested 
draft  or  bill  of  exchange  drawn  within  the 


MEASURE  OF  DAMAGES 


170 


MEASURE  OF  DAMAGES 


state  and  payable  beyond  the  limits  of  it, 
may  recover  ten  per  cent,  as  damages,  with 
interest  and  costs  of  suit.  But  this  provision 
shall  not  be  construed  to  embrace  drafts 
drawn  by  persons  other  than  merchants  upon 
their  agents  or  factors.  Oldham  &  White, 
Dig.  of  Laws  of  Texas,  1859,  53,  art.  100. 

^8.  Virginia.  When  a  bill  of  exchange 
drawn  or  indorsed  within  this  state  is  pro- 
tested for  non-acceptance  or  non-payment, 
there  shall  be  paid  by  the  party  liable  for 
the  principal  of  such  bill,  in  addition  to  what 
else  he  is  liable  for,  damages  upon  the  prin- 
cipal at  the  rate  of  three  per  cent,  if  the  bill 
be  payable  out  of  Virginia  and  within  the 
United  States ;  at  the  rate  of  ten  per  cent,  if 
the  bill  be  payable  without  the  United  States. 
Code  of  Virginia,  1849,  582,  |  9. 

29.  Wisconsin.    On  bills  drawn  payable 
without  the  United  States,  damages  are  al- 
lowe  I  at  the  rate  of  five  per  cent.,  with 
interest  on  the  contents  of  the  bill  from  the 
date  of  protest.    These  damages  and  interest  j 
are  in  full  of  all  damages,  charges,  and  ex-  | 
penses.    On  bills  drawn  payable  out  of  the  ; 
state  and  in  any  state  or  territory  of  the 
United  States  adjoining  the  state,  damages  , 
at  the  rate  of  five  per  cent,  are  allowed,  with  j 
interest  on  the  bill  according  to  its  tenor,  and 
costs  and  charges  of  protest.    On  bills  drawn 
payable  out  of  the  state,  but  within  some  j 
state  or  territory  of  the  United  States  not  J 
adjoining  the  state,  the  damages  are  ten  per  j 
cent.,  with  interest  and  charges  as  last  men-  \ 
tioned.    Rev.  Stat,  of  Wise.  1848,  409,  ||  , 
8-10. 

30.  Carriers.    Upon  a  total  failure  to 
deliver  goods,  the  carrier  is  liable  for  the 
value  of  the  goods  at  their  place  of  destina-  I 
tion,  with  interest,  deducting  the  freight.    12  \ 
Serg.  &  R.  Penn.  186;  8  Johns.  N.  Y.  213; 
10  id.  1;  14  id.  170;  15  id.  24;  14  111.  146;  i 
24  N.  H.  297;  1  Gal.  108;  10  La.  Ann.  412; 
5  Rich.  So.  C.  462;  9  id.  465;  17  Mass.  62.  i 
Upon  a  failure  to  take  the  goods  at  all  for  | 
transportation,  he  is  liable  for  the  difi'erence 
between  the  value  at  the  place  of  shipment 
and  at  the  place  of  destination,  less  his 
freight;  or,  if  another  conveyance  can  be 
found,  the  difi'erence  between  the  freight 
agreed  on  with  defendant,  and  the  sum  (if 
greater)  which  the  shipper  would  be  com- 
pelled to  pay  another  carrier.    10  Watts,  \ 
Penn.  418;  4  N.  Y.  340;  1  Abb.  Adm.  119.  ' 
Upon  a  delay  to  deliver  the  goods,  the  plaintiff"  | 
is  entitled  to  an  indemnity  for  his  loss  in-  \ 
curred  by  the  delay,  taking  into  account  any  i 
fall  in  the  market  occurring  between  the 
time  when  the  property  should  have  been  de- 
livered by  the  carrier  and  the  time  Mdien  it 
actually  was.    12  N.  Y.  509  ;  22  Barb.  278. 
But  see  19  Barb.  N.  Y.  36. 

31.  Collision.  The  general  principle  fol- 
lowed by  the  courts  of  admiralty  in  cases  of 
collision  j)etween  vessels  is  that  the  damages 
avvardtid  against  the  offending  vessel  nmst  be 
sufficient  to  restore  the  other  to  the  condition 
hIk;  was  in  at  the  time  of  the  collision,  if  resto- 
ration Ik  practicable.    Both  damages  to  vessel 


and  cargo  are  to  be  made  good.  But  hy- 
pothetical and  consequential  damages  are 
excluded.  The  loss  of  the  use  of  the  injured 
vessel  while  undergoing  repairs  is  proper  to 
be  included.  If  the  injured  vessel  is  a  total 
loss,  her  market-value  at  the  time  is  the 
measure  of  damages.  Consult  Abbott,  Adm. 
100;  Olc.  Adm.  188,  246,  388,  444,  505;  13 
How.  106 ;  17  id.  170 ;  2  Wall.  Jr.  C.  C.  52 ; 
6  McLean,  C.  C.  238. 
j  32.  Contracts.  Where  a  contract  pre- 
scribes a  price  to  be  paid,  the  compensation 
recoverable  for  a  part-performance  will  be 
measured  by  the  contract  price  if  practicable, 
and  not  by  the  actual  value  of  the  services  or 
goods,  etc.  furnished. 

Contracts  for  Land.  Where  a  vendor 
of  real  property  fails  to  convey  according  to 
his  contract,  a  distinction  is  taken,  in  many 
of  the  cases,  growing  out  of  the  motive  cf  the 
party  in  default.  If  he  acted  in  good  faith 
and  supposed  he  had  good  title  and  could 
convey,  the  purchaser's  damages  have  been 
limited  to  the  amount  of  his  advance,  if  any, 
interest,  and  expenses  of  examining  the  title. 
2  W.  Blackst.  1078  ;  10  Barnew.  &  C.  416 ; 
8  C.  B.  133 ;  2  Wend.  N.  Y.  399 ;  4  Den.  N. 
Y.  546 ;  6  Barb.  N.  Y.  646  ;  20  N.  Y.  140; 
2  Bibb,  Ky.  415  ;  1  Litt.  Ky.  358 ;  9  Md. 
250  ;  11  Penn.  St.  127.  But  in  case  of  a  wil- 
ful or  fraudulent  refusal  to  convey,  the  pur- 
chaser has  been  held  entitled  to  the  value  of 
the  land,  with  interest.    6  Barnew.  &  C.  31; 

1  Exch.  850  ;  6  Wheat.  109  ;  Hard.  Ky.  41 ; 

2  Bibb,  Ky.  40,  434 ;  9  Leigh,  Va.  111.  See 
21  Me.  484  ;  21  Vt.  77  ;  1  Iowa,  26 ;  9  Ala. 
N.  s.  252  ;  12  id.  820  ;  19  id.  184 ;  1  Gill  &  J. 
Md.  440;  11  Ired.  No.  C.  99;  14  B.  Monr. 
Ky.  364. 

When  the  purchaser  refuses  to  perform,  the 
measure  has  been  held,  in  England,  to  be  the 
difference  between  the  price  fixed  in  the  con» 
tract  and  the  value  of  the  land  at  the  time 
fixed  for  the  delivery  of  the  deed.  7  Mees.  & 
W.  Exch.  474 ;  17  Barb.  N-.  Y.  260.  But  the 
rule  does  not  appear  to  be  well  settled  in  this 
country.  See  4  Me.  258;  21  Wend.  N.  Y. 
457 ;  24  id.  304  ;  2  Den.  N.  Y.  610  ;  18  Vt.  27. 

33.  Eviction.  The  damages  recoverable 
for  an  eviction,  in  an  action  for  breach  of 
covenants  of  seisin  and  warranty  in  a  deed, 
are  the  consideration-money,  interest  thereon, 
and  the  costs,  if  any,  of  defending  the  evic« 
tion,  6  Watts  &  S. ;  in  Arkansas,  1  Ark.  323; 
Georgia,  17  Ga.  602 ;  Illinois,  2  111.  310 ;  In- 
diana, 2  Blackf.  Ind.  147 ;  Kentucky,  4  Dan. 
Ky.  253;  Mississippi,  31  Miss.  433:  Mis- 
souri, 1  Mo.  552;  3  id.  391;  19  id.  435; 
North  Carolina,  2  Dev.  No.  C.  30;  New 
Hampshire,  25  N.  II.  229  ;  30  id.  531 ;  New 
Jersey,  4  Ilalst.  N.  J.  139;  New  York,  4 
Johns.  N.  Y.  1 ;  13  id.  50 ;  13  Barb.  N.  Y, 
267;  Ohio,  3  Ohio,  211 ;  see  8  id.  49 ;  10  id, 
317 ;  rennsylmnia,  4  Dall.  441 ;  12  Penn.  St, 
372 ;  27  id.  288 ;  ^^oiith  Carolina,  1  McCord, 
585  ;  2  id.  413  ;  Tennessee,  2  Wheat.  64  ;  8 
Ilumphr.  Tcnn.  647;  Virginia,  2  Rand.  Va. 
132:  2  Leigh,  Va.  451;  11  id.  261;  while 
in  Connecticut,  14  Conn.  245 ;  Louisiana,  13 


MEASON-DUE 


171  MEDICAL  EVIDENCE 


La.  143  ;  Maine,  12  Me.  1  ;  27  id.  525  ;  Mas- 
mchusetfs,  3  Mass.  523  ;  4  id.  108 ;  2  Mete. 
Mass.  518;  9  id.  G3;  and  Vermont,  12  Vt. 
481,  it  is  the  value  of  the  land  at  the  time  of 
eviction,  top;ether  with  the  expenses  of  the 
suit,  etc.    See  2  Greenleaf,  Ev.  I  264  ;  Sedg- 

i  wick,  Dam.  165  ;  4  Kent,  Comm.  474. 

j  34.  Incumbrances.  On  a  breach  of  a 
covenant  in  a  deed  against  incumbrances, 
the  purchaser  is  entitled  to  recover  his  ex- 

'  pftnses  incurred  in  extinguishing  the  incum- 
biance.  22  Pick.  Mass.  490;  1  Du.  N.  Y. 
33 1 ;  7  Johns.  N.  Y.  358  ;  13  id.  105  ;  16  id. 
122  ;  34  Me.  422 ;  4  Ind.  130. 

Insurance.  In  cases  of  loss  of  goods 
which  have  been  insured  from  maritime 
dangers,  when  an  adjustment  is  made,  the 
damages  are  settled  by  valuing  the  property, 
not  according  to  prime  cost,  but  at  the  price 
at  which  it  may  be  sold  at  the  time  of  settling 
the  average.  Marshall,  Ins.  b.  1,  c.  14,  s.  2, 
p.  621.    See  Adjustment. 

35.  Sales.  "Where  the  seller  of  chattels 
fails  to  perform  his  agreement,  the  measure 
of  damages  is  the  difference  between  the  con- 
tract-price and  the  market-value  of  the  article 
at  the  time  and  place  fixed  for  delivery.  5 
N.  Y.  537 ;  12  id.  41 ;  3  Mich.  55  ;  6  McLean, 
C.  C.  102,  497 ;  4  Tex.  289  ;  12  111.  184.  The 
game  rule  applies  as  to  the  deficiency  where 
there  is  a  part-delivery  only.  16  Q.  B.  941. 
Where,  however,  the  purchaser  has  paid  the 

f)rice  in  advance,  some  of  the  cases,  particu- 
arly  in  England  and  New  York,  allow  the 
highest  market-price  up  to  the  time  of  the 
trial.  Where  the  purchaser  refuses  to  take 
and  pay  for  the  goods,  the  seller  may  sell  them 
fairly,  and  charge  the  buyer  with  the  differ- 
ence between  the  contract-price  and  the  best 
market-price  obtainable  within  a  reasonable 
time  after  the  refusal.  Where  the  goods  are 
delivered  and  received,  but  do  not  correspond 
in  quality  with  a  warranty  given,  the  vendee 
may  recover  the  difference  between  the  value 
of  the  goods  delivered  and  the  value  they 
would  have  had  if  they  had  corresponded 
with  the  contract. 

MEASON-DUE.  A  corruption  of  Mai- 
son  de  Dieu. 

MEDIATE  POWERS.  Those  incident 
to  primary  powers,  given  by  a  principal  to 
his  agent.  For  example:  the  general  au- 
thority given  to  collect,  receive,  and  pay  debts 
due  by  or  to  the  principal  is  a  primary  power. 
In  order  to  accomplish  this,  it  is  frequently 
required  to  settle  accounts,  adjust  disputed 
claims,  resist  those  which  are  unjust,  and 
answer  and  defend  suits :  these  subordinate 
owers  are  sometimes  called  mediate  powers, 
tory,  Ag.  I  58.  See  1  Campb.  43,  note ;  4 
id.  1G3  ;  6  Serg.  &  R.  Penn.  149. 

MEDIATION.  The  act  of  some  mutual 
friend  of  two  contending  parties,  who  brings 
them  to  agree,  compromise,  or  settle  their  dis- 
putes. Vattel,  Droit  des  Gens,  liv.  2,  c.  18, 
^  328. 

MEDIATOR.  One  who  interposes  be- 
tween two  contending  parties,  with  their 


consent,  for  the  purpose  of  assisting  them 
in  settling  their  differences.  Sometimes  this 
term  is  applied  to  an  officer  who  is  appointed 
by  a  sovereign  nation  to  promote  the  settle- 
ment of  disputes  between  two  other  nations. 
See  Minister. 

MEDICAL  EVIDENCE.  Testimony 
given  by  physicians  or  surgeons  in  their  pro- 
fessional capacity  as  experts,  or  derived  from 
the  statements  of  writers  of  medical  or  sur- 
gical works. 

This  kind  of  evidence  was  first  recognized  by 
Charles  V.  of  Germany,  and  incorporated  in  the 
"Caroline  Code,"  framed  at  Ratisbon  in  1532, 
wherein  it  was  ordained  that  the  opinion  of  medi- 
cal men — at  first  surgeons  only — should  be  received 
in  cases  of  death  by  violent  or  unnatural  means, 
when  suspicion  existed  of  a  criminal  agency.  The 
publication  of  this  code  encouraged  the  members 
of  the  medical  profession  to  renewed  activity,  tend- 
ing greatly  to  advance  their  sciences  and  the  cause 
of  justice  generally.  Many  books  soon  appeared 
on  the  subject  of  medical  jurisprudence,  and  the 
importance  of  medical  evidence  was  more  fully 
understood.    Elwell,  Malp.  &  Med.  Ev.  285. 

2.  The  evidence  of  the  medical  witness  is 
strictly  that  of  an  expert.  Elwell,  Malp.  & 
Med.  Ev.  275  ;  10  How.  Pract.  N.  Y.  289  ;  2 
Conn.  514;  1  Chandl.  Wise.  178;  2  Ohio, 
452  ;  27  N.  H.  157 ;  17  Wend.  N.  Y.  136 ;  4 
Den.  N.  Y.  311 ;  7  Cush.  Mass.  219  ;  1  Phil- 
lipps,  Ev.  780  ;  Smith,  Lead.  Cases. 

The  professional  witness  should  not  be 
permitted  to  make  up  an  opinion  to  be  given 
in  evidence  from  what  other  witnesses  say  of 
the  facts  in  the  case ;  because  under  such  cir- 
cumstances he  takes  the  place  of  the  jury  as 
to  the  credibility  of  the  witness,  and  in  that 
case  he  also  determines  what  part  of  the  tes- 
timony of  other  witnesses  properly  applies  to 
the  case, — a  duty  that  belongs  to  the  court.  In 
the  case  of  Rogers,  7  Mete.  Mass.  505,  C.  J. 
Shaw  presiding,  the  court  held :  "  If  the 
symptoms  and  indications  testified  to  by  other 
witnesses  are  proved,  and  if  the  jury  are  sa- 
tisfied of  the  truth  of  them,  whether  in  his 
[the  witness's]  opinion  the  party  was  insane, 
and  what  the  nature  and  character  of  that 
insanity;  and  what  state  did  they  indicate, 
and  what  he  would  expect  would  be  the  con- 
duct of  such  a  person  in  any  supposed  cir- 
cumstance." Under  this  ruling  the  medical 
witness  passes  upon  the  condition  of  the  per- 
son whose  condition  is  at  issue.  To  do  it 
correctly,  he  must  hear  all  the  evidence  that 
the  jury  hears  ;  he  must  judge  as  to  the  rele- 
vance of  the  evidence  of  others,  and  make  an 
application  of  the  facts  that  legally  and  pro- 
perly bear  upon  the  case  to  it,  and  reject  all 
others:  in  short,  he  is  judge  and  jury  in  the 
case.  Since  the  trial  of  Rogers,  a  different 
rule  has  been  adopted  by  the  courts  in  Massa- 
chusetts. In  the  case  of  the  United  States  vs. 
McGlue,  reported  in  1  Curt.  C.  C,  Mr.  Jus- 
tice Curtis  instructed  the  jury  that  medical 
experts  "were  not  allowed  to  give  opinions 
in  the  case.  It  is  not  the  province  of  the  ex- 
pert to  draw  inferences  of  fact  from  the  evi- 
dence, but  simply  to  disclose  his  opinion  on 
a  known  or  hypothetical  state  of  facts ;  and. 


MEDICAL  EVIDENCE 


172 


MEDICAL  JURISPRUDENCE 


therefore,  the  counsel  on  each  side  have  put 
to  the  physicians  such  states  of  fact  as  they 
deem  warranted  by  the  evidence,  and  have 
taken  their  opinions  thereon.  If  you  con- 
sider any  of  these  states  of  fact  put  to  the 
medical  witness  are  proved,  then  the  opinions 
thereon  are  admissible  to  be  weighed  by  you ; 
otherwise  their  opinions  are  not  applicable  to 
the  case."  In  the  McNaughten  Case,  10 
Clark  &  F.  H-ju.  L.  210,  the  twelve  judges 
held  in  the  same  way.  The  attention  of  the 
witness  being  called  to  a  definite  state  of 
facts  constituting  a  hypothetical  case,  his 
opinion  is  then  unembarrassed  by  any  colla- 
teral questions  or  considerations,  and  the 
jury,  under  the  instructions  of  the  court,  de- 
termines how  far  the  facts  sustain  the  hypo- 
thetical case,  and,  consequently,  how  far  the 
opinion  of  the  witness  applies  to  the  case  un- 
der investigation.  See  Elwell,  Malp.  &  Med. 
Ev.  311. 

3.  The  medical  witness  is  not  a  privileged 
witness.  A  difference  of  opinion  has  existed 
among  medico-legal  writers,  and  perhaps  still 
exists.  Fonblanque,  a  distinguished  English 
barrister,  holds  that  when  the  ends  of  justice 
absolutely  require  the  disclosure,  a  medical 
witness  is  not  only  bound  but  compellable 
to  give  evidence  on  all  matters  that  will  en- 
lighten the  case ;  and  in  the  important  case 
of  the  Duchess  of  Kingston,  Lord  Mansfield 
said,  In  a  court  of  justice  medical  men  are 
bound  to  divulge  secrets  when  required  to  do 
so.  If  a  medical  man  was  voluntarily  to  re- 
veal these  secrets,  to  be  sure  he  would  be 
guilty  of  a  breach  of  honor  and  of  great  in- 
discretion ;  but  to  give  that  information, 
which,  by  the  law  of  the  land,  he  is  bound  to 
do,  will  never  be  imputed  to  him  as  any  in- 
discretion whatever."  In  this  case  Sir  C. 
Hawkins,  who  had  attended  the  duchess  as 
medical  man,  was  compelled  to  disclose  what 
had  been  committed  to  him  in  confidence. 
While  this  is  the  common-law  rule,  the  states 
of  New  York,  Missouri,  Wisconsin,  Iowa, 
Indiana,  Michigan,  and  perhaps  some  others, 
have  enacted  statutory  provisions  relieving 
the  physician  from  the  obligation  of  the 
common-law  rule  to  reveal  professional  secrets. 
The  language  used  in  the  statutes  generally 
is,  "  No  person  duly  authorized  to  practise 
physic  or  surgery  shall  be  allowed  to  disclose 
any  information  which  he  may  have  acquired 
in  attending  a  patient  in  a  professional  cha- 
racter, and  which  information  was  necessary 
to  enable  him  to  prescribe  for  such  patient  as 
a  physician,  or  to  do  any  act  for  him  as  a 
surgeon."  Under  this  statute,  in  Now  York 
it  has  been  held  that  when  a  physician  was 
consulted  by  the  defendant  in  an  action  on 
the  case  for  seduction,  as  to  the  means  of  pro- 
ducing abortion,  he  cannot  claim  the  protec- 
tion of  the  statute,  not  being  privileged.  21 
Wend.  N.  Y.  79  ;  Elwell,  Malp.  &  Med.  Ev. 
320. 

4.  Medical  books  are  not  received  in  evi- 
dence. They  arc  sulyect  to  the  same  rule 
that  applies  to  scientific  and  other  profes- 
sional books.   Even  the  elementary  works  on 


law  are  not  admissible  in  evidence  as  to  wha 
the  law  is.  5  Carr.  &  P.  73 ;  2  Carr.  &  K 
270.  In  the  case  of  Commonwealth  vs.  Wi| 
son,  1  Gray,  338,  Shaw,  J.  C,  said,  "Factii 
or  opinions  on  the  subject  of  insanity,  as  oi 
any  other  subject,  cannot  be  laid  before  th 
jury  except  by  the  testimony  under  oath  o 
persons  skilled  in  such  matter.  Whethei 
stated  in  the  language  of  the  court  or  of  th 
counsel  in  a  former  case,  or  cited  from  work 
of  legal  or  medical  writers,  they  are  stil 
statements  of  facts,  and  must  be  proved  oi 
oath.  The  opinion  of  a  lawyer  on  such 
question  of  fact  is  entitled  to  no  more  weigh 
than  that  of  any  other  person  not  an  exper 
The  principles  governing  the  admissibility 
such  evidence  have  been  fully  considered  ' 
this  court  since  the  trial  of  Rogers  ;  and  tl* 
more  recent  English  authorities  are  agains 
the  admission  of  such  evidence."  6  Carr. 
P.  586;  Elwell,  Malp.  &  Med.  Ev.  332. 

MEDICAL  JURISPRUDENCE.  Tha 

science  which  applies  the  principles  and  prat 
tice  of  medicine  to  the  elucidation  and  settl 
ment  of  doubtful  questions  which  arise  i 
courts  of  laws. 

2.  These  questions  are  properly  embrace 
in  five  different  classes  :  "' 

The  JiJ^sf  includes  questions  arising  out: 
of  the  relations  of  sex :  as,  impotence  and ! 
sterility,  hermaphroditism,  rape,  pregnancy, 
legitimacy,  delivery.  ^ 

The  second,  injuries  inflicted  upon  the' 
living  organization  :  as,  infanticide,  wounds,  ■ 
poisons,  persons  found  dead. 

The  third,  those  arising  out  of  disqualify- 1 
ing  diseases :  as,  the  different  forms  of  mental . 
alienation.  ; 

The  fourth,  those  arising  out  of  deceptive  ■ 
practices :  as,  feigned  diseases. 

The  ffth  is  made  up  of  miscellaneous! 
questions:  as,  age,  identity,  presumption  of( 
seniorship,  life  assurance,  and  medical  evi-< 
dence. 

3.  Independent  of  works  on  several  of  the  ^ 
particular  subjects  above  mentioned,  the  fol- 
lowing are  those,  English  and  American, 
which  can  be  the  most  profitably  consulted: 
Male's  Medical  Jurisprudence,  1  vol. 
Smith,  Dr.  John  Gordon,  Principles  of  Fo- 
rensic Medicine,  1  vol. 

Paris  &  Fonblanque's  Medical  Jurisprudence, 
3  vols. 

Chitty's  Medical  Jurisprudence,  1  vol. 
Ryan's  Medical  Jurisprudence,  1  vol. 
Taylor's  Medical  Jurisprudence,  1  vol. 
Guy's  Principles  of  Forensic  Medicine,  1 
vol. 

Dean's  Principles  of  Medical  Jurisprudence, 

1  vol. 

Beck's  Elements  of  Medical  Jurisprudence, 

2  vols. 

Wharton  &  Stille's  Medical  Jurisprudence, 
1  vol. 

Ray's  Medical  Jurisprudence  of  Insanity,  1 
vol. 

Elwell's  Malpractice  and  Medical  Evidence, 
1  vol. 


I 


MEDICINE-CIIEST 


173 


MEMORANDUM 


The  French  writers  are  numerous  :  Briand, 
Biessy,  Esquirol,  Georget,  Falret,  Trebuchet, 
Marc,  and  others,  have  written  treatises  or 
published  papers  on  this  subject ;  the  learned 
Foder6  published  a  work  entitled  "  Les  Lois 
eclair^cs  par  les  Sciences  physiques,  ou  Traite 
de  M6decine  legale  et  d'llygiene  publique;" 
the  "Annale  d'llygiene  et  de  Medecine  16- 
gale"  is  one  of  the  most  valued  works  on 
this  subject.  Among  the  Germans  may  be 
found  Rose's  Manual  on  Medico-Legal  Dis- 
section, Metzger's  Principles  of  Legal  Medi- 
cine, and  others.  The  reader  is  referred  for 
a  list  of  authors  and  their  works  on  Medical 
Jurisprudence  to  Dupin,  Profession  d'Avocat, 
torn.  ii.  p.  343,  art.  1G17  to  1636  bis.  For  a 
history  of  the  rise  and  progress  of  Medical 
Jurisprudence,  see  Traill,  Med.  Jur.  13. 

MEDICINE-CHEST.  A  box  contain- 
ing an  assortment  of  medicines. 

Statutory  provisions  in  the  United  States 
require  all  vessels  above  a  certain  size  to 
keep  a  medicine-chest.  1  Story,  U.  S.  Laws, 
106  ;  2  id.  971. 

MEDIETATIS  LINGUiE  (Lat.  half- 
tongue).  A  term  denoting  that  a  jury  is  to 
be  composed  of  persons  one-half  of  whom 
speak  the  English  and  one-half  a  foreign 
language.    See  Jury. 

MELANCHOLIA.  In  Medical  Juris- 
prudence. A  name  given  by  the  ancients 
to  a  species  of  partial  intellectual  mania,  now 
more  generally  known  by  the  name  of  mono- 
mania. It  bore  this  name  because  it  was 
supposed  to  be  always  attended  by  dejection 
of  mind  and  gloomy  ideas.    See  Mania. 

MELIORATIONS.  In  Scotch  Law. 
Improvements  of  an  estate,  other  than  mere 
repairs;  betterments.    1  Bell,  Comm.  73. 

MELIUS  INQUIRENDUM  VEL 
INQUIRENDO.  In  Old  English  Prac- 
tice. A  writ  which  in  certain  cases  issued 
after  an  imperfect  inquisition  returned  on  a 
capias  utligaium  in  outlawry.  This  melius 
inquirendum  commanded  the  sheriff  to  sum- 
mon another  inquest  in  order  that  the  value, 
etc.  of  lands,  etc.  might  be  better  or  more 
correctly  ascertained. 

MEMBER.  A  limb  of  the  body  useful 
in  self-defence.  Membrum  est  pars  corporis 
habens  destinatum  operationem  in  corpora. 
Coke,  Litt.  126  a. 

An  individual  who  belongs  to  a  firm,  part- 
nership, company,  or  corporation.  See  Cor- 
poration ;  Partnership. 

One  who  belongs  to  a  legislative  body,  or 
other  branch  of  the  government :  as,  a  mem- 
ber of  the  house  of  representatives  ;  a  mem- 
ber of  the  court. 

MEMBER  OF  CONGRESS.  A  mem- 
ber of  the  senate  or  house  of  representatives 
of  the  United  States. 

MEMBERS.  In  English  Law.  Places 
■where  a  custom-house  has  been  kept  of  old 
time,  with  officers  or  deputies  in  attendance ; 
and  they  are  lawful  places  of  exportation  or 
importation.    1  Chitty,  Comm.  Law,  726. 


MEMBRANA  (Lat.).  In  Civil  and  Old 
English  Law.  Parchment;  a  skin  of  parch- 
ment. Vocab.  Jur.  Utr. ;  DuCango.  The 
English  rolls  were  composed  of  several  skins, 
sometimes  as  many  as  forty-seven.  Hale, 
Hist.  Comm.  Law,  17. 

MEMORANDUM  (Lat.  from  memorare, 
to  remember).  An  informal  instrument  re- 
cording some  fact  or  agreement:  so  called 
from  its  beginning,  when  it  was  made  in 
Latin.  It  is  sometimes  commenced  with  this 
word  though  written  in  English  :  as,  "Memo- 
randum, that  it  is  agreed;"  or  it  is  headed 
with  the  words,  Be  it  remembered  that,  etc. 
The  term  memorandum  is  also  applied  to  the 
cause  of  an  instrument. 

In  English  Practice.  The  commence- 
ment of  a  record  in  king's  bench,  now  written 
in  English,  "Be  it  remembered,"  and  which 
gives  name  to  the  whole  clause. 

It  is  only  used  in  proceedings  by  bill,  and  not  in 
proceedings  by  original,  and  was  introduced  to  call 
attention  to  what  was  considered  the  bye-busincsg 
of  the  court.  2  Tidd,  Pract.  775.  Memorandum 
is  applied,  also,  to  other  forms  and  documents  in 
English  practice :  e.g.  memorandum  in  error,  a 
document  alleging  error  in  fact  and  accompanied 
by  an  affidavit  of  such  matter  of  fact.  15  &  16 
Vict.  0.  76,  ^  158.  Also,  a  memoranrhnn  of  ap]}car- 
ance,  etc.,  in  the  general  sense  of  an  informal  in- 
strument, recording  some  fact  or  agreement. 

A  writing  required  by  the  Statute  of  Frauds. 
Vide    Note  or  memorandum." 

In  Insurance.  A  clause  in  a  policy  limit- 
ing the  liability  of  the  insurer. 

2.  Policies  of  insurance  on  risks  of  trans- 
portation by  water  generally  contain  excep- 
tions of  all  liability  from  loss  on  certain 
articles  other  than  total,  or  for  contribution? 
for  general  average ;  and  for  liability  for 
particular  average  on  certain  other  articles 
supposed  to  be  perishable  or  specially  liable 
to  damage,  under  specified  rates  on  each, 
varying  from  three  per  cent,  to  twenty,  and 
for  any  loss  whatever  under  three  or  five 
per  cent.  Some  seventy  or  eighty  articles 
are  subject  to  these  exceptions  of  particular 
average  in  the  divers  forms  of  policy  in 
use  in  different  places.  1  Phillips,  Ins.  I 
54,  n.  These  exceptions  were  formerly  intro- 
duced under  a  "memorandum,"  or  "  N.  B.,'' 
and  hence  have  been  called  "  memorandum 
articles,"  and  the  body  of  exceptions  the 
"memorandum."  The  list  of  articles  and 
rates  of  exceptions  vary  much  in  different 
places,  and  from  time  to  time  at  the  same 
place.    19  N.  Y.  272. 

3.  The  construction  of  these  exceptions 
has  been  a  pregnant  subject  in  jurisprudence. 
2  Phillips,  Ins.  c.  xviii. ;  Marshall,  Ins.  240 ; 

1  Stark.  436  ;  3  Campb.  429  ;  Park,  Ins.  177 ; 
4  Maule  &  S.  503 ;  5  id.  47 ;  1  Ball  &  B.  Ch. 
Ir.  358  ;  3  Barnew.  &  Ad.  20 ;  5  id.  225  ; 
4  Barnew.  &  C.  736 ;  7  id.  219 ;  8  Bingh. 
458  ;  16  Eng.  L.  &  Eq.  461 ;  1  Bingh.  x.  c. 
526 ;  2  id.  383 ;  3  id.  266 ;  3  Pick.  Mass. 
40 ;  3  Penn.  St.  1550  ;  4  Term,  783  ;  7  id. 
210 ;  5  Bos.  &  P.  213 ;  7  Johns.  N.  Y.  385 ; 

2  Johns.  Cas.  N.  Y.  246 ;  7  Cow.  N.  Y.  202; 


MEMORANDUM  CHECK  174 


MERCHANT 


5  Mart.  La.  n.  s.  289 ;  2  Samn.  C.  C.  306  :  3 
id.  221 ;  16  Me.  207;  31  id.  455  ;  1  Wheat. 
219  ;  6  Mass.  465  ;  15  East,  559  ;  9  Gill  &  J. 
Md.  337 ;  7  Cranch,  415  ;  8  id.  84 ;  1  Stor. 
C.  C.  463  ;  Stevens,  Av.  p.  214 ;  Benecke, 
Av.  by  Phill.  402  ;  3  Conn.  357  ;  19N.Y.272. 

MEMORANDUM  CHECK.    It  is  not 

unusual  auiong  merchants,  when  one  makes 
a  temporary  loan  to  another,  to  give  the 
lender  a  check  on  a  bank,  with  the  express 
or  implied  agreement  that  it  shall  be  re- 
deemed by  the  maker  himself,  and  that  it 
shall  not  be  presented  at  the  bank  for  pay- 
ment :  such  understanding  being  denoted  by 
the  word  memorandum  upon  it.  If  passed  to 
a  third  person,  it  wall  be  valid  in  his  hands 
like  any  other  check.  4  Du.  N.  Y.  122;  11 
Paige,  Ch.  N.  Y.  612. 

MEMORIAL.  A  petition  or  representa- 
tion made  by  one  or  more  individuals  to  a 
legislative  or  other  body.  When  such  in- 
strument is  addressed  to  a  court,  it  is  called 
a  petition. 

MEMORY.  Understanding;  a  capacity 
to  make  contracts,  a  wall,  or  to  commit  a 
crime,  so  far  as  intention  is  necessary. 

Memory  is  sometimes  employed  to  express  the 
capacity  of  the  understanding,  and  sometimes  its 
power:  when  we  speak  of  a  retentive  memory,  we 
use  it  in  the  former  sense ;  when  of  a  ready  memory, 
in  the  latter.    Shelford,  Lun.  Intr.  29,  30. 

The  reputation,  good  or  bad,  which  a  man 
leaves  at  his  death. 

This  memory,  when  good,  is  highly  prized  by 
the  relations  of  the  deceased;  and  it  is  therefore 
libellous  to  throw  a  shade  over  the  memory  of  the 
dead,  when  the  writing  has  a  tendency  to  create  a 
breach  of  the  peace,  by  inciting  the  friends  and 
relations  of  the  deceased  to  avenge  the  insult 
offered  to  the  family.  4  Term,  126;  5  Coke,  126; 
Hawkins,  PI.  Cr.  b.  1,  c.  73,  s.  1. 

MEMORY,  TIME  OF.  According  to 
the  English  common  law,  which  has  been 
altered  by  2  &  3  Will.  IV.  c.  71,  the  time  of 
memory  commenced  from  the  reign  of  Richard 
the  First,  a.  d.  1189.  2  Blackstone,  Comm. 
31. 

But  proof  of  a  regular  usage  for  twenty 
years,  not  explained  or  contradicted,  is  evi- 
dence upon  which  many  public  and  private 
rights  are  held,  and  sufficient  for  a  jury  in 
finding  the  existence  of  an  immemorial  cus- 
tom or  prescription.  2  Saund.  175  a,  d; 
Peake,  Ev.  336 ;  2  Price,  Exch.  450  ;  4  id. 
198. 

MENACE.  A  threat;  a  declaration  of 
an  intention  to  cause  evil  to  happen  to  an- 
other. 

When  menaces  to  do  an  injury  to  another 
have  been  made,  the  party  making  them  may, 
in  general,  be  held  to  bail  to  keep  the  peace ; 
and  when  followed  by  any  inconvenience  or 
loss,  the  injured  party  has  a  civil  action 
against  the  wrong-doer.  Comyns,  Dig.  Bat- 
ten/[D)\  Vincr,  Abr. ;  Bacon,  Abr.  ^.s.va?///; 
Coke,  Litt.  161  a,  162  b,  253  h;  2  Lutw. 
1428. 

MENIAL.    This  term  is  applied  to  ser- 


vants who  live  under  their  master's  roof. 
See  Stat.  2  Hen.  IV.  c.  21. 

MENS  A  (Lat.).  An  obsolete  term,  com- 
prehending all  goods  and  necessaries  for  live- 
lihoods. 

MENS  A  ET  THORO.  See  Separa- 
tion A  MeNSA  ET  ThORO. 

MERCANTILE  LAW.  That  branch 
of  law  which  detines  and  enforces  the  rights, 
duties,  and  liabilities  arising  out  of  mercan- 
tile transactions  and  relations.  As  to  the 
origin  of  this  branch  of  law,  see  Law  Mer- 
chant ;  and  for  its  various  principles,  consult 
the  articles  upon  the  various  classes  of  com- 
mercial property,  relations,  and  transactions. 

MERCATUM  (Lat.).  A  market.  Du- 
Cange.  A  contract  of  sale.  Id.  Supplies  for 
an  army  [commeatus).  Id.  See  Bracton,  56; 
Fleta,  1.  4,  c.  28,  U  13,  14. 

MERCEN-LAGE.  The  law  of  the  Mer- 
cians. One  of  the  three  principal  systems  of 
laws  which  prevailed  in  England  about  the 
beginning  of  the  eleventh  century.  It  was- 
observed  in  many  of  the  midland  counties, 
and  those  bordering  on  the  principality  of 
Wales.    1  Blackstone,  Comm.  65. 

MERCES  (Lat.).  In  Civil  Law.  Reward 
of  labor  in  money  or  other  things.  As  dis- 
tinguished from  pensis,  it  means  the  rent  of 
farms  {prcedia  rustici).    Calvinus,  Lex. 

MERCHANDISE  (Lat.  merx).  A  term 
including  all  those  things  which  merchants 
sell,  either  wholesale  or  retail :  as,  dry  goods, 
hardware,  groceries,  drugs,  etc.  It  is  usually 
applied  to  personal  chattels  only,  and  to 
those  which  are  not  required  for  food  or  im- 
mediate support,  but  such  as  remain  after 
having  been  used,  or  which  are  used  only  by 
a  slow  consumption.  See  Pardessus,  n.  8 ; 
Dig.  13.  3.  1;  19.  4.  1;  50.  16.  66;  8  Pet. 
277;  6  Wend.  N.  Y.  335. 

Mere  evidences  of  value,  as  bank-bills,  are 
not  merchandise.  "The  fact  that  a  thing  is 
sometimes  bought  and  sold  does  not  make  it 
merchandise."  Story,  J.,  2  Stor.  C.  C.  10, 
53,  54.  See  2  Mass.  467  ;  20  Pick.  Mass.  9 ; 
3  Mete.  Mass.  367  ;  2  Parsons,  Contr.  331, 
note  w. 

MERCHANT  (Lat.  mercator,  merx).  A 
man  who  traffics  or  carries  on  trade  with  fo- 
reign countries,  or  who  exports  and  imports 
goods  and  sells  them  by  wholesale.  AVebster, 
Diet.;  Lex  Mercatoria,  23.  These  are  known 
by  the  name  of  shipping-merchants.  See 
Comyns,  Dig.  Merchant  (A);  Dy.  279  h; 
Bacon,  Abr.  Merchant. 

One  whose  business  it  is  to  buy  and  sell 
merchandise :  this  applies  to  all  persons  who 
habitually  trade  in  merchandise.  1  Watts  & 
S.  Penn.  469 ;  2  Salk.  445. 

Merchants,  in  the  Statute  of  Limitations, 
means  not  merely  those  trading  beyond  sea, 
as  formerly  held,  1  Chanc.  Cas.  152  ;  1  Watts 
&  S.  Penn.  469;  but  whether  it  includes  com- 
mon retail  tradesmen,  qucere,  1  Mod.  238;  4 
Scott,  N.  R.  819  ;  2  Parsons,  Contr.  369,  370. 


MERCHANTMAN 


175 


MERGER 


Sec,  also,  5  Cranch,  15  ;  6  Pet.  151  ;  12  id.  300 ; 
6  Mas.  C.  C.  505. 

According  to  an  old  authority,  there  are 
four  species  of  merchants  :  namely,  merchant 
adventurers,  merchants  dormant,  merchant 
travellers,  and  merchant  residents.  2  Brownl. 
99,  See,  jjenerally,  9  Salk.  445  ;  Bacon,  Abr.; 
Comyns,  Dig. ;  1  Sharswood,  Blackst.  Comm. 
75,  260  ;  1  Pardessus,  Droit  Comm.  n.  78  ;  2 
Show.  326  ;  Bracton,  334. 

MERCHANTMAN.  A  ship  or  vessel 
employed  in  the  merchant-service. 

MERCY  (Law  Fr.  merci ;  Lat.  miseri- 
cord ia). 

In  Practice.  The  arbitrament  of  the 
king  or  judge  in  punishing  ojSencos  not  di- 
rectly censured  by  law.  2  Hen.  VI.  c.  2 ; 
Jacob,  Law  Diet.  So,  to  be  in  mercy,  signi- 
fies to  be  liable  to  punishment  at  the  discre- 
tion of  the  judge. 

In  Criminal  Law.  The  total  or  partial 
remission  of  a  punishment  to  which  a  convict 
is  subject.  When  the  whole  punishment  is 
remitted,  it  is  called  a  pardon  ;  when  only  a 
part  of  the  punishment  is  remitted,  it  is  fre- 
quently a  conditional  pardon  ;  or,  before  sen- 
tence, it  is  called  clemency  or  mercy.  See 
Rutherforth,  Inst.  224  ;  1  Kent,  Comm.  265  ; 
3  Story,  Const.  I  1488. 

As  to  the  construction  of  mercy"  in  the 
exception  to  the  Sunday  laws  in  favor  of 
deeds  of  necessity  and  mercy,  see  2  Parsons, 
Contr.  262,  notes. 

MERE  (Fr.).  Mother.  This  word  is  fre- 
quently used,  as,  in  ventre  sa  m^re,  which  sig- 
nifies a  child  unborn,  or  in  the  womb. 

MERGER.  The  absorption  of  a  thing  of 
lesser  importance  by  a  greater,  whereby  the 
lesser  ceases  to  exist  but  the  greater  is  not 
increased. 

In  Estates.  When  a  greater  estate  and 
less  coincide  and  meet  in  one  and  the  same 
person,  without  any  intermediate  estate,  the 
less  is  immediately  merged,  that  is,  sunk  or 
drowned,  in  the  latter.  For  example,  if  there 
be  a  tenant  for  years,  and  the  reversion  in  fee- 
simple  descends  to  or  is  purchased  by  him, 
the  term  of  years  is  merged  in  the  inherit- 
ance, and  no  longer  exists ;  but  they  must 
be  to  one  and  the  same  person,  at  one  and  the 
same  time,  in  one  and  the  same  right.  2 
Blackstone,  Comm.  177  ;  Latch,  153  ;  Poph. 
166 ;  6  Madd.  Ch.  119 ;  1  Johns.  Ch.  N.  Y. 
417  ;  3  id.  53  ;  3  Mass.  172. 

2.  The  estate  in  which  the  merger  takes 
place  is  not  enlarged  by  the  accession  of  the 
preceding  estate;  and  the  greater  or  only 
subsisting  estate  continues,  after  the  merger, 
precisely  of  the  same  quantity  and  extent  of 
ownership  as  it  was  before  the  accession  of 
the  estate  which  is  merged,  and  the  lesser 
estate  is  extinguished.  Preston,  Conv.  7  ; 
Washburn,  Real  Prop.  As  a  general  rule, 
equal  estates  will  not  merge  in  each  other. 

The  merger  is  produced  either  from  the 
meeting  of  an  estate  of  higher  degree  with 
an  estate  of  inferior  degree,  or  from  the 


meeting  of  the  particular  estate  and  the  im- 
mediate reversion  in  the  same  pers<m.  4 
Kent,  Comm.  98.  See  Washburn,  Real  Prop. 
Index;  3  Preston,  Conv. ;  15  Viner,  Abr.  361 ; 
10  Vt.  293  ;  8  Watts,  Ponn.  146. 

In  Criminal  Law.  When  a  man  commits 
a  great  crime  which  includes  a  lesser,  the  lat- 
ter is  merged  in  the  former. 

3.  Murder,  when  committed  by  blows,  ne- 
cessarily includes  an  assault  and  battery ;  a 
battery,  an  assault ;  a  burglary,  when  accom- 
panied with  a  felonious  taking  of  personal 
property,  a  larceny :  in  all  these  and  similar 
cases,  the  lesser  crime  is  merged  in  the 
greater. 

But  when  one  ofience  is  of  the  same  cha- 
racter with  the  other,  there  is  no  merger:  as, 
in  the  case  of  a  conspiracy  to  commit  a  mis- 
demeanor, and  the  subsequent  commission  of 
the  misdemeanor  in  pursuance  of  the  con- 
spiracy ;  the  two  crimes  being  of  equal  de- 
gree, there  can  be  no  legal  merger.  4  Wend. 
N.  Y.  265. 

Of  Rights.  Rights  are  said  to  be  merged 
when  the  same  person  who  is  bound  to  pay  is 
also  entitled  to  receive.  This  is  more  pro- 
perly called  a  confusion  of  rights,  or  extin- 
guishment. 

4.  When  there  is  a  confusion  of  rights, 
and  the  debtor  and  creditor  become  the  same 
person,  there  can  be  no  right  to  put  in  execu- 
tion ;  but  there  is  an  immediate  merger.  2 
Ves.  Ch.  264.  Example:  a  man  becomes  in- 
debted to  a  woman  in  a  sum  of  money,  and 
afterwards  marries  her;  there  is  immediately 
a  confusion  of  rights,  and  the  debt  is  merged 
or  extinguished. 

In  Torts.  Where  a  person  in  committing 
a  felony  also  commits  a  tort  against  a  private 
person,  in  this  case  the  wrong  is  sunk  in 
the  felony,  at  least  until  after  the  felon's  con- 
viction. 

5.  The  old  rule,  that  a  trespass  is  merged 
in  a  felony,  has  sometimes  been  supposed  to 
mean  that  there  is  no  redress  by  civil  action 
for  an  injury  which  amounts  to  a  felony.  But 
it  is  now  established  that  the  defendant  is 
liable  to  the  party  injured  either  after  his 
conviction.  Latch,  144 ;  Noy,  82 ;  W.  Jones, 
147  ;  Styles,  346  ;  1  Mod.  282  ;  1  Hale,  PI. 
Cr.  546,  or  acquittal.  12  East,  409  ;  1  Tayl. 
No.  C.  58  ;  2  Hayw.  No.  C.  108.  If  the  civil 
action  be  commenced  before,  the  plaintiff  will 
be  nonsuited.  Yelv.  90  a,  n.  See  Hammond, 
Nisi  P.  63  ;  Kel.  48  :  Cas.  temp.  Hardw.  350; 
Lofi't,  88  ;  2  Term,  750  ;  3  Me.  458.  Butler, 
J.,  says  this  doctrine  is  not  extended  beyond 
actions  of  trespass  or  tort.  4  Term,  333.  See, 
also,  1  H.  Blackst.  583,  588,  594 ;  15  Mass. 
78.  336 ;  1  Grav,  Mass.  83,  100. 

6.  The  Revised  Statutes  of  New  York,  pt. 
3,  c.  4, 1. 1,  s.  2,  direct  that  the  right  of  action 
of  any  person  injured  by  any  felony  shall 
not,  in  any  case,  be  merged  in  such  felony,  or 
be  in  any  manner  afi'ected  thereby.  In  Ken- 
tucky, Pr.  Dec.  203,  New  Hampshire,  6  N. 
H.  454,  and  Massachusetts,  1  Gray,  Mass.  83, 
100,  the  owner  of  stolen  goods  may  imme- 


MERITS 


176 


METHOD 


diately  pursue  his  civil  remedy.  See,  gene- 
rally, 1  Ala.  8 ;  2  id.  70 ;  15  Mass.  336 ;  1 
Gray,  Mass.  83,  100;  1  Coxe,  N.  J.  115;  4 
Ohio,  376  ;  4  N..H.  239  ;  1  Miles,  Penn.  312; 
6  Rand.  Va.  223  ;  1  Const.  So.  C.  231 ;  2  Root, 
Conn.  90. 

MERITS.  A  word  used  principally  in 
matters  of  defence. 

A  defence  upon  the  merits  is  one  that  rests 
upon  the  justice  of  the  cause,  and  not  upon 
technical  grounds  only  :  there  is,  therefore,  a 
difference  between  a  good  defence,  which  may 
be  technical  or  not,  and  a  defence  on  the 
merits.  5  Barnew.  &  Aid.  703  ;  1  Ashm.  Penn. 
4  ;  3  Johns.  N.  Y.  245,  449  ;  4  id.  486  ;  5  id. 
360,  536  ;  6  id.  131 ;  2  Cow.  N.  Y.  281 ;  7 
id.  514;  6  Wend.  N.  Y.  511. 

MERTON,  STATUTE  OF.  An  an- 
cient English  ordnance  or  statute,  20  Hen. 
III.  (1253),  which  took  its  name  from  the 
place  in  the  county  of  Surrey  where  parlia- 
ment sat  when  it  was  enacted.  2  Inst.  79  ; 
Barrington,  Stat.  41,  46;  Hale,  Hist.  Comm. 
Law,  9,  10,  18. 

MESCROYANT.  Used  in  our  ancient 
books.    An  unbeliever. 

MESE.  An  ancient  word  used  to  signify 
house,  probably  from  the  French  maison.  It 
is  said  that  by  this  word  the  buildings,  curti- 
lage, orchards,  and  gardens  will  pass.  Coke, 
Litt.  56. 

MESNE.  Intermediate  ;  the  middle  be- 
tween two  extremes ;  that  part  between  the 
commencement  and  the  end,  as  it  relates  to 
time. 

Hence  the  profits  which  a  man  receives  between 
disseisin  and  recovery  of  lands  are  called  mesne 
prnfits.  Process  which  is  issued  in  a  suit  between 
the  original  and  final  process  is  called  mesne  pro- 
cess. 

In  England,  the  word  mesne  also  applies  to  a 
dignity :  those  persons  who  hold  lordships  or 
manors  of  some  superior  who  is  called  lord  para- 
mount, and  grant  the  same  to  inferior  persons,  are 
called  mesne  lords. 

MESNE  LORD.  A  middle  or  interme- 
diate lord.  2  Sharswood,  Blackst.  Comm.  59  ; 
1  Stephen,  Comm.  168,  174.    See  Mesne. 

MESNE  PROCESS.  In  Practice.  All 

writs  necessary  to  a  suit  between  its  begin- 
ning and  end,  that  is,  between  primary  pro- 
cess or  summons  and  final  process,  or  execu- 
tion, whether  for  the  plaintiff,  against  the 
defendant,  or  for  either  against  any  party 
whose  presence  is  necessary  to  the  suit.  For 
example,  the  capias  on  mesne  process  or  ad 
respondendum  is  issued  after  a  writ  of  sum- 
mons, and  before  execution.  3  Sharswood, 
Blackst.  Comm.  279  ;  3  Stephen,  Comm.  564; 
1  Tidd,  Pract.  243;  Finch,  Law,  b.  4,  c.  43. 
Proceedings  are  now  usually  begun  with  a, 
capias,  so  that  what  was  formerly  mesne  iS 
now  primary. 

MESNE  PROFITS.  The  value  of  the 
preniiises,  recovered  in  ejectment,  during  the 
time  that  the  lessor  of  the  plaintiff  has  been 
illegally  kept  out  of  the  possession  of  his 
estate  by  the  defendant:  such  are  properly 


recovered  by  an  action  of  trespass,  quare  cla\ 
sum  /regit,  after  a  recovery  in  ejectment.  11 
Serg.  &  R.  Penn.  55 ;  Bacon,  Abr.  Ejectment 
(H);  3  Blackstone,  Comm.  205. 

2.  As  a  general  rule,  the  plaintiff  is  en- 
titled  to  recover  for  such  time  as  he  can  prove 
the  defendant  to  have  been  in  possession,  pro- 
vided he  does  not  go  back  beyond  six  years ; 
for  in  that  case  the  defendant  may  plead  the 
statute  of  limitations.  3  Yeates,  Penn.  13; 
Bouvier,  Nisi  P.  88. 

The  value  of  improvements  made  by  the 
defendant  may  be  set  off  against  a  claim  for 
mesne  profits;  but  profits  before  the  demise 
laid  should  be  first  deducted  frcm  the  value 
of  the  improvements.  2  Wash.  C.  C.  165. 
See,  generally,  Washburn,  Real  Prop. ;  Bacon, 
Abr.  Ejectment  (H) ;  Woodfall,  Landl.  &  T. 
ch.  14,  s.  3;  2  Sellon,  Pract.  140;  Fcn- 
blanque,  Eq.  Index ;  2  Phillipps,  Ev.  208 ; 
Adams,  Ej.  13;  Dane,  Abr.  Index;  Powell, 
Mortg.  Index;  Bouvier,  Inst.  Index. 

MESNE,  WRIT  OF.  The  name  of  an 
ancient  writ,  which  lies  when  the  lord  para- 
mount distrains  on  the  tenant  paravail :  the 
latter  shall  have  a  writ  of  mesne  against  the 
lord  who  is  mesne.  Fitzherbert,  Nat.  Brev. 
316. 

MESS  BRIEF.    In  Danish  Law.  A 

certificate  of  admeasurement  granted  by  com- 
petent authority  at  home-port  of  vessel.  Ja- 
cobsen,  Sea-Laws,  50. 

MESSENGER.  A  person  appointed  to 
perform  certain  duties,  generally  of  a  minis- 
terial character. 

The  officer  who  takes  possession  of  an  in- 
solvent or  bankrupt  estate  for  the  judge,  com- 
missioner, or  other  such  ofl&cer, 

MESSUAGE.  A  term  used  in  convey- 
ancing, and  nearly  synonymous  with  dwell- 
ing-house. A  grant  of  a  messuage  with  the 
appurtenances  will  not  only  pass  a  house, 
but  all  the  buildings  attached  or  belonging  to 
it,  as  also  its  curtilage,  garden,  and  orchard, 
together  with  the  close  on  which  the  house  is 
built.  Coke,  Litt.  5  6;  2  Saund.  400;  Ham- 
mond, Nisi  P.  189;  4  Cruise,  Dig.  321;  2 
Term,  502;  4  Blackf.  Ind.  331.  But  see  the 
cases  cited  in  9  Barnew.  &  C.  681.  This  term, 
it  is  said,  includes  a  church.  11  Coke,  26;  2 
Esp.  Cas.  528;  1  Salk.  256;  8  Barnew.  &  C. 
25.  And  see  3  Wils.  141 ;  2  W.  Blackst.  726; 
4  Mees.  &  W.  Exch.  567  ;  2  Bingh.  n.  c.  617 ; 
1  Saund.  6;  2  Washburn,  Real  Prop. 

METES  AND  BOUNDS.  The  bound- 
ary-lines of  land,  with  their  terminal  points 
and  angles.  Courses  and  distances  control, 
unless  there  is  matter  of  more  certain  de- 
scription, e.g.  natural  monuments.  42  Mo. 
209.  A  joint  tenant  cannot  convey  by  metes 
and  bounds.  1  Ililliard,  Real  Prop.  582.  Sec 
Boundary. 

METHOD.  The  mode  of  operating,  or  the 
means  of  attaining  an  object. 

It  has  been  questioned  whether  the  method 
of  making  a  thing  can  be  patented.  But  it 
has  been  considered  that  a  method  or  mode 


METRE 


177 


MICHIGAN 


may  be  the  subject  of  a  patent,  because  when 
the  object  of  two  patents  or  effects  to  be  pro- 
duced is  essentially  the  same,  they  may  both 
be  valid,  if  the  modes  of  attaining  the  desired 
effect  are  essentially  different.  Dav.  Pat.  Cas. 
290;  2  Barnew.  &  Aid.  350;  2  H.  Blackst. 
492;  8  Term,  lOG ;  4  Burr.  2397;  Perpigna, 
Miinuel  des  Inventeurs,  etc.,  c.  1.  sect.  5,  g  1, 
p.  22. 

METRE  (Greek).  A  measure.  See 
Measure. 

METUS  (Lat.).  A  reasonable  fear  of  an 
intolerable  evil,  as  of  loss  of  life  or  limb,  such 
as  may  fall  upon  a  brave  man  [viriim  con- 
stanteni).  1  Sharswood,  Blackst.  Comm.  131 ; 
Calvinus,  Lex.  And  this  kind  of  fear  alone 
will  invalidate  a  contract  as  entered  into 
through  duress.    Calvinus,  Lex. 

In  a  more  general  sense,  fear. 

MICHAELMAS  TERM.  In  English 
Law.  One  of  the  four  terms  of  the  courts: 
it  begins  on  the  2d  day  of  November,  and 
ends  on  the  25th  of  November.  It  was  for- 
merly a  movable  term.  Stat.  11  Geo.  IV.  and 
1  Will.  IV.  c.  70. 

MICHEL-GEMOT  (spelled,  also,  micel- 
gemote.  Sax.  great  meeting  or  assembly). 
One  of  the  names  of  the  general  council  im- 
memorially  held  in  England.  1  Sharswood, 
Blackst.  Comm.  147. 

One  of  the  great  councils  of  king  and  noble- 
men in  Saxon  times. 

These  great  councils  were  severally  called 
wittena-gemotes,  afterwards  micel  synods  and 
micel-gemofes.  Cowel,  edit.  1727  ;  Cunning- 
ham, Law  Diet.  Micel- Gemotes.  See  Michel- 
Synoth. 

MICHEL-SYNOTH  (Sax.  great  coun- 
cil). One  of  the  names  of  the  general  coun- 
cil immemorially  held  in  England.  1  Shars- 
wood, Blackst.  Comm.  147. 

The  Saxon  kings  usually  called  a  synod,  or  mixed 
council,  consisting  both  of  ecclesiastics  and  the 
nobility,  three  times  a  year,  which  was  not  properly 
called  a  parliament  till  Henry  III.'s  time.  Cowel, 
ed.  1727  J  Cunningham,  Law  Diet.,  Synod,  Jlicel- 
Gemotcs. 

MICHIGAN.  The  name  of  one  of  the 
new  states  of  the  United  States  of  America. 

It  was  admitted  into  the  Union  by  act  of  congress 
of  January  26,  1837.  5  U.  S.  Stat,  at  Large,  44. 
See  Act  of  Congr.  .June  15,  1836,  5  U.  S.  Stat,  at 
Large,  49. 

2.  The  first  constitution  of  the  state  was  adopted 
by  a  convention  held  at  Detroit,  in  May,  1835.  This 
was  superseded  by  the  one  at  present  in  force, 
which  was  adopted  in  1850. 

Every  person  above  the  age  of  twenty-one  years, 
who  has  resided  in  this  state  three  months,  and  in 
the  township  or  ward  in  which  he  offers  to  vote  ten 
days,  next  preceding  election,  and  who  is  either  a 
white  male  citizen,  or  a  white  male  inhabitant  who 
resided  in  the  state  June  24,  1835,  or  a  white  male 
inhabitant  who  resided  in  the  state  January  1, 
1850,  who  had  declared  his  intention  to  become  a 
citizen  of  the  United  States  pursuant  to  the  laws 
thereof  six  months  preceding  an  election,  or  who 
has  resided  in  this  state  two  years  and  six  months 
and  declared  his  intention  as  aforesaid,  or  who  is 
a  civilized  male  inhabitant  of  Indian  descent,  a 
Vol.  II,— 12 


native  of  the  United  States,  and  not  a  member  of 
any  tribe,  is  an  elector  and  entitled  to  vote. 

The  Legislative  Power. 

3.  The  Senate  consists  of  thirty-two  members, 
elected  by  the  people  in  each  district  for  the  term 
of  two  years.  Senators  must  be  citizens  of  iho 
United  States,  and  qualified  voters  of  the  district 
they  represent. 

The  Houve  of  Represcntativen  is  to  consist  of  not 
less  than  sixty-five  nor  more  than  one  hundred 
members,  elected  in  their  respective  districts  for 
the  term  of  two  years.  The  elections  take  place  on 
the  Tuesday  after  the  first  Monday  in  November, 
in  the  even  years.  Each  county  entitled  to  more 
than  one  representative  is  to  be  divided  by  the 
supervisors  into  districts,  each  of  which  is  to  elect 
one  representative.  A  representative  must  be  a 
citizen  of  the  United  States,  and  a  qualified  voter 
of  the  county  he  represents. 

The  members  of  both  houses  are  privileged  from 
arrest  on  civil  process  during  the  session  and  for 
fifteen  days  before  and  afterwards.  The  constitu- 
tion contains  the  usual  provisions  making  each 
house  judge  of  the  qualifications,  election,  and 
returns  of  each  of  its  members ;  providing  for 
organization  of  the  houses  and  continuance  of  the 
session ;  for  regulating  the  conduct  of  its  mem- 
bers; for  keeping  and  publishing  a  journal  of  pro- 
ceedings; for  open  sessions. 

The  Executive  Power. 

4.  The  Governor  is  elected  by  the  people  of  the 
state  for  the  term  of  two  years.  He  must  be  thirty 
years  old  at  least;  for  five  years  a  citizen  of  the 
United  States,  and  for  two  years  next  preceding 
the  election  a  citizen  of  the  state;  and  no  member 
of  congress,  nor  any  person  holding  office  under 
the  United  States,  may  be  governor.  He  is  com- 
mander-in-chief of  the  military  and  naval  forces, 
and  may  call  out  such  forces  to  execute  the  laws,  to 
suppress  insurrections,  and  to  repel  invasions;  ia 
to  transact  all  necessary  business  with  the  ofiRcers 
of  government,  and  may  require  information  ija 
writing,  from  the  officers  of  the  executive  depart- 
ment, upon  any  subject  relating  to  the  duties  of 
their  respective  offices;  must  take  care  that  the 
laws  be  faithfully  executed;  may  convene  the 
legislature  on  extraordinary  occasions,  and  at  an 
unusual  place  when  the  seat  of  government  be- 
comes dangerous  from  disease  or  a  common  entmy ; 
may  grant  reprieves,  commutations,  and  pardons 
after  convictions,  for  all  offences  except  treason  and 
cases  of  impeachment,  upon  such  conditions  and 
with  such  restrictions  and  limitations  as  he  may 
think  proper,  subject  to  regulations  provided  by 
law  relative  to  the  manner  of  applying  for  pnrdcns. 
Upon  conviction  f(^r  treason,  he  may  suspend  the 
execution  of  the  sentence  until  the  case  shall  be 
reported  to  the  legislature  at  its  next  session,  when 
the  legislature  shall  either  pardon,  or  commute  the 
sentence,  direct  the  execution  of  the  sentence,  or 
grant  a  further  reprieve.  He  must  communicate 
to  the  legislature  at  each  session  information  of 
each  case  of  reprieve,  commutation,  or  pardon 
granted,  and  the  reasons  therefor. 

5.  The  Lieutenant-Governor  is  elected  at  the 
same  time,  for  the  same  term,  and  must  possess  the 
same  qualifications,  as  the  governor.  He  is,  by 
virtue  of  his  office,  president  of  the  senate. 

In  case  of  the  impeachment  of  the  governor,  his 
removal  from  oflSce,  death,  inability,  resignation,  or 
absence  from  the  state,  the  powers  and  duties  of  the 
office  devolve  upon  the  lieutenant-governor  for  the 
residue  of  the  term,  or  until  the  disability  cea?es. 

During  a  vacancy  in  the  office  of  governor,  if 
the  lieutenant-govc-nor  die,  resign,  be  impeached, 
displaced,  be  incapable  of  performing  the  duties  of 
his  office,  or  absent  from  the  state,  the  president 


MICHIGAN 


178 


MILE 


pro  tempore  of  the  senate  is  to  act  as  governor  until 
the  vacancy  be  filled  or  the  disability  cease. 

The  Judicial  Power. 

6.  The  Supreme  Court  consists  of  one  chief  and 
three  associate  justices,  cbosen  by  the  electors  of 
the  state  for  the  term  of  eight  years.  One  of  the 
judges  goes  out  of  office  every  two  years.  Four 
terms  are  to  be  held  annually,  two  at  Lansing  and 
two  at  Detroit,  and  three  of  the  judges  constitute  a 
quorum.  It  has  a  general  supervisory  power  over 
inferior  courtis,  and  general  appellate  jurisdiction  of 
cases  brought  up  by  appeal,  by  certificate  of  judges 
of  lower  courts,  or  by  consent  of  parties  on  agreed 
statements  of  facts.  The  statute  provides  that  the 
supreme  court  shall  by  rules  of  practice  simplify 
the  practice  of  the  state.  The  changes  to  be  secured 
are  specified  as  the  following :  to  wit,  abolition  of 
the  distinction  between  law  and  equity ;  of  fictions 
and  unnecessary  proceedings;  shortening  and  sim- 
plification of  pleadings;  expediting  decisions;  regu- 
lation of  decisions;  remedying  abuses  and  imperfec- 
tions of  practice;  abolition  of  unnecessary  forms 
and  technicalities ;  non-abatement  of  suits  through 
misjoinder  or  non -joinder  of  parties,  so  far  as 
justice  will  allow;  providing  for  omitting  parties 
improperly  joined,  and  joining  those  improperly 
omitted.    Comp.  Laws,  1857,  988. 

T,  The  Circuit  Court  consists  of  eight  judges, 
elected,  one  from  each  of  the  districts  into  which 
the  state  is  divided,  for  the  term  of  six  years,  and 
until  a  successor  is  chosen.  This  is  the  court  of 
general  original  jurisdiction,  having  jurisdiction 
in  all  matters  civil  and  criminal  not  expressly  ex- 
cepted, and  appellate  jurisdiction  from  all  inferior 
courts  and  tribunals,  and  a  supervisory  control  of 
the  same.  It  has  also  power  to  issue  writs  of 
habeas  corpus,  mandamus,  injunction,  quo  war- 
ranto, certiorari,  and  other  writs  necessary  to  carry 
into  effect  its  orders,  judgments,  and  decrees,  and 
give  it  a  general  control  over  inferior  courts  and 
tribunals  within  the  respective  districts.  It  sits 
also  as  a  court  of  chancery,  having  powers  co- 
extensive with  the  powers  of  the  court  of  chancery 
in  England,  with  various  modifications,  however, 
both  constitutional  and  statutory.  Two  terms  at 
least  are  held  annually  in  each  county  organized  for 
judicial  purposes,  and  four  terms  in  counties  con- 
taining ten  thousand  inhabitants.  The  stated  terms 
are  also  terms  of  the  court  of  chancery. 

The  District  Court  of  the  Upper  Peninsula.  The 
counties  of  Mackinac,  Chippewa,  Delta,  Marquette, 
Schoolcraft,  Houghton,  Ontonagon  and  the  islands 
attached,  the  islands  of  Lake  Superior,  Huron,  and 
Michigan,  and  those  in  Green  Bay,  the  Straits  of 
Mackinac,  and  the  river  Ste.  Marie,  form  a  separate 
judicial  district  and  elect  a  district  judge.  This 
court  has  the  same  jurisdiction  as  the  circuit  court; 
and  in  case  of  the  disability  of  the  judge,  a  circuit 
judge  may  hold  the  term. 

8.  A  Prohate  Court  is  held  in  each  county  by  a 
judge  elected  by  the  people  of  the  county  for  the 
term  of  four  years  and  till  a  successor  is  chosen. 
It  may  take  probate  of  wills,  and  has  cognizance  of 
all  matters  appertaining  to  the  settlement  of  the 
estates  of  decedents  and  the  care  of  minors,  in- 
cluding the  appointment  and  superintendence  of 
guardians  of  minors,  etc. 

JuHticcH  of  the  Peace  are  elected  by  the  people  of 
each  township  for  four  years.  Not  more  than  four 
are  to  be  eleote  I  in  each  township,  and  they  are  to 
be  classified.  They  have  exclusive  civil  jurisdic- 
tion in  all  cases  where  the  amounts  involved  are 
leas  than  one  hundred  dollars,  and  concurrent  juris- 
diction over  all  sums  less  than  three  hundred  dol- 
lars. Thoy  have  a  criminal  jurisdiction  over  all 
cases  of  larceny  where  the  amount  taken  does  not 
exceed  twenty -five  dollars;  of  assault  and  battery, 
not  committed  riotously  nor  upon  a  public  ofiicer 


in  the  discharge  of  his  duty;  of  killing,  maiming, 
or  disfiguring  cattle,  where  the  damage  done  does 
not  exceed  twenty-five  dollars ;  and  of  other  minor 
oflFences. 

9.  A  Circuit  Court  Commissioner  is  elected  in 
each  county  for  two  years,  who  has  the  judicial 
power  of  a  judge  of  the  circuit  court  at  chambers. 
He  i.s  to  perform  the  duties  of  a  master  in  chancery, 
has  power  to  grant  injunctions,  etc.  He  must  be 
an  attorney  and  counsellor-at-law. 

Municipal  or  Police  Courts  exist  in  the  larger 
town  and  the  cities,  with  a  limited  jurisdiction. 

J u  risp  ru  den  ce. 
The  truth  may  be  given  in  evidence  to  the  jury 
in  libel  cases.  The  persons  and  houses  of  citizens 
are  to  be  free  from  unreasonable  searches  and 
seizure.  Right  of  jury  trial  must  be  demanded  by 
parties ;  otherwise  it  is  deemed  to  be  waived,  in 
civil  cases.  No  person  shall  be  imprisoned  for 
debt  arising  out  of,  or  founded  on,  a  contract,  ex- 
press or  implied,  except  in  cases  of  fraud  or  breach 
of  trust,  or  of  moneys  collected  by  public  officers 
or  in  any  professional  emploj-^ment.  No  person  is 
incompetent  as  a  witness  on  account  of  his  opinions 
in  religious  matters. 

MIDDLE  THREAD.    See  Ad  Medium 

FlLUM. 

MIDDLEMAN.  One  who  has  been  em- 
ployed as  an  agent  by  a  principal,  and  who 
has  employed  a  sub-agent  under  him  by  au- 
thority of  the  principal,  either  express  or  im- 
plied. He  is  not,  in  general,  liable  for  the 
wrongful  acts  of  the  sub-agent,  the  principal 
being  alone  responsible.  3Campb.  4;  6  Term, 
411;  14  East,  605. 

A  person  who  is  employed  both  by  the 
seller  and  purchaser  of  goods,  or  by  the  pur- 
chaser alone,  to  receive  them  into  his  posses- 
sion, for  the  purpose  of  doing  something  in 
or  about  them :  as,  if  goods  be  delivered  from 
a  ship  by  the  seller  to  a  wharfinger,  to  be  by 
him  forwarded  to  the  purchaser,  who  has  been 
appointed  by  the  latter  to  receive  them  ;  or 
if  goods  be  sent  to  a  packer,  for  and  by  orders  | 
of  the  vendee,  the  packer  is  to  be  considered  i 
as  a  middleman.  ,^ 

The  goods  in  both  these  cases  will  be  con-  ■ 
sidered  in  transitu,  provided  the  purchaser  ' 
has  not  used  the  wharfinger's  or  the  packer's 
warehouse  as  his  own,  and  have  an  ulterior 
place  of  delivery  in  view.  4  Esp.  82;  2  Bos. 
&P.  457;  3  tc?.  127,  469 ;  1  Campb.  282;  1 
Atk.  Ch.  245;  1  H.  Blackst.  364;  3  East,  93. 

MIDWIFE.  In  Medical  Jurispru- 
dence. A  woman  who  practises  midwifery; 
a  woman  who  pursues  the  business  of  an  ac- 
coucheme. 

A  midwife  is  required  to  perform  the  busi- 
ness she  undertakes  with  proper  skill;  and  if 
she  be  guilty  of  any  mala  praxis  she  is  liable 
to  an  action  or  an  indictment  for  the  misde^ 
meanor.  See Viner,  Abr. <cia??  ;  Corny ns. 
Dig.  Physician;  8  East,  348;  2  Wils.  359;  4 
Carr.  &  P.  398,  407  a;  2  Russell,  Crimes, 
288. 

MIESES.    In  Spanish  Law.  Grain 
crops. 

MILE.  A  length  of  a  thousand  paces,  or 
fioventeen  hundred  and  sixty  yards,  or  five 
thousand  two  hundred  and  eighty  feet.  It 


MILEAGE 


179 


MILL 


sontains  eight  furlongs,  every  furlong  being 
forty  poles,  and  each  pole  sixteen  feet  six 
inches.    2  Stark.  89. 

MILEAGE.  A  compensation  allowed  by 
law  to  officers  for  their  trouble  and  expenses 
in  travelling  on  public  business. 

In  computing  mileage,  the  distance  by  the 
road  usually  travelled  is  that  which  must  be 
allowed,  whether  in  fact  the  officer  travels  a 
more  or  less  distant  way  to  suit  his  own  con- 
venience.   IG  Me.  431. 

MILES.  In  Civil  Law.  A  soldier. 
[Vel  a  ttiilitia"  aut  a  multitudine,^'  aut  a 
numero,  mille  hominum."  L.  1,  §  1,  D.,  de 
testam.  milit.)    Vocab.  Jur.  Utr. 

In  Old  English  Law.  A  knight,  because 
military  service  was  part  of  the  feudal  tenure. 
Also,  a  tenant  by  military  service,  not  a  knight. 
1  Sharswood,  Blackst.  Comm.  404;  Selden, 
Tit.  Hon.  334. 

MILITARY  LAW.  A  system  of  regu- 
lations for  the  government  of  an  army.  1 
Kent,  Comm.  377,  n. 

That  branch  of  the  laws  which  respects 
military  discipline  and  the  government  of 
persons  employed  in  the  military  service.  De 
Hart,  Courts-Mart.  16. 

Military  law  is  to  be  distinguished  from  martial 
law.  Mnrtial  law  extends  to  all  persons;  military 
law  to  all  military  persons  only,  and  not  to  those 
in  a  civil  capacity.  Martial  law  supersedes  and 
suspends  the  civil  law,  but  military  law  is  super- 
added and  subordinate  to  the  civil  law.  See  2 
Kent,  Comm.  10;  34  Me.  126;  Martial  Law. 

2.  The  body  of  the  military  law  of  the 
United  States  is  contained  in  the  "act  esta- 
blishing rules  and  articles  for  the  government 
of  the  armies  of  the  United  States,"  approved 
April  30,  1806,  and  various  subsequent  acts, 
some  of  the  more  important  of  which  are 
those  of  May  29,  1830;  August  6,  1846;  July 
29,  1861;  August  3,  1861;  August  5,  1861; 
December 24, 1861 ;  February  13, 1862;  March 
13,  1862.  See,  also,  Act  of  February  28, 1795 ; 
5  Wheat.  1 ;  3  Serg.  &  R.  Penn.  156,  790,  the 
general  regulations,  and  the  orders  of  the 
president. 

The  act  of  1806  consists  of  three  sections, 
the  first  section  containing  one  hundred  and 
one  articles,  which  describe  very  minutely 
the  various  military  offences,  the  punish- 
ments which  may  be  inflicted,  the  manner  of 
summoning  and  the  organization  of  courts- 
martial.  These  articles  are  called  the  arti- 
cles of  war.  Their  provisions  extend  to  the 
militia  mustered  into  the  United  States  ser- 
vice, and  to  marines  when  serving  with  the 
army. 

The  military  law  of  England  is  contained 
in  the  Mutiny  Act,  which  has  been  passed  an- 
nually since  April  12, 1689,  and  the  additional 
articles  of  war  made  and  established  by  the 
sovereign. 

3.  In  addition,  there  are  in  both  countries 
various  usages  which  constitute  an  unwritten 
military  law,  which  applies  to  those  cases 
where  there  are  no  express  provisions.  12 
Wheat.  19 ;  Ben^t,  Mil.  Law,  3. 


I     The  sovereign,  in  England,  has  authority 
to  ordain,  by  articles  of  war,  with  regard  to 
j  crimes  not  specified  l)y  military  law,  every 
'  punishment  not  reaching  to  death  or  mutila- 
I  tion  ;  the  president  of  the  United  States  can- 
not ordain  any  penalty  for  any  military  crime 
not  expressly  declared  by  act  of  Congress, 
j     Consult  li(!net,  De  Hart,  Cross,  Samuels, 
Tytler,  on  Military  Law. 

MILITIA.  The  military  force  of  the 
nation,  consisting  of  citizens  called  forth  to 
execute  the  laws  of  the  Union,  suppress  in- 
surrection, and  repel  invasion. 

S.  The  constitution  of  the  United  States 
provides  on  this  subject  that  congress  shall 
have  power  to  provide  for  calling  forth  the 
militia  to  execute  the  laws  of  the  Union,  sup- 
i  press  insurrections,  and  repel  invasions ;  to 
!  provide  for  organizing,  arming,  and  disci- 
plining the  militia,  and  for  governing  such 
part  ol  them  as  may  be  employed  in  the  ser- 
vice of  the  United  States,  reserving  to  the 
states  respectively  the  appointment  of  the 
officers,  and  the  authority  of  training  the 
militia,  according  to  the  discipline  prescribed 
by  congress. 

In  accordance  with  these  provisions,  con- 
gress, in  1792,  act  of  May  8,  passed  an  act 
'  relating  to  the  militia,  which  has  remained, 
with  slight  modifications,  till  the  present  time. 
In  1814  an  act  was  passed  prescribing  the 
manner  of  holding  courts.  The  term  of  ser- 
vice was  lengthened  from  three  months  to 
nine  in  1862,  and  in  1863  a  law  was  passed 
which  has  changed  in  many  particulars  the 
old  law. 

The  acts  of  the  national  legislature  which 
regulate  the  militia  are  the  following,  name- 
ly :  Act  of  May  8,  1792,  1  Story,  U.  S.  Laws, 
252  ;  Act  of  Feb.  28,  1795,  1  id.  390  ;  Act  of 
March  2,  1803,  2  id.  888;  Act  of  April  10, 
1806,  2  id.  1005  ;  Act  of  April  20,  1816,  3 
id.  1573  ;  Act  of  May  12,  1820,  3  id.  1786  ; 
Act  of  March  2,  1821,  3  id.  1811. 

The  militia,  until  mustered  into  the  United 
States  service,  is  considered  as  a  state  force. 
3  Serg.  &  R.  Penn.  109;  5  Wheat.  1.  The 
president  of  the  United  States  is  to  judge 
when  the  exigency  has  arisen  which  requires 
the  militia  to  be  called  out.  12  Wheat.  19. 
See  8  Mass.  548.  See  1  Kent,  Comm.  262; 
Story,  Const.  U  1194-1210.  See  Military 
Law  ;  Martial  Law. 

MILL.  A  complicated  engine  or  machine 
for  grinding  and  reducing  to  fine  particles 
grain,  fruit,  or  other  substance,  or  for  per- 
forming other  operations  b}'  means  of  wheels 
and  a  circular  motion. 

The  house  or  building  that  contains  the 
machinery  for  grinding,  etc.    Webster,  Diet. 

Mills  are  so  very  different  and  various,  that  it  is 
not  easy  to  give  a  definition  of  the  term.  They  are 
used  for  the  purpose  of  grinding  and  pulverizing 
grain  and  other  matters,  to  extract  the  juices  of 
vegetables,  to  make  various  articles  of  manufac- 
ture. They  take  their  names  from  the  uses  to  which 
they  are  employed  ;  hence  we  have  paper-mills,  full- 
ing-mills, iron-mills,  oil-mills,  saw-mills,  fte.  In 
another  respect  their  kinds  are  various;  they  are 


MILL 


180 


MINERALS 


«ither  fixed  to  the  freehold  or  not.  Those  which 
Are  a  part  of  the  freehold  are  either  water-mills, 
wind-mills,  steam-mills,  etc. ;  those  which  are  not 
so  fixed  are  hand-miils,  and  are  merely  personal 
property.  Those  which  are  fixed,  and  make  a  part 
of  the  freehold,  are  buildings  with  machinery  cal- 
culated to  attain  the  object  proposed  in  their  erec- 
tion. 

2.  It  has  been  held  that  the  grant  of  a 
mill  and  its  appurtenances,  even  without  the 
land,  carries  the  whole  right  of  water  enjoyed 
by  the  grantor,  as  necessary  to  its  use,  and  as 
a  necessary  incident.  Croke  Jac.  121.  And 
a  devise  of  a  mill  carries  the  land  used  with 
it,  and  the  right  to  use  the  water.  1  Serg.  & 
R.  Penn.  1G9.  And  see  5  Serg.  &  R.  Penn, 
107 ;  10  id.  63  ;  2  Games,  Gas.  N.  Y.  87  ;  3 
N.  H.  190;  7  Mass.  6 ;  6  Me.  154,  436;  16 
id.  281. 

3.  A  mill  means  not  merely  the  building 
in  which  the  business  is  carried  on,  but  in- 
cludes the  site,  the  dam,  and  other  things 
annexed  to  the  freehold,  necessary  for  its 
beneficial  enjoyment.  3  Mass.  280.  See  6 
Me.  436. 

4.  Whether  manufacturing  machinery  will 
pass  under  the  grant  of  a  mill  must  depend 
mainly  on  the  circumstances  of  each  case.  1 
Brod.  &  B.  506.  In  England,  the  law  appears 
not  to  be  settled.  1  Bell,  Gomm,  754,  n.  4, 
5th  ed.  In  this  note  are  given  the  opinions 
of  Sir  Samuel  Romilly  and  Mr.  Leech  on  a 
question  whether  a  mortgage  of  a  piece  of 
land  on  which  a  mill  was  erected  would  ope- 
rate as  a  mortgage  of  the  machinery.  Sir 
Samuel  was  clearly  of  opinion  that  such  a 
mortgage  would  bind  the  machinery ;  and  Mr. 
Leech  AA^as  of  a  directly  opposite  opinion. 

5.  The  American  law  on  this  subject  ap- 
pears not  to  be  entirely  fixed.  1  Hill,  Abr. 
16  5  1  Bail.  So.  G.  540;  3  Kent,  Gomm.  440. 
See  Amos  &  F.  Fixt.  188  et  seq.;  1  Atk.  Gh. 
165;  1  Ves.  Gh.  348;  Sugden,  Vend.  30;  10 
Serg.  &  R.  Penn.  63;  17  id.  415;  2  Watts  & 
S.  Penn.  116,  390;  6  Me.  157;  6  Johns.  N. 
Y.5;  20  Wend.  N.  Y.  636;  1  II.  Blackst.  259, 
note;  10  Am.  Jur.  58;  1  Mo.  620;  3  Mas.  G. 
C.  464. 

MILL.    The  tenth  part  of  a  cent  in  value. 

MILLED  MONEY.  This  term  means 
merely  coined  money;  and  it  is  not  necessary 
that  it  should  be  marked  or  rolled  on  the 
edges.    Running's  case,  Leach,  Gr.  Gas.  708. 

MIL-REIS.    The  name  of  a  coin.  The 

mil-rois  of  Portugal  is  taken  as  money  of  ac- 
count, at  the  custom-house,  to  ])e  of  the  value 
of  one  hundred  and  twelve  cents.  The  mil- 
reis  of  Azores  is  deemed  of  the  value  of 
eighty-three  and  one-third  cents.  The  mil- 
reis  of  Miid(;ira  is  deemed  of  the  value  of 
one  hundred  cents.  Act  of  March  3,  1843, 
5  U.  S.  Stat,  at  Large,  625. 

MIND  AND  MEMORY.  A  testator 
must  Fiave  a  sovind  and  disposing  mind  and 
m(!rnory.  In  other  words,  lie  "ought  to  bo 
capable  of  making  his  will  with  an  under- 
standing of  the  nature  of  the  business  in 
"which  he  is  engaged,  a  recollection  of  the 


property  he  means  to  dispose  of,  of  the  per«^ 
sons  who  are  the  object  of  his  bounty,  antt 
the  manner  in  which  it  is  to  be  distributed 
between  them."  Washington,  J.,  3  Wash. 
G.  G.  585,  586;  4  id.  262;  1  Green,  Gh.  N. 
J.  82,  85;  2  id.  563,  604;  26  Wend.  N.  Y. 
255,  306,  311,  312;  8  Gonn.  265  ;  9  id.  105. 

MINE.    An  excavation  in  the  earth  for 
the  purpose  of  obtaining  minerals. 

2.  Mines  may  be  either  by  excavating  a 
portion  of  the  surface,  as  is  common  in  some 
classes  of  gold-mines,  or  almost  entirely  be- 
neath the  surface. 

Mines  of  gold,  silver,  and  the  precious 
metals  belong  to  the  sovereign,  1  Plowd.  310; 
3  Kent,  Gomm.  378,  n.;  but  are  held  by  him 
concurrently  with  the  ownership  of  the  soil, 
and  pass  by  a  grant  of  the  land  without  ex- 
ception or  reservation.  14  Gal.  375  ;  17  id. 
199  ;  2  Washburn,  Real  Prop.  626.  In  New 
York  and  Pennsylvania  the  state's  right  as 
sovereign  is  asserted.  See  1  Kent,  Gomm. 
378,  n. 

Mines  of  other  minerals  belong  to  the 
oAvnerof  the  soil,  and  pass  by  a  grant  thereof, 
unless  separated,  1  N.  Y.  564;  19  Pick. 
Mass.  314;  but  the  owner  may  convey  his 
mines  by  a  separate  and  distinct  grant  so  as 
to  create  one  freehold  in  the  soil  and  another 
in  the  mines.  1  Penn.  726;  7  Gush.  Mass. 
361  ;  8  id.  21 ;  5  Mees.  &  W.  Exch.  50. 

3.  In  case  of  a  separate  ownership,  the 
OAvner  of  the  mine  must  support  the  superin- 
cumbent soil,  12  Q.  B.  739 ;  5  Mees.  &  W\ 
Exch.  60 ;  12  Exch.  259  ;  and  ancient  build- 
ings or  other  erections.  2  Ilurlst.  &  N. 
Exch.  828. 

Opening  new  mines  by  a  tenant  is  waste,  ; 
unless  the  demise  includes  them,  Goke,  Litt,  ■ 
53  h;  2  Blackstone,  Gomm.  282;  1  Taunt.  ^ 
410 ;  Hob.  234 ;  but  if  fihe  mines  be  already  | 
open  it  is  not  waste  to  work  them  even  to  ex-  \ 
Luustion.   1  Taunt.  410;  19  Penn.  St.  324;  6  i 
Munf.  Va.  134;  1  Rand.  Va.  258;  10  Pick.  ' 
Mass.  460 ;  1  Gow.  N.  Y.  460.    See  Smith,  ' 
Landl.  &  Ten.  Morris  ed.  192, 193,  n.   A  mort^ 
gagee  has  been  allowed  for  large  sums  expend- 
ed in  working  a  mine  Avhich  he  had  a  right  to 
work,  39  Eng.  L.  &  Eq.  130 ;  but  in  another 
case,  expenses  incurred  in  opening  a  mine 
were  disallowed.    16  Sim.  Gh.  445. 

4.  In  Galifornia,  the  occupant  of  public 
lands,  who  holds  them  for  agricultural  pur- 
poses merely,  holds  them  subject  to  the  right 
of  any  person  to  dig  for  gold,  5  Gal.  36,  97; 
but  the  miner  must  take  them  as  he  finds 
them,  subject  to  prior  rights  of  the  same 
character.    5  Gal.  140,  308  ;  6  id.  148. 

An  injunction  lies  for  interference  with 
mines.  6  Ves.  Gh.  147.  See  17  Ves.  Gh.  281 ; 
18  id.  515  ;  19  id.  159  ;  1  Swanst.  Gh.  208. 

See  Bainbrldge,  Gollier,  on  Mines  ;  1  Kent, 
Gomm.;  Washburn,  Real  Prop.;  Washburn, 
Easements  ;  Tudor,  Lead.  Gas. 

MINERALS  (L.  Lat.  minera,  a  vein  of 
metal).  All  fossil  bodies  or  matters  dug 
out  of  mines  or  quarries,  whence  any  thing 
may  be  dug ;  such  as  beds  of  stone  which 


MINISTER 


181 


MINNESOTA 


may  be  quarried,  14  Mees.  &  W.  Exch.  850, 
in  construinfj;  55  Geo.  III.  c.  18;  Broom,  Leg. 
Max.  175*,  170-^ 

Any  natural  })ro(luction,  formed  by  the  ac- 
tion of  chemical  affinities,  and  organized 
when  becoming  solid  by  the  powers  (;f  crys- 
tallization. Webster,  Diet.  But  see  5  AVatts, 
Penn.  34;  1  Crabb,  Real  Prop.  95. 

MINISTER.  In  Governmental  Law. 
An  oiiicer  who  is  placed  near  the  sovercugii, 
and  is  invested  with  the  administration  of 
some  one  of  the  principal  branches  of  the 
government. 

Ministers  are  responsible  to  the  king  or 
other  supreme  magistrate  who  has  appointed 
them.    4  Conn.  134. 

In  Ecclesiastical  Law.  One  ordained 
by  some  church  to  preach  the  gospel. 

Ministers  are  authorized  in  the  United 
States,  generally,  to  solemnize  marriage,  and 
are  liable  to  fines  and  penalties  for  marrying 
minors  contrary  to  the  local  regulations.  As 
to  the  right  of  ministers  or  parsons,  see  3  Am. 
Jur.  2G8 ;  Sheppard,  Touchst.  Anthon  ed. 
564 ;  2  Mass.  500  ;  10  id.  97 ;  14  id.  333  ;  11 
Me.  487. 

In  International  Law,  An  officer  ap- 
pointed by  the  goveriiment  of  one  nation, 
with  the  consent  of  two  other  nations  who 
have  a  matter  in  dispute,  with  a  view  by  his 
interference  and  good  office  to  have  such 
matter  settled. 

A  name  given  to  public  functionaries  who 
represent  their  country  with  foreign  govern- 
ments, including  ambassadors,  envoys,  and 
residents. 

A  custom  of  recent  origin  has  introduced  a  new 
kind  of  ministers,  without  any  particular  deter- 
mination of  character :  these  are  simply  called 
iitiniitlers,  to  indicate  that  they  are  invested  with 
the  general  character  of  a  sovereign's  mandatories, 
without  any  particular  assignment  of  rank  or 
character. 

The  minister  represents  his  government  in  a 
vague  and  indeterminate  manner,  which  cannot  be 
equal  to  the  first  degree ;  and  he  possesses  all  the 
rights  essential  to  a  public  minister. 

There  are  also  minixters  2}fenipote)itiai-i/,  who,  as 
they  possess  full  powers,  are  of  much  greater  dis- 
tinction than  simple  ministers.  These,  also,  are 
without  any  particular  attribution  of  rank  and  cha- 
racter, but  by  custom  are  now  placed  immediately 
below  the  ambassador,  or  on  a  level  with  the  envoy 
extraordinary.  Vattel,  liv.  4,  c.  6,  ^  74  ;  1  Kent, 
Comm.  10th  ed.  48;  Merlin,  Repert. 

^  Formerly  no  distinction  was  made  in  the 
different  classes  of  public  ministers,  but  the 
modern  usage  of  Europe  introduced  some 
distinctions  in  this  respect,  which,  on  account 
of  a  want  of  precision,  became  the  source  of 
controversy.  To  obviate  these,  the  congress 
of  Vienna,  and  that  of  Aix-la-Chapelle,  put 
&n  end  to  these  disputes  by  classing  minis- 
ters as  follows: — 1.  Ambassadors,  and  papal 
legates  or  nuncios.  2.  Envoys,  ministers,  or 
others  accredited  to  sovereigns  (aupres  des 
souverains).  3.  Ministers  resident,  accredited 
t()  sovereigns.  4  Charges  d'Affaires,  accre- 
dited to  the  minister  of  foreign  affairs.  Recez 
du  Congrfes  de  Vienne.  du  19  Mars,  1815  ; 
Protocol  du  Congres  d'Aix-la-ChaDelle,  du  21 


Novembre,  1818 ;  Wheaton,  Int.  Law,  pt.  3, 
c.  1,  ^  0. 

The  United  States  sends  no  envoys  of  the 
rank  of  ambassadors. 

MINISTERIAL.  That  which  is  done 
under  the  authority  of  a  superior;  opposed 
to  judicial:  as,  the  sheriff  is  a  ministerial 
officer  bound  to  obey  the  judicial  commands 
of  the  court. 

When  an  officer  acts  in  both  a  judicial  and 
ministerial  capacity,  he  may  be  compelled  to 
perform  ministerial  acts  in  a  particular  way; 
but  when  he  acts  in  a  judicial  capacity,  he 
can  only  be  required  to  proceed  ;  the  manner 
of  doing  so  is  left  entirely  to  his  judgment. 
See  10  Me.  377 ;  Bacon,  Abr.  Justices  of  Hie 
Fence  (E) ;  1  Conn.  295  ;  3  id.  107  ;  9  id.  'z.lb ; 
12  id.  404;  Mandamus. 

MINISTERIAL  TRUSTS  (also  called 
instrumental  trusts).  Those  which  demand 
no  further  exercise  of  reason  or  understand- 
ing than  every  intelligent  agent  must  neces- 
sarily employ  :  as,  to  convey  an  estate.  They 
are  a  species  of  special  trusts,  distinguished 
from  discretionary  trusts,  which  necessarily 
require  much  exercise  of  the  understanding. 
2  Bouvier,  Inst,  n,  1396. 

MINNESOTA.  One  of  the  new  states 
of  tiie  United  States  of  America. 

2.  It  was  created  a  territory  b}'  act  of  congress, 
March  3,  1849,  and  admitted  into  the  Union  as  a 
state,  May  11,  1858,  under  a  constitution  framed 
and  adopted  by  a  convention  at  St.  Paul,  on  the 
29th  day  of  August,  1857,  pursuant  to  an  act  of 
congress  of  February  26,  1857,  and  submitted  to 
and  ratified  by  the  people  on  the  13th  of  October, 
1857. 

The  Bill  of  Jiv/hts  provides  that  there  shall  be 
neither  slavery  nor  involuntary  servitude,  otherwise 
than  for  the  punishment  of  crime ;  that  there  shall 
be  no  imprisonment  for  debt;  that  a  reasonable 
amount  of  property  shall  be  exenipt  from  execution ; 
that  all  future  lenses  of  agricultural  lands  for  a 
longer  period  than  twenty-one  j'ears,  reserving  any 
rent,  shall  be  void  ;  and  that  no  person  shidl  be 
rendered  incompetent  as  a  witness  in  consequence 
of  his  religious  opinions. 

3.  The  liight  of  tivfji  age  is  vested  in  all  male  per- 
sons over  twenty-one  years  of  age,  who  have  resided 
in  the  United  States  (me  year  and  in  the  state  four 
months  next  preceding  any  election,  and  who  are 
either  white  citizens  of  the  United  States,  white  per- 
sons of  foreign  birihwho  have  declared  their  inten- 
tion to  become  citizens,  or  persons  of  Indian  blot  d 
who  have  adopted  the  languiige  and  habits  of  civili- 
zation and  have  been  pronounced  by  anv  distr  ct 
court  of  the  state  capable  of  enjoying  the  rights 
of  citizensliip.  But  all  persons  convicted  of  any 
felony,  not  restored  to  civil  rights,  and  all  persons 
insane,  or  under  guaidianship,  are  excluded.  All 
elections  are  by  ballot.  No  arrest  by  civil  process 
is  allowed  on  any  day  of  election.  All  legal  voters 
are  eligible  by  the  people  to  any  office,  except  as 
hereinafter  specified. 

4.  Amendments  to  the  Constitution.  A  majority 
of  both  branches  of  the  legislature  may  submit 
amendments  to  the  constitution  to  the  people, 
which,  if  ratified  by  the  voters  present,  shall  be 
part  of  the  constitution.  A  convention  may  also 
be  called  for  the  purpose  of  amending  it. 

The  Legislative  Department. 
The  Senate  is  composed  of  a  number  of  senators 
not  exceeding  one  for  every  five  thousand  inhabit- 


MINNESOTA 


182 


MINT 


ants,  elected  for  the  term  of  two  years  Vty  the  peo- 
ple. A  senator  must  have  resided  one  vear  in  the 
state  and  six  months  next  preceding  tlie  election 
in  the  district  from  which  he  is  elected,  and  must 
be  a  qualified  elector.  One-half  the  senate  is  electeil 
each  year,  the  districts  numbered  with  odd  and 
even  numbers  electing  alternate  years. 

5.  The  House  of  liepreHeniativea  is  composed 
of  a  number  of  representatives  not  exceeding  one 
fur  every  two  thousand  inhabitants,  elected  an- 
nually by  the  people  for  the  term  of  one  year.  The 
qualifications  necessary  are  the  same  as  those  of 
the  senators.  # 

The  constitution  contains  the  usual  provisions 
for  the  organization  and  continuance  of  the  two 
houses,  regulating  the  conduct  and  judging  of  the 
qualifications  of  members,  recording  and  publish- 
ing proceedings,  securing  freedom  of  debate,  ex- 
empting members  fi'om  arrest  on  civil  process, 
etc. 

All  elections  by  the  legislature  are  to  be  made  viva 
voce.  The  legislature  cannot  authorize  a  lottery 
or  the  sale  of  lottery-tickets.  The  legislature  is  to 
provide  a  uniform  system  of  public  schools.  The 
proceeds  of  certain  lands  are  secured  as  a  permanent 
fund,  the  income  of  which  the  legislature  is  to  dis- 
tribute among  the  townships.  The  legislature  can- 
not create  a  corporation  by  special  act  for  any  but 
municipal  purposes.  It  may  pass  a  general  bank- 
ing law;  may  not  suspend  specie  payments;  must 
provide  that  all  banks  shall  hold  state  or  United 
States  stocks  as  security  for  their  notes.  It  may, 
by  vote  of  two-thirds  in  both  houses,  contract  a 
debt  for  extraordinary  expenses,  not  exceeding  two 
hundred  and  fifty  thousand  dollars.  A  tax  must 
be  levied  each  year  large  enough  to  pay  the  ex- 
penses of  that  year  and  cover  the  deficiency  of  the 
preceding  year  if  any  exists.  Provision  must  be 
made  at  the  time  of  creating  any  debt  for  the  pay- 
ment of  interest  and  its  extinction  in  ten  years. 

The  Executive  Power. 

6.  The  Governor  is  elected  by  the  people,  for  the 
term  of  two  years.  He  must  have  attained  the  age 
of  twenty-five,  be  a  citizen  of  the  United  States, 
and  have  resided  in  the  state  for  one  year  next 
preceding  his  election.  He  is  commander-in-chief 
of  the  army  and  navy;  informs  the  legislature  at 
each  session  of  the  condition  of  the  country;  may 
require  the  written  opinion  of  the  heads  of  the  de- 
partments on  subjects  relating  t;)  their  respective 
oflfices  ;  may  grant  reprieves  and  pardons,  except  in 
cases  of  impeachment ;  may,  with  the  consent  of 
the  senate,  appoint  a  state  librarian  and  notaries 
public  ;  and  may  appoint  commissioners  to  take 
acknowledgments  of  deeds.  He  is  invested  with 
the  veto  power,  may  call  extra  sessions  of  the  legis- 
lature, shall  see  that  the  laws  are  executed,  and 
may  fill  vacancies  that  may  occur  in  the  office  of 
secretary  of  state,  treasurer,  auditor,  attorney- 
general,  and  other  state  and  district  ofiices  here- 
after to  be  created  by  law,  until  the  next  annual 
election,  and  order  elections  to  fill  vacancies  in  the 
legislature. 

7.  The  Lientennnt-Governor  is  elected  at  the 
same  time,  for  the  same  term,  and  must  possess 
the  same  qualifications,  as  the  governor.  He  presides 
over  the  senate,  and  acts  as  governor  during  any 
vacancy  occurring  in  that  office.  A  president  pro 
tempore  of  the  senate  is  elected  at  the  close  of  each 
session  by  the  senate,  who  becomes  lieutenant- 
governor  in  case  of  vacancy  in  that  office. 

The  Judicial  Power. 
This  is  vested  in  a  supremo  court,  district  court, 
courts  of  probate,  and  justices  of  the  peace  ;  but  the 
legislature  may,  by  a  two-thirds  vote,  establish 
oth(!r  inferior  courts,  of  which  the  judges  must  be 
elected,  for  a  term  not  longer  than  seven  years,  by 


the  electors  of  the  district  for  which  the  courts  ar«] 
created. 

The  Supreme  Court  consists  of  one  chief  and' 
two  associate  justices,  elected  by  the  people  of  the 
state  at  large  for  the  term  of  seven  years.  The 
number  of  associate  justices  may  be  increased  to 
four  by  a  vote  of  two-thirds  of  both  houses  of  the 
legislature.  Its  original  jurisdiction  is  prescribed 
by  law,  and  it  has  appellate  jurisdiction  in  all  cases 
both  in  law  and  equity,  but  holds  no  jury  terms. 

The  District  Court  consists  of  one  judge  elected 
from  each  of  the  six  judicial  districts  into  which 
the  state  is  divided,  by  the  electors  thereof,  for 
the  term  of  seven  years.  Each  judge  holds  the 
court  in  his  own  district,  except  where  conve- 
nience or  the  public  interest  require,  when  the 
judges  may  exchange  services.  One  or  more  terms 
of  the  court  are  held  in  each  county  per  annum. 
It  has  original  jurisdiction  in  all  civil  cases  where 
the  amount  involved  exceeds  one  hundred  dollars, 
the  distinction  between  suits  at  law  and  in  equity 
being  abolished,  and  in  all  criminal  cases  where  the 
])cnalty  is  three  months'  imprisonment  or  more,  or 
where  a  fine  of  more  than  one  hundred  dollars  is  im- 
I)osed.  It  has  power,  also,  to  change  the  names  of 
people,  towns,  or  counties. 

A  Probate  Court  is  held  in  each  organized  county 
in  the  state,  by  a  judge  elected  by  the  people  of  the 
county  for  the  term  of  two  years.  The  judte  must 
be  a  resident  of  the  county  at  the  time  of  his  elec- 
tion, and  continue  to  he  during  his  term.  The 
court  has  jurisdiction  over  the  estates  of  decedents, 
and  over  persons  under  guardianship. 

Justices  of  the  Peace  are  elected,  two  for  each 
town  (subject  to  variation  by  laws),  by  the  people, 
for  the  term  of  two  years.  They  have  jurisdiction 
in  civil  cases  where  the  amount  involved  is  one 
hundred  dollars  or  less,  and  in  criminal  cases  where 
the  criminal  is  imprisoned  for  three  months  or  less, 
or  a  fine  not  exceeding  one  hundred  dollars.  They 
have  no  jurisdiction  in  any  case  involving  the  title 
to  real  estate. 

MINOR  (Lat.  less ;  younger).  A  minor; 
one  not  a  major,  i.e.  not  twenty-one.  Coke, 
2d  Inst.  291;  Coke,  Litt.  88,  128,  172  b;  6 
Coke,  67;  3  Bulstr.  143;  Bracton,  340  b; 
rieta,  1.  2,  c.  60,  ^  26. 

Of  less  consideration ;  lower.  Calvinus, 
Lex.  Major  and  minor  belong  rather  to  civil 
law.  The  common-law  terms  are  adult  and 
infant. 


MINORITY. 

minor:  infancy. 


The  state  or  condition  of 


The  lesser  number  of  votes  of  a  deliberative 
assembly  :  opposed  to  majority,  which  see. 

MINT.  The  place  designated  by  law 
where  m(mey  is  coined  by  authority  of  the 
government  of  the  United  States. 

The  mint  was  established  by  the  act  of 
April  2,  1792,  1  Story,  U.  S.  Laws,  227,  and 
located  at  Philadelphia,  where,  by  virtue  of 
sundry  acts  of  congress,  it  still  remains.  Act 
of  April  24,  1800,  1  Storv,  U.  S.  Laws,  770; 
Act  of  March  3,  1801,  1  id.  816  ;  Act  of  May 
19,  1828,  4  Sharswood,  cont.  of  Story,  U.  S. 
Laws,  2120. 

See,  also,  the  following  acts  of  congress 
relating  to  the  mint: — Act  of  January  18, 
1837,  4  Shfirswood,  cont.  of  Story,  U.  S.  Laws, 
2120  ;  Act  of  May  19,  1828,  4  id.  2120 ;  Act 
of  Mav  3,  1835;  Act  of  February  13,  1837; 
Actof^March  3,  1849  ;  Act  of  March  3,  1851, 
g  11.  See, also, Coin;  Foreign  Coin :  Money, 


MINUTE 


183 


MISCONTINUANCE 


MINUTE.  Measures.  In  divisions  of 
the  circle  or  angular  measures,  a  minute  is 
equal  to  sixty  seconds,  or  one-sixtieth  part  of 
a  dejj;ree. 

In  the  computation  of  time,  a  minute  is 
equal  to  sixty  seconds,  or  the  sixtieth  part  of 
an  hour.    See  Measure. 

In  Practice.  A  memorandum  of  what 
takes  place  in  court,  made  by  authority  of 
the  court.  From  these  minutes  the  record  is 
afterwards  made  up. 

TouUicr  says  they  are  so  called  because  the 
writin<;  in  which  they  were  originally  was  small; 
that  the  word  is  derived  from  the  Latin  miniitd 
{scriptitra),  in  opposition  to  copies  which  were 
delivered  to  the  parties,  and  which  were  always 
written  in  a  larger  hand.    8  Toullier,  n.  413. 

Minutes  are  not  considered  as  any  part  of 
the  record.  1  Ohio,  268.  See  23  Pick.  Mass. 
184. 

MINUTE-BOOK.  A  book  kept  by  the 
clerk  or  prothonotary  of  a  court,  in  which 
minutes  of  its  proceedings  are  entered. 

MINUTE  TITHES.  Small  tithes, 
usually  belonging  to  the  vicar:  e.g.  eggs, 
honey,  wax,  etc.  3  Burn,  Eccl.  Law.  G80 ;  6 
&  7  Will.  IV.  c.  71,  U  17,  18,  27. 

MIRROR  DES  JUSTICES.  The  Mir- 
ror of  Justices,  a  treatise  written  during  the 
reign  of  Edward  II.  Andrew  Horne  is  its 
reputed  author.  It  was  tirst  published  in 
1642,  and  in  1768  it  was  translated  into  Eng- 
lish by  William  Hughes.  Some  diversity  of 
opinion  seems  to  exist  as  to  its  merits.  Pref. 
to  9  &  10  Coke,  Rep.  As  to  the  history  of 
this  celebrated  book,  see  St.  Armand's  Hist. 
Essays  on  the  Legislative  Power  of  England, 
68,  59. 

MISADVENTURE.  An  accident  by 
which  an  injury  occurs  to  another. 

When  applied  to  homicide,  misadventure  is  the 
act  of  a  man  who,  in  the  performance  of  a  lawful 
act,  without  any  intention  to  do  harm,  and  after 
using  proper  precaution  to  prevent  danger,  unfor- 
tunately kills  another  person.  The  act  upon  which 
the  death  ensues  must  be  neither  malum  in  se  nor 
malum  prohibitum.  The  usual  examples  under  this 
head  are :  1,  when  the  death  ensues  from  innocent 
recreations;  2,  from  moderate  and  lawful  correc- 
tion in  foro  domentico ;  3,  from  acts  lawful  and 
indifferent  in  themselves,  done  with  proper  and 
ordinary  caution.  4  Blackstone,  Comm.  182 ;  1 
East,  PI.  Cr.  221.  See  Homicide;  Manslaugh- 
ter; Correction. 

MISBEHAVIOR.  Improper  or  un- 
lawful conduct.    See  2  Mart.  La.  n.  s.  683. 

2.  A  party  guilty  of  misbehavior,  as,  for 
example,  to  threaten  to  do  injury  to  another, 
may  be  bound  to  his  good  behavior,  and  thus 
restrained. 

Verdicts  are  not  unfrequently  set  aside  on 
the  ground  of  misbehavior  of  jurors :  as, 
when  the  jury  take  out  with  them  papers 
which  were  not  given  in  evidence,  to  the  preju- 
dice of  one  of  the  parties,  Ld.  Raym,  148 ; 
when  they  separate  before  they  have  agreed 
upon  their  verdict,  3  Day,  Conn.  237,  310; 
seeJuRY;  New  Trial;  when  they  cast  lots 
for  a  verdict,  2  Lev.  205 ;  or  give  their  ver- 


dict, because  they  have  agreed  to  give  it  for 
the  amount  ascertained,  by  each  juror  putting 
down  a  sum,  adding  the  whole  together,  and 
then  dividing  by  twelve,  the  number  of  jurors, 
and  giving  their  verdi(;t  for  the  quotient.  15 
Johns.  N.  Y.  87.    See  Bacon,  Abr.  Verdict[Yl). 

3.  A  verdict  will  be  set  aside  if  the  suc- 
cessful party  has  been  guilty  of  any  misbe- 
havior towards  the  jury:  as,  if  he  say  to  a 
juror,  "  I  hope  you  will  find  a  verdict  for  me," 
or,  "  The  matter  is  clearly  of  my  side."  1 
Ventr.  125  ;  2  Rolle,  Abr.  716,  pi.  17.  See 
Code,  166,  401  ;  Bacon,  Abr.  Verdict  (I). 

MISCARRIAGE.  In  Medical  Juris- 
prudence. The  expulsion  of  the  ovum  or 
embryo  from  the  uterus  within  the  first  six 
weeks  after  conception.  Between  that  time, 
and  before  the  expiration  of  the  sixth  month, 
when  the  child  may  possibly  live,  it  is  termed 
abortion.  When  the  delivery  takes  place 
soon  after  the  sixth  month,  it  is  denominated 
premature  labor.  But  the  criminal  act  of 
destroying  the  foetus  at  any  time  before  birth 
is  termed,  in  law,  procuring  miscarriage. 
Chitty,  Med.  Jur.  410;  2  Dunglison,  Hum. 
Phys.  364.    See  Abortion  ;  Fcetus. 

In  Practice.  A  term  used  in  the  Statute 
of  Frauds  to  denote  that  species  of  wrongful 
act  for  the  consequences  of  which  the  wrong- 
doer would  be  responsible  at  law  in  a  civil 
action. 

By  the  English  Statute  of  Frauds,  29  Car. 
II.  c.  3,  §  4,  it  is  enacted  that  "  no  action  shall 
be  brought  to  charge  the  defendant  upon  any 
special  promise  to  answer  for  the  debt,  de- 
fault, or  miscarriage  of  another  person,  unless 
the  agreement,"  etc.  "  shall  be  in  writing," 
etc. 

The  wrongful  riding  the  horse  of  another, 
without  his  leave  or  license,  and  thereby 
causing  his  death,  is  clearly  an  act  for  which 
the  party  is  responsible  in  damages,  and, 
therefore,  falls  within  the  meaning  of  the 
word  miscarriage.  2  Barnew.  &  Aid.  516 ; 
Burge,  Sur.  21. 

MISCASTING.  An  error  in  auditing 
and  numbering.  It  does  not  include  any  pre- 
tended miscasting  or  misvaluing.  4  Bouvier, 
Inst.  n.  4128. 

MISCOGNIZANT.  Ignorant,  or  not 
knowing.  Stat.  32  Hen.  VIII.  c.  9.  Little 
used. 

MISCONDUCT.  Unlawful  behavior  by 
a  person  intrusted  in  any  degree  with  the  ad- 
ministration of  justice,  by  which  the  rights 
of  the  parties  and  the  justice  of  the  case  may 
have  been  affected. 

A  verdict  will  be  set  aside  when  any  of  the 
jury  have  been  guilty  of  such  misconduct; 
and  a  court  will  set  aside  an  award  if  it 
have  been  obtained  by  the  misconduct  of  an 
arbitrator.  2  Atk.  Ch.  501,  504;  2  Chitt. 
Bail,  44;  1  Salk.  71  ;  3  P.  Will.  Ch.  362;  1 
Dick.  Ch.  66. 

MISCONTINUANCE.     In  Practice. 

A  continuance  of  a  suit  by  undue  process. 
Its  effect  is  the  same  as  a  discontinuance.  2 


MISDEMEANOR 


184 


MISERICORDIA 


Hawkins,  PI.  Cr.  299;  Kitch.  231;  Jenk. 
Oent.  Gas.  57. 

MISDEMEANOR.   In  Criminal  Law. 

A  term  used  to  express  every  offence  inferior 
to  felony,  punishable  by  indictment,  or  by 
particular  prescribed  proceedings.  In  its 
usual  acceptation,  it  is  applied  to  all  those 
crimes  and  offences  for  which  the  law  has 
not  provided  a  particular  name. 

The  word  is  generally  used  in  contr.adis- 
tinction  to  felony ;  misdemeanors  compre- 
hending all  indictable  offences  which  do  not 
amount  to  felony,  as  perjury,  battery,  libels, 
conspiracies,  and  public  nuisances,  but  not 
including  a  multitude  of  offences  over  which 
ma^^istrates  have  an  exclusive  summary  ju- 
risdiction, for  a  brief  designation  of  which 
our  legal  nomenclature  is  at  fault.  Misde- 
meanors have  sometimes  been  called  mispri- 
sions. 

MISDIRECTION.    In  Practice.  An 

error  made  by  a  judge  in  charging  the  jury 
in  a  special  case. 

2.  It  is  a  rule,  subject  to  the  qualifica- 
tions hereafter  stated,  that  when  the  judge  at 
the  trial  misdirects  the  jury  on  matters  of 
laio  material  to  the  issue,  whatever  may  be 
the  nature  of  the  case,  the  verdict  will  be  set 
aside,  and  a  new  trial  granted,  6  Mod.  242 ; 
2  Salk.  649  ;  2  Wils.  209  4  Conn.  350  ;  or, 
if  such  misdirection  appear  in  the  bill  of  ex- 
ceptions, or  otherwise  upon  the  record,  a  judg- 
ment founded  on  a  verdict  thus  obtained  will 
be  reversed.  And  although  the  charge  of 
the  court  be  not  positively  erroneous,  yet,  if 
it  have  a  tendency  to  mislead  the  jury,  and  it 
be  uncertain  whether  they  would  have  found 
as  they  did  if  the  instructions  had  been  en- 
tirely correct,  a  new  trial  will  be  granted. 
II  Wend.  N.  Y.  83 ;  6  Cow.  N.  Y.  682;  9 
Ilumphr.  Tenn.  411;  9  Conn.  107.  When 
the  issue  consists  of  a  mixed  question  of  law 
and  fact,  and  there  is  a  conceded  state  of 
facts,  the  rest  is  a  question  for  the  court,  2 
Wend.  N.  Y.  596 ;  and  a  misdirection  in  this 
respect  will  avoid  the  verdict. 

3.  Misdirection  as  to  matters  of  fact  will, 
in  some  cases,  be  sufficient  to  vitiate  the  pro- 
ceedings. For  example:  misapprehension  of 
the  judge  as  to  a  material  circumstance,  and 
a  direction  to  the  jury  accordingly,  1  Const. 
So.  C.  200;  or  instructing  them  upon  facts 
which  are  purely  hypothetical,  whereby  they 
are  misled,  8  Ga.  114;  submitting  as  a  con- 
tested point  what  has  been  admitted,  9  Conn. 
216  ;  giving  to  the  jury  a  peremptory  direc- 
tion to  find  in  a  given  way,  when  there  are 
facts  in  the  case  conducing  to  a  conclu- 
sion. 7  J.  J.  Marsh.  Ky.  410 ;  3  Wend.  N. 
Y.  102;  19  id.  402;  12  Mass.  22;  5  Ilumphr. 
Tenn.  470.  There  are,  however,  many  cases 
in  which  the  court  may  instruct  the  jury,  upon 
the  whole  evidence,  to  find  for  one  or  the  other 
party  ;  and  when  a  verdict  formed  under  such 
instruction  is  conformable  to  the  law,  the  evi- 
dence, and  the  justice  of  the  case,  it  is 
rarely  disturbed.  3  Dan.  Ky.  500.  But  to 
warrant  an  unqualified  direction  to  the  jury 


in  favor  of  a  party,  the  evidence  must  either 
be  undisputed  or  the  preponderance  so  de- 
cided that  a  verdict  against  it  would  be  set 
aside.  10  Wend.  N.  Y.  603.  When  the  court 
delivers  its  opinion  to  the  jury  on  a  matter  of 
fact,  it  should  be  as  opinion,  and  not  as  direc- 
tion. 12  Johns.  N.  Y.  513.  But  it  is,  in 
general,  allowed  a  very  liberal  discretion  in 
this  regard.  1  M'Clel.  &  Y.  Exch.  280. 
Where  the  question  is  one  of  mere  fact,  no 
expressions  of  the  judge,  however  strong  or 
erroneous,  will  amount  to  a  misdirection,  pro- 
vided the  question  is  fairly  presented  to  the 
jury  and  left  with  them  for  their  decision. 
5  Scott,  28  ;  4  Moore  &  S.  295  ;  19  Wend. 
N.  Y.  180 ;  10  Pick.  Mass.  252. 

4.  Unless  the  misdirection  be  excepted  to, 
the  party  by  his  silence  will  be  deemed  to 
have  waived  it.  10  Mo.  515  ;  2  Pick.  Mass. 
145.  But  see  4  Wend.  N.  Y.  514 ;  2  Barb.  N. 
Y.  420. 

As  to  its  effects,  the  misdirection  must  be 
calculated  to  do  injustice;  for  if  it  be  en- 
tirely certain  that  justice  has  been  done,  and 
that  a  re-hearing  would  produce  the  same  re- 
sult, or  if  the  amount  in  dispute  be  very  tri- 
fling, so  that  the  injury  is  scarcely  appreci- 
able, a  new  trial  will  not  be  granted.  2 
Caines,  N.  Y.  85  ;  7  Me.  442 ;  10  Ga.  429  ; 
3  Graham  &  W.  New  Tr.  705-873  ;  New 
Trial;  Charge. 

MISE  (Lat.  mittere,  through  the  French 
meftre,  to  place).  In  Pleading.  The 
issue  in  a  writ  of  right.  The  tenant  in  a 
writ  of  right  is  said  to  Join  the  mise  on  the 
mere  fight  when  he  pleads  that  his  title  is 
better  than  the  demandant's.  2  Wms.  Saund. 
45,  h,  I.  It  was  equivalent  to  the  general  issue ; 
and  every  thing  except  collateral  warranty 
might  be  given  in  evidence  under  it  by  the 
tenant.  Booth,  Real  Act.  98,  114;  3  Wils. 
420 ;  7  Wheat.  31 ;  3  Pet.  133  ;  7  Cow.  N.  Y. 
52 ;  10  Gratt.  Va.  350.  The  prayee  in  aid, 
on  coming  into  court,  joined  in  the  miso 
together  with  the  tenant.  2  Wms.  Saund,  45, 
d,  note.  It  was  the  more  common  practice, 
however,  for  the  demandant  to  traverse  the 
tenant's  plea  when  the  cause  could  be  tried 
by  a  common  jury  instead  of  the  grand  as- 
size. 

In  Practice.  Expenses.  It  is  so  commonly 
used  in  the  entries  of  judgments,  in  personal 
actions :  as,  when  the  plaintiff  recovers,  the 
judgment  is  quod  recuperet  damna  sua  (that 
he  recover  his  damages),  and  pro  mises  et  cus- 
tagiis  (for  costs  and  charges)  so  much,  etc. 

MISERABILE  DEPOSITUM  (Lat.). 
In  Civil  Law.  The  name  of  an  involuntary 
deposit,  made  under  pressing  necessity :  as, 
for  instance,  shipwreck,  fire,  or  other  inevi- 
table calamity.  Pothier,  Proc.  Civ.  pt.  5,  ch. 
1,  n  ;  La.  Code,  2935. 

MISERICORDIA  (Lat.).  An  arbitrary 

or  discretionary  amercement. 

To  be  in  mercy  is  to  be  liable  to  such  pun- 
ishment as  the  judge  may  in  his  discretion 
inflict.    According  to  Spolman,  misericordia 


MISFEASANCE 


185 


MISPRISION 


is  so  called  because  the  party  is  in  mercy, 
and  to  distinjruish  this  fine  from  rcdcm[)ti()iis, 
or  heavy  fines.  Spehnan,  Gloss.  See  Coke, 
Litt.  120  h;  Madox,  Exch.  c.  14. 

MISFEASANCE.  The  performance  of 
an  act  which  might  hiwfully  he  done,  in  an 
improper  manner,  by  which  another  person 
receives  an  injury. 

It  differs  from  malfeasance  or  nonfeasance. 
See,  generally,  2  Viner,  Abr.  35  ;  2  Kent, 
Comm.  443 ;  Doctrina  Plac.  02;  Story,  Bailm. 
I'd. 

It  seems  to  be  settled  that  there  is  a  dis- 
tinction between  misfeasance  and  nonfeas- 
ance in  the  case  of  mandates.  In  cases  of 
nonfeasance  the  mandatary  is  not  generally 
liable,  because,  his  undertaking  being  gratui- 
tous, there  is  no  consideration  to  support  it; 
but  in  cases  of  misfeasance  the  common  law 
gives  a  remedy  for  the  injury  done,  and  to  the 
extent  of  that  injury.  5  Term,  143  ;  4  Johns. 
N.  Y.  81  ;  2  Johns.  Cas.  N.  Y.  92 ;  1  Esp.  74 ; 
2  Ld.  Rayra.  909  ;  Story,  Bailm.  g  165  ;  Bou- 
vier,  Inst.  Index. 

MISJOINDER.  In  Pleading.  The  im- 

propei-  union  of  parties  or  causes  of  action  in 
one  suit  at  law  or  in  equity. 

Of  Actions.  The  joining  several  demands 
which  the  law  does  not  permit  to  be  joined, 
to  enforce  by  one  proceeding  several  distinct, 
substantive  rights  of  recovery.  Gould,  Plead, 
c.  i,  1 98 ;  Archbold,  Civ.  Plead.  61 ;  Dane,  Abr. 

In  equity,  it  is  the  joinder  of  different  and 
distinct  claims  against  one  defendant,  1 
Mylne  &  C.  Ch.  608 ;  7  Sim.  Ch.  241 ;  3  Barb. 
Cii.  N.  Y.  432,  and  is  distinguished  from 
niultifiiriousness,  which  may  exist  only  where 
there  are  several  defendants  disconnected 
I   with  each  other.    Story,  Eq.  Plead.  |  297,  n. 

The  grounds  of  suit  must  be  wholly  distinct, 
;  and  each  ground  must  be  sufficient,  as  stated, 
to  sustain  a  bill.  5  Ired.  Eq.  No.  C.  313.  See 
21  Ala.  N.  s.  252  ;  9  Ga.  278  ;  3  Md.  Ch.  Dec. 
40  ;  22  Conn.  171. 

ii.  It  may  arise  from  the  joinder  of  plain- 
tiffs who  possess  distinct  claims,  2  Sim.  Ch. 
331 ;  6  Madd.  Ch.  94  ;  8  Pet.  123  ;  but  see  3 
Harr.  412 ;  6  Johns.  Ch.  N.  Y.  150  ;  8  Paige, 
Ch.  N.  Y.  005,  or  the  joinder  of  distinct  claims 
of  the  plaintiff  in  one  bill.    2  Sim.  &  S.  Ch. 
79.    But  it  seems  that  where  there  is  a  com- 
mon liability  of  the  defendants  and  a  com- 
mon interest  in  the  plaintiffs,  different  claims 
may  be  united  in  the  same  suit.     I  Mylne  & 
C.  623  ;  3  id.  85  ;  5  How.  127  ;   12'  Mete. 
Mass.  323.  And  see  7  Sim.  Ch.  241 ;  3  Price, 
Exch.  164 ;  2  Younge  &  C.  Ch.  389  ;  Story, 
,    Eq.  Plead,  g  536,  n. ;  Multifariousness. 
I       At  law,  misjoinder  vitiates  the  entire  decla- 
ration, whether  taken  advantage  of  by  gene- 
'    ral  demurrer,  1  Maule  &  S.  355,  motion  in 
i     arrest  of  judgment,  writ  of  error.  2  Bos.  &  P. 
1    424;  4  Term,  347.    It  may  be  aided  by  ver- 
dict in  some  cases.    2  Lev.  110;  II  Mod. 
190;  2  Maule  &  S.  533  ;  1  Chitty,  Plead.  188. 

3.  Of  Parties.  The  joining,  as  plaintiffs 
or  defendants,  parties  who  have  not  a  joint 
interest. 


In  equiii/,  the  joinder  of  improper  plaintiffs 
is  a  fatal  defect."  2  Sandf.  Ch.  N.  Y.  180  ;  3 
Edw.  Ch.  N.  Y.  48  ;  2  Ala.  n.  s.  406.  But 
the  court  may  exercise  a  discretion  whether 
to  dismiss  the  bill.  1  Barb.  Ch.  N.  Y.  59  ;  3 
Ohio  St.  129.  See  5  Fla.  110.  It  may  be 
dismissed  wholly,  or  only  as  to  a  portion  of 
the  plaintiffs.  18  Ohio,  72.  The  improper 
joinder  of  defendants  is  no  cause  of  objec- 
tion by  a  co-defendant.  2  Barb.  Ch.  N.  Y. 
018  ;  6  Ired.  Eq.  No.  C.  62  ;  7  Ala.  n.  s.  362; 
12  Ark.  720 ;  23  Me.  269.    See  7  Conn.  387. 

The  objection  must  be  taken  before  the  hear- 
ing, 15  liow.  546  ;  2  IliU,  Ch.  So.  C.  567  ;  4 
Paige,  Ch.  N.  Y.  510;  not,  however,  if  it  be 
vital,  30  N.  II.  433  ;  by  demurrer,  if  appa- 
rent on  the  face  of  the  bill,  9  Paige,  Ch.  N. 
Y.  410;  7  Ala.  n.  s.  362;  but  see  5  III.  424; 
h?/  jjlea  and  answer ;  or  otherwise.  13  Pet. 
359  ;  1  T.  B.  Monr.  Ky.  105.  A  defendant 
who  is  improperly  joined  must  pleader  de- 
mur. 1  Mo.  410.  At  law,  see  Abatement  ; 
Pleading. 

MISKENNING  (Fr.  mis,  wrong,  and 
Sax.  ceunan,  summon).  A  wrongful  citation. 
A  variance  in  a  plea.  1  Mon.  Angl.  237  ; 
Chartw  lien.  II.;  Jacob,  Law  Diet.;  DuCange. 

MISNOMER.  The  use  of  a  wrong  name. 

In  contracts,  a  mistake  in  the  name  will 
not  avoid  the  contract,  in  general,  if  the  party 
can  be  ascertained.  11  Coke,  20 ;  Ld.  Raym. 
304 ;  Hob.  125. 

A  misnomer  of  a  legatee  will  not,  in  gene- 
ral, avoid  a  legacy,  when  the  context  fur- 
nishes the  means  of  correction.  See  19  Ves. 
Ch.  381 ;  1  Roper,  Leg.  131 ;  Legacy. 

Misnomer  of  one  of  the  parties  to  a  suit 
must  be  pleaded  in  abatement.  See  Abate- 
ment. 

The  names  of  third  persons  must  be  cor- 
rectly laid ;  for  the  error  wnll  not  be  helped 
by  pleading  the  general  issue ;  but,  if  a  suf- 
ficient description  be  given,  it  has  been  held, 
in  a  civil  case,  that  the  misnomer  was  imma- 
terial. Example:  in  an  action  for  medicines 
alleged  to  have  been  furnished  to  defendant's 
wife,  Mary,  and  his  wife  was  named  Eliza- 
beth, the  misnomer  was  held  to  be  immaterial, 
the  word  wife  being  the  material  word.  2 
Marsh.  159.  In  indictments,  the  names  of 
third  persons  must  be  correctly  given.  Ros- 
coe,  Crim.  Ev.  78.  See  Archbold,  Chitty, 
Plead. ;  Abatement  ;  Contract  ;  Parties  ; 
Legacy. 

MISPLEADING-.  Pleading  incorrectly, 
or  omitting  any  thing  in  pleading  which  is 
essential  to  the  support  or  defence  of  an  ac- 
tion, is  so  called. 

Pleading  not  guilty  to  an  action  of  debt  is 
an  example  of  the  first ;  setting  out  a  defect- 
ive title  is  an  example  of  the  second.  See 
3  Salk.  365. 

MISPRISION.    In  Criminal  Law.  A 

term  used  to  signify  every  considerable  mis- 
demeanor which  has  not  a  certain  name  given 
to  it  by  law.    Coke,  3d  Inst.  36. 
The  concealment  of  a  crime. 


MISREADING 


186 


MISSISSIPPI 


Negative  misp7'is ion  consists  in  the  conceal- 
ment of  something  which  ought  to  be  re- 
vealed. 

Misprision  of  felony  is  the  like  concealment 
of  felony,  w  ithout  giving  any  degree  of  main- 
tenance to  the  felon,  Act  of  Congress  of  April 
30,  1790,  s.  6,  1  Story,  U.  S.  Laws,  84;  for  if 
any  aid  be  given  him,  the  party  becomes  an 
accessory  after  the  fact. 

Misprision  of  treason  is  the  concealment  of 
treason  by  being  merely  passive.  Act  of 
Congress  of  April  30,  1790,  1  Story,  U.  S. 
Laws,  83  ;  1  East,  PL  Cr.  139.  If  any  assist- 
ance be  given  to  the  traitor,  it  makes  the 
party  a  principal,  as  there  are  no  accessories 
in  treason. 

Positive  misprision  consists  in  the  commis- 
sion of  something  which  ought  not  to  be  done. 
4  Blackstone,  Comm.  c.  9. 

It  is  the  duty  of  every  good  citizen,  know- 
ing of  a  treason  or  felony  having  been  com- 
mitted, to  inform  a  magistrate.  Silently  to 
observe  the  commission  of  a  felony,  without 
using  any  endeavors  to  apprehend  the  of- 
fender, is  a  misprision.  1  Russell,  Crimes, 
43  ;  Hawkins,  PI.  Cr.  c.  59,  s.  6 ;  4  Black- 
stone,  Comm.  119. 

Misprisions  which  are  merely  positive  are 
denominated  contempts  or  high  misdemean- 
ors: as,  for  example,  dissuading  a  witness 
from  giving  evidence.  4  Blackstone,  Comm. 
126. 

MISREADING.  When  a  deed  is  read 
falsely  to  an  illiterate  or  blind  man  who  is  a 
party  to  it,  such  false  reading  amounts  to  a 
fraud,  because  the  contract  never  had  the 
assent  of  both  parties.  5  Coke,  19  ;  6  East, 
309  ;  Dane,  Abr.  c.  86,  a.  3,  g  7  ;  2  Johns.  N. 
Y.  404;  12  id.  409  ;  3  Cow.  N.  Y.  537. 

MISRECITAL.  The  incorrect  recital 
of  a  matter  of  fact,  either  in  an  agreement  or 
a  plea:  under  the  latter  term  is  here  under- 
stood the  declaration  and  all  the  subsequent 
pleadings.    See  Recital. 

MISREPRESENTATION.  The  state- 
ment made  by  a  party  to  a  contract  that  a 
thing  relating  to  it  is  in  fact  in  a  particular 
way,  when  he  knoM'S  it  is  not  so. 

2.  The  misrepresentation  must  be  both 
false  and  fraudulent  in  order  to  make  the 
party  making  it  responsible  to  the  other  for 
damages.  3  Conn.  413 ;  10  Mass.  197 ;  1 
Const.  So.  C.  328,  475  ;  Mete.  Yelv.  21  a,  n.  1 ; 
Peake,  Cas.  115;  3  Campb.  154;  Marshall, 
Ins.  b.  1,  c.  10,  s.  1.  And  see  5  Maule  &  S. 
380  ;  12  East,  638  ;  3  Bos.  &  P.  370.  Misre- 
presentation as  to  a  material  part  of  the  con- 
sideration will  avoid  an  executory  contract. 
1  Phillips,  Ins.  II  630,  675. 

A  misrepresentation,  to  constitute  fraud, 
must  contrary  to  fact ;  the  party  making 
it  must  know  it  to  be  so,  2  Kent,  Comm.  471; 
1  Story,  Kq.  Jur.  §  142;  4  Price,  i;',5  ;  3  Conn. 
597  ;  22  Me.  511 ;  7  Gratt.  Va.  64,  239  ;  6 
Ga.  458;  5  Johns.  Ch.  N.  Y.  182;  6  Paige, 
Ch.  N.  Y.  197;  1  Stor.  C.  C.  172;  1  Woodb. 
&  M.  C.  C.  342  ;  excluding  cases  of  mere  mis- 
take, 5  Q.  B.  804 ;  9  id.  197  ;  10  Mees.  &  W. 


147  ;  11  id.  401 ;  14  id,  651 ;  7  Cranch,  69 
13  How.  211 ;  8  Johns.  N.  Y.  25 ;  7  AVend. 
N.  Y.  10;  11  id.  375;  1  Mete.  Mass.  1 ;  27 
Me.  309;  7  Vt.  67,  79;  6  N.  H.  99 ;  and  in- 
cluding cases  where  he  falsely  asserts  a  per- 
sonal knowledge,  18  Pick.  Mass.  96  ;  1  Mete. 
Mass.  193  ;  3  id.  469;  6  id,  245  ;  27  Me.  309; 
16  Wend.  N.  Y.  646  ;  16  Ala.  785  ;  1  Bibb,  Ky. 
244  ;  4  B.  Monr.  Ky.  601 ;  3  Cranch,  281,  and 
one  which  gave  rise  to  the  contracting  of  the 
other  party.  Rawle,  Cas.  3d  ed.  622  ;  14  N. 
II.  331 ;  1  Woodb.  &  M.  C.  C.  90,  342;  2  id. 
298;  2  Strobh.  Eq.  So.  C.  14;  2  Bibb,  Ky 
474 ;  8  B.  Monr.  Ky.  23  ;  4  How.  Miss.  435  • 
6  id.  311;  25  Miss.  167;  3  Cranch,  282;  3 
Yerg.  Tenn.  178;  19  Ga.448;  5  Blackf.  Ind. 
18.  See  12  Me.  262  ;  13  Pet.  26  ;  23  Wend. 
N.  Y.  260 :  7  Barb.  N.  Y.  65. 

MISSING  SHIP.  A  ship  which  has 
been  at  sea  and  unheard  from  for  so  long  a 
time  as  to  give  rise  to  the  presumption  that 
she  has  perished  with  all  on  board. 

There  is  no  precise  time  fixed  as  to  when 
the  presumption  is  to  arise;  and  this  must 
depend  upon  the  circumstances  of  each  case. 
2  Strange,  1199;  Park,  Ins.  63;  Marshall, 
Ins.  488 ;  2  Johns.  N.  Y.  150 ;  1  Caines,  N. 
Y.  525;  Holt,  242. 

MISSISSIPPI.  The^ame  of  one  of  the 
new  states  of  the  United  States. 

2.  This  state  was  admitted  into  the  Union  by 
a  resolution  of  congress  passed  Dec.  10,  1817.  3 
Story,  U.  S.  Laws,  1716. 

The  constitution  of  this  state  was  adopted  at  the 
town  of  Washington,  the  15th  day  of  August,  1817. 
It  was  revised  by  a  convention,  and  adopted  on  the 
26th  of  October,  1832,  when  it  went  into  operation. 

Every  free  white  male  person  of  the  age  of 
twenty-one  years  or  upwards,  who  is  a  citizen  of 
the  United  States  and  has  resided  in  the  state  one 
year  next  preceding  an  election  and  the  last  four 
months  within  the  county,  city,  or  town  in  which  he 
offers  to  vote,  is  a  qualified  elector. 

The  Legislative  Pouter, 

This  is  lodged  in  the  Senate  and  the  House  of 
Representatives,  the  two  houses  together  consti- 
tuting "  the  Legislature  of  the  State  of  Mississippi." 

3.  The  Senate  is  composed  of  members  elected, 
by  the  people  of  the  district  for  which  they  are 
chosen,  for  the  term  of  four  years,  and  is  never  to 
be  less  than  one-fourth  nor  move  than  one-third  the 
whole  number  of  representatives.  One  half  the 
senate  is  changed  every  second  year.  A  senator 
must  be  a  citizen  of  the  United  States,  thirty  years 
of  age  at  least,  must  have  been  an  inhabitant  of 
the  state  for  four  years  next  preceding  his  election, 
and  for  the  last  year  thereof  a  resident  of  the  dis- 
trict for  which  he  is  chosen.  They  are  cnosen  the 
odd  years. 

4.  The  House  of  liepresentntives  is  Cf^mposed  of 
members  elected  by  the  people  biennially,  for  the 
term  of  two  years. 

The  number  is  limited  between  thirty-six  and 
one  hundred.  A  representative  must  be  a  citizen 
of  the  United  States,  twenty-one  years  old  at  least, 
must  have  been  an  inhabitant  of  the  state  two 
years  next  preceding  bis  election,  and  for  the  last 
year  thereof  a  resident  of  the  county,  city,  or  town 
for  which  ho  is  chosen.  There  are  the  usual  pro- 
vi.>^ions  for  organization  of  the  houses,  giving  au- 
thority to  judge  of  the  qualifications  and  regulate 
the  conduct  of  members,  providing  for  keeping  a 
record  of  proceedings  and  publication  thereof,  for 
open  sessions  cxce])t  iu  special  cases;  that  nei-- 


MISSISSIPPI 


187 


MISSOURI 


ther  house  shall  adjourn,  without  consent  of  the 
other,  for  more  than  three  days ;  that  members 
shall  be  exempt  from  arrest  in  civil  process  durinj^ 
the  session  of  the  legislature  and  in  going  to  and 
returning  from  the  same,  allowing  one  day  for  every 
twenty  miles  such  member  may  reside  from  the 
place  at  which  the  legislature  is  convened  ;  that  no 
senator  or  representative  shall,  during  his  term  of 
service,  or  for  a  year  afterwards,  take  an  office  which 
has  been  created  or  the  pay  of  which  has  been  in- 
creased during  said  terra, — except  those  of  which 
there  is  an  election  by  the  people  ;  that  no  judge  of 
any  court  of  law  or  equity,  secretary  of  state,  at- 
torney-general, clerk  of  any  court  of  record,  she- 
riff, or  collector,  or  any  person  holding  a  lucrative 
office  .under  the  United  States  or  this  state,  shall 
be  eligible  to  the  legislature:  provide^l  that  offices 
in  the  militia  to  which  there  is  attached  no  annual 
salary,  and  the  office  of  justice  of  the  peace,  shall 
not  be  deemed  lucrative. 

The  Executive  Power. 

5.  The  Gover)ior  is  elected  by  the  people,  for  the 
term  of  two  years.  He  must  be  at  least  thirty  years 
old,  have  been  a  citizen  of  the  United  States  for 
twenty  years,  have  resided  in  the  state  at  least 
five  years  next  preceding  the  day  of  his  election ; 
cannot  hold  the  office  more  than  four  in  any  six 
years.  He  is  commander-in-chief  of  the  army  and 
navy  of  the  state,  and  of  the  militia  except  when 
they  are  called  into  the  service  of  the  United 
States;  may  convene  the  legislature  at  an  unusual 
time,  and  in  an  unusual  place,  if  necessary,  in  case 
of  emergency  ;  may  adjourn  them  not  beyond  the 
day  of  the  next  stated  meeting  of  the  legislature, 
in  case  of  disagreement  as  to  time  of  adjournment. 

6.  In  all  criminal  and  penal  cases,  except  in 
those  of  treason  and  impeachment,  he  has  power  to 
grant  reprieves  and  pardons  and  remit  fines,  and, 
in  cases  of  forfeiture,  to  stay  the  collection  until 
the  end  of  the  next  session  of  the  legislature,  and 
to  remit  forfeitures,  by  and  with  the  advice  and  con- 
sent of  the  senate.  In  cases  of  treason,  he  has 
power  to  grant  reprieves  by  and  with  the  advice 
and  consent  of  the  senate,  and  may  alone  respite 
the  sentence  until  the  end  of  the  next  session  of 
the  legislature.    Art.  5,  sec.  10. 

T.  It  is  provided  by  the  constitution  that  "  when- 
ever the  office  of  governor  shall  become  vacant  by 
death,  resignation,  removal  from  office,  or  other- 
wise, the  president  of  the  senate  shall  exercise  the 
office  of  governor  until  another  governor  shall  be 
duly  qualified;  and  in  case  of  the  death,  resigna- 
tion, removal  from  office,  or  other  disqualifications 
of  the  president  of  the  senate  so  exercising  the 
office  of  governor,  the  speaker  of  the  house  of  repre- 
sentatives shall  exercise  the  office  until  a  presi- 
dent of  the  senate  shall  have  been  chosen ;  and 
when  the  offices  of  governor,  president  of  the  senate, 
and  speaker  of  the  house  shall  become  vacant  in 
the  recess  of  the  senate,  the  person  acting  as  secre- 
tary of  state  for  the  time-being  shall  by  proclama- 
tion convene  the  senate,  that  a  president  may  be 
chosen  to  exercise  the  office  of  governor."  Art.  6, 
sect.  17. 

The  Judicial  Poioer. 
^  8.  The  High  Court  of  Errors  and  Appeals  con- 
sists of  three  judges,  elected  by  the  people  for  the 
terra  of  six  years.  Rev.  Code,  91.  The  terms  of 
office  are  so  arranged  that  one  judge  is  elected  every 
second  year.  The  state  is  divided  into  three  dis- 
tricts, and  one  judge  must  come  from  each  district. 
A  judge  must  be  thirty  years  old  at  the  time  of  his 
election.  Two  of  the  judges  constitute  a  quorum, 
and  must  concur  in  a  decision.  Terms  of  the  court 
are  held  twice  each  year  for  all  the  districts,  at 
Jackson,  the  seat  of  government.  It  has  no  ori- 
ginal jurisdiction,  but  sits  only  as  a  court  of  errors 
and  appeals. 


The  Circuit  Court  consists  of  ten  judges,  elected 
one  in  each  of  the  districts  into  which  the  state  is 
divided,  by  the  people  thereof,  for  the  term  of  four 
years.  A  judge  must  be  at  least  twenty-six  years 
old  at  the  time  of  his  election,  and  must  be  and 
continue  a  resident  of  the  district  for  which  he  is 
elected.  This  is  the  court  of  general  original  juris- 
diction in  law  and  equity.  It  has  original  jurisdic- 
tion in  all  civil  cases  where  the  amounts  involved 
exceed  fifty  dollars,  and  appellate  jurisdiction  from 
inferior  courts,  and  a  full  and  exclusive  criminal 
jurisdiction,  except  that  of  the  justices  of  the 
peace  and  of  the  United  States  courts.  It  may 
authorize  the  alteration  of  names,  may  legitimate 
offspring,  and  authorize  the  adoption  of  children. 
The  judges  may,  even  in  vacation,  issue  writs  of 
habeas  corptifi,  iiuDidamns,  certiorari,  error,  nuper- 
scdeas,  and  attachment,  returnable  to  any  circuit 
or  other  court,  grant  injunctions  and  writs  of  ne 
exeat,  as  well  as  other  writs.  Two  terms  of  tho 
court  are  held  annually  in  each  county. 

9.  Courts  of  Chauceri/  are  held  by  the  judges  of 
the  circuit  court  at  the  times  of  holding  the  county 
court.  One  week  at  least  of  each  term  is  to  bo 
given  to  chancery  business.  The  court  sitting  in 
chancery  has  a  full  equity  jurisdiction  of  all  cases 
involving  amounts  over  fifty  dollars. 

Probate  Courts  are  held  in  each  county  by  a  single 
judge,  elected  by  the  people  of  the  county.  This 
court  takes  the  control  generally  of  all  property  of 
decedents,  takes  probate  of  wills,  may  order  par- 
tition of  lands,  takes  charge  of  the  property  of 
minors,  lunatics,  etc.,  appointing  guardians,  and 
may  take  acknowledgment  of  deeds. 

It  sits  also  as  a  court  of  inquiry  in  criminal  mat- 
ters, and  may  bind  over  persons  suspected,  to  the 
circuit  court,  for  trial. 

10.  A  Board  of  Police  exists  in  each  county, 
composed  of  five  members,  elected  one  from  each 
of  the  five  districts  into  which  the  county  is  divided. 
They  have  the  general  control  of  the  internal  police 
of  the  county,  including  the  jurisdiction  over  pa- 
trols and  paupers,  the  care  of  roads  and  bridges 
and  county  buildings,  with  power  to  levy  county 
taxes. 

A  Justice  of  the  Peace  is  elected  in  each  of  the 
five  police  districts  of  each  county,  by  the  people 
of  the  district,  for  the  term  of  two  years.  He  has 
a  civil  jurisdiction,  coextensive  with  the  county, 
over  all  cases  involving  not  more  than  fifty  dollars 
in  amount. 

In  cases  where  the  parties  require,  he  may  sum- 
mon a  jury,  which  shall  be  composed  of  six  per- 
sons selected  from  the  twelve  summoned.  He  has 
also  a  limited  criminal  jurisdiction  of  minor  of- 
fences. He  must  hold  not  less  than  one  nor  more 
than  two  terms  each  month,  and  may  hear  and  de- 
cide cases  between  the  regular  terms,  where  justice 
requires  it. 

Jurisprudence. 

11.  A  full  revision  of  the  laws  of  the  state  was 
ordered  in  1854,  by  act  of  the  legislature,  which 
was  completed  and  went  into  efi"ect  Nov.  1857.  It 
is  known  as  "  The  Revised  Code  of  1857." 

By  its  provisions  the  disqualification  of  interest 
has  been  removed,  so  that  parties  to  the  suit,  or 
persons  in  any  way  interested,  may  testify  in  open 
court,  but  not  so  as  to  establish  a  claim  against  a 
decedent's  estate  beyond  the  amount  of  fifty  dol- 
lars; husband  and  wife  may  testify  for  each  other 
in  criminal  cases ;  changes  have  been  made  in  the 
law  of  dower.    See  Dower;  Citrtesv. 

A  full  and  minute  criminal  code  has  been  enacted, 
which  contains  full  provisions  for  the  prevention  of 
crime,  by  requiring  bonds  of  offenders  to  preserve 
the  peace,  and  especially  not  to  repeat  the  same 
offence  for  the  space  of  two  years. 

MISSOURI.  The  name  of  one  of  the  new 
states  of  the  United  States  of  America. 


MISSOURI 


188 


MISSOURI 


2.  It  was  formed  out  of  part  of  the  territory 
jeded  to  the  United  States  by  the  French  Republic 
b}^  treaty  of  April  30,  1808.    L.  U.  S. 

"This  state  was  admitted  into  the  Union  by  a 
resolution  of  congress  approved  March  2,  1821. 
L.  U.  S. 

To  this  resolution  there  was  a  condition,  which, 
having  been  performed,  the  admission  of  Missouri 
as  a  state  was  completed  by  the  president's  pro- 
clamation, dated  August  10,  1821.  3  Little  & 
Brown's  edit.  L.  U.  S.  App.  2. 

The  convention  which  formed  the  constitution  of 
this  state  met  at  St.  Louis,  on  Monday,  June  12, 
1820,  and  continued  by  adjournment  till  July  19, 
1820,  when  the  constitution  was  adopted,  establish- 
ing "  an  independent  republic,  by  the  name  of  the 
*  State  of  Missouri.'" 

All  free  white  male  citizens  of  the  United  States, 
of  the  age  of  twenty-one  years,  who  have  resided 
in  the  state  one  year  before  an  election,  the  last 
three  months  whereof  must  have  been  in  the 
county  or  district  in  which  they  offer  to  vote,  are 
qualified  electors.  But  no  soldier,  seaman,  or  ma- 
rine in  the  regular  army  or  navy  of  the  United 
States  is  entitled  to  vote  at  any  election. 

The  Legislative  Power. 

3.  This  is  lodged  in  a  General  Assembly,  consist- 
ing of  a  Senate  and  House  of  Representatives. 

The  Semite  is  to  consist  of  not  less  than  fourteen 
nor  more  than  thirty-three  members,  chosen  by  the 
qualified  electors  for  the  term  of  four  years;  but 
one-half  of  the  senators  are  to  be  chosen  every 
second  year.  A  senator  must  be  thirty  years  old  at 
least,  a  free  white  citizen  of  the  United  States  for 
four  years,  an  inhabitant  of  the  state  and  of  the 
district  from  which  he  is  elected  for  one  year. 

The  House  of  Reprcscntatioes  consists  of  one  hun- 
dred and  forty  members,  chosen  every  second  year, 
by  the  qualified  electors  of  the  several  districts  into 
which  the  state  is  divided  for  the  purpose.  Amend. 
1818-9.  A  representative  must  be  twenty-four 
years  of  age  at  least,  and  otherwise  possess  the 
same  qualifications  as  a  senator. 

The  Executive  Power. 

4.  The  Governor  is  elected  by  the  people,  and 
holds  his  ofiice  for  four  years  and  until  a  successor 
is  duly  appointed  and  qualified.  He  is  commander- 
in-chief  of  the  militia  of  the  state,  except  when 
called  into  the  service  of  the  United  States ;  has 
power  to  remit  fines  and  grant  reprieves  and  par- 
dons, except  in  cases  of  impeachment;  is  to  com- 
municate information  to  general  assembly,  and  re- 
commend measures,  take  care  that  the  laws  are 
executed,  fill  vacancies  in  offices,  and  may  veto 
bills,  which,  however,  may  be  passed  over  his  ob- 
jections by  a  majority  of  both  houses. 

The  Lieutenant-Governor  is  elected  at  the  same 
time,  in  the  same  manner,  and  for  the  same  term, 
and  is  to  possess  the  same  qualifications,  as  the 
governor.  He  is,  by  virtue  of  his  office,  president 
of  the  senate,  may  debate  and  give  the  casting  vote. 
When  the  office  of  the  governor  becomes  vacant  by 
death,  resignation,  absence  from  the  state,  refusal 
to  qualify,  impeachment,  or  otherwise,  the  lieute- 
nant-governor possesses  all  the  powers  and  dis- 
charges all  the  duties  of  governor  until  such  va- 
cancy be  filled  or  the  governor  so  absent  or  im- 
peached returns  or  is  acquitted. 

5.  Whenever  a  vacancy  occurs  in  the  office  of 
governor,  the  lieutenant-governor,  or  other  person 
exercising  the  powers  of  governor  for  the  time- 
being,  is  to  cause  an  election  to  fill  such  vacancy, 
giving  three  months'  notice  thereof.  But  if  such 
vacancy  happens  within  eighteen  months  of  the 
end  of  the  late  governor's  term,  it  is  not  to  be 
Cllod. 

A  Secretary  of  State,  an  Attorney-General,  an 


Auditor  of  Public  Accounts,  a  State  Treasurer,  and 
a  Refjister  of  Lands,  are  elected  by  the  qualified 
electors  of  the  state ;  and  each  holds  his  office  for 
the  term  of  four  years. 

The  Judicial  Power. 
6.  The  Supreme  Court  consists  of  three  judges, 
elected  by  the  people  for  six  years  and  until  a 
successor  is  qualified,  who  may  be  removed  on  the 
address  of  two-thirds  of  each  house  of  the  assem- 
bly, such  address  stating  the  cause  of  removal. 
This  process  does  not,  however,  take  the  place  of 
impeachment.  A  judge  of  this  court  must  not  be 
less  than  thirty  years  old,  nor  can  he  sit  after  he  ia 
sixty -five.  Two  of  the  judges  constitute  a  quorum. 
This  court  has  an  appellate  jurisdiction  from  in- 
ferior courts,  coextensive  with  the  state,  may  issue, 
hear,  and  determine  writs  of  habeas  corpus,  manda- 
mus, quo  warranto,  certiorari,  and  other  original 
remedial  writs,  and  has  a  general  superintending 
control  of  inferior  courts. 

T.  The  Circuit  Court  consists  of  sixteen  judges, 
chosen  by  the  people  of  the  respective  districts  for 
the  term  of  six  years.  Their  necessary  qualifica- 
tions are  the  same  as  those  of  the  supreme  judges. 
Each  judge  must  reside  in  the  circuit  for  which  he 
is  chosen.  This  is  the  court  of  general  original 
jurisdiction,  exercising  also  a  superintend  ng  con- 
trol over  such  inferior  courts  as  are  now  established, 
or  may  be  from  time  to  time,  and  justices  of  peace. 
It  has  exclusive  original  jurisdiction  over  all  civil 
cases  not  cognizable  before  justices  of  the  peace. 
As  a  court  of  chancery,  it  has  original  and  appel- 
late jurisdiction  in  all  matters  of  equity,  and  a 
general  control  over  executors,  administrators, 
guardians,  and  minors,  subject  to  appeal  in  all 
cases  to  the  supreme  court,  under  such  limitations 
as  the  general  assembly  may  by  law  provide.  It 
is  also  the  court  of  original  criminal  jurisdiction, 
having  jurisdiction  in  all  cases  not  otherwise  pro- 
vided for.  It  has  also  full  original  jurisdiction  in 
chancery ;  and  no  other  court  of  chancery  exists, 
the  power  of  that  court  having  been  transferred  to 
the  circuit  and  supreme  courts.  No  person  is  eligi- 
ble as  judge,  either  of  the  supreme  or  circuit  court, 
who  is  less  than  thirty  years  of  age ;  nor  can  any 
person  continue  to  exercise  the  office  after  he  is 
sixty-five.  Any  judge  of  the  supreme  court  or  the 
circuit  court  may  be  removed  from  office  on  the  ad- 
dress of  two-thirds  of  each  house  of  the  general 
assembly  to  the  governor  for  that  purpose;  but 
each  house  shall  state,  in  its  respective  journal,  the 
cause  for  which  it  shall  wish  the  removal  of  such 
judge,  and  give  him  notice  thereof;  and  he  shall 
have  the  right  to  be  heard  in  his  defence  in  such 
manner  as  the  general  assembly  shall  by  law  di- 
rect; but  no  judge  shall  be  removed  in  this  manner 
for  any  cause  for  which  he  might  have  been  im- 
peached. 

8.  The  County  Court  in  each  county  is  composed 
of  three  judges,  chosen  by  the  people  of  the  county 
for  six  years.  Four  terms  are  held  annually.  It 
takes  probate  of  wills,  controls  the  settlement  of 
estates  of  decedents,  appoints  and  controls  guardians 
of  minors,  lunatics,  etc.,  and,  in  addition,  has  the 
control  of  the  county  property. 

Justices  of  the  Peace  are  elected  by  the  people, 
four  in  each  township,  and  two  in  each  ward  in  St. 
Louis.  They  have  civil  jurisdiction  over  all  mat- 
ters arising  from  contracts,  and  to  recover  statutory 
penalties  where  the  amount  involved,  in  case  of  in- 
juries to  persons,  or  where  the  damages  claimed,  are 
not  over  twenty  dollars,  and  jurisdiction  concur- 
rent with  the  circuit  court  in  each  case  where  the 
damages  are  over  twenty  dollars  and  under  fifty 
dollars,  with  an  appeal  to  the  circuit  court  for  their 
county.  They  have  also  a  criminal  jurisdiction 
over  all  breaches  of  the  peace  where  the  fine  is  less 
than  one  hundred  dollars. 


MISTAKE 


189 


MITTER 


9.  In  St.  Louis,  there  are  the  criminal  court,  the 
court  of  common  pleas,  the  land  court,  the  probate 
court,  and  the  law  commissioners'  court. 

The  criminal  court  has  the  criminal  jurisdiction 
of  the  circuit  court  in  other  counties.  The  court 
of  common  pleas  has  the  civil  jurisdiction  of  the 
same  court. 

The  land  court  takes  acknowledgments  of  deeds, 
and  tries  all  questions  of  titles  to  land  in  St.  Louis. 

The  law  commissioners'  court  has  a  limited  juris- 
diction in  civil  matters,  including  actions  arising 
from  contracts  where  the  sum  claimed  is  not  over 
one  hundred  and  fifty  dollars,  actions  under  the 
Landlord  and  Tenant  Act,  the  forcible  entry  and  de- 
tainer process,  and  contracts  relative  to  boats  for 
sums  under  one  hundred  dollars. 

MISTAKE.  S@me  unintentional  act, 
omission,  or  error  arising  from  ignorance,  sur- 
prise, imposition,  or  misplaced  confidence. 
Story,  Eq.  Jur.  ^  110. 

That  result  of  ignorance  of  law  or  fact 
which  has  misled  a  person  to  commit  that 
•which,  if  he  had  not  been  in  error,  he  would 
not  have  done.  Jeremy,  Eq.  Jur,  b.  2,  pt.  2, 
p.  358. 

2.  As  a  general  rule,  both  at  law  and  in 
equity,  mistakes  of  law  do  not  furnish  an  ex- 
cuse for  wrongful  acts  or  a  ground  of  relief 
from  the  consequences  of  acts  done  in  conse- 
quence of  such  a  mistake.  6  Clark  &  F. 
Hou.  L.  964-971;  9  Mees.  &  W.  Exch.  54; 

5  Hare,  Ch.  91 ;  8  Wheat,  214 ;  1  Pet.  15  ;  9 
How.  55  ;  7  Paige,  Ch.  N.  Y.  99*,  137 ;  2 
Johns.  Ch.  N.  Y.  60  ;  Story,  Eq.  Jur.  125- 
138.  See  2  M'Cord,  Ch.  455  ;  6  Harr.  &  J. 
Md.  503  ;  25  Vt.  603  ;  De  Gex,  M.  &  G.  76  ; 
21  Ala.  N.  s.  252;  13  Ark.  129;  6  Ohio,  169; 

11  id.  480;  21  Ga.  118;  Beasl.  Ch.  N.  J. 
165. 

An  act  done  or  a  contract  made  under  a 
mistake  or  ignorance  of  a  material  fact  is 
voidable  and  relievable  in  equity.  Story,  Eq. 
Jur.  I  140.  The  rule  applies  to  cases  where 
there  has  been  a  studied  suppression  of  facts 
by  one  side,  and  to  cases  of  mutual  ignorance 
or  mistake.    3  Burr.  21 ;  26  Beav.  Rolls,  454 ; 

12  Sim.  Ch.  465;  9  Ves.  Ch.  275  ;  3  Chanc. 
Cas.  56 ;  2  Barb.  N.  Y.  475  ;  1  Hill,  N.  Y. 
287;  11  Pet.  71;  8  B.  Monr.  Ky.  580  ;  4  Mas. 
C.  C.  414 ;  5  R.  I.  130.  But  the  f^ict  must 
be  material  to  the  contract,  i.e.  essential  to 
its  character,  and  an  efficient  cause  of  its 
concoction.  1  Ves.  Ch.  126,  210  ;  De  Gex  & 
S.  83  ;  6  Binn.  Penn.  102  ;  11  Graft.  Va.  468 ; 
2  Barb.  N.  Y.  37  ;  2  Sandf.  Ch.  N.  Y.  298 ; 

13  Penn.  St.  371. 

3.  An  award  may  be  set  aside  for  a  mis- 
take of  law  or  fact  by  the  arbitrators  appa- 
rent on  the  face  of  the  award.  2  Bos.  &  P. 
371 ;  1  Dall.  Penn.  487;  1  Sneed,  Tenn.  321. 
See  6  Mete.  Mass.  136  ;  17  How.  344  ;  6  Pick. 
Mass.  148  ;  2  Gall.  C.  C.  61 ;  4  N.  H.  357  ;  3 
Vt.  30S  ;  6  id.  529  ;  15  III.  461 ;  2  Barnew.  & 
Aid.  691 ;  3  id.  237  ;  1  Bingh.  104;  1  DoavI. 

6  R.  366  ;  1  Taunt.  152  ;  (S  id.  254;  3  C.  B. 
705;  2  Exch.  344;  3  East,  18. 

The  word  which  the  parties  intended  to  use 
in  an  instrument  may  be  substituted  for  one 
which  was  actually  used  by  a  clerical  error, 
in  equity.    Adams,  Eq.  169  et  seq.;  13  Gray, 


Mass.  373  ;  6  Ired.  Eq.  No.  C.  462 ;  17  Ala. 
N.  s.  562. 

As  to  the  rule  for  the  correction  of  mistakes 
in  wills,  see  Storv,  Eq.  Jur.  ^  179;  2  Ves.  Ch. 
216;  3  id.  321 ;  1  Brown,  Ch.  85  ;  3  id.  446; 
1  Keen,  692 :  2  Kay  &  J.  Ch.  740  ;  1  Jones, 
Eq.  No.  C.  110;  22  Mo.  518;  2  Stockt.  Ch. 
N.  J.  582. 

A  mistake  sometimes  prevents  a  forfeiture 
in  cases  of  violation  of  revenue  laws,  Paine, 
C.  C.  129  ;  Gilp.  Dist.  Ct.  235  ;  4  Call,  Va. 
158 ;  breach  of  embargo  acts,  3  Day,  Conn. 
296  ;  Paine,  C.  C.  16  ;  7  Cranch,  22;  3  Wheat. 
59;  11  How.  47;  and  some  other  cases.  1 
Bishop,  Crim.  Law,  |  697  ;  4  Cranch,  347  ;  11 
Wheat.  1;  12  id.  1;  1  Mass.  347. 

MISTRIAL.  A  trial  which  is  erroneous 
on  account  of  some  defect  in  the  persons  try- 
ing, as  if  the  jury  come  from  the  wrong 
county,  or  because  there  was  no  issue  formed 
as  if  no  plea  be  entered,  or  some  other  de- 
fect of  jurisdiction.  3  Croke,  284;  2  Maule 
&  S.  270. 

2.  Consent  of  parties  cannot  help  such  a 
trial,  when  past.    Hob.  5. 

It  is  error  to  go  to  trial  without  a  plea  or  an 
issue,  in  the  absence  of  counsel  and  without 
his  consent,  although  an  affidavit  of  defence 
be  filed  in  the  case,  containing  the  substance 
of  a  plea,  and  the  court  has  ordered  the  case 
on  the  list  for  trial.    3  Penn.  St.  501. 

On  an  indictment  for  paying,  an  infant 
under  the  age  of  twenty-one  years,  and  not 
otherwise  qualified,  not  having,  in  fact,  been 
summoned,  personated  his  father  as  a  juror. 
Here  was  a  mistrial,  because  the  verdict  in 
the  case  was  the  verdict  of  but  eleven  jurors. 
"To  support  a  judgment,''  observed  Judge 
Ilolroyd,  "it  must  be  founded  on  a  verdict  de- 
livered by  twelve  competent  jurors.  This  man 
was  incompetent,  and  therefore  there  has 
been  a  mistrial."  7  Dowl.  &  R.  684.  And 
see  4  Barnew.  &  Aid.  430 ;  18  N.  Y.  128. 

MISUSER.    An  unlawful  use  of  a  right. 

In  cases  of  public  offices  and  franchises,  a 
misuser  is  sufficient  to  cause  the  right  to 
be  forfeited.  2  Blackstone,  Comm.  153  ;  5 
Pick.  Mass.  163. 

MITIGATION.  Reduction;  diminution; 
lessening  of  the  amount  of  a  penalty  or  pun- 
ishment. 

Circumstances  which  do  not  amount  to  a 
justification  or  excuse  of  the  act  committed 
may  yet  be  properly  considered  in  mitiga- 
tion of  the  punishment:  as,  for  example,  the 
fact  that  one  who  stole  a  loaf  of  bread  was 
starving. 

In  actions  for  the  recovery  of  damages,  mat- 
ters may  often  be  given  in  evidence  in  miti- 
gation of  damages  which  are  no  answer  to 
the  action  itself.    See  Damages;  Character. 

MITIOR  SENSUS.  See  In  Mitiori 
Sensu. 

MITTER  (L.  Fr.).  To  put,  to  send,  or 
to  pass :  as,  mitter  V estate,  to  pass  the  estate  ; 
mitter  le  droit,  to  pass  a  right.  2  Blackstone, 
Comm.  324;  Bacon,  Abr.  Release  (C) ;  Coke, 


MITTIMUS 


190 


MODUS 


Litt.  193,  273  6.  Mitter  a  large,  to  put  or  set 
at  large. 

MITTIMUS.     In  Old  English  Law. 

A  writ  enclosing  a  record  sent  to  be  tried  in 
a  county  palatine :  it  derives  its  name  from 
the  Latin  word  mittimus,  "we  send."  It  is 
the  jury  process  of  these  counties,  and  com- 
mands the  proper  officer  of  the  county  pala- 
tine to  command  the  sheriff  to  summon  the 
jury  for  the  trial  of  the  cause,  and  to  return 
the  record,  etc.    1  Mart.  La.  278 ;  2  id.  88. 

In  Criminal  Practice.  A  precept  in 
writing,  under  the  hand  and  seal  of  a  justice 
of  the  peace,  or  other  competent  officer,  di- 
rected to  the  jailer  or  keeper  of  a  prison, 
commanding  him  to  receive  and  safely  keep 
a  person  charged  with  an  offence  therein 
named,  until  he  shall  be  delivered  by  due 
course  of  law.    Coke,  Litt,  590. 

MIXED  ACTION.  In  Practice.  An 
action  partaking  of  the  nature  both  of  a  real 
and  of  a  personal  action,  by  which  real  pro- 
perty is  demanded,  and  also  damages  for  a 
wrong  sustained.  An  ejectment  is  of  this  na- 
ture.   4  Bouvier,  Inst.  n.  3G50.  See  Action. 

MIXED  GOVERNMENT.  A  govern- 
ment established  with  some  of  the  powers  of 
anionarchical,aristocratical,anddemocratical 
government.    See  Government  ;  Monarchy. 

MIXED  LARCENY.  Compound  lar- 
ceny, which  see. 

MIXED  PROPERTY.  That  kind  of 
property  which  is  not  altogether  real  nor  per- 
sonal, but  a  compound  of  both.  Heir-looms, 
tombstones,  monuments  in  a  church,  and  title- 
deeds  to  an  estate,  are  of  this  nature.  Shars- 
wood,  Blackst.  Comm.  428  ;  3  Barnew.  &  Ad. 
174;  4Bingh.  106. 

MIXED  TITHES.  In  Ecclesiastical 
Law.  "Those  which  arise  not  immediately 
from  the  ground,  but  from  those  things  wliich 
are  nourished  by  the  ground:"  e.g.  colts, 
chickens,  calves,  milk,  eggs,  etc.  3  Burn, 
Eocl.  Law,  380;  2  Sharswood,  Blackst. 
Comm.  24. 

MIXT  CONTRACT.     In  Civil  Law. 

A  contract  in  which  one  of  the  parties  confers 
a  benefit  on  the  other,  and  requires  of  the 
latter  something  of  less  value  than  what 
he  has  given:  as,  a  legacy  charged  with 
something  of  less  value  than  the  legacy  itself. 
Pothier,  Obi.  n.  12. 

MIXTION.  The  putting  of  different 
goods  or  chattels  together  in  such  a  manner 
that  they  can  no  longer  be  separated:  as,  put- 
ting the  wines  of  two  different  persons  into  the 
same  barrel,  the  grain  of  several  persons  into 
the  same  bag,  and  the  like. 

The  intermixture  may  be  occasioned  by  the 
wilful  act  of  the  party,  or  owner  of  one  of  the 
articles,  by  the  wilful  act  of  a  stranger,  by 
the  negligence  of  the  owner  or  a  stranger,  or 
by  accident.    See  Confusion  of  Goods. 

MOBBING  AND  RIOTING.  In 
Scotch  Law.  A  general  term,  including 
»11  those  convocations  of  the  lieges  for  violent 


and  unlawful  purposes,  which  are  attended 
with  injury  to  the  persons  or  property-  of  the 
lieges,  or  terror  and  alarm  to  the  neighbor- 
hood in  which  it  takes  place.  The  two 
phrases  are  usually  placed  together ;  but, 
nevertheless,  they  have  distinct  meanings, 
and  are  sometimes  used  separately  in  legal 
language, — the  word  mobbing  being  pecu- 
liarly applicable  to  the  unlawful  assemblage 
and  violence  of  a  number  of  persons,  and  that 
of  rioting  to  the  outrageous  behavior  of  a 
single  individual.  Alison,  Crim.  Law,  c.  23, 
p.  509. 

MOBILIA.    See  Movables. 

MODEL.  A  machine  made  on  a  small 
scale  to  show  the  manner  in  which  it  is  to  be 
worked  or  employed. 

The  act  of  congress  of  July  4,  1836,  section 
6,  requires  an  inventor  who  is  desirous  to 
take  out  a  patent  for  his  invention  to  furnish 
a  model  of  his  invention,  in  all  cases  which 
admit  of  representation  by  model,  of  a  conve- 
nient size  to  exhibit  advantageously  its  several 
parts.'  Such  model  must  not  exceed  one  foot 
in  any  of  its  dimensions,  under  the  present 
rules  of  the  patent-office. 

MODERATE   CASTIGAVIT.  In 

Pleading.  The  name  of  a  plea  in  trespass 
by  which  the  defendant  justifies  an  assault 
and  battery,  because  he  moderately  corrected 
the  plaintiff,  whom  he  had  a  right  to  correct. 
2  Chitty,  Plead.  576;  2  Bos.  &  P.  224.  See 
Correction  ;  15  Mass.  347 ;  2  Phillipps,  Ev. 
147;  Bacon,  Abr.  Assault  (C). 

This  plea  ought  to  disclose,  in  general 
terms,  the  cause  which  rendered  the  correc- 
tion expedient.    3  Salk.  47. 

MODERATOR.  A  person  appointed  to 
preside  at  a  popular  meeting:  sometimes  he 
is  called  a  chairman.  The  presiding  officer 
of  town  meetings  in  New  England  is  so  called. 

MODIFICATION.  A  change :  as,  the 
modification  of  a  contract.  This  may  take 
place  at  the  time  of  making  the  contract,  by  a 
condition  which  shall  have  that  effect:  for 
example,  if  I  sell  you  one  thousand  bushels 
of  corn  upon  condition  that  my  crop  shall  pro- 
duce that  much,  and  it  produces  only  eight 
hundred  bushels,  the  contract  is  modified ; 
it  is  for  eight  hundred  bushels,  and  no  more. 

It  may  be  modified,  by  the  consent  of  both 
parties,  after  it  has  been  made.  See  1  Bou- 
vier, Inst.  n.  733. 

MODO  ET  FORMA  (Lat.  in  mannei 
and  form).  In  Pleading.  Technical  words 
used  to  put  in  issue  such  concomitants  of  the 
principal  matters  as  time,  place,  etc.,  where 
these  circumstances  were  material.  Their 
use  when  these  circumstances  were  immate- 
rial was  purely  formal.  The  words  were 
translated  literally,  when  pleadings  began  to 
be  made  in  English,  by  "in  manner  and 
form."  See  Lawes,  Plead.  120;  Gould, 
Plead,  c.  6, 1  22  ;  Stephen,  Plead.  213 ;  Dane, 
Abr.  Index ;  Viner,  Abr.  Mode  et  Forma. 

MODUS.    In  Civil  Law.  Manner: 


MODUS  DECIMANDI 


ICl 


^lONARCriY 


means ;  way.  Ainsworth,  Lat.  Diet.  A 
rhythmic  song.  DuCange. 

In  Old  Conveyancing.  Manner:  e.g.  the 
maniwr  in  which  an  estate  should  be  hekl,  etc. 
A  qualification,  whether  in  restriction  or  en- 
hirgement  of  the  terms  of  the  instrument; 
especially  with  relation  to  the  kind  of  grant 
called  ''donatio," — the  making  those  quasi  | 
heirs  who  were  not  in  fact  heirs  according 
to  the  ordinary  form  of  such  conveyances. 
And  this  modus  or  qualification  of  the  ordi- 
nary form  became  so  common  as  to  give  rise 
to  the  maxim  ''modus  et  conveniio  vincuut 
legem."  Coke,  Litt.  19  a;  Bracton,  \1  h;  1 
Reeve,  Hist.  Eng.  Law,  293.  A  considera- 
tion.   Bracton,  17,  18. 

In  Ecclesiastical  Law.  A  peculiar  man- 
ner of  tithing,  growing  out  of  custom.  See 
Modus  Decimandi. 

MODUS  DECIMANDI.  In  Ecclesi- 
astical Law.  A  peculiar  manner  of  tith- 
ing, arising  from  immemorial  usage,  and  dif- 
fering from  the  payment  of  one-tenth  of  the 
annual  increase. 

To  be  a  good  modus,  the  custom  must  be — 
first,  certain  and  invariable ;  second,  benefi- 
cial to  the  parson ;  third,  a  custom  to  pay 
something  difierent  from  the  thing  com- 
pounded for ;  fourth,  of  the  same  species ; 
fifth,  the  thing  substituted  must  be  in  its 
nature  as  durable  as  the  tithes  themselves; 
sixth,  it  must  not  be  too  large :  that  would  be 
a  rank  modus.  2  Sharswood,  Blackst.  Comm. 
30.  See  2  &  3  Will.  IV.  c.  100 ;  13  Mees.  & 
W.  Exch.  822. 

MODUS  DE  NON  DECIMANDO. 
In  Ecclesiastical  Law.  A  custom  or  pre- 
scription not  to  pay  tithes,  which  is  not  good, 
except  in  case  of  abbey-lands.  2  Sharswood, 
Blackst.  Comm.  31,  note. 

MOHAMMEDAN  LAW.  A  system  of 
native  law  prevailing  among  the  Mohammed- 
ans in  India,  and  administered  there  by  the 
British  government.    See  Hindu  Law. 

MOHATRA.  In  French  Law.  The 
name  of  a  fraudulent  contract  made  to  cover 
a  usurious  loan  of  money. 

It  takes  place  when  an  individual  buys  mer- 
chandise from  another  on  a  credit  at  a  high 
price,  to  sell  it  immediately  to  the  first  seller, 
or  to  a  third  person  who  acts  as  his  agent,  at 
a  much  less  price  for  cash.  IG  Toullier,  n. 
44;  1  Bouvier,  Inst.  n.  1118. 

MOIETY.  The  half  of  any  thing :  as,  if 
a  testator  bequeath  one  moiety  of  his  estate 
to  A,  and  the  other  to  B,  each  shall  take  an 
equal  part.  Joint  tenants  are  said  to  hold  by 
moieties.    Littleton,  125  ;  3  C.  B.  274,  283. 

MOLES  TAT  I O  N.    In  Scotch  Law. 

The  name  of  an  action  competent  to  the  pro- 
prietor of  a  landed  estate  against  those  who 
disturb  his  possession.  It  is  chiefly  used  in 
questions  of  commonty,  or  of  controverted 
marches.    Erskine,  Inst.  4.  1.  48. 

MOLITURA.  Toll  paid  for  grinding  at 
a  mill ;  multure.    Not  used. 


MOLLITER  MANUS  IMPOSUIT 

(Lat.).    lie  lad  iiis  hands  on  gently. 

In  Pleading.  A  plea  in  justification  of  a 
trespass  to  the  pers(jn.  It  is  a  g<jod  plea  v\hen 
supported  by  the  evidence,  12  Viner,  Abr. 
182;  Hammond,  Nisi  P.  1^9;  where  an 
amount  of  violence  proportioned  to  the  cir- 
(tumstances,  20  Johns.  N.  Y.  427  ;  4  Den. 
N.  Y.  448;  2  Strobh.  So.  C.  232;  17  Ohio, 
454  ;  has  been  done  to  the  person  of  another 
in  defence  of  property,  3  Cush.  Mass,  154; 

3  Ohio  St.  159  ;  9  Barb.  N.  Y.  G52  ;  23  Penn. 
St.  424 ;  see  19  N.  II.  502 ;  25  Ala.  n.  s.  41 ; 

4  Cush.  Mass.  597,  or  the  prevention  of  crime. 
2  Chitty,  Plead.  574;  Bacon,  Abr.  Assault 
and  Battery  (C  8). 

MONARCHY.  That  government  which 
is  ruled,  really  or  theoretically,  by  one  man, 
who  is  wholly  set  apart  from  all  other  mem- 
bers of  the  state. 

2.  A  wording  to  the  etymology  of  the  word  mon- 
archy is,  that  government  in  which  one  person 
rules  supreme, — alone.  In  modern  times  the  terms 
autocracy,  autocrat,  have  come  into  use  to  indicate 
that  monarchy  of  which  the  ruler  desires  to  be  ex- 
clusively considered  the  source  of  all  power  and 
authority.  The  Russian  emperor  styles  himself 
Autocrat  of  all  the  Kussias.  Autocrat  is  the  same 
with  despot;  but  the  latter  term  has  fallen  some- 
what into  disrepute.  Monarchy  is  contradistin- 
guished from  republic.  Although  the  etymology 
of  the  term  monarchy  is  simple  and  clear,  it  is  by 
no  means  easy  to  give  a  definition  either  of  mon- 
archy or  of  republic.  The  constitution  of  the 
United  States  guarantees  a  republican  government 
to  every  state.  What  is  a  republic  ?  In  this  case 
the  meaning  of  the  term  must  be  gathered  from  the 
republics  which  existed  at  the  time  of  the  forma- 
tion of  our  government,  and  which  were  habitually 
called  republics.  Lieber,  in  a  paper  on  the  ques- 
tion, "  Shall  Utah  be  admitted  into  the  Union  V  (in 
Putnam's  Magazine.)  declared  that  the  Mormons 
did  not  form  a  republic. 

3.  The  fact  that  one  man  stands  at  the  head  of 
a  government  does  not  make  it  a  monarchy.  We 
have  a  president  at  the  head.  Nor  is  it  necessary 
that  the  one  person  have  an  unlimited  amount  of 
power,  to  make  a  government  a  monarchy.  The 
power  of  the  king  of  England  is  limited  by  law  and 
theory,  and  reduced  to  a  small  amount  in  reality  : 
yet  England  is  called  a  monarchy.  Nor  does  here- 
ditariness  furnish  us  with  a  distinction.  The  pope 
is  elected  by  the  cardinals,  yet  the  States  of  the 
Church  are  a  monarchy;  and  the  stadtholder  of 
several  states  of  the  Netherlands  was  hereditary, 
yet  the  states  were  republics.  We  cannot  find  any 
better  definition  of  monarchy  than  this:  a  mon- 
archy is  that  government  which  is  ruled  (really  or 
theoretically)  by  one  man,  who  is  wholly  set  apart 
from  all  other  members  of  the  state  (called  his 
subjects) ;  while  we  call  republic  that  government 
in  which  not  only  there  exists  an  oiganism  by 
which  the  opinion  of  the  people,  or  of  a  portion  of 
the  people  (as  in  aristocracies),  passes  over  into 
public  will,  that  is,  law,  but  in  which  also  the  su- 
preme power,  or  the  executive  power,  returns,  either 
periodically  or  at  stated  times  (where  the  chief- 
magistracy  is  for  life),  to  the  people,  or  a  portion 
of  the  people,  to  be  given  anew  to  another  person; 
or  else,  that  government  in  which  the  hereditary 
portion  (if  there  be  any)  is  not  the  chief  and  lead- 
ing portion  of  the  government,  as  was  the  case  in 
the  Netherlands. 

4.  Monarchy  is  the  prevailing  type  of  govern- 
ment.   Whether  it  will  remain  so  with  our  cis-Cau- 


MONEY 


192 


MONEY  COUNTS 


casian  race  is  a  question  not  to  be  discussed  in  a 
law  dictionary.  The  two  types  of  monarchy 
as  it  exists  in  Europe  are  the  limited  or  constitu- 
tional monarchy,  developed  in  England,  and  cen- 
tralized monarchy — to  which  has  been  added  the 
modern  French  type,  which  consists  in  the  adop- 
tion of  Rousseau's  idea  of  sovereignty,  and  apply- 
ing it  to  a  transfer  of  all  the  sovereign  power  of 
the  people  to  one  Caesar,  who  thus  becomes  an  un- 
qualified and  unmitigated  autocrat  or  despot.  It 
is  a  relapse  into  coarse  absolutism. 

Paley  has  endeavored  to  point  out  the  advan- 
tages and  disadvantages  of  the  different  classes  of 
government, — not  successfully,  we  think.  The  great 
advantages  of  the  monarchical  element  in  a  iree 
government  are  :  first,  that  there  remains  a  stable 
and  firm  point  in  the  unavoidable  party  struggle; 
and  secondly,  that,  supreme  power,  and  it  may  be 
said  the  whole  government,  being  represented  by 
or  symbolized  in  one  living  person,  authority, 
respect,  and,  with  regard  to  public  money,  even 
public  morality,  stand  a  better  chance  to  be  pre- 
served, 

5,  The  great  disadvantages  of  a  monarchy  are 
that  the  personal  interests  or  inclinations  of  the 
monarch  or  his  house  (of  the  dynasty)  are  substi- 
tuted for  the  public  interest;  that  to  the  chance  of 
birth  is  left  what  with  rational  beings  certainly 
ought  to  be  the  result  of  reason  and  wisdom;  and 
that  loyalty  to  the  ruler  comes  easily  to  be  substi- 
tuted for  real  patriotism,  and  frequently  passes  over 
into  undignified  and  pernicious  man-worship.  Mon- 
archy is,  assuredly  the  best  government  for  many 
nations,  at  the  present  period,  and  the  only  govern- 
ment under  which  in  this  period  they  can  obtain 
security  and  liberty  :  yet,  unless  we  believe  in  a 
pre-existing  divine  right  of  the  monarch,  monarchy 
can  never  be  any  thing  but  a  substitute — acceptable, 
wise,  even  desirable,  as  the  case  may  be — for  some- 
thing more  dignified,  which,  unfortunately,  the 
passions  or  derelictions  of  men  prevent.  The  ad- 
vantages and  disadvantages  of  republics  may  be 
said  to  be  the  reverse  of  what  has  been  stated  re- 
garding monarchy.  A  frequent  mistake  in  modern 
times  is  this :  that  a  state  simply  for  the  time 
without  a  king — a  kingless  government — is  called 
a  republic.  But  a  monarchy  does  not  change  into  a 
republic  simply  by  expelling  the  king  or  the  dy- 
nasty ;  as  we  have  seen  in  France  in  1848,  Few 
governments  are  less  acceptable  than  an  elective 
monarchy ;  for  it  has  the  disadvantages  of  the 
monarchy  without  its  advantages,  and  the  disad- 
vantages of  a  republic  without  its  advantages.  See 
Government;  Absolutism. 

MONEY.  Gold  and  silver  coins.  The 
common  medium  of  exchange  in  a  civilized 
nation. 

There  is  some  difference  of  opinion  as  to  the 
etymology  of  the  word  money ;  and  writers  do  not 
agree  as  to  its  precise  meaning.  Some  writers  de- 
fine it  to  be  the  common  medium  of  exchange 
among  civilized  nations;  but  in  the  United  States 
constitution  there  is  a  provision  which  has  been 
fupposed  to  make  it  synonymous  with  coins:  "The 
congress  shall  have  power  to  coin  money."  Art.  1, 
f;ect.  8.  Again  :  "  No  state  shall  coin  money,  or 
make  any  thing  but  gold  and  silver  a  legal  tender 
in  payment  of  debt."  Art.  1,  sect.  10.  Hence  the 
money  of  the  United  States  consists  of  gold  and 
eilver  coins.  And  so  well  has  the  congress  of  the 
United  States  maintained  this  point,  that  the  copper 
coins  heretofore  struck,  and  the  nickel  cent  of  recent 
issues,  although  authorized  to  "  pass  current,"  are 
not  money  in  an  exact  sense,  because  they  are  not 
made  a  Iciral  tender  in  the  payment  of  debts.  The 
queation  has  been  made  whether  a  paper  currency 
can  be  constitutionally  authorized  by  congress  and 


constituted  a  legal  tender  in  the  payment  of  private 
debts.  Such  a  power  has  been  exercised  and  ad- 
judged valid  by  the  highest  tribunal  of  several  of 
the  states,  but  has  not  been  passed  upon  by  the 
supreme  court  of  the  United  States. 

For  many  purposes,  bank-notes,  1  Youn^e 
&  J.  Exch.  380  ;  3  Mass.  405  ;  14  id.  122  ;  17 
id.  560-,  4  Pick.  Mass.  74;  2  N.  H.  333  ;  7 
Cow,  N.  Y.  662;  Brayt.  Vt.  24;  a  check,  4 
Bingh.  179,  and  negotiable  notes,  3  Mass. 
405,  will  be  considered  as  money.  To  sup- 
port a  count  for  money  had  and  received,  the 
receipt  by  the  defendant  of  bank-notes,  pro- 
missory notes,  3  Mass.  405  ;  9  Pick,  Mass. 
93  ;  14  Me.  285  ;  7  Johns,  132,  credit  in  ac- 
count in  the  books  of  a  third  person,  3 
Campb,  199,  or  any  chattel,  is  sufficient,  4 
Pick,  Mass.  71  ;  17  Mass.  560,  and  wiil  be 
treated  as  money.  See  7  Wend.  N,  Y,  311 ; 
8  id.  641 ;  7  Serg.  &  R.  Penn.  246 ;  8  Term, 
687  ;  3  Bos,  &  P.  559 ;  1  Younge  &  J.  Exch. 
380. 

MONEY  OF  ADIEU.  In  Frencli 
Law.  Earnest-money:  so  called  because 
given  at  parting  in  completion  of  the  bargain. 
Pothier,  Sale,  507.  Arrhes  is  the  usual 
French  word  for  earnest-money ;  money  of 
adieu  is  a  provincialism  found  in  the  province 
of  Orleans. 

MONEY  BILLS.  Bills  or  projects  of 
ktws  providing  for  raising  revenue,  and  for 
making  grants  or  appropriations  of  the  public 
treasure. 

2.  The  first  clause  of  the  seventh  section 
of  the  constitution  of  the  United  States  de- 
clares, "all  bills  for  raising  revenue  shall 
originate  in  the  house  of  representatives  ;  but 
the  senate  may  propose  or  concur  with  amend- 
ments, as  on  other  bills."  See  Story,  Const. 
U  871-877. 

3.  What  bills  are  properly  "  bills  for  rais- 
ing revenue,"  in  the  sense  of  the  constitution, 
has  been  matter  of  some  discussion.  Tucker, 
Blackst.  Comm.  App.  261,  and  note ;  Story, 
Const.  I  877.  In  practice,  the  power  has  been 
confined  to  bills  to  levy  taxes  in  the  strict  sense 
of  the  words,  and  has  not  been  understood  to 
extend  to  bills  for  other  purposes  which  may 
incidentally  create  revenue.  Story,  id.;  2 
Elliott,  Deb.  283,  284. 

MONEY  COUNTS.    In  Pleadingr. 

The  common  counts  in  an  action  of  assumpsit. 

They  are  so  called  because  the}'  are  founded  on 
express  or  implied  promises  to  pay  money  in  con- 
sideration of  a  precedent  debt.  They  are  of  foui* 
descriptions:  the  indehiiatia  assumpsit;  the  qiuv}- 
turn  vieruit;  the  quantum  valebant;  and  the  account 
stated.    See  these  titles. 

2.  Although  the  plaintifi"  cannot  resort  to 
an  implied  promise  when  there  is  a  genera) 
contract,  yet  he  may,  in  many  cases,  recover 
on  the  common  counts  notwithstanding  there 
was  a  special  agreement,  provided  it  has 
been  executed.  1  Campb.  471  ;  12  East,  1 ; 
7  Cranch,  290;  5  Mass.  391;  10  id.W  ;  7 
Johns.  N.  Y.  132;  10  id.  136.  It  is,  therefore, 
advisable  to  insert  the  money  counts  in  an 


MONEY  HAD  AND  RECEIVED  193 


MONITION 


action  of  assumpsit,  when  suing  on  a  special 
contract.    1  Chitty,  Plead.  33,3,  334. 

MONEY  HAD  AND  RECEIVED. 

In  Pleading.  Tlie  technical  designation  of 
a  form  of  dechiration  in  assumpsit,  wherein 
the  phiintiff  declares  that  the  defendant  had 
and  received  certain  money,  etc. 

2.  An  action  of  assumpsit  will  lie  to  re- 
cover money  to  which  the  plaintiff  is  entitled, 
and  which  in  justice  and  equity,  when  no 
rule  of  policy  or  strict  law  prevents  it,  the 
defendant  ought  to  refund  to  the  plaintiff, 
and  which  he  cannot  with  a  good  conscience 
retain,  on  a  count  for  money  had  and  re- 
ceived. G  Serg.  &  R.  Penn.  369  ;  10  id.  219 ; 
1  Dall.  Penn.  148 ;  2  id.  154 ;  3  J.  J.  Marsh. 
Ky.  175  ;  1  Harr.  N.  J.  447 ;  1  Ilarr.  &  G. 
Md.  258  ;  7  Mass.  288  ;  G  Wend.  N.  Y.  290; 
13  id.  488  ;  Addison,  Contr.  230. 

3.  When  the  money  has  been  received  by 
the  defendant  in  consequence  of  some  tortious 
act  to  the  plaintiff's  property,  as  when  he  cul 
down  the  plaintiff's  timber  and  sold  it,  the 
plaintiff  may  waive  the  tort  and  sue  in  as- 
sumpsit for  money  had  and  received.  1  Dall. 
Penn.  122 ;  1  Blackf.  Ind.  181 ;  4  Pick.  Mass. 
452:  5  id.  285;  12  id.  120;  1  J.  J.  Marsh. 
Ky.  543;  4  Binn.  Penn.  374 ;  3  Watts,  Penn. 
277;  4  Call,  Va.  451. 

4.  In  general,  the  action  for  money  had 
and  received  lies  only  where  monen  has  been 
received  by  the  defendant.  14  Serg.  &  R. 
Penn.  179  ;  1  Pick.  Mass.  204  ;  IJ.  J.  Marsh. 
Ky.  544;  3  id.  G  ;  7  id.  100  ;  11  Johns.  N.  Y. 
464.  But  bank-notes  or  any  other  property 
received  aa  money  will  be  considered  for  this 
purpose  as  money.  3  Mass.  405  ;  14  id.  122; 
17  id.  5G0  ;  Bravt.  Vt.  24 :  7  Cow.  N.  Y.  622  ; 
4  Pick.  Mass.  74.  See  9  Serg.  &  R.  Penn. 
11. 

5.  No  privity  of  contract  between  the  par- 
ties is  required  in  order  to  support  this  action, 
except  that  which  results  from  the  fact  of 
one  man's  having  the  money  of  another 
which  he  cannot  conscientiously  retain.  17 
Mass.  563,  579.  See  2  Dall.  Penn.  54;  5 
Conn.  71. 

MONEY  LENT.    In  Pleading.  The 

technical  name  of  a  declaration  in  an  action 
of  assumpsit  for  that  the  defendant  promised 
to  pay  the  plaintiff  for  money  lent. 

To  recover,  the  plaintiff  must  prove  that 
the  defendant  received  his  money,  but  it  is 
not  indispensable  that  it  should  be  originally 
lent.  If,  for  example,  money  has  been  ad- 
vanced upon  a  special  contract,  which  has 
been  abandoned  and  rescinded,  and  which 
cannot  be  enforced,  the  law  raises  an  implied 
promise  from  the  person  who  holds  the 
money  to  pav  it  back  as  money  lent.  7 
Bingli.  206;  3  Mees.  &  W.  Exch.  434;  9  id. 
729.  See  1  N.  Chipm.  Vt.  214  ;  3  J.  J.  Marsh. 
Ky.  37. 

MONEY  PAID.    In  Pleading.  The 

technical  name  of  a  declaration  in  assumpsit, 
in  which  the  plaintiff  declares  for  money 
paid  for  the  use  of  the  defendant. 
Vol.  II.— 13 


2.  When  one  advances  money  for  the 
benefit  of  another  with  his  consent,  or  at  his 
express  request,  although  he  be  not  bene- 
fited by  the  transaction,  the  creditor  may 
recover  the  money  in  an  actictn  of  assump- 
sit declaring  for  monciy  paid  for  the  defend- 
ant. 5  Serg.  &  R.  Penn.  9.  But  one  can- 
not by  a  voluntary  payment  of  another's 
debt  make  himself  creditor-of  that  other.  1 
Const.  So.  C.  472;  1  Gill  &  J.  Md.  497;  5 
Cow.  N.  Y.  603;  3  Johns.  N.Y.  434;  8  id. 
436;  10  id.  361;  14  id.  87;  2  Root,  Conn. 
84 ;  2  Stew.  Ala.  500 ;  4  N.  H.  138  ;  1  South. 
N.J.  150. 

3.  Assumpsit  for  money  paid  will  not  lie 
where  property,  not  money,  has  been  paid  or 
received.  7  Serg.  &  R.  Penn.  246;  10  id. 
75  ;  14  id.  179  ;  7  J.  J.  Marsh.  Ky.  18.  But 
see  7  Cow.  N.  Y.  662. 

But  where  money  has  been  paid  to  the  de- 
fendant either  for  a  just,  legal,  or  equitable 
claim,  although  it  could  not  have  been  en- 
forced at  law,  it  cannot  be  recovered  as 
money  paid.  See  Money  Had  and  Re- 
ceived. 

The  form  of  declaring  is  for  **  money  paid 
by  the  plaintiff  for  the  use  of  the  defendant 
and  at  his  request."  1  Mees.  &  W.  Exch. 
511. 

MONEYED    CORPORATION.  A 

corporation  having  the  power  to  make  loans 
upon  pledges  or  deposits,  or  authorized  by 
law  to  make  insurance.  1  N.  Y.  Rev.  Stat. 
3d  ed.  731;  3  N.Y.  479. 

MONITION.  In  Practice.  A  process 
in  the  nature  of  a  summons,  which  is  used  in 
the  civil  law,  and  in  those  courts  which  de- 
rive their  practice  from  the  civil  law.  See 
Benedict,  Adm. 

A  general  monition  is  a  citation  or  sum- 
mons to  all  persons  interested,  or,  as  is  com- 
monly said,  to  the  whole  world,  to  appear 
and  show  cause  why  the  libel  filed  in  the  case 
should  not  be  sustained,  and  the  prayer  of 
relief  granted.  This  is  adopted  in  prize 
cases,  admiralty  suits  for  forfeitures,  and 
other  suits  in  rem,  when  no  particular  in- 
dividuals are  summoned  to  answer.  In  such 
j  cases  the  taking  possession  of  the  property 
I  libelled,  and  this  general  citation  or  monition, 
i  served  according  to  law,  are  considered  con- 
structive notice  to  the  world  of  the  pendency 
of  the  suit ;  and  the  judgment  rendered 
thereupon  is  conclusive  upon  the  title  ol  the 
property  which  may  be  affected,  in  form, 
the  monition  is  substantially  a  warrant  of 
the  court,  in  an  admiralty  cause,  directed  to 
the  marshal  or  his  deputy,  commanding  him, 
in  the  name  of  the  president  of  the  United 
States,  to  give  public  notice,  by  advertise- 
ments in  such  newspapers  as  the  court  may 
select,  and  by  notifications  to  be  posted  in 
public  places,  that  a  libel  has  been  filed  in  a 
certain  admiralty  cause  pending,  and  of  the 
time  and  place  appointed  for  the  trial.  A 
brief  statement  of  the  allegations  in  the  libel 
is  usually  contained  in  the  monition.  The 


MONITORY  LETTER 


194 


MONTES  PIETATES,  ETC. 


1 


monition  is  served  in  the  manner  directed  in 
the  warrant. 

A  mixed  monition  is  one  which  contains 
directions  for  a  general  monition  to  all  per- 
sons interested,  and  a  special  summons  to 
particular  persons  named  in  the  warrant. 
This  is  served  by  newspaper  advertisements, 
by  notifications  posted  in  public  places,  and 
by  delivery  of  a  copy  attested  by  the  officer 
to  each  person  specially  named,  or  by  leaving 
it  at  his  usual  place  of  residence. 

A  special  monition  is  a  similar  warrant, 
directed  to  the  marshal  or  his  deputy,  requir- 
ing him  to  give  special  notice  to  certain  per- 
sons, named  in  the  warrant,  of  the  pendency 


of  the  suit,  the 
and  place  of  trial. 


:rounds  of  it,  and  the  time 
It  is  served  by  delivery 
of  a  copy  of  the  warrant,  attested  by  the 
officer,  to  each  one  of  the  adverse  parties,  or 
by  leaving  the  same  at  his  usual  place  of 
residence  ;  but  the  service  should  be  personal, 
if  possible.  Gierke,  Prax.  tit.  21 ;  Dunlap, 
Adm.  Pract.  135.  See  Conkling,  Adm. ; 
Parsons,  Marit.  Law. 

MONITORY  LETTER.  In  Ecclesi- 
astical Law.  The  process  of  an  official,  a 
bishop,  or  other  prelate  having  jurisdiction, 
issued  to  compel,  by  ecclesiastical  censures, 
those  M'ho  know  of  a  crime,  or  other  matter 
which  requires  to  be  explained,  to  come  and 
reveal  it.    Merlin,  R6pert. 

MONOCRACY.  A  government  by  one 
person  only. 

MONOCRAT.  A  monarch  who  governs 
alone  ;  an  absolute  governor. 

MONOGAMY.  The  state  of  having 
only  one  husband  or  one  wnfe  at  a  time. 

A  marriage  contracted  between  one  man 
and  one  woman,  in  exclusion  of  all  the  rest 
of  mankind.  The  term  is  used  in  opposition 
to  bigamy  and  polygamy.  Wolff,  Dr.  de  la 
Nat.  I  857. 

MONOGRAM.  A  character  or  cipher 
composed  of  one  or  more  letters  interwoven, 
being  an  abbreviation  of  a  name. 

A  signature  made  by  a  monogram  would 
perhaps  be  binding  provided  it  could  be 
proved  to  have  been  made  and  intended  as  a 
signature.    1  Den.  N.  Y.  471 


ICS;  Burrows,  Ins.  484,  485.  See  Delusion^ 
Mania;  Trebuchet,  Jur.  de  la  Med.  5a-58. 

MONOPOLY.    In  Commercial  Law. 

The  abuse  of  free  commerce  by  which  one  or 
more  individuals  have  procured  the  advan- 
tage of  selling  alone  all  of  a  particular  kind 
of  merchandise,  to  the  detrimentof  the  public. 

Any  combination  among  merchants  to  raise 
the  price  of  merchandise  to  the  injury  of  the 
public. 

An  institution  or  allowance  by  a  grant 
from  the  sovereign  power  of  a  state,  by  com- 
mission, letters-patent,  or  otherwise,  to  any 
person  or  corporation,  by  which  the  exclu- 
sive right  of  buying,  selling,  making,  work- 
ing, or  using  any  thing  is  given.  Bacon, 
Abr.;  Coke,  3d  Inst.  181. 

The  constitutions  of  Maryland,  North  Caro- 
lina, and  Tennessee  declare  that  "mono- 
polies are  contrary  to  the  genius  of  a  free 
government,  and  ought  not  to  be  allowed." 
See  Copyright  ;  Patent. 

MONSTER.  An  animal  which  has  a 
conformation  contrary  to  the  order  of  nature. 
2  Dunglison,  Hum.  Phys.  422. 

A  monster,  although  born  of  a  woman  in 
lawful  wedlock,  cannot  inherit.  Those  M'ho 
have,  however,  the  essential  parts  of  the 
human  form,  and  have  merely  some  defect  of 
conformation,  are  capable  of  inheriting,  if 
otherwise  qualified.  2  Blackstone,  Comm. 
246;  1  Beck,  Med.  Jur.  3G6;  Coke,  Litt.7,  8; 
Dig.  1.  5.  14;  1  Swift,  Syst.  331 ;  Fred. Code, 
pt.  1,  b.  1,  t.  4,  I  4. 

No  living  human  birth,  however  much  it 
may  differ  from  human  shape,  can  be  law- 
fully destroyed.  Traill,  Med.  Jur.  47.  See 
Briand,  M6d.  L6g.  pt.  1,  c.  G,  art.  2,  g  3  ;  1 
Fodere,  Med.  Leg.  402-405. 

MONSTRANS  DE  DROIT  (Fr.  show- 
ing of  right).  A  common-law  process  by 
which  restitution  of  personal  or  real  property 
is  obtained  from  the  crown  by  a  sulject. 
Chitty,  Prerog.  of  Cr.  345 ;  3  Sharswood, 
Blackst.  Comm.  256.  By  this  process,  when 
the  facts  of  the  title  of  the  crown  are  already 
on  record,  the  facts  on  which  the  plaintiff 
j  relies,  not  inconsistent  Avith  such  record,  are 
!  shown,  and  judgment  of  the  court  prayed 


There  seems  to  be  no  reason  why  such  a  !  thereon.  The  judgment,  if  against  the  crown 


sigrnature  should  not  be  as  binding;  as  one 


which  is  altogether  illegible. 

MONOMANIA.    In  Medical  Juris 
prudence.    Insanity  only  upon  a  particular  | 
sabjcct,  and  with  a  single  delusion  of  the  ' 
mind.  i 

The  most  simple  form  of  this  disorder  is  that  in  1 
which  the  patient  has  imbibed  some  single  notion,  [ 
contrary  to  common  sense  and  to  his  own  expe- 
rience, and  which  seems,  and  no  doubt  really  is,  de-  | 
pendent  on  errors  of  sensation.    It  is  supposed  the  \ 
mind   in  other   respects   retains   its  intellectual  ' 
powers.    In  order  to  avoid  any  civil  act  done  or 
r^riminal  responsibility  incurred,  it  must  manifestly 
appear  that  the  act  in  (juestion  was  the  effect  of 
monomania.    Cyclop.  Pract.  Med.  Soitndnexs  and  i 
U7i«<m>idne»8  of  Mind;  Ray,  Ins.  ^  203;  13  Ves. 
Ch.  89;  3  Brown,  Ch.  444;  1  Add.  Eccl.  283;  2  id. 
■<J2;  Hagg.  18;  2  Add.  79,  94,  209;  b  Carr.  &  P.  I 


is  that  of  ouster  Ic  main,  which  vests  posscs- 
1  sion  in  the  subject  without  execution.  Bacon, 
I  Abr.  Pnroqatlve  (E);  1  And.  181;  5  Leigh, 
Va.  512;  12  Gratt.  Va.  564. 


MONSTRANS  DE  FAIT  (Fr.  showing 
of  a  deed).  A  profert.  Bacon,  Abr.  Pleas 
(I  12,  n.  1). 

MONSTRAVERUNT,  WRIT  OF. 
In  English  Law.  A  writ  which  lies  for 
the  tenants  of  ancient  demesne  who  hold  by 
free  charter,  and  not  for  those  tenants  who 
hold  by  copy  of  court-roll,  or  by  the  rod,  ac- 
cording to  the  custom  of  the  manur.  Fitzher- 
bert,  Nat.  Brev.  31. 

MONTES  PIETATIS,  MONTS  DE 
PIETE.  Institutions  established  by  public  au- 
thority for  lending  money  upon  pledge  of  goods. 


MONTH 


195 


MONUMENTS 


In  these  establishments  a  fund  is  provided, 
with  suitable  warehouses.and  all  necessary  ac- 
commodations. They  are  managed  by  direct- 
ors. When  the  money  for  which  tlie  goods 
pled;z;ed  is  not  returned  in  proper  time,  the 
goods  are  sold  to  reimburse  the  institutions. 
They  are  found  principally  on  the  continent 
of  Europe.  With  us,  private  persons,  called 
pawnbrokers,  perform  this  office, — sometimes 
with  doubtful  tidelity.    See  Bell,  Inst.  5.  2.  2. 

MONTH.  A  space  of  time  variously 
computed,  as  it  is  applied  to  astronomical, 
civil  or  solar,  or  lunar  months. 

The  astronomical  month  contains  one- 
twelfth  part  of  the  time  employed  by  the  sun 
in  going  through  the  zodiac.  In  law,  when 
a  month  simply  is  mentioned,  it  is  never 
understood  to  mean  an  astronomical  month. 

The  civil  or  solar  month  is  that  which  agrees 
with  the  Gregorian  calendar ;  and  these  months 
are  known  by  the  names  of  January,  February, 
March,  etc.  They  are  composed  of  unequal 
portions  of  time.  There  are  seven  of  thirty- 
one  days  each,  four  of  thirty,  and  one  which 
is  sometimes  composeil  of  twenty-eight  days, 
and  in  leap-years  of  twenty-nine. 

The  lunar  month  consists  of  twenty-eight 
days. 

!2.  By  the  law  of  England,  a  month  means 
ordinarily,  in  common  contracts,  as  in  leases, 
a  lunar  month.  A  contract,  therefore,  made 
for  a  lease  of  land  for  twelve  months  would 
mean  a  lease  for  forty-eight  weeks  only.  2 
Blackstone,  Comm.  141 ;  6  Coke,  62  ;  6  Term, 
224  ;  1  Maule&  S.  Ill  ;  1  Blngh.  307.  A  dis- 
tinction has  been  made  between  "  twelve 
months"  and  "a  twelve-months:"  the  latter 
has  been  held  to  mean  a  year.    6  Coke,  61. 

But  in  mercantile  contracts  a  month  sim- 
ply signifies  a  calendar  month  :  a  promissory 
note  to  pay  money  in  twelve  months  would, 
therefore,  mean  a  promise  to  pay  in  one  y 'ar, 
or  twelve  calendar  nionths.  Chitty,  Bills, 
406;  3  Brod.  &  B.  187;  1  Mnule  &  S.  Ill: 
Story,  Bills,  §  143;  Story,  Partn.  |  213;  2 
Mass.  170;  4  id.  460;  6  Watts  &  S.  Penn. 
179 ;  1  Johns.  Cas.  N.  Y.  99. 

3.  In  general,  when  a  statute  speaks  of  a 
month,  without  adding  "calendar,"  or  other 
words  showing  a  clear  intention,  it  shall  be 
intended  a  lunar  month.  Comvns,  Dig. 
Anno  (B);  4  Wend.  N.  Y.  512;  15  Johns. 
N.Y.358.  See  2  Cow.  N.  Y.  518,  605.  In  all 
legal  proceedings,  as  in  commitments,  plead- 
ings, etc..  a  month  means  four  weeks.  3  Burr. 
1453  ;  1  W.  Blackst.  450;  Dougl.  446,  463. 

In  Pennsylvania  and  Massachusetts,  and 
perhaps  some  other  states,  1  Ilill,  Abr.  118, 
n.,  a  month  mentioned  generally  in  a  statute 
has  been  construed  to  mean  a  calendar  month. 
2  Dall.  Penn.  302;  4  id.  143;  4  xAIass.  461; 
4  B  bb,  Ky.  105.  In  England,  in  the  eccles - 
astical  law,  months  are  computed  by  the 
calendar.    3  Burr.  1455;  1  Maule  &  S.  111. 

4.  In  New  York,  it  is  enacted  that  when- 
ever the  term  "month"  or  "months"  is  or 
shall  be  used  in  any  statute,  act,  deed,  verbal 
or  written  contract,  or  any  public  or  private 


instrument  whatever,  it  shall  be  construed  to 
mean  a  calendar,  and  not  a  lunar,  month, 
unless  otherwise  expressed.  Rev.  Stat.  pt.  1, 
c.  19,  tit.  1,  §  4. 

See,  generally,  2  Sim.  &  S.  Ch.  476;  2 
Campb.  294 ;  1  Esp.  146 ;  6  Term,  224 ;  1 
Maule  &  S.  Ill;  6  tc/.  227;  3  East,  407;  3 
Brod.  &  B.  187;  2  A.  K.  Marsh.  Ky.  245  :  3 
Johns.  Ch.  N.Y.  74;  4  Dall.  Penn.  143;  4 
Mass.  461. 

MONUMENT.  A  thing  intended  to 
transmit  to  p  sterity  the  memory  of  some 
one  A  tomb  where  a  dead  body  has  been 
deposited. 

In  this  sense  it  differs  from  a  cenotaph,  which  is 
an  empty  tomb.    Dig.  1 1.  7.  2.  6  ;  11.7.2.42. 

Coke  says  that  the  erecting  of  monuiiKnts  in 
church,  chiinccl,  commdn  chapel,  or  (hurchyard  in 
convenient  manntr  is  lawful ;  for  it  is  the  lui-t  work 
of  charity  that  can  be  done  for  the  decoased,  who 
whilst  he  lived  was  a  lively  temple  of  the  Holy 
Ghost,  with  a  reverend  regard  and  Christian  hope 
of  a  joyful  resuri  ection. 

2.  The  defacing  of  monuments  is  punish- 
able by  the  common  law.  Year  B.  9  Edw. 
IV.  c.  14 ;  and  trespass  may  be  maintained. 
10  F.  Moore,  494 ;  1  Cons.  So.  C.  172.  An 
heir  may  bring  an  action  against  one  that 
injures  the  monument  of  his  ancestor.  Coke, 
3d  Inst.  202 ;  Gibs.  453.  Although  the  fee 
of  church  or  churchyard  be  in  another,  yet 
he  cannot  deface  monuments.  Coke,  3d  Inst. 
202.  The  fabric  of  a  church,  however,  is  not 
to  be  injured  or  deformed  by  the  caprice  of 
individuals,  1  Cons.  So.  C.  145  ;  and  a  monu- 
ment may  be  taken  down  if  placed  incon- 
veniently. 1  Lee,  Eccl.  640.  A  monument 
containing  an  improper  inscription  can  be  re- 
moved.   1  Curt.  Eccl.  880. 

3.  Inscriptions  on  funeral  monuments, 
especially  in  questions  of  pedigree,  are  ad- 
missible as  original  evidence.  Those  which 
are  proved  to  have  been  made  by  or  under 
the  direction  of  a  deceased  relative  are  ad- 
mitted as  his  declarations.  But  if  they  have 
been  publicly  exhibited,  and  are  well  known 
to  the  family,  the  publicity  of  them  supplies 
the  defect  of  proof  in  not  showing  that  they 
were  declarations  of  deceased  members  of 
the  family  ;  and  they  are  admitted  on  the 
ground  of  tacit  and  common  consent.  It  is 
presumed  the  relatives  of  the  family  would 
not  permit  an  inscription  without  foundation 
to  remain.  Mural  and  other  funereal  inscrip- 
tions are,  from  necessity,  provable  by  copies. 
Their  value  as  evidence  depends  much  on 
the  authority  under  which  they  were  set  up, 
and  the  distance  of  time  between  their  erec- 
tion and  the  events  they  commemorate.  See 
some  remarkable  mistakes  of  fact  in  such 
inscriptions  mentioned  in  1  Phillipps,  Ev. 
234,  and  note  4.  See  Declarations  ;  Hear- 
say. 

MONUMENTS.  Permanent  landmarks 
established  for  the  purpose  of  indicating 
boundaries. 

2.  Monuments  may  be  either  natural  or 
artificial  objects:  as,  rivers,  known  streams, 


MOORING 


196  MORAL  OBLIGATION 


springs,  or  marked  trees.  6  Wheat.  582  ;  7 
id.  10;  9  Cranch,  173  ;  6  Pet.  498  ;  1  Pet.  C. 
C.  G4  ;  3  Ohio,  284  ;  5  id.  534 ;  5  N.  II.  524  ; 
3  Dev.  No.  C.  75.  Even  posts  set  up  at  the 
corners,  5  Ohio,  534,  and  a  clearing,  7  Cow. 
N.  Y.  723,  are  considered  as  monuments. 
But  see  3  Dev.  No.  C.  75. 

3.  When  monuments  are  established,  they 
must  govern  although  neitlier  courses  nor 
distances  nor  computed  contents  correspond. 
1  Cow.  N.  Y.  G05  ;  5  id.  346  ;  6  id.  706  ;  7  id. 
723  ;  2  Mass.  380 ;  6  rJ.  131 ;  3  Pick.  Mass. 
401  ;  5  id.  135  ;  3  Gill  &  J.  M  l.  142  ;  2  Harr. 
&  J.  M  l.  263;  5  id.  163,  235;  1  Harr.  & 
M'H.  Md.  355 ;  2  id.  416  ;  AVright,  Ohio,  176  ; 

5  Ohio,  534  :  Cooke,  Tenn.  146 ;  4  Hen.  &  M. 
Va.l25;  1  Call,  Va. 429 ;  3?VZ.239  ;  llMe.325; 
1  Hay  w.  No.  C.  22 ;  3  Hawks,  No.  C.  91  ;  3 
Murph.  No.  C.  88  ;  4  T.  B.  Monr.  Ky.  32  ;  5 
id.  175  ;  5  J.  J.  Marsh.  Kv.  578 ;  6  Wheat. 
582;  4  Wash.  C.  C.  15.    See  Boundary. 

MOORING.    In  Maritime  Law.  The 

securing  of  a  vessel  by  a  hawser  or  chain,  or 
otherwise,  to  the  shore,  or  to  the  bottom  by 
a  cable  and  anchor.  The  being  "  moored  in 
safety,"  under  a  policy  of  insurance,  is  being 
moored  in  port,  or  at  the  usual  place  for  land- 
ing and  taking  in  cargo,  free  from  any  im- 
mediate impending  peril  insured  against.  1 
PhiUipos,  Ins.  968;  3  Johns.  N.  Y.  88;  11 
id.  358;  2  Strange,  1243;  5  Mart.  La.  637  ; 

6  Mass.  313  ;  Code  de  Comm.  152. 

MOOT  (from  Sax.  gemot,  meeting  together. 
Ano.  Laws  and  Inst,  of  England). 

In  English  Law,  A  term  used  in  the 
inns  of  court,  signifying  the  exercise  of  argu- 
ing imaginary  cases,  which  young  barristers 
and  students  used  to  perform  at  certain 
times,  the  better  to  be  enabled  by  this  prac- 
tice to  defend  their  clients'  cases.  Orig.  Jur. 
212. 

To  plead  a  mock  cause.  (Also  spelled 
meet,  from  Sax.  motain,  to  meet ;  the  sense  of 
debate  being  from  meeting,  encountering. 
Webster,  Diet.)  A  moot  question  is  one  which 
has  not  been  decided. 

MOOT  COURT.  A  court  where  moot 
questions  are  argued.    Webster,  Diet. 

In  law  schools  this  is  one  of  the  methods 
of  instruction  ;  an  undecided  point  of  law  is 
argued  by  students  appointed  as  counsel  on 
either  side  of  the  cause,  one  or  more  of  the 
professors  sitting  as  judge  in  presence  of  the 
school.  The  argument  is  conducted  as  in 
cases  reserved  for  hearing  before  the  full 
bench. 

MOOT  HILL.  Hill  of  meeting  {gemot), 
on  wliich  the  Britons  used  to  hold  their  courts, 
the  judge  sitting  on  the  eminence,  the  par- 
ties, etc.  on  an  elevated  platform  below.  Encyc. 
Lond. 

MORA.  A  moor,  barren  or  unprofitable 
ground  ;  marsh  ;  a  heath  ;  a  watery  bog  or 
moor.  Coke,  Litt.  5 ;  Fleta,  1.  2,  c.  /  I.  See 
In  Mora. 

MORAL  CERTAINTY.    That  degree 


of  certainty  which  will  justify  a  jury  in 
grounding  on  it  their  verdict.  It  is  oniy  pro- 
bability ;  but  it  is  called  certainty,  because 
every  sane  man  assents  to  it  necessarily,  fnjm 
a  habit  produced  by  the  necessity  of  acting. 
Bessaria,  dei  Delitti  e  delle  Pena,  c.  14. 
Nothing  else  but  a  strong  presumption 
grounded  on  probable  reasons,  and  which 
very  seldom  fails  and  deceives  us.  Paffen- 
dortf.  Law  of  Nature,  b.  1,  c.  2,  ^  11.  A 
reasonable  and  moral  certainty ;  a  certainty 
that  convinces  and  directs  the  understanding 
and  satisfies  the  reason  and  judgment  of 
those  who  are  bound  to  act  conscientiously 
upon  it.  A  certainty  beyond  a  reasonable 
doubt.  Shaiv,  C.  J.,  Commonwealth  vs.  Web- 
ster, Bemis'  rep.  of  the  trial,  469,  470.  Such 
a  certainty  "  as  convinces  beyond  all  reason- 
able doubt."  Farke,  B.,  Best,  Presumpt.  257, 
note  ;  6  Rich.  Eq.  So.  C.  217. 

MORAL  INSANITY.  In  Medical 
Jurisprudence.  A  morbid  perversion  of 
the  moral  feelings,  affections,  inclinations, 
temper,  habits,  and  moral  dispositions,  without 
any  notable  lesion  of  the  intellect  or  know- 
ing and  reasoning  faculties,  and  particularly 
without  any  maniacal  hallucination.  Prich- 
ard,  art.  Insanity,  in  Cyclopaedia  of  Prac- 
tical Medicine. 

2.  It  is  contended  that  some  human  beings 
exist  who,  in  consequence  of  a  deficiency  in 
the  moral  organs,  are  as  blind  to  the  die- 
tates  of  justice  as  others  are  deaf  to  melody. 
Combe,  Moral  Philosophy,  Lect.  12. 

3.  In  some,  this  species  of  malady  is  said 
to  display  itself  in  an  irresistible  propensity 
to  commit  murder ;  in  others,  to  commit  theft, 
or  arson.  Though  most  persons  afiiict«d  with 
this  malady  commit  such  crimes,  there  are 
others  whose  disease  is  manifest  in  nothing 
but  irascibility.  Annals  de  IlygiJjne,  tom.  i. 
p.  284.  Many  are  subjected  to  melancholy 
and  dejection,  without  any  delusion  or  illu- 
sion. This,  perhaps  without  full  considera- 
tion, has  been  judicially  declared  to  be  a 
"  groundless  theory."  The  courts,  and  law- 
writers,  have  not  given  it  their  full  assent. 
1  Chitty,  Med.  Jur.  352  ;  1  Beck,  Med.  Jur. 
553;  Ray,  Med.  Jur.  Prel.  Views,  I  23, 
p.  49. 

MORAL  OBLIGATION.  A  duty  which 
one  owes,  and  which  he  ought  to  perform, 
but  which  he  is  not  legally  bound  to  fulfil. 

These  obligations  areof  two  kinds :  1st,  those 
founded  on  a  natural  right:  as,  the  obliga- 
tion to  be  charitable,  which  can  never  be  en- 
forced by  law.  2d,  those  which  are  supported 
by  a  good  or  valualjle  antecedent  considera- 
tion :  as,  where  a  man  owes  a  debt  barred 
by  the  act  of  limitations,  this  cannot  be  re- 
covered by  law,  though  it  subsists  in  morality 
and  conscience  ;  but  if  the  debtor  promise  to 
pay  it,  the  moral  obligation  is  a  sufficient 
consideration  for  the  promise,  and  the  cre- 
ditor may  maintain  an  action  of  assumpsit  to 
recover  the  money.  1  Bouvier,  Inst.  n.  623, 
See  Consideration. 


MORATUR  IN  LEGE 


197 


MORTGAGE 


MORATUR  IN  LEGE.  He  demurs  in 
law.  He  rests  on  the  pleadings  of  the  case, 
and  abides  the  judgment  of  the  court. 

MORE  OR  LESS.  Words,  in  a  convey- 
ance of  hinds  or  contract  to  convey  lands, 
importing  that  the  quantity  is  uncertain  and 
not  warranted,  and  that  no  right  of  cither 
party  under  the  contract  shall  be  affected  by 
a  deficiency  or  excess  in  the  quantity.  17 
Ves.  Ch.  394;  PowgII,  Pow.  397.  So  in  con- 
tracts of  sale  generally.  2  Barnew.  &  Ad. 
lOG. 

2.  In  case  of  an  executory  contract,  equity 
will  enforce  specific  performance  without 
changing  the  price,  if  the  excess  or  deficiency 
is  very  small,  17  Ves.  Ch.  394 ;  Powell,  Pow. 
397  ;  24  Miss.  597  ;  13  Tex.  223  ;  but  not  if 
the  cucess  or  deficiency  is  great,  even  though 
the  price  reserved  be  per  acre.  In  2  Barnew. 
&  Ad.  lOG,  it  was  held  that  an  excess  of 
fifty  quarters  over  three  hundred  quarters  of 
grain  was  not  covered  by  the  words  *'  three 
hundred  more  or  less,"  if  it  was  not  shown 
that  so  large  an  excess  was  in  contemplation. 
1  Esp.  229.  But  a  deed  adding  words  more 
or  less  to  description  of  the  property  is  not 
a  sufficient  fulfilment  of  a  contract  to  convey 
the  described  property,  when  more  or  less 
was  not  in  such  original  contract,  if  there  is 
an  actual  deficiency.  But  after  such  a  con- 
veyance is  made  and  a  note  given  for  the 
purchase-^oney,  the  note  cannot  be  defended 
against  on  ground  of  deficiency.  2  Penn.  St. 
533  ;  9  Sci-.  &  R.  Penn.  80 ;  13  id.  143  ;  10 
Johns.  N.  Y.  297  ;  4  Mass.  414. 

3.  In  ca.-re  of  an  executed  contract,  equity 
will  not  disturb  it,  unless  there  be  a  great 
deficiency,  2  Russ.  Ch.  570 ;  1  Pet.  C.  C.  49, 
or  excess,  8  Paige,  Ch.  N.  Y.  312;  2  Johns. 
N.  Y.  37  ;  Ow.  133 ;  1  Ves.  &  B.  Ch.  Ir.  375, 
or  actual  misrepresentation  without  fraud, 
and  there  be  a  material  excess  or  deficiency. 
14  N.  Y.  143. 

Eighty-five  feet,  more  or  less,  means  eighty- 
five  feet,  unless  the  deed  or  situation  of  the 
\and  in  some  way  controls  it.  20  Pick.  Mass. 
62. 

The  words  more  or  less  will  not  cover  a 
distinct  lot.  24  Mo.  574.  See  Construc- 
tion. 

MORGANATIC  MARRIAGE.  A 

lawful  and  inseparable  conjunction  of  a  single 
man  of  noble  and  illustrious  birth  with  a 
single  woman  of  an  inferior  or  plebeian  sta- 
tion, upon  this  condition,  that  neither  the 
wife  nor  children  should  partake  of  the  title, 
arms,  or  dignity  of  the  husband,  nor  succeed 
to  his  inheritance,  but  should  have  a  certain 
allowance  assigned  to  them  by  the  morganatic 
contract. 

This  relation  was  frequently  contracted 
during  the  middle  ages ;  the  marriage  cere- 
mony was  regularly  performed,  the  union 
was  for  life  and  indissoluble,  and  the  chil- 
dren were  considered  legitimate,  though  they 
could  not  inherit.  Fred.  Code,  b.  2,  art. 
3;  Pothier,  Du  Mar.  1,  c.  2,  ^  2 ;  Shelford, 
Marr.  &  D.  10 ;  Pruss.  Code,  art.  835. 


MORT  D' ANCESTOR.  An  ancient 
and  now  ahmjst  obsolete  remedy  in  the  Eng- 
lish law.  An  assize  of  mart  d'anceHtor  was 
a  writ  which  was  sued  out  where,  after  the 
decease  of  a  man's  ancestor,  a  stranger 
abated,  and  entered  into  the  estate.  Coke, 
Litt.  159.  The  remedy  in  such  case  is  now 
to  bring  ejectment. 

MORTGAGE.  The  conveyance  of  an 
estate  or  property  by  way  of  pledge  ior  the 
security  of  debt,  and  to  become  void  on  pay- 
ment of  it.    4  Kent,  Comm.  136. 

An  estate  created  by  a  conveyance  absolute 
in  its  form,  but  intended  to  secure  the  per- 
formance of  some  act,  such  as  the  payment 
of  money,  and  the  like,  by  the  grantor  or 
some  other  person,  and  to  become  void  if  the 
act  is  performed  agreeably  to  the  terms  pre- 
scribed at  the  time  of  making  such  convey- 
ance.   1  Washburn,  Real  Prop.  475. 

Both  real  and  personal  property  may  be  mort- 
gaged, and  in  substantially  the  same  manner,  ex- 
cept that  a  mortgage  being  in  its  nature  a  transfer 
of  title,  the  laws  respecting  the  necessity  of  posses- 
sion of  personal  prciperty  and  the  nature  of  in- 
struments of  transfer  being  different,  require  the 
transfer  to  be  made  differently  in  the  two  cases. 

The  nature  of  the  estate  is  indicated  by  the 
etymology  of  its  name,  mort-(ja<je, — the  French 
translation  of  the  vadium  vwrtuum,  (hat  is,  dormant 
or  dead  pledge,  in  contrast  with  vadium  vivum,  an 
active  or  living  one.  They  were  both,  ordinarily, 
securities  for  the  payment  of  money.  In  the  one 
there  was  no  life  or  active  effect  in  the  way  of 
creating  the  means  of  its  redemption  by  producing 
rents,  because,  ordinarily,  the  mortgagor  continued 
to  hold  posfession  and  receive  these.  In  the  other, 
the  mortgagee  took  possession  and  received  the 
rents  towards  his  debt,  Avhereby  the  estate  worked 
out  as  it  were  its  own  redemption.  Besides,  in  the 
one  case,  if  the  pledge  is  not  redeemed,  it  is  lost  or 
dead  as  to  the  mortgagor;  whereas  in  the  other 
the  pledge  always  survives  to  the  mortgagor  when 
it  shall  have  accomplished  its  purposes.  Coote, 
Mortg.  4;  Coke,  Litt.  205.  In  the  case  of  Welsh 
mortgages,  however,  which  are  now  disused,  the 
mortgagee  entered,  taking  the  rents  and  profits  by 
way  of  interest  on  the  debt,  and  held  the  estate 
till  the  mortgagor  paid  the  principal. 

Mortgages  are  to  be  distinguished  from  sales 
with  a  contract  for  re-purchasc.  The  distinction 
is  important,  2  Call,  Va.  428;  7  Watts,  Penn.  401 ; 
but  turns  rather  upon  the  evidence  in  each  case 
than  upon  any  general  rule  of  distinction.  6 
Blackf.  Ind.  113;  15  Johns.  N.  Y.  205;  4  Pick. 
Mass.  349.  And  see  7  Cranch,  218;  l2  How.  l;:9; 
3  Watts  &  S.  Penn.  384;  6  Mete.  Mass.  479;  3 
Gray,  Mnss.  594;  8  Paiere,  Ch.  N.  Y.  243;  4  Den. 
N.  Y.  493;  27  Mo.  113;  5  Ala.  n.  s.  698;  28  id. 
226;  3  Tex.  119;  2  J.  J.  Marsh.  Ky.  113:  3  id. 
353;  2  Yerg.  Tcnn.  6;  4  Ind.  101;  3  Tex.  11?:  10 
Cal.  197:  37  Me.  543;  28  Miss.  328;  7  Ired.  Eq. 
No.  C.  13,  167;  2  Schoales  &  L.  Ir.  Ch.  S93. 

A  mortgage  differs  from  a  pledge  :  the  general 
property  passes  by  a  mortgage,  whilst  by  a  pledge 
only  the  possession  or,  at  most,  a  special  property 
passes.  Possession  is  inseparable  from  the  nature 
of  a  pledge,  but  is  not  necessary  to  a  mortgage.  3 
Mo.  516;  5  Johns.  N.Y.  258;  10  id.  741 ;  U  id.  U6; 
2  Pick.  Mass.  610;  2  N.  II.  13;  5  Vt.  532;  26  Me. 
499. 

Mortgages  were  at  common  law  held  convey^ 
ances  upon  condition,  and  unless  the  condition  was 
performed  at  the  appointed  time  the  estate  became 
L  absolute;  in  equity,  however,  the  debt  was  cob- 


MORTGAGE 


198 


MORTGAGEE 


eidered  as  the  principal  matter,  and  the  failure  to 
perform  at  the  appointed  time  a  uiiitter  merely 
requiring  compensation  by  interest  in  the  way  of 
damages  for  the  delay.  This  right  to  redeem  be- 
came known  as  the  equity  of  redemption,  and  has 
been  limited  by  statute,  a  common  period  being 
three  years.  Courts  of  law  have  now  adopted  the 
doctrines  of  equity  with  respect  to  redemption,  und 
in  other  respects  to  a  considerable  extent.  See  1 
"Washburn,  Real  Prop.  477. 

An  equitable  mortgage  is  one  in  which  the 
mortgagor  does  not  actually  convey  the  pro- 
perty, but  does  some  act  by  which  he  mani- 
fests his  determination  to  bind  the  same  as  a 
security.    See  Equitable  Mortgage. 

A  legal  mortgage  is  a  conveyance  of  pro- 
perty intended  by  the  parties  at  the  time  of 
making  it  to  be  a  security  for  the  perform- 
ance of  some  prescribed  act.  1  Washburn, 
Real  Prop.  479. 

2.  All  kinds  of  property,  real  or  personal, 
which  are  capable  of  an  absolute  sale,  may 
be  the  subject  of  a  mortgage:  rights  in  re- 
mainder and  reversion,  franchises,  and  choses 
in  action,  may,  therefore,  be  mortgaged.  But 
a  mere  possibility  or  expectancy,  as  that  of 
an  heir,  cannot.  2  Story,  Eq.  Jur.  I  1012; 
4  Kent,  Comm.  144 ;  1  Powell,  Mortg.  17,  23 ; 
3  Mer.  Ch.  607. 

As  to  the  form,  such  a  mortgage  must  be  in 
writing,  when  it  is  intended  to  convey  the  legal 
title.  1  Penn.  240.  It  is  either  in  one  single 
deed  which  contains  the  whole  contract, — and 
which  is  the  usual  form, — or  it  is  two  separate 
instruments,  the  one  containing  an  absolute 
conveyance  and  the  other  a  defeasance,  2 
Johns.  Ch.N.Y.  189;  15  Johns.  N.  Y.  555 ;  3 
Wend.  N.  Y.  208;  7  id.  248;  2  Me.  152;  11 
id.  346;  12  Mass.  456;  7  Pick.  Mass.  157;  3 
Watts,  Penn.  188;  ^  id.  405;  and  generally, 
whenever  it  is  proved  that  a  conveyance  was 
made  for  purposes  of  security,  equity  regards 
and  treats  it  as  a  mortgage,  and  attaches 
thereto  its  incidents.  9  Wheat.  489  ;  1  How. 
118;  \2id.  139;  2  Des.  Eq.  So.  C.  564;  1  Hard. 
Ky.  6  ;  2  Cow.  N.  Y.  246  ;  9  N.  Y.  416  ; 
25  Vt.  273  ;  1  Md.  Ch.  Dec.  536  ;  3  id.  508  ;  1 
Murph.  No.  C.  116;  10  Yerg.  Tenn.  376;  3 
J.  J.  Marsh.  Kv.  353  ;  5  111.  156  ;  4  Ind.  101; 
2  Pick.  Mass.  2ll ;  20  Ohio,  464 ;  36  Me.  115 ; 
1  Cal.  203  ;  1  Wise.  527;  9  Serg.  &  R.  Penn. 
434.  In  law,  the  defeasance  must  be  of  as 
high  a  nature  as  the  conveyance  to  be  de- 
feated. 1  N.  II.  39 ;  13  Pick.  Mass.  411  ;  22 
id.  526  ;  43  Me.  206 ;  2  Johns.  Ch.  N.  Y.  191 ; 

7  Watts,  Penn.  361.  The  rule  as  to  the  ad- 
mission of  parol  evidence  to  establish  the 
character  of  a  conveyance  as  a  mortgage 
varies  in  the  different  states.  See  26  Ala. 
N.  s.  312  ;  29  id.  254  ;  7  Ark.  505  ;  18  id.  34  ; 

8  Cal.  424;  9  id.  538;  8  Conn.  186;  15  111. 
519,  528  ;  4  Blackf.  Ind.  67;  2  B.  Monr.  Ky. 
72  ;  9  Dan.  Ky.  109 :  36  Me.  562 ;  43  id.  206; 
6  Harr.  &  J.  Md.  138,  435;  3  Md.  Ch.  Dec. 
508;  13  Pick.  Mass.  411;  22  id.  526;  3 
Mich.  645  ;  23  Miss.  375  ;  10  Mo.  483  ;  22  id. 
11;  11  N.  11.  571;  Saxt.  Ch.  N.  J.  534;  10 
Barb.  N.  Y.  582 ;  1  Johns.  Ch.  N.  Y.  425, 
694;  5  Paige,  Ch.  N.  Y.  9 ;  9  N.  Y.  416;  2 


Jones,  Eq.  No.  C.  172,  256  ;  33  Penn.  St.  158; 
1  R.I.  30;  3  Rich.  So.  C.  153:  10  Yerg. 
Tenn.  373;  11  Humphr.  Tenn.  587  ;  3Tex.  1; 
14  id.  142  ;  9  Vt.  i79  ;  19  id.  9  ;  2  Cab,  Va. 
421 ;  2  Munf.  Ya.  40  ;  1  Wise.  527  ;  4  Kent, 
Comm.  143  ;  1  Washburn,  Real  Prop.  4^3. 

3.  The  mortgagor  has,  technically  speak- 
ing, in  law  a  mere  tenancy,  subject  to  the 
right  of  the  mortgagee  to  enter  immediately 
unless  restrained  by  his  agreement  to  the 
contrary.  See  34  Me.  187  ;  9  Sei  g.  &  R. 
Penn.  302;  1  Pick.  Mass.  87;  19  Johns.  N. 
Y.  325  ;  2  Conn.  1 ;  4  lied.  No.  C.  122  ;  5 
Bingh.  421;  1  Washburn,  Real  Prop.  518. 
In  equity,  however,  the  mortgage  is  held  a 
mere  security  for  the  debt,  and  only  a  chattel 
interest;  and  until  a  decree  of  foretlcsuie  the 
mortgager  is  regarded  as  the  real  owrer.  2 
Jac.  &  W.  Ch.  190  ;  4  Johns.  N.  Y.  41 ;  11  id. 
534;  4C(nn.  235;  9  Serg.  &  R.  Penn.  302; 
5  Harr.  &  J.  Md.  312;  3  Pick.  Mass.  484. 

The  mortgagee,  at  law,  is  the  owner  of  the 
land,  subject,  however,  to  a  defeat  of  title  by 
peiformance  of  the  condition,  with  a  right 
to  enter  at  any  time.  See  21  N.  H.  4C0;  9 
Conn.  216;  19  Me.  53;  2  Den.  N.  Y.  170. 
He  is,  however,  accountable  for  the  profits 
before  foreclosure.    31  Me.  10,4;  32  id.  97; 

5  Pa^ge,  Ch.  N.  Y.  1 ;  11  id.  436  :  24  C<  nn. 
1  ;  1  Halst.  Ch.  N.  J.  346 ;  2  id.  548 ;  2  Cal. 
387;  6  ria.  1 ;  1  Waf^hburn,  Real  Prep.  577. 
The  different  states  fluctuate  somewhat  be- 
tween the  rules  of  equity  and  those  of  law, 
or,  rather,  have  engrafted  the  equitable  rules 
upon  the  legal  to  an  unequal  extent.  31 
Penn.  St.  £95  ;  10  Ga.  65;  27  Barb.  N.  Y. 
503;  3  Mich.  681;  3  Greene,  Iowa,  87;  4 
Icwa,  571 ;  4  M'Cord,  So.  C.  326  ;  9  Cal.  123, 
365  ;  1  Washburn,  Real  Prop.  517  et  seq. 

4.  Assignment  of  mortgages  must  be  made 
in  accordance  with  the  requirements  of  the 
Statute  of  Frauds.  15  Mass.  233  ;  17  id.  419; 

6  Grav,  Mass.  152;  32  Me.  197;  33  id.  196; 
18  Penn.  St.  394  ;  7  Blackf.  Ind.  210  ;  5  Den. 
N.  Y,  187;  3  Ohio  St.  471 ;  27  N.  H.  3(0;  5 
Halst.  Ch.  N.J.  156;  21  Ala.  n.  s.497;  1 
Washburn,  Real  Prop.  520. 

Foreclosvre  may  result  from  occupation  by 
the  mortgagee  for  twenty  years,  or  a  period 
equal  to  the  length  of  time  necessary  to  bar 
a  writ  of  entry,  2  Mete.  Mass.  £6 ;  by  bill 
for  strict  foreclosure  to  obtain  possession, 
which  is  the  common  practice  in  England 
and  in  some  of  the  United  States,  a  time  being 
generally  allowed  for  redemption  before  the 
decree  is  made  absolute,  see  Williams,  Real 
Prop.  356 ;  1  Washburn,  Real  Prop.  600,  lor 
a  full  abstract  of  the  laws  of  the  various 
states ;  by  bill  to  obtain  a  decree  for  sale  ;  by 
entry  and  holding  possession  for  a  term  of 
years  fixed  by  law  ;  and  by  a  sale  under  a 
power  of  attorney  for  the  purpose,  inserted  in 
the  original  conveyance. 

Consult  Washburn,  Williams,  on  Real  Pro- 
pertv  ;  Hilliard,  Coote,  on  Mortgages ;  Story, 
Equity ;  Kent,  Comm.  Lect.  I.-VIII. 

MORTGAGEE.  He  to  whom  a  mort- 
gage is  made.    See  Mortgage. 


MORTGAGOR 


199 


MOTIVE 


MORTGAGOR.  He  who  makes  a  mort- 
gage.   tSee  Mortgage. 

MORTIFICATION.    In  Scotch  Law. 

A  term  nearly  synonymous  with  mortmain. 

MORTMAIN.  A  term  applied  to  denote 
the  possession  of  lands  or  tenements  by  any 
corporation,  sole  or  aggregate,  ecclesiastical 
or  temporal.  These  purchases  having  been 
chiefly  made  by  religious  houses,  in  conse- 
quence of  which  lands  became  perpetually 
inherent  in  one  dead  hand,  this  has  occasioned 
the  general  appellation  of  mortmain  to  be 
applied  to  such  alienations.  2  Blackstone, 
Comm.  268;  Coke,  Litt.  2  h;  Erskine,  Inst. 
2.  4.  10  ;  Harrington,  Stat.  27,  97.  See  Story, 
Eq.  Jur.  I  1137;  Shelford,  Mortm. 

MORTUARY.  In  Ecclesiastical  Law. 

A  burial-place.  A  kind  of  ecclesiastical 
heriot,  being  a  customary  gift  of  the  second 
best  living  animal  belonging  to  the  deceased, 
claimed  by  and  due  to  the  minister  in  many 
parishes,  on  the  death  of  his  parishioners, 
whether  buried  in  the  church-yard  or  not. 
These  mortuaries,  like  lay  heriots,  were  ori- 
ginally voluntary  bequests  to  the  church  in 
lieu  of  tithes  or  ecclesiastical  dues  neglected 
in  lifetime.  See  Soulscot.  They  were  re- 
duced to  a  certain  amount  by  21  Hen.  VIII. 
c.  6.  They  were  sometimes  payable  to  the 
lord.  Paroch.  Antiq.  470.  The  mortuary 
seems  to  have  been  carried  to  church  with 
the  corpse,  and  was  therefore  sometimes 
called  corpse-present.  2  Burn,  Eccl.  Law, 
563.  Anciently,  a  parishioner  could  not  make 
a  valid  will  without  an  assignment  of  a  suf- 
ficient mortuary  or  gift  to  the  church.  2 
Sharswood,  Blackst.  Comm.  427. 

MORTUUM  VADIUM.    A  mortgage. 

MORTUUS  (Lat.).  Dead.  Ainsworth, 
Lex.  So  in  sheriff's  return  moriuus  est,  he 
is  dead.  0.  Bridgm.  469 ;  Brooke,  Abr. 
Retorme  de  Briefe,  pi.  125  ;  19  Viner,  Abr. 
Return,  lib.  2,  pi.  12. 

MOTHER.  A  woman  who  has  borne  a 
child. 

2.  It  is  generally  the  duty  of  a  mother  to 
support  her  child,  when  she  is  left  a  widow, 
until  he  becomes  of  age  or  is  able  to  main- 
tain himself,  8  Watts,  Penn.  366  ;  16  Mass. 
135  ;  3  N.  H.  29  ;  4  id.  95  ;  and  even  after 
he  becomes  of  age,  if  he  be  chargeable  to  the 
public,  she  may,  perhaps  in  all  the  states,  be 
compelled,  when  she  has  sufficient  means,  to 
support  him.  But  when  the  child  has  pro- 
perty sufficient  for  his  support,  she  is  not, 
even  during  his  minority,  oUiged  to  maintain 
him,  1  Brown,  Ch.  387;  2  Mass.  415  ;  4  id, 
97 ;  but  will  be  entitled  to  an  allowance  out 
of  the  income  of  his  estate,  and,  if  need  be, 
out  of  the  principal,  for  his  maintenance.  2 
Fla.  36 ;  2  Atk.  Ch.  447 ;  5  Ves.  Ch.  194 ;  7 
id,  403;  3  Dutch.  N.  J.  388.  During  the 
life  of  the  father  she  is  not  bound  to  support 
her  child,  though  she  have  property  settled 
to  her  separate  use  and  the  father  be  desti- 


tute. 4  Clark  &  F.  Hou.  L.  323  ;  11  Bligh. 
N.  s.  62. 

3.  When  the  father  dies  without  leaving  a 
testamentary  guardian  at  common  law,  the 
mother  is  entitled  to  be  the  guardian  of  the 
person  and  estate  of  the  infant  until  he  ar- 
rives at  fourteen  years,  when  he  is  able  to 
choose  a  guardian.  Littleton,  I  123  ;  3  Coke, 
38;  Coke,  Litt.  84  2  Atk.  Ch.  14  ;  Comyns, 
Dig.  Feme  (B,  D,  E):  7  Ves.  Ch.  348.  See 
10  Mass.  135,  140;  2  id.  415;  Harp.  So.  C. 
9;  1  Root,  Conn.  487;  22  Barb.  N.  Y.  178; 

2  Dutch.  N.  J.  388 ;  2  Green,  Ch.  N.  J.  221  ; 

3  Dev.  &  B.  No.  C.  325  ;  9  Ala.  197.  The 
right  of  the  widowed  mother  to  the  earnings 
and  services  of  her  minor  child  docs  not  ap- 
pear to  have  been  precisely  determined  ;  but 
it  is  by  no  moans  so  absolute  as  that  of  the 
father.  31  Me.  240  ;  15  N.  H.  486  ;  4  Binn. 
Penn.  487 ;  3  Hill,  N.  Y.  400  ;  14  Ala.  123  ; 
15  Mass.  272;  16      28 ;  Harp.  So.  C.  9.  ^ 

4.  In  Pennsylvania,  when  the  father  dies 
without  leaving  a  testamentary  guardian, 
the  orphans'  court  will  appoint  a  guardian 
until  the  infant  shall  attain  his  fourteenth 
year.  During  the  joint  lives  of  the  parents, 
the  father  has  the  only  control  and  custody 
of  the  children,  except  when  in  special  cases, 
as  when  they  are  of  tender  years,  or  when 
the  habits  of  the  father  render  him  an  un- 
suitable guardian,  the  mother  is  allowed  to 
have  possession  of  them.  6  Rich.  Eq.  So.  C. 
344  ;  1  P.  Browne,  Penn.  143  ;  3  Binn.  Penn. 
320 ;  2  Serg.  &  R.  Penn.  174  ;  13  Johns.  N.  Y. 
418;  2  PhiU.  786;  2  Coll.  661. 

5.  The  mother  of  a  bastard  child,  as  natural 
guardian,  has  a  right  to  the  custody  and  con- 
trol of  such  child,  even  as  against  the  putative 
father,  and  is  bound  to  maintain  it,  2  Mass. 
109  ;  12  id.  387,  433 ;  2  Johns.  N.  Y.  375  ;  15 
1(7.208;  6  Serg.  &  R.  Penn.  255  ;  but  after  her 
death  the  court  will,  in  its  discretion,  deliver 
such  child  to  the  father  in  opposition  to  the 
claims  of  the  maternal  grandfather.  1  Ashm. 
Penn.  55  ;  Strange,  1162.    See  Bastard. 

MOTHER-IN-LAW.  The  mother  of 
one's  wife  or  of  one's  husband. 

MOTION.  In  Practice.  An  application 
to  a  court  by  one  of  the  parties  in  a  cause,  or 
his  counsel,  in  order  to  obtain  some  rule  or 
order  of  court  which  he  thinks  becomes  ne- 
cessary in  the  progress  of  the  cause,  or  to  get 
relieved  in  a  summary  manner  from  some 
matter  which  would  work  injustice. 

When  the  motion  is  made  on  some  matter 
of  fact,  it  must  be  supported  by  an  affidavit 
that  such  facts  are  true;  and  for  this  purpose 
the  party's  affidavit  wall  be  received,  though 
it  cannot  be  read  on  the  hearing.  1  Binn. 
Penn.  145;  2  Yeates,  Penn.  546.  See  3 
Blackstone,  Comm.  305  ;  2  Sellon,  Pract.  356 ; 
15  Viner,  Abr.  495;  Graham,  Pract.  542; 
Smith,  Chanc.  Pract.  Index. 

MOTIVE.  The  inducement,  cause,  or 
reason  why  a  thing  is  done. 

See  Cause;  Consideration;  Mistake; 
Witness. 


MOURNING 


200 


MUNICEPS 


MOURNING.  The  apparel  worn  at 
funerals,  and  for  a  time  afterwards,  in  order 
to  manifest  grief  for  the  death  of  some  one, 
and  to  honor  his  memory. 

The  expenses  paid  for  such  apparel. 

It  has  been  hel^,  in  England,  that  a  de- 
mand for  mourning  furnished  to  the  widow 
and  family  of  the  testator  is  not  a  funeral  ex- 
pense. 2  Carr.  &  P.  207.  See  14  Ves.  Ch. 
346;  1  Ves.  &  B.  Ch.  Ir.  364.  See  2  Bell, 
Comm.  156. 

MOVABLES.  Such  subjects  of  property 
as  attend  a  man's  person  wherever  he  goes, 
in  contradistinction  to  things  immovable. 

2.  Things  movable  by  their  nature  are 
such  as  may  be  carried  from  one  place  to  an- 
other, whether  they  move  themselves,  as 
cattle,  or  cannot  be  removed  without  an  extra- 
neous power,  as  inanimate  things.  So  in  the 
civil  law  mobilia;  but  this  term  did  not  pro- 
perly include  living  movables,  which  were 
ternied  moventia.  Calvinus,  Lex.  But  these 
words,  mobilia  and  moventia,  are  also  used 
synonymously,  and  in  the  general  sense  of 
"movables."  Ibid.  Movables  are  further 
distinguished  into  such  as  are  in  possession, 
or  which  are  in  the  power  of  the  owner,  as 
a  horse  in  actual  use,  a  piece  of  furniture  in 
a  man's  own  house,  or  such  as  are  in  the 
possession  of  another,  and  can  only  be  re- 
covered by  action,  which  are  therefore  said 
to  be  in  action,  as  a  debt.  See  Personal 
Property  ;  Fonblanque,  Eq.  Index  ;  Powell, 
Mortg.  Index  ;  2  Sharswood,  Blackst.  Comm. 
384;  La.  Civ.  Code,  art.  464-472;  1  Bouvier, 
Inst.  n.  462;  2  Stephen,  Comm.  67;  Shep- 
pard,  Touchst.  447  ;  1  P.  Will.  Ch.  267. 

3.  In  a  will,  "movables"  is  used  in  its 
largest  sense,  but  will  not  pass  growing  crop, 
nor  building-materials  on  ground.  2  Williams, 
Exec.  1014;  3  A.  K.  Marsh.  Ky.  123;  1 
Yeates,  Penn.  101;  2  Dall.  Penn.  142. 

In  Scotch  Law.  Every  right  which  a 
man  can  hold  which  is  not  heritable :  opposed 
to  heritage.    Bell,  Diet. 

MULATTO.  A  person  born  of  one  white 
and  one  black  parent.  7  Mass.  88 ;  2  Bail. 
So.  C.  558. 

MULCT.  A  fine  imposed  on  the  convic- 
tion of  an  offence. 

An  imposition  laid  on  ships  or  goods  by  a 
company  of  trade  for  the  maintenance  of  con- 
suls and  the  like.  It  is  obsolete  in  the  latter 
sense,  and  but  seldom  used  in  the  former. 

MULIER.  Of  ancient  time,  mulier  was 
taken  for  a  wife,  as  it  is  commonly  used  for 
a  woman,  and  sometimes  for  a  widow  ;  but  it 
has  been  held  that  a  virgin  is  included  under 
the  name  mulier.  Coke,  Litt.  170,  243 ;  2 
Blackstone,  Comm.  248. 

The  term  is  used  always  in  contradistinction  to  a 
bastard,  mulier  being  always  legitimate,  Coke,  Jjitt. 
243,  and  seems  to  ha  a  word  corrupted  from  mc/iar, 
or  the  French  meillenr,  signifying  lawful  issue  born 
in  wedlock.  But  by  Glanville,  lawful  issue  are  said 
to  be  mulier,  not  from  melior,  but  because  begotten 
^  vntieie,  and  not  ex  coucubind,  for  he  calls  such 
issue  Jilioe  mulieratoa,  opposing  them  to  bastards. 


Glanville,  lib.  7,  c.  1.  If  the  said  lands  "should, 
according  to  the  queen's  lawes,  descend  to  the  right 
heire,  tlien  in  right  it  ought  to  descend  to  him,  as 
next  heire  being  mulierlie  borne,  and  the  other  not 
so  borne."    Holinshed,  Chron.  of  Ireland,  an.  1558. 

MULTIFARIOUSNESS.    In  Equity 

Pleading.  The  demand  in  one  bill  of  several 
matters  of  a  distinct  and  independent  nature 
against  several  defendants.  Cooper,  Eq. 
Plead.  182  ;  18  Ves.  Ch.  80  ;  2  Mas.  C.  C.  201 : 
4  Cow.  N.  Y.  682;  2  Gray,  Mass.  467. 

The  uniting  in  one  bill  against  a  single  de- 
fendant several  matters  periectly  distinct  and 
unconnected.  This  latter  is  more  properly 
called  misjoinder,  which  title  see. 

The  subject  admits  of  no  general  rules,  but 
the  courts  seem  to  consider  the  circumstances 
of  each  case  with  reference  to  avoiding  on  one 
hand  a  multiplicity  of  suits,  and  on  the  other 
inconvenience  and  hardship  to  the  defendants 
from  being  obliged  to  answer  matters  with 
which  they  have,  in  great  part,  no  connec- 
tion, and  the  complication  and  confusion  of 
evidence.  1  Mylne  &  C.  Ch.  018  ;  5  Sim.  Ch. 
288  ;  3  Stor.  C.  C.  25  ;  2  Gray,  Mass.  471 ; 
Story,  Eq.  Plead.  U  274,  530.  It  is  to  be 
taken  advantage  of  by  demurrer,  2  Anstr. 
469,  or  by  plea  and  answer  previous  to  a 
hearing.  Story,  Eq.  Plead.  530,  n.,  or  by  the 
court  of  its  own  accord  at  any  time.  1  Mylne 
&  K.  546  ;  3  How.  412 ;  5  id.  127.  See,  gene- 
rally. Story,  Eq.  Plead.  U  274-290,530-540; 
4  Bouvier,  Inst.  n.  4243. 

MULTIPLE  POINDING.  In  Scotch 
Law.  Double  distress :  a  name  given  to  an 
action  which  may  be  brought  by  a  person  in 
possession  of  goods  claimed  by  different  per- 
sons pretending  a  right  thereto,  calling  the 
claimants  and  all  others  to  settle  their  claims, 
so  that  the  party  who  sues  may  be  liable  only 
"in  once  and  single  payment."  Bell,  Diet.; 
2  Bell,  Comm.  299;  Stair,  Inst.  3.  1.  39. 

MULTITUDE.  The  meaning  of  this  word 
is  not  very  certain.  By  some  it  is  said  that 
to  make  a  multitude  there  must  be  ten  per- 
sons at  least,  while  others  contend  that  the 
law  has  not  fixed  any  number.  Coke,  Litt. 
257. 

MULTURE.    In  Scotch  Law.  The 

quantity  of  grain  or  meal  payable  to  the  pro- 
prietor of  the  mill,  or  to  the  multurer,  his 
tacksman,  for  manufacturing  the  corns. 
Erskine,  Inst.  2.  9.  19. 

MUNERA.  The  name  given  to  grants 
made  in  the  early  feudal  ages,  which  were 
merely  tenancies  at  will  or  (luring  the  pica- 
sure  of  the  grantor.  Dalrymple,  Feud.  198, 
199;  AVright,  Ten.  19. 

MUNICEPS  (Lat.  from  mvvus,  office, 
and  capere,  to  take).  In  Roman  Law.  Eli- 
gible to  office. 

A  freeman  born  in  a  municipality  or  town 
other  than  Rome,  who  had  come  to  Rome,  and 
though  a  Roman  citizen,  yet  was  looked  down 
upon  as  a  provincial,  and  not  allowed  to  hold 
the  higher  offices  {digniiates .) 

The  inhabitants  of  a  municipality  entitled 


MUNICIPAL 


201 


MURDER 


to  hold  municipal  offices.  Voc.  Jur.  Utr. ; 
Calvinus,  Lex. 

MUNICIPAL.  Strictly,  this  word  ap- 
plies only  to  what  belongs  to  a  city. 

Among  the  Romans,  cities  were  called  municipia: 
these  cities  voluntarily  joined  the  Roman  republic 
in  relation  to  their  sovereignty  only,  retaining  their 
laws,  their  liberties,  and  their  magistrates,  who 
were  thence  called  immicipal  mu(jiHi rates.  With  us 
this  word  has  a  more  extensive  meaning:  for  ex- 
ample, we  call  municipal  law  not  the  law  of  a  city 
only,  but  the  law  of  the  state.  1  Blackstone,  Comm. 
Municipal  is  used  in  contradistinction  to  interna- 
tional: thus,  we  say,  an  offence  against  the  law  of 
nations  is  an  international  offence,  but  one  com- 
mitted against  a  particular  state  or  separate  com- 
munity is  a  municipal  offence. 

MUNICIPAL  CORPORATION.  A 

public  corporation,  created  by  government 
for  political  purposes,  and  having  subordinate 
and  local  powers  of  legislation :  e.g.  a  county, 
town,  city,  etc.  2  Kent,  Comm.  275  ;  Angell 
&  A.  Corp.  9,  29  ;  1  Baldw.  C.  C.  222.  An 
incorporation  of  persons,  inhabitants  of  a  par- 
ticular place,  or  connected  with  a  particular 
district,  enabling  tbem  to  conduct  its  local 
civil  government.    Glover,  Mun.  Corp.  1. 

MUNICIPAL  LAW.  In  contradistinc- 
tion to  international  law,  is  the  system  of  law 
proper  to  any  single  nation  or  state.  It  is 
the  rule  or  law  by  which  a  particular  district, 
community,  or  nation  is  governed.  1  Black- 
stone,  Comm.  44. 

Municipal  law  contrasts  with  international  law, 
in  that  it  is  a  system  of  law  proper  to  a  single  na- 
tion, state,  or  community.  See  Municipal  Law.  In 
any  one  state  the  municipal  law  of  another  state  is 
foreign  law.  See  Forkigx  Law.  A  conflict  of 
laws  arises  where  a  case  arising  in  one  state  involves 
foreign  persons  or  interests,  and  the  foreign  and 
the  domestic  law  do  not  agree  as  to  the  proper  rule 
to  be  applied.    See  Conflict  of  Laws. 

The  various  provinces  of  municipal  law  are 
characterized  according  to  the  subjects  with 
which  they  respectively  treat :  as,  criminal  or 
penal  law,  civil  law,  militarij  law,  and  the 
like.  Constihitional  law,  commercial  law, 
parliamentary  law,  and  the  like,  are  depart- 
ments of  the  general  province  of  civil  law,  as 
distinguished  from  criminal  and  military  law. 

MUNICIPALITY.  The  body  of  officers, 
taken  collectively,  belonging  to  a  city,  who 
are  appointed  to  manage  its  affairs  and  de- 
fend its  interests. 

MUNIMENTS.  The  instruments  of 
writing  and  written  evidences  which  the 
owner  of  lands,  possessions,  or  inheritances 
has,  by  which  he  is  enabled  to  defend  the 
title  of  his  estate.  Termes  dela  Ley  ;  Coke, 
3d  Inst.  170. 

MUNUS.  A  gift ;  an  office  ;  a  benefice, 
or  feud.  A  gladiatorial  show  or  spectacle. 
Calvinus,  Lex. ;  DuCange. 

MURAGE.  A  toll  formerly  levied  in 
England  for  repairing  or  building  public 
walls. 

MURAL  MONUMENTS.  Monuments 
made  in  walls. 


Owing  to  the  difficulty  or  impossibility  of 
removing  them,  secondary  evidence  may  be 
given  of  inscriptions  on  walls,  fixed  tables, 
gravestones,  and  the  like.    2  Stark.  274. 

MURDER.  In  Criminal  Law.  The 
willul  killing  of  any  Hubj&ct  whatever,  with 
malice  aforethought,  whether  the  person  slain 
shall  be  an  Englishman  or  a  foreigner.  Haw- 
kins, PI.  Cr.  b.  1,  c.  13,  8.  3.  Russell  says, 
the  killing  of  any  person  under  the  king's 
peace,  with  malice  prepense  or  aforethought, 
either  express  or  implied  by  law.  1  Russell, 
Crimes,  421 ;  5  Cush.  Mass.  304.  When  a 
person  of  sound  mind  and  discretion  unlaw- 
fully killeth  any  reasonable  creature  in  being, 
and  under  the  king's  peace,  with  malice  afore- 
thought, either  express  or  implied.  Coke,  3d 
Inst.  47. 

This  latter  definition,  which  has  been  adopted 
by  Blackstone,  4  Comm.  Vdb ;  Chitty,  2  Crim.  Law, 
724,  and  others,  has  been  severely  criticized.  What, 
it  has  been  asked,  are  nouud  memory  and  under- 
staridiiif/?  What  has  soundness  of  memory  to  do 
with  the  act?  be  it  ever  so  imperfect,  how  does  it 
affect  the  guilt?  If  discretion  is  necessary,  can  the 
crime  ever  be  committed  ?  for  is  it  not  the  highest 
indiscretion  in  a  man  to  take  the  life  of  another, 
and  thereby  expose  his  own  ?  If  the  person  killed 
be  an  idiot  or  a  new-born  infant,  is  he  a  reas^onable 
creature?  Who  is  in  the  king's  peace?  What  is 
malice  afterthought?  Can  there  be  any  malice 
aforethought?  Livingston,  Pen.  Law,  186.  It  is, 
however,  apparent  that  some  of  the  criticisms  are 
merely  verbal,  and  others  are  answered  by  the  con- 
struction given  in  the  various  cases  to  the  require- 
ments of  the  definition.  See,  especially,  5  Cush. 
Mass.  304. 

2.  According  to  Coke's  definition,  there 
must  be,  Jirst,  sound  mind  and  memory  in 
the  agent.  By  this  is  understood  there  must 
be  a  will  and  legal  discretion.  Second,  an 
actual  killing;  but  it  is  not  necessary  that  it 
should  be  caused  by  direct  violence :  it  is  suf- 
ficient if  the  acts  done  apparently  endanger 
life,  and  eventually  prove  fatal.  Hawkins, 
PI.  Cr.  b.  1,  c.  31,  s.  4;  1  Hale,  PI.  Cr.  431 ; 
1  Ashm.  Penn.  289 ;  9  Carr.  &  P.  356  ;  2 
Palm.  545.  Third,  the  party  killed  must 
have  been  a  reasonable  being,  alive  and  in 
the  king's  peace.  To  constitute  a  birth,  so 
as  to  make  the  killing  of  a  child  murder,  the 
whole  body  must  be  detached  from  that  of 
the  mother ;  but  if  it  has  come  wholly  forth, 
but  is  still  connected  by  the  umbilical  cord, 
such  killing  will  be  murder.  2  Bouvier,  Inst, 
n.  1722,  note.  Foeticide  would  not  be  such  a 
killing:  he  must  have  been  in  rerum  naturd. 
Fourth,  malice,  either  express  or  implied.  It 
is  this  circumstance  which  distinguishes  mur- 
der from  every  description  of  homicide.  See 
Malice. 

3.  In  some  of  the  states,  by  legislative  en- 
actments, murder  has  been  divided  into  de- 
grees. In  Pennsylvania,  the  act  of  April  22, 
1794,  3  Smith,  Laws,  186,  makes  "all  murder 
which  shall  be  perpetrated  by  means  of  poi- 
son, or  by  lying  in  wait,  or  by  any  other  kind 
of  wilful,  deliberate,  and  premeditated  kill- 
ing, or  which  shall  be  committed  in  the  per- 
petration or  attempt  to  perpetrate  any  arson, 


MURDRUM 


202 


MUTE 


rape,  robbery,  or  burglary,  shall  be  deemed 
murder  of  the  first  degree  ;  and  all  other 
kinds  of  murder  shall  be  deemed  murder  of 
the  second  degree  ;  and  the  jury  before  whom 
any  person  indicted  for  murder  shall  be  tried 
shall,  if  they  find  the  person  guilty  thereof, 
ascertain  in  their  verdict  whether  it  be  mur- 
der of  the  first  or  second  degree  ;  but  if  such 
person  shall  be  convicted  by  confession,  the 
court  shall  proceed,  by  examination  of  wit- 
nesses, to  determine  the  degree  of  the  crime, 
and  give  sentence  accordingly.'^  Many  deci- 
sions have  been  made  under  this  act,  to  which 
the  reader  is  referred.  See  Wharton,  Crim. 
Law. 

Similar  enactments  have  been  .made  in 
Massachusetts,  Tennessee,  and  Virginia.  3 
Yerg.  Tenn.  283  ;  5  id.  340  ;  G  Rand.  Va.  721.  I 
See,  generally,  Bishop,  Gabbett,  Russell, 
Wharton,  Crim.  Law ;  Roscoe,  Crim.  Ev.  ; 
Archbold,  Crim.  Pract. ;  Hawkins,  Hale,  Pleas 
of  the  Crown. 

In  Pleading.  In  an  indictment  for  mur- 
der, it  must  be  charged  that  the  prisoner 
"did  kill  and  murder"  the  deceased;  and  un- 
less the  word  murder  be  introduced  into  the 
charge,  the  indictment  will  be  taken  to  charge 
manslaughter  only.  Foster,  Crim.  Law,  424 ; 
Yelv.  205  ;  1  Chitty,  Crim.  Law,  *243,  and 
the  authorities  and  cases  there  cited. 

MURDRUM.  In  Old  English  Law. 
During  the  times  of  the  Danes,  and  after- 
wards till  the  reign  of  Edward  IIL,  mur- 
drum was  the  killing  of  a  man  in  a  secret 
manner;  and  in  that  it  difi^ered  from  simple 
homicide. 

When  a  man  Tras  thus  killed,  and  he  was  un- 
known, by  the  laws  of  Canute  he  was  presumed  to 
be  a  Dane,  and  the  vill  was  compelled  to  pay  forty 
marks  for  his  death.  After  the  conquest,  a  similar 
law  was  made  in  favor  of  Frenchmen,  which  was 
abolished  by  8  Edw.  III. 

The  fine  formerly  imposed  in  England  upon 
a  person  who  had  committed  homicide  yer  in- 
fortunium or  se  defendendo.  Prin.  Pen.  Law, 
219,  note  r. 

MUSICAL  COMPOSITION.  The  act 
of  congress  of  February  3,  1831,  authorizes 
the  granting  of  a  copyright  for  a  musical 
composition.  A  question  was  formerly  agi- 
tated whether  a  composition  published  on  a 
single  sheet  of  paper  was  to  be  considered  a 
book;  and  it  was  decided  in  the  affirmative. 
2  Campb.  28,  n. ;  11  East,  244.    See  Copy- 

RIGHT. 

TO  MUSTER.  To  collect  together  and  ex- 
hibit soldiers  and  their  arms.  To  employ  re- 
cruits, and  put  their  names  down  in  a  book  to 
enrol  them. 

MUSTER-ROLL.  A  written  document 
containing  the  names,  ages,  quality,  place  of 
residence,  and,  above  all,  place  of  birth,  of 
every  person  of  the  ship's  company.  It  is 
of  great  use  in  ascertaining  the  ship's  neu- 
trality. Marshall,  Ins.  b.  1,  c.  9,  s.  6,  p.  407 ; 
Jacobson,  Sea  Laws,  IGl ;  2  Wash.  C.  C.  201. 

MUSTIRO.  A  name  given  to  the  issue 
of  an  Indian  and  a  negro.    Dudl.  So.  C.  174. 


MUTATION.  In  French  Law.  Thia 
term  is  synonymous  with  change,  and  is  par- 
ticularly applied  to  designate  the  change 
which  takes  place  in  the  property  of  a  thing 
in  its  transmission  from  one  person  to  an- 
other. Permutation  therefore  happens  when 
the  owner  of  the  thing  sells,  exchanges,  or 
gives  it.  It  is  nearly  synonymous  with  trans- 
fer.   Merlin,  Rupert. 

MUTATION  OF  LIBEL.  In  Practice. 

An  amendment  allowed  to  a  libel,  by  which 
there  is  an  alteration  of  the  substance  of  the 
libel,  as  by  propounding  a  new  cause  of  ac- 
tion, or  asking  one  thing  instead  of  another. 
Dunlap,  Adm.  Pr.  213 ;  Law.  Eccl.  Law,  165- 
167  ;  1  Paine,  C.  C.  435  ;  1  Gall.  C.  C.  123 ; 
1  Wheat.  261. 

MUTATIS  MUTANDIS  (Lat.).  The  ne- 
cessary changes.  This  is  a  phrase  of  frequent 
practical  occurrence,  meaning  that  matters 
or  things  are  generally  the  same,  but  to  be 
altered  when  necessary,  as  to  names,  offices, 
and  the  like. 

MUTE  {mutus).  When  a  prisoner  upon 
his  arraignment  totally  refuses  to  answer,  in- 
sists upon  mere  frivolous  pretences,  or  refuses 
to  put  himself  upon  the  country,  after  plead- 
ing not  guilty,  he  is  said  to  stand  mute. 

In  the  case  of  the  United  States  vs.  Hare 
et  al..  Circuit  Court,  Maryland  Dist.  May 
sess.  1818,  the  prisoner  standing  mute  was 
considered  as  if  he  had  pleaded  not  guilty. 
The  act  of  congress  of  March  3,  1825,  3  Story, 
U.  S.  Laws,  2U02,  has  since  provided  as  fol- 
lows :  ^  14,  That  if  any  person,  upon  his  or 
her  arraignment  upon  any  indictment  before 
any  court  of  the  United  States  for  any  offence 
not  capital,  shall  stand  mute,  or  will  not  an- 
swer or  plead  to  such  indictment,  the  court 
shall,  notwithstanding,  proceed  to  the  trial  of 
the  person  so  standing  mute,  or  refusing  to 
answer  or  plead,  as  if  he  or  she  had  pleaded 
not  guilty,  and,  upon  a  verdict  being  returned 
by  the  jury,  may  proceed  to  render  judgment 
accordingly.  A  similar  provision  is  to  be 
found  in  the  laws  of  Pennsylvania  and  New 
York.    2  Rev.  Stat.  730. 

In  formertimes,  in  England, theterriblepun- 
ishment  or  sentence  of  penance  or  peine  (pro- 
bably a  corrupted  abbreviation  of  prisone)fort 
et  dure  was  inflicted  where  a  prisoner  would 
not  plead,  and  stood  obstinately  mute.  This 
judgment  of  penance  for  standing  mute  was 
as  follows :  that  the  prisoner  be  remanded  to 
the  prison  from  whence  he  came,  and  put 
into  a  low,  dark  chamber,  and  there  be  laid 
on  his  back,  on  the  bare  floor,  naked, — unless 
where  decency  forbids;  that  there  be  placed 
upon  his  body  as  great  a  weight  of  iron  afe  he 
could  bear ;  and,  more,  that  he  have  no  sus- 
tenance, save  only  on  the  first  day  three  mor- 
sels of  the  worst  bread,  and  on  the  second 
day  three  draughts  of  standing  water  that 
should  be  nearest  to  the  prison-door ;  and  in 
this  situation  this  should  be  alternately  his 
daily  diet  till  he  died  or  (as  anciently  the 
judgment  ran)  till  he  answered.  Britton, 


MUTILATION 


203 


MYSTIC  TESTAMENT 


c.  4,  22  ;  Fleta,  lib.  1,  c.  34,  I  33.  See  Peine 
Forte  et  Duue. 

MUTILATION.     In   Criminal  Law. 

The  (leprivuij^  a  man  of  tlie  utsc  ot'  any  i^t' 
those  limbs  which  may  be  useiul  to  him  in 
fight,  the  loss  of  which  amounts  to  mayhem. 
1  Blackstone,  Comm.  130. 

MUTINY.  In  Criminal  Law.  The 
unlawful  resistance  of  a  superior  officer,  or 
the  raising  of  commotions  and  disturbances 
on  board  of  a  ship  against  the  authority  of 
its  commander,  or  in  the  army  in  opposition 
to  the  authority  of  the  officers  ;  a  sedition  ;  a 
revolt. 

2.  By  the  act  for  establishing  rules  and 
articles  fi)r  the  government  of  the  armies  of 
the  United  States,  it  is  enacted  as  follows: 
Article  7.  Any  officer  or  soldier,  who  shall 
begin,  excite,  or  cause,  or  join  in,  any  mutiny 
or  sedition  in  any  troop  or  company  in  the 
service  of  the  United  States,  or  in  any  party, 
post,  detachment,  or  guard,  shall  suffer  death, 
or  such  other  punishment  as  by  a  court-mar- 
tial shall  be  inflicted.  Article  8.  Any  officer, 
non-commissioned  officer,  or  soldier  who,  being 
present  at  any  mutiny  or  sedition,  does  not 
use  his  utmost  endeavors  to  suppress  the 
same,  or,  coming  to  the  knowledge  of  any  in- 
tended mutiny,  does  not  without  delay  give 
information  thereof  to  his  commanding  officer, 
shall  be  punished  by  the  sentence  of  a  court- 
martial,  with  death,  or  otherwise,  according 
to  the  nature  of  his  offence. 

3.  And  by  the  act  for  the  better  govern- 
ment of  the  navy  of  the  United  States,  it  is 
enacted  as  follows:  Article  13.  If  any  per- 
son in  the  navy  shall  make  or  attempt  to 
make  any  mutinous  assembly,  he  shall,  on 
conviction  thereof  by  a  court-martial,  suffer 
death  ;  and  if  any  person  as  aforesaid  shall 
utter  any  seditious  or  mutinous  words,  or 
shall  conceal  or  connive  at  any  mutinous  or 
seditious  practices,  or  shall  treat  with  con- 
tempt his  superior,  being  in  the  execution  of 
his  office,  or,  being  witness  to  any  mutiny  or 
sedition,  shall  not  do  his  utmost  to  suppress 
it,  he  shall  be  punished  at  the  discretion  of  a 
court-martial.  See  2  Strange,  1264  ;  2  U.  S. 
Stat,  at  Large,  359. 

4.  Mutiny,  revolt,  and  the  endeavor  to 
make  a  revolt  or  mutiny,  on  board  merchant- 
vessels,  are  made  criminal,  and  the  punish- 
ment provided  for,  by  sec.  8,  Act  of  30  April, 
1790,  1  U.  S.  Stat,  at  Large,  113,  and  the  1st 
&  2d  sections  of  the  Act  of  3d  March,  1835. 
4  id.  775  ;  2  Curt.  C.  C.  Rep.  225  ;  1  Woodb.  & 
M.  C.  C.  305 ;  2  Sumn.  C.  C.  582. 

MUTINY  ACT.    In  English  Law.  A 

statute,  annually  passed,  to  punish  mutiny 
and  desertion,  and  for  the  better  payment  of 
the  army  and  their  quarters.    It  was  first 


passed  12th  of  April,  1G89.  See  22  Vict.  cc. 
4,5.  Tlie  passage  of  this  bill  is  the  only  pro- 
vision i'or  tlie  payment  of  the  army,  and,  like 
our  appropnatxon  bills,  it  must  be  jiassed  or 
the  wiieeis  of  government  will  be  st(;pp<'d. 
There  is  a  similar  act  with  icgaid  to  the 
navy.  1  Sharswood,  Blackst.  Comm.  41G, 
417,  n. 

MUTUAL  CREDITS.  Credits  given  hj 
two  persons  mutually,  i.e.  each  giving  credit 
to  the  other.  It  is  a  more  extensive  phraso 
than  mutual  debts.  Thus,  the  f-um  credited 
by  one  may  be  due  at  once,  lhat  by  the  other 
payable  in  J'uiuro :  yet  the  credits  are  mutual, 
though  the  transaction  would  not  come  within 
the  meaning  of  mutual  debts.  1  Alk.  Ch.  230 ; 
7  Term,  378.  And  it  is  not  necesf-ary  that 
there  should  be  intent  to  trust  each  other: 
thus,  where  an  acceptance  of  A  came  into 
hands  of  B,  who  bought  goods  of  A,  not 
knowing  the  acceptance  to  be  in  B's  hands, 
it  was  hehl  a  mutual  credit.  3  Term,  507,  n. ; 
4  id.  211  ;  3  Ves.  Ch.  G5  ;  8  Taunt.  156,  499 ; 
1  Holt,  408;  2  Smith,  Load.  Cas.  179;  26 
Barb.  N.  Y.  310;  4  Gray,  Mass.  284. 

MUTUAL  PROMISES.  Promises 
simultaneously  made  by  two  parties  to  each 
other,  each  promise  being  the  consideration 
of  the  other.  Hob.  88  ;  14  Mees.  &  W.  Exch. 
855 ;  Addison,  Contr.  22.  If  one  of  the 
promises  be  voidable,  it  will  yet  be  good  con- 
sideration, but  not  if  void.  Story,  Contr.  § 
81 ;  2  Stephen,  Comm.  114. 

MUTUALITY.  Reciprocity  ;  an  acting 
in  return.  Webster,  Diet. ;  Addison,  Contr. 
022. 

MUTUARY.  A  person  who  borrows 
perscmal  chattels  to  be  consumed  by  him  and 
returned  to  the  lender  in  kind  ;  the  person 
who  receives  the  benefit  arising  from  the 
contract  of  mutuum.    Story,  Bailm.  ^  47. 

MUTUUM.  A  loan  of  personal  chattels 
to  be  consumed  by  the  borrower  and  to  be 
returned  to  the  lender  in  kind  and  quantity  : 
as,  a  loan  of  corn,  wine,  or  money  which  are 
to  be  used  or  consumed,  and  are  to  be  replaced 
by  other  corn,  wine,  or  money.  Story,  liailm. 
^  228.    See  Loan  for  Use. 

MYSTERY  (said  to  be  derived  from  the 
French  inestier,  now  written  metier,  a  trade). 
A  trade,  art,  or  occupation.  Coke,  2d  Inst. 
G68. 

Masters  frequently  bind  themselves  in  the 
indentures  with  their  apprentices  to  teach 
them  their  art,  trade,  and  mystery.  See 
Hawkins,  PI.  Cr.  c.  23,  s.  11. 

MYSTIC  TESTAMENT.  A  will  under 
seal.  La.  Civ.  Code,  art.  15G7  ;  5  Mart.  La 
182  ;  5  La.  396;  10  id.  328 ;  15  id.  88. 


NAIL 


204 


NATIONALITY 


N. 


NA.IL.  A  measure  of  length,  equal  to 
two  inches  and  a  quarter.    See  Measure. 

NAKED.  This  word  is  used  in  a  meta- 
phorical sense  to  denote  that  a  thing  is  not 
complete,  and  for  want  of  some  quality  it  is 
either  without  power  or  it  possesses  a  limited 
power.  A  naked  contract  is  one  made  with- 
out consideration,  and  for  that  reason  it  is 
void  ;  a  naked  authority  is  one  given  without 
any  right  in  the  agent,  and  wholly  for  the 
benefit  of  the  principal.  2  Bouvier,  Inst.  n. 
1302.    See  Nudum  Pactum. 

NAME.  One  or  more  words  used  to  dis- 
tinguish a  particular  individual:  as,  Socrates, 
Benjamin  Franklin. 

2.  Names  are  Christian,  as  Benjamin,  or 
surnames,  as  Franklin.  One  Christian  name 
only  is  recognized  in  law,  1  Ld.  Raym.  562 ; 
Bacon,  Abr.  Misnomer  (A) ;  though  two  or 
more  names  usually  kept  separate,  as  John 
and  Peter,  may  undoubtedly  be  compounded, 
so  as  to  form  in  contemplation  of  law  but 
one.  5  Term,  195.  A  letter  put  between  the 
Christian  and  surname  as  an  abbreviation  of 
a  part  of  the  Christian  name,  as  John  B.  Peter- 
son, is  no  part  of  either.  4  Watts,  Penn. 
329 ;  5  Johns.  N.  Y.  84  ;  14  Pet.  322  ;  3  id. 

7  ;  2  Cow.  N.  Y.  403  ;  17  Ala.  n.  s.  179  ;  10 
Miss.  391  ;  Coke,  Litt.  3  a;  1  Ld.  Raym. 
562;  Viner,  Abr,  Misnomer  (C  6,  pi.  5,  6) ; 
Comyns,  Dig.  Indictment  (G  1,  note  u) ; 
Willes,  654 ;  Bacon,  Abr.  Misnomer  and  Addi- 
tion ;  3  Chitty,  Pract.  164,  173.  But  see  7 
Watts  &  S.  Penn.  406  ;  19  Ohio,  423;  1  Swan, 
Tenn.  102.  As  to  the  use  of  junior  and 
senior,  see  1  Pick.  Mass.  388  ;  2  Caines,  N. 
Y.  165  ;  9  N.  II.  519  ;  22  Me.  171 ;  8  Conn. 
280. 

3.  In  general,  a  corporation  must  contract 
and  sue,  and  be  sued,  by  its  corporate  name. 

8  Johns.  N.  Y.  295  ;  14  id.  238  ;  19  id.  300  ; 
4  Rand.  Va.  359.  Yet  a  slight  alteration  in 
stating  the  name  is  unimportant  if  there  be 
no  possibility  of  mistaking  the  identity  of  the 
corporation  suing.  12  La.  444.  See  20  Me. 
41  ;  2  Va.  Cas.  362 ;  16  Mass.  141 ;  12  Serg. 
&  R.  Penn.  389. 

The  real  name  of  a  party  to  be  arrested 
must  be  inserted  in  the  warrant,  if  known.  8 
'^ist,  328  ;  6  Cow.  N.  Y.  456  ;  9  Wend.  N.  Y. 
L20  ;  if  unknown,  some  description  must  be 
-Tjiven,  1  Chitty,  Crim.  Law,  39,  40,  with  the 
eason  for  the  omission.    1  Mood.  &  M.  281. 

4.  As  to  mistakes  in  devises,  see  Legacy. 
As  to  the  use  of  names  having  the  same 
sound,  see  Idem  Sonans.  As  to  the  effect 
of  using  a  name  having  the  same  derivation, 
see  2  Rolle,  Abr.  135  ;  1  Wash.  C.  C.  285. 
As  to  the  effect  of  a  change  of  name,  see  1 
Roper,  Leg.  102 ;  3  Maule  &  S.  453  ;  10  Mass. 
78. 

When  a  person  uses  a  name  in  making  a 


contract  under  seal,  he  will  not  be  permitted 
to  say  that  it  is  not  his  name :  as,  if  he  sign 
and  seal  a  bond  "A  and  B''  (being  his  own 
and  his  partner's  name),  and  he  had  no  au- 
thority from  his  partner  to  make  such  a  deed, 
he  cannot  deny  that  his  name  is  A  and  B.  1 
T.  Raym.  2;  1  Salk.  214.  And  if  a  man 
describes  himself  in  the  body  of  a  deed  by 
the  name  of  James,  and  signs  it  John,  he 
cannot,  on  being  sued  by  the  latter  name, 
plead  that  his  name  is  James.  3  Taunt.  505  ; 
Croke  Eliz.  897,  n.  a.  See  3  Perr.  &  D.  271 ; 
11  Ad.  &  E.  594. 

NAMIUM.  An  old  word  which  signifies 
the  taking  or  distraining  another  person's 
movable  goods.  Coke,  2d  Inst.  140  ;  3  Black- 
stone,  Comm.  149.  A  distress.  Dalrymple, 
Feud.  Pr.  113. 

NARR  (an  abbreviation  of  the  word  nar- 
ratio).    A  declaration  in  a  cause. 

NARRATOR.  A  pleader  who  draws 
narrs.  Serviens  narrator,  a  serjeant-at-law. 
Fleta,  1.  2,  c.  37.  Obsolete. 

NARROW  SEAS.    In  English  Law. 

Those  seas  which  adjoin  the  coast  of  Eng- 
land.   Bacon,  Abr.  Prerogative  (B  3). 

NATALE.  The  state  or  condition  of  a 
man  acquired  by  birth. 

NATION.  An  independent  body  politic. 
A  society  of  men  united  together  for  the 
purpose  of  promoting  their  mutual  safety  and 
advantage  by  the  joint  efforts  of  their  com- 
bined strength. 

But  every  combination  of  men  who  govern  them- 
selves independently  of  all  others  will  not  be  con- 
sidered a  nation :  a  body  of  pirates,  for  example, 
who  govern  themselves,  are  not  a  nation.  To  con- 
stitute a  nation,  another  ingredient  is  required. 
The  body  thus  formed  must  respect  other  nations 
in  general,  and  each  of  their  members  in  particu- 
lar. Such  a  society  has  her  affairs  and  her  inte- 
rests ;  she  deliberates  and  takes  resolutions  in 
common, — thus  becoming  a  moral  person,  whc 
possesses  an  understanding  and  will  peculiar  to 
herself,  and  is  susceptible  of  obligations  and  rights. 
Vattel,  Prelim,  g§  1,  2  ;  5  Pet.  52. 

It  belongs  to  the  government  to  declare 
whether  they  will  consider  a  colony  which 
has  thrown  off  the  yoke  of  the  mother-country 
as  an  independent  state  ;  and  until  the  gov- 
ernment have  decided  on  the  question,  courts 
of  justice  are  bound  to  consider  the  ancient 
state  of  things  as  remaining  unchanged.  1 
Johns.  Ch.  N.  Y.  543 ;  13  Johns.  N.  Y.  141, 
561.    See  5  Pet.  1 ;  1  Kent,  Comm.  21. 

NATIONAL  DOMAIN.    See  Public 

Domain. 

NATIONALITY.  Character,  status,  or 
condition  with  reference  to  the  rights  and 
duties  of  a  person  as  a  member  of  some  one 
state  or  nation  rather  than  another. 

The  term  is  in  frequent  use  with  regard  to 


NATIVE,  NATIVE  CITIZEN  205 


NAUFRAGE 


ships.  See,  generally,  Citizen  ;  Denizen  ; 
Domigil;  Naturalization. 

NATIVE,    NATIVE  CITIZEN.  A 

Datural-born  subject.  1  Sharswood,  Blackst. 
Comm.  366.  A  person  born  within  the  juris- 
diction of  the  United  States,  whether  after 
declaration  of  independence  or  before,  if  he 
did  not  withdraw  before  the  adoption  of  the 
constitution ;  or  the  child  of  a  citizen  born 
abroad,  if  his  parents  have  ever  resided  here; 
or  the  child  of  an  alien  born  abroad,  if  he 
be  in  the  country  at  the  time  his  father  is 
naturalized.  8  Paige,  Ch.  N.  Y.  433  ;  Act 
of  Congr.  of  Feb.  10,  1855  ;  2  Kent,  Comm. 
9  th  ed.  38  et  seq. 

NATURAL  AFFECTION.  The  affec- 
tion which  a  husband,  a  father,  a  brother,  or 
other  near  relative  naturally  feels  towards 
those  who  are  so  nearly  allied  to  him,  some- 
times supplies  the  place  of  a  valuable  con- 
sideration in  contracts ;  and  natural  affec- 
tion is  a  good  consideration  in  a  deed.  See 
Bargain  and  Sale  ;  Covenant  to  Stand 
Seized. 

NATURAL  CHILDREN.  Bastards; 
children  born  out  of  lawful  wedlock. 

In  Civil  Law.  Children  by  procreation,  as 
distinguished  from  children  by  adoption. 

In  Louisiana.  Illegitimate  children  who 
have  been  adopted  by  the  father.  La.  Civ. 
Code,  art.  220. 

NATURAL  DAY.  That  space  of  time 
included  between  the  rising  and  the  setting 
of  the  sun.    See  Day. 

NATURAL  EQUITY.  That  which  is 
founded  in  natural  justice,  in  honesty  and 
right,  and  which  arises  ex  aequo  et  bono. 

It  corresponds  precisely  with  the  definition  of 
justice  or  natural  law,  which  is  a  constant  and  per- 
petual will  to  give  to  every  man  what  is  his.  This 
kind  of  equity  embraces  so  wide  a  range  that  human 
tribunals  have  never  attempted  to  enforce  it.  Every 
code  of  laws  has  left  many  matters  of  natural  jus- 
tice or  equity  wholly  unprovided  for,  from  the  diffi- 
culty of  framing  general  rules  to  meet  them,  from 
the  almost  impossibility  of  enforcing  them,  and 
from  the  doubtful  nature  of  the  policy  of  attempting 
to  give  a  legal  sanction  to  dutios  of  imperfect  obli- 
gation, such  as  charity,  gratitude,  or  kindness.  4 
Bouvier,  Inst.  n.  3720. 

NATURAL  FOOL.  An  idiot;  one  born 
without  the  reasoning  powers  or  a  capacity 
to  acquire  them. 

NATURAL  FRUITS.  The  natural 
production  of  trees,  bushes,  and  other  plants, 
for  the  use  of  men  and  animals,  and  for  the 
reproduction  of  such  trees,  bushes,  or  plants. 

This  expression  is  used  in  contradistinction  to 
artificial  or  figurative  fruits:  for  example,  apples, 
peaches,  and  pears  are  natural  fruits ;  interest  is 
the  fruit  of  money,  and  this  is  artificial. 

NATURAL  LAW.  The  law  of  nature. 
The  divine  will,  or  the  dictate  of  right  reason, 
showing  the  moral  deformity  or  moral  neces- 
sity there  is  in  any  act,  according  to  its  suit- 
ableness or  unsuitableness  to  a  reasonable  na- 
ture.   Sometimes  used  of  the  law  of  human 


reason,  in  contradistinction  to  the  revealed 
law,  and  sometimes  of  both,  in  contradistinc- 
tion to  positive  law. 

They  are  independent  of  any  artificial  connec- 
tions, and  differ  from  mere  presumptions  of  law  in 
this  essential  respect,  that  the  latter  depend  on  and 
are  a  branch  of  the  particular  system  of  jurispru- 
dence to  which  they  belong;  but  mere  natural  pre- 
sumptions are  derived  wholly  by  means  of  the 
common  experience  of  mankind,  without  the  aid  or 
control  of  any  particular  rule  of  law,  but  simply 
from  the  course  of  nature  and  the  habits  of  society. 
These  presumptions  fall  within  the  exclusive  pro- 
vince of  the  jury,  who  are  to  pass  upon  the  facts. 
3  Bouvier,  Inst.  n.  3064;  Greenleaf,  Ev.  §  44. 

NATURAL  OBLIGATION.  Onewhich 
in  honor  and  conscience  binds  the  person  who 
has  contracted  it,  but  which  cannot  be  en- 
forced in  a  court  of  justice.  Pothier,  nn.  173, 
191.    See  Obligation. 

NATURAL  PRESUMPTIONS.  In 

Evidence.  Presumptions  of  fact ;  those 
which  depend  upon  their  own  form  and  effi- 
cacy in  generating  belief  or  conviction  in  the 
mind,  as  derived  from  those  connections  which 
are  pointed  out  by  experience. 

NATURALIZATION.    The  act  by 

which  an  alien  is  made  a  citizen  of  the  United 
States  of  America. 

The  constitution  of  the  United  States,  art. 
1,  s.  8,  vests  in  congress  the  power  to  esta- 
blish a  uniform  rule  of  naturalization,  and  va- 
rious laws  have  been  passed  in  pursuance  of 
this  authority.  See  Acts  of  Congr.  Apr.  14, 
1802;  Mar.  26,  1804;  July  30,  1813  ;  Mar. 
22, 1816  ;  May  26,  1824  ;  May  24, 1828 ,  June 
20,  1848.  See  2  U.  S.  Stat,  at  Large,  153, 
292,  811 ;  3  id.  259  ;  4  id.  69,  310  ;  9  id.  240; 

1  Woodb.  &  M.  C.  C.  323  ;  4  McLean,  C.  C. 
75  ;  1  Cranch,  C.  C.  219  ;  2  Gall.  C.  C.  11 ;  7 
Cranch,  420;  4  Pet.  393,  406;  16  Wend.  N. 
Y.  607  ;  6  N.  Y.  263  ;  8  Paige,  Ch.  N.  Y.  433; 
10  Ark.  625;  5  Cal.300;  8  Blackf.  Ind.  395; 

2  Nott.  &  M'C.  So.  C.  351. 

NATURALIZED  CITIZEN.  One  who, 
being  born  an  alien,  has  lawfully  become  a 
citizen  of  the  United  States  under  the  consti- 
tution and  laws. 

He  has  all  the  rights  of  a  natural-born 
citizen,  except  that  of  being,  eligible  as  pre- 
sident or  vice-president  of  the  United  States. 
In  foreign  countries  he  has  a  right  to  be 
treated  as  such,  and  will  be  so  considered 
even  in  the  country  of  his  birth,  at  least  for 
most  purposes.  1  Bos.  &  P.  430.  See  Citi- 
zen ;  DoMiciL;  Inhabitant. 

NAUCLERUS  (Lat.).  Master  or  owner 
of  a  vessel.  Vicat,  Voc.  Jur. ;  Calvinus,  Lex. 

NAUFRAGE.  In  French  Maritime 
Law.  When,  by  the  violent  agitation  of  the 
waves,  the  impetuosity  of  the  winds,  the 
storm,  or  the  lightning,  a  vessel  is  swallowed 
up,  or  so  shattered  that  there  remain  only 
the  pieces,  the  accident  is  called  naufrage. 

It  differs  from  echnuement,  which  is  when  th© 
vessel  remains  whole,  but  is  grounded  ;  or  from  hrit, 
which  is  when  it  strikes  against  a  rock  or  a  coast; 


NAULUM 


206  NAVIGATION,  RULES  OF 


or  from  sombi  er,  which  is  the  sinking  of  the  vessel 
in  the  sea  when  it  is  swallowed  up,  and  which  may 
be  caused  by  juiy  accident  whatever.  Pardessus, 
n.  643.    See  Wrcck. 

NAULUM  (Lat.).    Freight  or  passage  | 
m(mey.    1  Parsons,  Mar.  Law,  124,  n. ;  Dig. 
1.  6,  I  1,  qui  potiores  in  pigiwre. 

NAUTA  (Lat.).  One  who  charters  (eaj(»rce/) 
a  ship.  L.  1,  ^  1,  if.  nautce,  caupo  ;  Calvinus, 
Lex.  Any  one  who  is  on  board  a  vessel  for 
the  purpose  of  navigating  her.  3  Sumn.  C.  C. 
213 ;  Vicat,  Voc.  Jur. ;  2  Emerigon,  448  ; 
Pothier,  Pand.  lib.  4,  tit.  9,  n.  2  ;  lib.  47,  tit. 
5,  nn.  1,  2,  3,  8,  10.  A  carrier  by  water.  2 
Ld.  Raym.  917. 

NAVAL  LAW.  A  system  of  regulations 
for  the  government  of  the  navy.  1  Kent, 
Comm.  377,  n.  Consul!;  Act  of  Apr.  3,  1800; 
Act  of  Dec.  21,  1801 ;  Act  of  July  16,  1802 ; 
Homans,  Nav.  Laws  ;  Dellart,  Courts-Mar- 
tial. 

NAVAL  OFFICER.  An  officer  of  the 
customs  of  the  United  8tates. 

His  office  relates  to  the  estimating  duties, 
countersigning  permits,  clearances,  etc.,  cer- 
tifying the  collectors'  returns,  and  similar 
duties. 

NAVARCHUS,  NAVICULARIUS 

(Lat).  In  Civil  Law.  The  masterof  an  armed 
ship.  Navicularius  also  denotes  the  master 
of  a  ship  {patronus)  generally;  also,  a  carrier 
by  Avater  [exercilor  navis).    Calvinus,  Lex. 

NAVIGABLE.  Capable  of  being  navi- 
gated. 

2.  In  its  technical  sense,  the  term  navi- 
gable, at  common  law,  is  only  applied  to  the 
sea,  to  arms  of  the  sea,  and  to  rivers  M^hich 
flow  and  reflow  with  the  tide, — in  other  words, 
to  tide-waters,  the  bed  or  soil  of  which  is  the 
property  of  the  crown.  All  other  waters  are, 
in  this  sense  of  the  word,  unnavigable,  and 
are,  prima,  facie,  strictly  private  property ; 
but  in  England  even  such  M^aters,  if  naviga- 
ble in  the  popular  sense  of  the  term,  are,  either 
of  common  right  or  by  dedication,  subject  to 
the  use  of  the  public  as  navigable  highways, 
the  fee  or  soil  remaining  in  tlie  riparian  pro- 
prietors.   Dav.  Dist.  Ct.  149  ;  5  Taunt.  705  ; 

1  Pick.  Mass.  180;  5  id.  199;  Woolrych, 
Waterc.  40;  Angell,  Tide  Wat.  2d  ed.  75-79. 

3.  In  the  United  States,  this  technical  use 
of  the  term  has  been  adopted  in  many  of  the 
states,  in  so  far  as  it  is  employed  to  designate 
and  define  the  waters  the  bed  or  soil  of 
which  belongs  to  the  state.  4  N.  Y.  472;  26 
Wend.  N.  Y.  404 ;  4  Pick.  Mass.  268  ;  2 
Conn.  481;  3  Me.  269;  31  id.  9;  16  Ohio, 
540  ;  1  Ilalst.  N.  J.  31  ;  4  Wise.  486  ;  2  Swan, 
Tenn.  9.  But  in  Pennsylvania,  2  Binn.  Penn. 
475  ;  14  Serg.  &  R.  Ponn.  71  ;  in  North  Caro- 
lina, 1  M'Cord,  So.  C.  580 ;  3  Ired.  No.  C.  277  ; 

2  Dev.  No.  C.  30 ;  3  id.  59  ;  in  Iowa,  3  Iowa, 
1  ;  4  id.  199  ;  and  in  Alabama,  11  Ala.  436, 
the  technical  use  of  the  term  has  been  en- 
tirely discarded,  and  the  large  fresh-water 
rivers  of  those  states  have  been  decided  to  be 
navigable,  not  only  as  being  subject  to  public 


use  as  navigable  highways,  but  also  as  having 
their  bed  or  soil  vested  m  the  state. 

4.  The  rule  of  the  common  law,  by  which 
the  ebb  and  flow  of  the  tide  has  been  made 
the  criterion  of  navigability,  has  never  been 
adopted  in  any  of  the  United  States,  or,  if 
adopted,  it  has  been  in  a  form  modilied  and 
improved  to  fit  the  condition  of  the  country 
and  the  wants  of  its  inhabitants.  According 
to  the  rule  administered  in  the  courts  of  this 
country,  all  rivers  which  are  found  "of  suffi- 
cient capacity  to  float  the  products  of  the 
mines,  the  forests,  or  the  tillage  of  the  coun- 
try through  which  they  flow,  to  market,"  8 
Barb.  N.  Y.  239,  or  which  are  capable  of  use 
"for  the  floating  of  vessels,  boats,  rafts,  or 
logs,"  31  Me.  9,  are  subject  to  the  free  and 
unobstructed  navigation  of  the  public,  inde- 
pendent of  usage  or  of  legislation.  £0  Johns. 
N.  Y.  90;  5  Wend.  N.  Y.  358  ;  42  Me.  552; 
18  Barb.  N.  Y.  277  ;  5  Ind.  8 ;  2  Swan, 
Tenn.  9  ;  29  Miss.  21 ;  6  Cal.  180  ;  2  Stockt. 
N.  J.  211. 

In  New  York,  it  seems  that  courts  are  bound 
to  take  judicial  notice  of  what  streams  are, 
and  what  are  not,  highways,  at  common  law. 
8  Barb.  N.  Y.  239.  See  Arm  of  the  Sea; 
Reliction;  River;  Tide-Water. 

NAVIGATION  ACT.  The  stat.  12  Car. 
II.  c.  78.  It  was  repealed  by  6  Geo.  IV.  cc. 
109,  110,  114.  See  16  &  17  Vict.  c.  107  ;  17 
&  18  Vict.  c.  120. 

NAVIGATION,  RULES  OF.  Rules 
and  regulations  which  govern  the  motions  of 
ships  or  vessels  when  approaching  each  other 
under  such  circumstances  that  a  collision 
may  possibly  ensue. 

These  rules  are  firmly  maintained  in  the 
United  States  courts. 

2.  The  rules  of  navigation  which  prevailed 
under  the  general  maritime  law,  in  the  ab- 
sence of  statutory  enactments,  will  first  be 
considered,  although,  as  hereinafter  stated, 
they  have  Lately  been  superseded  by  express 
enactment  in  most  of  the  commercial  coun- 
tries of  the  world. 

These  rules  were  derived  mainly  from  the 
decisions  of  the  high  court  of  admiralty  in 
England,  and  of  the  superior  court  of  the 
United  States,  and  they  are  based  upon  the 
rules  promulgated  by  the  corporation  of  thei 
Trinity  House  on  the  30th  of  October,  1840, 
and  which  may  be  found  in  full  in  1  W.  Rob. 
Adm.  488.  These  rules  are  substantially  as 
follows : 

For  Sailing-  Vessels  about  to  meet. 

3.  First,  those  having  the  wind/aiV  shall 
give  way  to  those  on  a  wind  [or  close-hauled]. 

Second,  when  both  are  going  by  the  wind, 
the  vessel  on  the  starboard  tack  shall  keep 
her  wind,  and  the  one  on  the  larboard  tack 
bear  up,  thereby  passing  each  other  on  the 
larboard  hand. 

Third,  when  both  vessels  have  the  wind 
large  or  abeam,  and  meet,  they  shall  pass 
each  other  in  the  same  way,  on  the  larboard 


NAVIGATION,  RULES  OP  207  NAVIGATION,  RULES  OF 


band  ;  to  effect  which  two  last-mentioned  ob- 
jects the  helm  must  be  put  to  port. 

For  a  Sailing  and  a  Steam  Vessel  about  to 
meet. 

4.  First,  steam-vessels  are  to  be  con- 
siuercd  in  the  light  of  vessels  navigating 
with  a  fair  wind,  and  should  give  way  to 
sailing-vessels  on  a  wind  on  either  tack. 

Second,  a  steam-vessel  and  a  sailing-vessel 
going  large,  when  about  to  meet,  should  each 
port  her  helm  and  pass  on  the  larboard  side 
of  the  other.  1  W.  Rob.  Adm.  478  ;  2  id. 
515  ;  4  Thornt.  Adm.  Cas.  40. 

But  in  the  United  States  courts  it  has  been  al- 
most uniformly  held,  and  the  rule  is  now  firmly 
established,  that  when  a  sailing-vessel  and  a 
steamer  are  about  to  meet,  the  sailing-vessel 
must,  under  ordinary  circumstances,  and 
whether  going  large,  or  before  the  wind,  or 
close-hauled  by  the  wind,  keep  her  course, 
and  the  steamer  must  take  all  the  measures 
necessary  to  avoid  a  collision.  17  Bost.  Law 
Rep.  384;  18  id.  181  ;  10  How.  557  ;  17  id. 
152.  178;  18  id.  581 ;  2  West.  Law  Month. 
425;  SBlatchf.  C.  C.  92. 

For  Steam-  Vessels  about  to  meet. 

5.  First,  when  steam-vessels  on  different 
courses  are  about  to  meet  under  such  circum- 
stances as  to  involve  the  risk  of  collision,  each 
vessel  must  put  her  helm  to  port,  so  as  always 
to  pass  on  the  larboard  side  of  the  other. 

Second,  a  steam-vessel  passing  another  in 
a  narrow  channel  must  always  leave  the  ves- 
sel she  is  passing  on  the  larboard  hand. 

The  following  abstract  of  authorities  may 
also  be  referred  to  as  furnishing  rules  of  de- 
cision (in  addition  to  the  general  rules  of 
navigation)  in  the  particular  cases  alluded 
to ;  and  they  will  generally  be  found  applica- 
ble in  cases  of  collision  arising  under  the  new 
regulations,  as  well  as  in  cases  arising  under 
the  general  maritime  law. 

When  a  steamer  or  other  vessel  is  about  to 
pass  another  vessel  proceeding  in  the  same 
general  direction,  she  must  allow  the  fore- 
most boat  to  keep  her  way  and  course,  and 
must  take  the  necessary  measures  to  avoid  a 
collision.  6  N.  Y.  Lag.  Obs.  12 ;  23  How. 
448;  Abb.  Adm.  Pract.  108,  110;  Olc.  Adm. 
505 ;  1  Blatchf.  C.  C.  363. 

A  vessel  under  sail  or  steam  is  bound  to 
keep  clear  of  a  vessel  stationary  or  at  anchor, 
provided  the  latter  is  in  a  proper  place,  and 
exhibits  a  proper  light, — the  presumption  in 
such  cases  being  that  the  vessel  in  motion  is 
at  fault.  1  How.  89  ;  19  id.  103  ;  3  Kent, 
Comm.  231 ;  Conkling,  Adm.  394,  395  ;  Dav. 
Dist.  Ct.  359  ;  1  Am.  Law  Journ.  387  ;  1  Swab. 
Adm.  88;  3  W.  Rob.  Adm.  49. 

A  vessel  entering  a  harbor  is  bound  to  keep 
the  most  vigilant  watch  to  avoid  a  collision, 
18  How.  584 ;  Dav.  Dist.  Ct.  359  ;  and  in  the 
night-time  she  ought  generally  to  have  her 
whole  crew  on  deck.  Id.  And  see  3  Kent, 
Coram.  231  ;  1  Dods.  Adm.  467. 

6.  By  the  general  maritime  law,  vessels 
upon  the  high  seas  are  not  ordinarily  re- 


quired constantly  to  exhibit  a  light,  2  W. 
Rob.  Adm.  4  ;  3  id.  49  ;  2  Wall.  Jr.  C.  C.  268 ; 
but  by  statute  law  in  England,  the  United 
States,  Canada,  and  most  of  the  continental 
maritime  states,  steam  and  sailing  vessels 
were  heretofore  required  in  the  night-time, 
and  under  the  circumstances  and  in  the 
situation  pointed  out,  to  carry  lights.  See  5 
U.  S.  Stat,  at  Large,  300,  g  10  ;  9  id.  382,  ^  4  ; 
10  id.  72,  §  29,  and  the  regulations  of  the 
supervising  in^^pectors  under  the  latter  act; 
the  English  Merchant  Shipping  Act  of  1854, 
17  &  18  Vict.  c.  104,  ^  295  ;  and  the  regula- 
tions made  under  the  same,  which  will  be 
found  in  Pratt  on  Sea  Lights,  and  Appendix; 
the  statutes  of  Canada,  and  also  the  ordi- 
nances or  regulations  of  France,  Russia, 
Prussia,  Holland,  ^iorway,  Denmark,  Swe- 
den, and  Mecklenburg-Schwerin,  in  regaid 
to  lights  and  the  rules  of  navigation,  given  in 
the  Appendix  to  Pratt  on  Sea  Lights. 

'7.  The  general  rules  abo\e  given  may  be, 
and  have  been,  abrogated  by  regulations  made 
by  various  governments,  and  w  hich  are  bind- 
ing upon  all  vessels  within  the  jurisdiction 
of  that  government.  The  Aurora  before  V. 
C.  Adm.  Judge  Black,  at  Quebec,  Oct.  1800; 
Story,  Confl.  Laws,  ch.  14  ;  1  Swab.  Adm. 
38,  63,  96 :  1  How.  28 ;  19  Bost.  Law  Rep. 
220 ;  14  Pet.  99 ;  but  it  is  beyond  the  power 
of  the  legislature  to  make  rules  applicable  to 
foreign  vessels  when  beyond  their  jurisdic- 
tion ;  that  is,  more  than  a  marine  league 
from  their  shores.  1  Swab.  Adm.  96.  And 
see  18  How.  223  ;  21  id.  184.  It  has,  accord- 
ingly, been  held  that  the  newErglish  rule  is 
not  applicable  in  a  case  of  colhsicn  on  the 
high  seas  between  a  British  and  a  foreign 
vessel,  and  that  the  latter  cruld  not  set  up 
in  its  defence  a  violation  of  the  English  sta- 
tute by  the  British  vessel,  1  Swab.  Adm. 
63,  96  ;  and  it  was  declared  that  in  such  a 
case  the  general  maritime  law  must  be  the 
rule  of  the  court. 

8.  The  rules  of  navigation  under  the  gene- 
ral maritime  law%  particular  statutes,  and 
also  the  rules  of  the  maritime  law,  and  of 
prior  enactments,  in  regard  to  vessels  carry- 
ing lights,  have,  in  most  commercial  c(iun- 
tries,  been  entirely  superseded  by  general 
rules  of  navigation,  and  general  regulations 
in  respect  to  vessels'  lights,  which  were 
agreed  upon  by  the  governments  of  Great 
Britain  and  France  in  1863  (1  Lush.  Adm. 
Appendix  Ixxii.),  and  which  have  since  been 
adopted  by  most  of  the  ccmmercial  countries 
of  Europe,  and  by  Brazil  and  most  of  the 
South  American  republics,  as  well  as  by  the 
United  States  and  Canada.  Id.  Ixxvii.  and 
Ixxviii. ;  13  U.  S.  Stat,  at  Large,  58  ;  Acts  of 
Canadian  Pari.  1864,  These  rules  and  regu- 
lations will  be  found  in  the  act  of  congress 
above  referred  to,  and  which  took  effect  Sep- 
tember 1,  1864. 

9.  This  act  is  in  the  following  words  : 

Be  it  enacted,  by  the  senate  and  house  of  repre- 
sentatives of  the  United  States  of  America  in  con- 
gress assembled,  That  from  and  after  Septcmbei 
one,  eighteen  hundred  and  sixty -four,  the  following 


NAVIGATION,  RULES  OF 


208 


NAVIGATION,  RULES  OF 


rules  and  regulations  for  preventing  collisions  on 
the  water  be  adopted  in  the  navy  and  the  mercan- 
tile marine  of  the  United  States:  Provided,  That 
the  exhibition  of  any  light  on  board  of  a  vessel  of 
war  of  th3  United  States  may  be  suspended  when- 
ever, in  the  opinion  of  the  secretary  of  the  navy, 
the  commander-in-chief  of  a  squadron,  or  the  com- 
mander of  a  vessel  acting  singly,  the  special  cha- 
racter of  the  service  may  require  it. 

Article  I.  In  the  following  rules,  every  steam- 
ship which  is  under  sail  and  not  under  steam  is  to 
be  considered  a  sailing-ship ;  and  every  steamship 
which  is  under  steam,  whether  under  sail  or  not,  is 
to  be  considered  a  ship  under  steam. 

Art.  II.  The  lights  mentioned  in  the  following 
articles,  and  no  others,  shall  be  carried  in  all  wea- 
thers between  sunset  and  sunrise. 

Art.  III.  All  steam-vessels,  when  under  way, 
shall  carry, — 

(a.)  At  the  foremast  head  a  bright  white  light, 
so  fixed  as  to  show  a  uniform  and  unbroken  light 
over  an  arc  of  ths  horizon  of  twenty  points  of  the 
compass,  so  fixed  as  to  throw  the  light  ten  points 
on  each  side  of  the  ship,  viz. :  from  right  ahead  to 
two  points  abaft  the  beam  on  either  side,  and  of 
such  a  character  as  to  be  visible  on  a  dark  night, 
with  a  clear  atmosphere,  at  a  distance  of  at  least 
five  miles. 

(6.)  On  the  starbofird  side  a  green  light,  so  con- 
structed as  to  throw  a  uniform  and  unbroken  light 
over  an  arc  of  the  horizon  of  ten  points  of  the  com- 
pass, so  fixed  as  to  throw  the  light  from  right  ahead 
to  two  points  abaft  the  beam  on  the  starboard  side, 
and  of  such  a  character  as  to  be  visible  on  a  dark 
night,  with  a  clear  atmosphere,  at  a  distance  of  at 
least  two  miles. 

(c.)  On  the  port  side  a  red  light,  so  constructed 
as  to  show  a  uniform  unbroken  light  over  an  arc 
of  the  horizon  of  ten  points  of  the  compass,  so 
fixed  as  to  throw  the  light  from  right  ahead  to  two 
points  abaft  the  beam  on  the  port  side,  and  of  such 
a  character  as  to  be  visible  on  a  dark  night,  with 
a  clear  atmosphere,  at  a  distance  of  at  least  two 
miles. 

(d.)  The  said  green  and  red  side-lights  shall  be 
fitted  with  inboard  screens,  projecting  at  least  three 
feet  forward  from  the  light,  so  as  to  prevent  these 
lights  from  being  seen  across  the  bow. 

lO.  Art.  IV.  Steamships,  when  towing  other  ships, 
shall  carry  two  bright  white  masthead  lights,  ver- 
tically, in  addition  to  their  side-lights,  so  as  to 
distinguish  them  from  other  steamships.  Each  of 
the.-e  masthead  lights  shall  be  of  the  same  con- 
struction and  character  as  the  masthead  lights 
which  other  steamships  are  required  to  carry. 

Art.  V,  Sailing-ships  under  way  or  being  towed 
shall  carry  the  same  lights  as  steamships  under 
way,  with  the  exception  of  the  white  masthead 
lights,  which  they  shall  never  carry. 

Art.  VI.  Whenever,  as  in  the  case  of  small  ves- 
sels during  bad  weather,  the  green  and  red  lights 
cannot  bo  fixed,  these  lights  shall  be  kept  on  deck, 
on  their  respective  sides  of  the  vessel,  ready  for 
instant  exhibition,  and  shall,  on  the  approach  of 
or  to  other  vessels,  be  exhibited  on  their  respective 
sides  in  sufficient  time  to  prevent  collision,  in  such 
manner  as  to  make  them  most  visible,  and  so  that 
the  green  light  shall  not  be  seen  on  the  port  side, 
nor  the  red  light  on  the  starboard  side. 

To  make  the  use  of  these  portable  lights  more 
certain  and  easy,  thoy  shall  ench  be  painted  out- 
side with  the  color  of  the  light  tlicy  respectively 
contain,  and  be  provided  with  suitable  screens. 

Art.  VII.  Ships,  whether  steamships  or  sailing- 
ehips,  when  at  anchor  in  roadsteads  or  fairwnys, 
shall,  betwei:n  sunset  and  sunrise,  exhibit  where 
it  can  best  be  seen,  but  at  a  height  not  exceeding 
twenty  feet  above  the  hull,  a  white  light  in  a 
globular  lantern  of  eight  inches  in  diameter,  and 


so  constructed  as  to  show  a  clear,  uniform,  and  ui 
broken  light  visible  all  around  the  horizon,  at  ii 
distance  of  at  least  one  mile. 

11.  Art.  VIII.  Sailing  pilot-vessels  shall  not 
carry  the  lights  required  for  other  Siiiling-vessels, 
but  shall  carry  a  white  light  at  the  masthead,  visi- 
ble all  around  the  horizon,  and  shall  also  exhibit  a 
flare-up  light  every  fifteen  minutes. 

Art.  IX.  Open  fishing-boats,  and  other  open 
boats,  shall  not  be  required  to  carry  side-lights 
required  for  other  vessels,  but  shall,  if  they  do  not 
carry  such  lights,  carry  a  lahtern  having  a  green 
slide  on  the  one  side  and  a  red  slide  on  the  other 
side,  and  on  the  approach  of  or  to  other  vessels 
such  lantern  shall  be  exhibited  in  sufficient  time  to 
prevent  collision,  so  that  the  green  light  shall  not 
be  seen  on  the  port  side,  nor  the  red  lighten  the 
starboard  side.  Fishing-vessels  and  open  boats, 
when  at  anchor  or  attached  to  their  nets  and  sta- 
tionary, shall  exhibit  a  bright  white  light.  Fish- 
ing-vessels and  open  boats  shall,  however,  not  be 
prevented  from  using  a  flare-up  in  addition,  if  con- 
sidered expedient. 

12.  Art.  X.  Whenever  there  is  a  fog,  whether  by 
day  or  night,  the  fog-signals  described  below  t^hall 
be  carried  and  used,  and  shall  be  sounded  at  least 
every  five  minutes,  viz. : 

(a.)  Steamships  under  way  shall  use  a  steam 
whistle  placed  before  the  funnel,  not  less  than 
eight  feet  from  the  deck. 

(b.)  Sailing-ships  under  way  shall  use  a  fog- 
horn. 

(c.)  Steamships  and  sailing-ships  when  not  under 
way  shall  use  a  bell. 

Art.  XI.  If  two  sailing-ships  are  meeting  end  on, 
or  nearly  end  on,  so  as  to  involve  risk  of  collision, 
the  helms  of  both  shall  be  put  to  port,  so  that  each 
may  pass  on  the  port  side  of  the  other. 

Art.  XII.  When  two  sailing-ships  are  crossing 
so  as  to  involve  risk  of  collision,  then,  if  they  have 
the  wind  on  different  sides,  the  ship  with  the  wind 
on  the  port  side  shall  keep  out  of  the  way  of  the 
ship  with  the  wind  on  the  starboard  side,  except  in 
the  case  in  which  the  ship  with  the  wind  on  the 
port  side  is  close-hauled  and  the  other  ship  free, 
in  which  case  the  latter  ship  shall  keep  out  of  the 
way.  But  if  they  have  the  wind  on  the  same  side, 
or  if  one  of  them  has  the  wind  aft,  the  ship  which 
is  to  windward  shall  keep  out  of  the  way  of  the 
ship  which  is  to  leeward. 

13.  Art.  XIII.  If  two  ships  under  steam  are 
meeting  end  on,  or  nearl}'  end  on,  so  as  to  involve 
risk  of  collision,  the  helms  of  both  shall  be  put  to 
port,  so  that  each  may  pass  on  the  port  side  of  the 
other. 

Art.  XIV.  If  two  ships  under  steam  are  crossing 
so  as  to  involve  risk  of  collision,  the  ship  which 
has  the  other  on  her  own  starboard  sidt  shall  keep 
out  of  the  way  of  the  other. 

Art.  XV.  If  two  ships,  one  of  which  is  a  sailing- 
ship  and  the  other  a  steamship,  are  proceeding  in 
such  direction  as  to  involve  risk  of  collision,  the 
steamship  shall  keep  out  of  the  way  of  the  sailing- 
ship. 

Art.  XVI.  Every  steamship,  when  .approaching 
another  ship  so  as  to  involve  risk  of  collision,  shall 
slacken  her  speed,  or,  if  necessary,  stop  and  reverse ; 
and  every  steamship  shall,  when  in  a  fog,  go  at 
moderate  speed. 

Art.  XVII.  Every  vessel  overtaking  any  other 
vessel  shall  keep  out  of  the  way  of  the  said  last- 
mentioned  vessel. 

Art.  XVIII.  Where,  by  the  above  rules,  one  of 
two  ships  is  to  keep  out  of  the  way,  the  other  shall 
keep  her  course,  subject  to  the  qualifications  con- 
tained in  the  following  article. 

14.  Art.  XIX.  In  obeying  and  construing  these 
rules,  due  regard  must  be  had  to  all  dangers  of 
narigation ;  and  due  regard  must  also  be  had  to 


NAVIGATION,  RULES  OF  209 


NAVY 


any  special  circumstances  which  may  exist  in  any 
particular  case,  rendering  a  departure  from  the 
above  rules  necessary  in  order  to  avoid  immediate 
danger. 

Art.  XX.  Nothing  in  those  rules  shall  exonerate 
any  ship,  or  the  owner  or  master  or  crew  thereof, 
from  the  consequences  of  any  neglect  to  carry 
lights  or  signals,  or  of  any  neglect  to  keep  a  pro- 
per look-out,  or  of  the  neglect  of  any  precaution 
which  may  be  required  by  the  ordinary  practice 
of  seamen,  or  by  the  special  circumstances  of  the 
oase. 

15.  It  is  evident  that  these  rules  and  regu- 
lations were  intended  to  supersede  all  other 
rules  of  navigation,  and  every  other  system 
of  vessels'  lights,  wherever  they  may  be 
adopted.  They  establish  a  well-devised  and 
complete  system  of  vessels'  lights,  and  fur- 
nish plain  and  simple  rules  of  navigatipn 
applicable  to  all  the  ordinary  cases  of  vessels 
approaching  each  other  under  such  circum- 
stances as  to  involve  the  risk  of  collision, — 
leaving  extraordinary  cases,  such  as  the 
meeting  of  vessels  in  extremely  narrow  or 
other  very  difficult  channels  (in  respect  to 
which  no  safe  general  rule  can  be  devised), 
to  the  practical  good  sense  and  professional 
skill  of  those  in  charge  of  such  vessels.  To 
such  cases,  and  to  cases  in  which  one  vessel 
has  been  suddenly  and  unexpectedly  brought 
into  circumstances  of  immediate  danger  en- 
tirely through  the  fault  or  mismanagement 
of  another,  or  by  inevitable  accident,  the  ex- 
ceptions contained  in  article  19  will  apply. 
But  a  departure  from  these  rules,  to  be  justi- 
fiable even  in  such  cases,  must  be  necessary 
in  order  to  avoid  immediate  danger.  But 
that  necessity  must  not  have  been  caused  by 
the  negligence  or  fault  of  the  party  disobey- 
ing the  rule ;  and  courts  of  admiralty  lean 
against  these  exceptions.  11  N.  Y.  Leg.  Obs. 
353,355;  18  How.  581,  583  ;  IW.Rob.  Adm. 
157,  478.  And  see  2  Curt.  C.  C.  141,  363 ; 
18  How.  581. 

16.  The  maritime  law,  however,  requires 
that  in  collision  cases  every  violation  of  a 
rule  of  navigation,  and  every  other  act  or 
omission  alleged  to  be  a  fault,  shall  be  con- 
sidered in  connection  with  all  the  attending 
circumstances  ;  and  when  by  inevitable  acci- 
dent, or  the  fault  of  one  of  two  colliding 
vessels,  a  vessel  free  from  fault  is  suddenly 
brought  into  such  circumstances  of  imminent 
danger  as  probably  to  render  the  deliberate 
or  proper  exercise  of  the  judgment  and  skill 
of  an  experienced  seaman  impossible,  an 
error  of  judgment,  or  other  mistake,  is  not 
regarded  as  a  legal  fault.  3  Blatchf.  C.  C.  92  ; 

How.  461. 

The  proper  and  continual  exhibition  of  the 
bright  and  coloured  lights  which  these  rules 
and  regulations  prescribe,  and  their  careful 
observance  by  the  officer  of  the  deck  and  the 
look-out  of  every  vessel,  constitute  the  very 
foundation  of  the  system  of  navigation  esta- 
blished by  such  rules  and  regulations.  The 
exhibition  of  such  lights,  and  the  strict  com- 
pliance with  the  rules  in  respect  to  stationing 
and  keeping  a  competent  and  careful  person 
in  the  proper  place  and  exclusively  devoted 
Vol.  II.— 14 


to  the  discharge  of  the  duties  of  a  look-out, 
are  of  the  utmost  importance. 

The  stringent  requirements  of  our  maritime 
courts  in  re.s[)ect  to  look-outs  may  be  learned 
by  consulting  the  following  authorities.  10 
How.  585  ;  12  id.  443  ;  18  id.  108,  223  ;  21  id. 
548,  570;  23  id.  448;  3  Blatchf.  C.  C.  92. 

17'.  The  neglect  to  carry  or  display  the 
lights  prescribed  l>y  these  rules  and  regula- 
tions will  always  be  held,  prima  facie,  a 
fault,  in  a  collision  case.  5  How.  441,  465 ; 
21  id.  548,  556 ;  3  W.  Rob.  Adm.  191  ;  Swab. 
Adm.  120,  245,  253,  519;  1  Lush.  Adm.  382. 
And,  upon  the  same  principles,  the  neglect, 
in  a  fog,  to  use  the  prescribed  fog-signals 
will  also  be  considered,  prima  facie,  a  fault. 

It  will  be  observed  that  the  duty  of  slack- 
ening speed,  in  all  cases  when  risk  of  col- 
lision is  involved,  is  absolutely  and  impera- 
tively imposed  upon  every  steam-vessel,  by 
these  regulations,  and  that  they  require  that 
every  steam-vessel  shall  stop  and  reverse  her 
engine  when  necessary  to  avoid  a  collision. 

The  duty  of  slackening  speed  in  order  to 
avoid  a  collision  had  been  frequently  declared 
by  the  maritime  courts  before  the  adoption  of 
these  regulations,  3  Hagg.  Adm.  414;  3 
Blatchf.  C.  C.  92  ;  Swab.  Adm.  138 ;  2  W. 
Rob.  Adm.  1 ;  3  id.  95,  270,  377  ;  10  How. 
557  ;  12  id.  443  ;  18  id.  108  ;  but  there  was 
no  inflexible  rule  requiring  a  steamer  to 
slacken  speed  in  all  cases  when  there  was 
risk  of  collision  ;  and  the  neglect  to  do  it  was 
held  to  be  a  fault  only  in  those  cases  where 
its  necessity  was  shown  by  the  proofs.  This 
left  the  question  open  to  be  determined  by 
the  courts  in  each  particular  case,  and  per- 
haps upon  vague  and  unreliable  estimates  of 
time  and  distance  and  bearings,  or  upon  con- 
flicting and  unsatisfactory  testimony ;  but 
the  legislature,  in  view  of  the  great  power 
and  speed  of  the  steamers  now  in  general 
use,  and  the  very  disastrous  consequences  of 
a  collision  of  such  vessels  when  running  at 
their  ordinary  speed,  has  wisely  made  the 
duty  imperative. 

18.  Some  of  the  rules  of  navigation  which 
these  rules  and  regulations  prescribe  are 
quite  different  from  those  applied  to  similar 
cases  by  the  general  maritime  law.  They 
will  be  most  apparent  upon  an  examination 
of  the  new  rules  for  the  crossing  of  two  steam- 
vessels,  or  of  two  sailing-vessels,  in  connec- 
tion with  the  rules  formerly  applied  to  simi 
lar  cases.  And  until  the  construction  of  the 
new  rules  has  been  settled  by  judicial  de- 
cisions, it  is  quite  likely  that  the  changes 
they  have  introduced  will  increase,  rather  than 
diminish,  the  number  of  collisions.  But  the 
construction  of  these  rules  will  soon  be  deter- 
mined ;  and,  as  they  are  now  applicable  to  the 
vessels  of  most  commercial  countries,  the  new 
system  is  likely,  ere  long,  to  become  nearly 
universal ;  and  for  that  reason,  if  for  no  other, 
its  adoption  will  doubtless  reduce  the  number 
of  collisions. 

NAVY.  The  whole  shipping,  taken  coi- 
lectively,  belonging  to  the  government  of  an 


NE  ADMITTAS 


210  NE  UNQUES  EXECUTOR 


independent  nation,  and  appropriated  for  the 
purposes  of  naval  warfare.  It  does  not  in- 
chide  ships  belonging  to  private  individuals 
nor  (in  the  United  States,  at  least)  revenue 
vessels  or  transports  in  the  service  of  the 
war  department.  See  Brightly,  Dig.  U.  S. 
Laws,  Navy. 

NE  ADMITTAS  (Lat.).  The  name  of 
a  writ,  so  called  from  the  first  words  of  the 
Latin  form,  by  which  the  bishop  is  forbidden 
to  admit  to  a  benefice  the  other  party's  clerk 
during  the  pendency  of  a  quare  impedit.  It 
ought  to  be  issued  within  six  months  after 
avoidance  of  the  benefice,  before  title  to  pre- 
sent has  devolved  upon  the  bishop  by  lapse, 
or  it  will  be  useless.  Fitzherbert,  Nat.  Brev. 
37;  Reg.  Orig.  31;  3  Sharswood,  Blackst. 
Comm.  248;  I'Burn,  Eccl.  Law,  31. 

NE  BAILA  pas' (he  did  not  deliver). 
In  Pleading.  A  plea  in  detinue,  by  which 
the  defendant  denies  the  delivery  to  him  of 
the  thing  sued  for. 

NE  DISTURBA  PAS.  In  Pleading. 
The  general  issue  in  quare  impedit.  Hob. 
162.  See  Rastell,  Entr.  517;  Winch,  Entr, 
703. 

NE  DONA  PAS,  N9N  DEDIT.  In 

Pleading.  The  general  issue  in  formedon. 
It  is  in  the  following  formula:  "And  the 
said  C  D,  by  J  K,  his  attorney,  comes  and 
defends  the  right,  when,  etc.,  and  says  that 
the  said  E  F  did  not  give  the  said  manor, 
with  the  appurtenances,  or  any  part  thereof, 
to  the  said  G  B,  and  the  heirs  of  his  body 
issuing,  in  manner  and  form  as  the  said  A  B 
hath  in  his  count  above  alleged.  And  of  this 
the  said  C  D  puts  himself  upon  the  country 
10  Wentworth,  Plead.  182. 

NE  EXEAT  REPUBLICA  (Lat.).  In 
Practice.  The  name  of  a  writ  issued  by  a 
court  of  chancery,  directed  to  the  sheriff, 
reciting  that  the  defendant  in  the  case  is 
indebted  to  the  complainant,  and  that  he 
designs  going  quickly  into  parts  without  the 
state,  to  the  damage  of  the  complainant,  and 
then  commanding  him  to  cause  the  defendant 
to  give  bail  in  a  certain  sum  that  he  will  not 
leave  the  state  without  leave  of  the  court, 
and  for  want  of  such  bail  that  he,  the  sheriff, 
do  commit  the  defendant  to  prison. 

2.  This  writ  is  issued  to  prevent  debtors 
from  escaping  from  their  creditors.  It 
amounts,  in  ordinary  civil  cases,  to  nothing 
more  than  process  to  hold  to  bail,  or  to  com- 
pel a  party  to  give  security  to  abide  the  de- 
cree to  be  made  in  his  case.  2  Kent,  Comm. 
32;  1  Clark,  551;  Beames,  Ne  Exeat;  13 
Viner,  Abr.  537  ;  1  Suppl.  to  Ves.  Jr.  33,  352, 
4G7;  4  Ves.  Ch.  577;  5  id.  91 ;  Bacon,  Abr. 
Prerogative  (C);  8  Comyns,  Dig.  232;  1 
Blackstone,  Comm.  138 ;  Blake,  Chanc.  Pract. 
Index ;  Maddox,  Chanc.  Pract.  Index ;  1 
Smith,  Chanc.  Pract.  576 ;  Story,  Eq.  Index. 

3*  The  writ  may  be  issued  against  foreign- 
ers subject  to  the  jurisdiction  of  the  court, 
citizens  of  the  same  state,  or  of  another  state, 
when  it  appears  by  a  positive  affidavit  that 
the  defendant  is  about  to  leave  the  state,  or 


has  threatened  to  do  so,  and  that  the  debt 
would  be  lost  or  endangered  by  his  departure. 
3  Johns.  Ch.  N.  Y.  75,  412;  7  id.  192;  1 
Hopk.  Ch.  N.  Y.  499.  On  the  same  princi- 
ple which  has  been  adopted  in  the  courts  of 
law  that  a  defendant  could  not  be  held  to  bail 
twice  for  the  same  cause  of  action,  it  has 
been  decided  that  a  writ  of  ne  exeat  was  not 
properly  issued  against  a  defendant  who  had 
been  held  to  bail  in  an  action  at  law.  8  Ves. 
Ch.  594. 

4.  This  writ  can  be  issued  only  for  equita- 
ble demands.  4  Des.  Eq.  So.  C.  108;  1 
Johns.  Ch.  N.  Y.  2 ;  6  id.  138 ;  1  Hopk.  Ch. 
N.  Y.  499.  It  may  be  allowed  in  a  case  to 
prevent  the  failure  of  justice.  2  Johns.  Ch. 
N.  Y.  191.  When  the  demand  is  strictly 
legal,  it  cannot  be  issued,  because  the  court 
has  no  jurisdiction.  When  the  court  has 
concurrent  jurisdiction  with  the  courts  of 
common  law,  the  writ  may,  in  such  case, 
issue,  unless  the  party  has  been  already 
arrested  at  law.  2  Johns.  Ch.  N.  Y.  170.  In 
all  cases  when  a  writ  of  ne  exeat  is  claimed, 
the  plaintiff's  equity  must  appear  on  the  face 
of  the  bill.    3  Johns.  Ch.  N.  Y.  414. 

The  amount  of  bail  is  assessed  by  the 
court  itself;  and  a  sum  is  usually  directed 
suificient  to  cover  the  existing  debt,  and  a 
reasonable  amount  of  future  interest,  having 
regard  to  the  probable  duration  of  the  suit. 

1  Hopk.  Ch.  N.  Y.  501. 

NE  LUMINIBUS  OPFICIATUR 

(Lat.).  In  Civil  Law.  The  name  of  a  ser- 
vitude which  restrains  the  owner  of  a  house 
from  making  such  erections  as  obstruct  the 
light  of  the  adjoining  house.  Dig.  8.  4.  15. 
17. 

NE  RECIPIATUR  (Lat.).  That  it  be 
not  received.  A  caveat  or  words  of  caution 
given  to  a  law  officer,  by  a  party  in  a  cause, 
not  to  receive  the  next  proceedings  of  his 
opponent.    1  Sellon,  Pract.  8. 

NE  RELESSA  PAS  (Law  Fr.).  The 
name  of  a  replication  to  a  plea  of  release,  by 
which  the  plaintiff  insists  he  did  not  release. 

2  Bulstr.  55. 

NE  UN  JUSTE  VEXES  (Lat.).  In 
Old  English  Law.  The  name  of  a  writ 
which  issued  to  relieve  a  tenant  upon  whom 
his  lord  had  distrained  for  more  services  than 
he  was  bound  to  perform. 

It  was  a  prohibition  to  the  lord,  not  un- 
justly to  distrain  or  vex  his  tenant.  Fitzher- 
bert, Nat.  Brev. 

NE  UNQUES  ACCOUPLE  (Law  Fr.). 
In  Pleading.  A  plea  by  which  the  party 
denies  that  he  ever  was  lawfully  married  to 
the  person  to  whom  it  refers.  See  the  form, 
2  Wils.  118;  10  Wentworth,  Plead.  158;  2 
H.  Blackst.  145  ;  3  Chitty,  Plead.  599. 

NE  UNQUES  EXECUTOR.  In 

Pleading.  A  plea  by  which  the  party  who 
uses  it  denies  that  the  plaintiff  is  an  executor, 
as  he  claims  to  be ;  or  that  the  defendant  is 
executor,  as  the  plaintiff  in  his  declaration 
charges  him  to  be.    1  Chitty,  Plead.  484; 


NE  UNQUES  SEISIE  QUE  DOWER  211 


NECESSARIES 


I  Saund.  274,  n.  3  ;  Comyns,  Dig.  Pleader  (2 
D  2);  2  Chitty,  Plead.  498. 

NB  UNQUES  SEISIE  QUE 
DOWER.  In  Pleading.  A  plea  by  which 
a  defendant  denies  the  right  of  a  widow  who 
sues  for  and  demands  her  dower  in  lands, 
etc.,  late  of  her  husband,  because  the  hus- 
band was  not  on  the  day  of  her  marriage 
with  him,  or  at  any  time  afterwards,  seised 
of  such  estate,  so  that  she  could  be  endowed 
of  the  same.  See  2  Saund.  329  ;  10  Went- 
worth,  Plead.  159 ;  3  Chitty,  Plead.  598,  and 
the  authorities  there  cited. 

NE  UNQUES  SON  RECEIVER.  In 
Pleading.  The  name  of  a  plea  in  an  action 
of  aocount-render,  by  which  the  defendant 
afl&rrtis  that  he  never  was  receiver  of  the 
plaintiff.    12  Viner,  Abr.  183. 

NE  VARIETUR  (Lat.  that  it  be  not 
changed).  A  form  sometimes  written  by 
notaries  public  upon  bills  or  notes,  for  the 
purpose  of  identifying  them.  This  does  not 
destroy  their  negotiability.    8  Wheat.  338. 

NEAT,  NET.  The  exact  weight  of  an 
article,  without  the  bag,  box,  keg,  or  other 
thing  in  which  it  may  be  enveloped. 

NEATNESS.  In  Pleading.  The  state- 
ment in  apt  and  appropriate  words  of  all  the 
necessary  facts,  and  no  more.  Lawes,  Plead. 
62. 

NEBRASKA.  One  of  the  territories  of 
the  United  States. 

The  territory  was  erected  by  act  of  congress,  ap- 
proved May  30,  1854.  It  includes  all  that  por- 
tion of  the  territory  of  the  United  States  included 
in  the  following  boundaries :  beginning  at  a  point 
in  the  Missouri  river  where  the  fortieth  parallel  of 
north  latitude  crosses  the  same ;  thence  west  on  said 
parallel  to  the  east  boundary  of  the  territory  of 
Utah,  on  the  summit  of  the  Rocky  Mountains ; 
thence  on  said  summit  northwardly  to  the  forty- 
ninth  parallel  of  north  latitude;  thence  east  on 
said  parallel  to  the  west  boundary  of  the  territory 
of  Minnesota;  thence  southwardly  on  said  bound- 
ary to  the  Missouri  river;  thence  down  the  main 
channel  of  said  river  to  the  place  of  beginning, 
with  an  exception  of  the  Indian  reservations  in- 
cluded from  the  territorial  jurisdiction,  unless  with 
their  consent.  There  is  also  a  proviso  that  when 
admitted  as  a  state  the  said  territory  or  any  part 
of  the  same  shall  be  received  into  the  Union  with 
or  without  slavery,  as  their  constitution  may  pre- 
scribe at  the  time  of  their  admission.  In  addition 
to  the  above,  that  part  of  Utah  and  Washington 
territories  between  the  forty-first  and  forty-third 
degrees  of  north  latitude  and  east  of  the  thirty-third 
meridian  of  longitude  west  of  Washington  is  added 
to  the  territory  of  Nebraska  by  act  of  congress 
approved  March  2,  1861.  U.  S.  Stat,  at  Large, 
1860-61  (Little  &  Brown's  ed.),  244.  The  provisions 
of  the  organic  act,  with  the  exceptions  here  given, 
are  the  same  as  those  of  the  act  establishing  the 
territory  of  New  Mexico,  which  see.  The  secre- 
tary holds  his  oflRce  for  the  term  of  five  years,  sub- 
ject to  renewal  by  the  president.  The  house  of 
representatives  is  to  be  composed  of  twenty-six 
members;  but  the  nuu-ber  may  be  increased  to 
ihirty-nine. 

NECESSARIES.     Such  things  as  are 


proper  and  necessary  for  the  sustenance  of 
man. 

2.  The  term  necessaries  is  not  confined 
merely  to  w^hat  is  requisite  barely  to  support 
life,  but  includes  many  jf  the  conveniences 
of  refined  society.  It  is  a  relative  term, 
which  must  be  applied  to  the  circumstances 
and  conditions  of  the  parties.  7  Serg.  &  II. 
Penn.  247.  Ornaments  and  superfluities  of 
dress,  such  as  are  usually  worn  by  the  party's 
rank  and  situation  in  life,  1  Campb.  120 ; 

3  id.  326;  7  Carr.  &  P.  52;  1  llodg.  31  ;  8 
Term,  578;  1  Leigh,  Nisi  P.  135;  some  degree 
of  education,  4  Mees.  &  W.  Exch.  727 ;  0  id. 
48  ;  10  Vt.  683 ;  see  10  Barb.  N.  Y.  480 ;  Chitty, 
Contr.  140;  1  Parsons,  Contr.  246;  lodging, 
and  house-rent,  2  Bulstr.  69  ;  1  Bos.  &  P.  340 ; 
see  12  Mete.  Mass.  559  ;  13  id.  306  ;  1  Mees.  & 
W.  Exch.  67 ;  5  Q.  B.  606  ;  horses,  saddles,  bri- 
dles, liquors,  pistols,  powder,  whips,  and 
fiddles,  have  been  held  not  to  be  necessaries. 

1  Bibb,  Ky.  519;  1  M'Cord,  So.  C.  572;  2 
Nott  &  M'C.  So.  C.  524;  2  Humphr.  Tenn. 
27;  2  Strange,  1101;  1  Mann.  &  G.  550. 
And  see  7  Carr.  &  P.  52 ;  4  id.  104 ;  Holt, 
77  ;  Cart.  216;  11  N.  H.  51 ;  8  Exch.  680. 

3.  The  rule  for  determining  what  are  ne- 
cessaries is  that  whether  articles  of  a  certain 
kind  or  certain  subjects  of  expenditure  are  or 
arc  not  such  necessaries  as  an  infant  may 
contract  for,  is  a  matter  of  law,  and  for 
instruction  by  the  court;  but  the  question 
whether  any  particular  things  come  under 
these  classes,  and  the  question,  also,  as  to 
quantity,  are  generally  matters  for  the  jury  to 
determine.  1  Parsons,  Contr.  241 ;  10  Vt. 
225;  12  Mete.  Mass.  559;  11  N.  H.  51 ;  1 
Bibb,  Ky.  519  ;  2  Humphr.  Tenn.  27;  3  Day, 
Conn.  37;  1  Mann.  &  G.  550;  6  Mees.  &  W. 
Exch.  42 ;  6  Carr.  &  P.  690. 

4.  Infants  may  contract  for  necessaries, 

4  Mees.  &  W.  Exch.  727 ;  13  id.  252  ;  but  are 
not  liable  for  borrowed  money,  though  ex- 
pended for  necessaries.  1  Salk.  279  ;  2  Esp. 
472,  n.;  10  Mod.  67;  1  Bibb,  Ky.  519  ;  7  Watts 
&  S.  Penn.  83,  88;  10  Vt.  225.  See  1  P. 
Will.  558 ;  5  Esp.  28 ;  7  N.  H.  368 ;  2  Hill, 
So.  C.  400;  32  N.  H.  345.  Necessaries  for 
the  infant's  wife  and  children  are  necessa- 
ries for  himself.  Strange,  168 ;  Comyns, 
Dig.  Enfant  (B  5);  1  Sid.  112:  2  Starkie, 
Ev.  725  ;  3  Day,  Conn.  37;  1  Bibb,  Ky.  519  ; 

2  Nott  &  M'C.  So.  C.  524;  9  Johns'!  N.  Y. 
141 ;  16  Mass.  31 ;  14  B.  Monr.  Ky.  232 ; 
Bacon,  Abr.  Infancy  (I).  See  13  Mees.  & 
W.  Exch.  252. 

5.  A  w^ife  is  allowed  to  make  contracts  for 
necessaries,  and  her  husband  is  generally  re- 
sponsible upon  them,  because  his  assent  ia 
presumed ;  and  even  if  notice  be  given  not 
to  trust  her,  still  he  would  be  liable  for  all 
such  necessaries  as  she  stood  in  need  of;  but 
in  this  case  the  creditor  would  be  required  to 
show  she  did  stand  in  need  of  the  articles 
furnished.  1  Salk.  118;  2  Ld.  Raym.  1006. 
But  if  the  Tife  elopes,  though  it  be  not  with 
an  adulterer,  he  is  not  chargeable  even  for 
necessaries  ;  the  very  fact  of  the  elopement 


NECESSITY  212  NEGOTIABLE 


and  separation  is  suflBcient  to  put  persons  on 
inquiry,  and  whoever  gives  credit  to  the  wife 
afterwards  gives  it  at  his  peril.  1  Salk.  119  ; 
Strange.  647;  1  Sid.  109  ;  1  Lev.  4 ;  llJohns. 
N.  Y.  281 ;  12  id.  293  ;  3  Pick.  Mass.  289  ;  2 
Ilalst.  146  ;  2  Kent,  Comm.  123  ;  2  Starkie, 
Ev.  696  ;  Bacon,  Abr.  Baron  and  Feme  (H) ; 
Chitty,  C(mtr.  Index  ;  1  Hare  &  W.  Sel.  Dec. 
104,  106  ;  Hammond,  Part.  217. 

NECESSITY.  That  which  makes  the 
sontrary  of  a  thing  impossible. 

AVhatever  is  done  through  necessity  is  done 
without  any  intention  ;  and  as  the  act  is  done 
without  will  [q.  v.)  and  is  compulsory,  the 
agent  is  not  legally  responsible.  Bacon,  Max. 
Reg.  5.  Hence  the  maxim,  Necessity  has  no 
law :  indeed,  necessity  is  itself  a  law  which 
cannot  be  avoided  nor  infringed.  Clef  des 
Lois  Rom.;  Dig.  10.  3.  10.  1 ;  Comyns,  Dig. 
Pleader  (,3  M  20,  3  M  30).  As  to  the  circum- 
stances w^hich  constitute  necessity,  see  1  Rus- 
sell, Crimes,  16,  20;  2  Starkie,  Ev.  713. 

NEGATIVE  AVERMENT.  In  Plead- 
ing. An  averment  in  some  of  the  pleadings 
in  a  case  in  which  a  negative  is  asserted, 

NEGATIVE  CONDITION.  One  where 
the  thing  which  is  the  subject  of  it  mvist  not 
happen.    1  Bouvier,  Inst.  n.  751. 

NEGATIVE  PREGNANT.  In  Plead- 
ing. Sach  a  form  of  negative  expression  as 
may  imply  or  carry  within  it  an  affirmative. 

Thus,  where  a  defendant  pleaded  a  license 
from  the  plaintiff's  daughter,  and  the  plaintiff 
rejoined  that  he  did  not  enter  by  her  license, 
the  rejoinder  was  objected  to  successfully  as 
a  negative  pregnant.  Croke  Jac.  87.  The 
fault  here  lies  in  the  ambiguity  of  the  re- 
joinder, since  it  does  not  appear  whether  the 
plaintiff  denies  that  the  license  was  given  or 
that  the  defendant  entered  by  the  license. 
Stephen,  Plead.  381. 

This  ambiguity  constitutes  the  fault,  Hob. 
295  ;  which,  however,  does  not  appear  to  be 
of  much  account  in  modern  pleading.  1  Lev. 
88;  Comyns,  Dig.  Pleader  (R  6);  Gould, 
Plead,  c.  6,  ^  36. 

NEGATIVE  STATUTE.  One  which  is 
enacted  in  negative  terms,  and  which  so  con- 
trols the  common  law  that  it  has  no  force  in 
opposition  to  the  statute.  Bacon,  Abr.  Sta- 
tutes (G);  Brooke,  Abr.  Parliament,  pi.  72. 

NEGLIGENCE.  Want  of  due  diligence. 

"Z,  As  to  the  amount  of  diligence  required 
in  case  of  bailments,  and  for  the  general  prin- 
ciples of  the  division  of  negligence  into  de- 
grees, see  Bailment  ;  Fraud. 

In  general,  a  party  who  has  caused  an 
injury  or  loss  to  another  by  his  negligence  is 
responsible  for  all  the  consequences.  Hob. 
134;  3  Wils.  126;  1  Chitty,  Plead,  129, 130; 
2  Hen.  &  M.  Va.  423;  1  Strange,  696;  3 
East,  596.  An  example  of  this  kind  may  be 
found  in  the  case  of  a  person  who  drives  his 
carriage  during  a  dark  night  on  the  wrong 
side  of  the  road,  by  which  he  commits  an 
injury  to  another.  3  East,  593  ;  1  Campb. 
m  ;  2  id.  466 ;  5  Bos.  &  P.  119     See  Gale 


6  W.  Easem.  Index  ;  6  Term,  659  ;  1  East, 
106  ;  4  Barnew.  &  Aid.  590 ;  1  Taunt.  568  ; 
2  Stark.  272 ;  2  Bingh.  170 ;  5  Esp.  35,  263  ; 

5  Barnew.  &  C.  550.  Whether  the  incautious 
conduct  of  the  plaintiff  will  excuse  the  negli- 
gence of  the  defendant,  see  1  Q.  B.  29 ;  4 
Perr.  &  D.  642 ;  3  C.  B.  9. 

3.  When  the  law  imposes  a  duty  on  an 
officer,  whether  it  be  by  common  law  or  sta- 
tute, and  he  neglects  to  perform  it,  he  may 
be  indicted  for  such  neglect,  1  Salk.  380 ;  6 
Mod.  96  ;  and  in  some  cases  such  neglect  will 
amount  to  a  forfeiture  of  the  office.  4  Black- 
stone,  Comm.  140.    See  Bouvier,  Inst.  Index. 

Wherever  there  is  a  legal  duty,  and  death 
comes  by  means  of  omission  to  discharge  it, 
the  party  omitting  is  guilty  of  a  felonious  ho- 
micide. 1  Burnett  &  H.  Lead.  Cas.  49 ;  2 
Carr.  &  K.  368 ;  3  id.  123  ;  7  Cox,  Cr.  Cas. 
301  ;  1  Den.  Cr.  Cas.  356  ;  8  Carr.  &  P.  325  ; 

7  id.  438;  1  Russell,  Crimes,  Greaves  ed.  19. 
See  6  Mass.  134 ;  8  Mo.  561 ;  2  Strange,  882  ; 
1  Carr.  &  P.  320;  5  id.  333;  6  id.  396, 
629 ;  7  id.  499 ;  9  id.  672 ;  4  McLean,  C. 
C.  463.  But  it  must  appear  that  the  death 
was  the  direct  and  immediate  result  of  the 
personal  neglect  or  default  of  the  defendant. 
For  instance,  where  trustees  appointed  under 
a  local  act  for  the  purpose  of  repairing  roads 
within  a  particular  district,  with  a  power  to 
contract  for  executing  such  repairs,  neglected 
so  to  contract,  and  by  reason  of  such  neglect 
one  of  such  roads  became  out  of  repair,  and 
a  person  using  it  was  accidentally  killed  in 
consequence  of  its  so  being  out  of  repair,  it 
was  held  that  the  trustees  were  not  chargeable 
with  manslaughter.  17  Q.  B.  34.  See  2  Carr. 

6  K.  343,  368 ;  7  id.  425. 

NEGLIGENT  ESCAPE.  The  omission 
on  the  part  of  a  gaoler  to  take  such  care  of  a 
prisoner  as  he  is  bound  to  take,  when  in  con- 
sequence thereof  the  prisoner  departs  from 
his  confinement  without  the  knowledge  or 
consent  of  the  gaoler,  and  eludes  pursuit. 

For  a  negligent  escape,  the  sheriff  or  keeper 
of  the  prison  is  liable  to  punishment,  in  a 
criminal  case;  and  in  a  civil  case  he  is  liable 
to  an  action  for  damages  at  the  suit  of  the 
plaintiff.  In  both  cases  the  prisoner  may  be 
retaken.  3  Blackstone,  Comm.  415.  See 
Escape. 

NEGOTIABLE.   In  Mercantile  Law. 

A  term  applied  to  a  contract  the  right  of 
action  on  which  is  capable  of  being  trans- 
ferred by  indorsement  (of  which  deliA^ery  is 
an  essential  part),  in  case  the  undertaking  is 
to  A  or  his  order,  A  or  his  agent,  and  the 
like,  or  by  delivery  alone,  in  case  the  under- 
taking is  to  A  or  bearer, — the  assignee  in 
either  case  having  a  right  to  sue  in  his  own 
name. 

At  common  law,  cJioses  in  action  were  not 
assignable;  but  exceptions  to  this  rule  have 
grown  up  by  mercantile  usage  as  to  some 
classes  of  simple  contracts,  and  others  have 
been  introduced  by  legislative  acts,  so  thut 
now  bills  of  exchange,  promissory  notes,  and 
bank-notes,  to  order  or  bearer,  are  univer- 


NEGOTIATION 


213 


NEUTRALITY 


8aily  negotiable;  and  bills  of  lading,  14  Mees. 
&  \V.  Exch.  403  ;  12  Pick.  Mass.  314;  IG  id. 
474,  and  notes  not  to  order  or  bearer,  have 
become  quasi  negotialde ;  that  is,  an  indorse- 
ment will  give  a  right  of  action  in  the  name 
of  the  assignor;  and  in  some  states,  by  sta- 
tute, bonds  and  other  specialties  are  assign- 
iable  by  indorsement. 

And,  in  general,  any  chose  in  action  can  be 
assigned  so  that  the  assignee  can  bring  action 
in  name  of  assignor,  and  with  same  rights. 
See  Hare  &  W.  Sel.  Dec.  158-194 ;  1  Parsons, 
Con.tr.  202. 

NEGOTIATION.  The  deliberation 
which  takes  place  between  the  parties  touch- 
ing a  proposed  agreement. 

That  which  transpires  in  the  negotiation 
makes  no  part  of  the  agreement,  unless  intro- 
duced into  it.  It  is  a  general  rule  that  no 
evidence  can  be  given  to  add,  diminish,  con- 
tradict, or  alter  a  written  instrument.  1  Dall. 
Penn.  426;  4  id.  340;  3  Serg.  &  R.  Penn. 
609. 

In  Mercantile  Law.  The  act  by  which 
a  bill  of  exchange  or  promissory  note  is  put 
into  circulation  by  being  passed  by  one  of  the 
original  parties  to  another  person. 

Until  an  accommodation  bill  or  note  has 
been  negotiated,  there  is  no  contract  which 
can  be  enforced  on  the  note :  the  contract, 
either  express  or  implied,  that  the  party  ac- 
commodated will  indemnify  the  other,  is,  till 
then,  conditional     2  Mann.  &  G.  911. 

NBGOTIORDM  GESTOR  (Lat.).  In 
Civii  Lav^r.  One  who  spontaneously,  and 
without  authority,  undertakes  to  act  for  an- 
other, during  his  absence,  in  his  affairs. 

In  cases  of  this  sort,  as  he  acts  wholly  with- 
out authority,  there  can,  strictly  speaking,  be 
no  contract ;  but  the  civil  law  raises  a  quasi 
mandate  by  implication  for  the  benefit  of  the 
owner,  in  many  such  cases.  Mackeldey.  Civ. 
Law,  H60;  2  Kent,  Comm,  G16,  n.;  'Story, 
Bailm.  ^  82,  189. 

NEIF.  In  Old  English  Law.  A  woman 
who  was  born  a  villein,  or  a  bonr^-w^oman. 

NEMINE  CONTRADICENTE  (usu- 
ally abbreviated  nem.  con.).  Words  used  to 
signify  the  unanimous  consent  of  the  house 
to  which  they  are  applied.  In  England,  they 
are  used  in  the  house  of  commons ;  in  the 
house  of  lords,  the  words  used  to  convey  the 
same  idea  are  nemine  disseiitiente. 

NEPHEW.  The  son  of  a  brother  or  sister. 
Ambl.  514;  IJac.  Ch.  207. 

The  Latin  nepos,  from  which  nephew  is  derived, 
was  used  in  the  civil  law  for  nephew,  but  more  pro- 
perly for  grandt^on  ;  and  we  accordingly  find  neveu, 
the  original  form  of  nephew,  in  the  sense  of  grand- 
eon.    Britton,  c.  119. 

According  to  the  civil  law,  a  nephew  is  in 
the  third  degree  of  consanguinity  ;  according 
to  the  common  law,  in  the  second :  the  latter 
is  the  rule  of  common  law.  2  Sharswood, 
Blackst.  Comm.  206.  But  in  this  country  the 
rule  of  the  civil  law  is  adopted.  2  Milliard, 
Real  Prop.  194.    In  the  United  States  gene- 


rally, there  is  no  distinction  between  whole 
and  half  blood.  1  Dev.  No.  C.  106  ;  2  Yerg. 
Tenn.  115;  2Jone8,Eq.No.C.202;  IM'Cord, 
So.  C.  456. 

NEPOS  (Lat.).    A  grandson. 

NEPTIS  (Lat.).  Granddaughter;  some- 
times greal-granddaughter.  Calvinus,  Lex.; 
Vicat,  Voc.  Jur. ;  Code,  33. 

NEUTRAL  PROPERTY.  Property 
which  belongs  to  neutral  owners,  and  is  used, 
treated,  and  accompanied  by  proper  insignia 
as  such. 

2.  Where  the  insured  party  has  property 
and  commercial  establishments  and  deposito- 
ries in  different  countries,  if  the  property  and 
concerns  of  any  one  is  in,  or  belongs  to,  a  bel- 
ligerent country,  it  will  have  the  national 
character  of  such  country  though  the  na- 
tional character  of  the  owner  may  be  that 
of  a  neutral.  1  Phillips,  Ins.  ^64  ;  5  W. 
Rob.  Adm.  302  ;  1  Wheat.  159  ;  16  Johns.  N. 
Y.  128.  The  declaration  of  war  by  a  nation 
subsequently  to  the  time  in  reference  to  which 
the  policy  takes  effect  will,  however,  only  af- 
fect ownership  thereafter  acquired  or  acts 
thereafter  done.  1  Phillips,  Ins.  ch.  ii.  §  iii. 
ch.  ix.  U  v.-viii. ;  1  Wash.  C.  C.  219 ;  6  Cranch, 
274 ;  7  id.  506  ;  4  Mas.  C.  C.  256 ;  1  Johns. 
N.  Y.  192  ;  2  id.  168  ;  9  id.  388  ;  14  id.  308  ; 

1  C.  Rob.  Adm.  107,  336 ;  2  id.  134 ;  5  id. 

2  ;  6  id.  364 ;  1  Binn.  Penn.  203,  293  ;  5  id, 
464 ;  3  Wheat.  245  ;  3  Gall.  C.  C.  274;  5  East, 
398 ;  12  Mass.  246  ;  8  Term,  230 ;  1  Johns. 
Ch.  N.  Y.  363;  2  id.  191. 

3.  The  description  of  the  subject  in  the 
policy  of  insurance,  as  neutral  or  belonging 
to  neutrals,  is,  as  in  other  cases,  a  warranty 
that  it  is,  what  it  is  described  to  be,  the  in- 
sured interest,  and  must,  accordingly,  in  or- 
der to  comply  with  the  warranty,  not  only  be- 
long to  neutral  owners  at  the  time  of  making 
the  insurance,  but  must  continue  to  be  owned 
during  the  period  for  which  it  is  insured,  and 
must,  so  far  as  it  depends  upon  the  assured, 
be  accompanied  by  the  usual  insignia,  as 
such,  and  in  all  respects  represented,  man- 
aged, and  used  as  such.  1  Phillips,  Ins.  ch. 
ix.  ^  V. ;  Dougl.  732  ;  3  Term,  477  ;  1  Johns. 
N.  Y.  1192;  2  id.  168;  Skinn.327;  1  Wash. 
C.  C.  219  ;  2  Caines,  N.  Y.  73  ;  6  Cranch, 
274 ;  4  Mas.  C.  C.  256  :  1  C.  Rob.  Adm.  26, 
336  ;  2  id.  133,  218  ;  1  Edw.  Adm.  340. 

NEUTRALITY.  The  state  of  a  nation 
which  takes  no  part  between  two  or  mere 
other  nations  at  war  with  each  other. 

2.  Neutrality  consists  in  the  observance  of 
a  strict  and  honest  impartiality,  so  as  not  to 
afford  advantage  in  the  war  to  either  party, 
and  particularly  in  so  far  restraining  its  trade 
to  the  accustomed  course  which  is  held  in 
time  of  peace  as  not  to  render  assistance  to 
one  of  the  belligerents  in  escaping  the  effects 
of  the  other's  hostilities.  Even  a  loan  of 
money  to  one  of  the  belligerent  parties  is 
considered  a  violation  of  neutrality.  9  J.  B. 
Moore,  p.  586.  A  fraudulent  neutrality  in 
considered  as  no  neutrality. 


214  NEW  BRUNSWICK 


NEVADA 


3*  The  violation  of  neutrality  by  citizens 
of  the  United  States,  contrary  to  the  provi- 
sions of  the  act  of  congress  of  April  20,  1818, 
renders  the  individual  liable  to  an  indictment. 
One  fitting  out  and  arming  a  vessel  in  the 
United  States  to  commit  hostilities  against  a 
foreign  power  at  peace  with  them  is,  therefore, 
indictable.  And  by  the  8th  section  of  the  act, 
the  president,  or  such  other  person  as  he  shall 
ha-ve  empowered  for  that  purpose,  may  em- 
ploy the  land  and  naval  forces  and  the  mili- 
tia of  the  United  States  for  the  purpose  of 
taking  possession  of  and  detaining  any  ship 
or  vessel,  with  her  prize  or  prizes,  etc.,  and  for 
the  purpose  of  preventing  the  carrying  on  of 
any  expedition  or  enterprise  contrary  to  the 
provisions  of  that  act.  Wharton,  Crim.  Law, 
|§  2778-2807,  and  cases  there  cited  ;  Brightly 
&  Dig.  U.  S.  Law,  688-690,  giving  act  of  1820, 
at  length  there  cited  :  6  Pet.  445  ;  1  Pet.  C. 
0.  487.  See  United  States,  Curtis  &  Pritch- 
ard,  and  other  Digests ;  Aldin's  Index,  Whea- 
ton.  Law  of  Nations;  Phillimore,  Int.  Law; 
Marshall,  Ins.  384  a;  1  Kent,  Comm.  116; 
Burlamaqui,  pt.  4,  c.  5,  ss.  16,  17  ;  Bynkers- 
hoeck,  lib.  1,  c.  9  ;  Cobbett,  Pari.  Deb.  406  ; 
Chitty,  Law  of  Nat.;  Vattel,  1.  3,  c.  7, 1  104; 
Martens,  Precis,  liv.  8,  c.  7,  I  306;  Boucher, 
Inst.  nn.  1826-1831. 

NEVADA.  One  of  the  territories  of  the 
United  States. 

Congress,  by  an  act  approved  March  2,  1861, 
erected  so  much  of  the  territory  of  the  United  States 
as  is  included  in  the  following  boundaries — viz. :  be- 
ginning at  the  point  of  intersection  of  the  forty- 
second  degree  of  north  latitude  with  the  thirty- 
ninth  degree  of  longitude  west  from  Washington, 
thence  running  south  on  the  line  of  said  thirty- 
ninth  degree  of  west  longitude  until  it  intersects 
the  northern  boundary-line  of  the  territory  of  New 
Mexico,  thence  due  west  to  the  dividing  ridge 
separating  the  waters  of  Carson  Valley  from  those 
that  flow  into  the  Pacific,  thence  on  said  dividing 
ridge  to  the  forty-first  degree  of  north  latitude, 
thence  due  north  to  the  southerly  boundary  of  the 
state  of  Oregon,  thence  due  east  to  the  point  of 
beginning — into  a  separate  territory,  by  the  name 
of  the  territory  of  Nevada,  with  a  temporary  terri- 
torial government,  with  the  exception  that  the  act 
is  not  to  apply  to  so  much  of  the  present  state  of 
California  as  is  included  within  these  boundaries, 
unless  that  state  consents ;  and  with  the  exception 
of  all  that  part  subject  to  Indian  rights  which  have 
not  been  extinguished  by  treaty.  U.  S.  Stat,  at 
Large,  1861,  ch.  83,  Little  &  Brown's  ed.  209.  See, 
also,  Act  of  Congress  July  14,  1862,  extending  the 
boundaries. 

The  provisions  of  the  organic  act  are  substan- 
tially the  same  as  those  of  the  act  erecting  the  ter- 
ritory of  New  Mexico.    See  New  Mexico. 

NEVER  INDEBTED.  A  plea  to  an  ac- 
tion of  indebitatus  assu7Hpsit,  by  which  the 
defendant  asserts  that  he  is  not  indebted  to 
the  plaintiff.  0  Carr.  &  P.  545  ;  1  Mees.  & 
W.  Exch.  542  ;  1  Q.  B.  77.  The  plea  of  never 
indebted  has,  in  England,  been  substituted 
for  7iil  debet,  in  certain  actions  specified  in 
schedule  B  (36)  of  the  Common  Law  Proce- 
dure Act  of  1852 ;  and  the  effect  of  the  plea 
never  indebted  is  to  deny  those  facts  from 
which  the  liability  of  the  defendant  arises.  In 


actions  on  negotiable  bills  or  notes,  never  in 
debted  is  inadmissible.  Reg.  Gen.  Hil.  T. 
1853,     6,  7  ;  3  Chitty,  Stat.  560. 

NEW  AND  USEFUL  INVENTION 

A  phrase  used  in  the  act  of  congress  relating 
to  granting  patents  for  inventions. 

The  invention  to  be  patented  must  not  only 
be  new,  but  useful, — that  is,  useful  in  contra- 
distinction to  frivolous  or  mischievous  inven- 
tions. It  is  not  meant  that  the  invention 
should  in  all  cases  be  superior  to  the  modes 
now  in  use  for  the  same  purposes.  1  Mas, 
C.  C.  182,  302;  4  Wash.  C.  C.  9 ;  1  Pet.  C. 
C.  480,  481 ;  1  Paine,  C.  C.  203  ;  3  C.  B.  425. 
The  law  as  to  the  usefulness  of  the  invention 
is  the  same  in  France.  Renouard,  c.  5,  s.  16, 
n.  1,  p.  177.    See  Patent. 

NEW  ASSIGNMENT.  Are-state- 
ment of  tlie  cause  of  action  by  the  plaintiff, 
with  more  particularity  and  certainty,  but 
consistently  with  the  general  statement  in 
the  declaration.  Stephen,  Plead.  241 ;  20 
Johns.  N.  Y.  43. 

2.  Its  purpose  is  to  avoid  the  effect  of  an 
evasive  plea  which  apparently  answers  the 
declaration,  though  it  does  not  really  apply 
to  the  matter  which  the  plaintiff  had  in  view. 
1  Wms.  Saund.  299  b,  note  6.  Thus,  if  a  de- 
fendant has  committed  two  assaults  on  the 
plaintiff,  one  of  which  is  justifiable  and  the 
other  not,  as  the  declaration  may  not  distin- 
guish one  from  the  other,  the  defendant  may 
justify,  and  the  plaintiff,  not  being  able  either 
to  traverse,  demur,  or  confess  and  avoid,  must 
make  a  new  assignment. 

3.  There  may  be  several  new  assignments 
in  the  course  of  the  same  action.  1  Chitty, 
Plead.  614.  A  plaintiff  may  reply  to  a  part 
of  the  plea  and  also  make  a  new  assignment. 
A  new  assignment  is  said  to  be  in  the  nature 
of  a  new  declaration,  Bacon,  Abr.  Trespass 
(I  4,  2) ;  1  Saund.  299  c,  but  is  more  pro- 
perly considered  as  a  repetition  of  the  de- 
claration, 1  Chitty,  Plead.  602 ;  differing 
only  in  this,  that  it  distinguishes  the  true 
ground  of  complaint,  as  being  different  from 
that  which  is  covered  by  the  plea.  Being  in 
the  nature  of  a  new  or  repeated  declaration, 
it  is,  consequently,  to  be  framed  with  as  much 
certainty  or  specification  of  circumstances  as 
the  declaration  itself.  In  some  cases,  indeed, 
it  should  be  even  more  particular.  Bacon, 
Abr.  Trespass  (I  4,  2) ;  1  Chitty,  Plead.  610; 
Stephen,  Plead. 245.  See  3  Blackstone,  Comm. 
311;  Archbold,  Civ.  Plead.  286;  Doctrina 
Plac.  318  ;  Lawes,  Civ.  Plead.  163. 

NEW  BRUNSWICK.  A  province  of 
British  North  America. 

2.  It  is  bounded  north  by  the  river  Restigoucb6 
and  the  bay  of  Chaleur,  east  by  the  gulf  of  St.  Law- 
rence, south  by  Nova  Scotia  and  the  bay  of  Fundy, 
and  west  by  the  state  of  Maine.  Its  length  from 
north  to  south  is  one  hundred  and  eighty  miles, 
breadth  one  hundred  and  fifty  miles,  giving  an  area 
of  twenty-five  thousand  square  miles. 

The  capital  of  New  Brunswick  is  Fredericton,  a 
smnll  place  sixty  miles  back  from  the  southern 
shore,  or  eighty  miles  up  the  river  St.  John,  at 


NEW  BRUNSWICK  215 


NEW  BRUNSWICK 


whoso  mouth  is  the  city  St.  John,  with  a  popula- 
tion of  forty  thousand. 

New  Brunswick  was  originally  part  of  the  French 
province  of  Acadie  (see  Nova  Scotia),  but  was 
made  a  distinct  province  in  1784,  having  been  first 
settled  by  the  French  a.d.  16o9,  ceded  to  the  Eng- 
lish in  1713  by  the  treaty  of  Utrecht,  and  settled 
by  the  British  government  in  1764. 

The  government  in  its  three  branches  resembles, 
as  closely  as  circumstances  permit,  that  of  England. 

The  Executive  Department. 
This  consists  of  the  Governor  and  the  Executive 
Council. 

3.  The  Governor  or  Lieutenant-Governor  repre- 
sents the  sovereign,  and  is  captain-general  and 
commander-in-chief  of  the  militia  of  the  province, 
and,  together  with  his  council,  has,  in  general,  the 
same  powers  as  governors  of  other  colonies, — such 
as  the  appointment  and  commissioning  of  sheriffs, 
coroners,  magistrates,  and  other  oflScers.  He  does 
not  preside  in  chancery  or  vice-admiralty,  but  is  one 
of  the  court  of  piracy. 

By  provincial  act  21  Vict.  c.  9,  the  lieutenant- 
governor  and  executive  council,  together  with  a 
chief  superintendent  (who  virtually  has  the  sole 
control),  form  the  provincial  board  of  education. 

The  Ereciitive  Council  consists  of  nine  members: 
six  oflBceholders, — viz. :  provincial  secretary,  attor- 
ney-general, solicitor-general,  chief  commissioner 
of  the  board  of  works,  surveyor- general,  and  post- 
master-general,— and  three  non-oflBceholding  mem- 
bers. 

Those  members  of  the  council  who  take  oflSce 
must  be  elected  by  the  people  ;  and  if  they  are  mem- 
bers of  the  house  at  the  time  of  their  appointment 
they  thereby  vacate  their  seats  in  the  legislature 
and  go  back  to  their  constituents  for  re-election  : 
and  members  so  holding  office  are  at  once  a  part  of 
the  legislature  and  of  the  executive.  The  governor 
and  council,  as  the  government,  have  the  appoint- 
ment, practically,  at  least,  of  all  public  officers  ;  but 
the  council  commonly  consult  the  wishes  of  the  re- 
presentatives of  the  counties  where  the  appoint- 
ments are  made. 

4.  The  expenditure  of  the  public  moneys  is  vested 
in  the  executive  department;  but  the  budget  of  the 
provincial  secretary  (who  corresponds  to  the  prime 
minister)  must  be  laid  before  the  house  of  assembly 
and  passed  by  them. 

The  house  can  investigate  the  affairs  of  any  de- 
partment by  calling  on  the  governor  to  order  the 
papers  connected  therewith  to  be  brought  before 
them. 

The  Legislative  DepartPient. 

5.  This  consists  of  the  Legislative  Council,  or 
Upper  House,  and  the  Lower  House,  or  House  of 
Assembly. 

The  Leginlotive  Council  consists  of  twenty-three 
members,  appointed  by  the  crown  on  the  recom- 
mendation of  the  governor  and  council, — practi- 
cally appointed  by  the  governor  and  council. 

They  are  usually  men  of  wealth  and  political  in- 
fluence, and  hold  their  seats  for  life  or  during  good 
behavior. 

Prior  to  1834  the  legislative  and  executive  coun- 
cils were  united,  but  since  that  time  they  have  been 
distinct  bodies;  but  a  seat  in  the  legislature  does 
not  prevent  one's  being  a  member  of  the  executive. 
In  1862  the  executive  council  was  composed  of  two 
members  of  the  legislative  council  and  seven  mem- 
bers of  the  house  of  assembly. 

The  apportionment  of  representatives  to  counties 
Is  based  upon  the  population, — eight  counties  send- 
ing two  each,  one  sending  three,  and  five  sending 
four  each,  while  the  city  of  St.  John  sends  two. 

6.  The  House  of  Assembly  consists  of  forty-one 
members,  elected  by  the  people. 


The  provincial  act  18  Vict.  1855,  c.  37,  ^  20,  pro. 
vides  that  the  candidate  shall  be  a  male  British 
subject,  of  age,  and  for  six  months  previous  to  the 
teste  of  the  writ  of  election  legally  seised  as  of  free- 
hold, for  his  own  use,  of  land  in  the  province  of  the 
value  of  three  hundred  pounds  over  and  above  all 
incumbrances  whatever  charged  upon  or  affecting 
the  same. 

The  qualification  for  a  vote  for  representative  is 
established  by  the  provincial  act  18  Vict.  1855,  c. 
37,  ^  1,  which  provides  that  voters  for  representa- 
tives shall  be  male  British  subjects,  of  age,  not  le- 
gally incapable,  and  who  shall  have  been  assessed, 
for  the  year  in  which  the  registry  is  made  up,  for 
real  estate  one  hundred  dollars,  or  personal  property 
four  hundred  dollars,  or  real  and  personal  four 
hundred  dollars,  or  annual  income  four  hundred 
dollars.  In  case  no  assessment  is  made  in  his 
parish,  the  possession  of  the  qualification  shall  be 
sufficient. 

1.  The  government  is  what  is  called  "respon- 
sible government,'' — a  term  which  has  given  rise 
to  much  dispute,  sticklers  for  the  rights  of  the 
crown  and  lovers  of  monarchy  proclaiming  it  an 
absurd  self-contradiction,  while  the  so-called  libe- 
rals cling  to  it  as  a  fit  name  for  a  government  whose 
executive  council  are,  directly  or  indirectly,  depend- 
ent on  the  people  for  their  places. 

To  give  an  idea  of  the  working  of  this  system,  let 
us  suppose  the  present  government  ousted.  The 
lieutenant-governor  would  then  summon  the  leaders 
of  the  stronger  political  party  in  the  legislature,  and 
call  upon  them  to  name  a  council.  They  would 
suggest  nine  men  from  their  own  party,  or  such  as 
would  act  with  them,  and  he  would  thereupon  issue 
his  proclamation  making  such  men  his  executive 
council.  Six  of  these  taking  office  (supposing  them 
appointed  from  the  house  of  assembly)  vacate  their 
seats  in  the  legislature  and  go  back  to  their  consti- 
tuents for  the  re-election  necessary  to  confirm  them 
as  councillors  and  to  allow  them  to  retain  their  seats 
in  the  lower  house.  If  not  re-elected,  new  appoint- 
ments are  made  and  the  council  filled. 

Suppose  them  re-elected.  The  question  now 
comes.  Have  the  government,  so  constituted,  th' 
confidence  of  the  people?  If  they  are  strong 
enough  in  the  legislature,  all  goes  smoothly ;  but 
as  soon  as  the  opposition  can  control  a  majority  of 
votes  in  the  house,  they  pass  a  vote  of  "want  of 
confidence,"  and  thereupon  the  executive  council 
resign,  and  the  appointing  process  is  gone  through 
with  anew. 

8.  The  House  of  Assembly  is  elected  by  the  people 
every  four  years,  by  ballot.  The  government,  i.e. 
executive  council,  is  commonly,  but  not  necessa- 
rily, chosen  from  the  house  of  assembly,  and  is 
in  accordance  with  the  political  strength  of  that 
body. 

When  an  executive  council  cannot  co-operate  with 
the  lieutenant-governor,  they  are  dismissed  or  re- 
sign ;  and  if  then  re-elected  by  the  people,  the  gov- 
ernor asks  her  majesty  to  appoint  his  successor ;  or, 
if  he  still  holds  his  office  and  continues  to  act  impro- 
perly, the  people  appeal  through  the  house  to  the 
crown,  and  all  such  appeals  are  fairly  and  promptly 
decided. 

The  Judicial  Department. 

9.  This  comprises  the  Supreme  Court  of  Judica- 
ture, Circuit  Courts,  Probate  Courts,  Court  of  Mar- 
riage and  Divorce,  Court  of  Vice-Admiralty,  Court 
for  Trial  and  Punishment  of  Piracy  and  Other  Of- 
fences upon  the  High  Seas,  Court  of  Common  Pleas 
or  Quarter  Sessions  of  the  County  Magistrates,  and 
the  Petty  Court  or  Inferior  Court  of  Common  Pleas, 
besides  Police  Courts  and  minor  tribunals. 

The  Supreme  Court  consists  of  a  chief  justice  and 
four  puisne  judges,  appointed  by  the  crown  on  re- 
I  commendation  of  the  governor  and  council.  By 


NEW  FOR  OLD 


216 


NEW  HAMPSHIRE 


act  of  assembly  17  Vict.  c.  67,  the  court  of  chan- 
cery vfas  abolished,  and  the  master  of  the  rolls  ap- 
pointed a  judtre  of  the  supreme  court:  hence  all 
3auses  heretofore  cognizable  by  the  court  of  chan- 
cery are  to  be  determined  in  the  "  equity  side  of  the 
supreme  court." 

10.  The  terras  of  court  are.  as  in  England,  four 
in  number, — Hilary,  first  Tuesday  in  February; 
Easter,  second  Tuesday  in  April ;  Trinity,  second 
Tuesday  in  June;  Michaelmas,  second  Tuesday  in 
October;  and  nisi  prius  sittings  in  county  of  York, 
second  Tuesday  in  January  and  fourth  Tuesday  in 
June.  Suits  for  twenty  dollars  or  less  can  be  heard 
before  a  justice  or  magistrate's  court,  or  (in  St. 
John  city  only,  for  forty  dollars  or  less)  before  the 
petty  court.  Suits  for  from  twenty  to  eighty  dol- 
lars go  before  the  court  of  common  pleas  or  quarter 
sessions  ;  and  in  the  city  of  St.  John  the  mayor  and 
recorder  are  judges  of  the  quarter  sessions.  Suits 
for  over  eighty  dollars  must  go  before  the  supreme 
court.  Imprisonment  for  debt  is  still  permitted; 
but  the  debtor  is  discharged  on  taking  his  oath 
that  he  has  no  property  of  any  kind.  Possession 
of  a  leasehold  estate  would  prevent  his  taking  the 
oath.  Any  imprisoned  debtor  who  can  get  bail 
may  go  on  the  limits,  the  limits  extending  to  a 
distance  of  three  miles  from  the  jail.  In  seizing 
under  execution,  tools  of  trade  and  fifty  dollars' 
worth  of  household  furniture  are  exempt,  except  for 
rent,  in  which  case  the  landlord  may  take  every 
thing  on  the  premises.  There  is  no  proceeding  of 
attachment  on  mesne  process,  as  in  some  of  the 
New  England  states.  The  laws  in  force  are  the 
common  law  of  England,  the  statute  laws  of  Great 
Britain  so  far  as  they  are  made  to  extend  to  the 
colonies,  and  provincial  statutes  not  repugnant  to 
the  laws  of  England. 

NEW  FOR  OLD.  A  term  used  in  the 
law  of  insurance  in  cases  of  adjustment  of  a 
loss  when  it  has  been  but  partial.  In  mak- 
ing such  adjustment,  the  rule  is  to  apply  the 
old  materials  towards  the  payment  of  the 
new,  by  deducting  the  value  of  them  from 
the  gross  amount  of  the  expenses  for  repairs, 
and  to  allow  the  deduction  of  one-third  new 
for  old  upon  the  balance.  See  1  Cow.  N.  Y. 
265  ;  4  id.  245  ;  4  Ohio,  284 ;  7  Pick.  Mass. 
259  ;  14  id.  141. 

NEW  HAMPSHIRE.  The  name  of  one 
of  the  original  thirteen  United  States  of 
America. 

2.  It  was  subject  to  Massachusetts  from  1641  to 
1680.  Many  of  its  institutions  and  laws  are  to  be 
traced  to  that  connection.  It  was  governed  as  a 
province,  under  royal  commissions,  by  a  governor 
and  council  appointed  by  the  king,  and  a  house  of 
assembly  elected  by  the  people,  until  the  revolu- 
tion. 

In  January,  1776,  a  temporary  constitution  was 
adopted,  which  continued  till  1784.  The  constitu- 
tion adopted  in  1784  was  amended  by  a  conven- 
tion of  delegates  held  at  Concord,  approved  by  the 
people  in  their  town-meetings,  and  established  by 
the  convention  in  February,  1792.  This  constitu- 
tion was  amended  in  1850,  by  abolishing  the  pro- 
perty qualification  for  certain  offices,  but  is  other- 
wise still  in  force. 

Every  male  inhabitant  of  every  town  and  place, 
of  twenty-one  years  of  age  and  ui)wards,  except 
paupers  and  persons  excused  from  paying  taxes  at 
their  own  request,  is  entitled  to  vote  in  the  town- 
meetings  for  the  ofiicers  elected  by  the  people.  By 
statute,  the  names  of  all  voters  are  required  to  be 
placed  by  the  selectmen  on  a  check-list;  and  no 
vote  will  be  received  unless  the  name  of  the  voter 
iP  80  registered     Three  months'  residence  in  the 


town,  six  months'  in  the  state,  and  the  presentment 
to  the  selectmen  of  the  record  of  naturalization  of 
persons  who  have  been  aliens,  thirty  days  be- 
fore the  day  of  meeting,  are  required  to  entitle  a 
party  to  be  registered  on  the  check-list. 

The  Legislative  Power, 

3.  This  is  lodged  in  the  Senate  and  House  of 
Representatives,  each  of  which  has  a  negative  upon 
the  other,  and  which  together  are  styled  the  Gene- 
ral Court  of  New  Hampshire. 

The  Senate  is  composed  of  twelve  members, 

elected  for  the  term  of          years,  one  from  each 

district,  by  the  people  of  the  district.  If  no  per- 
son is  elected  by  the  people  for  any  district,  or  if  a 
vacancy  occur,  one  is  elected,  by  joint  ballot  of  the 
two  houses,  from  the  two  persons  having  the  high- 
est number  of  votes.  A  senator  must  be  a  Protest- 
ant, thirty  years  old,  an  inhabitant  of  the  district, 
and,  for  seven  years  next  before  his  election,  of  the 
state. 

Representatives  are  elected  annually,  for  the  term 
of  one  year,  by  the  voters  of  the  several  towns  and 
districts,  and  in  case  of  failure  to  elect,  or  vacancy, 
as  senators  are  in  like  case.  Each  town  having  one 
hundred  and  fifty  ratable  male  polls  of  twenty-one 
years  of  age  and  upwards  may  elect  one  repre- 
sentative, and  one  more  for  each  three  hundred  ad- 
ditional polls.  Towns  and  places  having  less  than 
one  hundred  and  fifty  ratable  polls  may  be  classed 
by  law  for  the  chance  of  a  representative ;  and 
towns  which  cannot  be  classed  without  great  incon- 
venience may  be  authorized  by  law  to  elect.  A 
representative  must  be  a  Protestant,  an  inhabitant 
of  the  town  for  which  he  is  elected,  and,  for  two 
years  next  preceding  his  election,  of  the  state. 
The  constitution  contains  the  usual  provisions  for 
securing  the  organization  of  each  house,  giving 
control  of  the  conduct  of  members,  providing  for 
keeping  and  publishing  a  record  of  proceedings, 
for  open  sessions,  limiting  the  power  of  adjourn- 
ment of  houses  separately,  securing  members  from 
arrest  on  civil  process  while  going  to,  remaining 
at,  and  returning  from  the  session,  and  for  securing 
freedom  of  debate.  The  general  assembly  has  full 
legislative  powers,  may  constitute  courts,  regulate 
taxes,  secure  equal  representation,  etc.,  under  re- 
strictions similar  to  those  contained  in  the  consti- 
tutions of  the  other  states. 

The  Executive  Power, 
4.  This  is  lodged  in  a  Governor  and  Council. 
The  Governor  is  elected  annually,  and  holds  his 
office  for  one  year  from  the  first  Wednesday  in 
June.  If  no  person  has  a  majority  of  votes,  the 
senate  and  house  of  representatives,  by  joint  ballot, 
elect  one  of  the  two  persons  having  the  highest 
number  of  votes.  In  case  of  a  vacancy,  the  presi- 
dent of  the  senate  exercises  the  powers  of  the 
office,  but  cannot  then  act  as  senator.  The  governor 
must  be  a  Protestant,  of  the  age  of  thirty  years, 
and  an  inhabitant  of  the  state  for  seven  years  next 
preceding  his  election. 

The  governor  is  commander-in-chief  of  all  the 
military  forces  of  the  state.   He  has  a  limited  veto 
upon  the  acts  and  resolves  of  the  general  court, 
which  are  invalid  unless  they  are  approved  and 
signed  by  him ;  but  if  he  does  not  return  any  bill 
to  the  house  in  which  it  originated,  with  his  objec- 
tions, within  five  days  after  it  is  presented  to  him, 
provided  the  general  court  continue  in  session,  or 
if  the  two  houses,  after  considering  his  objections, 
1  shall  again  pass  the  same  by  a  vote  of  two-thirds 
j  of  each  house,  the  bill  will  become  a  law  as  if  he 
j  had  signed  it.    In  case  any  cause  of  danger  to  the 
[  health  of  the  members  exists  at  their  place  of  moet- 
\  ing,  he  may  direct  the  session  to  be  held  at  another 
1  place. 

I  5.  Councillors  are  elected  annually,  must  have 
,  the  qualifications  of  senators,  and  hold  office  for 


^EW  HAMPSHIRE  217 


NEW  JERSEY 


tfbe  same  term  as  the  governor.  The  state  is 
divided  by  hiw  into  five  districts,  in  each  of  which  a 
councillor  is  elected,  and  vacancies  arc  filled  by  a 
like  election.  If  no  person  has  a  majority  of  votes, 
the  two  houses,  by  joint  ballot,  elect  a  councillor 
from  the  two  persons  having  the  highest  number  of 
votes. 

The  governor  and  council  may  adjourn  or  pro- 
rogue the  general  court,  in  case  of  disagreement  of 
the  two  houses,  for  any  period  not  exceeding  ninety 
days.  They  nominate  and  appoint  all  judicial 
officers,  the  attorney-general  and  solicitors,  sheriff's 
and  coroners,  registers  of  probate,  and  all  general 
and  field  ofticers  of  the  militia, — each  having  a 
negative  upon  the  other.  Nominations  must  be 
inade  three  days  before  an  appointment  can  be 
made,  unless  a  majority  of  the  council  assent.  All 
commissions  must  be  in  the  name  and  under  the 
seal  of  the  state,  signed  by  the  governor  and  at- 
tested by  the  secretary,  and  the  tenure  of  the  of- 
fice stated  therein. 

The  power  of  pardoning  offences — after  convic- 
tion only,  however — is  vested  in  the  governor  and 
council,  except  in  cases  of  impeachment.  No 
money  can  be  drawn  from  the  treasury  of  the 
Btate  but  by  warrant  of  the  governor,  with  the 
advice  and  consent  of  the  council. 

The  Judicial  Power. 

ft.  The  Supreme  Judicial  Court  consists  of  a 
chief  justice  and  five  assistant  justices,  appointed 
by  the  governor  and  council,  to  hold  during  good 
behavior,  until  seventy  years  of  age.  It  has 
original  jurisdiction  of  all  cases  and  proceedings 
at  common  law,  civil  and  criminal,  except  those  in 
which  justices  of  the  peace  have  jurisdiction ;  of 
all  cases  in  equity  :  in  all  cases  of  divorce  and  ali- 
mony;  and  appellate  jurisdiction  in  all  appeals 
from  courts  of  probate,  and 'in  all  appeals  from 
police  courts  and  from  justices  of  the  peace. 

Trial  terms  of  the  supreme  court  are  held  by  a 
single  judge  in  every  county  twice,  and  in  the 
larger  counties  three  times,  a  year;  but  two  judges 
must  attend  in  any  capital  trial.  At  these  terms 
are  entered  and  tried  most  cases  at  common  law 
and  appeals  from  police  courts  and  justices  of  the 
peace;  and  all  trials  by  jury  are  had  there;  but 
cases  may  be  tried  without  a  jury,  by  consent  of 
parties.  Any  question  of  law  arising  at  these 
terms  may  be  transferred  to  the  law  terms  for 
decision  by  the  whole  court. 

Two  law  terms  are  held  annually  in  each  of 
the  four  judicial  districts  into  which  the  state  is 
divided.  At  these  terms  are  entered  and  heard 
all  cases  in  equity,  cases  of  divorce,  appeals  from 
courts  of  probate,  writs  of  error  and  certiorari, 
cases  of  mandamus,  quo  warranto,  and  the  like, 
and  all  questions  of  law  transferred  from  the  trial 
terms.  No  trials  by  jury  are  held  at  law  terms; 
but  issues  of  fact  are  transferred  to  the  trial  terms. 
Four  justices  are  a  quorum  at  the  law  terms,  and 
the  concurrence  of  three  is  necessary  to  a  decision 
of  any  law  question. 

T.  Judges  of  probate  are  appointed  by  the  gov- 
ernor and  council  in  each  county,  who  hold  their 
office  during  good  behavior,  unless  sooner  removed 
by  address  of  both  houses  or  by  impeachment. 
They  have  jurisdiction  of  all  matters  relating  to 
the  estates  of  persons  deceased  and  the  guardian- 
ship of  minors,  insane  persons,  and  spendthrifts, 
subject  to  appeal  to  the  supreme  court. 

Justices  of  the  Peace  are  appointed  in  suflScient 
number  by  the  governor  and  council,  who  hold 
their  office  during  the  term  of  five  y^ars,  unless 
sooner  removed  by  address  of  both  houses  of  the 
legislature.  They  have  jurisdiction  of  all  c'vil  causes 
at  common  law  in  which  the  damages  den'anded  do 
not  exceed  thirteen  dollars  and  thirty-three  cents 
and  where  the  title  to  real  estate  is  not  invof-ved,  and 
in  many  m!'ior  criminal  cases,  subject  to  a^opeal  to 


 »  

the  supreme  court.  They  have  authority  to  arrest, 
examine,  and  bind  over  for  trial  at  the  supreme 
court  persons  charged  with  higher  ofi'ences. 

Police  Courts  have  exclusive  jurisdiction,  in  the 
cities  and  places  where  they  are  established,  in  all 
cases  where  justices  of  the  peace  have  jurisdiction 
elsewhere. 

No  judge,  clerk,  or  register  of  any  court,  or 
justice  of  the  peac«,  can  act  as  attorney,  be  of 
counsel,  or  receive  fees  as  advocate  or  counsel,  in 
any  case  which  may  come  before  the  court  of  which 
he  is  an  officer. 

County  Commissioners  are  elected,  three  in  cash 
county,  by  the  voters  of  the  county,  for  the  terra 
of  three  years,  one  being  elected  each  year.  They 
have  general  control  and  management  of  the 
financial  afiairs  of  the  county,  of  the  public  build- 
ings, of  the  roads,  of  paupers,  and  of  levying  the 
county  tax. 

NEW  JERSEY.  The  name  of  one  oi 
original  thirteen  states  of  the  United  States  of 
America. 

2.  The  territory  of  which  the  state  is  composed 
was  included  within  the  patent  granted  by  Charles 
II.  to  his  brother  James,  duke  of  York,  bearing 
date  on  the  12th  of  March  166J.  This  grant  com- 
prised all  the  lands  lying  between  the  western  side 
of  Connecticut  river  and  the  east  side  of  Delaware 
bay,  and  conferred  powers  of  government  over  the 
granted  territory.  At  this  time  the  province  was 
in  the  possession  and  under  the  government  of 
Holland.  Before  the  close  of  the  year  the  inhabit- 
ants of  the  province  submitted  to  the  government 
of  England,  on  the  23d  and  24th  of  June,  1664. 
The  duke  of  York,  by  deeds  of  lease  and  release, 
conveyed  to  John  Lord  Berkely  and  Sir  George 
Carteret,  their  heirs  and  assigns  forever,  ''all  that 
tract  of  land  adjacent  to  New  England  and  lying 
and  being  to  the  westward  of  Long  Island  and 
Manhitas  Island,  and  bounded  on  the  east  part  by 
the  main  sea,  and  part  by  Hudson  river,  and  hath 
upon  the  west  Delaware  bay  or  river,  and  ex- 
tendeth  southward  to  the  main  ocean  as  far  as 
Cape  May  at  the  mouth  of  Delaware  bay,  and  to 
the  northward  as  far  as  the  northernmost  branch 
of  the  said  bay  or  river  of  Delaware,  which  is  in 
41  degrees  and  40  minutes  of  latitude,  and  crosseth 
over  thence  in  a  straight  line  to  Hudson's  river  in 
forty-one  degrees  of  latitude :  which  said  tract  of 
land  is  hereafter  to  be  called  Nova  Caesaria  or  New 
Jersey." 

3.  This  grant  first  defined  the  boundaries  and 
gave  the  name  of  the  province.  It  conferred  upon 
the  grantees,  with  the  territory,  powers  of  govern- 
ment in  as  full  and  ample  manner  as  they  were 
conferred  by  the  crown  upon  the  duke  of  York. 
Lord  Berkely  and  Sir  George  Carteret,  being  by 
virtue  of  this  conveyance  the  sole  proprietors  of 
New  Jersey,  on  the  10th  of  February,  166^,  signed  a 
constitution  which  they  published  under  the  title  of 
"  The  consessions  and  agreement  of  the  lords  propri- 
etors of  the  province  of  Nova  Caesaria  or  New  Jersey 
to  and  with  all  and  every  of  the  adventures,  and 
all  such  as  shall  settle  or  plant  there."  This  docu- 
ment, under  the  title  of  The  Consessions,"  was 
regarded  as  the  first  constitution  of  New  Jersey, 
and  continued  in  force  until  the  division  of  the 
province  in  1676.  The  instrument  was  c<insidered  as 
irrevocable,  and  therefore  of  higher  authority  than 
the  acts  of  assembly,  which  were  subject  to  altera- 
tion and  repeal.  War  having  been  declared  by 
England  against  Holland  in  1673,  the  Dutch  were 
again  in  possession  of  the  country,  and  the  inhabit- 
ants submitted  to  their  authority. 

4.  By  the  treaty  of  peace  between  England  and 
Holland  on  the  9th  of  February,  1674,  the  country 
was  restored  to  the  possession  of  the  English.  On 
the  conclusion  of  peace^  in  order  to  remove  all 


NEW  JERSEY 


grounds  of  objection  to  his  title  on  account  of  the 
recapture  of  the  country  by  the  Dutch,  the  duke 
of  York  obtained  from  the  crown  a  new  patent, 
similar  to  the  first,  and  dated  on  the  29th  of  June, 
1674.  On  the  20th  of  July  in  the  same  year,  the 
duke  of  York  made  a  second  grant  of  a  portion  of 
the  province  to  Sir  George  Carteret  individually. 
The  partition  which  this  patent  was  intended  to 
secure,  in  addition  to  the  C(jnfirmation  of  Carteret's 
grant,  was  accomplished  by  deeds  of  partition 
executed  July  1,  1676,  between  Carteret  and  the 
trustees  of  Byllinge.  In  1702,  the  proprietors  of 
the  two  provinces,  called  respectively  East  New 
Jersey  and  West  New  Jersey,  surrendered  their 
powers  of  government  to  Queen  Anne,  still  retain- 
ing their  title  to  the  land.  The  two  divisions 
constituted  thenceforth  but  one  colony.  The  col- 
ony was  governed  by  a  governor  and  council  ap- 
pointed by  the  crown,  and  an  assembly  of  the 
representatives  of  the  people  chosen  by  the  free- 
holders. This  form  of  government  continued  till 
the  American  revolution. 

5.  The  first  constitution  of  the  state  of  New 
Jersey  was  adopted  by  the  provisional  congress  on 
the  second  day  of  July,  1776.  This  body  was 
composed  of  representatives  from  all  the  counties 
of  the  state,  who  were  elected  on  the  fourth  Mon- 
day of  May,  and  convened  at  Burlington  on  the 
tenth  day  of  June,  1776.  It  was  finally  adopted 
on  the  second  day  of  July,  but  was  never  sub- 
mitted to  a  popular  vote.  This  constitution  con- 
tinued in  force  until  the  first  day  of  September, 
1844,  when  it  was  superseded  by  the  existing  con- 
stitution. A  new  constitution  was  adopted  May 
14,  1844,  by  a  convention  composed  of  delegates 
e'ected  by  the  people  in  pursuance  of  an,  act  passed 
by  the  legislature.  The  constitution  thus  framed, 
having  been  submitted  to  and  adopted  by  the 
people  at  an  election  held  on  the  thirteenth  day  of 
August,  took  effect  and  went  into  operation,  pursu- 
ant to  one  of  its  provisions,  on  the  twenty-second 
of  September,  1844. 

6.  The  right  of  suff'rage  is  by  the  constitution 
vested  in  every  white  male  citizen  of  the  United 
States,  of  the  age  of  twenty-one  years,  who  has  been 
a  resident  of  the  state  one  year,  and  of  the  county  in 
which  he  claims  his  vote  five  months,  next  before 
the  election :  provided  that  no  person  in  the  mili- 
tary, naval,  or  marine  service  of  the  United  States 
shall  be  considered  a  resident  of  the  state  by  being 
stationed  in  any  garrison,  barrack,  or  military  or 
naval  place  or  station  within  the  state;  and  no 
pauper,  idiot,  insane  person,  or  person  convicted  of 
a  crime  which  now  excludes  him  from  being  a  wit- 
ness, unless  pardoned  or  restored  by  law  to  the 
right  of  suffrage,  shall  enjoy  the  right  of  an  elector. 

The  Legislative  Power. 

This  is  lodged  in  a  Senate  and  General  Assembly, 
which  meet  separately  the  second  Tuesday  in  Janu- 
ary each  yea". 

The  Senate  is  composed  of  one  senator  from  each 
county,  elected  by  the  people  for  three  years.  They 
are  divided  into  classes,  so  that  one-third  of  the 
senate  is  changed  each  year.  A  senator  must  be 
entitled  to  vote,  at  least  thirty  years  old,  have  been 
a  citizen  and  inhabitant  of  the  state  for  four  years, 
and  of  the  county  for  which  he  is  chosen  one  year, 
next  before  election. 

T.  The  (jcncral  7l«»ew?>/?/ is  composed  of  members 
elected  annually  by  the  voters  of  the  several  coun- 
ties. They  are  apportioned  on  the  basis  of  popu- 
lation ;  and  each  county  is  to  have  one  member  at 
least,  and  the  whole  number  is  not  to  exceed  sixty. 
Each  member  must  be  entitled  to  vote,  at  least 
twenty-one  years  old,  must  have  been  a  citizen  and 
inhabitant  of  the  state  for  two  years,  and  of  the 
coun*y  for  which  he  is  chosen  one  year,  next  before 
his  election. 


NEvv^  JERSEY 


The  Executive  Power. 
The  Governor  is  elected  by  the  legal  voters  of  the 
state  for  the  term  of  three  years,  commencing  on  the 
third  Tuesday  of  January  next  ensuing  bis  election. 
He  is  incapable  of  holding  the  oflSce  for  three  years 
next  after  his  term  of  service.  He  must  be  not  less 
than  thirty  years  of  age,  and  have  been  for  twenty 
years  at  least  a  citizen  of  the  United  States,  and  a 
resident  of  this  state  seven  years  next  before  his  elec- 
tion,unless  he  has  been  absent  during  that  time  on  the 
public  business  of  the  United  States  or  of  this  state. 

8.  He  is  the  commander-in-chief  ef  all  the  mili- 
tary and  naval  forces  of  the  state;  has  power,  ex- 
cept in  cases  of  impeachment,  to  suspend  the  col- 
lection of  fines  and  forfeitures,  and  to  grant  reprieves, 
to  extend  until  the  expiration  of  a  time  not  exceed- 
ing ninety  days  after  conviction;  in  connection 
with  the  chancellor  and  the  six  judges  of  the  court 
of  errors  and  appeals,  or  the  major  part  of  them, 
can  remit  fines  and  forfeitures,  and  grant  pardons 
in  all  cases  after  conviction,  except  impeachment; 
and  is  liable  to  impeachment  for  misdemeanor  in 
office  during  his  continuance  in  office  and  for  two 
years  thereafter.  In  case  of  the  death,  resignation, 
or  removal  from  office  of  the  governor,  the  powers, 
duties,  and  emoluments  of  the  office  devolve  upon 
the  president  of  the  senate  ;  and  in  case  of  his  death, 
resignation,  or  removal,  then  upon  the  speaker  of 
the  house  of  assembly,  until  another  governor  shall 
be  elected  and  qualified ;  but  in  such  case  another 
governor  shall  be  chosen  at  the  next  election  for 
members  of  the  legislature,  unless  such  vacancy  oc- 
cur within  thirty  days  preceding  such  election,  in 
which  case  a  governor  shall  be  chosen  at  the  next 
succeeding  election  for  members  of  the  legislature. 

The  Judicial  Power. 

9.  The  Court  of  Errors  and  Appeals  consists  of  a 
chancellor,  the  justices  of  the  supreme  court,  and 
six  judges,  or  a  major  part  of  them,  which  judges  are 
appointed  for  six  years  by  the  governor,  with  the 
consent  of  the  senate. 

The  seat  of  one  of  the  judges  is  vacated  each  year: 
so  that  one  judge  is  annually  appointed.  No  mem- 
ber of  the  court  who  has  given  a  judicial  opinion 
in  the  cause  in  favor  of  or  against  any  error  com- 
plained of,  may  sit  as  a  member  or  have  a  voice  on 
the  hearing;  but  the  reasons  for  such  opinion  shall 
be  assigned  to  the  court  in  writing.    Four  sessions 
are  held  annually,  at  Trenton.    It  is  the  highest 
court  of  appeals  from  decisions  of  the  supreme 
court,  court  of  chancery,  and  circuit  court.    After  i 
decision  pronounced,  the  cause  is  remitted  to  the  ' 
inferior  courts  for  judgment  and  execution  accord-  , 
ing  to  the  decision.  . 

The  Court  of  Chancery  consists  of  a  chancellor,  ' 
appointed  by  the  governor  for  a  term  of  seven  years, 
who  is  also  the  ordinary  or  surrogate  general  and 
judge  of  the  prerogative  court.  Appeals  lie  from 
the  order  or  decree  of  the  orphans'  court  to  the  pre- 
rogative court. 

10.  The  Supreme  Court  consists  of  one  ehief  and 
six  assistant  judges,  appointed  by  the  governor, 
with  the  advice  and  consent  of  the  senate,  for  the 
term  of  seven  years.  This  number  may  be  increased 
or  decreased  by  law,  but  may  never  be  less  than 
two.  The  judges  are  ex  officio  justices  of  the  infe- 
rior court  of  common  pleas,  orphans'  court,  and 
court  of  general  quarter  sessions.  Four  stated 
terms  are  to  be  held  annually,  at  Trenton,  and  spe- 
cial terms  as  court  may  appoint,  not  exceeding  two 
a  year.  This  is  the  court  of  general  inquiry,  com- 
mon-law jurisdiction.  When  issues  of  fact  arise, 
they  are  sent  to  the  circuit  court  to  be  found  by  a 
jury  and  single  judge. 

Circuit  Courts  are  held  in  every  county  in  the  state, 
by  one  or  more  justices  of  the  supreme  court,  or  a 
judge  appointed  for  the  purpose  For  this  purpose 
the  state  is  divided  into  seven  districts,  and  one 


218 


NEW  MATTER 


219 


NEW  MEXICO 


judge  assigned  to  each  district.  In  all  cases  within 
the  county,  except  in  those  of  a  criminal  nature, 
these  courts  have  conunon-law  jurisdiction  concur- 
rent with  the  supreme  courts;  and  any  final  judg- 
ment of  a  circuit  court  may  be  docketed  in  the  tu- 
preme  court,  and  operates  as  a  judgment  obtained 
in  the  sujireme  court  from  the  time  of  such  docket- 
ing. Final  judgments  in  any  circuit  court  may  be 
removed  by  writ  of  error  into  the  supreme  court,  or 
directly  into  the  court  of  errors  and  appeals;  and 
questions  of  law  which  arise  are  to  be  certified  by  the 
presiding  judge  to  the  supreme  court  for  decision. 

11.  iJoiiimoa  Pleas  Court.  This  in  each  county  is 
composed  of  five  judges,  appointed  for  five  years  by 
senate  and  general  assembly  by  joint  ballot.  One 
goes  out  of  office  each  year. 

Oj/er  and  Terminer  and  General  Jail  Delivery. 
This  court  is  held  by  one  or  more  justices  of  the 
supreme  court,  and  one  or  more  of  the  court  of 
common  pleas,  in  each  county,  at  the  times  of  hold- 
ing the  circuit  court,  and  such  other  times  as  the 
judge  of  the  supreme  court  may  appoint.  It  has 
cognizance  of  all  crimes  whatever  of  an  indictable 
or  presentable  nature  committed  in  the  county 
where  the  court  is  held. 

Court  of  Quarter  Sessions.  This  court  is  composed 
of  three  or  more  justices  of  the  court  of  common 
pleas  in  each  county.  It  has  cognizance  of  all 
crimes  for  purposes  of  indictment;  but  all  capital 
crimes  and  those  of  the  graver  character  must  be  tried 
by  the  court  of  oyer  and  terminer  or  supreme  court. 

The  Orphans'  Court  is  held  in  each  county,  by  three 
or  more  judges  of  the  common  pleas  court.  It  has 
the  original  jurisdiction  of  the  probate  of  wills,  set- 
tlement of  the  estates  of  decedents,  appointment 
and  control  of  administrators  and  executors,  and 
the  care  of  minors,  including  the  appointment  and 
control  of  guardians.  Four  terms  of  this  court  are 
held  annually.  An  appeal  lies  to  the  prerogative 
court,  held  by  the  chancellor.  The  duties  of  clerk 
or  register  of  this  court  are  discharged  by  a  surro- 
gate,elected  by  the  people  of  the  county  for  five  years. 

Justices  of  the  Peace  are  elected  by  the  people  of 
each  township,  or  ward  of  city,  not  less  than  two 
nor  more  than  five  for  each  such  division,  for  five 
years.  They  have  cognizance  within  their  counties 
of  civil  matters  to  an  amount  not  exceeding  one  hun- 
dred dollars,  except  those  cases  involving  land-titles, 
and  actions  of  replevin,  slander,  or  trespass  for  as- 
sault and  battery  or  imprisonment.  A  jury  of  six 
must  be  impanelled  on  demand  of  either  party. 

NEW  MATTER.  In  Pleading.  Mat- 
ter not  previously  alleged.  Statements  of 
fact  not  previously  alleged  by  either  party  to 
the  pleadings.  Where  special  pleading  pre- 
vails, such  matter  must  be  pleaded  in  avoid- 
ance, and  it  must,  in  general,  be  followed  by 
a  verification.  Gould,  Plead,  c.  3,  §  195  ;  1 
Chitty,  Plead.  538  ;  Stephen,  Plead.  251;  Co- 
myns,  Dig.  Pleader  (E  32) ;  1  Wms.  Saund. 
103,  n.  1 ;  2  Lev.  5 ;  Ventr.  121 ;  3  Bouvier, 
Inst.  n.  2983.    See  Plea. 

In  equity,  new  matter,  discovered  by 
either  plaintiff  or  defendant,  may  be  intro- 
duced by  cross  or  supplemental  bill  before  a 
decree  has  been  pronounced,  but  not  by 
amendment  after  an  answer  has  been  filed. 
1  Paige,  Ch.  N.  Y.  200  ;  Harr.  Ch.  Mich.  438  ; 
4  Bouvier,  Inst.  nn.  4385-4387. 

NEW  MEXICO.  One  of  the  territories 
of  the  United  States. 

2.  By  act  of  congress,  approved  September  9, 1850, 
the  territory  of  New  Mexico  is  constituted  and  de- 
Bcribed  as  "all  that  territory  of  the  United  States 
beginning  at  the  point  in  the  Colorado  river  where 
the  boundary  with  the  republic  of  Mexico  crosses 


the  same;  thence  eastwardly  with  said  boundary- 
line  to  the  Kio  Grande  J  thence,  following  the  main 
channel  of  said  river,  to  the  parallel  of  the  '.V2°  of 
north  latitude;  thence  east  with  said  parallel  to  its 
intijrsection  with  the  103°  of  longitude  A/,  of  Green- 
wich ;  thence  north  with  said  degree  of  longitude 
to  the  parallel  of  '.>S°  of  north  latitude  ;  thence  west 
with  .'■aid  piirallel  to  the  summit  of  Sierra  Madre; 
thence  south  with  the  crest  of  said  mountains  to 
the  37th  })aralle]  of  north  latitude  ;  thence  west  with 
said  parallel  to  the  boundary-line  of  the  state  of 
California;  thence  with  said  boundary-line  to  the 
place  of  beginning."  A  proviso  is  annexed  that 
the  United  States  may  divide  the  territory  into  two  or 
more,  and  that  when  admitted  as  a  state  the  said  ter- 
ritory, or  any  portion  of  the  same,  shall  be  received 
into  the  Union  with  or  without  slavery,  as  their  con- 
stitution may  prescribe  at  the  time  of  iidmission. 
y  U.  S.  Stat,  at  Large,  446.  By  the  organic  act, 
the  powers  of  the  territory  are  lodged  in  three 
branches, — the  legislative,  executive,  and  judicial. 
The  operation  of  this  act  was  suspended  until  the 
Texan  boundary  was  agreed  upon,  when  it  went 
into  force  by  proclamation  of  the  president,  Decem- 
ber 13,  1850.    9  U.  S.  Stat,  at  Large,  App. 

3.  The  regulations  as  to  the  qualificiitions  of 
voters,  subject  to  char.ge  by  the  territorial  legisla- 
ture, are  that  all  white  male  inhabitants  who  have 
lived  three  months  in  the  territory  and  are  citizens 
of  the  United  States,  or  who  have  declared  their  in- 
tention to  become  such,  and  fifteen  days  next  be- 
fore election  in  the  county  in  which  they  offer  to 
vote,  are  qualified.  In  addition  to  these  classes, 
also,  all  persons  who  are  recognized  as  citizens  under 
the  treaties  with  Mexico  are  so  entitled.  But  no 
person  under  guardianship,  non  conipos  mentis,  or 
convicted  of  treason,  felony,  or  bribery,  may  vote, 
unless  restored  to  civil  rights. 

The  Legislative  Power. 

The  Council  is  composed  of  thirteen  members, 
elected  by  the  people  of  the  districts  into  which  the 
territory  is  divided,  for  the  term  of  two  years. 

The  Bouse  of  Representatives  consists  of  twenty-six 
members,  elected  by  the  people  of  the  districts  into 
which  the  territory  is  divided,  for  the  term  of  one 
year.  The  two  houses  have  power  to  legislate  on 
all  subjects  of  legislation  not  inconsistent  with  the 
laws  and  constitution  of  the  United  States.  No 
laws  may  interfere  with  the  primitive  disposition 
of  the  soil.  No  tax  may  be  levied  of  United  States 
property.  Property  of  non-residents  may  not  be 
taxed  higher  than  that  of  residents.  No  bank  may 
be  incorporated  and  no  debt  incurred  by  the  terri- 
tory. 

The  Executive  Power. 

4.  The  Governor  is  appointed  by  the  president 
of  the  United  States,  by  and  with  the  advice  and 
consent  of  the  senate,  for  the  term  of  four  years, 
unless  sooner  removed.  He  must  reside  in  the  ter- 
ritory. He  is  commander-in-chief  of  the  military 
of  the  territory  ;  is  superintendent  of  Indian  affairs; 
is  to  approve  all  acts  passed  by  the  legislature  be- 
fore they  can  become  laws;  may  grant  pardons  and 
remit  fines  for  oflfences  against  the  laws  of  the  ter- 
ritory, and  reprieves  for  otfences  against  the  laws 
of  the  United  States  till  the  will  of  the  president 
can  be  known ;  must  take  care  that  the  laws  be 
executed. 

A  Secretary  of  the  Territory  is  also  appointed  in 
the  same  manner  and  for  the  same  time.  He  is  to 
record  and  preserve  laws  p  issed  by  the  legislature, 
and  acts  done  by  the  governor,  in  his  executive 
capacity,  and  to  transmit  copies,  etc. 

The  Judicial  Power. 

5.  The  Supreme  Court  consists  of  a  chief  and  two 
assistant  justices,  appointed  by  the  president  of  the 
United  States,  with  the  advice  and  consent  of  the 


^EW  PROMISE 


220 


NEW  TRIAL 


tenate,  for  the  term  of  four  years.  Two  of  the  three 
judges  constitute  a  quorum.  The  jurisdiction  is 
appellate  solely,  and  extends  to  all  matters  of  ap- 
peal and  writs  of  error  that  may  be  taken  from  the 
judgments  or  decrees  of  the  district  courts,  in  cases 
of  errors  api)arent  from  the  face  of  the  record. 

Special  terms  may  be  called  by  the  chief  justice 
for  the  hearing  of  causes  in  both  civil  and  criminal 
matters,  when  the  parties  or  the  accused,  and  the 
district  attorney,  agree.  No  jury  trials  are  held  by 
this  court.  An  appeal  lies  to  the  supreme  court  of 
the  United  States  as  from  a  decision  of  the  United 
States  circuit  court,  where  the  amount  involved  ex- 
ceeds a  specified  sum. 

6.  The  District  Court  is  held  in  each  of  the  three 
districts  into  which  the  territory  is  divided  for  the 
purpose,  by  one  of  the  judges  of  the  supreme  court. 

It  has  exclusive  original  jurisdiction  of  all  mat- 
ters at  law  or  in  equity,  except  those  of  which 
justices  of  the  peace  have  concurrent  jurisdiction, 
and  of  all  crimes  and  misdemeanors,  except  those 
of  which  justices  of  the  peace  have  exclusive  cog- 
nizance. 

Probate  Courts  are  also  to  be  provided  for  by  law. 
They  have,  in  general,  the  control  of  the  settlement 
of  the  estates  of  decedents,  and  the  appointment 
and  control  of  guardians. 
^  Justices  of  the  Peace  have  a  jurisdiction  coexten- 
sive with  the  county  of  all  civil  cases  where  the 
amount  involved  does  not  exceed  one  hundred  dol- 
lars, except  chancery  cases,  cases  involving  title 
or  boundary  to  real  estate,  and  cases  of  libel,  slan- 
der, malicious  prosecution  and  false  imprisonment, 
Beduction  and  crim.  con. 

An  Attorney  and  a  Marshal  are  also  appointed, 
for  four  years,  by  the  president  and  senate,  and  are 
subject  to  removal  by  them. 

Justices  of  the  Peace  may  be  provided  for  by  law, 
with  a  limited  criminal  and  civil  jurisdiction,  not 
to  exceed  one  hundred  dollars. 

NEW  PROMISE.  A  contract  made 
after  the  original  promise  has,  for  some  cause, 
been  rendered  invalid,  by  which  the  promiser 
agrees  to  fulfil  such  original  promise. 

NEW  TRIAL.  In  Practice.  A  re-hear- 
ing of  the  legal  rights  of  the  parties,  upon 
disputed  facts,  before  another  jury,  granted 
by  the  court  on  motion  of  the  party  dissatis- 
fied with  the  result  of  the  previous  trial,  upon 
a  proper  case  being  presented  for  the  pur- 
pose. 4  Chitty,  Gen.  Pract.  30  ;  2  Graham 
&  W.  New  Tr.  32.  It  is  either  upon  the  same, 
or  difierent,  or  additional  evidence,  before  a 
new  JU7VJ,  and  probably,  but  not  necessarily, 
before  a  difierent  judge. 

2.  The  origin  of  the  practice  of  granting 
new  trials  is  of  extremely  ancient  date,  and, 
consequently,  involved  in  some  obscurity. 
Blackstone  gives  the  most  connected  and 
satisfactory  account  of  it  of  any  writer.  3 
Blackstone,  Comm.  387,  388. 

Courts  have,  in  general,  a  discretionary 
power  to  grant  or  refuse  new  trials,  accord- 
ing to  the  exigency  of  each  particular  case, 
upon  principles  of  substantial  justice  and 
equity.  The  reasons  which  will  induce  them 
to  exercise  this  power  will  be  enumerated  in 
what  follows. 

The  not  giving  the  defendant  svfficient  no- 
tice of  the  time  and  place  of  trial,  unless 
waived  by  an  appearance  and  making  de- 
fence, will  be  a  ground  for  setting  aside  the 
verdict.    3  Price,  Exch.  72;  1  Wend.  N.  Y. 


22.  But  to  have  this  efiect  the  defendant's 
ignorance  of  the  trial  must  not  have  been 
owing  to  his  own  negligence,  and  the  insuft- 
ciency  of  the  notice  must  have  been  reason 
ably  calculated  to  mislead  him.  7  Term,  59 ; 
2  Bibb,  Ky.  177. 

3.  Mistakes  or  omissions  of  officers  in  sum- 
moning and  drawing  jurors,  when  the  irregU" 
larity  deprives  the  party  complaining  of  a 
substantial  right,  will  entitle  him  to  a  new 
trial.  2  Halst.  N.  J.  244.  Likewise,  where 
the  oflScer  summoning  the  jury  is  nearly  re- 
lated to  one  of  the  parties,  10  Serg.  &  R. 
Penn.  334 ;  1  South.  N.  J.  364 ;  or  is  inte- 
rested in  the  event,  5  Johns.  N.  Y.  133,  un 
less  the  objection  to  the  officer  was  waived  by 
the  party,  3  Me.  215 ;  21  Pick.  Mass.  457,  or 
the  authority  of  the  officer  be  so  circumscribed 
as  to  put  it  out  of  his  power  to  select  an  im- 
proper jury.  7  Ala.  253  ;  7  Cow.  N.  Y.  720. 
And  the  verdict  will  be  set  aside  for  the  fol- 
lowing causes :  the  unauthorized  interference 
of  a  party,  or  his  attorney,  or  the  court,  in 
selecting  or  returning  jurors, — unless  the  in- 
terference can  be  satisfactorily  explained,  2 
Graham  &  W.  New  Tr.  173-179  ;  8  Humphr, 
Tenn.  412;  that  a  juror  not  regularly  sum- 
moned and  returned  personated  another, 
Barnes,  455  ;  7  Dowl.  &  R.  684 ;  but  not  if 
the  juror  personated  another  through  mis 
take,  was  qualified  in  other  respects,  and  no 
injustice  has  been  done,  12  East,  229 ;  that 
a  juror  sat  on  the  trial  after  being  challenged 
and  set  aside, — unless  the  party  complaining 
knew  of  it,  and  did  not  object,  3  Yeates, 
Penn.  318  ;  that  a  juror  was  discharged  with- 
out any  sufficient  reason,  after  being  sworn, 
1  Ohio  St.  66  ;  but  not  if  the  juror  was  dis- 
charged by  mistake  and  with  the  knowledge 
and  acquiescence  of  the  party,  9  Mete.  Mass. 
572 ;  5  Ired.  No.  C.  58 ;  that  the  jury  were 
not  sworn,  or  that  the  oath  was  not  adminis- 
tered in  the  form  prescribed  by  law.  1  How. 
497  ;  2  Me.  270. 

4.  The  disqualification  of  jurors,  if  it  has 
not  been  waived,  will  be  ground  for  a  new 
trial :  as,  the  want  of  a  property  qualifica- 
tion, 4  Term,  473  ;  15  Vt.  61 ;  relationship  to 
one  of  the  parties,  32  Me.  310,  unless  the  re- 
lationship be  so  remote  as  to  render  it  highly 
improbable  that  it  could  have  had  any  infiu- 
ence,  12  Vt.  661 ;  interest  in  the  event,  2 
Johns.  N.  Y.  194;  21  N.  H.  438;  conscien- 
tious scruples  against  finding  a  verdict  of 
guilty,  13  N.  H.  536;  16  Ohio,  364  ;  13  Wend. 
N.  Y.  351 ;  mental  or  bodily  disease  unfitting 
jurors  for  the  intelligent  performance  of  their 
duties,  6  Humphr.  Tenn.  59 ;  8  111.  368  ;  alien- 
age. 6  Johns.  N.  Y.  332;  2  111.  476.  But  seo 
8  111.  202 ;  4  Dall.  Penn  353. 

5.  When  indirect  measures  have  been  re- 
sorted  to  to  prejudice  the  jury,  or  tricks  prac- 
tised or  disingenuous  attempts  made  to  sup- 
press or  stifle  evidence  or  thwart  the  pro- 
ceedings, or  to  obtain  an  unconscionable  ad- 
vantage, they  will  be  defeated  by  granting  a 
new  trial.  For  example :  where  papers  ma- 
terial on  the  point  in  issue,  not  previously 
submitted,  are  surreptitiously  handed  to  tbie 


NEW  TRIAL 


221 


NEW  TRIAL 


jury,  Cas.  tei,ip.  Hardw.  116 ;  2  Yeates,  Penn. 
z73  ;  or  where  the  party,  or  some  one  in  his 
behalf,  directly  approaches  the  jury  on  the 
subject  of  the  trial.  7  Serj^.  &  R.  Penn.  458  ; 
13  Mass.  218.  But  if  the  other  party  is  aware 
of  such  attempts,  and  neglects  to  correct 
them  when  in  his  power,  he  will  be  deemed 
to  have  waived  all  objection.  11  Mod.  118. 
If  the  interference  with  the  jury  comes  from 
a  stranger,  be  -without  fault  in  the  jury,  and 
without  the  knowledge  of  the  parties,  and  no 
injury  has  thereby  ensued,  the  verdict  will 
not  be  disturbed.  5  Mo.  525  ;  3  Bibb,  Ky.  8  ; 
11  Humphr.  Tenn.  169,  491.  But  see  9  Miss. 
187 ;  16  id.  465  ;  20  id.  398.  Where  the  jury, 
after  retiring  to  deliberate,  examine  witnesses 
in  the  case,  a  new  trial  will  be  granted, 
Croke  Eliz.  189  ;  2  Bay,  So.  C.  94 ;  1  Brev. 
No.  C.  16  ;  so,  also,  when  one  of  their  number 
communicates  to  his  fellows  private  informa- 
tion possessed  by  him,  which  influences  the 
finding,  1  Sid.  235  ;  1  Swan,  Tenn.  61 ;  2 
Yeates,  Penn.  166;  4  Dall.  Va.  112;  4  Yerg. 
Tenn.  Ill ;  or  the  judge  addresses  a  note  to 
them,  or  privately  visits  them,  after  they  have 
retired  to  deliberate.  1  Pick.  Mass.  337  ;  10 
Johns.  N.  Y.  238 ;  13  id.  487. 

6.  Misconduct  of  the  jury  will  sometimes 
avoid  the  verdict:  as,  for  example,  jurors 
betting  as  to  the  result,  4  Yerg.  Tenn.  Ill ; 
sleeping  during  the  trial,  8  111.  368 ;  un- 
authorized separation,  1  Va.  Cas.  271 ;  11 
ITumphr.  Tenn.  502 ;  3  Harr.  N.  J.  468 ; 
taking  refreshment  at  the  charge  of  the  pre- 
vailing party,  1  Ventr.  124;  4  Wash.  C.  C. 
32 ;  drinking  spirituous  liquor,  4  Cow.  N.  Y. 
17,  26  ;  7  id.  562 ;  4  Harr.  N.  J.  367 ;  1  Hill, 
N.  Y.  207 ;  talking  to  strangers  on  the  subject 
of  the  trial,  3  Day,  Conn.  223 ;  9  Humphr. 
Tenn.  646 ;  determining  the  verdict  by  a  re- 
sort to  chance.  15  Johns.  N.  Y.  87;  8  Blackf. 
Ind.  32.  But  every  irregularity  which  would 
subject  jurors  to  censure  will  not  overturn 
the  verdict,  unless  there  be  some  reason  to 
suspect  that  it  may  have  had  an  influence  on 
the  final  result.  In  general,  if  it  does  not  ap- 
pear that  the  misconduct  was  occasioned  by 
the  prevailing  party  or  any  one  in  his  behalf, 
does  not  indicate  any  improper  bias,  and  the 
court  cannot  see  that  it  either  had  or  might 
have  had  an  efi'ect  unfavorable  to  the  party 
moving  for  a  new  trial,  the  verdict  will  not  be 
disturbed.  Where,  however,  the  misconduct 
of  the  jury  amounts  to  a  gross  deviation  from 
duty,  decency,  and  order,  a  new  trial  will 
sometimes  be  granted,  on  grounds  of  public 
policy,  without  inquiring  whether  or  not  any 
injury  has  been  sustained  in  that  particular 
CQse.    2  Graham  &  AV.  New  Tr.  478-594. 

•y.  Error  of  the  judge  will  be  ground  for 
a  new  trial :  such  as,'  admitting  illegal  evi- 
dence which  has  been  objected  to, — unless 
the  illegal  evidence  was  wholly  immaterial, 
or  it  is  certain  that  no  injustice  has  been 
done;  and  where  the  illegal  testimony  was 
admitted  in  gross  violation  of  the  well-settled 
principles  which  govern  proof,  it  has  been 
deemed  per  se  ground  for  a  new  trial,  not- 
withstanding the  jury  were  directed  to  disre- 


gard it,  13  Johns.  N.  Y.  350 ;  15  id.  239  ;  but 
see  6  N.  II.  333  ;  improperly  rejecting  evi- 
dence tending  in  any  degree  to  aid  the  jury 
in  determining  a  material  fact,  3  J.  J.  Marsh. 
Ky.  229  ;  withdrawing  testimony  once  legally 
before  the  jury, — unless  the  excluded  testi- 
mony could  not  be  used  on  a  second  trial,  4 
Humphr.  Tenn.  22 ;  denying  to  a  party  the 
right  to  be  heard  through  counsel,  2  Bibb, 
Ky.  76 ;  3  A.  K.  Marsh.  Ky.  465  ;  errone- 
ously refusing  to  nonsuit,  19  Johns.  N.  Y. 
154;  improperly  restricting  the  examinatioji 
or  cross-examination  of  witnesses,  or  allow- 
ing too  great  latitude  in  that  respect,  under 
circumstances  which  constitute  a  clear  case 
of  abuse,  6  Barb.  N.  Y.  383 ;  4  Edw.  Ch.  N. 
Y.  621 ;  refusing  to  permit  a  witness  to  refer 
to  documents  to  refresh  his  memory,  where 
by  the  denial  the  complaining  party  has  sus- 
tained injury,  3  Litt.  Ky.  338 ;  improperly 
refusing  an  adjournment,  whereby  injustice 
has  been  done,  2  South.  N.  J.  518  ;  9  Ga.  121 ; 
refusing  to  give  such  instructions  to  the  jury 
as  properly  arise  in  the  case,  where  it  is  mani- 
fest that  the  jury  erred  through  want  of  in- 
struction, 4  Ohio,  389  ;  1  Mo.  68  ;  9  id.  305  ; 
giving  to  the  jury  a  positive  direction  to  find, 
when  there  are  circumstances  in  the  case 
which  ought  to  have  been  submitted  to  them, 
— unless  the  verdict  is  in  strict  accordance 
with  the  weight  of  evidence,  19  Wend.  N.  Y. 
402 ;  5  Humphr.  Tenn.  476 ;  giving  an  erro- 
neous exposition  of  the  law  on  a  point  ma- 
terial to  the  issue, — unless  it  is  certain  that 
no  injustice  has  been  done,  or  the  amount  in 
dispute  is  very  trifling,  so  that  the  injury  ia 
scarcely  appreciable,  4  Conn.  356  ;  5  Sandf, 
N.  Y.  180  ;  3  Johns.  N.  Y.  239  ;  misleading 
the  jury  by  a  charge  which  is  not  explicit,  or 
which  is  absurd  and  impossible,  or  contradic- 
tory, or  argumentative  and  evasive,  9  Humphr. 
Tenn.  411 ;  11  Wend.  N.  Y.  83  ;  6  Cow.  N. 
Y.  682;  erroneous  instruction  as  to  the  proof 
that  is  requisite,  3  Bibb,  Ky.  481 ;  21  Me. 
20 ;  misapprehension  of  the  judge  as  to  a  ma- 
terial fact,  and  a  direction  to  the  jury  accord- 
ingly, whereby  they  are  misled,  1  Mills,  Tenn. 
200  ;  instructing  the  jury  as  to  the  law  upon 
facts  which  are  purely  hypothetical, — but  not 
if  the  charge  was  correct  in  point  of  law,  and 
the  result  does  not  show  that  the  jury  were 
misled  by  the  generality  of  the  charge,  8  Ga. 
114;  2  Ala.  n.  s.  694;  submitting  as  a  con- 
tested point  what  has  been  admitted,  9  Conn. 
216  ;  erroneously  leaving  to  the  jury  the  de- 
termination of  a  question  that  should  have 
been  decided  by  the  court,  whereby  they 
have  mistaken  the  law ;  charging  as  to  the 
consequences  of  the  verdict.  1  Pick.  Mass. 
106 ;  2  Graham  &  W.  New  Tr.  595-703 ;  3 
id.  705-873. 

8.  Surprise,  as  a  ground  for  setting  aside 
the  verdict,  is  cautiously  allowed.  When  it 
is  occasioned  by  the  act  of  the  adverse  party, 
or  by  circumstances  out  of  the  knowledge  and 
beyond  the  control  of  the  party  injured  by 
it,  he  has  sometimes  been  relieved ;  but  not 
when  he  might  have  been  fully  informed  by 
the  exercise  of  ordinary  diligence,  6  Halst. 


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222 


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N.  J.  242;  although,  even 'when  the  com- 
plainant is  not  entirely  free  from  fault,  the 
court,  in  cases  where  great  wrong  would  \ 
otherwise  be  done,  will,  for  the  sake  of  pro-  j 
moting  justice,  grant  a  new  trial.  Among  | 
the  cases  of  surprise  which  will  justify  the  | 
interposition  of  the  court  may  be  enumerated 
the  following:  the  unexpectedly  being  sum- 
moned and  detained  as  &  witness  or  juror  in 
another  court,  or  sudden  and  serious  illness, 
which  prevents  the  party  from  attending  at 
t^e  trial,  3  T.  B.  Monr.  Ky.  113  ;  7  id.  59 ; 
4  Litt.  Ky.  1 ;  1  Halst.  N.  J.  344 ;  that  the 
cause  was  brought  on  prematurely,  in  the 
absence  of  the  party,  6  Dan.  Ky.  89  ;  errone- 
ous ruling  of  the  court  as  to  the  right  to  be- 
gin, which  has  worked  manifest  injustice,  4 
Pick.  Mass.  156 ;  but  see  8  Conn.  254,  296 ; 
perturbation  of  counsel,  arising  from  sudden 
and  dangerous  sickness  occurring  in  his 
family  and  coming  to  his  knowledge  during 
the  trial,  14  Pick.  Mass.  494 ;  where  some 
unforeseen  accident  has  prevented  the  attend- 
ance of  a  material  witness,  6  Mod.  22  ;  11  id. 
1 ;  2  Salk.  645  ;  1  Harp.  So.  C.  267  ;  that  tes- 
timony beyond  the  reach  of  the  party  injured, 
and  completely  under  the  control  of  the  oppo- 
site party,  was  not  produced  at  the  trial,  7 
Yerg.  Tenn.  502;  7  Wend.  N.  Y.  62;  that 
competent  testimony  was  unexpectedly  ruled 
out  on  the  trial,  9  Dan.  Ky.  26;  2  Vt.  573  ;  2 
J.  J.  Marsh.  Ky.  515;  where  a  party's  own 
witnesses,  through  forgetfulness,  mistake, 
contumacy,  or  perjury,  testify  differently 
than  anticipated,  or  where  evidence  is  un- 
expectedly sprung  upon  a  party  by  his  op- 
ponent, 8  Ga.  136 ;  18  Miss.  326 ;  the  with- 
drawal of  a  material  witness  before  testify- 
ing, attended  with  suspicions  of  collusion,  25 
Wend.  N.  Y.  663;  that  a  material  witness  was 
suddenly  deprived  of  the  power  of  testifying 
by  a  paralytic  stroke,  or  other  affection,  or  that 
the  testimony  of  the  witness  was  incoherent 
on  account  of  his  being  disconcerted  at  the 
trial,  1  Root,  Conn.  175  ;  where  it  is  dis- 
covered after  the  trial  that  a  material  wit- 
ness who  testified  is  interested  in  the  event, 
or  where  it  is  probable  that  the  verdict  was 
obtained  by  false  testimony,  which  the  party 
Injured  could  not  until  after  the  trial  con- 
tradict or  expose.  2  C.  B.  342 ;  3  Burr.  1771 ; 
i  Bingh.  339 ;  1  Me.  322. 

9.  New  trials  on  account  of  after-discovered 
testimony  are  granted  but  rarely,  and  with 
great  caution.  The  court,  in  order  to  set  aside 
the  verdict  on  this  ground,  must  be  satisfied 
that  the  evidence  has  come  to  the  applicant's 
knowledge  since  the  trial,  3  Stor.  C.  C.  1 ;  21 
N.  H.  166 ;  that  it  is  not  owing  to  the  want 
of  diligence  that  it  did  not  come  sooner,  6 
Johns.  Ch.  N.  Y.  479;  1  Blackf.  Ind.  367; 
that  it  is  so  mater' il  that  it  will  probably 
produce  a  different  result,  1  Dudl.  Ga.  85  ; 
and  that  it  is  not  cumulative.  3  Woodb.  &  M. 
C.  C.  348.  Nor  must  the  sole  object  of  the 
newly-discovered  evidence  be  to  impeach  wit- 
nesses examined  on  the  former  trial.  7  Barb. 
N.  Y.  271  ;  11  id.  216;  8  Gratt.  Va.  637.  The 
Dioving  party  must  state  what  the  evidence  is, 


and  what  diligence  he  has  used  in  the  prepa- 
ration of  his  case ;  and  his  application  must 
be  accompanied  by  the  affidavits  of  the  newly- 
discovered  witnesses,  unless  some  cause  be 
shown  why  they  cannot  be  produced.  5 
Halst.  N.  J.  250 ;  1  Tyl.  Vt.  441 ;  22  Me. 
246. 

Excessive  damages  may  be  good  cause  for 
granting  a  new  trial :  first,  where  the  mea 
sure  of  damages  is  governed  by  fixed  rvdes 
and  principles,  as  in  actions  on  contracts,  or 
for  torts  to  property  the  value  of  which  may 
be  ascertained  by  evidence;  second,  in  suits 
for  personal  injuries  where,  although  there 
is  no  fixed  criterion  for  assessing  the  damages, 
yet  it  is  clear  that  the  jury  acted  from  passion, 
partiality,  or  corruption.  10  Ga.  37.  In  ac- 
tions for  personal  torts,  a  new  trial  will  not, 
in  general,  be  granted  on  account  of  the 
smallness  of  the  damages,  unless  the  verdict 
is  the  result  of  contrivance  by  the  defendant, 
or  surprise  on  the  plaintiff,  or  of  partiality  or 
misconduct  of  the  jury,  or  unless  the  find- 
ing is  entirely  disproportioned  to  the  injury. 
Where  the  verdict  is  for  an  amount  exceeding 
the  damages  laid  in  the  writ,  it  will  be  set 
aside  unless  the  plaintiff  will  release  the  ex- 
cess.   7  Wend.  N.  Y.  330. 

lO.  When  the  verdict  is  clearly  against  law, 
it  will  be  set  aside  notwithstanding  the  jury 
had  power  to  decide  both  the  law  and  the  fact, 
or  the  issue  was  one  exclusively  of  fact  and 
there  have  been  concurrent  verdicts  by  two 
successive  juries.  Dudl.  Ga.  213;  4  Ga.  193. 
If,  however,  substantial  justice  has  been  done, 
a  new  trial  will  not  be  granted  though  the  law 
arising  on  the  evidence  would  have  justified  a 
different  result.  1  Burr.  54 ;  4  Term,  468  ; 
3  Graham  &  W.  New  Tr.  1176-1202. 

Courts  are  at  all  times  reluctant  to  grant  a 
new  trial  on  the  ground  that  the  verdict  is 
against  evidence;  and  where  the  jury  have 
passed  upon  a  mere  question  of  fact,  they 
will  only  do  so  when  the  verdict  is  palpably 
against  the  evidence :  injustice  must  have 
been  done  by  the  verdict,  and  there  must  be 
a  probability  that  justice  will  be  done  on  re- 
trial. 21  Conn.  245  ;  5  Ohio,  509  ;  3  Strobh. 
So.  C.  358.  Where  the  verdict  is  founded  on 
circumstantial  evidence,  the  court  will  rarely, 
if  ever,  interfere  with  it.  16  Mass.  345  ;  11 
111.  36.  On  the  other  hand,  when  the  issue 
approximates  to  a  purely  legal  question, 
courts  are  somewhat  more  liberal  in  grant- 
ing new  trials.  2  M'Mull.  So.  C.  44.  The  ver- 
dict will  be  set  aside  where  the  witnesses 
upon  whose  testimony  it  was  obtained  have 
since  the  trial  been  convicted  of  perjury,  3 
Dougl.  24 ;  so  where  the  testimony  on  which 
the  verdict  is  founded  derives  its  credit  from 
circumstances,  and  those  circumstances  are 
afterwards  clearly  falsified  by  affidavit.  1 
Bos.  &  P.  427  ;  3  Graham  &  W.  New  Tr. 
1203-1374. 

The  verdict  may  be  void  ybr  obscurity  or  un- 
certainty.  1  Serg.  &  R.  Penn.  367.  It  will  be 
set  aside  where  it  is  not  responsive  to  the 
issue,  or  does  not  comprehend  all  of  the 
issue"  unless  the  finding  of  one  or  more  of 


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223 


NEW  YORK 


<he  issues  will  be  decisive  of  the  cause.  2 
Ala.  N.  s.  359  ;  11  Pick.  Mass.  45.  That  it 
was  not  recorded  in  open  court,  or  was  re- 
ceived in  the  absence  of  the  plaintiff,  or  was 
altered  after  it  was  recorded  and  the  jury  dis- 
missed, will  be  ground  for  a  new  trial.  1  111. 
109  ;  1  Wend.  N.  Y.  36  ;  16  Serg.  &  R.  Penn. 
414.  If  rendered  on  Sunday,  it  will,  in  gene- 
ral, be  void  ;  but  there  are  many  instances  in 
which  verdicts  have  been  sustained  though 
rendered  on  that  day.  1  South.  N.  J.  156  ;  15 
Johns.  N.  Y.  119;  3  Watts,  Penn.  56;  13  Ohio, 
490. 

11.  Courts  of  equity  have  always  proceeded 
with  great  caution  in  awarding  new  trials  at 
law.  At  the  present  day  they  are  but  seldom 
applied  to  for  this  purpose,  as  courts  of  law 
are  liberal  in  exercising  the  same  jurisdic- 
tion, and  it  has  been  held  to  be  unconscion- 
able and  vexatious  to  bring  into  courts  of 
equity  a  discussion  which  might  have  been 
had  at  law.  1  Schoales  &  L.  Ch.  Ir.  201.  But, 
in  general,  when  it  would  have  been  proper 
for  a  court  of  law  to  have  granted  a  new  trial 
if  the  application  had  been  made  while  that 
court  had  the  power,  it  is  equally  proper  for 
a  court  of  equity  to  do  so  if  the  application 
be  made  on  grounds  arising  after  the  court 
of  law  can  no  longer  act.  1  A.  K.  Marsh.  Ky. 
237.  A  court  of  equity  will  not  grant  a  new 
trial  at  law  to  enable  a  party  to  impeach  a 
witness,  or  because  the  verdict  is  against 
evidence.  1  Johns.  Ch.  N.  Y.  432.  It  will 
only  interpose  in  cases  of  newly-discovered 
evidence,  surprise,  fraud,  or  the  like,  where 
the  party  is  deprived  of  the  means  of  defence 
by  circumstances  beyond  his  control.  1  Litt. 
Ky.  140  ;  2  Bibb,  Ky.  241 ;  2  Hawks,  No.  C. 
605  ;  Willard,  Eq.  Jur.  357  ;  3  Graham  &  W. 
New  Tr.  1455-1580. 

112.  A  court  of  equity  will  often  grant  a 
second,  and  sometimes  a  third,  fourth,  and 
even  fifth  trial  of  a  feigned  issue,  in  cases 
where  a  coyrt  of  law  would  not  disturb  a 
first  verdict.  1  Edw.  Ch.  N.  Y.  96.  This 
arises  from  the  consideration  that  the  re- 
sponsibility of  the  decision  rests  upon  the 
judge  in  equity.  3  Graham  &  W.  New  Tr. 
1570,  1571. 

New  trials  may  be  granted  in  criminal  as 
well  as  in  civil  cases,  at  the  solicitation  of  the 
defendant,  when  he  is  convicted  even  of  the 
highest  offences.  But  a  person  once  lawfully 
convicted  on  a  sufficient  indictment  can  never 
after,  against  his  consent,  be  a  second  time  put 
in  peril  for  the  same  offence,  unless  the  former 
conviction  was  instituted  by  the  fraudulent 
procurement  of  the  defendant  with  a  view  to 
shield  himself  from  adequate  punishment.  2 
Graham  &  W.  New  Tr.  61-84.  Where  the 
accused  has  been  acquitted,  and  his  acquittal 
has  not  been  procured  by  his  own  fraud  or 
evil  practice,  the  law,  mingling  justice  with 
mercy  in  favorem  vitce  et  libertatis,  does  not 
permit  a  new  trial.  16  Conn.  54.  In  civil  ac- 
tions for  the  recovery  of  penalties,  and  in 
some  cases  where  the  form  of  proceeding  is 
criminal,  if  the  object  be  only  to  establish  a 
civil  right,  as  in  cases  of  quo  warranto  and 


the  like,  new  trials  may  be  granted  even 
after  acquittal.  But,  in  such  cases,  when  the 
verdict  is  for  the  defendant  it  will  not,  in 
general,  be  disturbed  unless  some  rule  of 
law  be  violated  in  the  admission  or  rejection 
of  evidence  or  in  the  charge  of  the  court  to 
the  jury.  4  Term,  753 ;  2  Cow.  N.  Y.  811 ; 
2  Graham  &  W.  New  Tr.  01. 

NEW  YORK.  The  name  of  one  of  the 
original  states  of  the  United  States  of  Ame- 
rica. 

2.  In  its  colonial  condition  this  state  was  governed 
from  the  period  of  the  revolution  of  1688  by  gov- 
ernors appointed  by  the  crown,  assisted  by  a  coun- 
cil, which  received  its  appointments  also  from  the 
parental  government,  and  by  the  representatives  of 
the  people.    1  Story,  Const,  b.  1,  ch.  10. 

There  have  been  three  constitutions  adopted  by 
the  state  since  its  colonial  period:  one  in  1777, 
which  remained  in  force  until  January  1, 1823,  when 
the  second  went  into  operation.  This  second  con- 
stitution remained  until  January  1,  1847,  when  the 
present  constitution,  which  was  adopted  by  a  con- 
vention of  the  people  at  Albany,  went  into  force. 

The  qualifications  of  the  electors  are  thus  de- 
scribed, namely:  "Every  male  citizen  of  the  age 
of  twenty-one  years,  who  shall  have  been  a  citizen 
for  ten  days  and  an  inhabitant  of  this  state  one 
year  next  preceding  any  election,  and  for  the  last 
four  months  a  resident  of  the  county  where  he  may 
offer  his  vote,  shall  be  entitled  to  vote  at  such  elec- 
tion in  the  election  district  of  which  he  shall  at  the 
time  be  a  resident,  and  not  elsewhere,  for  all  offi- 
cers that  now  are  or  hereafter  may  be  elective  by 
the  people;  but  such  citizen  shall  have  been  for 
thirty  days  next  preceding  the  election  a  resident 
of  the  district  from  which  the  officer  is  to  be  chosen 
for  whom  he  offers  his  vote.  But  no  man  of  color, 
unless  he  shall  have  been  for  three  years  a  citizen 
of  this  state,  and  for  one  year  next  preceding  any 
election  shall  have  been  seised  and  possessed  of  a 
freehold  estate  of  the  value  of  two  hundred  and 
fifty  dollars  over  and  above  all  debts  and  incum- 
brances charged  thereon,  and  shall  have  been  act- 
ually rated  and  paid  a  tax  thereon,  shall  be  en- 
titled to  vote  at  such  election.  And  no  person  of 
color  shall  bo  subject  to  direct  taxation  unless  he 
shall  be  seised  and  possessed  of  such  real  estate  as 
aforesaid."    Const,  art.  2,  §  1. 

The  Legislative  Power. 

3.  This  is  lodged  in  a  ^^enate  and  Assembly. 
The  Senate  consists  of  thirty-two  members,  chosen, 

one  for  each  senatorial  district,  for  the  term  of  two 
years,  by  the  electors  of  the  district. 

The  Assembly  consists  of  one  hundred  and  twenty- 
eight  members,  elected,  one  from  each  of  the  assem- 
bly districts,  for  the  term  of  one  year,  by  the  people. 
A  certain  number  of  members  is  elected  from  each 
county,  according  to  an  apportionment  by  the 
legislature,  and  each  county,  except  Hamilton,  if 
to  be  always  entitled  to  one  member.  The  countiei 
entitled  to  more  than  one  member  are  divided  into 
districts,  each  of  which  elects  one  member  yi  the 
assembly.  The  allotment  and  division  are  to  be 
revised  after  each  census.  No  town  is  to  be  divided 
in  forming  assembly  districts.  The  districts  must 
contain,  as  nearl^y  as  possible,  an  equal  number  of 
inhabitants,  excluding  aliens  and  people  of  color 
not  taxed.  No  member  of  the  legislature  can  re- 
ceive any  civil  appointment  within  the  state,  or  to 
the  senate  of  the  United  States,  from  the  governor, 
or  the  governor  and  senate,  or  governor  and  legis- 
lature, during  the  term  for  which  he  was  elected, 
and  any  person  who  after  his  election  as  a  member 
of  the  legislature  is  elected  to  congress,  or  appointed 
to  any  office,  civil  or  military,  under  the  govern- 


NEW  YORK 


224 


NEW  YORK 


ment  of  the  United  States,  by  acceptance  thereof 
vacates  his  seat. 

4.  The  constitution  contains  the  usual  provisions 
for  organization  of  the  legislature;  making  each 
house  judge  of  the  qualifications  of  members  ;  giv- 
ing it  power  to  regulate  their  conduct;  for  the 
keeping  and  publication  of  a  record  of  proceedings ; 
for  open  sessions ;  freedom  of  debate ;  preventing 
one  house  from  adjourning  without  the  cr-nsent  of 
the  other.  No  private  or  local  bill  may  be  passed 
which  embraces  more  than  one  subject,  and  which 
does  not  express  that  subject  in  its  title.  Corpora- 
tions may  be  formed  by  the  legislature,  but  only 
under  general  laws,  except  in  cases  wherein,  in  the 
judgment  of  the  legislature,  the  objects  of  the  cor- 
poration cannot  be  attained  under  general  laws. 
Special  charters  may  not  be  granted  to  banks,  but 
they  may  be  formed  under  general  laws.  Const, 
art.  8,  ^1  1-8. 

The  Executive  Power. 

5.  The  Governor  is  elected  biennially,  forthe  term 
of  two  years,  by  the  people,  or  by  the  legislature  in 
consequence  of  a  failure  to  elect  by  the  people.  The 
governor  must  be  a  citizen  of  the  United  States, 
thirty  years  old  at  least,  and  have  been  for  five 
years  next  preceding  his  election  a  resident  within 
the  state.  He  is  commander-in-chief  of  the  mili- 
tary and  naval  forces  of  the  state ;  has  power  to 
convene  the  legislature  (or  the  senate  only)  on  ex- 
traordinary occasions ;  communicates  by  message 
to  the*legislature,  at  every  sessiun,  the  condition  of 
the  state,  and  recommends  such  matters  to  them  as 
he  judges  expedient;  transacts  all  necessary  busi- 
ness with  the  officers  of  the  government,  civil  and 
military;  is  to  take  care  that  the  laws  are  faith- 
fully executed;  has  the  power  to  grant  reprieves, 
commutations,  and  pardons  after  conviction,  for  all 
offences  except  treason  and  cases  of  impeachment, 
upon  such  conditions  and  with  such  restrictions  and 
limitations  as  he  may  think  proper,  subject  to  such 
regulation  as  may  be  provided  by  law  relative  to 
the  manner  of  applying  for  pardons.  Upon  con- 
viction for  treason,  he  has  power  to  suspend  the 
execution  of  the  sentence  until  the  case  is  reported 
to  the  legislature  at  its  next  meeting,  when  the 
legislature  either  pardons  or  commutes  the  sentence, 
directs  the  execution  of  the  sentence,  or  grants  a 
further  reprieve.  He  must  annually  communicate 
to  the  legislature  each  case  of  reprieve,  commuta- 
tion, or  pardon  granted,  stating  the  name  of  the 
convict,  the  crime  of  which  he  was  convicted,  the 
sentence  and  its  date,  and  the  date  of  the  commu- 
tation, pardon,  or  reprieve.  He  has  the  veto  power, 
but  a  bill  may  be  passed  over  his  veto  by  a  vote  of 
two-thirds  of  both  houses. 

6.  The  Lientenant-Goi^ernor\9  elected  at  the  same 
time,  for  the  same  term,  and  must  possess  the  same 
qualificaticns,  as  the  governor.  He  is  president  of 
the  senate, — with  only  a  casting  vote,  however.  In 
case  of  the  impeachment  of  the  governor,  of  his  re- 
moval from  (iffice,  death,  inability  to  discharge  the 
powers  and  duties  of  the  said  office,  resignation,  or 
absence  from  the  state,  the  powers  and  duties  of  the 
office  uevolve  upon  the  lieutenant-governor  for  the 
residue  of  the  term  or  until  the  disability  ceases. 
But  when  the  governor,  with  the  consent  of  the 
legislature,  is  out  of  the  state  in  time  of  war,  at  the 
head  of  a  military  force  thereof,  ho  continues  com- 
mander-in-chief of  all  the  military  force  of  the 
Btate.  If  during  a  vacancy  of  the  office  of  governor 
the  lieutenant-governor  is  impeached,  displaced, 
resigns,  dies,  or  becomes  incapable  of  performing 
the  duties  of  his  office,  or  is  absent  from  the  state, 
the  president  of  the  senate  acts  as  governor  until 
the  vacancy  is  filled  or  the  disability  ceases. 

A  Secretary  of  State,  a  Comptroller,  a  Treasurer, 
an  Attorney-General,  and  a  State  Engineer  and 
Surveyor  are  elected  by  the  people  biennially,  for 
the  term  of  tw/>  yours  each. 


The  Judicial  Power. 
T.  The  Court  of  Appeals  consists  of  eight  judges, 
four  of  whom  are  elected  by  the  people  of  the  state 
for  eight  years,  and  four  selected  from  the  justices 
of  the  supreme  court  having  the  shortest  time  to 
serve.  Const,  art.  6,  ^  2.  The  four  judges  taken 
from  the  supreme  court  serve  only  one  year;  and 
every  second  year  one  of  those  elected  by  the  people 
at  large  goes  out  of  office.  Four  terms  of  this  court 
must  be  held  each  year,  and  five  judges  must  con- 
cur in  each  decision.  Code,  §g  11-16.  It  exercises 
an  appellate  jurisdiction  for  the  correction  of  errors 
at  law  and  in  equity.  It  has  exclusive  jurisdiction 
to  review  upon  appeal  every  act  or  determination 
(7  Barb.  N.  Y.  581 ;  1  N.  Y.  428)  made  at  a  general 
term  by  the  supreme  court,  or  by  the  supreme  court 
of  the  city  of  New  York,  or  by  the  court  of  common 
pleas  of  the  city  and  county  of  New  York,  in  a 
judgment  in  an  action  of  contract  tried  therein  or 
brought  there  from  another  court,  and,  upon  the 
appeal  from  such  judgment,  to  review  any  interme- 
diate order  involving  the  merits  and  necessarily 
aff'ecting  the  judgment  (2  N.  Y.  566-416)  in  an  or- 
der affecting  a  substantial  right  made  in  such  ac- 
tion, when  such  order  in  effect  determines  the  action 
and  prevents  a  judgment  from  which  an  appeal 
might  be  taken,  1  N.  Y.  188,  228,  423,  534;  in  a 
final  order  affecting  a  substantial  right  made  in  a 
special  proceeding  or.  upon  a  summary  application 
in  an  action  after  judgment.  But  such  appeal  is 
not  allowed  in  an  action  originally  commenced  in  a 
court  of  a  justice  of  the  peace,  or  in  the  marine 
court  of  the  city  of  New  York,  or  in  a  justices'  court 
in  the  state.  Code  of  Proc.  tit.  ii.;  2  Eev.  Stat. 
4th  ed.  480. 

8.  The  Supreme  Court  is  composed  of  thirty-three 
judges,  elected,  four  in  each  of  the  eight  districts 
into  which  the  state  is  divided,  except  the  district 
composed  of  New  York  city,  where  five  are  at  pre- 
sent elected  and  more  may  be  authorized  to  be 
chosen,  but  not  to  exceed  in  the  whole  such  number 
in  proportion  to  its  population,  and  shall  be  in  con- 
formity with  the  number  of  such  judges  in  the  residue 
of  the  state  in  proportion  to  its  population.  The 
justices  in  each  district  are  classified  so  that  one 
goes  out  of  office  every  second  year.  The  justice 
having  the  shortest  time  to  serve,  who  is  not  a  mem- 
ber of  the  court  of  appeals,  is  presiding  judge  in 
each  district.  Of  those  having  the  shortest  time 
to  serve,  four  taken  from  alternate, districts  are 
members  of  the  court  of  appeals.  The  districts  are 
further  arranged  in  two  classes,  those  numbered 
with  the  odd  numbers  constituting  one  class,  those 
numbered  with  the  even  numbers  the  other,  which 
elect  their  supreme  judges  alternate  years.  By  this 
arrangement  the  vacancies  in  the  court  of  appeals 
happen  in  the  last  year  of  service  of  four  of  the  su- 
preme judges  every  year.  It  is  the  court  of  gene- 
ral original  jurisdiction.  See  Code  of  Proc.  2^ 
11-15. 

The  Circuit  Court  is  held  by  one  of  the  judges  of 
the  supreme  court  twice  a  year  at  least  in  each 
county. 

9.  The  Court  of  Oyer  and  Terminer  is  composed  in 
each  county  of  a  justice  of  the  supreme  court,  the 
county  judge,  and  two  justices  of  the  peace,  elected 
for  the  purpose  for  the  term  of  two  years  by  the 
people  of  the  county.  The  supreme  judge  and  any 
two  of  the  others  constitute  a  quorum.  In  the  city 
and  county  of  New  York  the  court  is  composed  of 
a  judge  of  the  superior  court  and  any  two  of  the 
following:  the  judges  of  the  conrt  of  common  pleas, 
the  mayor,  recorder,  or  alderman.  It  is  to  inquire 
into  all  crimes  and  misdemeanors  committed  or 
triable  in  the  county,  to  hear  and  determine  all 
such,  and  to  deliver  the  jails  of  all  prisoners  ac- 
cording to  law. 

Act  of  SesaiouH,  more  fully  described  as  tbe  court 
of  general  sessions  of  the  peace,  is  held  in  each 


NEW  YORK 


225 


NEW  YORK 


county  by  the  county  judge,  who  must  designate 
the  terms  at  which  a  jury  is  to  be  drawn.  This 
court  is  to  inquire  into  all  the  crimes  and  misde- 
meanors committed  or  triable  in  the  county,  and  to 
hear,  determine,  and  punish  according  to  law  all 
crimes  and  misdemeanors  not  punishable  with 
death  or  imprisonment  in  state  prison  for  life. 

Coiin'ti/  Courts  are  held  in  each  county,  by  a  single 
judge,  elected  by  the  people  for  the  term  of  four 
years.  They  have  original  civil  jurisdiction  only 
in  cases  where  money  or  personal  property  not  ex- 
ceeding one  hundred  dollars  in  amount  is  de- 
manded, for  the  foreclosure  of  mortgages  on  real 
estate,  and  the  collection  of  the  balance  due  after 
sale  of  the  property,  partition  of  real  estate  in 
the  county,  admeasurement  of  dower,  management 
of  the  property  of  infants,  mortgage  and  sale  of 
the  property  of  religious  corporations,  etc.  They 
have  also  supervision  of,  and  an  appellate  jurisdic- 
tion from,  the  decisions  of  justices  of  the  peace. 
The  county  judge  acts  also  as  surrogate  in  counties 
which  have  a  population  of  less  than  forty  thou- 
sand. 

10.  Mayors'  Courts  arc  held  in  the  various  cities, 
with  a  civil  and  criminal  jurisdiction  varying  some- 
what in  the  different  cities. 

Recorders'  Courts  are  held  in  some  cities  of  the 
state,  with  powers  substantially  those  of  the 
mayors'  courts  in  other  cities  of  the  state. 

Justices  of  the  Peace  are  elected  in  the  various 
towns  and  cities  for  the  term  of  four  yeiirs,  in  num- 
ber and  classes  as  directed  by  law.  They  have 
jurisdiction  of  actions  on  contracts,  for  personal 
damages,  for  penalty  on  a  bond,  for  fraud  in  sale, 
purcha^ie,  or  exchange  of  personal  property  to  an 
amount  not  exceeding  one  hundred  dollars. 

Justices'  CoM/'fsof  the  various  cities  have  juris- 
diction in  cases  under  the  charters  and  by-laws 
where  the  penalty  does  not  exceed  one  hundred 
dollars.  It  also  extends  to  one  hundred  dollars, 
and,  on  confession  of  judgment,  to  two  hundred 
and  fifty  dollars,  with  the  exception  of  certain 
actions  where  the  people  are  concerned,  and  where 
the  title  to  land  comes  in  question,  and  actions 
for  an  assault  and  battery,  false  imprisonment,  libel, 
slander,  malicious  prosecution,  criminal  conversa- 
tion, and  seduction,  and  matters  of  account  where 
the  sum  total  of  the  accounts  exceeds  four  hundred 
dollars,  and  actions  against  an  executor  or  adminis- 
trator. 

11.  A  Surrogate  is  elected  in  each  county  having 
a  population  of  more  than  forty  thousand  inhabit- 
ants :  having  less  than  that  population,  the  county 
judge  discharges  the  duties  of  the  surrogate.  The 
Code  of  Procedure  does  not  apply  to  matters  testa- 
mentary and  intestacy ;  and  hence  the  rules  of 
evidence  and  practice  in  the  surrogates'  courts 
are  the  same  as  formerly.  Willard's  Law  of  Ex- 
ecutors, 174  et  seq.  ;  Wilcox  vs.  Smith,  26  Barb.  N. 
Y.  316.  The  appeal  from  the  decision  of  the  surro- 
gate is  to  the  supreme  court,  and  from  that  court 
to  the  court  of  appeals.  '  The  former  jurisdiction 
of  the  court  of  probate  is  vested  in  the  surrogates, 
Bubject  to  appeal  as  aforesaid. 

The  Superior  Court  of  New  York  City  is  composed 
of  six  judges,  elected  by  the  people,  of  whom  one 
is  selected  by  his  associates  as  chief  justice.  It 
has  jurisdiction  of  actions  for  the  recovery  of  real 
property  or  an  interest  or  estate  therein  ;  for  the 
foreclosure  of  personal-property  mortgages;  for 
reco\ery  of  personal  property  distrained;  for  re- 
covery of  forfeitures  imposed  by  statute ;  against 
an  officer  or  person  appointed  by  him  for  acts  done 
in  virtue  of  said  ofiice  or  appointment,  where  the 
cause  has  arisen  or  the  property  is  situated  in  said 
city ;  and  of  all  other  actions  where  all  the  defend- 
ants reside  or  are  personally  served  with  summons 
within  the  city,  and  of  actions  against  corpora- 
tions having  their  place  of  business  in  the  city. 
Vol.  II.— 15 


The  Court  of  Common  Pleas  for  the  City  and  County 
of  New  York  is  composed  of  three  judges,  elected 
by  the  people.  It  has  the  same  jurisdiction  as  the 
superior  court  within  its  limits,  and,  in  addition, 
has  power  to  review  the  judgments  of  the  marine 
court  of  New  York  city,  and  of  justices  in  that 
city. 

12.  The  Marine  Court  of  the  City  of  New  York 
has  the  jurisdiction  of  justices  of  the  peace,  and  also 
of  actions  arising  under  the  charter  or  by-biws  of 
New  York  city  where  the  penalty  is  more  than 
twenty-five  and  less  than  one  hundred  dollars; 
action  of  contract  for  services  rendered  on  board  a 
vessel  on  i.he  high  seas,  where  the  state  courts  have 
jurisdiction,  though  the  damage  exceeds  one  hun- 
dred dollars.  But  no  admiralty  powers  are  given. 
Code  of  Procedure,  ^art  1,  tit.  vii. ;  2  Rev.  Stat. 
4th  ed.  492.  There  are  other  local  courts,  as  su- 
perior court  of  the  city  of  Buffalo,  city  court  of 
Brooklyn,  with  limited  jurisdiction  given  by  act 
creating  them. 

The  distinctive  features  of  the  present  constitu- 
tion, compared  with  the  two  former,  are,  1st:  tha/ 
the  present  constitution  imposes  more  stringent 
limitations  on  the  legislative  power  than  either  of 
the  former.  2d.  It  has  applied  the  elective  prin- 
ciple to  the  judiciary,  and  to  various  other  officers 
not  before  elective  by  the  people.  3d.  It  has 
shortened  the  term  of  office  of  the  judges  of  tho 
'^arious  courts,  and,  by  means  of  frequent  elections, 
has  brought  the  judges  more  under  the  influence 
of  popular  feeling  than  formerly.  4th.  It  has  con- 
solidated law  and  equity  in  the  same  tribunal. 

All  the  changes  produced  by  the  Code  of  Proce- 
dure cannot  be  noticed  in  so  brief  an  article.  Tho 
prominent  ones  are — 1,  the  abolition  of  the  dis- 
tinction between  law  and  equity,  according  to  the 
constitution,  and  the  adoption  of  a  new  system  of 
pleading  applicable  to  all  remedies.  Code,  ^  140. 
2.  The  abolition  of  the  rule  with  respect  to  interest 
as  a  ground  of  exclusion  of  Avitnesses.  Code,  ^ 
398.  3.  The  abolition  of  all  bills  of  discovery, 
and  allowing  the  parties  to  the  action  to  be  ex- 
amined as  witnesses  for  and  against  each  other. 
Code,  §  389,  as  amended  in  1859,  stat.  of  1859,  p. 
970.  4.  Requiring  the  real  parties  in  interest  to 
be  the  parties  to  the  action.  Code,  §  111.  b. 
Preventing  an  action  from  abating  by  the  death, 
marriage,  or  other  disability  of  a  party,  or  by  any 
transfer  of  interest  if  the  cause  of  action  survive, 
and  allowing  the  action  to  be  continued  in  the 
name  of  the  party  in  interest.  Code,  121.  6,  Pro- 
viding as  a  substitute  for  voluntary  and  compulsory 
references  either  of  all  or  any  of  the  issues  of  law 
or  fact,  or  both,  to  one,  or  not  exceeding  three, 
referees.    Code,  270-273. 

13.  The  constitution  provides  for  tribunals  of 
conciliation;  but  none  such  has  been  established. 

The  finances  and  funds  of  the  state  are  regulated 
by  article  VIII.  Amongst  other  things,  it  forbids 
the  legislature  to  sell  or  lease  the  canals,  or  the 
salt-springs,  or  to  loan  the  credit  of  the  state  to 
or  in  and  of  any  individual,  association,  or  cor 
poration.  It  limits  the  power  of  the  legislature  in 
the  creation  of  debts,  and  provides  for  submitting 
the  question  to  the  people  with  respect  to  the 
same.  It  also  contains  the  two  following  general 
provisions ;  Section  13.  Every  law  which  imposes, 
continues,  or  revives  a  tax  shall  distinctly  state  the 
tax  and  the  object  to  which  it  is  to  be  applied  ;  and 
it  shall  not  be  sufficient  to  refer  to  any  other  law  to 
fix  such  tax  or  object.  Section  14.  On  the  final 
passage  in  either  house  of  the  legislature  of  every 
act  which  imposes,  continues,  or  revives  a  tax,  or 
creates  a  debt  or  charge,  or  makes,  continues,  or 
revives  any  appropriation  of  public  or  trust  money 
or  property,  or  releases,  discharges,  or  commutes 
any  claim  or  demand  of  the  state,  the  question 
shall  be  taken  by  ayes  and  noes,  which  shall  bo 


NEWLY  DISCOVERED  EVIDENCE  226 


NEXUM 


duly  entered  on  the  journals :  and  three-fifths  of 
all  the  members  elected  to  either  house  shall  in 
all  such  cases,  if  necessary,  constitute  a  quorum 
thereof. 

14.  Corporations  may  be  formed  under  general 
laws,  and  the  legislature  is  expressly  forbidden 
to  create  them  by  special  acts,  except  in  cases 
where,  in  the  judgment  of  the  legislature,  the  ob- 
jects ot  the  corporation  cannot  be  attained  under 
general  laws.  Dues  from  corporations  must  be 
secured  by  the  individual  liability  of  the  corpora- 
tors. The  term  corporation  is  defined  so  as  to  in- 
clude all  associations  and  joint-stock  companies 
having  any  of  the  powers  and  privileges  of  cor- 
porations not  possessed  by  individuals  and  part- 
nerships. The  legislature  is  forbidden  to  grant 
bank-charters,  but  allowed  to  'pass  general  laws  for 
their  creation.  The  individual  stockholders  are  in- 
dividually responsible  to  the  amount  of  their  stock 
for  all  the  debts  of  the  bank.  Bill-holders  have  a 
preference  in  case  of  a  failure  of  the  bank.  Const, 
art.  viii.  sec.  1-8. 

NEWLY  DISCOVERED  EVIDENCE. 

In  Practice.  Proof  of  some  new  and  ma- 
terial fact  in  the  case,  which  has  been  ascer- 
tained since  the  verdict. 

The  discovery  of  such  evidence  will  afford  a 
ground  for  a  new  trial ;  but  courts  only  inter- 
fere with  verdicts  for  this  cause  under  very 
special  circumstances. 

To  entitle  the  party  to  relief,  certain  well- 
defined  conditions  are  indispensable.  It  is  a 
rule  subject  to  rare  exceptions,  and  applied 
perhaps  with  more  stringency  in  criminal 
than  in  civil  cases,  that  the  sole  object  of  the 
new  evidence  must  not  be  to  impeach  or 
contradict  witnesses  sworn  on  the  former 
trial,  7  Barb.  N.  Y.  271;  8  Gratt.  Va.  637  ; 
it  must  not  merely  multiply  testimony  to  any 
one  or  more  of  the  facts  already  investigated, 
but  must  bring  to  light  some  new  and  in- 
dependent truth  of  a  different  character,  3 
AVoodb.  &  M.  C.  C.  348  ;  1  Sumn.  C.  C.  451 ; 
6  Pick.  Mass.  114;  10  id.  16;  2  Caines,  N. 
Y.  129  ;  8  Johns.  N.  Y.  84 ;  15  id.  210 ;  4 
Wend.  N.  Y.  579 ;  7  Watts  &  S.  Penn.  415  ; 
5  Ohio,  375  ;  11  id.  147  ;  4  Halst.  N.  J.  228 ; 

1  Green,  N.  J.  177  ;  3  Vt.  72  ,  1  A.  K.  Marsh. 
Ky.  151;  3  id.  104;  it  must  be  to  a  point 
before  in  issue,  and  be  so  material  as  to  im- 
press the  court  with  the  belief  that  if  a  new 
trial  were  granted  the  result  would  probably 
be  different,  Dudl.  Ga.  85  ;  3  Humphr.  Tenn. 
222 ;  it  must  not  have  been  known  to  the 
party  until  after  the  trial,  3  Stor.  C.  C.  1  ; 

2  Sumn.  C.  C.  19  ;  2  N.  H.  166  ;  and  the  least 
fault  in  not  procuring  and  using  it  at  the 
trial  must  not  be  imputable  to  him.  6  Johns. 
Ch.  N.  Y.  482 ;  1  Blackf.  Ind.  367  ;  5  Halst. 
N.J.  250;  7  id.  225;  1  Mo.  49  ;  11  Conn. 
15;  10  Me.  218;  20  id,  24Q  ;  14Vt.  415;7 
Mete.  Mass.  748 ;  3  Graham  &  W.  New  Tr. 
1015-1 1 12.    See  New  Trial,  ^  9. 

NEWSPAPERS.  Papers  for  conveying 
news,  printed  and  distributed  periodically. 

NEXI.  In  Roman  Law.  Persons  bound 
{nexi) ;  that  is,  insolvents,  who  might  be  held 
in  bondage  by  their  creditors  until  their 
de])t8  were  discharged.  Vicat,  Voc.  Jur. ; 
Ueineccius,  Antiq.  Rom   ad  Inst  lib.  3,  tit. 


330 ;  Calvinus,  Lex. ;  Mackeldey,  Civ.  Law, 
§•486  a. 

*  NEXT  FRIEND.  One  who,  without 
being  regularly  appointed  guardian,  acts  for 
the  benefit  of  an  infant,  married  woman,  or 
other  person  not  sui  juris. 

NEXT  OF  KIN.  This  term  is  used  to 
signify  the  relations  of  a  party  who  has  died 
intestate. 

In  general,  no  one  comes  within  this  term 
who  is  not  included  in  the  provisions  of  the 
statutes  of  distribution.  3  Atk.  Ch.  422,  761 ; 
1  Ves.  Sen.  Ch.  84.  A  wife  cannot,  in  gene- 
ral, claim  as  next  of  kin  of  her  husband,  nor 
a  husband  as  next  of  kin  of  his  wife.  But 
when  there  are  circumstances  in  a  will  which 
induce  a  belief  of  an  intention  to  include 
them  under  this  term,  they  will  be  so  con- 
sidered, though  in  the  ordinary  sense  of  the 
word  they  are  not.  Hovenden,  Fr.  288,  289  ; 
1  Mylne  &  K.  Ch.  82.  See  Legacy  ;  Distri- 
bution ;  Descent. 

NEXUM  (Lat.).  In  Roman  Law.  The 
transfer  of  the  ownership  of  a  thing,  or  the 
transfer  of  a  thing  to  a  creditor  as  a  security. 

2.  In  one  sense  nexnm  includes  mancipiiim ;  in 
another  sense,  mancipmm  and  nexuvi  are  opposed, 
in  the  same  way  as  sale  and  mortgage  or  pledge 
are  opposed.  *  The  formal  part  of  both  trans- 
actions consisted  in  a  transfer  per  sea  et,  libram. 
The  person  who  became  nexus  by  the  effect  of  a 
nexum  placed  himself  in  a  servile  condition,  not 
becoming  a  slave,  his  ingerniitas  being  only  in 
suspense,  and  was  said  nexuvi  inire.  The  phrases 
nexi  datio,  nexi  liberatio,  respectively  express  the 
contracting  and  the  release  from  the  obligation. 

3.  The  Roman  law  as  to  the  payment  of  bor- 
rowed money  was  very  strict.  A  curious  passage 
of  Gellius  (xx.  1)  gives  us  the  ancient  mode  of 
legal  procedure  in  the  case  of  debt,  as  fixed  by  the 
Twelve  Tables.  If  the  debtor  admitted  the  debt, 
or  had  been  condemned  in  the  amount  of  the  debt 
by  a  judex,  he  had  thirty  days  allowed  him  for 
payment.  At  the  expiration  of  this  time  he  was 
liable  to  the  mantis  injecdo,  and  ultimately  to  be 
assigned  over  to  the  creditor  {addictus)  by  the 
sentence  of  the  praetor.  The  creditor  was  required 
to  keep  him  for  sixty  days  in  chains,  during  which 
time  he  publicly  exposed  the  debtor,  on  three 
nundinse,  and  proclaimed  the  amount  of  bis  debt. 
If  no  person  released  the  prisoner  by  paying  the 
debt,  the  creditor  might  .'■ell  him  as  a  slave  or  put 
him  to  death.  If  there  were  several  creditors,  the 
letter  of  the  law  allowed  them  to  cut  the  debtor  in 
pieces  and  take  their  share  of  his  body  in  propor- 
tion to  their  debt.  Gellius  says  that  there  was  no 
instance  of  a  creditor  ever  having  adopted  this 
extreme  mode  of  satisfying  his  debt.  But  the 
creditor  might  treat  the  debtor,  who  was  addictus, 
as  a  slave,  and  compel  him  to  work  out  his  debt; 
and  the  treatment  was  often  very  severe.  In  this 
passage  Gellius  does  not  speak  of  nexi,  but  only 
of  addicti,  which  is  sometimes  alleged  as  evidence 
of  the  identity  of  nexus  and  addictus,  but  it  proves 
no  such  identity.  If  a  nexus  is  what  he  is  here 
supposed  to  be,  the  laws  of  the  Twelve  Tables 
could  not  apply;  for  when  a  man  became  ncxm 
with  respect  to  one  creditor,  he  could  not  become 
nexus  to  another;  and  if  he  became  nexus  to 
several  at  once,  in  this  case  the  creditors  must 
abide  by  their  contract  in  taking  a  joint  security. 
This  law  of  the  Twelve  Tables  only  applied  to  the 
case  of  a  debtor  being  assigned  over  by  a  judicial 
sentence  to  several  debtors,  and  it  provided  for  a 
settlement  of  their  conflicting  claims.  The  precise 


I 

NIECE  227  NISI  PRIUS 


condition  of  a  nexus  has,  however,  been  a  subject 
of  much  discussion  arnonj;  scholars.  Smith,  Diet. 
Rom.  <fe  Gr.  Antiq. ;  M ancii'ium. 

NIECE.    The  daughter  of  a  brother  or 
sister.    Aiiibl.  Ch.  514;  1  Jae.  Ch.  207. 
NIEFE.    In  Old  English  Law.  A 

woniaJi  born  in  vassalage. 

NIENT  COMPRISE  (Law  Fr.  not  in- 
cluded). An  exce{)tion  taken  to  a  petition 
because  the  thing  desired  is  not  contained  in 
that  deed  or  proceeding  whereon  tlie  petition 
is  founded.    Tomlyn,  Law  Diet. 

NIENT  CULPABLE  (Law  Fr.  not 
guilty).  The  name  of  a  plea  used  to  deny  any 
charge  of  a  criminal  nature,  or  of  a  tort. 

NIENT  DEDIRE  (Law  Fr.  to  say  no- 
thing). 

Words  used  to  signify  that  judgment  be 
rendered  against  a  party  because  he  does  not 
deny  the  cause  of  action  :  i.e.  by  default. 

When  a  fair  and  impartial  trial  cannot  be 
had  in  the  county  where  the  venue  is  laid, 
the  practice  in  the  English  courts  is,  on  an 
affidavit  of  the  circumstances,  to  change  it  in 
transitory  actions  ;  or,  in  local  actions,  they 
will  give  leave  to  enter  a  suggestion  on  the 
roll,  with  a  nient  dedire,  in  order  to  have  the 
trial  in  another  county.  1  Tidd,  Pract.  8th 
ed.  655. 

NIENT  LE  FAIT  (Law  Fr.).  In  Plead- 
ing. The  same  as  uo?i  est  factum,  a  plea  by 
which  the  defendant  asserts  that  the  deed  de- 
clared upon  is  not  his  deed. 

NIGHT.  That  space  of  time  during 
which  the  sun  is  below  the  horizon  of  the 
earth,  except  that  short  space  which  precedes 
its  rising  and  follows  its  setting,  during  which 
by  its  light  the  countenance  of  a  man  may 
be  discerned.  It  is  night  when  there  is  day- 
light, crepusculum  or  diliiculum,  enough  left 
or  begun  to  discern  a  man's  face  withal.  1 
Hale,  PI.  Cr.  550  ;  4  Blackstone,  Comm.  224  ; 
Bacon,  Abr.  Burglary  (D) ;  2  Russell,  Crimes, 
32;  Roscoe,  Crim.  Ev.  278. 

NIGHT  WALKERS.  Persons  who 
sleep  by  day  and  walk  by  night,  5  Edw.  III. 
c.  14;  that  is,  persons  of  suspicious  appear- 
ance and  demeanor,  who  walk  by  night. 

Watchmen  may  undoubtedly  arrest  them ; 
and  it  is  said  that  private  persons  may  also 
do  80.  2  Hawkins,  PI.  Cr.  120.  But  see  3 
Taunt.  14;  Hammond,  Nisi  P.  135.  See  15 
Viner,  Abr.  555 ;  Dane,  Abr.  Index. 

NIHIL  CAPIAT  PER  BREVE  (Lat. 
that  he  take  nothing  by  his  writ).  In  Prac- 
tice. The  form  of  judgment  against  the 
plaintiff  in  an  action,  either  in  bar  or  in  abate- 
ment. When  the  plaintiff  has  commenced 
his  proceedings  by  bill,  the  judgment  is  nihil 
capiat  per  billam.    Coke,  Litt.  363. 

NIHIL  DICIT  (Lat.  he  says  nothing).  The 
name  of  the  judgment  rendered  against  a  de- 
fendant who  fails  to  put  in  a  plea  or  answer 
to  the  plaintiff's  declaration  by  the  day  as- 
signed. In  such  a  case,  judgment  is  given 
against  the  defendant  of  course,  as  he  says 


nothing  why  it  should  not.  See  15  Viner, 
Abr.  556 ;  Dane,  Abr.  Index. 

NIHIL  HABET  (Lat.  he  has  nothing). 
The  name  of  a  return  made  by  a  sheriff, 
marshal,  or  other  proper  officer,  to  a  acire 
facia-f  or  other  writ,  when  he  hos  not  )>ecn 
able  to  serve  it  on  the  defendant.  5  Whart. 
Penn.  367. 

Two  returns  of  nihil  are,  in  general,  equiva* 
lent  to  a  service.    Yelv.  112;  1  Cowen,  70 

1  Law  Rep.  No.  C.  491 ;  4  Blackf.  Ind.  188; 

2  Binn.  Penn.  40. 

NIL  DEBET  (Lat.  he  owes  nothing).  In 
Pleading.  The  general  issue  in  debt  on 
simple  contract.  It  is  in  the  following  form: 
"And  the  said  C  D,  by  E  F,  his  attiuney, 
comes  and  defends  the  wrong  and  injury, 
when,  etc.,  and  says  that  he  does  not  owe  the 
said  sum  of  money  above  demanded,  or  any 
part  thereof,  in  manner  and  form  as  the  said 
A  B  hath  above  complained.  And  of  this  the 
said  C  D  puts  himself  upon  the  country/' 
When,  in  debt  on  specialty,  the  deed  is  the 
only  inducement  to  the  action,  the  general 
issue  is  7iil  debet.  Stephen,  Plead.  174,  n.; 
8  Johns.  N.  Y.  83  ;  Dane,  Abr.  Index. 

NIL  HABUIT  IN  TENEMENTIS 
(Lat.).  In  Pleading.  A  plea  by  which  the 
defendant,  who  is  sued  by  his  landlord  in  debt 
for  rent  upon  a  lease,  but  by  deed  indented,  de- 
nies his  landlord's  title  to  the  premises  alleg- 
ing that  he  has  no  interest  in  the  tenements.  2 
Lilly,  Abr.  214;  12  Viner,  Abr.  184;  15tV/.556. 

NISI  PRIUS  (Lat.  unless  before).  In 
Practice.  For  the  purpose  of  holding  trials 
by  jury.  Important  words  in  the  writ  [venire) 
directing  the  sheriff  to  summon  jurors  for  the 
trial  of  causes  depending  in  the  superior 
courts  of  law  in  England,  which  have  come 
to  be  adopted,  both  in  England  and  the  United 
States,  to  denote  those  courts  or  terms  of 
court  held  for  the  trial  of  civil  causes  with  the 
presence  and  aid  of  a  jury. 

The  origin  of  the  use  of  the  term  is  to  be  traced 
to  a  period  anterior  to  the  institution  of  the  com- 
mission of  nisi  prins  in  its  more  modern  form.  By 
Magna  Charta  it  was  provided  that  the  common 
pleas  should  be  held  in  one  place,  and  should  not 
follow  the  person  of  the  king;  and  by  another 
clause,  that  assizes  of  novel  disseisin  and  of  mort 
d'ancestor,  which  were  the  two  commonest  forms 
of  actions  to  recover  land,  should  be  held  in  the  va- 
rious counties  before  the  justices  in  eyre.  A  prac- 
tice obtained  very  early,  therefore,  in  the  trial  of 
trifling  causes,  to  continue  the  cause  in  the  superior 
court  from  term  to  term,  provided  the  just.ccs  in 
eyre  did  not  sooner  (/itsz  jitsticiarii  diti)  cviue  into 
the  county  where  the  cause  of  action  aro^e,  in  which 
case  they  had  jurisdiction  when  they  so  came. 
Bracton,  1.  3,  c.  1,  ^  11.  By  the  statute  of  nifsi 
2Jrin8,  13  Edw.  I.  c.  30,  enforced  by  14  Edw.  III. 
c.  16,  justices  of  assize  were  empowered  to  try  com- 
mon issues  in  trespass  and  other  suits,  and  return 
them,  when  tried,  to  the  superior  court,  where  judg- 
ment was  given.  The  clause  was  then  left  out  of 
the  continuance  and  inserted  in  the  venire,  thus: 
"  Priecipimiis  tibi  quod  venire  facias  coram  justicta- 
ris  uoHtris  apud  Weattn.  in  Octahis  Scti  Jftclisciis, 
nisi  talis  et  talis,  tali  die  et  loco,  ad  partes  Ulan 
venerinf,  dnodccim,"  etc.  (we  command  you  that  you 
cause  to  come  before  our  justices  at  Westminster, 
on  the  octave  of  Saint  Michael,  utdess  such  and  such 


NISI  PRIUS  ROLL  228 


NOMEN 


a  one,  on  such  a  day  and  place,  shall  come  to  those 
parts,  twelve,  etc.).  Under  the  provisions  of  42 
Edw.  III.  c.  11,  the  clause  is  omitted  from  the  ve- 
nire, and  the  jury  is  respited  in  the  court  above, 
while  the  sheriff  summons  them  to  appear  before 
the  justices,  upon  a  habeas  corpora  jnratorum,  or, 
in  the  king's  bench,  a  dtstriugas.  See  Sellon,  Pract. 
Introd.  Ixv. ;  1  Spence,  Eq.  Jur.  116  ;  3  Sharswood, 
Blackst.  Comm.  352-354;  1  Reeve,  Hist.  Eng.  Law, 
245,  382. 

See,  also,  Assize  ;  Courts  of  Assize  and 
Nisi  Prius  ;  Jury. 

NISI  PRIUS  ROLL.  In  Practice.  The 

transcript  of  a  case  made  from  the  record  of 
the  superior  court  in  which  the  action  is  com- 
menced, for  use  in  the  nisi  prius  court. 

It  includes  a  history  of  all  the  proceedings 
in  the  case,  including  the  declaration,  plea, 
replication,  rejoinder,  issue,  etc.  It  must  be 
presented  in  proper  manner  to  the  nisi  prius 
court.  When  a  verdict  has  been  obtained 
and  entered  on  this  record,  it  becomes  the 
postea,  and  is  returned  to  the  superior  court. 

NO  AWARD.  The  name  of  a  plea  to  an 
action  or  award.  2  Ala.  520 ;  1  N.  Chipm. 
Vt.  131;  3  Johns.  N.  Y.  367. 

NO  BILL.  Words  frequently  indorsed 
on  a  bill  of  indictment  by  the  grand  jury 
when  they  have  not  sufficient  cause  for  hnd- 
ing  a  true  bill.  They  are  equivalent  to  Not 
found,  or  Ignoramus.  2  Nott  &  M'C.  So.  C. 
558. 

NOBILE  OFFICIUM.  In  Scotch  Law. 

An  equitable  power  of  the  court  of  sessions, 
by  which  it  is  able,  to  a  certain  extent,  to 
give  relief  when  none  is  possible  at  law. 
Stair,  Inst.  b.  iv.  tit.  3,  ^  1 ;  Erskine,  Inst.  1. 
3.  22  ;  Bell,  Diet. 

NOBILITY.  An  order  of  men,  in  seve- 
ral countries,  to  whom  privileges  are  granted 
at  the  expense  of  the  rest  of  the  people. 

2.  The  constitution  of  the  United  States 
provides  that  no  state  shall  "grant  any  title 
of  nobility ;  and  no  person  can  become  a  citi- 
zen of  the  United  States  until  he  has  re- 
nounced all  titles  of  nobility.''  The  Fede- 
ralist, No.  84;  2  Story,  U.  S.  Laws,  851. 

3.  There  is  not  in  the  constitution  any 
general  prohibition  against  any  citizen  whom- 
soever, whether  in  public  or  private  life,  ac- 
cepting any  foreign  title  of  nobility.  An 
amendment  of  the  constitution  in  this  respect 
has  been  recommended  by  congress ;  but  it 
has  not  been  ratified  by  a  sufficient  number 
of  states  to  make  it  a  part  of  the  constitution. 
Eawle,  Const.  120 ;  Story,  Const.  §  1346. 

NOCUMENTUM  (Lat.  harm,  nuisance). 
In  Old  English  Law.  A  thing  done 
whereby  another  man  is  annoyed  in  his  free 
lands  or  tenements.  Also,  the  assize  or  writ 
Iving  for  the  same.  Fitzherbert,  Nat.  Brev. 
]H3;  Old  Nat.  Brev.  108,  109.  Manwood, 
For.  Laws,  c.  17,  divides  nocumenium  into 
yeneralc,  commune,  speciale.  Reg.  Orig.  197, 
199 ;  Coke,  Will  Case.  Nocumenium  was 
also  divided  into  damnosum,  for  which  no  ac- 
tion lay,  it  being  done  by  an  irresponsible 


agent,  and  injuriosum  et  damnosum,  for  which 
there  were  several  remedies.  Bracton,  221 ; 
Fleta,  lib.  4,  c.  26,  §  2. 

NOLLE  PROSEQUL     In  Practice. 

An  entry  made  on  the  record,  by  which  the 
prosecutor  or  plaintiff  declares  that  he  will 
proceed  no  further. 

5J.  A  nolle  prosequi  may  be  entered  either 
in  a  criminal  or  a  civil  case.  In  criminal 
cases,  before  a  jury  is  impanelled  to  try  an 
indictment,  and  also  after  conviction,  the  at- 
torney-general has  power  to  enter  a  nolle  pro- 
sequi without  the  consent  of  the  defendant : 
but  after  a  jury  is  impanelled  a  nolle  prosequi 
cannot  be  entered  without  the  consent  of  the 
defendant.  17  Pick.  Mass.  395  ;  20  id.  356; 
1  Gray,  Mass.  490  ;  7  id.  328  ;  12  Mete.  Mass. 
444;  12  Vt.  93;  3  Hawks,  613;  7  Humphr. 
Tenn.  152 ;  1  Bail.  So.  C.  151 ;  9  Ga.  306.  It 
is  for  the  prosecuting  officer  to  enter  a  nol. 
pros,  in  his  discretion,  3  Hawks,  No.  C.  613  ; 
but  in  some  states  leave  must  be  obtained  of 
the  court.  1  Hill,  N.  Y.  377 ;  1  Va.  Cas. 
139  ;  12  Vt.  93  ;  7  Smith,  Pen.  Laws,  227. 

3.  It  may  be  entered  as  to  one  of  several 
defendants.    11  East,  307. 

The  effectof  fi  nolle  prosequi,  when  obtained, 
is  to  put  the  defendant  without  day ;  but  it 
does  not  operate  as  an  acquittal ;  for  he  may  be 
afterwards  reindicted,  and,  it  is  said,  even  upon 
the  same  indictment  fresh  process  may  be 
awarded.  6  Mod.  261 ;  1  Salk.  59  ;  Comyns, 
Dig.  Indictment  (K):  2  Mass.  172;  4  Cush. 
Mass.  235  ;  13  Ired.  No.  C.  256.  See  3  Cox, 
Cr.  Cas.  93 ;  7  Humphr.  Tenn.  159. 

4.  In  civil  cases,  a  nolle  prosequi  is  con- 
sidered not  to  be  of  the  nature  of  a  retraxit 
or  release,  as  was  formerly  supposed,  but  an 
agreement  only  not  to  proceed  either  against 
some  of  the  defendants,  or  as  to  part  of  the 
suit.  See  1  Wms.  Saund.  207,  note  2,  and 
the  authorities  there  cited  ;  1  Chitty,  Plead. 
546.  A  nolle  prosequi  is  now  held  to  be  no 
bar  to  a  future  action  for  the  same  cause,  ex- 
cept in  those  cases  where,  from  the  nature  of 
the  action,  judgment  and  execution  against 
one  is  a  satisfaction  of  all  the  damages  sus- 
tained by  the  plaintiff.  3  Term,  511;  1 
Wils.  98. 

5.  In  civil  cases,  a  nolle  prosequi  may 
be  entered  as  to  one  of  several  counts,  7 
Wend.  N.Y.  301,  or  to  one  of  several  defend- 
ants, 1  Pet.  80;  as  in  the  case  of  a  joint  con- 
tract, where  one  of  two  defendants  pleads 
infancy,  the  plaintiff  may  enter  a  nolle  prose- 
qui as  to  him,  and  proceed  against  the  other. 

1  Pick.  Mass.  500.    See,  generally,  1  Pet.  74; 

2  Rawle,  Penn.  334 ;  1  Bibb,  Ky.  337  ;  4  id. 
387,  454;  3  Cow.  N.  Y.  335,  374;  5  Gill  &  J. 
Md.  489  ;  5  Wend.  N.  Y.  224 ;  12  id.  110 ;  20 
Johns.  N.  Y.  126  ;  3  Watts,  Penn.  460. 

NOMEN  (Lat.).  In  Civil  Law.  A  name 
of  a  person  or  thing.  In  a  stricter  sense,  the 
name  which  declared  the  gens  or  family:  as, 
Porcius,  Cornelius;  the  cognomen  being  the 
name  which  marked  the  individual:  as,  Cato, 
Marcus  :  agnomen,  a  name  added  to  the  cog- 
nomen for  the  purpose  of  description,  Th^ 


NOMEN  COLLECTIVUM  229 


NOMINE  PCENiE 


name  of  the  person  himself :  e.g.  nomen  air  lis 
addere.  The  name  denoting  the  condition 
of  a  person  or  class :  e.g.  nomen  liberoriim, 
condition  of  children.  Cause  or  reason  {pro 
causa  aut  ratione):  e.g.  nomine  culpce,  by 
reason  of  fault.  A  mark  or  sign  of  any  thing, 
corporeal  or  incorporeal.  Nomen  supremum, 
i.e.  God.  Debt,  or  obligation  of  debt.  A 
debtor.  See  Vicat,  Voc.  Jur. ;  Calvinus,  Lex. 

In  Old  English  Law.  A  name.  The 
Christian  name,  e.g.  John,  as  distinguished 
from  the  family  name:  it  is  also  called  prce- 
noiucii.  Fleta,  lib.  4,  c.  10,  H  7,  9  5  Law  Fr. 
&  Lat.  Diet. 

In  Scotch  Law.  Nomen  debiti.  Right 
to  payment  of  a  debt. 

NOMEN  COLLECTIVUM  (Lat.).  A 
word  in  the  singular  number  which  is  to  be 
understood  in  the  plural  in  certain  cases. 

Misdemeanor,  for  example,  is  a  word  of 
this  kind,  and  when  in  the  singular  may  be 
taken  as  nomen  coUectivum  and  including 
several  offences.  2  Barnew.  &  Ad.  75.  Heir, 
in  the  singular,  sometimes  includes  all  the 
heirs.    Felony  is  not  such  a  term. 

NOMEN  GENERALISSIMUM  (Lat.). 
A  most  universal  or  comprehensive  term : 
e.g.  land.  2  Sharswood,  Blackst.  Comm.  19 ; 
3  id.  172;  Taylor,  Law  Gloss.  So  goods.  2 
Williams,  Ex.  1014. 

NOMINAL  DAMAGES.  In  Prac- 
tice. A  trifling  sum  awarded  where  a  breach 
of  duty  or  an  infraction  of  the  plaintiff's 
right  is  shown,  but  no  serious  loss  is  proved 
to  have  been  sustained. 

Wherever  any  act  injures  another's  right, 
and  would  be  evidence  in  future  in  favor  of 
a  wrong-doer,  an  action  may  be  obtained  for 
an  invasion  of  the  right  without  proof  of  any 
specific  injury,  1  Wms.  Saund.  346  a;  28 
N.  n  438;  13  Conn.  269;  and  wherever  the 
breach  of  an  a.^reement  or  the  invasion  of  a 
right  is  established,  the  law  infers  some 
damage,  and  if  none  is  shown  will  award  a 
trifling  sum:  as,  a  penny,  one  cent,  six  and 
a  quarter  cents,  etc.  14  111.  301 ;  4  Den.  N. 
Y.  554  ;  Sedgwick,  Dam.  47. 

2.  Thus,  such  damages  may  be  awarded  in 
actions  for  flowing  lands,  2  Stor.  C.  C.  661 ; 

1  Rawle,  Penn.  27 ;  12  Me.  183  ;  28  N.  H. 
438  ;  injuries  to  commons,  2  East,  154 ;  viola- 
tion of  trade-marks,  4  Barnew.  &  Ad.  410 ; 
and  see  7  Cush.  Mass.  322  ;  2  R.  I.  566 ;  in- 
fringement of  patents,  1  GaU.  C.  C.  429,  483 ; 
diversion  of  water-courses,  5  Barnew.  &  Ad. 
1 ;  I  Bingh.  N.  c.  549 ;  17  Conn.  288  ;  2  III. 
544 ;  6  Ind.  39  ;  ^  32  N.  H.  90  ;  but  see  21  Ala. 
N.  s.  309;  6  Ohio  St.  187;  trespass  to  lands, 
24  Wend.  N.  Y.  188  ;  2  Tex_.  206  ;  see  4  Jones, 
No.  C.  139  ;  neglect  of  official  duties,  in  some 
cases,  5  Mete.  Mass.  517 ;  12  id.  535  ;  1  Den. 
N.  Y.  548  ;  27  Vt.  563  ;  23  id.  305  ;  12  N.  II. 
341  ;  breach  of  contracts,  1  Du.  N.  Y.  363  ; 

2  Hill,  N.  Y.  644 ;  5  id.  290,  505  ;  6  Md.  274; 
and  many  other  cases  where  the  effect  of  the 
suit  will  De  to  determine  a  right.  2  Wils. 
414 ;  12  Ad.  &  E.  488  ;  3  Scott,  isr.  r.  390  ;  13 
Cona  361;  20  Mo.  603;  28  Me.  505;  19 


Miss.  98  ;  2  La.  Ann.  907.  And  see,  in  ex- 
planation and  limitation,  10  Barnew.  &  C. 
145  ;  14  C.  B.  595  ;  1  Q.  B.  636 ;  18  id.  252 ; 
22  Vt.  231 ;  1  Dutch.  N.  J.  255  :  14  B.  Monr. 
Ky.  330 ;  0  Ind.  250 ;  6  Rich.  So.  C.  75. 

The  title  or  right  is  as  firmly  established 
as  though  the  damages  were  substantial. 
Sedgwick,  Dam.  47.  As  to  its  effect  upon 
costs,  see  Sedgwick,  Dam.  55  ;  2  Mete.  Mass. 
96  ;  1  Dow,  Pari.  Cas.  201 ;  1  Curt.  C.  C.  434 ; 
22  Vt.  231. 

NOMINAL  PLAINTIFF.    One  who  is 

named  as  the  plaintiff  in  an  action,  but  who 
has  no  interest  in  it,  having  assigned  the 
cause  or  right  of  action  to  another,  for  whose 
use  it  is  brought. 

In  general,  he  cannot  interfere  with  the 
rights  of  his  assignee,  nor  will  he  Vje  per- 
mitted to  discontinue  the  action,  or  to  meddle 
with  it.  1  Wheat.  233;  7  Cranch,  152;  1 
Johns.  Cas.  N.  Y.  411:  3  id.  242;  1  Johns. 
N.  Y.  532,  n.;  3  id.  426;  11  id.  47;  12  id. 
237;  1  Phillipps,  Ev.  90,  Cowen's  note  172; 
Greenleaf,  Ev.  ^  173. 

NOMINATE  CONTRACT.  A  con- 
tract distinguished  by  a  particular  name,  the 
use  of  M'hich  name  determines  the  rights  of 
all  the  parties  to  the  contract:  as,  purchase 
and  sale,  hiring,  partnership,  loan  for  use, 
deposit,  and  the  like.  The  law  thus  super- 
sedes the  necessity  for  special  stipulations, 
and  creates  an  obligation  in  the  one  party  to 
perform,  and  a  right  in  the  other  to  demand, 
whatever  is  necessary  to  the  explication  of 
that  contract.  In  Roman  law  there  were 
twelve  nominate  contracts,  with  a  particular 
action  for  each.  Bell,  Diet.  Nominate  and 
Innominate ;  Mackeldey,  Civ.  Law,  §|  395, 
408 ;  Dig.  2.  14.  7.  1. 

NOMINATION  (from  Lat.  nominare, 
to  name).  An  appointment :  as,  I  nominate  A 
B  executor  of  this  my  last  will. 

A  proposition.  The  word  nominate  is  used 
in  this  sense  in  the  constitution  of  the  United 
States,  art.  2,  s.  2:  the  president  "shall  nomi- 
nate, and  by  and  with  the  consent  of  the  senate 
shall  appoint,  ambassadors,"  etc. 

NOMINE  PCENiB  (Lat.  in  the  nature 
of  a  penalty).  In  Civil  Law.  A  condition 
annexed  to  heirship  by  the  will  of  the  de- 
ceased person.  Domat,  Civ.  Law  ;  Hallifax, 
Anal. 

At  Common  Law.  A  penalty  fixed  by 
covenant  in  a  lease  for  non-performance  of 
its  conditions.    2  Lilly,  Abr.  221. 

It  is  usually  a  gross  sum  of  money,  though 
it  may  be  any  thing  else,  appointed  to  be 
paid  by  the  tenant  to  the  reversioner,  if  the 
duties  are  in  arrear,  in  addition  to  the  duties 
themselves.    Hammond,  Nisi  P.  411,  412. 

To  entitle  himself  to  the  nomine  poence,  the 
landlord  must  make  a  demand  of  the  rent  on 
the  very  day,  as  in  the  case  of  a  re-entry.  1 
Saund.  287  b,  note  ;  7  Coke.  28  b;  Coke,  Litt. 
202  a;  1  Term,  117.  A  distress  cannot  be 
taken  for  a  nomine  poence  unless  a  special 
power  to  distrain  be  annexed  to  it  by  deed. 


NOMINEE 


230 


NON  CULPABILIS 


3  Bouvier,  Inst.  n.  2451.  See  Bacon,  Abr. 
Rent  (K  4)  Woodfall,  Landl.  &  T.253 ;  Dane, 
Abr.  Index. 

NOMINEE.  One  who  has  been  named 
or  proposed  for  an  office. 

NON  ACCEPTAVIT  (Lat.  he  did  not 
accept).  In  Pleading.  The  name  of  a  plea 
to  an  action  of  assumpsit  brought  against  the 
drawee  of  a  bill  of  exchange  upon  a  supposed 
acceptance  by  him.    See  4  Mann.  &  G.  561. 

NON-ACCESS.  The  non-existence  of 
sexual  intercourse  between  husband  and  wife 
is  generally  expressed  by  the  words  non- 
access  of  the  husband  to  the  wife;  which 
expressions,  in  a  case  of  bastardy,  are  under- 
stood to  mean  the  same  thing.  2  Starkie, 
Ev.  218,  n. 

In  Pennsylvania,  when  the  husband  has 
access  to  the  wife,  no  evidence  short  of  abso- 
lute impotence  of  the  husband  is  sufficient  to 
convict  a  third  person  of  bastardy  with  the 
wife.    6  Binn.  Penn.  283. 

In  the  civil  law  the  maxim  is,  Pater  is  est 
quern,  nvptice  demonstrant.  Toullier,  tcm.  2, 
n.  787.  The  Code  Napoleon,  art.  312,  enacts 
*'que  V enfant  congu  pendant  le  mariage  a 
pour  p^re  le  mari.'^  See,  also,  1  Browne, 
Penn.  Appx.  xlvii. 

A  married  woman  cannot  prove  the  non- 
access  of  her  husband.  See  8  East,  193,  202 ; 
11  id.  132;  12  id.  550;  13  Ves.  Ch.  58;  4 
Term,  251,  336;  6  id.  330. 

NON-AGE.  By  this  term  is  understood 
that  period  of  life  from  the  birth  till  the  arrival 
of  twenty-one  years.  In  another  sense  it 
means  under  the  proper  age  to  be  of  ability 
to  do 'a  particular  thing :  as,  when  non-age  is 
applied  to  one  under  the  age  of  fourteen,  who 
is  unable  to  marry. 

NON  ASSUMPSIT  (Lat.  he  did  not 
undertake).  In  Pleading.  The  general 
issue  in  an  action  of  assumpsit. 

Its  form  is,  "And  the  said  C  D,  by  E  F, 
his  attorney,  comes  and  defends  the  wrong 
and  injury,  when,  etc.,  and  says  that  he  did 
not  undertake  or  promise,  in  manner  and 
form  as  the  said  A  B  hath  above  complained. 
And  of  this  he  puts  himself  upon  the  coun- 
try." 

Under  this  plea  almost  every  matter  may 
be  given  in  evidence,  on  the  ground,  it  is  said, 
that  as  the  action  is  founded  on  the  contract, 
and  the  injury  is  the  non-performance  of  it, 
evidence  which  disaffirms  the  obligation  of 
the  contract,  at  the  time  when  the  action  was 
commenced,  goes  to  the  gist  of  the  action. 
Gilbert,  C.  P.  65  ;  Salk.  279  ;  2  Strange,  738 ; 
1  Bos.  k  P.  481.  See  12  Viner,  Abr.  189; 
l^omyns.  Dig.  Pleader  (2  G  1). 

NON  ASSUMPSIT  INFRA  SEX 
ANNOS  (Lat.  he  has  not  undertaken  within 
six  years).  In  Pleading.  The  plea  by  which, 
when  pleadings  were  in  Latin,  the  defendant 
alleged  that  the  obligation  was  not  under- 
taken and  the  right  of  action  had  not  accrued 
within  six  years,  the  period  of  limitation  of 
the  right  to  bring  suit. 


NON  BIS  IN  IDEM.    In  Civil  Law 

A  phrase  which  signifies  that  no  one  shall  he 
twice  tried  for  the  same  offence:  that  is,  thai 
\vhen  a  party  accused  has  been  once  tried  by 
a  tribunal  in  the  last  resort,  and  either  con- 
victed or  acquitted,  he  shall  not  again  be  tried. 
Code,  9.  2.  9.  11;  Merlin,  R6pert.  See 
Jeopardy. 

NON  CEPIT  MODO  ET  FORMA 

(Lat.  he  did  not  take  in  manner  and  form). 
In  Pleading.  The  plea  which  raises  the 
general  issue  in  an  action  of  replevin. 

Its  form  is,  "And  the  said  C  D,  by  E  F,  his 
attorney,  comes  and  defends  the  wrong  and 
injury,  when,  etc.,  and  says  that  he  did  not 
take  the  said  cattle  (or,  goods  and  chattels, 
according  to  the  subject  of  the  action)  in  the 
said  declaration  mentioned,  or  any  of  them, 
in  manner  and  form  as  the  said  A  B  hath 
above  complained.  And  of  this  the  said  C  D 
puts  himself  upon  the  country." 

It  denies  the  taking  the  things  and  having 
them  in  the  place  specified  in  the  declaration, 
both  of  which  are  material  in  this  action. 
Stephen,  Plead.  183,  184;  1  Chitty,  Plead. 
490. 

NON-CLAIM.  An  omission  or  neglect 
by  one  entitled  to  make  a  demand  within  the 
time  limited  by  law:  as,  when  a  continual 
claim  ought  to  be  made,  a  neglect  to  make 
such  claim  within  a  year  and  a  day. 

NON  COMPOS  MENTIS  (Lat.  not  of 

sound  mind,  memory,  or  understanding).  A 
generic  term,  including  all  the  species  of 
madness,  whether  it  arise  from  idiocy,  sick- 
ness, lunacy,  or  drunkenness.  Coke,  Litt. 
247;  4  Coke,  124;  1  Phill.  100;  4  Comyns, 
Dig.  613;  5  id.  186;  Shelford,  Lun.  1; 
Idiocy;  Lunacy. 

NON  CONCESSIT  (Lat.  he  did  not 
grant).  In  English  Law.  The  name  of 
a  plea  by  which  the  defendant  denies  that 
crown  granted  to  the  plaintifi"  by  letters  the 
patent  the  rights  which  he  claims  as  a  con- 
cession from  the  king :  as,  for  example,  when 
a  plaintifi"  sues  another  for  the  infringement 
of  his  patent  right,  the  defendant  may  deny 
that  the  crown  has  granted  him  such  a  right. 

It  does  not  deny  the  grant  of  a  patent,  but 
of  the  patent  as  described  in  the  plaintifi^'a 
declaration.    3  Burr.  1544 ;  6  Coke,  15  b. 

NON-CONFORMISTS.  In  Eng- 
lish Law.  A  name  given  to  certain  dis- 
senters from  the  rites  and  ceremonies  of  the 
church  of  England. 

NON  CONSTAT  (Lat.  it  does  not  ap- 
pear). Words  frequently  used,  particularly 
in  argument,  to  express  dissatisfaction  with 
the  conclusions  of  the  other  party:  as,  it  was 
moved  in  arrest  of  judgment  that  the  declara- 
tion was  not  good,  because  non  constat  whe- 
ther A  B  was  seventeen  years  of  age  when 
the  action  was  commenced.  Swiuburn,  pt 
4,  I  22,  p.  331. 

NON  CULPABILIS  (Lat.).  In  Plead- 
ing.    Not  guilty.    It  i«  usually  abbreviated 


NON  DAMNIFICATUS 


231 


NON-JOINDER 


>■  m  ad.    16  Viner,  Abr.  1 ;  2  Gabbett,  Crim. 
317. 

!NON  DAMNIFICATUS  (Lat.  not  in- 
juifed).  In  Pleading.  A  pica  to  an  action 
of  "debt  on  a  bond  of  indemnity,  by  which  the 
deltjndant  asserts  that  the  phiintiff'  has  re- 
'ceivgti  no  damage.  1  Bos.  &  P.  640,  n.  a; 
1  Taunt.  428  ;  1  Saund.  116,  n.  1  ;  2  id.  81 ; 
?  Wentworth,  Plead.  615,  616  ;  1  H.  Blackst. 
353  ,  2  Lilly,  Abr.  224 ;  14  Johns.  N.  Y.  177; 
5  i'f;  42 ;  20  id.  153  ;  3  Cow.  N.  Y.  313  ;  10 
Wheat.  396,  405  ;  3  Ilalst.  N.  J.  1. 

Inc^N  debit.    In  Pleading.  The 

S  tnerm  iggue  in  formedon.  See  Ne  Dona 
Iks. 

j  NOn  DEMISIT  ( Lat.  he  did  not  demise) . 
In  Pleading.  A  plea  proper  to  be  pleaded 
t(|  an  action  of  debt  for  rent,  when  the 
plaintiff  declares  on  a  parol  lease.  Gilbert, 
Debt, 436,  438;  BuUer,  Nisi  P.  177 ;  1  Chitty, 
Plead.  477.  'J' 

It  cannot  be  pleaded  when  the  demise  is 
stated  to  have  been  by  indenture.  12  Viner, 
Ahr.  178  ;  Comyns,  Dig.  Pleader  (2  W  48). 

_NON  DETINET  (Lat.  he  does  not  de- 
tain). In  Pleading.  The  general  issue  in 
arji  action  C)f  detinue.  Its  form  is  as  follows: 
"And  the  said  C  D,  by  E  F,  his  attorney, 
coraes  and  defends  the  wrong  and  injury, 
li^nen,  etc.,  and  says  that  he  does  not  detain 
the  said  gO()d8  and  chattels  (or  "  deeds  and 
writings,"  {Recording  to  the  subject  of  the 
action)  in  the  said  declaration  specified,  or 
any  part  thereof,  in  manner  and  form  as  the 
said  A  B  hath  above  complained.  And  of 
this  the  said  C  D  puts  himself  upon  the 
coimtry." 

It  puts  in  isfi^ue  the  detainer  only:  a  justi- 
ficfition  must  bfe  pleaded  specially.  8  Dowl. 
Pr.'ict.  .Cas.  347'.  It  is  a  proper  plea  to  an 
action  of  debt  on  a  simple  contract  in  the 
case  of  executors  and  administrators.  6  East, 
549  ;  Bacon,  Abr.  Pleas  (I) ;  1  Chitty,  Plead. 

S  Hon  est  I-'ACTUM  (Lat.  is  not  his 
jdee-i).  In  Pleading.  A  plea  to  an  action  of 

/debt  on  a  bond  or  other  specialty. 

I*s  form  is,  "And  the  said  C  D,  by  E  F, 

'  his  attorney,  comers  and  defends  the  wrong 
and  injury,  when,  etc.,  and  says  that  the 
said  supposed  writing  obligatory" (or  "  inden- 
ture "  or  "  articles  ()f  agreement,"  according 
to  the  subject  of  tho  action)  is  not  his  deed. 
And  of  this  he  puts  himself  upon  the  coun- 
try."   6  Rand.  Va.  ^^6 ;  1  Litt.  Ky.  158. 

It  is  a  proper  ple.a  when  the  deed  is  the 
inundation  of  the  action,  1  Wms.  Saund.  38, 
note  3;  2  id.  187  a.  note  2;  2  Ld.  Raym. 
1500  5  11  Johns.  N.  Y.  476,  and  cannot  be 
prov(.d  as  declared  01-,^  4  East,  585,  on  ac- 
count of  non-executic:)n,  6  Term,  317,  or 
variance  in  the  body  of  the  instrument.  1 
Cam|)b.  70;  11  East,  6.33  .  q  Taunt.  394 ;  4 
Maule  &  S.  470  ;  2  Do^vi.  &  R.  662.  Under 
this  ^,lea  the  plaintiff  may  show  that  the  deed 
was  Void  ab  initio,  2  Wijg,  341 .  2  Campb. 
2<2;  3  tcZ.  33-  12  Mod.  loi ;  l  Ld.  Raym. 


315;  12  Johns.  N.  Y.  337;  13  id.  430;  10 
Serg.  &  R.  Penn.  25  ;  14  id.  208  ;  see  2  Salk. 
275 ;  6  Cranch,  219,  or  became  so  after 
making  and  before  suit.  5  Coke,  119  h;  11  id. 
27  ;  4  Cruise,  Dig.  368.  See  1  Chitty,  Plead. 
417,  n. 

In  covenant,  the  defendant  may,  under  this 
plea,  avail  himself  of  a  mis-statement  or 
omission  of  a  qualifying  covenant.  Strange, 
1146  ;  9  East,  188  ;  11  id.  639;  1  Campb.  70; 
4  id.  20,  or  omission  of  a  condition  prece- 
dent.   11  East,  639  ;  7  Dowl.  &  R.  249. 

NON  EST  INVENTUS  (Lat.  I  have 
not  found  him).  In  Practice.  The  sheriff's 
return  to  a  writ  requiring  him  to  arrest  the 
person  of  the  defendant,  which  signifies  that 
he  is  not  to  be  found  within  his  jurisdiction. 
The  return  is  usually  abbreviated  N.  E.  I. 
Chitty,  Pract. 

NON-FEASANCE.  The  non-perform- 
ance of  some  act  which  ought  to  be  pep> 
formed. 

When  a  legislative  act  requires  a  person  to 
do  a  thing,  its  non-feasance  will  subject  the 
party  to  punishment:  as,  if  a  statute  require 
the  supervisors  of  the  highways  to  repair 
such  highways,  the  neglect  to  repair  them 
may  be  punished.  See  1  Russell,  Crimes,  48. 
See,  also,  Mandatum. 

NON  FECIT  (Lat.  he  did  not  make  it). 
The  name  of  a  plea,  for  example,  in  an  action 
of  assumpsit  on  a  promissory  note.  3  Mann. 
Sc  G.  446. 

NON  FECIT  VASTUM  CONTRA 
PROHIBITIONEM  (Lat.  he  did  not 
commit  waste  against  the  prohibition).  In 
Pleading.  The  name  of  a  plea  to  an  action 
founded  on  a  writ  of  estrepement,  that  the 
defendant  did  not  commit  waste  contrary  to 
the  prohibition.  3  Blackstone,  Comm.  226, 
227. 

NON  IMPEDIVIT  (Lat.  he  did  not  im- 
pede). In  Pleading.  The  plea  of  the  gene- 
ral issue  in  qiiare  impedit.  3  Sharswood, 
Blackst.  Comm.  305 ;  3  Wooddeson,  Lect.  36. 
In  law  French,  ne  disturha  pas. 

NON  INFREGIT  CONVENTIONEM 
(Lat.  he  has  not  broken  the  covenant).  In 
Pleading.  A  plea  in  an  action  of  covenant. 
This  plea  is  not  a  general  issue :  it  merely  de- 
nies that  the  defendant  has  broken  the  cove- 
nants on  which  he  is  sued.  It  being  in  the 
negative,  it  cannot  be  used  where  the  breach 
is  also  in  the  negative.  Bacon,  Abr.  Covenant 
(L);  3  Lev.  19;  2  Taunt.  278  ;  1  Aik.  Vfc. 
150  ;  4  Dall.  Penn.  436  ;  7  Cow.  N.  Y.  71. 

NON-JOINDER.  In  Pleading.  The 
omission  of  one  or  more  persons  who  should 
have  been  made  parties  to  a  suit  at  law  or  in 
equity,  as  plaintiffs  or  defendants. 

In  Equity.  Parties  may  be  omitted  when 
the  number  is  great.  1  Smedes  &  M.  404. 
I  The  relief  granted  in  such  cases  will  be  so 
modified  as  not  to  affect  the  interests  of 
others.  1  Pet.  299  :  2  Paine,  C.  C.  536  ;  11 
111.  254  ;  2  Johns.  Ch.  X.  Y.  242.  See  Par- 
ties, ^'i  9, 16,  It,  19,   It  must  be  taken  ad 


NON-JURORS 


232 


NON-TENURE 


vantage  of  before  the  final  hearing,  Ril.  Ch. 
So.  C.  138 ;  1  Ala.  n.  s.  580 ;  18  id.  576 ;  21 
Conn.  586 ;  1  Des.  So.  C.  315  ;  1  Stockt.  Ch. 
N.  J.  401 ;  10  Paige,  Ch.  N.  Y.  445  ;  2  Sandf. 
Ch.  N.  Y.  17  ;  2  loAva,  55  ;  2  McLean,  C.  C. 
376,  except  in  very  strong  cases,  1  Pet.  299, 
as,  where  a  party  indispensable  to  rendering  a 
decree  appears  to  the  court  to  be  omitted.  14 
Vt.  178;  19  Ala,  n.  s.  213;  5  111.  424;  24 
Me.  119.  The  objection  may  be  taken  by  de- 
murree,  if  the  defect  appear  on  the  face  of 
the  bill,  5  111.  424 ;  1  Des.  So.  C.  315  ;  8  Ga. 
606  ;  19  Ala.  n.  s.  121 ;  4  Rand.  Va.  451 ;  or 
by  plea,  if  it  do  not  appear.   9  Mo.  605.  See 

3  Cranch,  220.  The  objection  may  be  avoided 
by  vs^aiver  of  rights  as  to  the  party  omitted, 

4  Wise.  54,  or  a  supplemental  bill  filed,  in 
some  cases.  4  Johns.  Ch.  N.  Y.  605.  It  will 
not  cause  dismissal  of  the  bill  in  the  first  in- 
stance, 3  Cranch,  189  ;  6  Conn.  421 ;  17  Ala. 
270 ;  1  T.  B.  Monr.  Ky.  189 ;  1  Dev.  Eq.  No. 
C.  354 ;  1  Hill,  So.  C.  53  ;  but  will,  if  it  con- 
tinues after  objection  made,  17  Ala.  270 ;  5 
Mas.  C.  C.  561,  without  prejudice,  5  Mas.  C. 
C.  561 ;  1  J.  J.  Marsh.  Ky.'76  ;  3  id.  103  ;  6 
id.  622  ;  4  B.  Monr.  Ky.  594 ;  6  id.  330  ;  7 
Paige,  Ch.  N.  Y.  451  •,  1  Sandf.  Ch.  N.  Y.  46. 
The  cause  is  ordered  to  stand  over  in  the  first 
instance.  20  Me.  59  ;  9  Cow.  N.  Y.  320  5  2 
Edw.  Ch.  N.  Y.  242. 

In  Law.   See  Abatement,  21,  22. 

NON-JURORS.     In  English  Law. 

Persons  who  refuse  to  take  the  oaths,  required 
by  law,  to  support  the  government.  See  1 
Dall.  Penn.  170. 

NON  LIQUET  (Lat.  it  is  not  clear).  In 
Civil  Law.  Words  by  which  the  judges 
{judices),  in  a  Roman  trial,  were  accustomed 
to  free  themselves  from  the  necessity  of  de- 
ciding a  cause  when  the  rights  of  the  parties 
were  doubtful.  On  the  tablets  which  were 
given  to  the  judges  wherewith  to  indicate 
their  judgment,  was  written  N.  L.  Vicat, 
Voc.  Jur. 

NON-OBSTANTE.    In  English  Law. 

These  words,  which  literally  signify  notwith- 
standing, are  used  to  express  the  act  of  the 
English  king  by  which  he  dispenses  with 
the  law,  that  is,  authorizes  its  violation. 

He  cannot  by  his  license  or  dispensation 
make  an  offence  dispunishable  which  is  ma- 
lum in  se;  but  in  certain  matters  which  are 
mala  prohibifa  he  may,  to  certain  persons 
and  on  special  occasions,  grant  a  non-obstante. 
Vaugh.  330-359;  Lev.  217  ;  Sid.  6,  7  ;  12 
Coke,  18;  Bacon,  Abr.  Prerogative  (D  7). 
Sse  Judgment  non-obstante  Veredicto. 

NON-OBSTANTE  VEREDICTO.  Not- 
withstaridirig  the  verdict.  See  Judgment  non- 
obstante  Veredicto. 

NON  OMITTAS  (Lat.  more  fully,  non 
omittas  projdcr  libertatem,  do  not  omit  on  ac- 
count of  the  liberty  or  franchise).  In  Prac- 
tice. A  writ  which  ics  when  the  sheriff  re- 
turns on  writ  to  him  directed,  that  he  hath 
sent  to  the  bailiff  of  such  a  franchise,  which 
hath  return  of  writs,  and  he  hath  not  served 


the  writ;  then  the  plaintiff  shall  have  th;'^ 
writ  directed  to  the  sheriff,  that  he  omit  vM 
on  account  of  any  fraiichiae,  but  hims€''f 
enter  into  the  franchise  and  execute 
king's  writ.  Termes  de  la  Ley. 

This  clause  is  now  usually  irserted  in 
processes  addressed  to  sheriff-'.  Wharc^ii» 
Lex.  2d  Lond.  ed. ;  2  Will.  IV.  c.  39  ;  3 
Chitty,  Stat.  494;  3  Chitty,  Pract.  190,  3 10. 

NON-PLEVIN.    In  Old  English  I  aw 
A  neglect  to  replevin  land  taken  intx  th. 
hands  of  the  king  upon  defanli,  within  f  ftec 
days,  by  which  seisin  was  J  jsl,  as  by  de^^ti»lf 
Heugh.  de  Magn.  Ch.  c.  8.    Bv  9  Edv'.  H 
c.  2,  no  man  shall  lose  his  land  b/ 
plevin. 

NON  PROS.  An  abbreviation  of 
prosequitur,  he  does  not  p'  reue.  Wbc^e  th 
plaintiff,  at  any  stage  of  the  proc<*cding3, 
fails  to  prosecute  his  actio^a,  or  any  part  < 'i 
it,  in  due  time,  the  defendant  enters  |" 
sequitur,  and  signs  final  judgment,  and  obta;  8 
costs  against  the  plaintiff,  who  is  sa»d  to  I  e 
non  p^os  'd.  2  Archbold,  Pract.  (Shitty  c-i. 
1409  ;  3  Sharswood,  Black  ?t.  ComPi-  '-^^6  1 
Tidd,  P'-^ict.  458 ;  Graham,  Pract.  763 ;  3 
Chitty,  Pract.  10;  1  Penn.  Pract.  Cain* 4s, 
Pract.  102.  The  name  n  >:i  pros,  is  appli  W 
to  the  judgment  so  ren-lered  figainst  t  be 
plaintiff.  1  Sellon,  Pra<  and  authorit'.es 
above  cited. 

NON-RESIDENCE.  In  Ecclesiasticial 
Law.  The  absence  of  spiritual  persons  frjm 
their  benefices. 

NON  SUBMISSIT  (Lat.  )-  The  na  ne 
of  a  plea  to  an  action  of  debt,  or  a  bond  to 
perform  an  award,  by  which  the  defendant 
pleads  that  he  did  not  submit^  Bacon,  Jihr. 
Arbitration,  etc.  (G). 

NON  SUM  INFORM ATUS  {Lif  )  = 
In  Pleading.    I  am  n<  t  iatcrmed. 

NON  TENENT  INSI»iIUL  (Lat.  t 
do  not  hold  together),  in  Pleading.  Ar 
to  an  action  in  partition,  by  'i^hich  the  def  pd- 
ant  denies  that  he  holds  the  property  w  .icb 
is  the  subject  of  the  Miit,  together  with  t; 
complainant  or  plaintiff. 

NON  TENUIT  Lat.  he  did  not  h.>ld). 
In  Pleading.   The     ^     "f  a  ^lea  in  bji-r  lu 


has  avowee 
f  plaintiff  a  •  o 
manner  and  for  JOi 

I  a  Pleading.  A  p 


replevin,  when  the 
rent-arrear,  by  whi 
that  he  did  not  hold 
the  avowry  alleges. 

NON-TENURE, 
in  a  real  action,  bv  which  the  defendant 
serted  that  he  did  not  hold  the  land,  or  as 
least  some  part  oi  it,  as  mentioned  id  the 
plaintiff's  declaration,  1  Mod.  250;  in  ^'hi'h 
case  the  writ  abates  f^s  to  the  part  with  n> 
ference  to  which  the  pl^a  is  sustained-  » 
Cranch,  242.  It  mriy  '>e  pleaded  witl'  or 
without  a  disclain.er.  It  was  a  dilatory  I ' 'a, 
though  not  strirtly  abatement,  2  8iioud 
44,  n.  4;  Dy.  210*  Booth,  K^ml  Act.  1/9  ;  3 
Msiss'.  312  ;  li  i.{.  V !  6  ;  I'Ut  m.ght  bo  pien  led 
as  to  part  alon^:  with  a  plea  111  bar  as  nhe 
rest,  1  Lutw.  710;  Rast.  Ent.  231  a,  hi  and 


NON-TERM 


233  NORTH  CAROLINA 


mis  isubsequently  considered  as  a  ploa  in  bar. 
14  WasW  2:VJ  ;  I  Me.  54  ;  2  N.  II.  10;  Bacon, 
Abr.  Pffas  (I  9). 

NON-TERM.  The  vacation  between  two 
terms  of  a  court. 

NON-USER.  The  neglect  to  make  use 
of  a  thing. 

2.  A  right  which  may  be  acquired  by  use 
may  be  lost  by  non-user  •,  and  an  absolute  dis- 
continuance of  the  use  for  twenty  years  af- 
fords presumption  of  the  extinguishment  of 
the  right  in  favor  of  some  other  adverse 
right.  5  Whart.  Penn.  584 ;  23  Pick.  Mass. 
141.    See  Abandonment  ;  Easement. 

3.  Everj  public  officer  is  required  to  use 
his  office  for  the  public  good:  a  non-user  of 
a  public  office  is,  therefore,  a  sufficient  cause 
of  forfeiture.  2  Blackstone,  Comm.  153  ;  9 
Coke,  50.  Non-user  for  a  great  length  of 
time  will  ha  ^e  the  effect  of  repealing  an  old 
law.  But  it  must  be  a  very  strong  case  which 
will  have  thatj  effect.  13  Serg.  &  R.  Penn. 
452  ;  1  Bouviei\  Inst.  n.  94. 

NONSENSE.  That  which  in  a  written 
agreement  or  will  is  unintelligible. 

2.  It  is  a  r^le  of  law  that  an  instrument 
shall  be  so  construed  that  the  whole,  if  pos- 
sible, shall  stand.  When  a  matter  is  written 
grammatically  right,  but  it  is  unintelligible 
and  the  whole  makes  nonsense,  some  words 
cannot  be  rejected  to  make  sense  of  the  rest, 
1  Salk.  324  ;  but  when  matter  is  nonsense  by 
being  contrar;^  and  repugnont  to  some  prece- 
dent sensible  matter,  fsucii  repugnant  matter 
is  rejected.  14  Viner,  Abr.  142  ;  15  id.  560. 
The  maxim  of  th»»  civil  law  on  this  subject 
V  agrees  with  this  role :  Quae  in  testamento  ita 
\  Bunt  scripta,  ut  intelligi  non  possent:  perinde 
Wnt,  ac  si  scripta  eon  essent.  Dig.  50.  17. 
f3.  3.  See  AmbiglJTY;  Construction;  In- 
i\erpretation. 

\  3.  In  pleading,  when  matter  is  nonsense 
bjf  being  contradictory  and  repugnant  to 
Boinething  precedent,  the  precedent  matter, 
wh!^3h  is  sense,  shall  not  be  defeated  by  the 
repugnancy  which  follows,  but  that  which  is 
contradictory  shall  be  rejected:  as  in  eject- 
ment where  the  declaration  is  of  a  demise  on 
the  second  day  of  January,  and  that  the  de- 
fendant postea  scilicet,  on  the  frst  of  Janu- 
ary, ejected  him,  here  the  scilicet  may  be 
rejected  as  being  expressly  contrary  to  the 
postea  and  the  precedent  matter.  5  East, 
255  ;  1  3alk.  324.  \ 

NONSUIT.  The  name  of  a  judgment 
given  agiinst  the  plaintiff  when  he  is  unable 
to  prove  iiis  case,  or  when  he  refuses  or  neg- 
lects to  proceed  to  the  trial  of  a  cause  after  it 
has  been  put  at  issue,  without  determining 
such  issue. 

_  A  volunttrif  nonsuit  is  a,n  abandonment  of 
his  cause  by  plaintiff,  who  allows  a  judgment 
for  costs  to  b)  entered  against  him  by  absent- ' 
ing  himself     ftiiling  to  answer  when  called  ^ 
upon  to  hear  the  verdict.     1  Dutch.  N.  J. ' 
656.  1 
An  involunti-nj  non-suit  takes  place  when 
the  plaintiff,  on  being  called,  when  his  case  is 


before  the  court  for  trial,  neglects  to  appear, 
or  when  he  has  given  no  evidence  on  which  a 
jury  could  find  a  verdict.  13  Johns.  N.  f. 
334. 

2.  In  English  practice,  when  issue  has 
been  joined,  and  the  plaintiff  neglectu  to 
bring  on  the  issue  to  be  tried  during  or  be- 
fore the  followinj^  term  and  vacation,  etc.,  the 
defendant  may  give  twenty  days'  -  otice  to  the 
plaintiff  to  bring  on  the  issue,  to  be  tried  at 
the  sittings  or  assizes  next  after  the  expira- 
tion of  the  notice;  and  if  plaintiff  afterwards 
neglects  to  give  notice  of  trial  for  such  sit- 
tings or  assizes,  or  to  proceed  to  trial  in  pur- 
suance of  such  notice  of  defendant,  the  de- 
fendant may  suggest  on  record  that  the  plain- 
tiff has  failed  to  proceed  to  trial,  etc.,  and  may 
si^n  judgment  for  his  costs:  provided  that 
the  judge  may  have  power  to  extend  time  for 
proceeding  to  trial  with  or  without  terms. 
Comm.  Law  Proc.  Act,  1852,  §g  100,  101 ;  3 
Chitty,  Stat.  519,  550. 

;3.  A  n(msuit  is  no  bar  to  another  action 
for  same  cause.  The  courts  of  the  United 
States,  1  Pet.  4G9,  476 ;  9  Ind.  551 ;  14  Ark. 
7C6 ;  those  of  Pennsylvania,  1  Serg.  &  R. 
Penn.  360 ;  2  Binn.  Penn.  234,  248  ;  4  id. 
84;  but  see  26  Penn.  St.  192;  Massachusetts, 
6  Pick.  Mass.  117;  Tennessee,  2  Ov.  Tenn. 
57,  4  Yerg.  Tenn.  528;  and  Virginia,  \ 
Wash.  Va.  87,  219,  cannot  order  a  nonsuit 
against  a  plaintiff  who  has  given  evidence  of 
his  claim.  In  Alabama,  unless  authorized  by 
statute,  the  courts  cannot  enter  a  nonsuit. 

1  Aia.  75  ;  4  id.  42.    See  22  Ala.  n.  s.  613. 
4.  In  New  York,  12  Johns.  N.  Y.  299 ;  13 

id.  334 ;  1  Wend.  N.  Y.  376  ;  South  Carolina, 

2  Bay,  So.  C.  126,  445  ;  2  Bail.  So.  C.  321 ;  2 
M'Cord,  So.  C.  26 ;  Maine,  2  Me.  5 ;  3  id.  97 ; 
41  id.  65  ;  42  id.  259 ;  New  Hampshire,  26 
N.  H.  351;  31  id.  92:  Ohio,  4  Ohio,  628; 
Illinois,  17  111.  494 ;  Florida,  5  Fla.  476  ; 
Indiana,  9  Ind.  179;  Georgia,  16  Ga.  154; 
California,  1  Cal.  108,  125,  221 ;  Missouri, 
19  Mo.  101,  a  nonsuit  may,  in  general,  be 
ordered  where  the  evidence  is  insufficient  to 
support  the  action,  but  not  till  final  submis- 
sion of  cause.  21  Mo.  93.  See  3  Chittv,  Pract. 
910  ;  1  Sellon,  Pract.  463  :  1  Archbold,  Pract. 
787  ;  Bacon,  Abr. ;  15  Viner,  Abr.  560 ;  3 
Sharswood,  Blackst.  Comm.  376;  2  Tidd, 
Pract.  916  seq. 

NORTH  CAROLINA.  The  name  of  one 
of  the  original  states  of  the  United  States  of 
A.merica. 

2.  The  territory  which  now  forms  this  state  waa 
I  included  in  the  grant  made  in  1663  by  Charles  II., 
to  Lord  Clarendon  and  others,  of  a  much  more  ex- 
tensive country.  The  boundaries  were  enlarged  by 
a  new  charter  granted  by  the  same  prince  to  thd 
same  proprietaries  in  the  year  1665.  By  this  charter 
the  proprietaries  were  authorized  to  make  laws, 
with  the  assent  of  the  freemen  of  the  province  or 
their  delegates,  and  they  were  invested  with  various 
other  powers.  Being  dissatisfied  with  the  form  of 
government,  the  proprietaries  procured  the  cele- 
brated John  Locke  to  draw  up  a  plan  of  government 
for  the  colony,  which  Avas  adopted,  and  proved  to 
be  impracticable:  it  was  highly  exceptionable 
account  of  its  disregard  of  the  pr;iicipl(.'i  of  reli- 


NORTH  CAROLIJ^A 


234 


NORTH  CAROLINA 


gious  toleration  and  national  liberty,  which  are  now 
universally  admitted.  After  a  few  years  of  unsuc- 
cessful operation,  it  was  abandoned.  The  colony 
had  been  settled  at  two  points,  one  called  the  North- 
ern and  the  other  the  Southern  settlement,  which 
were  governed  by  separate  legislatures.  Jn  1729 
the  proprietaries  surrendered  iheir  charter,'when  it 
became  a  royal  province,  and  was  governed  by  a 
commission  and  a  form  of  government  in  subatunco 
similar  to  that  established  in  other  royal  provincs. 
In  1732  the  territory  was  divided,  and  the  divisions 
assumed  the  names  of  North  Carolina  an  I  Solitli 
Carolina. 

3.  The  constitution  of  North  Carolina  .was 
adopted  December  18,  1776.  To  this  constitution 
amendments  were  made  in  convention  June  4,  1  ^35, 
which  were  ratified  by  the  people  on  the  9th  Jay 
of  November  of  the  same  year,  and  took  effecl  on 
the  1st  day  of  January,  1836. 

Every  free  white  man  of  the  age  of  twenty-one 
years,  being  a  native  or  naturalized  citizen  ut  the 
United  States,  and  who  has  been  an  inhabitant,  of 
the  state  for  twelve  months  immediately  prececlmg^ 
the  day  of  any  election,  and  has  paid  public  ta.xes, 
is  entitled  to  vote.    See  Acts  1856,  c.  12,  \Z. 

The  Legislative  Power. 
The  (S'enafe  consists  of  fifty  members,  chosen  bien- 
nially, for  the  term  of  two  years,  by  the  qualited 
voters  of  the  district.  A  senator  must  possess  :he 
qualifications  of  a  voter,  and,  in  addition,  it  is  vfo- 
vided  that  no  person  who  denies  the  beinj.:  of  (lod, 
the  truth  of  the  Christian  religion,  or  ttie  divine 
authority  of  the  Old  or  New  Testament,  or  who 
holds  religious  principles  incompatible  with  the 
freedom  or  safety  of  the  state,  can  hold  any  oBce 
of  trust  or  profit'in  the  civil  department  within  the 
3tate. 

The  JIoHse  of  Commoiio  is  composed  of  onehurdred 
and  twenty  representatives,  apportioned  among  the 
counties  in  the  ratio  of  the  population  as  erume- 
rated  for  the  purposes  of  federal  representation. 
They  are  elected  biennially,  for  the  term  jf  two 
years.  The  qualifications  required  are  the  same  as 
tiiose  of  senators. 

The  Executive  Power. 

4,  The  Governor  is  elected  biennially,  by  thi  quali- 
fied voters  of  the  state,  for  the  term  of  twc  years 

»m  the  first  day  of  January  next  following  his 
•  iction.  He  is  not  eligible  more  than  fcwr  years 
i  any  term  of  six  years.  He  must  be  thiriy  years 
'f  age,  have  resided  five  years  in  the  state,  and  own 
a  the  state  a  freehold  in  lands  and  tenements  to 
the  value  of  one  thousand  pounds.  The  candidate 
having  the  largest  number  of  votes  is  elected ;  and 
in  case  of  no  election  or  a  contested  election,  the 
matter  is  to  be  decided  by  the  joint  action  of  the 
two  houses. 

The  Council  of  the  state  consists  of  sevf^n  iccru- 
t  '^rs,  elected  biennially  by  a  joint  vote  of  the  senato 
xnd  house  of  commons.  Four  of  these  form  a  qufi>- 
n.m,  and  their  duty  is  to  advise  the  governor  in  (the 
'j  vtjcution  of  his  office,  particularly  in  filling  var-an- 
c  OS  occurring  during  the  recess  of  tho  general 
4-  imbly  in  offices  in  which  the  right  of  ap*- 
>  ntnicnt  is  by  the  constitution  vested  in  that' 
'  /.  Tlie  appointees  in  such  cases  are  >  have  a 
jMiary  commission,  which  expires  witi  the  end 
,  f   iie  next  session  of  the  general  assembly. 

The  Judicial  Power. 
i>»  The  Supreme  Court  is  composed  of  three  judges, 
elected  by  joint  ballot  in  the  two  houses  of  assem- 
bly, to  hold  tlieir  office  during  good  behavior.  Of 
these,  one  is  selected  by  his  associates  tc  preside, 
and  styled  the  chief  justice.  It  is  almost  entirely 
m  apj  ellate  tril)unal,  having  original  jurisdiction 
>nly  ill  proceedings  by  a  bill  in  equity,  or  an  in- 


formation in  the  nature  of  a  bill  in  equ  - 
behalf  of  the  state,  in  the  name  of  tl  ^ 
general,  to  repeal  grants  and  other  le*( 
obtained  by  fraud  or  false  suggestions, 
pellate  jurisdiction  over  all  cases  in  law         .  j 
l<r  jught  before  it  by  appeal  or  otherwise    •   .  a  su- 
perior court  of  law  or  a  court  of  equity.  J  i    .is  also 
n  nver  to  issue  writs  of  certiorari,  scire   .i'  4.-;.  hu- 
be. IS  corpus,  and  other  writs  which  may'*  jiocc.s- 
»ii'y  for  the  exercise  of  its  jurisdiction,  >   .  ai,-ree- 
'  le  to  the  principles  and  usages  of  law,  i  '  rimiaal 
cases  are  to  be  certified  to  the  superior  ]  uvt  from 
which  the  appeal  was  taken,  which  ooi  r|i.  proLc.  ds 
to  judgment  in  accordance  with  the  decif^'on  uf  the 
supreme  court.  ij 

<8.  A  Superior  Court  is  held  by  one  ;  iflge,  at  the 
court-house  in  each  county  of  the  st  tfte,  twice  in 
each  year.  For  this  purpose  the  staJo  is  divided 
into  seven  circuits,  each  composed  ol /ten  or  more 


app; 


ill  ted 


Mid 

ui;.  icliit  .  ^  to 
E?,  and  estates 


counties;  and  the  seven  judges  who 
to  hold  these  courts  ride  the  circuity' 
wjch  the  power  to  interchange;  but  s/ 
the  same  circuit  twice  in  successioi  i 
are  appointed  in  the  same  manner 
term  as  the  supreme  judges.  The 
''have  cognizance  and  legal  jur 
otherwise  provided,  of  all  pleas,  n.^ 
mi  sed,  and  also  all  suits  and  den.Mi 
do'ver,  partition,  legacies,  filial  port 
o*'  intestates;  and,  unless  it  be  oth*:rwise  provided, 
ol  kll  pleas  of  the  state,  and  cruninal  matters  of 
whiat  nature,  degree,  or  denomin;'tif-n  soever,  whe- 
thejr  brought  before  them  by  orii^inai  or  by  mesne 
prtcess,  or  by  certiorari,  writ  of  error,  appeal  from 
any  inferior  court,  or  by  any  otl-er  way  or  manner 
whatsoever;  and  they  are  herefji  '{'olared  to  have 
fui  power  and  authority  to  giv<  !••  igment  and  to 
D  v  ird  execution  and  all  necessAO  process  the-eon," 
eto  See  Revised  Code,  c.  31,  f  17. 
.  The  same  judges  who  bol-i  m!  or'  >r  courts  of 
!h  v  are  required  and  authorize'  -t  the  same 

tin  es  and  places,  courts  of  eq  ,  i  In  doing  so 
?h:Jl  "possess  all  the  powers  fad  authorities  within 
the  same  that  the  court  of  ihancery,  which  was 
foi  merly  held  in  this  state  uixter  th"?  colonial  ,^ov- 
trnment.  used  and  exercised/;  and  that  are  pro{.<)ily 
and  rightfully  incident  to  a  court,  agreeab;-  ' 

to  the  laws  and  usages  now  in  for«©  ar^'i  practice.,' 
Sew  Revised  Code,  c.  32,  g§  y 

7,  The  Courts  of  Pleas  and  Quarter  Sesnion-i  a 
held  four  times  in  each  year,  in  the  several  ;ovin 
of  the  state,  by  three  or  more  justices  of  the  '^'  ^  • 
who  ''shall  take  cognizanc*  of.  and  have  full  po-w-jr 
and  authority  and  originul  jurisdictinn  to  hear,  try, 
and  determine,  all  causes  of  a  civil  nature  whatever 
at  he  common  law  within  their  resp*  cti^e  counties, 
where  the  original  jurisdiction  is  not  by  t^ituto 
confined  to  one  or  more  magistrates  out  of  couri,  or 
the  supreme  or  superi  ir  court?;  ol  all  j)ca'iltit\*( 
to  ;he  amount  of  one  hundred  dollars  and  uowards 
incurred  by  violation  o  the  penal  statutes  of  tho 
state  or  of  laws  passed  V  •  the  cougres;:,  of  the  United 
States,  where  by  sucV  law  jurisdiction  iS  given 
to  the  courts  of  the  .  everal  states ;  of  suits  for 
dower,  partition,  filial  portions,  legacies,  and  dis- 
tributive shares  of  intestates  estates,  anc  al!  otfcor 
matters  relating  there  to;  to  try,  hear,  ind  deter- 
mine all  matters  relating  to  orjihans,  idists,  and  lu- 
,  natics,  and  the  man  jgcment  of  their  estates,  in 
1  like  manner  as  cour.',>  of  cii.''  •  lurisdiotion 
in  tuch  cases;  to  inquiu'  «nd  det»>r- 

•  mino  all  petit  larcc  ies.  as..        ;  n      atteries,  all 
trespasses  and  breaches  of  thti  ;ie«ce,*nd  all  other 
I  crimes  and  misdemeanors  the  judgnrfnt  upon  con- 
iviction  whereof   1  •*11  not  extend      ■  nb,  or 

;  those  only  w "  iginal 
n  excln.sively  t  „  justice 
f  thi-  peace,  to  i'«  superior  or  tc 


t  member:  except 
^  jurisdiction  is  g 
or  to  two  justic< 
'  the  jiupreme  oo? 


Ik 


NOSOCOMI 


235 


NOT  PROVEN 


In  some  of  the  counties  jury  trials  are  abolished 
by  special  acts  of  the  legislature,  and  in  others  such 
trials  are  had  twice  only  in  the  year. 

8.  Justices  of  the  Pence  are  recommended  to  the 
govern ->r  by  the  general  assembly,  who  hold  office 
during  good  behavior.  They  have  jurisdiction, 
singly,  of  all  debts  and  demands  due  on  bonds, 
notes,  or  liquidated  accounts,  stated  in  writing  and 
signed  by  the  party  owing  the  same,  and  all  bal- 
ances due  on  suvh  debts  and  demands  where  the 
principal  of  such  debt  or  demand,  or  balance  diie 
thereon,  does  not  exceed  one  hundred  dollars, 
though  the  principal  and  interest  thereof  may  ex- 
ceed that  sum  ;  and  all  judgments  rendered  on  such 
debts  and  demands  where  the  principal  of  the  judg- 
ment may  not  exceed  one  hundred  dollars,  though 
the  principal,  interest,  and  cost  may  exceed  tliat 
Bum ;  and  all  debts  and  demands  of  sixty  dollars 
and  under  due  on  any  parol  agreement,  or  for 
goods,  wares,  and  merchandise  sold  and  delivered, 
or  for  work  or  labor  done,  or  for  specific  articles, 
and  all  balances  of  sixty  dollars  and  under  due  on 
Buch  last-mentioned  debts  or  demands,  and  all 
judgments  rendered  thereon  where  the  principal  of 
the  judgment  may  not  exceed  sixty  dollars,  though 
the  principal,  interest,  and  cost  may  exceed  that 
sum,  and  all  forfeitures  or  penalties  not  exceeding 
one  hundred  dollars,"  etc.  See  Revised  Code,  c. 
31,  i  6. 

NOSOCOMI.  In  Civil  Law.  Persons 
who  have  the  management  and  care  of  hos- 
pitals for  paupers.  Clef  Lois  Rom.  mot  Ad- 
ministrateurs. 

NOT  FOUND.  Words  indorsed  on  a 
bill  of  indictment  by  a  grand  jury,  when 
they  have  not  sufficient  evidence  to  find  a 
true  bill.    See  Ignoramus. 

NOT  GUILTY.    In  Pleading.  The 

general  issue  in  several  sorts  of  actions. 

2.  In  trespass,  its  form  is  as  follows:  "And 
the  said  C  D,  by  E  F,  his  attorney,  comes 
and  defends  the  force  and  injury,  when,  etc., 
and  says  that  he  is  not  guilty  of  the  said 
trespasses  above  laid  to  his  charge,  or  any 
part  thereof,  in  the  manner  and  form  as  the 
said  A  B  hath  above  complained.  And  of  this 
the  said  C  D  puts  himself  upon  the  country.'' 

3.  Under  this  issue  the  defendant  may 
give  in  evidence  any  matter  which  directly 
controverts  the  truth  of  any  allegation,  which 
the  plaintiff  on  such  general  issue  will  be 
bound  to  prove,  1  Bos.  &  P.  213 ;  and  no 
person  is  bound  to  justify  w^ho  is  not  prima 
facie  a  trespasser.  2  Bos.  &  P.  359 ;  2 
Saund.  284  d.  For  example,  the  plea  of  not 
guilty  is  proper  in  trespass  to  persons,  if  the 
defendant  have  committed  no  assault,  battery, 
or  imprisonment,  etc. ;  and  in  trespass  to 
'personal  property,  if  the  plaintiff  had  no 
property  in  the  goods,  or  the  defendant  were 
not  guilty  of  taking  them,  etc. ;  and  in  tres- 
pass to  real  property,  this  plea  not  only  puts 
in  issue  the  fact  of  trespass,  etc.,  but  also 
the  title,  which,  whether  freehold  or  posses- 
sory in  the  defendant  or  a  person  under  whom 
he  claims,  may  be  given  in  evidence  under  it, 
which  matters  show  prima  facie  that  the 
right  of  possession,  which  is  necessary  in 
trespass,  is  not  in  the  plaintiff,  but  in  the 
defendant  or  the  person  under  whom  he 
justifies.    7  Term,  354 ;  8  id.  403 ;  Willes, 


222  ;  Stephen,  Plead.  178 ;  1  Chitty,  Plead. 
4'Jl,  A^l. 

4.  In  trespass  on  the  case  in  general,  the 
formula  is  as  follows:  "And  the  said  C  D, 
by  E  F,  his  attorney,  comes  and  defends  the 
wrong  and  injury,  when,  etc.,  and  says  that 
ho  is  not  guilty  of  the  premises  above  laid  to 
his  charge,  in  manner  and  form  as  the  said 
A  B  hath  above  complained.  And  of  this 
the  said  C  D  puts  himself  upon  the  country." 

5.  This,  it  will  be  observed,  is  a  mere 
traverse,  or  denial,  of  the  facts  alleged  in 
the  declaration,  and  therefore,  on  principle, 
should  be  applied  only  to  cases  in  which 
the  defence  rests  on  such  denial.  But  here  a 
relaxation  has  taken  place ;  for,  under  this 
plea,  a  defendant  is  permitted  not  only  to 
contest  the  truth  of  the  declaration,  but,  with 
some  exceptions,  to  prove  any  matter  of  de 
fence  that  tends  to  show  that  the  plaintiff 
has  no  cause  of  action,  though  such  matters 
be  in  confession  and  avoidance  of  the  declara- 
tion :  as,  for  example,  a  release  given,  or 
satisfaction  made.  Stephen,  Plead.  182, 183  ; 
1  Chitty,  Plead.  486. 

6.  In  trover.  It  is  not  usual  in  this  action 
to  plead  any  other  plea,  except  the  statute 
of  limitations  ;  and  a  release,  and  the  bank- 
ruptcy of  the  plaintiff,  may  be  given  in  evi- 
dence under  the  general  issue.    7  Term,  391. 

In  debt  on  a  judgment  suggesting  a  devas- 
tavit, an  executor  may  plead  not  guilty.  1 
Term,  462. 

In  criminal  cases,  when  the  defendant 
wishes  to  put  himself  on  his  trial,  he  pleads 
not  guilty.  This  plea  makes  it  incumbent 
upon  the  prosecutor  to  prove  every  fact  and 
circumstance  constituting  the  offence,  as 
stated  in  the  indictment,  information,  or 
complaint.  On  the  other  hand,  the  defend- 
ant may  give  in  evidence  under  this  plea 
not  only  every  thing  which  negatives  the 
allegations  in  the  indictment,  but  also  all 
matter  of  excuse  and  justification. 

NOT  POSSESSED.    In  Pleading.  A 

plea  sometimes  used  in  actions  of  trover, 
when  the  defendant  was  not  possessed  of  the 
goods  at  the  commencement  of  the  action.  3 
Mann.  &  G.  101,  103. 

NOT  PROVEN.  In  Scotch  Criminal 
Law.  It  is  a  peculiarity  of  the  Scotch  jury 
system  in  criminal  trials  that  it  admits  a  ver- 
dict of  not  proven,  corresponding  to  the  wo?* 
liquet  of  the  Roman  law.  The  legal  effect 
of  this  is  equivalent  to  not  guilty  ;  for  a  pri- 
soner in  whose  case  it  is  pronounced  cannot 
be  tried  again.  According  to  the  homely  but 
expressive  maxim  of  the  law,  no  man  can  be 
made  to  thole  an  assize  twice.  But,  although 
the  verdict  of  not  proven  is  so  far  tantamount 
to  an  acquittal  that  the  party  cannot  be 
tried  a  second  time,  it  falls  very  far  short  of 
it  with  regard  to  the  effect  upon  hi-s  reputa- 
tion and  character.  He  goes  away  from  the 
bar  of  the  court  with  an  indelible  stigma 
upon  his  fame.  There  stands  recorded  against 
him  the  opinion  of  a  jury  that  the  evidence 
respecting  his  guilt  was  so  strong  that  they  did 


NOTAREUS  236  NOTICE 


not  dare  to  pronounce  a  verdict  of  acquittal. 
So  that  many  of  the  evil  consequences  of  a 
conviction  follow,  although  the  jury  refuse 
to  convict.  When  Sir  Nicholas  Throckmorton 
was  tried  and  acquitted  by  an  English  jury 
in  1554,  he  said,  '*It  is  better  to  be  tried 
than  to  live  suspected."  But  in  Scotland 
a  man  may  be  not  only  tried,  but  acquitted, 
and  yet  live  suspected,  owing  to  the  sinister 
influence  of  a  verdict  of  not  proven.  For- 
syth, Hist.  Trial  by  Jury,  334-339. 

NOTARIUS.    In  Civil  Law.  One  who 

took  notes  or  draughts  in  short-hand  of  what 
was  said  by  another,  or  of  proceedings  in  the 
senate  or  in  a  court.  One  who  draughted 
written  instruments,  wills,  conveyances,  etc. 
Vicat,  Voc.  Jur. ;  Calvinus,  Lex. 

In  English  Law.  A  notary.  Law  Fr.  & 
Lat.  Diet. ;  Cowel. 

NOTARY,  NOTARY  PUBLIC.  An 

officer  appointed  by  the  executive  or  other 
appointing  power,  under  the  laws  of  different 
states. 

2.  Notaries  are  of  ancient  origin  :  they 
existed  in  Rome  during  the  republic,  and 
were  called  tabelliones  forenses,  or  personce 
piiblicce.  Their  employment  consisted  in  the 
drawing  up  of  legal  documents.  They  exist 
in  all  the  countries  of  Europe,  and  as  early 
as  A.D.  803  were  appointed  by  the  Frankish 
kings  and  the  popes.  Notaries  in  England 
are  appointed  by  the  archbishop  of  Canter- 
bury. 25  Hen.  VIII.  c.  21,  ^  4.  They  are  offi- 
cers of  the  civil  and  canon  law. 

3.  Their  duties  differ  somewhat  in  the 
different  states,  and  are  prescribed  by  statutes. 
They  are  generally  as  foUoAvs :  to  protest 
bills  of  exchange  and  draw  up  acts  of  honor ; 
to  authenticate  and  certify  copies  of  docu- 
ments ;  to  receive  the  affidavits  of  mariners 
and  draw  up  protests  relating  to  the  same ; 
to  attest  deeds  and  other  instruments,  and  to 
administer  oaths. 

By  act  of  congress,  Sept.  16, 1850,  notaries 
are  authorized  to  administer  oaths  and  take 
acknowledgments  in  all  cases  where  under 
the  laws  of  the  United  States  justices  of  the 
peace  were  formerly  authorized  to  act. 

4.  The  acts  of  notaries  are  respected  by 
the  custom  of  merchants  and  the  law  of 
nations.  Their  protest  of  a  bill  is  received 
as  evidence  in  the  courts  of  all  civilized 
countries.  Except  in  cases  of  protest  of  bills, 
the  signature  of  a  notary  to  an  instrument 
going  to  a  foreign  country  ought  to  be  au- 
thenticated by  the  consul  or  representative 
of  that  country. 

5.  The  notaries  of  England  have  always 
considered  themselves  authorized  to  adminis- 
ter oaths ;  and  the  act  5  &  6  Will.  IV.  has 
placed  it  beyond  dispute.  In  this  country 
they  do  not  exercise  the  power  unless  author- 
ized by  statute,  except  in  cases  where  the 
oath  is  to  be  used  out  of  the  state  or  in  the 
courts  of  the  United  States. 

A  notary  is  liable  for  any  damage  that 
may  arise  from  the  imperfect  discharge  of  his 
duty.  See,  generally,  G  Toullier,  211 ;  Burn, 


Eccl.  Law ;  2  Harr.  &  J.  Md.  396 ;  7  Vt. 
22;  8  Wheat.  326;  6  Serg.  &  R.  Penn. 
484 ;  1  Mo.  434 ;  Manual  for  Notaries ;  Sew 
ell,  Bank. 

NOTE  OF  A  PINE.  The  fourth  step 
of  the  proceedings  in  acknowledging  a  fine, 
which  is  only  an  abstract  of  the  writ  cf 
covenant  and  the  concord,  naming  the  par' 
ties,  the  parcel  of  land,  and  the  agreement, 
and  enrolled  of  record  in  the  proper  office.  2 ; 
Sharswood,  Blackst.  Comm.  351,  App.  n.  iv.  - 
g  3;  1  Stephen,  Comm.  518.  ; 

NOTE  OF  HAND.  A  popular  name  for 
a  promissory  note. 

NOTE  OR  MEMORANDUM.    An  in-: 

formal  note  or  abstract  of  a  transaction  made 
on  the  spot,  and  required  by  the  Statute  of 
Frauds. 

The  form  of  it  is  immaterial ;  but  it  must 
contain  the  essential  terms  of  the  contract 
expressed  with  such  a  degree  of  certainty 
that  it  may  be  understood  without  reference 
to  parol  evidence  to  show  intent  of  parties. 
Browne,  Stat,  of  Frauds,  353,  386,  and  cases 
cited  ;  43  Me.  158  ;  4  R.  1. 14  ;  14  N.  Y.  584 ;' 
1  E.  D.  Smith,  N.  Y.  144 ;  2  id.  93  ;  31  Miss. 
17  ;  11  Cush.  Mass.  127  ;  9  Rich.  So.  C.  215 ; 
10  id.  60  ;  23  Mo.  423  ;  17  111.  354 ;  3  Iowa, 
430.  In  some  states,  and  in  England,  the  con- 
sideration need  not  be  stated  in  the  note  or 
memorandum.  5  East,  10  ;  4  Barnew.  &  Aid. 
595  ;  5  Cranch,  142 ;  17  Mass.  122 ;  6  Conn. 
81.    See  Browne,  Stat,  of  Frauds. 

NOTE  OF  PROTEST.  A  note  or 
minute  of  the  protest,  made  by  the  notary,  at 
time  of  protest,  on  the  bill,  to  be  completed  or 
filled  out  at  his  leisure.  Byles,  Bills,  5th  ed.  9. 

NOTES.    See  Judge's  Notes  ;  Minutes. 

NOTICE.  The  information  given  of  some 
act  done,  or  the  interpellation  by  which 
some  act  is  required  to  be  done.  Knowledge: 
as,  A  had  notice  that  B  was  a  slave.  5  How. 
216;  7  Penn.  Law  Journ.  119. 

Actual  notice  exists  when  knowledge  is 
actually  brought  home  to  the  party  to  be 
affected  by  it. 

Constructive  notice  exists  when  the  party, 
by  any  circumstance  whatever,  is  put  upon 
inquiry,  or  when  certain  acts  have  been  done 
which  the  party  interested  is  presumed  to 
have  knowledge  of  on  grounds  of  public 
policy.  2  Mas.  C.  C.  531 ;  14  Pick.  Mass. 
224;  4  N.  H.  397  ;  14  Serg.,  &  R.  Penn.  333. 
The  recording  a  deed,  23  Mo.  237  ;  25  Barb. 
N.  Y.  635 ;  28  Miss.  354 ;  4  Kent,  Comm. 
182,  n.,  an  advertisement  in  a  newspaper,  when 
authorized  by  statute  as  a  part  of  the  process, 
public  acts  oigo\QvnmQni,  and  lis  pendens,  fur- 
nish constructive  notice.  Notice  to  an  agent 
is,  in  general,  notice  to  the  principal.  25  Conn. 
444  ;  10  Rich.  So.  C.  293. 

^8.  The  giving  notice  in  certain  cases,  ob- 
viously, is  in  the  nature  of  a  condition  prece- 
dent to  the  right  to  call  on  the  other  party  for 
the  performance  of  his  engagement,  whether 
his  contract  were  express  or  implied.  Thus, 
in  the  familiar  instance  of  bills  of  exchange 


NOTICE,  AVERMENT  OF 


237 


NOTICE  OF  DISHONOR 


nnd  promissory  notes,  the  implied  contract 
pf  an  indorser  is  that  he  will  pay  the  bill  or 
note  provided  it  be  not  paid,  on  presentment 
at  maturity,  by  the  acceptor  or  maker  (being 
the  party  prima/- <7f/  liable),  and  provided  that 
he  (the  indorser)  has  due  notice  of  the  dis- 
honor, and  without  which  he  is  discharged 
from  all  liability:  consequently,  it  is  essential 
for  the  holder  to  be  prepared  to  prove  affirma- 
tively that  such  notice  was  given,  or  some 
facts  dispensing  with  such  notice.  1  Chitty, 
Pract.  49G. 

3,  Whenever  the  defendant's  liability  to 
perform  an  act  depends  on  another  occur- 
rence which  is  best  known  to  the  plaintif, 
and  of  which  the  defendant  is  not  legally 
bound  to  take  notice,  the  plaintiff  must  prove 
that  due  notice  was  in  fact  given.  So,  in  cases 
of  insurances  on  ships,  a  noticeof  abandonment 
is  frequently  necessary  to  enable  the  assured 
plaintiff  to  proceed  as  for  a  total  loss  when 
something  remains  to  be  saved,  in  relation  to 
which,  upon  notice,  the  insurers  might  them- 
selves take  their  own  measures. 

Notice  may  be  written  or  oral,  in  many 
cases,  at  the  option  of  the  party  required  to 
give  it ;  but  written  notice  is  generally  pre- 
ferable, both  as  avoiding  doubt  and  ambi- 
guity in  its  terms,  and  as  admitting  more  easy 
and  exact  proof  of  delivery. 

NOTICE,  AVERMENT  OP.  In  Plead- 
ing. The  statement  in  a  pleading  that  no- 
tice has  been  given. 

2.  When  the  matter  alleged  in  the  plead- 
ing is  to  be  considered  as  lying  more  properly 
in  the  knowledge  of  the  plaintiff  than  of  the 
defendant,  then  the  declaration  ought  to  state 
that  the  defendant  had  notice  thereof:  as 
when  the  defendant  promised  to  give  the  plain 
tiff  as  much  for  a  commodity  a9  another  per 
son  had  given  or  should  give  for  the  like. 

3.  But  where  the  matter  does  not  lie  more 
properly  in  the  knowledge  of  the  plaintiff 
than  of  the  defendant,  notice  need  not  be 
averred.    I  Saund.  117,  n.  2;  2  id.  G2  a 
n.  4 ;  Freem.  285.    Therefore,  if  the  defend 
ant  contracted  to  do  a  thing  on  the  perform 
ance  of  an  act  by  a  stranger,  notice  need  not 
be  averred;  for  it  lies  in  the  defendant's  knoW' 
ledge  as  much  as  the  plaintiffs,  and  he  ought 
to  take  notice  of  it  at  his  peril.    Comyns,  Dig, 
Pleader  (C  75).    See  Comyns,  Dig.  Pleader 
(C  73,  74,  75) ;  Viner,  Abr.  iVo^<"ce;  Ilardr 
42 ;  5  Term,  G21. 

4.  The  omission  of  an  averment  of  notice, 
when  necessary,  will  be  fatal  on  demurrer  or 
judgment  by  default,  Croke  Jac  432;  but 
may  be  aided  by  verdict,  1  Strange,  214 ;  1 
Saund.  228  a;  unless  in  an'action  against  the 
drawer  of  a  bill,  when  the  omission  of  the 
averment  of  notice  of  non-payment  by  the 
acceptor  is  fatal,  even  after  verdict. 
679. 

NOTICE  OP  DISHONOR.  A  notice 
given  to  a  drawer  or  indorser  of  a  bill,  or  an 
indorser  of  a  negotiable  note,  by  a  subsequent 
party,  that  it  has  been  dishonored  either  by 
non-acceptance  in  the  case  of  a  bill,  or  by 


Dougl 


non-payment  in  the  case  of  an  accepted  bill 
or  a  note. 

"X,  The  notice  must  contain  a  description 
of  the  bill  or  note,  5  Cush.  Mass.  540 ;  14 
Conn.  302;  1  Fla.  301 ;  1  Wise.  204,  suffi- 
cient to  leave  no  doubt  in  the  mind  of  the  in- 
dorser, as  a  reasonable  man,  what  note  was 
ntended.  3  Mete.  Mass.  4'.)5  ;  5  Cush.  Mass. 
540 ;  7  Ala.  n.  s.  205  ;  12  N.  Y.  551 ;  19  id, 
18  ;  20  Me.  45  ;  11  Wheat.  431.  See  10  N. 
Y.  279;  llMec8.&W.  Exch.809;  5  Ilumphr. 
Tenn.  335.  As  to  what  is  a  mis-description, 
see  7  Exch.  578  ;  1  Mann.  &  G.  70  ;  11  Mees. 
&  W.  Exch.  809  ;  15  id.  231 ;  9  Q.  B.  609  ;  9 
Pet.  33  ;  11  Wheat.  431 ;  17  How.  600  ;  1  N. 
Y.  413  ;  7  id.  19  ;  13  Miss.  44 ;  19  id.  382 ;  2 
Mich.  238  ;  12  Mass.  6 ;  2  Penn.  St.  355  ;  14 
id.  483  ;  2  Ohio  St.  345. 

3,  It  must  also  contain  a  clear  statement 
of  the  dishonor  of  the  bill,  7  Bingh.  530;  1 
Bingh.  N.  c.  194 ;  3  id.  368 ;  2  Clark  &  F. 
Hou.  L.  93  ;  2  Mees.  &  W.  Exch.  799  ;  11  C. 
B.  1011 ;  3  Mete.  Mass.  495  ;  18  Conn.  301 ; 
and  something  more  than  the  mere  fact  of 
non-acceptance  or  non-payment  must  be 
tated,  3  Bingh.  n.  c.  088  ;  10  Ad.  &  E.  125 ; 
,  Carr.  &  P.  355 ;  2  Q.  B.  388  •„  14  Mees.  & 
W.  Exch.  44;  11  Wheat.  431  ;  3  Mete.  Mass. 
495  ;  9  id.  174  ;  5  Barb.  N.  Y.  490.;  1  Speers, 
So.  C.  244 ;  2  Ohio  St.  345  ;  3  Md.  202,  251 ; 

0  id.  5;  11  id.  148;  1  Litt.  Ky.  194;  2 
Hawks,  No.  C.  560 ;  5  How.  Miss.  552 ;  ex- 
cept in  some  cases,  5  Cush.  Mass.  540  ;  1  Md. 
59,  504  ;  4  id.  409,  as  to  the  effect  of  the  use 
of  the  word  protested.  11  Wheat.  431  ;  9  Pet. 
33  ;  7  Ala.  n.  s.  205  ;  2  Dougl.  Mich.  495  ; 

1  N.  Y.  413  ;  10  id.  279  ;  19  Me.  31 ;  23  id. 
392  ;  10  N.  H.  520  ;  9  Rob.  La.  101 ;  14  Conn. 
302  ;  5  Cush.  Mass.  540  ;  1  Wise.  204 ;  4  N. 
J.  71.  See  some  cases  where  the  notice  was 
held  sufficient,  2  Mees.  &  W.  Exch.  109,  799; 
6  id.  400;  7  id.  515  ;  14  id.  7,  , 44;  6  Ad.  & 
E.  499  ;  10  id.  131 ;  2  Q.  B.  421 ;  1  Ell.  &B. 
801 ;  5  C.  B.  087  ;  1  Hurlst.  &  W.  Exch.  3 ; 
and  others  where  it  was  held  insufficient.  2 
Exch.  719  ;  1  Ell.  &  B.  SOI ;  4  Barnew.  &  C. 
.339;  10  Ad.  &  E.  125;  7  Bingh.  530;  3 
Bingh.  N.  c.  088 ;  8  Carr.  &  P.  355  ;  2  Q.  B. 
388  ;  1  Mann.  &  G.  76. 

As  to  whether  there  must  be  a  statement 
that  the  party  to  whom  the  notice  is  sent  is 
looked  to  for  payment,  see  1  Term,  109 ;  11 
Mees.  &  W.  Exch.  372;  2  Exch.  719  ;  2  Q. 

B.  388,  419  ;  14  id.  200  ;  7  C.  B.  400  ;  4  Dowl. 
&  L.  744. 

4.  The  notice  is  generally  in  writing,  but 
may  be  oral.  4  Wend.  N.  Y.  500  ;  10  Barb. 
N.  'Y.  140  ;  3  Mete.  Mass.  495  ;  8  Mo.  336  ;  7 

C.  B.  400  ;  11  id.  1011 ;  2  Mees.  &  W.  Exch. 
348  ;  8  Carr.  &  P.  355  ;  1  Hurlst.  &  AV.  Exch. 
3.  It  need  not  be  personally  served,  but  may 
be  sent  by  mail,  7  East,  385  ;  0  Wheat.  102 ; 
0  Mass.  310  ;  14  id.  110  ;  1  Pick.  Mass.  401; 
28  Vt.  316  ;  15  Md.  285  ;  5  Penn.  St.  178  ;  1 
Conn.  329  ;  2  R.  I.  407  ;  23  Mo.  213  ;  13  N. 
Y.  549 ;  otherwise,  perhaps,  if  the  parties  live 
in  the  same  town,  see  5  Mete.  Mass.  352;  10 
Johns.  N.  Y.  490 ;  20  id.  372 :  3  McLean,  C. 
C.  96 ;  1  Conn.  307  ;  28  N.  H.  302 ;  15  Me 


NOTICE  OF  DISHONOR 


238 


NOTICE  TO  QUIT 


141  ;  15  M  l.  285  ;  3  Rob.  La.  261 ;  6  Blackf. 
Ind.  312 ,  3  Jones,  No.  C.  387  ;  3  Ala.  n.  s. 
34;  3  Han-.  Del.  419;  8  Ohio,  507  ;  1  Par- 
sons, Notes  &  B.  482,  r\oteJ;  or  left  in  the 
care  of  a  suitable  person,  representing  the 
party  to  be  notified.  15  Me.  207  ;  2  Johns. 
N.Y.274;  2(1  Miss.  332;  16  Pick.  Mass. 392; 

14  La.  494:  19  111.  598;  Holt,  476. 

5.  It  should  be  sent  to  the  place  where  it 
will  most  probably  find  the  party  to  be  noti- 
fied most  promptly,  6  Mete.  Mass.  1,  7;  1 
Pet.  578  :  2  id.  543,  whether  the  place  of 
business,  1  Pet.  578 ;  3  McLean,  C.  C.  96  ;  5 
Mete.  Mass.  212,  352;  11  Johns.  N.  Y.  231; 

15  Me.  139  ;  8  Watts  &  S.  Penn.  138  ;  5  Penn. 
St.  178;  3  Harr.  Del.  419 ;  6  Blackf.  Ind.  312; 
6  Humphr.  Ten n.  403  ;  3  Rob.  La.  261 ;  1 
La.  Ann.  95  ;  1  Maule  &  S.  545,  or  place  of 
residence.    4  AVash.  C.  C.  464  ;  28  Vt.  316  ; 

1  Conn.  329.  When  sent  by  mail,  it  should 
be  to  the  post-ofiice  to  which  the  party  usually 
resorts.  2  Pet.  543  ;  4  Wend.  N.  Y.  328  ;  5 
Den.  N.  Y.  329  ;  5  Penn.  St.  160  ;  3  McLean, 
C.  C.  91  ;  15  La.  38  ;  4  Humphr.  Tenn.  86; 
3  Ga.  486  ;  11  Md.  486  ;  3  Ohio,  307  ;  8  Mo. 
443 ;  6  Mete.  Mass.  106 ;  6  Harr.  &  J.  Md. 
172.  See  2  Pet.  543  ;  8  Cush.  Mass.  425  ;  2 
Ilalst.  N.  J.  130. 

Every  person  who,  by  and  immediately 
upon  the  dishonor  of  the  note  or  bill,  and  only 
upon  such  dishonor,  becomes  liable  to  an  ac- 
tion either  on  the  paper  or  on  the  considera- 
tion for  which  the  paper  was  given,  is  entitled 
to  immediate  notice.  1  Parsons,  Notes  &  B. 
499.  The  holder  need  give  notice  only  to  the 
parties  and  to  the  indorser  whom  he  intends 
to  hold  liable.  25  Barb.  N.  Y.  138  ;  2  Johns. 
N.  Y.  204 ;  19  Me.  62 ;  16  Mart.  La.  220 ;  11 
La.  Ann.  137  ;  1  Ohio  St.  206  ;  1  Rich.  So.  C. 
369 ;  5  Miss.  272 ;  17  Ala.  258 ;  15  Mees.  & 
W.  Exch.  231. 

6.  Notice  may  be  given  by  any  party  to  a 
note  or  bill  not  primarily  liable  thereon  as 
regards  third  parties,  and  not  discharged 
from  liability  on  it  at  the  time  notice  is  given. 
8  Mo.  336;  23  id.  213;  16  Serg.  &  R. 
Penn.  157  ;  3  Dan.  Ky.  126  ;  5  Miss.  272;  17 
Ala.  258 ;  3  Wend.  N.  Y.  173 ;  25  Barb.  N. 
Y.  138  :  15  Md.  150  ;  15  La.  321 ;  14  Mass. 
116  ;  2  Campb.  373  ;  4  id.  87  ;  5  Maule  &  S. 
68 ;  3  Ad.  &  E.  193  ;  9  C.  B.  46  ;  13  id.  249  ; 
15  Mees.  &  W.  Exch.  231.  It  may  be  by  the 
holder's  agent,  4  How.  336  ;  11  Rob.  La.  454  ; 

8  Mo.  704 ;  7  Ala.  n.  s.  205  ;  4  Dowl.  &  L. 
744;  15  Mees.  &  W.  Exch.  231 ;  an  indorsee 
for  collection,  2  Hall,  N.  Y.  112;  3  N.  Y. 
243;  a  notary,  see  2  How.  66;  the  adminis- 
trator or  executor  of  a  deceased  person. 
Story,  Prom.  Notes,  ^  304. 

The  notice  must  be  forwarded  as  early  as 
by  a  mail  of  the  day  after  the  dishonor  which 
does  not  start  at  an  unreasonably  early  hour. 

9  N.  II.  558  ;  2  Harr.  N.  J.  587  ;  24  Me.  458  ; 

2  R.  1.  437  ;  24  Penn.  St.  148 ;  4  N.  J.  71 ;  1 
Ohio  St.  200;  6  id.  542;  9  Miss.  261,  644; 
11  id.  445  ;  13  Ark.  645;  14  id.  230  ;  7  Gill 
&J.  Md.  78;  4  Wash.  C.C.  464;  2  Stor.  C. 
C.  416;  4  Bingh.  715. 

Consult  Bayley,  Byles,  Chitty,  Story,  on 


Bills  of  Exchange  ;  Story,  Promissory  Notes,  1 
Parsons,  Notes  &  Bills. 

NOTICE  TO  PLEAD.  Written  notice 
to  defendant,  requiring  him  to  plead  Avithin  a 
certain  time.  It  must  always  be  given  before 
plaintilBF  can  sign  judgment  for  want  of  a  nlea. 
1  Chitty,  Archb.  Pract.  Prent.  ed.  221.  No- 
tice to  plead,  indorsed  on  the  declaration  or 
delivered  separately,  is  sufficient  without  le- 
manding  plea  or  rule  to  plead,  in  England^  by 
statute.    See  3  Chitty,  Stat.  515. 

NOTICE  or  PROTEST.  A  notice 
given  to  a  drawer  or  indorser  of  a  bill,  or  to 
an  indorser  of  a  note,  by  a  prior  party,  that 
the  bill  has  been  protested  for  refusal  of  pay- 
ment or  acceptance.  See  Notice  of  Dis- 
honor. 

NOTICE  TO  PRODUCE  PAPERS 

In  Practice.  When  it  is  intended  to  give 
secondary  evidence  of  a  written  instrument 
or  paper  which  is  in  the  possession  of  the  op- 
posite party,  it  is,  in  general,  requisite  to  give 
him  notice  to  produce  the  same  on  the  trial 
of  the  cause,  before  such  secondary  evidence 
can  be  admitted. 

2.  To  this  general  rule  there  are  some  ex- 
ceptions: Jirst,  in  cases  where,  from  the  na- 
ture of  the  proceedings,  the  party  in  posses- 
sion of  the  instrument  has  notice  that  he  is 
charged  with  the  possession  of  it,  as  in  the 
case  of  trover  for  a  bond,  14  East,  274 ;  4 
Taunt.  865  ;  6  Serg.  &  R.  Penn.  154 ;  4  Wend. 
N.  Y.  626  ;  i  Campb.  143  ;  second,  where  the 
party  in  possession  has  obtained  the  instru- 
ment by  fraud.  4  Esp.  256.  See  1  Phillipps, 
Ev.  425;  1  Starkie,  Ev.  362;  Roscoe,  Civ. 
Ev.  4. 

3.  In  general,  a  notice  to  produce  papers 
ought  to  be  given  in  writing,  and  state  the 
title  of  the  cause  in  which  it  is  proposed  to 
use  the  papers  or  instruments  required.  2 
Stark.  19.  It  seems,  however,  that  the  notice 
may  be  by  parol.  1  Campb.  440.  It  must 
describe  with  sufficient  certainty  the  papers 
or  instruments  called  for,  and  must  not  be 
too  general  and  by  that  means  be  uncertain. 
Ry.  &  M.  341 ;  M'Clel.  &  Y.  Exch.  139. 

4.  The  notice  may  be  given  to  the  party 
himself,  or  to  his  attorney.  2  Term,  203,  n. ; 
3  id.  306  ;  Ry.  &  M.  327  ;  1  Mood.  &  M.  96. 

The  notice  must  be  served  a  reasonable 
time  before  trial,  so  as  to  afford  an  oppor- 
tunity to  the  party  to  search  for  and  produce 
the  instrument  cr  paper  in  question.  1  Stark. 
283 ;  Ry.  &  M.  47,  327 ;  1  Mood.  &  M.  96, 
335,  n. 

5.  When  a  notice  to  produce  an  instru- 
ment or  paper  in  the  cause  has  been  proved, 
and  it  is  also  proved  that  such  paper  or 
instrument  was,  at  the  time  of  the  notice, 
in  the  hands  of  the  party  or  his  privy,  and 
upon  request  in  court  he  refuses  or  neglects 
to  produce  it,  the  party  having  given  such 
notice  and  made  such  proof  will  be  entitled 
to  give  secondary  evidence  of  such  paper  or 
instrument  thus  withheld. 

NOTICE  TO  QUIT.  A  request  from  a 
landlord  to  his  tenant  to  quit  the  premises 


NOTICE  TO  QUIT 


239 


NOTICE  TO  QUIT 


leased,  and  to  give  possession  of  the  same  to 
him,  the  landlord,  at  a  time  therein  men- 
tioned. 3  Wend.  N.  Y.  337,  357 ;  7  Ilalst. 
N.  J.  99. 

1  The  form  of  the  notice.    The  notice  or 

demand  of  possession  should  contain  a  re- 
quest from  the  landlord  to  the  tenant  or  per- 
son in  possession  to  quit  the  premises  vs^hich 
he  holds  from  the  landlord  (which  premises 
ought  to  be  particularly  described,  as  being 
situate  in  the  street  and  city  or  place,  or  town- 
ship and  county),  and  to  deliver  them  to  him 
on  or  before  a  day  certain, — generally,  when 
the  lease  is  for  a  year,  the  same  day  of  the 
year  on  which  the  lease  commences.  But 
where  there  is  some  doubt  as  to  the  time 
when  the  lease  is  to  expire,  it  is  proper  to 
add,  "or  at  the  expiration  of  the  current 
year  of  your  tenancy."  2  Esp.  589.  It  should 
be  dated,  signed  by  the  landlord  himself,  or  by 
some  person  in  his  name,  who  has  been  author- 
ized by  him,  and  directed  to  the  tenant.  The 
notice  must  include  all  the  premises  under 
the  same  demise ;  for  the  landlord  cannot 
determine  the  tenancy  as  to  part  of  the  pre- 
mises demised  and  continue  it  as  to  the  resi- 
due. For  the  purpose  of  bringing  an  eject- 
ment, it  is  not  necessary  that  the  notice  should 
be  in  writing,  except  when  required  to  be 
so  under  an  express  agreement  between  the 
parties.  Comyns,  Dig.  Estate  by  Grant  (G 
11,  n.  p.);  2Campb.  96;  2  Mann.  &  R.  439. 
But  it  is  the  general  and  safest  practice  to 
give  written  notices ;  and  it  is  a  precaution 
which  should  always,  when  possible,  be  ob- 
served, as  it  prevents  mistakes  and  renders 
the  evidence  certain  and  correct.  Care  should 
be  taken  that  the  words  of  a  notice  be  clear 
and  decisive,  without  ambiguity  or  giving 
an  alternative  to  the  tenant ;  for  if  it  be 
really  ambiguous  or  optional  it  will  be  in- 
valid.   Adams,  Ej.  122. 

3.  As  to  the  person  hy  whom  the  notice  is  to 
he  given.  It  must  be  given  by  the  person 
interested  in  the  premises,  or  his  agent  pro- 
perly appointed.  Adams,  Ej.  120.  See  3  C. 
B.  215.  As  the  tenant  is  to  act  upon  the 
notice  at  the  time  it  is  given  to  him,  it  is 
necessary  that  it  should  be  such  as  he  may 
act  upon  with  security,  and  should,  therefore, 
be  binding  upon  all  the  parties  concerned  at 
the  time  it  is  given.  Where,  therefore,  several 
persons  are  jointly  interested  in  the  pre- 
mises, they  need  not  all  join  in  the  notice ; 
but,  if  any  of  them  be  not  a  party  at  the 
time,  no  subsequent  ratification  by  him  will 
be  sufficient  by  relation  to  render  the  notice 
valid.  But  see  5  East,  461;  2  Phillipps, 
Ev.  184;  2  Esp.  677;  1  Barnew.  &  Ad. 
135 ;  7  Mees.  &  W.  Exch.  139.  But  if  the 
notice  be  given  by  an  agent,  it  is  sufficient 
if  his  authority  is  afterwards  recognized.  3 
Barnew.  &  Aid.  689.  But  see  10  Barnew. 
&  C.  621. 

4.  As  to  the  person  to  ivhom  the  notice 
should  be  given.  When  the  relation  of  land- 
lord and  tenant  subsists,  difficulties  can  sel- 
doin  occur  as  to  the  party  upon  whom  the 
notice  should  be  served.    It  should  invari- 


ably be  given  to  the  tenant  of  the  party 
serving  the  notice  notwithstanding  a  part 
may  have  been  underlet  or  the  whole  of  the 
premises  may  have  been  assigned,  Adams, 
Ej.  119  ;  5  Bos.  &  P.  330;  14  East,  234;  6 
Barnew.  &  C.  41 ;  unless,  perhaps,  the  lessor 
has  recognized  the  sub-tenant  as  his  tenant. 
10  Johns.  N.  Y.  270.  When  the  premises 
are  in  possession  of  two  or  more  as  joint  ten- 
ants or  tenants  in  common,  the  notice  should 
be  to  all.  A  notice  addressed  to  all  and 
served  upon  one  only  will,  however,  be  a 
good  notice.    Adams,  Ej.  123. 

5.  As  to  the  mode  of  serving  the  notice. 
The  person  about  serving  the  notice  should 
make  two  copies  of  it,  both  signed  by  the 
proper  person,  then  procure  one  or  more  re- 
spectable persons  for  witnesses,  to  M'hom  he 
should  show  the  copies,  who,  upon  compar- 
ing them  and  finding  them  alike,  are  to  go 
with  the  person  who  is  to  serve  the  notice. 
The  person  serving  the  notice  then,  in  their 
presence,  should  deliver  one  of  these  copies 
to  the  tenant  personally,  or  to  one  of  his 
family,  at  his  usual  place  of  abode,  although 
the  same  be  not  upon  the  demised  premises, 
2  Phillipps,  Ev.  185,  or  serve  it  upon  the 
person  in  possession ;  and  where  the  tenant 
is  not  in  possession,  a  copy  may  be  served 
on  him,  if  he  can  be  found,  and  another 
on  the  person  in  possession.  The  witnesses 
should  then,  for  the  sake  of  security,  sign 
their  names  on  the  back  of  the  copy  of  the 
notice  retained,  or  otherwise  mark  it  so  as  to 
identify  it;  and  they  should  also  state  the 
manner  in  which  the  notice  was  served.  In 
the  case  of  a  joint  demise  to  two  defendants, 
of  whom  one  alone  resided  upon  the  premises, 
proof  of  the  service  of  the  notice  upon  him 
has  been  held  to  be  sufficient  ground  for  the 
jury  to  presume  that  the  notice  so  served 
upon  the  premises  has  reached  the  other  who 
resided  in  another  place.  7  East,  553  ;  5  Esp. 
196. 

6.  At  what  time  it  must  be  served.  It  must 
be  given  six  months  before  the  expiration  of 
the  lease  at  common  law.  1  Term,  159 ;  3 
id.  13  ;  8  Cow.  N.  Y.  13  ;  1  Vt.  311 ;  1  Dan. 
Ky.  30 ;  5  Yerg.  Tenn.  431 ;  4  Ired.  No.  C. 
291  ;  17  Mass.  287 ;  see  2  Pick.  Mass.  70,  71 ; 
8  Serg.  &  R.  Penn.  458 ;  2  Rich.  So.  C.  346 ; 
and  three  months  is  the  common  time  under 
statutory  regulations  ;  and  where  the  letting 
is  for  a  shorter  period  the  length  of  notice  is 
regulated  by  the  time  of  letting.  6  Bingh. 
362  ;  5  Cush.  Mass.  563  ;  23  Wend.  N.  Y.  616. 
Difficulties  sometimes  arise  as  to  the  period 
of  the  commencement  of  the  tenancy;  and 
when  a  regular  notice  to  quit  on  any  particu- 
lar day  is  given,  and  the  time  when  the  term 
began  is  unknown,  the  effect  of  such  notice, 
as  to  its  being  evidence  or  not  of  the  com- 
mencement of  the  tenancy,  will  depend  upon 
the  particular  circumstances  of  its  delivery: 
if  the  tenant,  having  been  applied  to  by  his 
landlord  respecting  the  time  of  the  com- 
mencement of  the  tenancy,  has  informed 
him  it  began  on  a  certain  day,  and  in  conse- 
quence of  such  information  a  notice  to  q  i?t 


NOTING 


240 


NOVA  SCOTIA 


on  that  day  is  given  at  a  subsequent  period, 
the  tenant  is  concluded  by  his  act,  and  will 
not  be  permitted  to  prove  that  in  point  of 
fact  the  tenancy  has  a  different  commence- 
ment ;  nor  is  it  material  whether  the  inform- 
ation be  the  result  of  design  or  ignorance, 
as  the  landlord  is  in  both  instances  equally 
led  into  error.  Adams,  Ej.  130  ;  2  Esp.  635  ; 
2  Phillipps,  Ev.  186.  In  like  manner,  if  the 
tenant  at  the  time  of  delivery  of  the  notice 
assent  to  the  terms  of  it,  it  will  waive  any 
irregularity  as  to  the  period  of  its  expira- 
tion ;  but  such  assent  must  be  strictly  proved. 
4  Term,  361 ;  2  Phillipps,  Ev.  183.  When 
the  landlord  is  ignorant  of  the  time  when  the 
term  commenced,  a  notice  to  quit  may  be 
given  not  specifying  any  particular  day,  but 
ordering  the  tenant  in  general  terms  to  quit 
and  deliver  up  the  possession  of  the  pre- 
mises at  the  end  of  the  current  year  of  his 
tenancy  thereof,  which  shall  expire  next  after 
the  end  of  three  months  from  the  date  of  the 
notice.    See  2  Esp.  C.  589. 

T.  WJiai  will  amount  to  a  waiver  of  the  no- 
tice. The  acceptance  of  rent  accruing  subse- 
quently to  the  expiration  of  the  notice  is  the 
most  usual  means  by  which  a  waiver  of  it 
maybe  produced;  but  the  acceptance  of  such 
rent  is  open  to  explanation  ;  and  it  is  the  pro- 
vince of  the  jury  to  decide  with  what  views 
and  under  what  circumstances  the  rent  is  paid 
and  received.  Adams,  Ej.  139 ;  2  Campb.  387. 
If  the  money  be  taken  with  an  express  de- 
claration that  the  notice  is  not  thereby  in- 
tended to  be  waived,  or  accompanied  by  other 
circumstances  which  may  induce  an  opinion 
that  the  landlord  did  not  intend  to  continue 
the  tenancy,  no  waiver  will  be  produced  by 
the  acceptance:  the  rent  must  be  paid  and 
received  as  rent,  or  the  notice  will  remain  in 
force.  Cowp.  243.  The  notice  may  also  be 
waived  by  other  acts  of  the  landlord ;  but 
they  are  generally  open  to  explanation,  and 
the  particular  act  will  or  will  not  be  a  waiver 
of  the  notice,  according  to  the  circumstances 
which  attend  it.  2  East,  236  ;  10  id.  13  ;  1 
Term,  53.  It  has  been  held  that  a  notice  to 
quit  at  the  end  of  a  certain  year  is  not  waived 
by  the  landlord's  permitting  the  tenant  to  re- 
main in  possession  an  entire  year  after  the 
expiration  of  the  notice,  notwithstanding  the 
tenant  held  by  an  improving  lease, — that  is, 
to  clear  and  fence  the  land  and  pay  the 
taxes.  1  Binn.  Penn.  333.  In  cases,  how- 
ever, where  the  act  of  the  landlord  cannot 
be  qualified,  but  must  of  necessity  be  taken 
as  a  confirmation  of  the  tenancy,  as  if  he 
distrain  for  rent  accruing  after  the  expira- 
tion of  the  notice,  or  recover  in  an  action  for 
use  and  ocupation,  the  notice  of  course  will 
be  waived.  Ad.ams,  Ej.  144;  1  II.  Blackst. 
311;  6  Term,  219;  19  Wend.  N.  Y.  391.  See 
13  C.  B.  178. 

NOTING.  A  term  denoting  the  act  of  a 
notary  in  minuting  on  a  bill  of  exchange, 
after  it  has  been  presented  for  acceptance  or 
payment,  the  initials  of  his  name,  the  date 
nf  the  day,  month,  and  year  when  such  pre- 


sentment was  made,  and  the  reason,  if  any^ 
has  been  assigned,  for  non-acceptance  or 
non-payment,  together  with  his  charge.  The 
noting  is  not  indispensable,  it  being  only  a 
part  of  the  protest:  it  will  not  supply  the 
protest.    4  Term,  175. 

NOTOUR.  In  Scotch  Law.  Open; 
notorious.  A  notour  bankrupt  is  a  debtor 
who,  being  under  diligence  by  horning  and 
caption  of  his  creditor,  retires  to  sanctuary, 
or  absconds,  or  defends  by  force,  and  is  after- 
wards found  insolvent  by  court  of  sessions. 
Bell,  Diet.  Act  of  1696,  c.  5  ;  Burton,  Law  of 
Scotl.  601. 

NOVA  CUSTOMA.  An  imposition  or 
duty.    See  Antiqua  Customa. 

NOVA  SCOTIA.  A  province  of  British 
N(jrth  America. 

It  includes  Nova  Scotia  proper,  a  peninsula  two 
hundred  and  eighty  miles  long  and  from  fifty  to  one 
hundred  miles  wide,  trending  E.N.B.,  and  con- 
nected with  the  province  of  New  Brunswick  by  an 
isthmus  only  eight  miles  wide  in  its  widest  part, 
and  the  island  of  Cape  Breton,  separated  from  the 
eastern  extremity  of  Nova  Scotia  proper  by  the 
Gut  of  Canso.  Nova  Scotia  proper  lies  between 
latitude  43^=  25'  and  46°  north,  and  long.  61'  and 
66°  30'  west. 

England  founds  her  claim  to  the  original  dis- 
covery  of  this  province  upon  the  patent  granted  by 
queen  Elizabeth  to  Sir  Humphrey  Gilbert,  a.d. 
1578. 

This  was  followed  by  De  la  Roche's  unfortunate 
attempt  to  colonize  the  Isle  of  Sable. 

De  Monts,  having  in  1603  received  an  appoint- 
ment from  Henri  IV.  of  France,  sailed  the  follow- 
ing year,  with  Champlain,  De  Poutrincourt,  and 
others. 

After  exploring  the  outer  shore  of  the  peninsula, 
having  entered  the  bay  of  Fundy,  De  Poutrincourt 
settled  Port  Royal,  a.d.  1605, — the  first  permanent 
settlement  in  British  North  America.  From  this 
time  the  English  began  to  assert  their  claims,  and 
colonists  from  Virginia  expelled  the  colony  of  De 
Monts. 

The  French  regained  possession,  but  only  to  be 
again  expelled  by  the  strong  force  sent  against 
them  by  Cromwell,  a.d.  1654. 

Thirteen  years  later,  England  ceded  the  province 
to  France  by  the  treaty  of  Breda,  a.d.  1667  ;  but  in 
the  new  wars  it  was  again  ravaged  by  the  English, 
who  reacquired  it  A.D.  1713;  and  in  1749  it  was 
formally  colonized  by  the  British  government. 

The  French  colonists,  having  resisted  and  joined 
the  Indians,  were  defeated  by  the  British,  and  their 
stronghold,  Louisburgh  on  Cape  Breton,  was  taken 
by  Massachusetts  colonists  acting  under  a  plan 
suggested  by  a  Massachusetts  lawyer. 

In  1758  the  province  received  its  constitution,  and 
in  1763  France,  by  the  treaty  of  Paria,  ceded  all 
rights  whatsoever. 

In  1784  New  Brunswick  and  Cape  Breton  were 
separated  from  Nova  Scotia;  but  Cape  Breton  was 
reattached  in  1819. 

The  Executive  Department. 
This  is  vested  in  the  Governor  and  his  Execu- 
tive Council,  together  known  as  "  The  Govern- 
ment." 

The  Gnveninr,  technically  called  "Lieutenant- 
Governor,"  represents  the  sovereign,  and  is  ap- 
pointed by  the  crown. 

He  is  captain-general  and  commander-in-chief 
within  and  for  the  province  of  Nova  Scotia,  com- 


NOVA  SCOTIA 


241 


NOVATION 


missions  all  officers  of  militia,  an^,  together  with 
his  council,  appoints  all  public  officers.  He  pardons 
offence-s,  except  murder  and  high  trea.^on,  presides 
solely  in  the  court  of  chancery,  and,  within  his  juris- 
diction, exercises  the  powers  of  the  h^rd  high- 
chancellor  of  England.  He  is  ordinary,  and  has 
the  power  of  granting  probate  of  bills  and  adminis- 
tration, and,  with  his  council,  sits  as  the  court  of 
error. 

The  Executive  Council  consists  of  nine  members, 
chosen  by  and  from  the  party  in  power,  and  ap- 
pointed by  the  governor,  subject  to  a  vote  of  "  want 
of  confidence." 

The  Lef/islative  Department  consists  of  a  legisla- 
tive council,  or  upper  house,  and  a  house  of  assembly, 
or  lower  house.  The  members  of  the  upper  hou.-^e 
are  appointed  by  the  crown,  on  the  recommenda- 
tion of  the  ''  governor  and  council,"  or  "  govern- 
ment." 

They  hold  their  seats  during  life  or  good  behavior, 
and  are  usually  men  of  wealth  and  influence.  The 
legislative  assembly  consists,  by  law,  of  fifty-five 
members,  and  continues  for  four  years,  unless  sooner 
dissolved,  and  does  not  determine  merely  by  the 
demise  of  the  reigning  sovereign. 

The  qualification  for  a  representative  is  a  freehold 
estate  of  the  yearly  value  of  at  least  eight  dollars, 
situate  in  any  part  of  the  province. 

Persons  holding  offices  of  emolument  are  dis- 
abled to  sit.  Judges  of  the  supreme  or  vice-admi- 
ralty courts,  officers  and  clerks  of  customs  and  of 
colonial  and  light  duties,  and  the  postmaster-gene- 
ral, are  disabled  to  sit  in  either  branch. 

The  privilege  of  voting  recently  extended  to 
natural-born  and  naturalized  subjects  over  twenty- 
one  years  of  age  who  had  resided  five  years  in  the 
province  has  this  year  (186:^)  been  restricted,  and  a 
property  qualification  required  (the  possession  of 
three  hundred  dollars  real  estate,  or  six  hundred 
dollars  personal  property). 

The  apportionment  of  representatives  to  each 
county  is  based  upon  the  population.  The  house 
of  assembly  holds  the  purse  and  controls  the  civil 
expenditures ;  and  the  whole  sum  derived  from 
customggoes  into  the  provincial  treasury. 

The  legislature  make  the  local  laws  not  repugnant 
to  the  laws  of  England,  the  crown  reserving  the 
right  to  annul  any  law  within  three  years  after  its 
publication. 

An  instance  of  this,  in  the  case  of  New  Bruns- 
wick, is  the  disallowance  of  the  act  of  assembly 
providing  for  commissioners  of  New  Brunswick  to 
reside  abroad,  take  affidavits,  depositions,  etc. 
This  act  pas.«ed  the  house,  and  was  approved  by  the 
colonial  government,  and  was  part  of  the  statute 
law  of  the  province  of  New  Brunswick  for  some 
months,  but  ceased  to  be  law  immediately  upon 
being  disallowed  by  the  crown. 

Laws  vetoed  by  the  governor  may  be  passed  hy 
the  queen's  sanction.  Any  difficulty  between  the 
head  of  the  executive  and  the  executive  council 
would  result  in  the  dismissal  or  resignation  of  the 
council.  If  the  council  were  approved  by  the 
people,  and  could  control  the  house,  no  new  govern- 
ment could  be  formed  without  them,  or,  rather,  it 
could  be  formed,  but  would  be  immediately  over- 
thrown by  a  vote  of  want  of  confidence. 

If  the  governor  could  not  frame  a''  government" 
which  would  control  the  house,  he  would  resign ;  or, 
if  he  persisted  in  opposing  the  will  of  the  people, 
they  would  appeal  by  petition  to  the  home  govern- 
ment,— the  final  resort  in  such  a  case, — who  would 
fairly  and  promptly  decide  the  matter. 

Tlie  Judicial  Department. 

This  consists  of  a  chief  justice  and  five  judges 
of  the  supreme  court,  appointed  by  the  governor,  by 
commission  under  the  great  seal  of  the  province, 
subject  to  the  royal  pleasure. 
Vol.  II.— 16 


The  appointee  must  be  a  barrister  of  the  pro- 
vinee  for  ten  years,  practising  as  such  at  least  five 
years  next  before  such  appointment,  and  can  hold 
no  other  office  under  the  government,  except  that 
of  judge  of  the  admiralty  or  vice-president  of  the 
ccmrt  of  marriage  and  divorce. 

The  judge's  tenure  of  office  is  during  good  be- 
havior ;  or  he  may  be  removed  by  the  governor 
upon  the  address  of  the  legislative  council  and  the 
house  of  assembly,  subject  to  his  right  of  appeal  to 
the  sovereign  in  privy  council. 

A  CustoH  Jiotnlornm  is  appointed  by  commission 
from  the  lieutenant-governor,  wherein  he  is  styled 
"  The  Keeper  of  the  Rolls  of  the  Peace." 

Besides  his  duties  derived  from  the  common  law. 
he  has  others  by  provincial  statutes.  He  preside* 
at  the  general  sessions  of  the  peace  for  his  county, 
and  gives  the  casting  vote  when  required  on  di- 
visions. 

The  court  of  king's  bench  and  the  district  courts 
are  the  same  as  in  Canada  {q.  v.). 

The  laws  in  force  are  the  whole  of  the  common 
law  of  England  (except  such  parts  as  are  obviously 
inconsistent  with  the  circumstances  of  the  colony), 
such  parts  of  the  statute  law  as  are  obviously 
necessary  and  applicable,  and  all  acts  of  assembly 
of  the  province  not  disallowed  by  the  home  govern- 
ment nor  repugnant  to  the  laws  of  England. 

NOVA  STATUTA.  New  statutes.  A 
term  including  all  statutes  passed  in  the  reign 
of  Edw.  III.  and  subsequently. 

NOViE  NARRATIONES.  "New 
counts  or  tallijs."  A  book  of  such  pleadings 
as  were  then  in  use,  published  in  the  reign 
of  Edw.  III.  3  Sharswood,  Blackst.  Comm. 
297  ;  3  Reeve,  Hist.  Eng.  Law,  151. 

NOVATION  (from  Lat.  nomre,  novus, 
new ) .  The  substitution  of  a  new  obligation  for 
an  old  one,  which  is  thereby  extinguished. 

In  Civil  Law.  There  are  three  kinds  of 
novation. 

First,  where  the  debtor  and  creditor 
remain  the  same,  but  a  new  debt  takes  the 
place  of  the  old  one.  Here,  either  the  sub- 
ject-matter of  the  debt  may  be  changed,  or 
the  conditions  of  time,  place,  etc.  of  pay- 
ment. 

Second,  where  the  debt  remains  the  same, 
but  a  new  debtor  is  substituted  for  the  old. 
This  novation  may  be  made  without  the  in- 
tervention or  privity  of  the  old  debtor  (in 
this  case  the  new  agreement  is  called  expro- 
missio,  and  the  new  debtor  expromissor),  or 
by  the  debtor's  transmission  of  his  debt  to 
another,  who  accepts  the  obligation  and  is 
himself  accepted  by  the  creditor.  This  trans- 
action is  called  delegatio.  Domat  lays  down 
the  essential  distinction  between  a  delegation 
and  any  other  novation,  thus:  that  the  fermer 
demands  the  consent  of  all  three  parties,  but 
the  latter  that  only  of  the  two  parties  to  the 
new  debt. 

Third,  where  the  debt  remains  the  same, 
but  a  new  creditor  is  substituted  for  the  old. 
This  also  is  called  delegatio,  for  the  reason  ad- 
duced above,  to  wit :  that  all  three  parties 
must  assent  to  the  new  bargain.  It  differs 
from  the  cessio  nominis  of  the  civil  law  by 
completely  cancelling  the  old  debt,  while  the 
cessio  nominis  leaves  the  creditor  a  claim  for 
any  balance  due  after  assignment. 

3.  In  every  novation  the  old  debt  is  wholly 


NOVATION 


242 


NOVATION 


extinguished  by  the  new.    To  effect  such  a 
transformation,  several  things  are  requisite. 

First,  there  must  be  an  anterior  obligation 
of  some  sort,  to  serve  as  a  basis  for  the  new 
contract.  If  the  old  debt  be  void,  as  being, 
e.g.,  contra  hones  mores,  then  the  new  debt  is 
likewise  void ;  because  the  consideration  for 
the  pretended  novation  is  null.  But  if  the 
old  contract  is  only  voidable,  in  some  cases 
the  new  one  may  be  good,  operating  as  a 
ratification  of  the  old.  Moreover,  if  the  old 
debt  be  conditional,  the  new  is  also  condi- 
tional, unless  made  otherwise  by  special 
agreement, — which  agreement  is  rarely  omit- 
ted. 

Second,  the  parties  innovating  must  con- 
sent thereto.  In  the  modern  civil  law,  every 
novation  is  voluntary.  Anciently,  a  novation 
not  having  this  voluntary  element  was  in  use. 
And  not  only  consent  is  exacted,  but  a  capa- 
city to  consent.  But  capacity  to  make  or  re- 
ceive an  absolute  payment  does  not  of  itself 
authorize  an  agreement  to  innovate. 

Third,  there  must  be  an  express  intention 
to  innovate, — the  animus  novandi.  A  novation 
is  never  presumed.  If  an  intent  to  destroy 
the  old  debt  be  not  proved,  two  obligations 
now  bind  the  debtor, — the  old  and  the  new. 
Conversely,  if  the  new  contract  be  invalid, 
without  fraud  in  the  transaction,  the  creditor 
has  now  lost  all  remedy.  The  anterior  obli- 
gation is  destroyed  without  being  replaced  by 
a  new  one. 

4.  An  important  rule  of  novation  is  that 
the  extinction  of  the  debt  destroys  also  all 
rights  and  liens  appertaining  thereto.  Hence, 
if  any  hypothecations  be  attached  to  the  an- 
cient agreement,  they  are  cancelled  by  the 
new  one,  unless  express  words  retain  them. 
The  second  contract  is  simple  and  independ- 
ent, and  upon  its  terms  is  the  action  ex 
stipulatu  to  be  brought.  Hence,  too,  the  new 
parties  cannot  avail  themselves  of  defences, 
claims,  and  set-offs  which  would  have  pre- 
vailed between  the  old  parties. 

Obviously,  a  single  creditor  may  make  a 
novation  with  two"  or  more  debtors  who  are 
each  liable  in  solido.  In  this  case  any  one 
debtor  may  make  the  contract  to  innovate ; 
and  if  such  a  contract  be  completed,  all  his 
fellow-debtors  are  discharged  with  him  from 
the  prior  obligation.  Therefore  Pothier  says 
that,  under  the  rule  that  novation  cancels  all 
obligations  subsidiary  to  the  main  one,  sure- 
ties are  freed  by  a  novation  contracted  by 
their  principal.  The  creditor  must  specially 
stipulate  that  co-debtors  and  guarantors  shall 
consent  to  be  bound  by  the  novation,  if  he 
wish  to  hold  them  liable.  If  they  do  not 
consent  to  such  novation,  the  parties  all  re- 
main, as  before,  bound  under  the  old  debt. 
So  in  Louisiana  the  debt  due  a  community 
creditor  is  not.  necessarily  novated  by  his 
taking  the  individual  note  of  the  surviving 
spouse,  with  mortgages  to  secure  its  payment. 
11  La.  Ann.  687. 

5.  It  follows  that  the  new  debtor,  in  a  dele- 
gation, can  claim  nothing  under  the  old  con- 
tract, 8ince  he  has  consented  to  the  destruc-  \ 


tion  of  that  contract.  For  the  same  reason, 
a  creditor  cannot  proceed  against  the  dis- 
charged debtor.  And  this  is  true  though 
the  new  debtor  should  become  insolvent  while 
the  old  remains  solvent.  And  even  though 
at  the  time  of  the  novation  the  new  debtor 
was  insolvent,  still  the  creditor  has  lost  his 
remedy  against  the  old  debtor.  But  the  rule, 
no  doubt,  applies  only  to  a  bond  Jide  delega 
tion.  And  a  suit  brought  by  the  creditor 
against  a  delegated  debtor  is  not  evidence 
of  intention  to  discharge  the  original  debtor. 
11  La.  Ann.  93. 

6.  In  a  case  of  mistake,  the  rule  is  this : 
if  the  new  debtor  agree  to  be  substituted  for 
the  old,  under  the  belief  that  he  himself  owes 
so  much  to  the  discharged  debtor,  although 
he  do  not  in  fact  owe  the  amount,  yet  he  is 
bound  to  the  creditor  on  the  novation  ;  be- 
cause the  latter  has  been  induced  to  discharge 
the  old  debtor  by  the  contract  of  the  new,  and 
will  receive  only  his  due  in  holding  the  new 
debtor  bound.  But  where  the  supposed  cre- 
ditor had  really  no  claim  upon  the  original 
debtor,  the  substitute  contracts  no  obligation 
with  him;  and  even  though  he  intended  to  be 
bound,  yet  he  may  plead  the  fact  of  no  former 
debt  against  any  demand  of  the  creditor,  as 
soon  as  this  fact  is  made  known  to  him. 

A  novation  may  be  made  dependent  on  a 
condition.  In  that  case  the  parties  remain 
bound,  as  before,  until  the  condition  is  ful- 
filled. The  new  debtor  is  not  freed  from  a 
conditional  novation  as  to  the  creditor  until 
the  condition  happens  ;  and  he  is  not  liable 
in  an  action  to  the  old  debtor  until  it  is  per- 
formed. 

K,  Any  obligation  which  can  be  destroyed 
at  all  may  be  destroyed  by  novation.  Thus, 
legacies,  judgment  debts,  etc.,  with  mortgages, 
guarantees,  and  similar  accessories,  are  as 
much  the  subjects  of  novation  as  simple  con- 
tract debts.  But  a  covenant  by  the  obligee  of 
a  bond  not  to  sue  the  obligor  within  a  certain 
time  is  not  an  example  of  the  civil-law  no- 
vation. The  agreement  was  not  a  release, 
not  a  substituted  contract,  but  a  covenant 
merely,  for  the  breach  of  which  the  obligee 
has  his  action.    19  Johns.  N.  Y.  129. 

The  preceding  summary  is  founded  on 
Massi,  Droit  Commercial,  liv.  v.  tit.  1,  ch. 
5,  ^  2 ;  Mackeldey,  Romischen  Reehts,  and 
Pothier,  Traite  des  Obligations,  pt.  3,  ch.  2. 
See,  also,  Domat's  Civil  Law,  trans,  by  Dr. 
Strahan  (Cushing's  ed.),  part  i.  b.  iv.  tit.  3, 
4;  and  Burge  on  Suretyship,  b.  2,  c.  5,  Am 
ed.  pp.  168-190. 

At  Common  Law.  The  common-law 
doctrine  of  novation  mainly  agrees  with  that 
of  the  civil  law,  but  in  some  parts  differs 
from  it. 

8.  The  term  novation  is  rarely  employed.  Tbo 
usual  common-law  equivalent  is  assignment,  and 
sometimes  merger.  Still,  this  form  of  contract 
found  its  way  into  common-law  treatises  as  early  as 
Fleta's  day,  by  whom  it  was  called  imiovado.  Item, 
per  innovationcm,  ut  si  trann/usa  sit  nbligatio  de  %ina 
persona  in  aliam,  quse  in  se  snsceperit  obligationem. 
Fleta,  lib.  2,  c.  60,  §  12.  The  same  words  here 
quoted  are  also  in  Bracton,  lib.  3,  c.  2,  ^  13,  but 


NOVATION 


243 


NOVATION 


we  have  novatinvem  for  i)movatifnem.  In  England, 
recently,  the  term  novation  has  been  revived  in 
some  cases. 

A  case  of  novation  is  put  in  Tatlock  vs.  Harris, 
3  Term,  180.  "Suppose  A  owes  B  £100,  and  B 
owes  C  £100,  and  the  three  meet,  and  it  is  agreed 
between  them  that  A  shall  pay  C  the  £100:  B's 
debt  is  extinguished,  and  C  may  recover  that  sum 
against  A." 

There  must  always  be  a  debt  once  existing 
and  now  cancelled,  to  serve  as  a  consider ai ion 
for  the  new  liability.  The  action  in  all  cases 
is  brought  on  the  new  agreement.  But  in 
order  to  give  a  right  of  action  there  must  be 
an  extinguishment  of  the  original  debt.  4 
Barnew.  &  C.  163  ;  1  Mees.  &  VV.  Exch.  124  ; 
14  111.  34;  4  La.  Ann.  281 ;  15  N.  II.  129. 

9.  No  mere  agreement  for  the  transforma- 
tion of  one  contract  into  another  is  of  effect 
until  actually  carried  into  execution  and  the 
consent  of  the  parties  thereto  obtained.  A 
good  novation  is  an  accord  executed,  5 
Barnew.  &  Ad.  925 ;  3  Nott  &  M'C.  So.  C.  171 ; 
I  Strange,  426 ;  15  Mees.  &  W.  Exch.  23  ; 
see  1  Ad.  &  E.  106 ;  2  Campb.  383  ;  1  La. 
410  ;  1  Exch.  601 ;  24  Conn.  621  ;  otherwise, 
if  there  be  no  satisfaction.  2  Scott,  n.  r.  938. 

But  where  an  agreement  is  entered  into 
by  deed,  that  deed  gives  in  itself  a  substantial 
cause  of  action ;  and  the  giving  such  deed 
may  be  a  sufficient  accord  and  satisfaction  for 
a  simple  contract  debt.  Coke,  Litt.  212  b  ; 
1  Burr.  9  ;  2  Rich.  So.  C.  608  ;  3  Watts  &  S. 
Penn.  276  ;  1  Hill,  N.  Y.  567.  See  1  Mas.  C. 
C.  503;  11  Wend.  N.  Y.  321. 

In  the  civil  law  delegatio,  no  new  creditor 
could  be  substituted  without  the  debtor's  con- 
sent. This  rule  is  observed  in  the  common 
law.  Hence,  without  this  consent  and  promise 
to  pay,  a  new  creditor  can  have  no  action 
against  the  debtor,  because  there  is  no  privity 
of  contract  between  them.  To  establish  such 
privity  there  must  be  a  new  promise  founded 
on  sufficient  consideration.  14  East,  582  ;  3 
Mer.  Ch.  652  ;  5  Wheat.  277  ;  12  Ga.  406  ;  15 
id.  486  ;  5  Ad.  &  E.  115 ;  7  Harr.  &  J.  Md. 
213,  219;  21  Me.  484. 

10.  But  in  equity  a  creditor  may  assign 
his  claim  fully  to  another  without  any  inter- 
vention of  the  debtor ;  and  the  assignee  is 
not  even  compelled  to  sue  in  his  assignor's 
name.  14  Conn.  141;  3  Swanst.  392;  4 
Rand.  Va.  392 ;  Mart.  &  Y.  Tenn.  378. 

The  extinction  of  the  prior  debt  is  con- 
sideration enough  to  support  a  novation.  If 
A  holds  B's  note,  payable  to  A,  and  assigns 
this  for  value  to  C,  B  is  by  such  transfer 
released  from  his  promise  to  A,  and  this  is 
sufficient  consideration  to  sustain  his  promise 
to  C.  1  Parsons,  Contr.  ch.  13  ;  2  Barb.  N. 
Y.  349.  And  a  consideration  need  not  be 
expressed  in  the  contract  of  novation;  though 
one  must  be  proved  in  order  to  defend  in  a 
suit  brought  by  creditors  of  the  assignor. 

When  assent  or  consideration  is  wanting, 
the  novation  operates  only  as  a  species  of 
collateral  security.  The  transferee  cannot  sue 
in  b's  own  name,  and  will  be  subject  to  all 
the  equitable  defences  which  the  debtor  had 
against  the  original  creditor.    This  assent  on 


the  debtor's  part  is  said  to  be  essential,  for 
the  reason  that  he  may  have  an  account  with 
his  assignor,  and  he  shall  not  be  barred  of 
his  right  to  a  set-off.  Still,  if  any  thing  like 
an  assent  on  the  part  of  a  holder  of  money 
can  be  inferred,  he  will  he  considered  as  the 
debtor.  4  Esp.  203;  6  Tex.  163.  If  the 
debtor's  assent  be  not  secured,  the  order  of 
transfer  may  be  revoked  before  it  is  acted  on. 

11.  In  a  delegation,  if  the  old  debtor  agree 
to  provide  a  substitute,  he  must  put  his 
creditor  into  such  a  position  that  the  latter 
can  claim  full  satisfaction  from  the  delegated 
debtor,  or  otherwise  the  original  liability 
remains,  and  there  is  no  novation.  19  Mo^^ 
322,  637.  See  3  Barnew.  &  Aid.  64;  5  ixT. 
925  ;  5  Barnew.  «fe  C.  196  ;  4  Esp.  89  ;  4  Price, 
Exch.  200;  2  Mees.  &  W.  Exch.  484;  6 
Cranch,  253;  12  Johns.  N.  Y.  409  ;  7  ?cZ.  311 ; 
21  Wend.  N.  Y.  450. 

The  existing  Louisiana  law  is  based  upon 
the  doctrines  of  the  Civil  Code  considered 
above.  It  is  held  in  numerous  cases  that 
"  novation  is  not  to  be  presumed  hence  the 
receipt  of  a  bill  or  note  is  not  necessarily  a 
novation,  or  extinguishment  of  the  debt  for 
which  it  is  given.  An  express  declaration  to 
that  effect  is  required  in  most  of  our  states, 
or  else  acts  tantamount  to  a  declaration.  An 
intention  to  discharge  the  old  debt  must  be 
shown  in  all  cases  ;  and  this  intention  is  suffi- 
cient to  work  a  novation.  4  La.  Ann.  329, 
543  ;  6  id.  669 ;  9  id.  228,  497  ;  12  id.  299. 
"  The  delegation  by  which  the  debtor  gives  to 
the  creditor  another  debtor,  who  obliges  him- 
self towards  such  creditor,  does  not  operate  a 
novation  unless  the  creditor  has  expressly 
declared  his  intention  to  discharge  the  debtor 
who  made  the  delegation."  13  La,  Ann.  238. 

12.  One  of  the  most  common  of  modern 
novations  is  the  surrender  and  destruction  of 
an  old  promissory  note  or  bill  of  exchange, 
and  the  receipt  of  a  new  one  in  payment 
thereof.  The  rules  of  novation  apply  as  com- 
pletely to  debts  evidenced  by  mercantile  paper 
as  to  all  other  obligations.  Story,  Bills,  |  441; 
Pothier,  de  Change,  n.  189  ;  Thomson,  Bills, 
ch.  1,  ^  3.  Hence,  everywhere,  if  the  parties 
intend  that  a  promissory  note  or  bill  shall  be 
absolute  pavment,  it  will  be  so  considered. 
10  Ad.  &E.'^593;  4  Mas.  C.  C.  336  ;  1  Rich. 
So.  C.  37,  112;  9  Johns.  N.  Y.  310  ;  13  Vt. 
452.  In  some  states,  the  receipt  cf  a  nego- 
tiable promissory  note  \^  prima  facie  payment 
of  the  debt  upon  which  it  is  given,  and  has 
an  action  upon  the  account  unless  the  pre- 
sumption is  controverted.  12  Mass.  237  :  12 
Pick.  Mass.  268  ;  2  Mete.  Mass.  76  ;  5  Cush. 
Mass.  158 ;  8  Me.  298  ;  29  Vt.  32.  "  If  a 
creditor  gives  a  receipt  for  a  draft  in  paj'ment 
of  his  account,  the  debt  is  novated."  2  La.  109. 
But  see  the  cases  cited  supra  for  the  full 
Louisiana  law.  In  most  states,  however,  the 
rule  is,  as  in  England,  that,  whether  the  debt 
be  pre-existing  or  arise  at  the  time  of  giving 
the  note,  the  receipt  of  a  promissory  note  is 
prima  facie  a  conditional  payment  only,  and 
works  no  nov.ation. 

13.  It  is  payment  only  on  fulfilment  of 


^0\'EL  ASSIGNMENT 


244 


NUDUM  PACTUM 


the  condition,  i.e.  when  the  note  is  paid.  5 
Beav.  Rolls,  415  ;  40  Encr.  L.  &  Eq.  625  ;  6 
Crunch,  264;  2  Johns.  Cas.  N.  Y.  438;  15 
.Johns.  N.  Y.  224,  247  ;  1  Cow.  N.  Y.  290  ;  27 
^.  H.  253  ;  11  Gill  &  J.  Md.  416  ;  4  R.  I. 
383 ;  8  Cal.  501 ;  2  Speers,  So.  C.  438 ;  2 
Rich.  So.  C.  244 ;  15  Serg.  &  R.  Penn.  162. 

If  a  vendor  transfer  his  vendee's  note,  he 
can  only  sue  on  the  original  contract  when 
he  gets  back  the  note,  and  has  it  in  his  power 
to  return  it  to  his  vendee.  1  Pet.  C.  C.  262  ; 
4  Rich.  So.  C.  59.  See  Discharge  ;  Payment  ; 
10  Pet.  532;  8  Cow.  N.  Y.  390;  6  Watts  & 
S.  Penn.  165  ;  1  Hill,  N.  Y.  516;  3  Wash.  C. 
C.  396  ;  5  Day,  Conn.  511  ;  Add.  Penn.  39  ; 
9  Watts,  Penn.  273  ;  10  Md.  27  ;  1  Sneed, 
Tenn.  501 ;  1  Hempst.  Ark.  431 ;  27  Ala.  n. 
s.  254  ;  1  Parsons,  Contracts,  c.  13  ;  Dixon 
on  Substituted  Liabilities. 

NOVEL  ASSIGNMENT.  See  New 
Assignment. 

NOVEL  DISSEISIN.  The  name  of  an 
old  remedy  which  was  given  for  a  new  or 
recent  disseisin. 

When  tenant  in  fee-simple,  fee-tail,  or  for 
term  of  life,  was  put  out  and  disseised  of  his 
lands  or  tenements,  rents,  and  the  like,  he 
might  sue  out  a  writ  of  assize  or  novel  dis- 
seisin ;  and  if,  upon  trial,  he  could  prove  his 
title  and  his  actual  seisin,  and  the  disseisin 
by  the  present  tenant,  he  was  entitled  to  have 
judgment  to  recover  his  seisin  and  damages 
for  the  injury  sustained.  3  Blackst.  Comm. 
187.    This  remedy  is  obsolete. 

NOVELLiE  LEONIS.  The  ordinances 
of  the  emperor  Leo,  which  were  made  from 
the  year  887  till  the  year  893,  are  so  called. 
These  Novels  changed  many  rules  of  the  Jus- 
tinian law.  This  collection  contains  one  hun- 
dred and  thirteen  Novels,  written  originally  in 
Greek,  and  afterwards,  in  1560,  translated  into 
Latin  by  Agila3us. 

NOVELS,  NOVELLA  CONSTITU- 
TIONES.  In  Civil  Law.  The  name 
given  to  the  constitutions  or  laws  of  Justinian 
and  his  immediate  successors,  which  were 
promulgated  soon  after  the  Code  of  Jus- 
tinian. 

It  appears  to  have  been  the  intention  of 
Justinian,  after  the  completion  of  the  second 
and  revised  edition  of  the  Code,  to  supply 
what  had  not  been  foreseen  in  the  preceding 
laws,  together  with  any  necessary  amend- 
ments or  alterations,  not  by  revising  the  Code, 
but  by  supplementary  laws.  Such  laws  he 
promulgated  from  time  to  time ;  but  no  official 
compilation  of  them  is  known  to  have  been 
made  until  after  his  death,  when  his  laws, 
159  in  number,  with  those  of  the  reigns  of 
Justin  II.  and  Tiberias,  nine  in  number,  were 
collected,  together  with  some  local  edicts, 
under  this  name.  They  belong  to  various 
times  between  535  and  565  a.d. 

3.  Although  the  Novels  of  Justinian  are 
the  best  known,  and  when  the  word  Novels 
only  is  mentioned  those  of  Justinian  are 
always  intended,  he  was  not  the  first  who 
used  that  name.    Some  of  the  acts  of  Theo- 


!9l 

lUthen-^ 


dosius,  Yalentinian,  Leo,  Severus,  Authen- 
nius,  and  others,  were  also  called  Novels.  But 
the  Novels  of  the  emperors  who  preceded 
Justinian  had  not  the  force  of  law  after  the 
legislation  of  that  emperor.  Those  Novels 
are  not,  however,  entirely  useless ;  because, 
the  Code  of  Justinian  having  been  compiled 
to  a  considerable  extent  from  the  Theodosian 
Code  and  the  earlier  Novels,  the  latter  fre- 
quently remove  doubts  which  arise  on  the 
construction  of  the  Code. 

4.  The  original  language  of  the  Novels 
was  for  the  most  part  Greek;  but  they  are 
represented  in  the  Corpus  Juris  Civilis  by  a 
Latin  translation  of  134  of  them.  Thess 
form  the  fourth  part  of  the  Corpus  Juris  Ci- 
vilis. They  are  directed  either  to  some  offi- 
cer, or  an  archbishop  or  bishop,  or  to  some 
private  individual  of  Constantinople;  butthey 
all  had  the  force  and  authority  of  law. 

The  118th  Novel  is  the  foundation  and 
groundwork  of  the  English  Statute  of  Distri- 
bution of  Intestates'  Effects,  which  has  been 
copied  in  many  states  of  the  Union.  See  1 
P.  Will.  27  ;  Prec.  in  Chanc.  593. 

NOVUS  HOMO  (Lat.  a  new  man).  This 
term  is  applied  to  a  man  who  has  been  par- 
doned of  a  crime,  by  which  he  is  restored  to 
society  and  is  rehabilitated. 

NOXA  (Lat.).  In  Civil  Law.  Damage 
resulting  from  an  offence  committed  by  an 
irresponsible  agent.  The  offence  itself.  The 
punishment  for  the  offence.  The  slave  or 
animal  who  did  the  offence,  and  who  is  de- 
livered up  to  the  person  aggrieved  ( daUir  noxce) 
unless  the  owner  choose  to  pay  the  damage. 
The  rightof  action  is  against  whoever  becomes 
the  possessor  of  the  slave  or  animal  [noxa 
caput  seqiiiiur).  D.  defurt.  L.  41 ;  Vicat,  Voc. 
Jur. ;  Calvinus,  Lex. 

NOXAL  ACTION.    See  Noxa. 

NUBILIS(Lat.).  In  Civil  Law.  Onewho 
is  of  a  proper  age  to  be  married.  Dig.  32.  51. 

NUDE.  Naked.  Figuratively,  this  word 
is  applied  to  various  subjects. 

A  nude  contract,  nudum  pactum,  is  one 
without  a  consideration.  Nude  matter  is  a 
bare  allegation  of  a  thing  done,  without  any 
evidence  of  it. 

NUDUM  PACTUM.  A  contract  made 
without  consideration. 

It  is  a  mere  agreement,  without  the  requisites 
necessary  to  confer  upon  it  a  legal  obligation  to 
perform.  3  McLean,  C.  C.  330  ;  2  Den.  N.  V.  i03; 
6  Ired.  No.  C.  480 ;  1  Strobh.  So.  C.  329 ;  1  Oa. 
294;  1  Dougl.  Mich.  188.  The  term,  and  the  rule 
which  decides  upon  the  nullity  of  its  effects,  are 
borrowed  from  the  civil  law:  yet  the  common  law 
has  not  in  any  degree  been  influenced  by  the  no- 
tions of  the  civil  law  in  defining  what  constitutes  a 
nudum  pnctnm.  Dig.  19.  5.  5.  See,  on  this  subject, 
a  learned  note  in  Fonbhinque,  Eq.  336,  and  2  Kent, 
Comm.  364.  Toullier  defines  nudum  pactum  to  be 
an  agreement  not  executed  by  one  of  the  partic*;. 
Tom.  6,  n.  13,  page  10. 

It  is  of  no  consequence  whether  the  agree- 
ment be  oral  or  writteUj  7  Term,  350 ;  7 
Brown,  Pari.  Cas.  550;  4  Johns.  N.  Y.  235: 
5  Mass.  301,  392;  2  Day,  Conn.  22;  but  o 


NUISANCE 


245 


NUISANCE 


contract  under  seal  cannot  be  held  a  nudum 
pactum  for  lack  of  consideration,  since  the  seal 
imports  consideration.  2  Barnew  &  Aid. 
551.  See  Consideration;  Maxims,  iJa:  rmtio 
pado;  2  Blackstone,  Comm.  445 ;  16  Viner, 
Abr.  16. 

NUISANCE.  Any  thing  that  unlawfully 
worketh  hurt,  inconvenience,  or  damage.  3 
Blackstone,  Comm.  5,  216. 

The  element  of  illegality  should  be  added  to  the 
definition  as  given  above;  for  many  acts  which  work 
hurt,  inconvenience,  or  damage,  when  legalized 
cease  to  be  nuisances.  For  example,  if  a  corpora- 
tion obstruct  a  highway  by  putting  down  iron  rails 
to  the  inconvenience  of  passers,  it  is  a  nuisance  if 
they  are  not  properly  authorized  ;  otherwise  if  they 
are.  See  U  Gray,  Mass.  93 ;  18  Q.  B.  761 ;  Wash- 
burn, Easements. 

A  private  nuisance  is  any  thing  done  to  the 
hurt  or  annoyance  of  the  lands,  tenements, 
or  hereditaments  of  another.  3  Blackstone, 
Comm.  215. 

A  public  or  common  nuisance  is  such  an 
inconvenience  or  troublesome  offence  as  annoys 
the  whole  community  in  general,  and  not 
merely  some  particular  person.  1  Hawkins, 
PI.  Cr.  197  ;  4  Blackstone,  Comm.  160. 

JJ.  It  is  difficult  to  say  what  degree  of  an- 
noyance constitutes  a  nuisance.  If  a  thing 
is  calculated  to  interfere  with  the  comfortable 
enjoyment  of  a  man's  house,  it  is  a  nuisance. 
3  Jur.  N.  s.  571.  In  relation  to  offensive 
trades,  it  seems  that  when  such  a  trade  ren- 
ders the  enjoyment  of  life  and  property  un- 
comfortable it  is  a  nuisance,  1  Burr.  333  ;  5 
Esp.  217  ;  for  the  neighborhood  have  a  right 
to  pure  and  fresh  air.  2  Carr.  &  P.  485  ;  6 
Rog.  N.  Y.  61. 

A  thing  may  be  a  nuisance  in  one  place 
which  is  not  so  in  another :  therefore  the  situ- 
ation or  locality  oi  the  nuisance  must  be  con- 
sidered. A  tallow-chandler  setting  up  his 
business  among  other  tallow-chandlers,  and 
increasing  the  noxious  smells  of  the  neigh- 
borhood, is  not  guilty  of  setting  up  a  nuisance 
unless  the  annoyance  is  much  increased  by 
the  new  manufactory.  Peake,  91.  Such  an 
establishment  might  be  a  nuisance  in  a 
thickly-populated  town  of  merchants  and  me- 
chanics where  no  such  business  was  carried 
on.  Carr3dng  on  an  offensive  trade  for 
twenty  years  in  a  place  remote  from  build- 
ings and  public  roads  does  not  entitle  the 
owner  to  continue  it  in  the  same  place  after 
houses  have  been  built  and  roads  laid  out  in 
the  neighborhood,  to  the  occupants  of  and 
travellers  upon  which  it  is  a  nuisance.  6 
Gray,  Mass.  473.  See  7  Blackf.  Ind.  534 ;  2 
Carr.  &  P.  483.  The  trade  may  be  offensive 
for  noise,  2  Show.  327  ;  22  Vt.  321 ;  6  Cush. 
Mass.  80 ;  or  smell,  2  Carr.  &  P.  485  ;  13 
Mete.  Mass.  365;  1  Den.  N.  Y.^524;  or  for 
other  reasons.  1  Johns.  N.  Y.  78  ;  1  Swan, 
Tenn.  213;  Thach.  Crim.  Cas.  Mass.  14;  3 
East,  192 ;  3  Jur.  n.  s.  570. 

3*  To  constitute  a  public  nuisance,  there 
must  be  such  a  number  of  persons  annoyed 
that  the  offence  can  no  longer  be  considered 
a  private  nuisance:  this  is  a  fact,  generally, 


to  be  judged  of  by  the  jury.  1  Burr.  337  ; 
4  Esp.  200  ;  1  Strango,  686,  704 ;  2  Chitty, 
Crim.  Law,  607,  n. 

Public  nuisances  arise  in  consequence  of 
following  particular  trades,  b^  which  the  air 
is  rendered  offensive  and  noxious,  Croke  Car, 
510;  Hawkins,  PI.  Cr.  b.  1,  c.  75,  ^  10;  2  Ld. 
liaym.  1163;  1  Burr.  333  ;  1  Strange,  686 ; 
from  acts  of  public  indecency,  as  bathing  in  a 
public  river  in  sightof  the  neighboring  houses, 
1  Russell,  Crimes,  302;  2  Campb.  89;  Sid. 
168 ;  or  for  acts  tending  to  a  breach  of  the 
public  peace,  as  for  drawing  a  number  of  per- 
sons into  a  field  for  the  purpose  of  pigeon- 
shooting,  to  the  disturbance  of  the  neighbor- 
hood, 3  Barnew.  &  Aid.  184 ;  or  keeping  a 
disorderly  house,  1  Russell,  Crimes,  298  ;  or 
a  gaming-house,  1  Russell,  Crimes,  299 ; 
Hawkins,  PI.  Cr.  b.  1,  c.  75,  §  6;  or  a 
l>awdy-house,  Hawkins,  PI.  Cr.  b.  1,  c.  74,  § 
1;  Bacon,  Abr.  Nuisance  (A);  9  Conn. 
350 ;  or  a  dangerous  animal,  known  to  be 
such,  and  suffering  him  to  go  at  large,  as 
a  large  bulldog  accustomed  to  bite  people,  4 
Burn,  Just.  578  ;  or  exposing  a  person  having 
a  contagious  disease,  as  the  small-pox,  in  pub- 
lic, 4  Maule  &  S.  73,  272 ;  and  the  like.  The 
bringing  a  horse  infected  with  the  glanders 
into  a  public  place,  to  the  danger  of  infecting 
the  citizens,  is  a  misdemeanor  at  common  law. 
Dearsl.  Cr.  Cas.  24 ;  2  Hurlst.  &  N.  Exch. 
299.  The  leaving  unburied  the  corpse  of  a 
person  for  whom  the  defendant  was  bound 
to  provide  Christian  burial,  as  a  wife  or 
child,  is  an  indictable  nuisance,  if  he  is 
shown  to  have  been  of  ability  to  provide  such 
burial.  2  Den.  Cr.  Cas.  325.  See  3  Jur.  n.  s. 
570. 

4.  Private  nuisances  may  be  to  corporeal 
inheritances:  as,  for  example,  if  a  man  should 
build  his  house  so  as  to  throw  the  rain-water 
which  fell  on  it  on  my  land,  Fitzherbert,  Nat. 
Brev.  184,  or  erect  his  building,  without 
right,  so  as  to  obstru'ct  my  ancient  lights,  9 
Coke,  58 ;  but  see  Washburn,  Easements, 
keep  hogs  or  other  animals  so  as  to  incom- 
mode his  neighbor  and  render  the  air  un- 
wholesome, 9  Coke,  58 ;  or  to  incorporeal  he- 
reditaments: as,  for  example,  obstructing  a 
right  of  way  by  ploughing  it  up  or  laying 
logs  across  it,  and  the  like,  Fitzherbert,  Nat, 
Brev.  183  ;  2  RoUe,  Abr.  140  ;  or  obstructing 
a  spring,  1  Campb.  463  ;  6  East,  208  ;  inter- 
fering with  a  franchise,  as  a  ferry  or  railroad, 
by  a  similar  erection  unlawfully  made.  See 
Washburn,  Easements. 

5.  The  remedies  are  by  an  action  tor  the 
damage  done,  by  the  owner,  in  the  case  of  a 
private  nuisance,  3  Blackstone,  Comm.  220  ; 
or  by  any  party  suffering  special  damage,  in 
the  case  of  a  public  nuisance,  4  Wend.  N.  Y. 
9;  3  Vt.  529;  1  Penn.  St.  309;  Carth.  194; 
Vaugh.  341 ;  3  Maule  &  S.  472  ;  2  Bingh. 
283  ;  1  Esp.  148  ;  by  abatement  by  the  owner, 
when  the  nuisance  is  private,  2  RoUe,  Abr. 
565  ;  RoUe,  394 ;  3  Bulstr.  198  ;  see  3  Dowl. 
&  R.  556  ;  and  in  some  cases  when  it  is  pub- 
lic, if  no  riot  is  committed,  9  Coke,  55  :  2 

1  Salk.  458  ;  3  Blackst£>ne,  Comm.  5  ;   by  in- 


NUL  AGARD 


246 


NULLIUS  FILIUcj 


junction,  see  Injunction  ;  or  by  indidmeni  for 
apublicnuisance.  2  Bishop,  Grim.  Law,  1 856. 

NUL  AGARD  (L.  Fr.  no  award).  In 
Pleading.  A  plea  to  an  action  on  an  arbi- 
tration bond,  when  the  defendant  avers  that 
thcro  was  no  legal  award  made.  3  Burr. 
1730  ;  2  Strange,  923. 

NUL  DISSEISIN.  In  Pleading.  No 
disseisin.  A  plea  in  a  real  action,  by  which 
the  defendant  denies  that  there  was  any  dis- 
seisin.   It  is  a  species  of  the  general  issue. 

NUL  TIEL  RECORD  (Fr.  no  such  re- 
cord). In  Pleading.  A  plea  which  is  proper 
when  it  is  proposed  to  rely  upon  facts  which 
disprove  the  existence  of  the  record  on  which 
the  plaintiff  founds  his  action. 

Any  matters  may  be  introduced  under  it 
which  tend  to  destroy  the  validity  of  the  re- 
cord as  a  record,  provided  they  do  not  contra- 
dict the  recitals  of  the  record  itself.  10  Ohio, 
100.  It  is  frequently  used  to  enable  the  de- 
fendant to  deny  the  jurisdiction  of  the  court 
from  which  the  alleged  record  emanates.  2 
McLean,  C.  C.  129 ;  22  Wend.  N.  Y.  293.^ 

It  is  said  to  be  the  proper  plea  to  an  action 
on  a  foreign  judgment,  especially  if  of  a  sister 
state,  in  the  United  States,  2  Leigh.  Va.  72;  6 
id.  570;  17  Vt.  302;  6  Pick.  Mass.  232;  11 
Miss.  210  ;  1  Penn.  499  ;  2  South.  So.  C.  778 ; 
2  Breese,  111.  2 ;  though  it  is  held  that  nil 
debet  is  sufficient,  33  Me.  268  ;  3  J.  J.  Marsh. 
Ky.  600,  especially  if  the  judgment,  be  that 
of  a  justice  of  the  peace.  3  Harr.  N.  J.  408. 
See  Conflict  of  Laws. 

NUL  TORT  (L.  Fr.  no  wrong).  In 
Pleading.  A  plea  to  a  real  action,  by  which 
the  defendant  denies  that  he  committed  any 
w^rong.    It  is  a  species  of  general  issue. 

NUL  WASTE.    In  Pleading.  The 

general  issue  in  an  action  of  waste.  Coke, 
3d  Inst.  700  a,  708  a.  The  plea  of  mil  waste 
admits  nothing,  but  puts  the  whole  declara- 
tion in  issue;  and  in  support  of  this  plea  the 
defendant  may  give  in  evidence  any  thing 
which  proves  that  the  act  charged  is  no  waste, 
as  that  it  happened  by  tempest,  lightning, 
and  the  like.  Coke,  Litt.  283  a;  3  Wms. 
Saund.  238,  n.  5. 

NULL.  Properly,  that  which  does  not 
exist ;  that  which  is  not  in  the  nature  of 
things.  In  a  figurative  sense  it  signifies  that 
which  has  no  more  effect  than  if  it  did  not 
exist.    8  Toullier,  n.  320. 

NULLA  BONA  (L.  Lat.  no  goods).  The 
return  made  to  a  writ  of  fieri  facias  by  the 
sheriff,  when  he  has  not  found  any  goods  of 
the  defendant  on  which  he  could  levy.  3 
Bouvier,  Inst.  n.  3393.  » 

NULLITY.  An  act  o^^proceeding  which 
has  absolutely  no  legal  eft i,^t  whatever.  See 
Chitty,  Contr.  228. 

NULLITY  OF  MARRIAGE.  The  re- 
quisites of  a  valid  and  binding  marriage  have 
been  considered  in  the  article  on  that  subject. 
If  any  of  these  requisites  are  wanting  in  a 
•riven* case,  the  marriage  is  either  absolutely 


I  void,  or  voidable  at  the  election  of  one  or  both 
j  of  the  parties.  The  more  usual  imperfections 
which  thus  render  a  marriage  void  or  voida- 
ble are :  1.  Unsoundness  of  mind  in  either 
of  the  parties.  2.  Want  of  age;  i.e.  fourteen 
in  males  and  twelve  in  females.  3.  Fraud  or 
error  ;  but  these  must  relate  to  the  essentials 
of  the  relation,  as  personal  identity,  and  not 
merely  to  the  accidentals,  as  character,  condi- 
tion, or  fortune.  4.  Duress.  5.  Physical  im- 
potence, which  must  exist  at  the  time  of  the 
marriage  and  be  incurable.  6.  Consangui- 
nity or  affinity  within  the  prohibited  degrees. 
7.  A  prior  subsisting  marriage  of  either  of 
the  parties.  The  fifth  and  sixth  are  termed 
canonical,  the  remainder,  civil,  impediments. 

2.  The  distinction  between  the  two  is  im- 
portant,— the  latter  rendering  the  marriage 
absolutely  void,  while  the  former  only  ren- 
ders it  voidable.  In  the  one  case,  it  is  not 
necessary  (though  it  is  certainly  advisable) 
to  bring  a  suit  to  have  the  nullity  of  the  mar- 
riage ascertained  and  declared :  it  may  be 
treated  by  the  parties  as  no  marriage,  and 
will  be  so  regarded  in  all  judicial  proceed- 
ings. In  the  other  case,  the  marriage  will  be 
treated  as  valid  and  binding  until  its  nullity 
is  ascertained  and  declared  by  a  competent 
court  in  a  suit  instituted  for  that  purpose ; 
and  this  must  be  done  during  the  lifetime  of 
both  parties  :  if  it  is  deferred  until  the  death 
of  either,  the  marriage  will  always  remain 
good.  But  the  effect  of  such  sentence  of 
nullity,  when  obtained,  is  to  render  the  mar- 
riage null  and  void  from  the  beginning,  as  in 
the  case  of  civil  impediments. 

For  the  origin  and  history  of  this  distinc- 
tion between  void  and  voidable  marriages, 
see  Bishop,  Marr.  &  Div.  c.  4. 

3.  A  suit  for  nullity  is  usually  prosecuted 
in  the  same  court,  and  is  governed  by  sub- 
stantially the  same  principles,  as  a  suit  for 
divorce.    Bishop,  Marr.  &  Div.  c.  15. 

In  its  consequences,  a  sentence  of  nullity 
differs  materially  from  a  divorce.  The  latter 
assumes  the  original  validity  of  the  marriage, 
and  its  operation  is  entirely  prospective.  The 
former  renders  the  marriage  void  from  the 
beginning,  and  nullifies  all  its  legal  results. 
The  parties  are  to  be  regarded  legally  as  if 
no  marriage  had  ever  taken  place :  they  are 
single  persons,  if  before  they  were  single ; 
their  issue  are  illegitimate ;  and  their  rights 
of  property  as  between  themselves  are  to  be 
viewed  as  having  never  been  operated  upon 
by  the  marriage.  Thus,  the  man  loses  all 
right  to  the  property,  whether  real  or  per- 
sonal, which  belongs  to  the  woman  ;  and  the 
woman  loses  her  right  to  dower.  Bishop, 
Marr.  &  Div.     647,  659. 

Neither  is  the  woman,  upon  a  sentence 
of  nullity,  entitled  to  permanent  alimony ; 
j  though  the  better  opinion  is  that  she  is  en- 
I  titled  to  alimony  pendente  lite.  Bishop,  Marr. 
&  Div.  II  563,  579-580.    See  Alimony. 

NULLIUS  FILIUS  (Lat.).  The  son  of 
no  one ;  a  bastard. 

12.  A  bastard  is  considered  mdlius  filius  as 
I  far  as  regards  his  right  to  inherit.    But  th© 


NULLUM  ARBITRIUM  £47 


rule  of  nullius  filius  does  not  apply  in  other 
respects,  and  has  been  changed  by  statute  in 
most  states  so  as  to  make  him  the  child  of  his 
mother. 

The  mother  of  a  bastard,  during  its  age  of 
nurture,  is  entitled  to  the  custody  of  her 
child,  and  is  bound  to  maintain  it.  6  Serg. 
&  R.  Penn.  255  ;  2  Johns.  N.  Y.  375 ;  15  id. 
208  ;  2  Mass.  109  ;  12  id.  387,  433  ;  4  Bos.  & 
P.  148.    But  see  5  East,  224,  n. 

3.  The  putative  father,  too,  is  entitled  to 
the  custody  of  the  child  as  against  all  but  the 
mother.  1  Ashm.  Penn.  55.  And  it  seems 
that  the  putative  father  may  maintain  an  ac- 
tion, as  if  his  child  were  legitimate,  for  marry- 
ing him  without  his  consent,  contrary  to 
law.  Add.  Penn.  212.  See  Bastard;  Child; 
Iather;  Mother;  Putative  Father. 

NULLUM  ARBITRIUM  (Lat.).  In 
Pleading.  The  name  of  a  plea  to  an  action 
on  an  arbitration  bond  for  not  fulfilling  the 
award,  by  which  the  defendant  asserts  that 
there  is  no  award. 

NULLUM  FECERUNT  ARBI- 
TRIUM (Lat.).  In  Pleading.  The  name 
of  a  plea  to  an  action  of  debt  upon  an  obliga- 
tion for  the  performance  of  an  award,  by  which 
the  defendant  denies  that  he  submitted  to  ar- 
bitration, etc.    Bacon,  Abr.  Arbitr.  etc.  (G). 

NULLUM  TEMPUS  ACT.  The  sta- 
tute 3  Geo.  III.  c.  16.  See  32  Geo.  III.  c. 
58,  and  7  Will.  III.  c.  3.  It  was  so  called  be- 
cause the  right  of  the  crown  to  sue,  etc.  was 
limited  by  it  to  sixty  years,  in  contradiction 
to  the  maxim.  Nullum  tempus  occurrit  regi. 
3  Chitty,  Stat.  63. 

NUMBER.    A  collection  of  units. 

2.  In  pleading,  numbers  must  be  stated 
truly  when  alleged  in  the  recital  of  a  re- 
cord, written  instrument,  or  express  contract. 
Lawes,  Plead.  48  ;  4  Term,  314  ;  Croke  Car. 
262;  Dougl.  669;  2  W.  Blackst.  1104.  Bu£ 
in  other  cases  it  is  not,  in  general,  requisite 
that  they  should  be  truly  stated ;  because  they 
are  not  required  to  be  strictly  proved.  If,  for 
example,  in  an  action  of  trespass  the  plaintiff 
proves  the  wrongful  taking  away  of  any  part 
of  the  goods  duly  described  in  his  declara- 
tion, he  is  entitled  to  recover  pro  ianto.  Ba- 
con, Abr.  Trespass  (12);  Lawes,  Plead.  48. 

3.  And  sometimes,  when  the  subject  to  be 
described  is  supposed  to  comprehend  a  multi- 
plicity of  particulars,  a  general  description  is 
sufficient.  A  declaration  in  trover  alleging 
the  conversion  of  "  a  library  of  books,"  with- 
out stating  their  number,  titles,  or  quality, 
was  held  to  be  sufficiently  certain,  3  Bulstr. 
31;  Carth.  110;  Bacon,  Abr.  Trover  (F  1)  5 
and  in  an  action  for  the  loss  of  goods  by 
burning  the  plaintiff's  house,  the  articles 
may  be  described  by  the  simple  denomina- 
tion of  "goods"  or  "divers  goods."  1  Kebl. 
825;  Plowd.  85.  118,  123;  Croke  Eliz.  837; 
1  H.  Blackst.  284. 

NUMERATA  PECUNIA  (Lat.).  In 
Civil  Law.  Money  counted  or  paid  ;  money 
given  in  payment  by  count.  See  Pecunia 
"VfuMERATA  and  Pecunia  Non-Numerata.  L. 


3,  10,  C.  de  non  numerat.  pecun. ;  Vicat,  Voc. 
Jur. 

NUNC  PRO  TUNC  (Lat.  now  for  then). 

A  phrase  used  to  express  that  a  thing  is  done 
at  one  time  which  ought  to  have  been  per- 
formed at  another. 

Leave  of  court  must  be  obtained  to  do 
things  nunc  pro  tunc;  and  this  is  granted  to 
answer  the  purposes  of  justice,  but  never  to 
do  injustice.  A  judgment  nunc  pro  tunc  can 
be  entered  only  when  the  delay  has  arisen 
from  the  act  of  the  court.  3  C.  B.  970.  See 
1  Ves.  &  B.  Ch.  Ir.  312;  1  Moll.  402;  13 
Price,  Exch.  004  ;  1  Ilog.  110. 

A  plea  puis  darrein  continuance  may  be 
entered  nunc  pro  tunc  after  an  intervening 
continuation,  in  some  cases,  11  N.  II.  299; 
and  lost  pleadings  may  be  replaced  by  new 
pleadings  made  nunc  pro  tunc.    1  Mo.  327. 

NUNCIATIO.  In  Civil  Law.  A  for- 
mal proclamation  or  protest.  It  may  be  by 
acts  [realis)  or  by  words.  Mackeldey,  Civ. 
Law,  I  237.  Thus,  nunciatio  novi  operis  was 
an  injunction  which  one  man  could  place  on 
the  erection  of  a  new  building,  etc.  near  him, 
until  the  case  was  tried  by  the  praetor.  Id.  ; 
Calvinus,  Lex.  An  information  against  a 
criminal.    Calvinus,  Lex. 

NUNCIO.  The  name  given  to  the  pope's 
ambassador.  Nuncios  are  ordinary  or  extra- 
ordinary: the  former  are  sent  upon  usual  mis- 
sions, the  latter  upon  special  occasions. 

NUNCIUS.    In  International  Law. 

A  messenger;  a  minister;  the  pope's  legate, 
commonly  called  a  nuncio. 

NUNCUPATIVE  WILL.  An  oral 
will,  declared  by  testator,  in  extremis,  before 
witnesses,  and  afterwards  reduced  to  writing. 
4  Kent,  Comm.  576  ;  2  Sharswood,  Blackst. 
Comm.  500 ;  1  Jarman,  Wills,  Perkins  ed. 
130-136.  See  1  Will.  IV.  c.  20 ;  1  Vict.  c. 
26,  U  9,  11 ;  11  Eng.  L.  &  Eq.  596,  by  which 
the  privilege  of  making  a  nuncupative  will  is 
only  allowed  to  soldiers  and  seamen  in  actual 
service.  So  in  almost  all  the  states.  See,  in 
general,  27  Ala.  n.  s.  296,  596  ;  26  N.  H.  372; 
9  N.  Y.  196  ;  10  Gratt.  Va.  548  ;  27  Miss.  119, 
725  ;  2  R.  I.  133  ;  4  Bradf.  Surr.  N.  Y.  154; 
22  Ga.  293,  603;  12  La.  Ann.  114,  603;  1 
Sneed,  Tenn.  616 ;  1  Williams,  Exec.  59  ; 
Swinburn,  Wills  ;  Ayliffe,  Pand.  359  ;  Ro- 
berts, AVills ;  2  Bouvier,  Inst.  n.  436 ;  1 
Brown,  Civ.  Law,  288. 

NUNDINiE  (Law  Lat.).  In  Civil  and 
Old  English  Law.  Fair  or  fairs.  Dion. 
Halicarnass.  lib.  2,  p.  98;  Vicat,  Voc.  Jur.; 
Law  Fr.  &  Lat.  Diet. 

NUNQUAM  INDEBIT\TUS  (Lat. 
never  indebted).  In  Tles^^^g.  A  plea  to 
an  action  of  indebitatus  a.-5'umpsit,  by  which 
the  defendant  asserts  that  he  is  not  indebted 
to  the  plaintiff.  6  Carr.  &  P.  545 ;  1  Mees 
&  W.  Exch.  542 ;  1  Q.  B.  77. 

NUNTIUS,  NUNCIUS.   In  Old  Eng 
lish  Practice.    One  who  made  excuse  for 
absence    "    "'^  summoned.     An  apparitor, 
beadle,  or  ocrgeant.    Cowel.    A  messenger 


NUPER  OBIIT 


248 


OATH 


or  legate :  e.g.  pope's  nuncio.  Jacob,  Law 
Pict.  Es.-ioniaifir  was  sometimes  wrongly  used 
for  nvntius  in  the  first  sense.  Bracton,  fol. 
345,  I  2. 

NUPER  OBIIT  (Lat.  he  or  she  lately 
died).  In  Practice.  The  name  of  a  writ 
which  in  the  English  law  lies  for  a  sister  co- 
heiress dispossessed  by  her  coparcener  of 
lands  and  tenements  whereof  their  father, 
brother,  or  any  common  ancestor  died  seised 
of  an  estate  in  fee-simple.  Termes  de  la  Ley ; 
Fitzherbert,  Nat.  Brev.  197. 

NURTURE.    The  act  of  taking  care  of 


children  and  educating  them.  The  right  tc 
the  nurture  of  children  generally  belongs  to 
the  father  till  the  child  shall  arrive  at  the 
age  of  fourteen  years,  and  not  longer.  Till 
then  he  is  guardian  by  nurture.  Coke,  Litt. 
38  b.  But  in  special  cases  the  mother  will 
be  preferred  to  the  father,  5  Binn.  Penn. 
520 ;  2  Serg.  &  R.  Penn.  174 ;  and  after  the 
death  of  the  father  the  mother  is  guardian 
by  nurture.  Fleta,  1.  1,  c.  6  ;  Comyns,  Dig. 
Guardian  (D).  See  Guardian;  Habeas 
Corpus. 

NURUS  (Lat.).  A  daughter-in-law.  Dig. 
50.  16.  50. 


o. 


OATH.  An  outward  pledge  given  by  the 
person  taking  it  that  his  attestation  or  pro- 
mise is  made  under  an  immediate  sense  of 
his  responsibility  to  God.     Tyler,  Oaths,  15. 

The  term  has  been  variously  defined:  as,  a 
solemn  invocation  of  the  vengeance  of  the  Deity 
upon  the  witness  if  he  do  not  declare  the  whole 
truth,  so  far  as  he  knows  it,"  1  Starkie,  Ev.  22 ;  or, 
"a  religious  asseveration  by  which  a  person  re- 
nounces the  mercy  and  imprecates  the  vengeance 
of  Heaven  if  he  do  not  speak  the  truth,"  2  Leach, 
Cr.  Cas.  482;  or,  as  "a  religious  act  by  which  the 
party  invokes  God  not  only  to  witness  the  truth 
and  sincerity  of  his  promise,  but  also  to  avenge 
his  imposture  or  violated  faith,  or,  in  other  words, 
to  punish  his  perjury  if  he  shall  be  guilty  of  it." 
10  Toullier,  nn.  343-348;  PuflFendorfiF,  b.  4,  c.  2, 
^  4.  The  essential  idea  of  an  oath  would  seem  to 
be,  however,  that  of  a  recognition  of  God's  au- 
thority by  the  party  taking  it,  and  an  undertaking 
to  accomplish  the  transaction  to  which  it  refers  as 
required  by  His  laws. 

In  its  broadest  sense,  the  term  is  used  to  include 
all  forms  of  attestation  by  which  a  party  signifies 
that  he  is  bound  in  conscience  to  perform  the  act 
faithfully  and  truly.  In  a  more  restricted  sense,  it 
excludes  all  those  forms  of  attestation  or  promise 
which  are  not  accompanied  by  an  imprecation. 

Assertory  oaths  are  those  required  by  law 
other  than  in  judicial  proceedings  and  upon 
induction  to  office:  such,  for  example,  as 
custom-house  oaths. 

Extra-judicial  oaths  are  those  taken  with- 
out authority  of  law.  Though  binding  in 
foro  conscientice,  they  do  not,  when  false, 
render  the  party  liable  to  punishment  for 
perjury. 

Judicial  oaths  are  those  administered  in 
judicial  proceedings. 

Promisiiorrj  oaths  are  oaths  taken,  by  au- 
♦.hority  of  law,  by  which  the  party  declares 
•■hat  he  will  fulfil  certain  duties  therein  men- 
tioned :  as,  the  oath  which  an  alien  takes,  on 
becoming  naturalized,  that  he  will  support 
the  ccmstitution  of  the  United  States ;  the 
oath  which  a  judge  takes  that  he  will  perform 
th<»,  d  ities  of  his  office.    The  breach  of  this 


does  not  involve  the  party  in  the  legal  crime 
or  punishment  of  perjury.    3  Zabr.  N.  J.  49 

Theybrm  of  administering  the  oath  may  be 
varied  to  conform  to  the  religious  belief  of 
the  individual,  so  as  to  make  it  binding  upon 
his  conscience.  6  Mass.  262 ;  16  Pick.  Mass. 
154 ;  2  Gall.  C.  C.  346 ;  3  Park.  Crim.  N.  Y. 
590;  2  Hawks,  No.  C.  458;  7  111.  540; 
Ry.  &  M.  77.  The  most  common  form  is 
upon  the  gospel,  by  taking  the  book  in  the 
hand :  the  words  commonly  used  are,  "  You 
do  swear  that,''  etc.,  "  so  help  you  God,"  and 
then  kissing  the  book.  9  Carr.  &  P.  137. 
The  origin  of  this  oath  may  be  traced  to  the 
Roman  law,  Nov.  8,  tit.  3 ;  Nov.  74,  cap.  5 ; 
Nov.  124,  cap.  1 ;  and  the  kissing  the  book  is 
said  to  be  an  imitation  of  the  priest's  kissing  the 
ritual,  as  a  sign  of  reverence,  before  he  reads 
it  to  the  people.  Rees,  Cycl.  In  New  Eng- 
land and  in  Scotland  the  gospels  are  not 
generally  used,  but  the  party  taking  the  oath 
holds  up  his  right  hand  and  repeats  the  words 
here  given.  1  Leach,  Cr.  Cas.  412,  498; 
Cowp.  390. 

Another  form  is  by  the  witness  or  party 
promising  holding  up  his  right  hand  while 
the  officer  repeats  to  him,  "  You  do  swear  by 
Almighty  God,  the  searcher  of  hearts,  that,'' 
etc.,  "and  this  as  you  shall  answer  to  God  at 
the  great  day." 

In  another  form  of  attestation,  commonly 
called  an  affirmation  [q.  v.),  the  officer  repeats, 
"You  do  solemnly,  sincerely,  and  truly  de- 
clare and  affirm  that,"  etc. 

A  Jew  is  sworn  on  the  Pentateuch,  or  Old 
Testament,  with  his  head  covered.  Strange, 
821,  1113;  a  Mohammedan,  on  the  Koran,  1 
Leach,  Cr.  Cas.  54 ;  a  Gentoo,  by  touching 
with  his  hand  the  foot  of  a  Brahmin  or  priest 
of  his  religion  ;  a  Brahmin,  by  touching  the 
hand  of  another  such  priest,  Wils.  549  ;  a 
Chinaman,  by  breaking  a  china  saucer.  1 
Carr.  &  M.  248. 

Tlie  form  and  time  of  administering  oaths. 
1  as  well  as  the  person  authorized  to  admini»- 


OATH  OF  CALUMNY  249 


OBLATIO 


ter,  are  usually  fixed  by  statute.  See  Gilp. 
Dist.  Ct.  439 ;  1  Tyl.  Vt.  347  ;  I  South.  So. 
C.  297;  4  Wash.  C.  C.  565;  2  Blackf.  Ind. 
35;  2  McLean,  C.  C.  135  ;  9  Pet.  238 ;  1  Va. 
Cas.  181 ;  8  Rich.  So.  C.  456  ;  1  Swan,  Tenn. 
157;  5  Mo.  21. 

OATH  OP  CALUMNY.  In  Civil 
Law.  An  oath  which  a  plaintifi'  was  obliged 
to  take  that  he  was  not  actuated  by  a  spi- 
rit of  chicanery  in  commencing  his  action, 
but  that  he  had  bond  Jide  a  good  cause  of 
action.  Pothier,  Pand.  lib.  5,  tt.  16,  17,  s. 
124.  This  oath  is  somewhat  similar  to  our 
affidavit  of  a  cause  of  action.  See  Dunlap, 
Adm.  Pract.  289,  290 ;  Juramentum  Calum- 

OATH  DECISORY.     In  Civil  Law. 

An  oath  which  one  of  the  parties  defers  or 
refers  back  to  the  other  for  the  decision  of 
the  cause. 

2.  It  may  be  deferred  in  any  kind  of  civil 
contest  whatever,  in  questions  of  possession 
or  of  claim,  in  personal  actions,  and  in  real. 
The  plaintiff  may  defer  the  oath  to  the  de- 
fendant whenever  he  conceives  he  has  not 
sufficient  proof  of  the  fact  which  is  the  founda- 
tion of  his  claim ;  and  in  like  manner  the 
defendant  may  defer  it  to  the  plaintiff  when 
he  has  not  sufficient  proof  of  his  defence. 
The  person  to  whom  the  oath  is  deferred 
ought  either  to  take  it  or  refer  it  back;  and 
if  he  will  not  do  either,  the  cause  should  be 
decided  against  him.  Pothier,  Obi.  pt.  4,  c. 
3,  s.  4. 

3.  The  decisory  oath  has  been  practically 
adopted  in  the  district  court  of  the  United 
States  for  the  district  of  Massachusetts;  and 
admiralty  causes  have  been  determined  in 
that  court  by  the  oath  decisory.  But  the 
cases  in  which  this  oath  has  been  adopted 
have  been  where  the  tender  has  been  ac- 
cepted ;  and  no  case  is  known  to  have  oc- 
curred there  in  which  the  oath  has  been 
refused  and  tendered  back  to  the  adversary. 
Dunlop,  Adm.  Pract.  290,  291. 

OATH  IN  LITEM.  An  oath  which  in  the 
civil  law  was  deferred  to  the  complainant  as 
to  the  value  of  the  thing  in  dispute,  on  fail- 
ure of  other  proof,  particularly  when  there 
was  a  fraud  on  the  part  of  the  defendant 
and  he  suppressed  proof  in  his  possession. 
See  Greenleaf,  Ev.  ^  348 ;  Tait,  Ev.  280 ;  1 
Veru.  Ch.  207  ;  1  Eq.  Cas.  Abr.  229 ;  1  Me. 
27  ;  1  Yeates,  Penn.  34 ;  12  Viner,  Abr. 
24. 

2,  In  general,  the  oath  of  the  party  can- 
not, by  the  common  law,  be  received  to  esta- 
blish his  claim,  but  is  admitted  in  two  classes 
of  cases :  Jirst,  where  it  has  been  already 
proved  that  the  party  against  whom  it  is 
offered  has  been  guilty  of  some  fraud  or 
other  tortious  or  unwarrantable  act  of  inter- 
meddling with  the  complainant's  goods,  and 
no  other  evidence  can  be  had  of  the  amount 
of  damages.  See  1  Pet.  591  ;  5  id.  240  ;  9 
Wheat.  486  ;  5  Pick.  Mass.  436  ;  8  id.  278  ; 
15  id.  368  ;  16  Johns.  N.  Y.  193  ;  20  id.  144  ; 
17  Ohio,  156  ;  3  N.  H.  135.   As,  for  example, 


where  a  trunk  of  goods  waw  delivered  to  a 
shipmaster  at  one  port  to  be  carried  U)  an- 
other, and  on  the  passage  he  broke  the  trunk 
open  and  rifled  it  of  its  contents,  in  an 
action  by  the  owners  of  the  goods  against 
the  shipmaster,  the  facts  above  mentioned 
having  been  proved  aliunde,  the  plaintiff  was 
held  a  competent  witness  to  testify  as  to  the 
contents  of  the  trunk.  1  Me.  27 ;  11  id.  412. 
And  see  10  Watts,  335  ;  1  Greenleaf,  Ev.  | 

!  348  ;  12  Mete.  Mass.  44  ;  1  Yeates,  Penn.  34  ; 

I  2  Watts,  Penn.  220  ;  10  id.  335  ;  3  Penn.  St. 
451 ;  12  Mass.  360 ;  16  id.  118  ;  1  Gilb.  Ey. 
by  Lofft,  244.  Second,  the  oath  in  litem  ig 
also  admitted  on  the  ground  of  public  policy 
where  it  is  deemed  essential  to  the  purposes 
of  justice.  Tait,  Ev.  280 ;  1  Pet.  596 ;  6 
Mood.  137  ;  2  Strange,  1186.  But  this  oath 
is  admitted  only  on  the  ground  of  necessity. 
An  example  may  be  mentioned  of  a  case 
where  a  statute  can  receive  no  execution 
unless  the  party  interested  be  admitted  as  a 
witness.    16  Pet.  203. 

OATH  PURGATORY.  An  oath  by 
which  one  destroys  the  presumptions  which 
were  against  him,  for  he  is  then  said  to  purge 
himself,  when  he  removes  the  suspicions 
which  were  against  him :  as,  when  a  man  is 
in  contempt  for  not  attending  court  as  a  wit- 
ness, he  may  purge  himself  of  the  contempt, 
by  swearing  to  a  fact  which  is  an  ample  ex- 
cuse.   See  Purgation. 

OATH  SUPPLETORY.    In  Civil  and 

Ecclesiastical  Law.  An  oath  required  by 
the  judge  from  either  party  in  a  cause,  upon 
half-proof  already  made,  which  being  joined 
to  half-proof,  supplies  the  evidence  required 
to  enable  the  judge  to  pass  upon  the  subject. 
See  Strange,  80 ;  3  Blackstone,  Comm.  270. 

OBEDIENCE.  The  performance  of  a 
command. 

2.  Officers  who  obey  the  command  of  their 
superiors,  having  jurisdiction  of  the  subject- 
matter,  are  not  responsible  for  their  acts.  A 
sheriff  may,  therefore,  justify  a  trespass  under 
an  execution,  when  the  court  has  jurisdic- 
tion, although  irregularly  issued.  3  Chitty, 
Pract.  75  ;  Hammond,  Nisi  P.  48. 

3.  A  child,  an  apprentice,  a  pupil,  a  ma 
riner,  and  a  soldier  owe  respectively  obe- 
dience to  the  lawful  commands  of  the  parent, 
the  master,  the  teacher,  the  captain  of  the 
ship,  and  the  military  officer  having  com- 
mand ;  and  in  case  of  disobedience  submis- 
sion may  be  enforced  by  correction. 

OBIT.  That  particular  solemnity  or  office 
for  the  dead  which  the  Roman  Catholic 
church  appoints  to  be  read  or  performed  over 
the  body  of  a  deceased  member  of  that  com- 
munion before  interment ;  also,  the  office 
which  upon  the  anniversary  of  his  death 
was  frequently  used  as  a  commemoration  or 
observance  of  the  day.  2  Croke,  51 ;  Dy.  313. 

OBITER  DICTUM.    See  Dictum. 

OBLATIO  (Lat.).  In  Civil  Law.  A 
tender  of  money  in  payment  of  debt  made  by 
debtor  to  creditor.    L.  9,  C.  de  solut.  What- 


OBLIGATIO 


250 


OBLIGATIO 


ever  is  offered  to  tne  church  by  the  pious. 
Calvinus,  Lex. ;  Vicat,  Voc.  Jur. 

OBLIGATIO.     In  Roman  Law.  A 

legal  bond  which  obliges  us  to  the  perform- 
ance of  something  in  accordance  with  the 
law  of  the  land.    Ortolan,  Inst.  2,  §  1179. 

It  corresponded  nearly  to  our  word  contract. 
Justinian  says,  ''Obligatio  est  juris  vinculum, 
quo  necessitate  adstringimur  alicujus  solvendcB 
rei,  secundum  nostroe  civitatis  jura."  Pr.  J. 
3.  13. 

The  Romans  considered  that  obligations  derived 
their  validity  solely  from  positive  law.  At  first 
the  only  ones  recognized  were  those  established  in 
special  cases  in  accordance  with  the  forms  pre- 
scribed by  the  strict  jus  civilis.  In  the  course  of 
time,  however,  the  praetoriiin  jurisdiction,  in  miti- 
gation of  the  primitive  rigor  of  the  law,  introduced 
new  modes  of  contracting  obligations  and  provided 
the  means  of  enforcing  them  :  hence  the  twofold 
division  made  by  Justinian  of  obliyativnes  civiles, 
and  ob/igationeH  prsetorise.  Inst.  1.  3.  13.  But  there 
was  a  third  class,  the  ohliyatiunes  natiirolen,  which 
derived  their  validity  from  the  law  of  nature  and 
nations,  or  the  natural  reason  of  mankind.  These 
had  not  the  binding  force  of  the  other  classes,  not 
being  capable  of  enforcement  by  action,  and  are, 
therefore,  not  noticed  by  Justinian  in  his  classifica- 
tion ;  but  they  had,  nevertheless,  a  certain  efiicacy 
even  in  the  civil  law :  for  instance,  though  a  debt 
founded  upon  a  natural  obligation  could  not  be 
recovered  by  an  action,  yet  if  it  was  voluntarily 
paid  by  the  debtor  he  could  not  recover  it  back,  as 
he  might  do  in  the  case  of  money  paid  by  mistake, 
etc.  where  no  natural  obligation  existed.  L.  38,  pr. 
D.  12.  6.    And  see  Ortolan,  2,  §  1180. 

The  second  classification  of  obligations  made  by 
Justinian  has  regard  to  the  way  in  which  they 
arise.  They  were,  in  this  aspect,  either  ex  con- 
tractu or  quasi  ex  contractu,  or  ex  malejicio  or  quasi 
ex  malejicio.  Inst.  2.  3.  13.  These  will  be  discussed 
separately. 

SJ.  Obligationes  ex  contractu,  those  founded 
upon  an  express  contract,  are  again  subdivided 
into  four  classes,  with  reference  to  the  mode 
in  which  they  are  contracted.  The  contract 
might  be  entered  into  re,  verbis.  Uteris,  or  con- 
sensu. 

A  contract  was  entered  into  re  by  the 
actual  transfer  of  a  thing  from  one  party  to 
the  other.  Though  in  such  cases  the  under- 
standing of  the  parties  as  to  the  object  of  the 
transfer,  and  the  conditions  accompanying  it, 
formed  an  essential  part  of  the  contract,  yet 
it  was  only  by  the  actual  delivery  of  the 
thing  that  the  contract  was  generated.  The 
only  contracts  which  could  be  entered  into  in 
this  way  were  those  known  to  our  law  as 
bailments, — a  term  derived  from  the  French 
word  bailler,  to  deliver,  and  evidently  point- 
ing to  the  same  characteristic  feature  in  the 
translation  which  the  Romans  indicated  by 
the  word  re.  These  were  the  mutuum,  or 
loan  of  a  thing  to  be  consumed  in  the  using 
and  to  be  returned  in  kind,  the  co7n7uodatum, or 
gratuitous  loan  of  a  thing  to  be  used  and  re- 
turned, the  depositum,  or  delivery  of  a  thing 
to  be  kept  in  safety  for  the  benefit  of  the  de- 
positor, and  the  jngnus,  or  delivery  of  a  thing 
in  pledge  to  a  creditor,  as  security  for  his 
debt.  See  Mutuum  ;  Commodatum  ;  Deposi- 
tum ;  PiGNUs;  Ortolan,  Inst.  1208  et  seq. ; 
Mackeldey,  Rem.  Recht,  ^  39G-408.  Be- 


sides the  above-named  contractus  reales,  a 
large  class  of  contracts  which  had  no  special 
names,  and  were  thence  called  cow^rac^^t*  inno- 
minati,  were  included  under  this  head,  from 
the  fact  that  they,  like  the  former,  gave  rise 
th  e  actio prcBscriptis  verbis.  Some  of  these  were 
the  contracts  of  exchange,  of  mutual  compro- 
mise, of  doubtful  or  contested  claims  (some- 
what resembling  our  accord  and  satisfaction), 
of  factorship,  etc.  See  Mackeldey,  22  409- 
414. 

3.  Contracts  were  entered  into  verbis,  by 
a  formal  interrogation  by  one  party  and  re- 
sponse by  the  other.  The  interrogation  was 
called  stipulatio,  and  the  party  making  it, 
reus  stipulandi.  The  response  was  called 
promissio,  and  the  respondent,  reus  pro- 
mittendi.  The  contract  itself,  consisting  of 
the  interrogation  and  response,  was  often 
called  stipidatio.  In  the  time  of  the  earlier 
jurists,  the  stipulation  could  only  be  entered 
into  by  the  use  of  certain  formulary  words 
by  the  parties:  as,  for  instance,  Spondes?  do 
you  promise?  /^onc?eo,  I  promise ;  Dabisf 
will  you  give  ?  Dabo,  I  will  give ;  Fades  ? 
will  you  do  this?  Faciam,  I  will  do  it,  etc. 
etc.  But  by  a  constitution  of  the  emperor 
Leo,  A.D.  469,  the  obligation  to  use  these  par- 
ticular words  was  done  away,  and  any  words 
which  expressed  the  meaning  of  the  parties 
were  allowed  to  create  a  valid  stipulation, 
and  any  language  understood  by  the  parties 
might  be  used  with  as  much  effect  as  Latin. 
Such  contracts  were  called  verbis,  because 
their  validity  depended  entirely  upon  the  use 
of  the  words.  The  mere  agreement  of  tho 
parties  without  using  the  question  and  re- 
sponse could  not  beget  a  stipulation  |  and,  on 
the  other  hand,  if  the  question  and  response 
had  been  used,  the  obligation  was  created 
although  there  might  be  an  absence  of  con- 
sent. In  this  latter  case,  however,  equitable 
relief  would  be  granted  by  the  praetor.  Orto- 
lan, Inst.  §  1 240.  Stipulations,  and,  indeed,  all 
other  forms  of  contracts,  might  be  made  either 
pure,  i.e.  absolutely,  or  in  diem,  i.e.  to  take 
effect  at  a  future  day,  or  sub  conditione,  i.e. 
conditionally.  But  some  kinds  of  conditions, 
such  as  those  physically  impossible,  were 
inadmissible,  and  invalidated  the  contract; 
while  others,  such  as  those  which  were  ab- 
surd, were  themselves  invalidated,  and  the 
contract  was  considered  as  having  been  made 
absolutely.  Mackeldey,  415-421 ;  Ortolan, 
Inst.  II  1235-1413  ;  Inst.  3.  13-20. 

4,  Contracts  entered  into  Uteris  were  obso- 
lete in  the  reign  of  Justinian.  In  the  earlier 
days  of  Roman  jurisprudence,  every  citizen 
kept  a  private  account-book.  If  a  creditor,  at 
the  request  of  his  debtor,  entered  in  such  book 
his  charge  against  his  debtor,  such  entry, 
in  pursuance  of  the  request,  constituted  not 
merely  evidence  of  a  contract,  but  the  con- 
tract itself.  This  was  the  contract  formed 
'Uteris,  in  writing.  Tho  debtor,  on  his  part, 
might  also  make  a  corresponding  entry  of  the 
transaction  in  his  own  book  This  was,  in  fact, 
expected  of  him,  and  was  generally  done;  but 
it  seems  not  to  have  been  necessary  to  the 


OBLIGATIO 


251 


OBLIGATION 


validity  of  the  contract.  The  entry  was  made 
in  the  form  of  a  fictitious  payment ;  it  w  as 
!  allowable  only  in  pecuniary  transactions ;  it 
I  must  be  simple  and  unconditional,  and  could 
I  not  be  made  to  take  effect  at  a  future  day. 
The  charge  might  be  made  against  the  ori- 
ginal  debtor,  a  re  in  personam,  or  against  a 
'  third  person  who  agreed  to  take  his  place,  a 
persona  in  personam.   This  species  of  literal 
contract  was  called  nomina,  nomina  transcrip- 
tiiia,  or  accepillatio  et  expensilaiio.  Ortolan, 
Inst.  U  1414--1428. 

5.  There  were  two  other  literal  contracts 
known  to  the  early  jurisprudence,  called  sijn- 
graphia  and  chirographia  ;  but  these  even  in 

I  the  time  of  Gains  had  become  so  nearly  obso- 
lete that  very  little  is  known  about  them. 
All  these,  it  must  be  borne  in  imind,  were 
contracts  themselves,  not  merely  evidences  of 
a  contract ;  and.  this  distinguishes  them  from 
the  instruments  of  writing  in  use  during  the 
latter  ages  of  the  civil  law.  Ortolan,  Inst.  H 
1414-1441 ;  Mackeldey,  g  422. 

Contracts  were  made  consensu,  by  the  mere 
agreement  of  the  contracting  parties.  Al- 
though such  agreement  might  be  proved  by  a 
written  instrument,  as  well  as  in  other  ways, 
yet  the  writing  was  only  evidence  of  the  con- 
tract, not  the  contract  itself.  This  species  of 
consensual  contracts  are  emptio  et  venditio,  or 
sale,  locatio  et  condiictio,  or  hiring,  emphyteusis, 
or  conveyance  of  land  reserving  a  rent,  so- 
cietas,  or  partnership,  and  mandatum,  or 
agency.    See  these  words. 

6.  Obligationes  quasi  ex  contractu.  In 
the  Roman  law,  persons  who  had  not  in  fact 
entered  into  a  contract  were  sometimes  treated 
as  if  they  had  done  so.  Their  legal  position 
in  such  cases  had  considerable  resemblance  to 
that  of  the  parties  to  a  contract,  and  is  called 
an  obligatio quasi  excontractu.  Such  an  obliga- 
tion M^as  engendered  in  the  cases  of  iiego- 
tiorum  gestio,  or  unauthorized  agency,  of  com- 
munio  incidens,  a  sort  of  tenancy  in  common 
not  originating  in  a  contract,  of  solutio  in- 
debiti,  or  the  payment  of  money  to  one  not 
entitled  to  it,  of  the  tutela  and  cura,  re- 
sembling the  relation  of  guardian  and  ward, 
of  the  additio  hereditatis  and  agnitio  bonorum 
possessionis,  or  the  acceptance  of  an  heirship, 
and  many  others.  Some  include  in  this  class 
the  constitutio  dotis,  settlement  of  a  dower. 
Ortolan,  Inst.  U 1522-1632 ;  Mackeldey,  457 
-468. 

7.  Obligationes  ex  mahficio  or  ex  delicto, 
'rhetermsmalejicium,  delictum,  embraced  most 
of  the  injuries  which  the  common  law  de- 
nominates torts,  as  well  as  others  which  are 
now  considered  crimes.  This  class  includes 
Jurtum,  theft,  rapina,  robbery,  damnum,  or 
injury  to  property,  whether  direct  or  conse- 
quential, and  injuria,  or  injury  to  the  person 
or  reputation.  The  definitions  here  given  of 
damnum  and  injuria  are  not  strictly  accurate, 
but  M'ill  serve  to  convey  an  idea  of  the  dis- 
tinction between  them.  All  such  acts,  from 
the  instant  of  their  commission,  rendered  the 
perpetrator  liable  for  damages  to  the  partj 
injured,  and  were,  therefore,  considered  toori- 


finate  an  oUi(/atio.  Inst.  4.  1-4  ;  Ortolan, 
nst.  U  1715-i780. 
Obligationes  quasi  ex  delicto.  This  class 
embraces  a.'l  torts  not  coming  under  the  de- 
nomination of  delicta  and  not  liaving  a  special 
form  of  action  provided  for  them  \)y  law. 
They  differed  widely  in  character,  and  at 
common  law  would  in  some  cases  give  rise  to 
an  action  on  the  case,  in  others  to  an  action 
on  an  implied  contract.  Ortolan,  Inst.  1781- 
1792. 

Obligationes  ex  variis  causarum  fjguris. 
Although  Justinian  confined  the  divisions  of 
obligations  to  the  four  classes  which  have 
been  enumerated,  there  are  many  species  of 
obligations  which  cannot  properly  be  reduced 
within  any  of  these  classes.  Some  authori- 
ties have,  consequently,  established  a  fifth 
class,  to  receive  the  odds  and  ends  which 
belonged  nowhere  else,  and  have  given  to 
this  class  the  above  designati(m,  borrowed 
from  Gains,  1.  1,  pr.  §  1  D.  44,  7.  See  Mac- 
keldey, \l  474-482. 

OBLIGATION  (from  Lat.  obligo,  ligo,  to 
bind).    A  duty. 

A  tie  which  binds  us  to  pay  or  do  some- 
thing agreeably  to  the  laws  and  customs  of 
the  country  in  which  the  obligation  is  made. 
Inst.  3.  14. 

A  bond  containing  a  penalty,  with  a  con- 
dition annexed,  for  the  payment  of  money, 
performance  of  covenants,  or  the  like,  and 
which  difi'ers  from  a  bill,  which  is  generally 
without  a  penalty  or  condition,  though  it  may 
be  obligatory.    Coke,  Litt.  172. 

A  deed  whereby  a  man  binds  himself  un- 
der a  penalty  to  do  a  thing.  Comyns,  Dig. 
Obligation  [A);  2  Serg.  &  R.  Penn.  502 ;  6 
Vt.  40  5  1  Blackf.  Ind.  241 ;  Harp.  So.  C.  434 ; 
1  Baldw.  C.  C.  129  ;  Bouvier,  Inst.  Index. 

An  absolute  obligation  is  one  which  gives 
no  alternative  to  the  obligor,  but  requires  ful- 
filment according  to  the  engagement. 

An  accessory  obligation  is  one  which  is  de- 
pendent on  the  principal  obligation :  for  ex- 
ample, if  I  sell  you  a  house  and  lot  of  ground, 
the  principal  obligation  on  my  part  is  to  make 
you  a  title  for  it ;  the  accessory  obligation  is 
to  deliver  you  all  the  title-papers  which  I  have 
relating  to  it,  to  take  care  of  the  estate  till 
it  is  delivered  to  you,  and  the  like. 

An  alternative  obligation  is  where  a  person 
engages  to  do  or  to  give  several  things  in 
such  a  manner  that  the  payment  of  one  will 
acquit  him  of  all. 

Thus,  if  A  agrees  to  give  B,  npon  a  sufficient  con- 
sideration, a  horse,  or  one  hundred  dollars,  it  is  an 
alternative  obligation.  Pothier,  Obi.  pt.  2,  c.  3,  art. 
6,  no.  245. 

In  order  to  constitute  an  alternative  obligation, 
it  is  necessary  that  two  or  more  things  should  be 
promised  disjunctively:  Avhere  they  are  promised 
conjunctively,  there  are  as  many  obligations  as  the 
things  which  are  enumerated;  but  where  they  are 
in  the  alternative,  though  they  are  all  due,  there  is 
but  one  obligation,  which  may  be  discharged  by 
the  payment  of  any  of  them. 

The  choice  of  performing  one  of  the  obligations 
belongs  to  the  obligor,  unless  it  is  expressly  agreed 
that  it  shall  belong  to  the  creditor.    Dougl.  14 


OBLIGATION 


25; 


OBLIGATION 


1  Ld.  Raym.  279;  4  Mart.  La.  n.  s.  167.    If  one  of  ! 
the  acts  is  prevented  by  the  obligee  or  the  act  of  | 
God,  the  obligor  is  discharged  from  both.    See  2  ! 
Evans,  Pothier,  Obi.  52-54;  Viner,  Abr.  Condition 
(Sb);  Conjunctive;  Disjunctive;  Election. 

A  civil  obligation  is  one  which  has  a  bind- 
ing operation  in  law,  and  which  gives  to  the 
obligee  the  right  of  enforcing  it  in  a  court  of 
justice ;  in  other  words,  it  is  an  engagement 
binding  on  the  obligor.  4  Wheat.  1§7 ;  12  id. 
318,  337. 

Civil  obligations  are  divided  into  express  and  im- 
plied, pure  and  conditional,  primitive  and  second- 
ary, principal  and  accessory,  absolute  and  alterna- 
tive, determinate  and  indeterminate,  divisible  and 
indivisible,  single  and  penal,  and  joint  and  several. 
They  are  also  purely  personal,  purely  real,  or  mixed. 

A  CO ;icZi7io?iaZ  obligation  is  one  the  execution 
of  which  is  suspended  by  a  condition  which 
has  not  been  accomplished,  and  subject  to 
which  it  has  been  contracted. 

A  determinate  obligation  is  one  which  has 
for  its  object  a  certain  thing:  as,  an  obliga- 
tion to  deliver  a  certain  horse  named  Buce- 
phalus. In  this  case  the  obligation  can  only 
be  discharged  by  delivering  the  identical 
horse. 

A  divisible  obligation  is  one  which,  being 
a  unit,  may  nevertheless  be  lawfully  divided 
with  or  without  the  consent  of  the  parties. 

It  is  clear  that  it  may  be  divided  by  consent,  as 
those  who  made  it  may  modify  or  change  it  as  they 
please.  But  some  obligations  may  be  divided  with- 
out the  consent  of  the  obligor:  as,  where  a  tenant 
is  bound  to  pay  two  hundred  dollars  a  year  rent  to 
his  landlord,  the  obligation  is  entire ;  yet,  if  his 
landlord  dies  and  leaves  two  sons,  each  will  be  en- 
titled to  one  hundred  dollars;  or  if  the  landlord 
sells  one  undivided  half  of  the  estate  yielding  the 
rent,  the  purchaser  will  be  entitled  to  receive  one 
hundred  dollars  and  the  seller  the  other  hundred. 
See  Apportionment. 

Express  or  conventional  obligations  are 
those  by  which  the  obligor  binds  himself  in 
express  terms  to  perform  his  obligation. 

Imperfect  obligations  are  those  which  are 
not  binding  on  us  as  between  man  and  man, 
and  for  the  non-performance  of  which  we  are 
accountable  to  God  only :  such  as  charity  or 
gratitude.  In  this  sense  an  obligation  is  a 
mere  duty.    Pothier,  Obi.  art.  prel.  n.  1. 

An  implied  obligation  is  one  which  arises 
by  operation  of  law :  as,  for  example,  if  I  send 
you  daily  a  loaf  of  bread,  without  any  express 
authority,  and  you  make  use  of  it  in  your 
family,  the  law  raises  an  obligation  on  your 
part  to  pay  me  the  value  of  the  bread. 

An  indeterminate  obligation  is  one  where 
the  obligor  binds  himself  to  deliver  one  of  a 
certain  species :  as,  to  deliver  a  horse,  where 
the  delivery  of  any  horse  will  discharge  the 
obligation. 

An  indivisible  obligation  is  one  which  is 
not  susceptible  of  division:  as,  for  example, 
if  I  promise  to  pay  you  one  hundred  dollars, 
you  cannot  assign  one-half  of  this  to  another, 
80  as  to  give  him  a  right  of  action  against  me 
for  his  share.    See  Divisible. 

K  joint  obligation  is  one  by  which  several 
obligors  promise  to  the  obligee  to  perform  the 
obligation.  When  the  obligation  is  only  joint, 


and  the  obligors  do  not  promise  separately 
to  fulfil  their  engagement,  they  must  be  all 
sued,  if  living,  to  compel  the  performance; 
or,  if  any  be  dead,  the  survivors  must  all  be 
sued.    See  Parties  to  Actions. 

A  natural  or  moral  obligation  is  one  which 
cannot  be  enforced  by  action,  but  which  is 
binding  on  the  party  who  makes  it  in  con- 
science and  according  to  natural  justice. 

As,  for  instance,  when  the  action  is  barred  by  the 
act  of  limitation,  a  natural  obligation  still  subsists, 
although  the  civil  obligation  is  extinguished.  5 
Binn.  Penn.  573.  Although  natural  obligations  can- 
not be  enforced  by  action,  they  have  the  following  ef- 
fect: firnt,  no  suit  will  lie  to  recover  back  what  has 
been  paid  or  given  in  compliance  with  a  natural 
obligation,!  Term,  285;  IDall.  Penn.  184:  second, 
a  natural  obligation  is  a  sufficient  consideration  for 
anew  contract.  2  Binn.  Penn.  591;  5  id.  33;  Yelv. 
41  «,  n.  1;  Cowp.  290;  2  Blackstone,  Comm.  445; 
3  Bos.  &  P.  249,  n.;  2  East,  506;  3  Taunt.  311;  5 
id.  36 ;  3  Pick.  Mass.  207  ;  Chitty,  Contr.  10 ;  Con- 
sideration. 

A  penal  obligation  is  one  to  which  is  at- 
tached a  penal  clause,  which  is  to  be  enforced 
if  the  principal  obligation  be  not  performed. 
See  Liquidated  Damages. 

A  perfect  obligation  is  one  which  gives  a 
right  to  another  to  require  us  to  give  him 
something  or  not  to  do  something.  These 
obligations  are  either  natural  or  moral,  or 
they  are  civil. 

A.  personal  obligation  is  one  by  which  the 
obligor  binds  himself  to  perform  an  act,  with- 
out directly  binding  his  property  for  its  per- 
formance. 

It  also  denotes  an  obligation  in  which  the 
obligor  binds  himself  only,  not  including  his 
heirs  or  representatives. 

A  primitive  obligation,  which  in  one  sense 
may  also  be  called  a  principal  obligation,  is 
one  which  is  contracted  with  a  design  that  it 
should  itself  be  the  first  fulfilled. 

A  principal  obligation  is  one  which  is  the 
most  important  object  of  the  engagement  of 
the  contracting  parties. 

A  pure  or  simple  obligation  is  one  which  is 
not  suspended  by  any  condition,  either  be- 
cause it  has  been  contracted  without  condi- 
tion, or,  having  been  contracted  with  one,  it 
has  been  fulfilled. 

A  real  obligation  is  one  by  which  real  estate, 
and  not  the  person,  is  liable  to  the  obligee  for 
the  performance. 

A  familiar  example  will  explain  this.  When  an 
estate  owes  an  easement  as  a  right  of  way,  it  is  tho 
thing,  and  not  the  owner,  who  owes  the  easement. 
Another  instance  occurs  when  a  person  buys  an 
estate  which  has  been  mortgaged,  subject  to  tho 
mortgage:  he  is  not  liable  for  the  debt,  though  his 
estate  is.  In  these  cases  the  owner  has  an  interest 
only  because  he  is  seised  of  the  servient  e.>tate  or 
the  mortgaged  premises,  and  he  may  discharge 
himself  by  abandoning  or  parting  with  the  property. 
The  obligation  is  both  personal  and  real  when  the 
obligor  has  bound  himself  and  pledged  his  estate 
for  the  fulfilment  of  his  obligations. 

A  secondarii  obligation  is  one  which  is  con- 
tracted and  is  to  be  performed  in  case  the 
primitive  cannot  be.  For  example,  if  I  sell 
you  my  house,  I  bind  myself  to  give  a  title;  but 
I  find  I  cannot,  as  the  title  is  in  another ;  then 


OBLIGATION  OF  CONTRACTS  253 


OBSTRUCTING  PROCESS 


my  secondary  obligation  is  to  pay  you  dam- 
ages for  my  non-performance  of  my  obliga- 
I  tion. 

A  several  obligation  is  one  by  which  one 
j  individual,  or,  if  there  be  more,  several  in- 
I  dividuals,  bind  themselves  separately  to  per- 
form the  engagement.  In  this  case  each 
!  obligor  may  be  sued  separately  ;  and  if  one  or 
more  be  dead,  their  respective  executors  may 
be  sued.    See  Parties  to  Actions. 

A  single  obligation  is  one  without  any 
penalty:  as,  where  I  simply  promise  to  pay 
you  one  hundred  dollars.  This  is  called  a 
single  bill,  when  it  is  under  seal. 

OBLIGATION  OF  CONTRACTS. 
See  Impairing  the  Obligation  of  Contracts. 

OBLIGEE.  The  person  in  favor  of  whom 
some  obligation  is  contracted,  whether  such 
obligation  be  to  pay  money  or  to  do  or  not  to 
do  something.    La.  Code,  art.  3522,  no.  11. 

Obligees  are  either  several  or  joint.  An 
obligee  is  several  when  the  obligation  is  made 
to  him  alone ;  obligees  are  joint  when  the 
obligation  is  made  to  two  or  more ;  and  in  that 
event  each  is  not  a  creditor  for  his  separate 
share,  unless  the  nature  of  the  subject  or  the 
particularity  of  the  expression  in  the  instru- 
ment lead  to  a  different  conclusion.  2  Pothier, 
Obi.  Evans  ed.  56  ;  Dy.  350  a,  pi.  20  ;  Hob. 
172,;  2  Brownl.  207  ;  Yelv.  177  ;  Croke  Jac. 
251. 

OBLIGOR.  The  person  who  has  engaged 
to  perform  some  obligation.  La.  Code,  art. 
3522,  no.  12.    One  who  makes  a  bond. 

Obligors  are  joint  and  several.  They 
are  joint  when  they  agree  to  pay  the  obliga- 
tion jointly  ;  and  then  the  survivors  only  are 
liable  upon  it  at  law,  but  in  equity  the  assets 
of  a  deceased  joint  obligor  may  be  reached. 
1  Brown,  Ch.  29  ;  2  Ves.  Ch.  101,  371.  They 
are  several  when  one  or  more  bind  themselves 
each  of  them  separately  to  perform  the  obli- 
gation. In  order  to  become  an  obligor,  the 
party  must  actually,  either  himself  or  by  his 
attorney,  enter  into  the  obligation  and  execute 
it  as  his  own.  If  a  man  sign  and  seal  a  bond 
as  his  own,  and  deliver  it,  he  will  be  bound 
by  it  although  his  name  be  not  mentioned 
in  the  bond.  4  Ala.  479 :  4  Ilayw.  No.  C. 
239  ;  4  M'Cord,  So.  C.  203  ;  7  Cow.  N.  Y. 
484 ;  2  Bail.  So.  C.  190  ;  Brayt.  Vt.  38  ;  2 
Hen.  &  M.  Va.  398  ;  5  Mass.  538  ;  2  Dan. 
Ky.  463  ;  4  Munf.  Va.  380 ;  4  Dev.  No.  C. 
272.  When  the  obligor  signs  between  the 
penal  part  and  the  condition,  still  the  latter 
will  be  a  part  of  the  instrument.  7  Wend. 
N.  Y.  345 ;  3  Hen.  &  M.  Va.  144. 

3*  The  execution  of  a  bond  by  the  obligor, 
in  blank,  with  verbal  authority  to  fill  it  up,  does 
not  bind  the  obligor,  though  it  is  afterwards 
filled  up,  unless  the  bond  is  redelivered  or 
acknowledged  or  adopted.  1  Yerg.  Tenn.  69, 
149 ;  1  Hill,  N.  Y.  267  ;  2  Nott  &  M'C.  So. 
C.  125 ;  2  Brock.  64 ;  1  Ohio,  368  ;  2  Dev. 
No.  C.  369  ;  6  Gill  &  J.  Md.  250.  But  see, 
contra,  17  Serg.  &  R.  Penn.  438  ;  and  see  6 
Serg.  &  R.  Penn.  308 ;  Wright,  Ohio,  742. 

OBREPTION.    Acquisition  of  escheats, 


etc.  from  sovereign,  by  making  false  repro 
sentations.  Bell,  Diet.  Subreption;  Calvinua, 
Lex. 

OBROGATION.  The  annulling  a  law, 
in  whole  or  in  part,  by  passing  a  law  contrary 
to  it.  The  alteration  of  a  law.  Vicat,  Voc. 
Jur. ;  Calvinus,  Lex. 

OBSCENITY.  In  Criminal  Law. 
Such  indecency  as  is  calculated  to  pnnnote 
the  violation  of  the  law  and  the  general  cor- 
ruption of  morals. 

The  exhibition  of  an  obscene  picture  is  an 
indictable  offence  at  common  law,  although 
not  charged  to  have  been  exhibited  in  public, 
if  it  be  averred  that  the  picture  was  exhi])ited 
to  sundry  persons  for  money.  2  Serg.  &  R. 
Penn.  91.    See  Duane,  Cr.  Cas.  64. 

OBSERVE.  In  Civil  Law.  To  per- 
form that  which  has  been  prescribed  by  some 
law  or  usage.    Dig.  1.  3.  32. 

OBSOLETE.  A  term  applied  to  laws 
which  have  lost  their  efl&cacy  without  being 
repealed. 

A  positive  statute,  unrepealed,  can  never  be  re- 
pealed by  non-user  alone.  4  Yeates,  Penn.  181, 
215;  1  P.  A.  Browne,  Penn.  App.  28;  13  Serg.  & 
R.  Penn.  447.  The  disuse  of  a  law  is  at  most  only 
presumptive  evidence  that  society  has  consented  to 
such  a  repeal:  however  this  presumption  may  ope- 
rate on  an  unwritten  law,  it  cannot,  in  general,  act 
upon  one  which  remains  as  a  legislative  act  on  tho 
statute-book  ;  because  no  presumption  can  set  aside 
a  certainty.  A  written  law  may  indeed  become 
obsolete  when  the  object  to  which  it  was  intended 
to  apply,  or  the  occasion  for  which  it  was  enacted, 
no  longer  exists.  1  P.  A.  Browne,  Penn.  App.  28. 
"  It  must  be  a  very  strong  case,"  says  Chief- justice 
Tilghman,  "to  justify  the  court  in  deciding  that 
an  act  standing  on  the  statute-book,  unrepealed,  is 
obsolete  and  invalid.  I  will  not  say  that  such  case 
may  not  exist, — where  there  has  been  a  non-user  for 
a  great  number  of  years. — where,  from  a  change  of 
times  and  manners,  an  ancient  sleeping  statute 
would  do  great  mischief  if  suddenly  brought  into 
action, — where  a  long  practice  inconsistent  with  it 
has  prevailed,  and  specially  where  from  other  and 
latter  statutes  it  might  be  inferred  that  in  the  ap- 
prehension of  the  legislature  the  old  one  was  not 
in  force."  13  Serg.  &  R.  Penn.  452;  Rutherforth, 
Inst.  b.  2,  c.  6,  s.  19 ;  Merlin,  Repert.  Desuetude. 

OBSTRUCTING  PROCESS.  In 
Criminal  Law.  The  act  by  which  one  or 
more  persons  attempt  to  prevent,  or  do  pre- 
vent, the  execution  of  lawful  process. 

2.  The  officer  must  be  prevented  by  actual 
violence,  or  by  threatened  violence  accom- 
panied by  the  exercise  of  force,  or  by  those 
having  capacity  to  employ  it,  by  which  the 
officer  is  prevented  from  executing  his  writ. 
The  officer  is  not  required  to  expose  his  per- 
son by  a  personal  conflict  with  the  offender. 
2  Wash.  C.  C.  1G9.  See  3  Wash.  C.  C.  335 ; 
12  Ala.  N.  s.  199. 

3.  This  is  an  offence  against  public  justice 
of  a  very  high  and  presumptuous  nature  ;  and 
more  particularly  so  where  the  obstruction  is 
of  an  arrest  upon  criminal  process.  A  person 
opposing  an  arrest  apon  criminal  process  be- 
comes thereby  particeps  criminis  ;  that  is,  an 
accessory  in  felony,  and  a  principal  in  high 
treason.    4  Blackstone,  Comm.  128  ;  2  H^w 


OBVENTIO 


254 


OFFER 


kins,  PI.  Cr.  c.  17,  s.  1 ;  1  Russell,  Crimes,  360. 
See  2  Gall.  C.  C.  15  ;  2  Chitty,  Crim.  Law, 
145,  note  a;  3  Vt.  110  ;  25  id.  415  ;  2  Strobh. 
So.  C.  73  ;  15  Mo.  486. 

OBVENTIO  {L2it.  obvenire,  to  fall  in).  In 
Civil  Law.  Rent  or  profit  accruing  from  a 
thing,  or  Iroui  industry.  It  is  generally  used 
in  the  plural. 

In  Old  English  Law.  The  revenue  of 
spiritual  living,  so  called.  Cowel.  Also,  in 
the  plural,  offerings.    Coke,  2d  Inst.  661. 

OCCUPANCY.  The  taking  possession 
of  those  things  corporeal  which  are  without 
an  owner,  with  an  intention  of  appropriating 
them  to  one's  own  use. 

Pothier  defines  it  to  be  the  title  by  which  one  ac- 
quires property  in  a  thing  which  belongs  to  nobody, 
by  taking  possession  of  it  with  design  of  acquiring 
it.  Tr.  du  Dr.  de  Propriete,  n.  20.  The  Civil  Code 
of  Louisiana,  art.  3375,  nearly  following  Pothier, 
defines  occupancy  to  be  ''A  mode  of  acquiring  pro- 
perty by  which  a  thing  which  belongs  to  nobody 
becomes  the  property  of  the  person  who  took  pos- 
eession  of  it  with  an  intention  of  acquiring  a  right 
of  ownership  in  it."  Occupancy  is  sometimes  used 
in  the  sense  of  occupation  or  holding  possession  ; 
but  this  does  not  appear  to  be  a  common  legal  use 
of  the  term. 

To  constitute  occupancy,  there  must  be  a 
taking  of  a  thing  corporeal,  belonging  to  no- 
body, W'ith  an  intention  of  becoming  the 
owner  of  it.    Coke,  Litt.  416. 

A  right  by  occupancy  attaches  in  the  finder 
of  lost  goods  unreclaimed  by  the  ow^ner;  in 
the  captor  of  beasts  ferce  naiurce,  so  long  as  he 
retains  possession,  2  Blackstone,  Comm.  403; 
the  owner  of  lands  by  accession,  and  the 
owner  of  goods  acquired  by  confusion. 

It  was  formerly  considered,  also,  that  the 
captor  of  goods  contraband  of  war  acquired 
a  right  by  occupancy ;  but  this  is  now  held 
otherwise,  such  goods  being  now  held  to  be 
primarily  vested  in  the  sovereign,  and  as  be- 
longing to  individual  captors  only,  to  the  ex- 
tent and  under  such  regulations  as  positive 
laws  may  prescribe.    2  Kent,  Comm.  290. 

OCCUPANT,  OCCUPIER.  One  who 
has  the  actual  use  or  possession  of  a  thing. 

When  the  occupiers  of  a  house  are  entitled 
to  a  privilege  in  consequence  of  such  occupa- 
tion, as  to  pass  along  a  way,  to  enjoy  a  pew, 
and  the  like,  a  person  who  occupies  a  part  of 
such  house,  how^ever  small,  is  entitled  to  some 
right,  and  cannot  he  deprived  of  it.  2  Barnew. 
&  Aid.  164;  1  Chitty,  Pract.  209,  210;  4 
Comyns,  Dig.  64 ;  5  id.  199. 

OCCUPATION.  Use  or  tenure :  as,  the 
house  is  in  the  occupation  of  A  B.  A  trade, 
busmcss,  or  mystery  :  as,  the  occupation  of  a 
printer. 

A  putting  out  of  a  man's  freehold  in  time 
of  war.    Coke,  Litt.  s.  412. 

OCCUPAVIT  (Lat.).   In  Old  Practice. 

The  name  of  a  writ  which  lies  to  recover 
the  ijosscssion  of  lands  when  they  have  been 
♦^aken  from  the  possession  of  the  owner  by 
occupation  [q.  v.). 

OCCUPIER.  One  who  is  in  the  enjoy- 
ment of  a  thing. 


He  may  be  the  occupier  by  virtue  of  a  lavr 
ful  contract,  either  express  or  implied,  or 
without  any  contract.  The  occupier  is,  in 
general,  bound  to  make  the  necessary  repairs 
to  the  premises  he  occupies :  the  cleansing  and 
repairing  of  drains  and  sewers,  therefore,  ia 
prima  facie  the  duty  of  him  who  occupies  the 
premises.    3  Q.  B.  449. 

OCHLOCRACY.  A  government  where 
the  authority  is  in  the  hands  of  the  multi- 
tude ;  the  abuse  of  a  democracy.  Vaum^ue, 
Diet,  du  Langage  Politique. 

OCTAVE  ( Law  Lat.  utas) .  In  Old  Eng- 
lish Practice.  The  eighth  day  inclusive 
after  a  least.  3  Sharswood,  Blackst.  Comm. 
277. 

OCTO  TALES  (Lat.  eight  such).  If, 
when  a  trial  at  bar  is  called  on,  the  number 
of  jurors  in  attendance  is  too  small,  the  trial 
must  be  adjourned,  and  a  decern  or  octo  tales 
awarded,  according  to  the  number  deficient: 
as,  at  common  law,  namely,  a  writ  to  the 
sheriflf  to  summon  eight  more  such  men  as 
were  originally  summoned.  3  Sharswood, 
Blackst.  Comm.  364. 

ODHALL  RIGHT.  The  same  as  allo- 
dial. 

OF  COURSE.  That  which  may  be  done 
in  the  course  of  legal  proceedings  wnthout  ; 
making  any  application  to  the  court ;  that 
which  is  granted  by  the  court,  without  further 
inquiry,  upon  its  being  asked :  as,  a  rule  to 
plead  is  a  matter  of  course. 

OFFENCE.    In  Criminal  Law.  The 

doing  that  which  a  penal  law  forbids  to  be 
done,  or  omitting  to  do  what  it  commands. 
In  this  sense,  it  is  nearly  synonymous  wnth 
crime.  In  a  more  confined  sense,  it  may  be 
considered  as  having  the  same  meaning  with 
misdemeanor;  but  it  differs  from  it  in  this, 
that  it  is  not  indictable,  but  punishable  sum-  i 
marily  by  the  forfeiture  of  a  penalty.  1 
Chitty,  Pract.  14. 

OFFER.    A  proposition  to  do  a  thing. 

2.  An  offer  ought  to  contain  a  right,  if  ac- 
cepted, of  compelling  the  fulfilment  of  the 
contract;  and  this  right,  when  not  expressed, 
is  alw\ays  implied. 

By  virtue  of  his  natural  liberty,  a  man  may 
change  his  wnll  at  any  time,  if  it  is  not  to  the 
injury  of  another:  he  may,  therefore,  revoke 
or  recall  his  offers  at  any  time  before  they 
have  been  accepted  ;  and,  in  order  to  deprive 
him  of  this  right,  the  offer  must  have  been 
accepted  on  the  terms  in  which  it  was  made. 
10  Ves.  Ch.  438 ;  2  Carr.  &  P.  553. 

3.  Any  qualification  of,  or  departure  from, 
those  terms,  invalidates  the  offer,  unless  the 
same  be  agreed  to  by  the  party  who  made  it. 
4  Wheat.  225;  3  Johns.  N.  Y.  534 ;  7  id.  470; 
6  Wend.  N.  Y.  103. 

When  the  offer  has  been  made,  the  party  is 
presumed  to  be  willing  to  enter  into  the  con- 
tract for  the  time  limited,  and,  if  the  time  be 
not  fixed  by  the  offer,  then  until  it  be  ex- 
pressly revoked  or  rendered  nugatory  by  a 
contrary  presumption.    6  Wend.  N.  x.  103- 


OFFICE 


255 


OHIO 


See  8  Serg.  &  R.  Penn.  243  ;  1  Pick.  Mass. 
278;  10  id.  326;  12  Johns.  N.  Y.  190;  9 
Port.  Ala.  COS;  1  Bell,  Comm.  326,  5th  ed.; 
Pothier,  Vente,  n.  32 ;  1  Bouvier,  Inst.  n.  577 
et  seq.  And  see  Acceptance  of  Contuacts  ; 
Assent  ;  Bid. 

OFFICE.  A  right  to  exercise  a  public 
function  or  employment,  and  to  take  the  lees 
and  emoluments  belonging  to  it.  SheHord, 
Mortm.  797  ;  Cruise,  Dig.  Index ;  3  Serg.  & 
R.  Penn.  149. 

Judicial  offices  are  those  which  relate  to  the 
administration  of  justice,  and  which  must  be 
exercised  by  persons  of  sufficient  skill  and 
experience  in  the  duties  which  appertain  to 
them. 

Military  offices  are  such  as  are  held  by 
soldiers  and  sailors  for  military  purposes. 

Ministerial  offices  are  those  which  give  the 
officer  no  power  to  judge  of  the  matter  to  be 
done,  and  require  him  to  obey  the  mandates 
of  a  superior.  7  Mass.  280.  See  5  Wend.  N. 
y.  170  ;  10  id.  514 ;  8  Vt.  512  ;  1  111.  280.  It 
is  a  general  rule  that  a  judicial  office  cannot 
be  exercised  by  deputy,  while  a  ministerial 
may. 

Political  offices  are  such  as  are  not  con- 
nected immediately  with  the  administration 
of  justice  or  the  execution  of  the  mandates 
of  a  superior  officer :  the  offices  of  the  presi- 
dent of  the  United  States,  of  the  heads  of  de- 
partments, of  the  members  of  the  legislature, 
are  of  this  number. 

In  the  United  States,  the  tenure  of  office 
never  extends  beyond  good  behavior.  .  In 
England,  offices  are  public  or  private.  The 
former  affect  the  people  generally  ;  the  latter 
are  such  as  concern  particular  districts  be- 
longing to  private  individuals.  In  the  United 
States,  all  offices,  according  to  the  above  defi- 
nition, are  public ;  but  in  another  sense  em- 
ployments of  a  private  nature  are  also  called 
offices;  for  example,  the  office  of  president  of 
a  bank,  the  office  of  director  of  a  corporation. 
For  the  incompatibility  of  office,  see  Incom- 
patibility; 4  Serg.  &  R.  Penn.  277  ;  4  Coke, 
Inst.  100  ;  Comyns,  Dig.  b.  7.  And  see,  gene- 
rally, 3  Kent,  Comm.  362 ;  Cruise,  Dig.  tit. 
25  ;  16  Viner,  Abr.  101 ;  Ayliffe,  Parerg.  395  ; 
Pothier,  Traite  des  Choses,  ^  2 ;  17  Serg.  & 
R.  Penn.  219;  Mandamus;  Quo  Warranto. 

OFFICE-BOOK.  A  book  kept  in  a  pub- 
lic office,  not  appertaining  to  a  court,  author- 
ized by  the  law  of  any  state. 

An  exemplification  of  any  such  office-book, 
when  authenticated  under  the  act  of  congress 
of  27th  March,  1804,  is  to  have  such  faith 
and  credit  given  to  it  in  every  court  and  office 
within  the  United  States  as  such  exemplifi- 
cation has  by  law  or  usage  in  the  courts  or 
offices  of  the  state  from  whence  the  same  has 
been  taken.  See  Foreign  Laws  ;  Foreign 
Judgment. 

OFFICE-COPY.  A  transcript  of  a  re- 
cord or  proceeding  filed  in  an  office  established 
by  law,  certified  under  the  seal  of  the  proper 
officer. 

OFFICE  FOUND.    In  English  Law. 


When  an  inquisition  is  made  to  the  king's  use 
of  any  thing,  by  virtue  of  office  of  him  who 
inquires,  and  the  inquisition  is  found,  it  is 
said  to  be  office  found.  See  Inquest  oi 
Office. 

OFFICER.  lie  who  is  lawfully  invested 
with  an  office. 

Executive  officers  are  those  whose  duties  arc 
mainly  to  cause  the  laws  to  be  executed. 

For  example,  the  president  of  the  United  State* 
of  America,  and  the  several  governors  of  the  differ- 
ent states,  are  executive  officers.  Their  duties  are 
pointed  out  in  the  national  constitution  and  in  the 
constitutions  of  the  several  states. 

Legislative  officers  are  those  whose  duties 
relate  mainly  to  the  enactment  of  laws,  such 
as  members  of  congress  and  of  the  several 
state  legislatures. 

These  officers  are  confined  in  their  duties,  by  the 
constitution,  generally  to  make  laws;  though  some- 
times, in  cases  of  impeachment,  one  of  the  houses 
of  the  legislature  exercises  judicial  functions  some- 
what similar  to  those  of  a  grand  jury,  by  present- 
ing to  the  other  articles  of  impeachment,  and  the 
other  house  acts  as  a  court  in  trying  such  impeach- 
ments. The  legislatures  have,  besides,  the  power 
to  inquire  into  the  conduct  of  their  members,  judge 
of  their  elections,  and  the  like. 

Judicial  officers  are  those  whose  duties  are 
to  decide  controversies  between  individuals, 
and  accusations  made  in  the  name  of  the  pub- 
lic against  persons  charged  with  a  violation 
of  the  law. 

Ministerial  officers  are  those  whose  duty  it 
is  to  execute  the  mandates,  lawfully  issued, 
of  their  superiors. 

Militai-y  officers  are  those  who  have  com- 
mand in  the  army  ;  and 

Naval  officers  are  those  who  are  in  com- 
mand in  the  navy. 

Officers  are  also  divided  into  public  officers  and 
those  who  are  not  public.  Some  officers  may  bear 
both  characters :  for  example,  a  clergyman  is  a  pub- 
lic officer  when  he  acts  in  the  performance  of  such 
a  public  duty  as  the  marriage  of  two  individuals,  4 
Conn.  209  ;  and  he  is  merely  a  private  person  when 
he  acts  in  his  more  ordinary  calling  of  teaching  his 
congregation.    See  4  Conn.  134;  18  Me.  155. 

Officers  are  required  to  exercise  the  func- 
tions which  belong  to  their  respective  offices. 
The  neglect  to  do  so  may,  in  some  cases,  sub- 
ject the  offender  to  an  indictment,  1  Yeates, 
Penn.  519  ;  and  in  others  he  will  be  liable 
to  the  party  injured.    1  Yeates,  Penn.  506. 

OFFICIAL.  In  OlA  Civil  Law.  The 
person  who  was  the  minister  of,  or  attendant 
upon,  a  magistrate. 

In  Canon  Law.  The  person  to  whom  the 
bishop  generally  commits  the  charge  of  bis 
spiritual  jurisdiction  bears  this  name.  Wood, 
Inst.  30,  505  ;  Merlin,  Repert. 

OFFICINA  JUSTITIiE.  The  workshop 
or  office  of  justice.  In  English  Law.  The 
chancery  is'  so  called,  because  all  writs  issue 
from  it,  under  the  great  seal,  returnable  into 
the  courts  of  common  law.    See  Chancery. 

OHIO.  One  of  the  new  states  of  the 
American  Union. 

2.  Massachusetts,  Connecticut,  and  Virginia 
claimed,  under  their  respective  charters,  the  tern- 


OHIO 


256 


OHIO 


tory  lying  northwest  of  the  river  Ohio.  At  the 
Bolicitation  of  the  continental  congress,  these 
claims  were,  soon  after  the  close  of  the  war  of 
independence,  ceded  to  the  United  States.  Vir- 
ginia, however,  reserved  the  ownership  of  the  soil 
of  three  million  seven  hundred  thousand  acres 
hetween  the  Scioto  and  the  Little  Miami  rivers,  for 
military  bounties  to  the  soldiers  of  her  line  who 
had  served  in  the  revolutionary  war;  and  Con- 
necticut reserved  three  million  six  hundred  and 
sixty-six  thousand  acres  in  northern  Ohio,  now 
usually  called  "  the  Western  Reserve."  The  history 
of  these  reservations,  and  of  the  several  "  pur- 
chases" under  which  land-titles  have  been  acquired 
in  various  parts  of  the  state,  will  be  found  in 
Albachi's  Annals  of  the  West;  in  the  Preliminary 
Sketch  of  the  History  of  Ohio,  in  the  lirst  volume 
of  Chase's  Statutes  of  Ohio ;  and  in  Swan's  Land 
Laws  of  Ohio.  The  conflicting  titles  of  the  states 
having  been  extinguished,  congress,  on  July  13, 
1787,  passed  the  celebrated  ordinance  for  the  govern- 
ment of  the  territory  northwest  of  the  river  Ohio. 
1  Curwen's  Revised  Statutes  of  Ohio,  86.  It  pro- 
vided for  the  equal  distribution  of  the  estates  of 
intestates  among  their  children,  gave  the  widow 
dower  as  at  common  law,  regulated  the  execution 
of  wills  and  deeds,  secured  perfect  religious  tolera- 
tion, the  right  of  trial  by  jury,  judicial  proceedings 
according  tothecourse  of  the  common  law,  the  bene- 
fits of  the  writ  of  habeas  corpus,  security  against  cruel 
and  unusual  punishments,  the  right  of  reasonable 
bail,  the  inviolability  of  contracts  and  of  private 
property,  and  declared  that  "  there  shall  be  neither 
slavery  nor  involuntary  servitude  in  the  said  terri- 
tory, otherwise  than  in  the  punishment  of  crimes 
whereof  the  party  shall  have  been  duly  convicted." 

3.  These  provisions  have  been,  in  substance, 
incorporated  into  the  constitution  and  laws  of  Ohio, 
as  well  as  of  the  other  states  which  have  since  been 
formed  within  "  the  territory."  The  legal  eflect  of 
the  ordinance  has  been  much  discussed,  and  the 
supreme  court  of  Ohio  and  the  circuit  court  of  the 
United  States  for  the  seventh  circuit,  on  the  one 
hand,  and  the  supreme  court  of  the  United  States, 
on  the  other,  have  arrived  at  directly  opposite  con- 
clusions in  respect  to  it.  By  the  former  it  was 
considered  a  compact  not  incompatible  with  state 
sovereignty,  and  as  binding  on  the  state  of  Ohio  as 
her  own  constitution  ;  while  the  latter  treated  it  as 
a  mere  temporary  statute,  which  was  abrogated  by 
the  adoption  of  the  constitution  of  the  United 
States.  5  Ohio,  41 0  ;  7  nl.  416  ;  17  id.  425  ;  1  Mc- 
Lean, 336;  3  id,  226;  3  How.  212,  bS9 ;  10  id.  82: 
S.  c,  8  Western  Law  Jour.  232. 

On  the  30th  of  October,  1802,  congress  passed  an 
act  making  provision  for  the  formation  of  a  state 
constitution,  under  which,  in  1803,  Ohio  was  ad- 
mitted into  the  Union,  under  the  name  of  "the 
State  of  Ohio."  This  constitution  was  never  sub- 
mitted to  a  vote  of  the  people.  It  continued  to  be 
the  organic  law  of  Ohio  until  September  1,  1851, 
when  it  was  abrogated  by  the  adoption  of  the 
present  constitution. 

4.  The  bill  of  rights  which  forms  a  part  of  this 
(tnstitution  contains  the  provisions  common  to 
such  instruments  in  the  constitutions  of  the  differ- 
ent states.  Such  are  the  prohibitions  against  any 
laws  impairing  the  right  of  peaceably  assembling 
to  consult  for  the  common  good,  to  bear  arms,  to 
have  a  trial  by  jury,  to  worship  according  to  the 
dictates  of  one's  own  conscience,  to  have  the  benefit 
of  the  writ  of  habeas  lorpus,  to  be  allowed  reason- 
able bail,  to  be  exempt  from  excessive  fines  and 
cruel  and  unusual  punishments,  not  to  be  held  to 
answer  for  a  capital  or  otherwise  infamous  crime 
unless  on  i)rescntment  or  indictment  of  a  grand 
jury,  to  have  a  copy  of  the  indictment,  the  aid  of 
syunsel,  compulsory  process  for  witnesses,  a  speedy 
Wid  public  trial,  to  be  privileged  from  testifying 


against  one's  self  or  to  be  twice  put  in  jeopardj 
for  the  same  oflFence.  Provision  is  also  made  against 
the  existence  of  slaverj',  against  transporting  of- 
fenders out  of  the  state,  against  imprisonment  for 
debt  unless  in  cases  of  fraud,  against  granting 
hereditary  honors,  against  quartering  soldiers  in 
private  houses,  for  the  security  of  persons  from 
unreasonable  arrest  or  searches,  and  for  the  freedom 
of  speech  and  the  press. 

Every  white  male  citizen  of  the  United  States, 
twenty-one  years  of  age,  who  has  resided  in  the 
state  one  year,  and  in  the  county,  township,  or 
ward  such  period  as  may  be  fixed  by  law,  next  pre- 
ceding election,  is  entitled  to  vote. 

The  Legislative  Power. 
This  is  lodged  in  a  General  Assembly,  consisting 
of  a  Senate  and  House  of  Representatives. 

5.  The  Senate  is  composed  of  thirty-five  mem- 
bers, elected  biennially,  one  in  each  of  the  senatorial 
districts  into  which  the  state  is  divided,  for  the 
term  of  two  years.  Senators  must  have  resided  in 
their  respective  districts  one  year  next  before  elec- 
tion, unless  absent  on  business  of  the  state  or  the 
United  States. 

The  House  of  Representatives  is  composed  of  one 
hundred  members,  elected  biennially,  one  in  each 
of  the  representative  districts  of  the  state,  for  the 
term  of  two  years,  by  the  voters  of  the  district.  A 
representative  must  have  resided  one  year  next 
preceding  the  election  in  the  county  or  district  for 
which  he  is  elected.  No  person  can  be  elected  to 
either  house  who  holds  office  under  the  United 
States  or  an  office  of  profit  under  the  state.  Pro- 
vision is  made  for  re-districting  the  state  every  ten 
years  from  1851,  by  dividing  and  combining  the 
existing  districts,  and  aflFording  additional  repre- 
sentatives during  a  part  of  the  decennial  period  to 
those  districts  which  have  a  surplus  population 
over  the  ratio.  The  assembly  cannot  grant  special 
charters  to  corporations,  but  may  provide  for  their 
creation  by  general  laws.  No  association  with 
banking  powers  can  be  authorized  until  the  act 
creiiting  it  has  been  submitted  to  the  people  and 
ap[)roved  by  a  majority  voting  at  that  election.  A 
debt  cannot  be  contracted  for  purposes  of  internal 
improvement.  Cities  and  incorporated  villages  are 
corporations  under  general  laws.  The  general 
assembly  may  not  pass  retroactive  laws,  but  may 
authorize  courts  to  carry  into  effect,  upon  such 
terms  as  may  be  just  and  equitable,  the  manifest 
intention  of  parties  and  officers,  by  curing  omis- 
sions, defects,  and  errors  in  instruments  and  pro- 
ceedings arising  out  of  their  want  of  conformity 
with  the  laws  of  the  state. 

TTie  Executive  Depttrtment 

6.  The  Governor  is  elected  biennially,  for  the 
term  of  two  years  from  the  second  Monday  of 
January  next  following  his  election,  and  until  his 
successor  is  qualified.  He  may  require  information, 
in  writing,  from  the  officers  in  the  executive  depart- 
ment, upon  any  subject  relating  to  the  duties  of 
their  respective  offices,  and  shall  see  that  the  laws 
are  faithfully  executed ;  may,  on  extraordinary 
occasions,  convene  the  general  assembly  by  procla- 
mation ;  in  case  of  disagreement  between  the  two 
houses  in  respect  to  the  time  of  adjournment,  has 
power  to  adjourn  the  general  assembly  to  such  time 
as  he  may  think  proper,  but  not  beyond  the  regular 
meetings  thereof ;  is  commander-in-chief  of  the 
military  jind  naval  forces  of  the  state,  except  when 
they  shall  be  called  into  the  service  of  the  United 
States;  and  has  power,  after  conviction,  to  grant 
reprieves,  commutations,  and  pardons  for  all  crimes 
and  offences,  except  treason  and  cases  of  impeach- 
ment, upon  such  conditions  as  he  may  think 
proper,  subject,  however,  to  such  regulations,  a* 
to  the  manner  of  applying  for  pardons,  as  may  bn 


OHIO 


257  OLERON,  LAWS  OF 


prescribed  by  law.    Upon  conviction  for  treason,  [ 
he  may  suspend  the  execution  of  the  sentence,  i 
and  report  the  case  to  the  general  assembly  at  its  I 
next  meeting,  when  the  general  assembly  shall  | 
either  pardon,  commute  the  sentence,  direct  its 
execution,  or  grant  a  further  reprieve.    He  must 
communicate  to  the  general  assembly,  at  every  regu- 
lar session,  each  case  of  reprieve,  commutation,  or 
pardon  granted,  stating  the  name  and  crime  of  the 
convict,  the  sentence,  its  date,  and  the  date  of  the 
commutation,  pardon,  or  reprieve,  with  his  reasons 
therefor. 

He  has  no  veto  power  upon  the  acts  of  the  legis- 
lature, and  his  power  of  appointment  is  extremely 
limited. 

The  Lientenant-Gorernor  is  elected  at  the  same 
time,  and  for  the  same  term  of  office,  as  the  gov- 
ernor. 

In  case  of  the  death,  impeachment,  resignation, 
removal,  or  other  disability  of  the  governor,  the 
powers  and  duties  of  the  office,  for  the  residue  of 
the  term,  or  until  lie  is  acquitted  or  the  disability 
be  removed,  devolve  upon  the  lieutenant-gov- 
ernor. 

He  is  president  of  the  senate  ex  officio,  but  pos- 
sesses only  a  casting  vote. 

A  Secretary  of  State,  a  Treasurer,  and  an  Attorney- 
General  are  also  elected  at  the  same  time,  for  the 
same  terra. 

An  Auditor  is  elected  once  in  four  years.  If 
any  of  these  offices  become  vacant,  the  governor 
appoints  incumbents  to  serve  till  the  next  general 
election,  after  thirty  days  occurs,  when  a  successor 
is  elected  for  a  full  term. 

The  Judicial  Potoer. 

7.  The  Supreme  Court  consists  of  five  judges, 
elected  l)y  the  people  for  five  years.  The  judges 
are  so  classified  that  one  goes  out  of  office  each 
year.  It  has  original  jurisdiction  over  writs  of 
quo  warranto,  mandamus,  habeas  corpus,  and  pro- 
cedendo, and  a  large  appellate  jurisdiction  by  writs 
o^f  error  from  inferior  courts.  It  may  issue  writs 
of  error  and  certiorari  in  any  criminal  case,  and 
supersedeas  in  any  case,  and  all  writs,  not  provided 
for,  which  are  necessary  to  enforce  the  administra- 
tion of  justice.  Writs  of  error,  certiorari,  habeas 
corpus,  and  supersedeas  may  be  issued  by  the  judge 
in  vacation. 

The  District  Court  is  composed  of  one  judge  of 
the  supreme  court  and  the  judges  of  the  common- 
pleas  court  for  the  district  in  which  the  court  is 
held.  One  session  at  least  of  this  court  is  to  be 
held  annually  in  each  county,  or  at  least  three  ses- 
sions annually  in  three  places  in  the  district.  It 
has  like  original  and  appellate  jurisdiction  with  the 
supreme  court  upon  writ  of  error  granted  by  the 
supreme  court,  or  some  judge  thereof  in  vacation. 

The  Court  of  Common  Pleas  is  composed  of  three 
judges,  elected  by  the  people  in  each  of  the  nine 
districts  into  which  the  state  is  divided,  for  the 
term  of  five  years.  Each  of  these  nine  districts  is 
divided  into  three  parts,  following  county-lines, 
and  as  nearly  equal  as  possible;  and  in  each  of 
these  sub-districts  one  judge  is  elected.  Courts  of 
common  pleas  are  to  be  held  by  one  or  more  of 
these  judges;  and  more  than  one  common-pleas 
court  may  be  held  in  the  district  at  the  same  time. 
This  court  has  original  jurisdiction  of  all  civil 
causes  where  the  matter  in  controversy  exceeds 
one  hundred  dollars,  and  a  service,  personal  or  by 
attachment  of  property,  can  be  made  in  the  county 
or  where  the  property  in  question  is  situated  in  the 
county.  This  court  has  also  almost  exclusively 
the  criminal  jurisdiction,  with  the  exception  of 
a  petty  jurisdiction  exercised  in  some  instances  by 
local  police  courts.  It  has  a  supervisory  jurisdic- 
tion in  cases  of  distribution  of  decedents'  property 
Dy  the  probate  courts.  Acts  1857,  p.  202.  It  may 
effectuate  the  intentions  of  panics,  by  curing  defect- 
VoL.  11.-17 


ive  instruments.  Acts  1859,  p.  40.  It  exerciHcs 
appellate  jurisdiction  also  of  cases  brought  from 
justices  of  the  peace  and  all  other  inferior  judicial 
tribunals.  A  writ  of  error  lies  from  this  court  to 
the  district  court. 

8,  A  Probate  Court  is  held  in  each  county  by  a 
probate  judge,  elected  f<jr  three  years  by  the  i)eople 
of  the  county.  This  court  has  jurisdiction  in  pro- 
bate and  testamentary  matters,  the  appointment 
of  administrators  an(l  guardians,  the  .settlement 
of  the  accounts  of  executors,  administrators,  and 
guardians,  and  such  jurisdicti(m  in  habeas  corpus, 
the  issuing  of  marriage  licenses,  and  for  the  sale 
of  land  by  executors,  administrators,  and  guard- 
ians, and  such  other  jurisdiction,  in  any  county 
or  counties,  as  may  be  provided  by  law. 

A  very  extensive  jurisdiction  is  now  exercised 
over  the  administration  of  trusts  upon  assignments 
made  by  failing  debtors  for  the  benefit  of  their 
creditors,  and  over  judgment  debtors  who  are 
accused  of  secreting  their  effects. 

Superior  courts  have  been  established,  under  au- 
thority of  the  constitution,  in  Cincinnati,  Colum- 
bus, Dayton,  and  Cleveland,  whose  jurisdiction  in 
civil  causes  is  concurrent  with  the  courts  of  com- 
mon pleas  within  their  respective  territorial  limits. 
Their  decisions  are  supervised  by  the  supreme 
court,  by  writ  of  error  allowed  by  that  court,  or  by 
one  of  its  judges  in  vacation. 

Juriaprtidence. 

The  common  law  of  England  is  the  basis  of  the 
civil  law  of  this  state,  modified  by  the  judicial 
rejection  of  that  part  which  is  "inapplicable  to  the 
condition  of  the  people  of  Ohio."  The  body  of  the 
general  laws  is  contained  in  Chase's  Statutes  of 
Ohio  from  1787  to  1833,  three  volumes,  and  in 
Curwen's  Revised  Statutes  from  1833  to  1861,  four 
volumes.  No  attempt  has  ever  been  made  to  ar- 
range or  classify  the  great  mass  of  local  legislation, 
including  the  charters  of  banks,  turnpikes,  rail- 
roads, and  manufacturing  companies,  the  bound- 
aries of  counties,  sales  of  school  lands,  acts  for 
the  relief  of  private  persons,  and  others  of  a  kin- 
dred nature;  and  complete  editions  of  these  latter 
laws  have  now  become  very  rare.  A  compendium 
of  the  laws  in  force  has  been  published  (1860)  by 
Messrs.  Swan  &,  Critchfield,  which,  with  Curwen's 
Revised  Statutes,  now  constitute  the  ordinary 
works  of  reference  in  Ohio  upon  questions  involving 
the  present  state  of  legislation. 

The  criminal  law  of  the  state  is  wholly  statutory, 
and  there  are  no  offences  recognized  as  common- 
law  off'ences.  The  formal  distinction  between 
actions  at  law  and  in  equity  is  abolished.  Actions 
are  brought  by  a  petition  stating  the  facts  of  the 
case. 

OLD  NATURA  BREVIUM.  The  title 
of  an  old  English  book,  so  called  to  distinguish 
it  from  Fitzherbert's  work  entitled  Natura 
Brevium.  It  contains  the  writs  most  in  use 
in  the  reign  of  Edward  III.,  together  with 
a  short  comment  on  the  application  and  pro- 
perties of  each  of  them. 

OLD  TENURES.  The  title  of  a  small 
tract,  which,  as  its  title  denotes,  contains  an 
account  of  the  various  tenures  by  which  land 
was  holden  in  the  reign  of  Edward  III.  This 
tract  was  published  in  1719,  with  notes  and 
additions,  with  the  eleventh  edition  of  the 
First  Institutes,  and  reprinted  in  8vo,  in 
1764,  by  Serjeant  Hawkins,  in  a  Selection  of 
Coke's  Law  Tracts. 

OLERON,  LAWS  OF.  A  maritime 
code  promulgated  by  Eleanor,  duchess  of 


OLIGARCHY 


258 


ONUS  PROBANDI 


Guienne,  mother  of  Richard  I.,  at  the  isle 
of  Oleron, — whence  their  name.  They  were 
modified  and  enacted  in  England  under  Rich- 
ard I.,  and  again  promulgated  under  Henry 
III.  and  Edward  III.,  and  are  constantly 
quoted  in  proceedings  before  the  admiralty 
courts,  as  are  also  the  Rhodian  Laws.  Coke, 
I.itt.  2.    See  Code,  ^  25. 

OLIGARCHY  (Gr.  and  apxv.  The 

government  of  a  few).  A  name  given  to 
designate  the  power  which  a  few  citizens  of 
a  state  have  usurped,  which  ought  l)y  the 
constitution  to  reside  in  the  people.  Among 
the  Romans,  the  government  degenerated 
several  times  into  an  oligarchy, — for  example, 
under  the  decemvirs,  when  they  became  the 
only  magistrates  in  the  commonwealth. 

OLOGRAPH.  A  term  which  signifies 
that  an  instrument  is  wholly  written  T3y  the 
party.  See  La.  Civ.  Code,  art.  1581 ;  Code 
Civ.  970 ;  5  Toullier,  n.  357 ;  1  Stu.  Low.  C. 
327  ;  2  Bouvier,  Inst.  n.  2139.  And  see  Tes- 
tament ;  Will. 

OMISSION.  The  neglect  to  perform 
what  the  law  requires. 

When  a  public  law  enjoins  on  certain 
officers  duties  to  be  performed  by  them  for 
the  public,  and  they  omit  to  perform  them, 
they  may  be  indicted  :  for  example,  super- 
visors of-^the  highways  are  required  to  repair 
the  public  roads :  the  neglect  to  do  so  will 
render  them  liable  to  be  indicted. 

When  a  nuisance  arises  in  consequence  of 
an  omission,  it  cannot  be  abated,  if  it  be  a 
private  nuisance,  without  giving  notice,  when 
such  notice  can  be  given.  See  Commission  ; 
Nuisance. 

OMNIA  PERFORMAVIT  (Lat.  he  has 
done  all).  In  Pleading.  A  good  plea  in 
bar  where  ail  the  covenants  are  in  the  affirm- 
ative.   1  Me.  189. 

OMNIUM  (Lat.).  In  Mercantile  Law. 
A  term  used  to  express  the  aggregate  value  of 
the  different  stocks  in  which  a  loan  is  usually 
funded.    2  Esp.  361  ;  7  Term,  630. 

ON  ACCOUNT  OF  WHOM  IT  MAY 
CONCERN,  FOR  WHOM  IT  MAY 
CONCERN.  A  clause  in  policies  of  insu- 
rance, under  which  all  are  insured  who  have 
an  insurable  interest  at  the  time  of  effecting 
the  insurance  and  who  were  then  contem- 
plated by  the  party  effecting  the  insurance. 
2  Parsons,  Marit.  Law,  30. 

ONCE  IN  JEOPARDY.  Once  in 
danger,  i.e.  of  the  penalties  of  the  law,  in  life 
or  limb.  It  is  a  principle  of  the  common 
law  that  no  man  shall  be  put  twice  in  jeo- 
pardy of  life  or  limb.  This  is  made  a  part 
of  the  constitution  of  the  United  States.  But 
whether,  under  this  clause,  the  unnecessary 
discharge  of  jury  without  the  consent  of  the 
prisoner  or  his  counsel  can  be  pleaded  in  bar 
18  doubtful.  That  it  may  be,  see  6  Serg.  & 
R.  Penn.  577  ;  1  Ilayw.  No.  C.  241 ;  10  Yerg. 
Tenn.  532;  16  Ala.  188;  that  it  is  not,  see 
2  Sumn.  C.  C.  42  ;  9  Mass.  194  ;  2  Pick.  Mass. 
521;  18  Johns.  N.  Y.  187;  1  Miss.  134;  2 


Gall.  C.  C.  364;  2  McLean,  C.  C.  114.  See. 
in  general,  17  Penn.  St.  126 ;  1  Swan, 
Tenn.  14,  34;  35  Me.  225;  5  Rich.  So.  C. 
219  ;  14  Ga.  8 ;  23  Miss.  62  ;  24  id.  54 ;  27 
Me.  266;  32  id.  530;  7  Graft.  Va.  593;  9 
Ilumphr.  Tenn.  677  ;  11  id.  599  ;  1  Iowa,  392  ; 
12  Mete.  Mass.  387  ;  6  Ark.  187  ;  Autrefois 
Acquit;  Jeopardy. 

ONERARI  NON  (Lat.  ought  not  to  be 
burdened).  In  Pleading. _  The  name  of  a 
plea  by  which  the  defendant  says  that  he 
ought  not  to  be  charged.  It  is  used  in  an 
action  of  debt.    1  Saund.  290,  n.  a. 

ONERIS  FERENDI  (Lat.  of  bearing  a 
burden).  In  Civil  Law.  The  name  of  a 
servitude  by  which  the  wall  or  pillar  of  one 
house  is  bound  to  sustain  the  weight  of  the 
buildings  of  the  neighbor. 

The  owner  of  the  servient  building  is  bound 
to  repair  and  keep  it  sufficiently  strong  for 
the  weight  it  has  to  bear.  Dig.  8.  2.  23  ;  2 
Bouvier,  Inst.  n.  1627. 

ONEROUS  CAUSE.    In  Civil  Law. 

A  valuable  consideration. 

ONEROUS  CONTRACT.  In  Civil 
Law.  One  made  for  a  consideration  given 
or  promised,  however  small.  La.  Civ.  Code, 
art.  1767. 

ONEROUS  DEED.    In  Scotch  Law. 

A  deed  given  for  valuable  consideration. 
Bell,  Diet. ;  Consideration. 

ONEROUS  GIFT.    The  gift  of  a  thing  ' 
subject  to  certain  charges  imposed  by  the 
giver  on  the  donee.    Pothier,  Obi.  \ 

ONOMASTIC.  A  term  applied  to  a  \ 
signature  which  is  in  a  different  handwriting  : 
from  the  body  of  the  instrument.  2  Bentham,  \ 
Jud.  Ev.  460,  461. 

ONUS  PROBANDI  (Lat.).    In  Evi- 
dence.   The  burden  of  proof.  ' 

ii.  It  is  a  general  rule  that  the  party  who  j 
alleges  the  affirmative  of  any  proposition  j 
shall  prove  it.    It  is  also  a  general  rule  that  i 
the  onus  prohandi  lies  upon  the  party  who  ■ 
seeks  to  support  his  case  by  a  particular  fact 
of  which  he  is  supposed  to  be  cognizant:  for  \ 
example,  when   to  a  plea  of  infancy  the 
plaintiff"  replies  a  promise  after  the  defendant 
had  attained  his  age,  it  is  sufficient  for  the 
plaintiff  to  prove  the  promise,  and  it  lies  on 
the  defendant  to  show  that  he  was  not  of  age 
at  the  time.    1  Term,  648.    But  where  the 
negative  involves  a  criminal  omission  by  the 
party,  and,  consequently,  where  the  law,  by 
virtue  of  the  general  principle,  presumes  his 
innocence,  the  affirmative  of  the  fact  is  also 
presumed.    See  11  Johns.  N.  Y.  513  ;  10  id. 
345  ;  9  Mart.  La.  48  ;  3  Mart.  La.  n.  s.  576. 

3.  In  general,  wherever  the  law  presumes 
the  affirmative,  it  lies  on  the  party  who  denies 
the  fact  to  prove  the  negative :  as  when  the 
law  raises  a  presumption  as  to  the  continu- 
ance of  life,  the  legitimacy  of  children  born 
in  wedlock,  or  the  satisfaction  of  a  debt.  See, 
generally,  1  Phillipps,  Ev.  156  ;  1  Starkie, 
Ev.  376;  Roscoe,  Civ.  Ev.  51  ;  Roscoe,  Crim. 
Ev.  55  ;  Bailor,  Nisi  P.  298 ;  2  Gall.  C.  C.  , 


OPEN 


259 


OPERATIVE 


't85  ;  1  M'Cord,  So.  C.  573  ;  12  Viner,  Abr. 
201 ;  4  Bouvier,  Inst.  n.  4411. 

The  party  on  whom  the  onus  probandi  lies 
is  entitled  to  begin,  notwithstanding  the 
technical  form  of  the  proceedings.  1  Starkie, 
Ev.  584;  3  Bouvier,  lust.  u.  3043.  See 
Burden  of  Proof. 

OPEN.  To  begin.  lie  begins  or  opens 
who  has  the  affirmative  of  an  issue.  1  Green- 
leaf,  Ev.  I  74. 

To  opeu  a  case  is  to  make  a  statement  of  the 
pleadings  in  a  case,  which  is  called  the  openin;^. 
This  should  be  concise,  very  distinct,  and  perspicu- 
ous. Its  use  is  to  enable  the  judge  and  jury  to 
direct  their  attention  to  the  real  merits  of  the  case 
and  the  points  in  issue.    1  Stark.  439;  2  id.  317. 

To  vacate  ;  to  relieve  a  party  who  has  an 
equitable  right  to  such  relief  against  a  pro- 
ceeding which  is  to  him  a  formal  -or  legal 
bar;  to  allow  a  re-discussion  on  the  merits. 

For  example,  to  open  a  rule  of  court.  2  Chitty, 
Bail,  265  ;  5  Taunt.  628  ;  1  Mann.  &  G.  555  ;  7  Ad."& 
E.  519.  To  open  a  judgment  or  default  4  R.  I. 
324;  1  Wise.  631.  Sec  '^pkning  a  JuDcmsNT.  To 
open  a  marriage  settlement  or  an  estate-tail;  i.e.  to 
allow  a  new  settlement  of  the  estate.  To  open 
biddings ;  i.e.  to  allow  a  re-tale.  See  Opening 
Biddings.    To  open  contract.    44  Me.  206. 

OPEN  ACCOUNT.  A  running  or  un- 
settled account. 

OPEN  A  CREDIT.  To  accept  or  pay 
the  draft  of  a  correspondent  who  has  not 
furnished  funds.    Pardessus,  n.  296. 

OPEN  COURT.  A  court  formally 
)pened  and  engaged  in  the  transaction  of  all 
judicial  functions. 

A  court  to  which  all  persons  have  free 
access  as  spectators  while  they  conduct  them- 
selves in  an  orderly  manner. 

The  term  is  used  in  the  first  sense  as  diptinguish- 
ing  a  court  from  a  judge  sitting  in  chambers  or  in- 
formally for  the  transaction  of  such  matters  as  may 
be  thus  transacted.    See  Chambers  ;  Court. 

In  the  second  sense,  all  courts  in  the  United 
States  are  open;  but  in  England,  formerly,  while 
the  parties  and  probably  their  witnesses  were  ad- 
mitted freely  in  the  courts,  all  other  persons  were 
required  to  pay  in  order  to  obtain  admittance. 
Stat.  13  Edw.  I.  cc.  42,  44;  Barr.  on  the  Stat.  126, 
127.    See  Prin.  of  Pen.  Law,  165. 

OPEN  POLICY.  An  open  policy  is  one 
in  which  the  amount  of  the  interest  of  the 
insured  is  not  fixed  by  the  policy,  and  is  to 
be  ascertained  in  case  of  loss.    See  Policy. 

OPENING.  In  American  Practice. 
The  beginning.  The  commencement.  The 
first  address  of  the  counsel. 

The  opening  is  made  immediately  upon  the 
impanelling  of  the  jury:  it  embraces  the 
reading  of  such  of  the  pleadings  as  may  be 
necessary,  and  a  brief  outline  of  the  case  as 
the  party  expects  to  prove  it,  where  there  is  a 
trirJ,  or  of  the  argument,  where  it  is  ad- 
dressed to  the  court. 

In  English  Practice.  The  address  made 
immediately  after  the  evidence  is  closed. 
Such  address  usually  states— the  full 
extent  of  the  plaintiff's  claims,  and  the  cir- 
cumstances under  which  they  are  made,  to 
show  that  they  are  just  and  reasonable  ; 
iecond,  at  least  an  outline  of  the  evidence  by 


which  those  claims  are  to  be  established : 
third,  the  legal  grounds  and  authorities  in 
favor  of  the  claim  or  of  the  proposed  evi- 
dence ;  fourth,  an  anticipation  of  the  ex- 
pected defence,  and  statement  of  the  grounds 
on  wdiich  it  is  futile,  either  in  law  or  justice, 
and  the  reasons  why  it  ought  to  fail.  But 
the  court  will  sometimes  restrict  counsel  froK 
an  anticipation  of  the  defence.  3  Chitty 
Pract.  8X1  ;  3  Bouvier,  Inst.  n.  3044  et  seq. 

OPENING  BIDDINGS.  Ordering 
a  re-sale.  When  estates  are  sold  under 
decree  of  equity  to  the  highest  bidder,  the 
court  will,  on  notice  of  an  offer  of  a  sufficient 
advance  on  the  price  obtained,  open  the  bid- 
dings, i.e.  order  a  re-sale.  But  this  will  not 
generally  be  done  after  the  confirmation  of 
the  certificate  of  the  highest  bidder.  So,  by 
analogy,  a  re-sale  has  been  ordered  of  an  es- 
tate sold  under  bankruptcy.  Sugden,  Vend. 
90  ;  22  Barb.  N.  Y.  107  ;  8  Md.  322  ;  9  id.  228  ; 
13  Gratt.  Va.  639  ;  4  Wise.  242  ;  31  Miss.  514 

OPENING  A  JUDGMENT.  In 
Practice.  An  act  of  the  court  by  which  a 
judgment  is  so  far  annulled  that  it  cannot 
be  executed,  although  it  still  retains  some 
qualities  of  a  judgment:  as,  for  example, 
its  binding  operation  or  lien  upon  the  real 
estate  of  the  defendant. 

The  opening  of  the  judgment  takes  place 
when  some  person  having  an  interest  makes 
affidavit  to  facts  which,  if  true,  would  render 
the  execution  of  such  judgment  inequitable. 
The  judgment  is  opened  so  as  to  be  in  effect 
an  award  of  a  collateral  issue  to  try  the  facts 
alleged  in  the  affidavit.  6  Watts  &  S.  Penn. 
493,' 494. 

OPENING  OF  A  POLICY  OF  IN- 
SURANCE. The  question  has  been  made 
whether,  and  in  what  cases,  if  any,  the 
valuation  in  a  valued  policy  shall  be  opened. 
The  valuation,  being  a  part  of  the  agreement 
of  the  parties,  is  not  to  be  set  aside  as  between 
them  in  any  case.  The  question  is,  how  shall 
it  be  treated  where  only  a  part  of  the  subject 
insured  and  valued  is  put  at  a  risk,  and  also 
in  the  settlement  of  a  particular  average? 
and  the  answer  is  the  same  in  both  cases : 
viz.,  wdien  the  proportion  or  rate  per  centum 
put  at  risk  or  lost  is  ascertained,  the  agreed 
valuation  of  the  whole  is  to  be  applied  to  the 
part  put  at  risk  or  the  proportion  lost,  pro 
rata.   2  Phillips,  Ins.  1203. 

OPERATION  OF  LAW.  A  term 
applied  to  indicate  the  manner  in  which  a 
party  acquires  rights  without  any  act  of  his 
own :  as,  the  right  to  an  estate  of  one  who 
dies  intestate  is  cast  upon  the  heir  at  law, 
by  operation  of  law ;  when  a  lessee  for  life 
enfeoffs  him  in  reversion,  or  when  the  lessee 
and  lessor  join  in  a  feoffment,  or  when  a  lessee 
for  life  or  years  accepts  a  new  lease  or  demise 
from  the  lessor,  there  is  a  surrender  of  the 
first  lease  by  operation  of  law.  5  Barnew.  & 
C.  269 ;  9  id.  298 ;  2  Barnew.  &  Ad.  119  ;  5 
Taunt.  518.    See  Descent  ;  Purchase. 

OPERATIVE.  A  workman;  one  eio- 
ployed  to  perform  labor  for  another. 


OPINION 


260 


OPINION 


*2,  This  word  is  used  in  the  bankrupt  law 
of  19th  August,  1841,  s.  5,  which  directs  that 
any  person  who  shall  have  performed  any- 
labor  as  an  operative  in  the  service  of  any- 
bankrupt  shall  be  entitled  to  receive  the  full 
amount  of  wages  due  to  him  for  such  labor, 
not  exceeding  twenty -five  dollars :  provided 
that  such  labor  shall  have  been  performed 
within  six  months  next  before  the  bankruptcy 
of  his  employer. 

3,  Under  this  act,  it  has  been  decided  that 
an  apprentice  who  had  done  work  beyond  a 
task  allotted  to  him  by  his  master,  commonly 
called  overwork,  under  an  agreement  on  the 
part  of  the  master  to  pay  for  such  work, 
was  entitled  as  an  operative.  1  Penn.  Law 
Journ.  368.  See  3  C.  Rob.  Adm.  237;  2 
Cranch,  240,  270. 

OPINION.  In  Evidence.  An  infer- 
ence or  conclusion  drawn  by  a  witness,  as  dis- 
tinguished from  facts  known  to  him  as  facts. 

2.  It  is  the  province  of  the  jury  to  draw 
inferences  and  conclusions;  and  if  witnesses 
were  in  general  allowed  to  testify  what  they 
judge  as  well  as  what  they  know,  the  verdict 
would  sometimes  prove  not  the  decision  of 
the  jury,  but  that  of  the  witnesses.  Hence 
the  rule  that,  in  general,  the  witness  cannot 
be  asked  his  opinion  upon  a  particular  ques- 
tion. 29  N.II.  94;  16  111.  513;  18  Ga.  194, 
573  ;  7  Wend.  N.  Y.  560  ;  24  id.  068  ;  2  N.  Y. 
514;  9  id.  371;  17  id.  340. 

Some  confusion  in  the  application  of  this 
rule  arises  from  the  delicacy  of  the  line  which 
divides  that  which  is  to  be  regarded  as 
matter  of  observation  from  that  which  is 
matter  of  judgment  founded  upon  observa- 
tion. Thus,  it  is  held  that  an  unprofessional 
witness  may  testify  to  the  fact  that  a  person 
whom  he  saw  was  intoxicated,  whether  he  is 
able  to  state  all  the  constituent  facts  which 
amount  to  drunkenness  or  not.  14  N.Y.  562; 
26  Ala.  N.  s.  26.  But,  on  the  other  hand,  in- 
sanity or  mental  incapacity  cannot,  in  general, 
be  proved  by  the  mere  assertion  of  an  unpro- 
fessional witness.  17  N.  Y.  340 ;  7  Barb.  N.  Y. 
314  ;  13  Tex.  568.  And  see  25  Ala.  n.  s.  21. 

3.  So  handwriting  may  be  proved  by 
being  recognized  by  a  witness  who  has  seen 
other  writings  of  the  party  in  the  usual 
course  of  business,  or  who  has  seen  him 
write.  Peake,  Nisi  P.  21 ;  1  Esp.  15,  351 ;  2 
Johns.  Gas.  N.  Y.  211 ;  19  Johns.  N.  Y.  134. 
liut,  on  the  other  hand,  the  authorship  of  an 
anonymous  article  in  a  newspaper  cannot  be 
proved  by  one  professing  to  have  a  knowledge 
of  the  author's  style.  How,  App.  Gas.  N.  Y. 
187,  202. 

From  necessity,  an  exception  to  this  rule  of 
excluding  opinions  is  made  in  questions  in- 
volving matters  of  science,  art,  or  trade, 
where  skill  and  knowledge  possessed  by  a 
witness,  peculiar  to  the  subject,  give  a  value 
to  his  opinion  above  that  of  any  inference 
which  the  jury  could  draw  from  facts  which 
he  might  state.  4  Hill,  N.Y.  129;  1  Den. 
N.  Y.  281  ;  3  111.  297  ;  2  N.  II.  480 ;  2  Stor.  C. 
C.  421.  Such  a  witness  is  termed  an  expert ; 
'ind  he  may  give  his  opinion  in  evidence. 


4r.  The  following  reference  to  some  of  tbe 
matters  in  which  the  opinions  of  expert  wit- 
nesses have  been  held  admissible  will  illnu- 
trate  this  principl?.  The  unwritten  or  com- 
mon law  of  foreign  countries  may  be  proved 
by  the  opinion  of  witnesses  possessing  pro- 
fessional knowledge,  Story,  Confl.  of  L.  530  ; 
1  Granch,  12,  38 ;  2  id.  236 ;  6  Pet.  763  ;  Pet. 
G.  G.  225  ;  2  Wash.  G.  G.  1,  175  ;  2  Wend. 
N.  Y.  411 ;  5  id.  375  ;  3  Pick.  Mass.  293  ;  4 
Gonn.  517;  6  id.  486;  4  Bibb,  Ky.  73;  2 
Marsh.  Ky.  609;  5  Ilarr.  &  J.  Md.  186; 

1  Johns.  N.  Y.  385  ;  3  id.  105  ;  14  Mass.  455 ; 

6  Gonn.  508  ;  1  Vt.  336 ;  15  Sei  g.  &  R.  Penn. 
87  ;  1  La.  153  ;  3  id.  53  ;  6  Granch,  274  ;  see, 
also,  14  Serg.  &  R.  Penn.  137  ;  3  N.  II.  349; 

3  Yeates,  Penn.  527 ;  1  AVheel.  Grim.  Gas. 
N.  Y.  205 ;  6  Rand.  Va.  704 ;  2  Russell, 
Grimes,  623  ;  4  Gampb.  155  ;  Russ.  &  R.  456  ; 

2  Esp.  58  ;  3  Phill.  449 ;  1  Eccl.  291 ;  th( 
degree  of  hazard  of  property  insured  against 
fire,  17  Barb.  N.  Y.  Ill ;  4  Zabr.  N.  J.  843  ; 
handwrffing,  35  Me.  78 ;  2  R.  I.  319 ;  25 
N.  II.  87  ;  1  Jones,  No.  G.  94,  150 ;  13  B. 
Monr.  Ky.  258  ;  mechanical  operations,  the 
proper  way  of  conducting  a  particular  manu- 
facture, and  the  effect  of  a  certain  method, 

4  Barb.  N.  Y.  614 ;  19  id.  338 ;  3  N.  Y.  322 ; 
negligence  of  a  navigator,  and  its  effect  in 
producing  a  collision,  24  Ala.  n.  s.  21 : 
sanity,  1  Add.  244;  12  N.Y.  358;  17  id. 
340  ;  impotency,  3  Phill.  Eccl.  14 ;  value  ot 
chattels,  22  Ala.  n.  s.  370;  11  Gush.  Mass. 
257 ;  22  Barb.  N.  Y.  652,  656 :  23  Wend. 
N.Y.  354;  value  of  land,  11  Gush.  Mass. 
201 ;  4  Gray,  Mass.  607  ;  9  N.  Y.  183  ;  com- 
pare 4  Ohio  St.  583 ;  value  of  services,  15 
Barb.  N.  Y.  550;  20  id.  387  ;  benefit  to  real 
property  by  laying  out  a  street  adjacent 
thereto,  2  Gray,  Mass.  107 ;  survey-marks 
identified  as  being  those  made  by  United 
States  surveyors,  24  Ala.  n.  s.  390 ;  sea- 
worthiness, Peake,  Gas.  25  ;  10  Bingh.  57 
And  see  9  Gush.  Mass.  226.  So  an  engineer 
may  be  called  to  say  what,  in  his  opinion,  is 
the  cause  that  a  harbor  has  been  blocked  up.  3 
Dougl.158;  lPhillipps,Ev.276;  4 Term, 498. 

5.  It  is  to  be  observed,  however,  that  the 
principle  of  admitting  such  opinions  is  taken 
with  the  qualifications  necessary  to  make,  as 
far  as  possible,  the  judgment  of  the  jury,  and 
not  that  of  the  witness,  the  final  means  of 
determining  the  issue.  Thus,  opinions  of  ex- 
perts are  not  admissible  upon  the  question 
of  damages,  4  Den.  311 :  3  Hill,  N.  Y.  609 ; 
21  Barb.  N.  Y.  331 :  23  Wend.  N.  Y.  425  ; 
2  N.Y.  514;  1  E.  D.  Smith,  N.Y.  536;  and 
experts  are  always  confined  to  opinions  within 
the  scope  of  their  professions,  and  are  not 
allowed  to  give  opinions  on  things  of  which 
the  jury  can  as  well  judge.  5  Rog.  Rec.  N.  Y, 
26  ;'  4  Wend.  N.  Y.  320 ;  14  Me.  398  ;  3  Dan. 
Kv.  382;  1  Penn.  161;  2  Ilalst.  N.J.  244; 

7  Vt.  161 ;  6  Rand.  Va.  704 ;  4  Yeates,  Penn. 
262  ;  9  Gonn.  102  ;  3  N.  II.  349  ;  5  Ilarr.  &  J. 
Md.  438  ;  1  Den.  N.Y.  281.  A  distinction 
is  also  to  be  observed  between  a  feeble  im- 
pression and  a  mere  opinion  or  belief.  3  Ohio 
St.  406;  19  Wend.  N.Y.  477. 


OPINION 


261 


OR 


In  Practice.  The  statement  of  reasons 
delivered  by  a  judge  or  court  for  giving  the 
iudgment  which  is  pronounced  upon  a  case. 
The  judgment  itself  is  sometimes  called  an 
opinion  ;  and  sometimes  the  opinion  is  spoken 
of  as  the  judgment  of  the  court. 

A  declaration,  usually  in  writing,  made  by 
a  counsel  to  his  client  of  what  the  law  is,  ac- 
cording to  his  judgment,  on  a  statement  of 
facts  submitted  to  him. 

An  opinion  is  in  both  the  above  cases  a  decision 
of  what  principles  of  law  are  to  be  applied  in  the 
particular  case,  with  the  difference  that  judicial 
opinions  pronounced  by  the  court  are  law  and  of 
authority,  while  the  opinions  of  counsel,  however 
eminent,  are  merely  advice  to  his  client  or  argu- 
ment to  the  court. 

6.  Where  there  are  several  judges,  and 
they  do  not  all  agree  in  the  disposition  of  the 
cause,  the  opinion  of  the  majority  is  termed 
the  prevailing  opinion,  or  the  opinion  of  the 
court.  The  opinion  of  the  minority  is  termed 
the  dissenting  opinion.  The  opinions  of  the 
courts,  collected  and  provided  with  such  preli- 
minary statements  of  facts  and  of  the  argu- 
ments of  counsel  as  may  be  necessary  in 
each  case  to  an  understanding  of  the  deci- 
sion, make  up  the  books  of  reports. 

Opinions  are  said  to  be  judicial  or  extra- 
judicial. A  judicial  opinion  is  one  which  is 
given  on  a  question  which  is  actually  in- 
volved in  the  matter  brought  before  the 
judge  for  his  decision ;  an  extra-judicial 
opinion  is  one  which,  although  given  by  a 
judge  in  deciding  a  case,  is  not  necessary  to 
the  judgment,  Vaugh.  382;  1  Hale,  Hist. 
141 ;  and,  whether  given  in  or  out  of  court,  is 
no  more  than  the  prolatum  of  him  who  gives 
it,  and  has  no  legal  efficacy.  4  Penn.  St.  28. 
"Where  a  point  is  essential  to  the  decision 
rendered,  it  will  be  presumed  that  it  was 
duly  considered,  and  that  all  that  could  be 
urged  for  or  against  it  w^as  presented  to  the 
court.  But  if  it  appears  from  the  report  of 
the  case  that  such  point  was  not  taken  or  in- 
quired into  at  all,  there  is  no  ground  for  this 
presumption,  and  the  authority  of  the  case 
is  proportionably  weakened.  8  Abb.  Pract. 
N.  Y.  316. 

T.  Where  two  or  more  points  are  discussed 
in  the  opinions  delivered  on  the  decision  of  a 
cause,  and  the  determination  of  either  point 
in  the  manner  indicated  in  such  opinions 
would  authorize  the  judgment  pronounced 
by  the  court,  the  judges  concurring  in  the 
judgment  must  be  presumed  to  have  con- 
curred in  such  opinions  upon  all  the  points 
,  80  discussed,  unless  some  dissent  is  expressed 
or  the  circumstances  necessarily  lead  to  a 
different  conclusion.  6  N.  Y.  9.  Where  a 
judgment  is  reversed  upon  a  part  only  of  the 
grounds  on  which  it  w^ent,  it  is  still  deemed 
an  authority  as  to  the  other  grounds  not 
questioned.    See  5  Johns.  N.  Y.  125. 

S.  Counsel  should,  in  giving  an  opinion, 
as  far  as  practicable,  give,^rs^,  a  direct  and 
positive  opinion,  meeting  the  point  and  effect 
of  the  question,  and,  if  the  question  proposed 
is  properly  divisible  into  several,  treating  it 


accordingly.  Second,  his  reasons,  succinctly 
stated,  in  support  of  such  opinion.  Thii^d,  a 
reference  to  the  statutes  or  decisions  on  the 
subject.  Fourth,  when  the  facts  are  susceptible 
of  a  material  difference  in  statement,  a  sug- 
gestion of  the  probability  of  such  variation. 
When  an  opinion  is  sought  as  a  guide  in 
respect  to  maintaining  an  action  or  defence, 
some  other  matters  should  be  noticed : — as, 
Fifth,  any  necessary  precautionary  sugges- 
tions in  reference  to  the  possibility  of  a  fatal 
defect  in  the  evidence,  arising  from  the  nature 
of  the  case.  Thus,  where  some  im[)ortant 
fact  is  stated  as  resting  principally  on  the 
statement  of  the  party  interested,  if  by  the 
law  of  the  place  such  party  is  incompetent  to 
testify  respecting  it,  a  suggestion  ought  to  be 
made  to  inquire  how  that  I'act  is  to  be  proved. 
Sixth,  a  suggestion  of  the  proper  mode  of 
proceeding,  or  the  process  or  pleadings  to 
be  adopted.. 

9.  In  English  and  American  law,  the  opi- 
nions of  counsel,  however  eminent,  are  not 
entitled  to  any  weight  with  the  court  as  evi- 
dence of  the  law.  While  the  court  will  deem 
it  their  duty  to  receive  such  opinions  as  ar- 
guments and  entitled  to  whatever  -weight 
they  may  have  as  such,  they  will  not  yield 
to  them  any  authority.  4  Penn.  1,  28.  In 
many  cases,  how^ever,  where  a  client  acts  in 
good  faith  under  the  advice  of  counsel,  he 
may  on  that  ground  be  protected  from  a 
liability  wdiich  the  court  in  its  discretion 
might  otherwise  have  imposed  upon  him. 

OPPOSITION.  In  Practice.  The  act 
of  a  creditor  who  declares  his  dissent  to  a 
debtor's  being  discharged  under  the  insolvent 
laws. 

OPPRESSOR.  One  w^ho  having  public 
authority  uses  it  unlawfully  to  tyrannize  over 
another :  as,  if  he  keep  him  in  prison  until 
he  shall  do  something  which  he  is  not  law- 
fully bound  to  do. 

To  charge  a  magistrate  with  being  an  op- 
pressor is,  therefore,  actionable.  1  Starkie, 
Sland.  185. 

OPPROBRIUM.  In  Civil  Law.  Igno- 
miny ;  shame;  infamy. 

OPTION.  Choice;  election.  See  those 
titles. 

OPTIONAL  WRIT.  An  original  writ 
in  the  alternative,  commanding  either  to  do 
a  thing  or  show  cause  why  it  has  not  been 
done.  3  Sharswood,  Blackst.  Comm.  274 ; 
Finch,  Law%  257. 

OPUS  LOCATUM  (Lat.).  In  Civil  Law. 
A  work  {i.e.  the  result  of  work)  let  to  another 
to  be  used.  A  work  {i.e.  something  to  be  com- 
pleted by  work)  hired  to  be  done  by  another. 
Vicat,  Voc.  Jur.  Opics,  Locare;  L.  51,  §  1,  D. 
Locat. ;  lj.\,ll,J).  ad  leg.  Rhod. 

OPUS  MAGNIFICIUM  or  MANI- 
FICIUM  (from  Lat.  opvs.  work,  manus, 
hand).  In  Old  English  Law.  Manual 
labor,    rieta,  1.  2,  c.  48,  I  3. 

OR.    A  disjunctive  particle. 

"Z,  As  a  particle,  or  is  often  construed  and^ 


ORACULUM 


2Gi 


ORDER  OF  FILIATION 


and  and  construed  or,  to  further  tlie  intent 
of  the  parties,  in  legacies,  devises,  deeds, 
bonds,  and  writings.  3  Gill,  Md.  492  ;  7  id. 
197;  1  Call,  Va.  212;  2  Roper,  Leg.  text 
and  notes  of  American  editor  1400,  1405  ;  3 
Greenleaf,  Ev.  tit.  38,  c.  9,  ^  18,  note,  and 
text,  I  25  ;  1  Jai^man,  Wills,  c.  17,  p.  427,  2d 
ed.,  and  cases  cited  in  Perk,  note.;  1  Wil- 
liams, Ex.  932,  notes  k,  1 ;  5  Coke,  112  a; 
Croke  Jac.  322 ;  4  Zabr.  N.  J.  686  ;  3  Term, 
470. 

3.  Where  an  indictment  is  in  the  alterna- 
tive, as  forged  or  caused  to  be  forged,  it  is  bad 
for  uncertainty.  2  Strange,  900 ;  Hardw. 
370;  1  Younge  &  J.  Exch.  22.  But  a  descrip- 
tion of  a  horse  as  of  a  brown  or  bay  color, 
in  an  indictment  for  larceny  of  such  horse, 
is  good,  13  Vt.  687  ;  and  so  an  indictment 
describing  a  nuisance  as  in  the  highway  or 
road.  1  Dall.  Penn.  150.  See  28  Vt.  583  ;  24 
Conn.  286  ;  13  Ark.  397. 

When  the  word  or  in  a  statute  is  used  in 
the  sense  of  to  ivit,  that  is,  in  explanation  of 
what  precedes,  and  making  it  signify  the 
same  thing,  a  complaint  or  indictment  which 
adopts  the  words  of  the  statute  is  well  framed. 
Thus,  it  was  held  that  an  indictment  was 
sufficient  which  alleged  that  the  defendant 
had  in  his  custody  and  possession  ten  counter- 
feit bank-bills  or  promissory  notes,  payable 
to  the  bearer  thereof,  and  purporting  to  be 
signed  in  behalf  of  the  president  and  direct- 
ors of  the  Union  Bank,  knowing  them  to  be 
counterfeit,  and  with  intent  to  utter  and  pass 
them,  and  thereby  to  injure  and  defraud  the 
said  president  and  directors ;  it  being  mani- 
fest from  the  statute  on  which  the  indictment 
was  framed,  that  promissory  no^e  was  used 
merely  as  explanatory  of  bank-bill,  and  meant 
the  same  thing.  8  Mass.  59  ;  2  Gray,  Mass. 
502. 

In  general,  see  Croke  Eliz.  832 ;  27  Hen. 
VIIL  18  b;  Hardw.  91,  94;  1  Ventr.  148; 

2  Sandf.  N.  Y.  369  ;  1  Jones,  No.  C.  309  ;  3 
Atk.  Ch.  291  ;  3  Term,  470  ;  6  id.  34  ;  12 
East,  288;  1  Bingh.500 ;  2  Drur.  &  Warr.471 ; 
7  Jur.  570. 

ORACULUM  (Lat.).    In  Civil  Law. 

The  name  of  a  kind  of  decision  given  by  the 
Roman  emperors. 

ORAL.  Spoken,  in  contradistinction  to 
written :  as,  oral  evidence,  which  is  evidence 
delivered  verbally  by  a  witness. 

ORATOR.  In  Chancery  Practice.  The 

party  wlio  tiles  a  bill. 

In  Roman  Law.   An  advocate.   Code,  1. 

3  33.  1. 

ORDAIN.  To  ordain  is  to  make  an  ordi- 
nance, to  enact  a  law. 

The  preamble  to  the  constitution  of  the  United 
Slates  declares  that  the  people  do  ordain  and 
establish  this  constitution  for  the  United  States  of 
America."  The  third  article  of  the  same  constitu- 
tion declares  that  "the  judicial  power  shall  be 
vested  in  one  supreme  court,  iind  in  such  inferior 
I'ourts  as  the  congress  may  from  time  to  time  ordain 
and  establish."  See  I  Wheat.  304,  324;  4  id.  316, 
102. 


ORDEAL.  An  ancient  superstitious  mod« 
of  trial. 

When  in  a  criminal  case  the  accused  was  ar- 
raigned, he  might  select  the  mode  of  trial  either  by 
God  and  his  country,  that  is,  by  jury,  or  by  God 
only,  that  is,  by  ordeal. 

The  trial  by  ordeal  was  ejther  by  fire  or  by  water. 
Those  who  were  tried  by  the  former  passed  bare- 
footed and  blindfolded  over  nine  hot  glowing 
ploughshares,  or  were  to  carry  burning  irons  ia 
their  hands,  and  accordingly  as  they  escaped  or 
not  they  were  acquitted  or  condemned.  The  water 
ordeiil  was  performed  either  in  hot  or  cold  water. 
In  cold  water,  the  parties  suspected  were  adjudged 
innocent  if  their  bodies  were  not  borne  up  by  the 
water  contrary  to  the  course  of  nature;  and  if  after 
putting  their  bare  arms  or  legs  into  scalding  water 
they  came  out  unhurt,  they  were  taken  to  be  inno- 
cent of  the  crime. 

It  was  supposed  that  God  would,  by  the  mere 
contrivance  of  man,  exercise  his  power  in  favor  of 
the  innocent.  4  Blackstone,  Comm.  342;  2  Am. 
Jur.  280.  For  a  detailed  account  of  the  trial  by 
ordeal,  see  Herbert,  Antiq.  of  the  Inns  of  Court, 
146. 

ORDER.    Command  ;  direction. 

An  informal  bill  of  exchange  or  letter  of 
request  requiring  the  party  to  whom  it  is 
addressed  to  deliver  property  of  the  per- 
son making  the  order  to  some  one  therein 
edscribed. 

A  designation  of  the  person  to  whom  a  bill 
of  exchange  or  negotiable  promissory  note  is 
to  be  paid. 

This  order,  in  the  case  of  negotiable  paper, 
is  usually  by  indorsement,  and  may  be  either 
express,  as,  "  Pay  to  C  D,"  or  implied  merely, 
as  by  writing  A  B  [the  payee's  name].  See 
Indorsement. 

In  French  Law.  The  act  by  which  the 
rank  of  preferences  of  claims,  among  creditors 
who  have  liens  over  the  price  which  arises 
out  of  the  sale  of  an  immovable  subject,  is 
ascertained.    Dalloz,  Diet. 

In  Governmental  Law.  By  this  expres- 
sion is  understood  the  several  bodies  which 
compose  the  state.  In  ancient  Rome,  for 
example,  there  were  three  distinct  orders : 
namely,  that  of  the  senators,  that  of  the  pa- 
tricians, and  that  of  the  plebeians. 

In  the  United  States  there  are  no  orders  of 
men  ;  all  men  are  equal  in  the  eye  of  the  law. 
See  Rank. 

ORDIJR  OF  FILIATION.  The  name  of 
a  judgment  rendered  by  two  justices,  having 
jurisdiction  in  such  case,  in  which  a  man 
therein  named  is  adjudged  to  be  the  putative 
father  of  a  bastard  child,  and  it  is  further 
adjudged  that  he  pay  a  certain  sum  for  its 
support. 

The  order  must  bear  upon  its  face— Jirst,^ 
that  it  was  made  upon  the  complaint  of  the 
township,  parish,  or  other  place  where  the 
child  was  born  and  is  chargeable;  second^ 
that  it  was  made  by  justices  of  the  peace 
having  jurisdiction,  1  Salk.  122,  pi.  6 ;  2  Ld. 
Raym.  1197;  third,  the  birthplace  of  the 
child  ;  fourth,  the  examination  of  the  puta- 
tive father  and  of  the  mother,  but  it  is  said 
the  presence  of  the  putative  father  is  not 
requisite  if  he  has  been  summoned,  Ctild 


ORDER  NISI 


263 


OREGON 


308;  fifth,  the  judgment  that  the  defendant 
is  the  putative  father  of  the  child,  Sid.  3G3  ; 
Style,  154  ;  Dalt.  52  ;  Dougl.  GG2  ;  sixth,  that 
he'  shall  maintain  the  child  as  h)ng  as  he 
shall  be  chargeable  to  the  township,  parish,  or 
other  place,  which  must  be  named,  1  Salk.  121, 
pi.  2 ;  Comb.  232  ;  But  the  order  may  be  that 
the  father  shall  pay  a  certain  sum  weekly  as 
long  as  the  child  is  chargeable  to  the  public. 
Style,  134 ;  Ventr.  210  ;  seventh,  it  must  be 
dated,  signed,  and  sealed  by  the  justices. 
Such  order  cannot  be  vacated  by  two  other 
justices.  15  Johns.  N.  Y.  208.  See  4  Cow.  N. 
\.  253  ;  8  id.  623  ;  12  Johns.  N.  Y.  195  ;  2 
Blackf.  Ind.  42. 

ORDER  NISI.  A  conditional  order, 
which  is  to  be  confirmed  unless  something 
be  done,  wdiich  has  been  required,  by  a  time 
specified.    Eden,  Inj.  122. 

ORDERS.  Rules  made  by  a  court  or 
other  competent  jurisdiction.  The  formula 
is  generally  in  these  words :  It  is  ordered, 
etc. 

The  instructions  given  by  the  owner  to  the 
captain  or  commander  of  a  ship,  which  he  is 
to  follow  in  the  course  of  the  voyage. 

ORDINANCE.  A  law ;  a  statute  ;  a  de- 
cree. 

This  word  is  more  usually  applied  to  the  laws  of 
a  corporation  than  to  the  acts  of  the  legislature: 
as,  the  ordinances  of  the  city  of  Philadelphia.  The 
following  account  of  the  dilference  between  a  sta- 
tute and  an  ordinance  is  extracted  from  Bacon's 
Abridgment,  Statute  (A).  "  Where  the  proceeding 
consisted  only  of  a  petition  from  parliament  and 
an  answer  from  the  king,  these  were  entered  on  the 
parliament  roll ;  and  if  the  matter  was  of  a  public 
nature,  the  whole  was  then  styled  a.n  ordinance  :  if, 
however,  the  petition  and  answer  were  not  only  of 
a  public  but  a  novel  nature,  they  were  then  formed 
into  an  act  by  the  king,  with  the  aid  of  his  council 
and  judges,  and  entered  on  the  Htatnte  roll."  See 
Coke,  Litt.  159  b,  Butlers  note;  3  Reeve,  Hist.  Eng. 
Law,  146. 

According  to  Lord  Coke,  the  difference  between 
a  statute  and  an  ordinance  is  that  the  latter  has 
not  had  the  assent  of  the  king,  lords,  and  com- 
mons, but  is  made  merely  by  two  of  these  powers. 
Coke,  4th  Inst.  25.    See  Barrington,  Stat.  41,  note 

(X). 

ORDINARY.    In  Ecclesiastical  Law. 

An  officer  who  has  original  jurisdiction  in  his 
own  right,  and  not  by  deputation. 

In  England,  the  ordinary  is  an  officer  who 
has  immediate  jurisdiction  in  ecclesiastical 
causes.    Coke,  Litt.  344. 

In  the  United  States,  the  ordinary  possesses, 
in  those  states  where  such  officer  exists,  powers 
vested  in  him  by  the  constitution  and  acts  of 
the  legislature.  In  South  Carolina,  the  ordi- 
nary is  a  judicial  officer.  1  Const.  So.  C.  267  ; 
2  id.  384. 

ORDINARY  CARE.  That  degree  of 
care  which  men  of  ordinary  prudence  exer- 
cise in  taking  care  of  their  own  property.  It 
can  only  be  determined  by  the  circumstances 
of  each  particular  case  whether  ordinary 
care  was  used.  This  degree  of  care  is  that 
required  of  bailees  for  the  mutual  benefit  of 


bailor  and  bailee.  3  Mass.  132  ;  8  Mete.  Mass. 
'Jl;  2  Wise.  310;  10  Ark.  308;  23  Conn.  443  ; 
40  Me.  04  i  19  Ga.  427  ;  28  Vt.  150,  458  ;  9 
N.  Y.  410  ;  26  Ala.  n.  s.  203  ;  1  Dutch.  N.  J. 
550 ;  36  Eng.  L.  &  Eq.  506  ;  4  Ind.  368 ;  1 
E.  D.  Smith,  N.  Y.30,  271. 

ORDINARY  SKILL.  Such  skill  as  a 
person  conversant  with  the  matter  undertaken 
might  be  reasonably  supposed  to  have.  11 
Mees.  &  W.  Exch.  113  ;  20  Mart.  La.  68,  75  ; 
1  II.  Blackst.  158,  101 ;  0  Ga.  213,  219  ;  8  B. 
Monr.  Ky.515;  3  Barb.  N.  Y.  380  ;  13  Johns. 
N.  Y.  211 ;  4  Burr.  2000  ;  3  Campb.  17,  19 ; 

7  Carr.  &  P.  289  ;  0  Bingh.  400  ;  2  Bingh.  n. 
c.  025  ;  10  Serg.  &  R.  Penn.  308 ;  15  Mass. 
316  ;  15  Pick.  Mass.  440  ;  2  Cush.  Mass.  316  ; 

8  Carr.  &  P.  479  ;  3  Campb.  451 ;  4  Barnew. 
&  C.  345. 

One  who  undertakes  to  act  in  a  professional 
or  other  clearly  defined  capacity  is  bound  to 
exercise  the  skill  appropriate  to  such  capa- 
city, though  the  undertaking  be  gratuitous. 
20  Penn.  St.  136;  31N.  II.  119. 

ORDINATION.  The  act  of  conferring 
the  orders  of  the  church  upon  an  individual. 

ORDINIS  BENEFICIUM.    See  Bene- 

FICIUM  OllDINIS. 

ORDONNANCE  DE  LA  MARINE. 

See  Code,  ^  24. 

ORE  TENUS  (Lat.).    Verbally;  orally. 

Formerly  the  pleadings  of  the  parties  were 
ore  terms;  and  the  practice  is  said  to  have 
been  retained  till  the  reign  of  Edward  III.  3 
Reeve,  Hist.  Eng.  Law,  95  ;  Stephen,  Plead. 
29.   And  see  Bracton,  372  b. 

In  chancery  practice,  a  defendant  may 
demur  at  the  bar  ore  tenus,  3  P.  Will.  370, 
if  he  has  not  sustained  the  demurrer  on  the 
record.  1  Swanst.  Ch.  288  ;  Mitford,  Plead. 
176  ;  6  Ves.  Ch.  779  ;  8  id.  405  ;  17  id.  215, 
216. 

.  OREGON.  One  of  the  new  states  of  the 
United  States. 

2.  In  July,  1845,  a  territorial  government  wag 
established  by  the  people  of  Oregon  territory,  to 
last  till  such  time  as  the  United  States  should  ex- 
tend its  jurisdiction  over  the  territory.  This  wa8 
done  in  1848  by  act  of  congress  approved  Aug.  14. 
A  convention  asf-embled  at  Salem,  Sept.  18,  1867, 
and  framed  a  constitution,  which  was  submitted  to 
the  people  and  by  them  adopted,  as  announced  by 
the  proclamation  of  the  governor,  dated  Dec.  14, 
1857.  By  act  of  congress,  approved  Feb.  14, 
1859,  Oregon  was  admitted  into  the  Union  on  an 
equal  footing  with  the  other  states,  with  the  follow- 
ing boundaries:  beginning  one  marine  league  at 
sea  due  west  from  the  point  where  the  forty-second 
parallel  of  north  latitude  intersects  the  same; 
thence  northerly,  at  the  same  distance  from  the  line 
of  the  coast  lying  west  and  opposite  the  state,  in- 
cluding all  islands  within  the  jurisd.ction  of  the 
United  States,  to  a  point  due  west  and  opposite  the 
middle  of  the  north  ship-channel  of  the  Columbia 
river ;  thence  easterly  to  and  up  the  middle  channel 
of  said  river,  and,  where  it  is  divided  by  islands, 
up  the  middle  of  the  widest  channel  thereof,  to  a 
point  near  fort  Walla-Walla,  where  the  forty-sixth 
parallel  of  north  latitude  crosses  said  river:  thenco 
east  on  said  parallel  to  the  middle  of  the  main 


OREGON 


264        ORIGINAL  CONVEYANCES 


channel  of  the  Shoshones  or  Snake  river;  thence 
up  the  middle  of  the  main  channel  of  said  river  to 
the  mouth  of  the  Owyhee  river;  thence  due  south 
to  the  parallel  of  latitude  forty-two  degrees  north; 
thence  west  along  said  parallel  to  the  place  of  begin- 
ning; including  jurisdiction  in  civil  and  criminal 
cases  upon  the  Columbia  river  and  Snake  river, 
concurrently  with  states  and  territories  of  which 
those  rivers  form  a  boundary  in  common  with  this 
state.  The  residue  of  the  territory  which  had  be- 
fore constituted  the  territory  of  Oregon  was  incor- 
porated into  and  made  part  of  the  territory  of  Wash- 
ington.   See  Washington. 

The  Legislative  Department. 

3.  The  legislative  authority  is  vested  in  a  legisla- 
tive assembly,  consisting  of  a  Senate  and  House  of 
Representatives. 

The  Senate  is  to  consist  of  sixteen  members,  which 
number  may  be  increased  to  thirty,  elected  for  the 
term  of  four  years  by  the  electors  of  the  districts 
into  which  the  state  is  divided  for  the  purpose. 
The  senate  is  divided  into  two  classes:  so  that  one- 
half  the  number  may  be  changed  every  two  years. 

The  House  of  Representatives  is  to  consist  of 
thirty-four  members,  which  number  may  be  in- 
creased to  sixty,  chosen  by  the  electors  from  the 
respective  districts  into  which  the  state  is  divided 
fur  the  purpose,  for  the  term  of  two  years. 

Senators  and  representatives  must  be  twenty- 
one  years  old,  citizens  of  the  United  States,  and  for 
a  year  at  least  preceding  the  election  inhabitants 
of  the  county  or  district  from  which  they  were 
chosen.  Sessions  of  the  assembly  are  holden  every 
second  year. 

The  Executive  Department. 

4:.  The  Governor  is  elected  for  the  term  of  four 
years,  by  the  qualified  electors,  at  the  time  and 
places  of  choosing  members  of  the  assembly.  He 
is  commander-in-chief  of  the  military  and  naval 
forces  of  the  state ;  must  take  care  that  the  laws  are 
faithfully  executed;  may  convene  the  legislative 
assembly  on  extr.iordinary  occasions;  may  gi'ant 
reprieves,  commutations,  and  pardons,  after  convic- 
tion, for  all  offences  but  treason,  subject  to  regula- 
tions prescribed  by  the  assembly.  He  has  the  veto 
power.  He  must  be  thirty  years  old,  a  citizen  of 
the  United  States,  and  must  have  been  for  three 
years  preceding  his  election  a  resident  in  the  state. 
In  case  of  removal,  death,  resignation,  or  inability 
of  the  governor,  the  duties  of  his  office  devolve 
upon  the  secretary  of  state,  and  in  case  of  his  re- 
moval, death,  resignation,  or  disability,  upon  the 
president  of  the  senate,  till  a  governor  is  elected. 

A  Secretary  of  State  is  elected,  by  the  qualified 
el-ectors,  for  the  term  of  four  years. 

A  Treasurer  of  State  is  elected,  by  the  qualified 
electors,  for  the  term  of  four  years. 

In  each  county,  a  county  clerk,  treasurer,  sheriff, 
coroner,  and  surveyor  are  elected,  for  the  term  of 
two  years. 

The  Judicial  Department. 

5.  The  Supreme  Court  consists  of  four  justices 
(which  number  may  be  increased  to  seven),  chosen 
in  districts  by  the  electors,  for  the  term  of  six  years; 
and  the  terms  are  so  arranged  that  one,  at  least,  is 
to  be  elected  every  second  year.  They  must  be 
citizens  of  the  United  States,  and  must  have  resided 
three  years  in  the  state,  and  after  their  election 
must  reside  in  their  respective  districts.  It  has 
jurisdiction  only  to  revise  final  decisions  of  the 
circuit  courts;  and  the  judge,  when  any  case  was 
tried  in  the  circuit  court,  docs  not  sit  in  that  case. 
One  term  at  least  must  be  held  annually  at  the  seat 
of  government,  and  concise  statements  of  the  deci- 
sions arc  filed  with  the  secretary  of  state. 

Circuit  Courts  are  held  twice,  at  least,  in  each 
county,  by  a  ju  Ige  of  the  supremo  court.  These 


courts  are  the  courts  of  general  original  jurisdic- 
tion, having  jurisdiction  in  all  cases  not  specifically 
given  to  other  courts.  A  distinct  provision  is  made 
for  reorganization  when  the  population  of  the  state 
shall  amount  to  two  hundred  thousand. 

County  Courts  are  held  in  each  county,  by  a  judge 
elected  for  the  term  of  four  years.  It  has  the  juris- 
diction pertaining  to  courts  of  probate  and  county 
commissioners,  and  may  have,  by  act  of  assembly, 
civil  jurisdiction  to  the  extent  of  five  hundred 
dollars,  and  "criminal  jurisdiction  not  extending  to 
death  or  imprisonment  in  the  penitentiary." 

A  county  clerk  and  sheriff  are  elected  in  eaiih 
county,  for  the  term  of  two  years,  and  in  each  dis- 
trict composed  of  one  or  more  counties  a  prosecut- 
ing attorney,  who  is  a  law  officer  of  the  state,  and 
of  the  counties  within  his  district. 

A  judge  of  the  supreme  court,  or  prosecuting 
officer,  may  be  removed  from  office  by  the  governor, 
upon  the  joint  resolution  of  the  legislative  assembly 
in  which  two-thirds  of  the  members  present  concur, 
for  incompetency,  corruption,  malfeasance,  or  de- 
linquency in  office,  or  other  sufficient  cause  stated 
in  such  resolution. 

ORFGILD  (Sax.  orf,  cattle,  gild,  payment. 
Also  called  cheapgild).  A  payment  for  cattle, 
or  the  restoring  them.  CoAA^el. 

A  restitution  made  by  the  hundred  or 
county  of  any  wrong  done  by  one  that  was 
in  pledge.    Lambard,  Archaion.  125,  126. 

A  penalty  for  taking  away  cattle.  Blount. 

ORIGINAL.  An  authentic  instrument 
of  something,  and  which  is  to  serve  as  a 
model  or  example  to  be  copied  or  imitated. 
It  also  means  first,  or  not  deriving  any 
authority  from  any  other  source :  as,  original 
jurisdiction,  original  writ,  original  bill,  and 
the  like. 

2.  Originals  are  single  or  duplicate ; 
single,  when  there  is  but  one ;  duplicate, 
when  there  are  two.  In  the  case  of  printed 
documents,  all  the  impressions  are  originals, 
or  in  the  nature  of  duplicate  originals,  and 
any  copy  will  be  primary  evidence.  2  Stark. 
130.  But  see  14  Serg.  &  R.  Penn.  200 ;  2 
Bouvier,  Inst.  n.  2001. 

3.  When  an  original  document  is  not  evi- 
dence at  common  law,  and  a  copy  of  such 
original  is  made  evidence  by  an  act  of  the 
legislature,  the  original  is  not  therefore  made 
admissible  evidence  by  implication.  2Campb. 
121,  n. 

ORIGINAL  BILL.    In  Chancery 

Practice.  A  bill  relating  to  a  matter  not 
before  brought  before  the  court  by  the  same 
parties,  standing  in  the  same  interests.  Mit- 
ford,  Eq.  Plead.  33  ;  Willis,  Plead.  13  et  seq. 

Proceedings  in  a  court  of  chancery  are  either 
commenced  by  way  of  information,  when  the  matter 
concerns  the  state  or  those  under  its  protection,  or 
by  original  petition  or  bill,  when  the  matter  does 
not  concern  the  state  or  those  under  its  protecdon. 
The  original  bill  states  simply  the  cause  of  com- 
plaint, and  asks  for  relief.  It  is  composed  of  nine 
parts,  Story,  Eq.  Plead.  7,  8,  and  is  the  founda- 
tion of  all  subsequent  proceedings  before  the  court. 
See  1  Daniell,  Chanc.  Pract.  361.    See  Bill. 

ORIGINAL  CONVEYANCES  (called, 
also,  primary  conveyances)  are  those  convey- 
ances by  means  whereof  the  benefit  or  estate 
is  created  or  first  arises  •  viz.  feoffment,  gift,. 


ORIGINAL  ENTRY 


265 


ORIGINALIA 


grant,  lease,  exchange,  partition.  2  Shars- 
woud,  Blackst.  Comm.  309,  310*;  1  Stephen, 
Comm.  4G0. 

ORIGINAL  ENTRY.  The  first  entry 
made  by  a  merchant,  tradesman,  or  other 
])erson  in  his  account-books,  charging  another 
with  merchandise,  materials,  work  or  laljor, 
or  cash,  on  a  contract  made  between  them. 

Such  an  entry,  to  be  admissible  as  evi- 
dence, must  be  made  in  a  proper  book.  In 
general,  the  books  in  which  the  first  entries 
are  made,  belonging  to  a  merchant,  trades- 
man, or  mechanic,  in  which  are  charged 
goods  sold  and  delivered  or  work  and  labor 
done,  are  received  in  evidence.  There  are 
many  books  which  are  not  evidence,  a  few  of 
which  will  be  here  enumerated.  A  book 
made  up  by  transcribing  entries  made  on  a 
slate  by  a  journeyman,  the  transcript  being 
made  on  the  same  evening,  or  sometimes  not 
until  nearly  two  weeks  after  the  work  was 
done,  was  considered  as  not  being  a  book  of 
original  entries.  1  Rawle,  Penn.  435  ;  4  id. 
408  ;  2  Watts,  Penn.  451;  4  id.  258;  5  id. 
432;  6  AVhart.  Penn.  189;  2  Miles,  Penn. 
268.  A  book  purporting  to  be  a  book  of 
original  entries,  containing  an  entry  of  the 
sale  of  goods  when  they  were  ordered,  but 
before  they  were  delivered,  is  not  a  book  of 
original  entries.  4  Rawle,  Penn.  404.  And 
unconnected  scraps  of  paper,  containing,  as 
alleged,  original  entries  of  sales  by  an  agent, 
on  account  of  his  principal,  and  appearing  on 
their  face  to  be  irregularly  kept,  are  not  to 
be  considered  as  a  book  of  original  entries. 
13  Serg.  &  R.  Penn.  126.  See  2  Whart. 
Penn.  33  ;  4  M'Cord,  So.  C.  76 :  20  Wend.  N. 
y.  72;  1  Yeates,  Penn.  198  ;  4  id.  341. 

3.  The  entry  must  be  made  in  the  course 
j»f  business,  and  with  the  intention  of  making 
a  charge  for  goods  sold  or  work  done :  they 
ought  not  to  be  made  after  the  lapse  of  one 
day.  1  Nott  &  McC.  So.  C.  130 ;  4  id.  77  ;  4 
Serg.  &  R.  Penn.  5  ;  9  id.  285 ;  8  Watts,  Penn. 
545.  A  book  in  which  the  charges  are  made 
when  the  goods  are  ordered  is  not  admissible. 
4  Rawle,  Penn.  404 ;  3  Dev.  No.  C.  449. 

The  entry  must  be  made  in  an  intelligible 
manner,  and  not  in  figures  or  hieroglyphics 
which  are  understood  by  the  seller  only.  4 
Rawle,  Penn.  404.  A  charge  made  in  the 
gross  as  "190  days'  work,"  1  Nott  &  M'C. 
So.  C.  130,  or  "  for  medicine  and  attendance," 
or  "  thirteen  dollars  for  medicine  and  attend- 
ance on  one  of  the  general's  daughters  in 
curing  the  hooping-cough,"  2  Cons.  So.  C. 
476,  were  rejected.  An  entry  of  goods  with- 
out carrying  out  any  prices  proves,  at  most, 
only  a  sale;  and  the  jury  cannot,  without 
other  evidence,  fix  any  price.  1  South.  So. 
C.  370.  The  charges  should  be  specific,  and 
denote  the  particular  work  or  service  charged 
as  it  arises  daily,  and  the  quantity,  number, 
weight,  or  other  distinct  designation  of  the 
materials  or  articles  sold  or  furnished,  and 
attach  the  price  and  valu3  to  each  item.  2 
Const.  So.  C.  745  ;  2  Bail.  So.  C.  449  ;  1  Nott 
&  M'C.  So.  C.  130. 

4.  T)ie  entry  must,  ol  course,  have  been 


made  by  a  person  having  authority  to  make 
it,  4  Rawle,  Penn.  404,  and  with  a  view  to 
charge  the  party.    8  Watts,  Penn.  545. 

The  proof  of  the  entry  must  be  made  by 
the  person  who  made  it.  If  made  by  the 
seller,  he  is  competent  to  prove  it  from  the 
necessity  of  the  case,  although  he  has  an  in- 
terest in  the  matter  in  dispute.  5  Conn.  496; 
12  Johns.  N.  Y.  461 ;  1  Dall.  Penn.  239.  When 
made  by  a  clerk,  it  must  be  proved  by  him. 
But  in  either  case,  when  the  person  who 
made  the  entry  is  out  of  the  reach  of  the  pro- 
cess of  the  court,  as  in  the  case  of  death,  or 
absence  out  of  the  state,  the  handwriting  may 
be  proved  by  a  person  acquainted  with  the 
handwriting  of  the  person  who  made  the 
entry.  2  Watts  &  S.  Penn.  137.  But  the 
plaintiff  is  not  competent  to  prove  the  hand 
writing  of  a  deceased  clerk  who  made  the 
entries.    1  Browne,  Penn.  App.  liii. 

The  books  and  original  entries,  when 
proved  by  the  supplementary  oath  of  the 
party,  is  prima  facie  evidence  of  the  sale  and 
delivery  of  goods,  or  of  work  and  labor  done. 
1  Yeates,  Penn.  347  ;  Swift,  Ev.  84 ;  3  Vt. 
463  ;  1  M'Cord,  So.  C.  481 ;  2  Root,  Conn.  59; 
1  Cooke,  Tenn.  38.  But  they  are  not  evidence 
of  money  lent  or  cash  paid,  1  Day,  Conn. 
104;  1  Aik.  Vt.  73,  74;  Kirb.  Conn.  289; 
nor  of  the  time  a  vessel  lay  at  the  plaintiff's 
wharf,  1  Browne,  Penn.  257 ;  nor  of  the  de- 
livery of  goods  to  be  sold  on  commission.  2 
Whart.  Penn.  33.  _ 

These  entries  are  evidence  in  suits  between 
third  parties,  8  Wheat.  326 ;  3  Campb.  305, 
377  ;  2  Perr.  &  D.  573  ;  15  Mass.  380 ;  20 
Johns.  N.  Y.  168  ;  7  Wend.  N.  Y.  160 ;  15 
Conn.  206 ;  7  Serg.  &  R.  Penn.  116 ;  16  id. 
89  ;  2  Harr.  &  J.  Md.  77  ;  2  Rand.  Va.  87  ;  1 
Younge  &  C.  Exch.  53 ;  and  also  in  favor  of  the 
party  himself.  2  Mart.  La.  n.  s.  508  ;  4  id. 
383  ;  2  Mass.  217  ;  1  Dall.  Penn.  239  ;  2  Bay,  t 
So.  C.  173,  362  ;  5  Vt.  313  ;  1  Phillipps,  Ev. 
266,  Cowen  &  H.  note. 

ORIGINAL    JURISDICTION.  Sec 

Jurisdiction. 

ORIGINAL  WRIT.  In  English  Prao 
tice.  A  mandatory  letter  issued  in  the 
king's  name,  sealed  with  his  great  seal,  and 
directed  to  the  sheriff  of  the  county  wherein 
the  injury  was  committed  or  supposed  to  have 
been  done,  requiring  him  to  command  the 
wa-ong-doer,  or  party  accused,  either  to  do 
justice  to  the  complainant,  or  else  to  appeal 
in  court  and  answer  the  accusation  against 
him.  This  writ  is  deemed  necessary  to  give 
the  courts  of  law  jurisdiction. 

In  modern  practice,  however,  it  is  often  dispensed 
with,  by  recourse,  as  usual,  to  fiction,  and  a  pro- 
ceeding by  bill  is  substituted.  In  this  country,  our 
courts  derive  their  jurisdiction  from  the  constitu- 
tion, and  require  no  original  writ  to  confer  it.  Im- 
properly speaking,  the  first  writ  which  is  issued  in 
a  case  is  sometimes  called  an  original  writ;  but  it  ie 
not  so  in  the  English  sense  of  the  word.  ?ee 
3  Blackstone,  Comm.  273;  Walker,  Am.  Law,  514. 

ORIGINALIA  (Lat.).  In  English  Law. 
The  transcripts  and  other  documents  sent  tv' 
the  office  of  the  treasurer-remembrancer  lu 


ORNAMENT 


266 


OUTLAWRY 


exchequer  are  called  by  this  name  to  distin- 
guish them  from  recorda,  which  contain  the 
judgments  of  the  barons. 

ORNAMENT.  An  embellishment.  In 
questions  arising  as  to  which  of  two  things 
is  tc  be  considered  as  principal  or  accessory, 
it  is  the  rule  that  an  ornament  shall  be  consi- 
dered as  accessory. 

ORPHAN.  A  minor  or  infant  who  has 
lost  both  of  his  or  her  parents.  Sometimes 
the  term  is  applied  to  such  a  person  who  has 
lost  only  one  of  his  or  her  parents.  3  Mer. 
Ch.  48;  2  Sim.  &  S.  Ch.  93;  Aso  &  M.  Inst, 
b.  1,  t.  2,  c.  1.  See  14  Ilazzard,  Penn.  Reg. 
188,  189,  for  a  correspondence  between  the 
Hon.  Joseph  Hopkinson  and  ex-president  J.Q. 
Adams  as  to  the  meaning  of  the  word  orphan. 
See,  also.  Hob.  247. 

ORPHANAGE.  In  English  Law.  The 
share  reserved  to  an  orphan  by  the  custom  of 
London. 

By  the  custom  of  London,  when  a  freeman  of  that 
jity  dies,  his  estate  is  divided  into  three  parts,  as 
follows :  one-third  part  to  the  widow ;  another  to 
the  children  advanced  by  him  in  his  lifetime,  which 
is  called  the  o)j:)hanac/e ;  and  the  other  third  part 
may  be  by  him  disposed  of  by  will.  Now,  how- 
ever, a  freeman  may  dispose  of  his  estate  as  he 
pleases ;  but  in  cases  of  intestacy  the  Statute  of 
Distribution  expressly  excepts  and  reserves  the  cus- 
tom of  London.  Lovelace,  Wills,  102,  104  ;  Bacon, 
Abr.  Custom  of  London  (C). 

ORPHANS'  COURT.  In  American 
Law.  Courts  of  more  or  less  extended  pro- 
bate jurisdiction.  See  the  accounts  of  the  re- 
spective states. 

ORPHANCTROPHL  In  Civil  Law. 
Persons  who  have  the  charge  of  administer- 
ing the  aS'airs  of  houses  destined  for  the  use 
of  orphans.  Clef  des  Lois  Rom.  Administra- 
teurs. 

8  OSTENSIBLE  PARTNER.  One  whose 
name  appears  in  a  firm  as  a  partner,  and  who 
is  really  such. 

OTHER  WRONGS.  See  Alia  Enor- 
mia. 

OTHESWORTHE  (Sax.  eotli,  oath). 
Worthy  to  make  oath.    Bracton,  185,  192. 

OUNCE.  The  name  of  a  weight.  See 
Weights. 

OUSTER  (L.  Fr.  outre,  oidtre;  Lat.  ultra, 
beyond).  Out;  beyond;  besides;  farther; 
also  ;  over  and  more.  Le  ouster,  the  upper- 
most. Over:  respondeat  ouster,  let  him  an- 
swer over.  Britton,  c.  29.  Ouster  le  mer, 
over  the  sea.  Jacob.  Law  Diet.  Ouster  eit, 
he  went  away.    6  Coke,  41       9  id.  120. 

To  put  out ;  to  oust.  11  oust,  he  put  out  or 
ousted.    Onsfes,  ousted.    6  Coke,  41  h. 

In  Torts.  The  actual  turning  out  or  keep- 
ing excluded  the  party  entitled  to  possession 
of  any  real  property  corporeal. 

An  ouster  can  properly  be  only  from  real 
property  C(jrporeal,  and  cannot  be  committed 
of  any  thing  movable,  1  Carr.  &  P.  123  ;  2 
Bouvier,  Inst.  n.  2348  ;  1  Chitty,  Pract.  148, 
n.  r;  nor  is  a  mere  temporary  trespass  con- 
bidered  as  an  ouster.    Any  continuing  act  of 


exclusion  from  the  enjoyment  constituie*  aii 
ouster,  even  by  one  tenant  in  common  of  his  < 
co-tenant.  Coke,  Litt.  199  h,  200  a.  See  3 
Sharswood,  Blackst.  Comm.  1G7  ;  Archbold, 
Civ.  Plead.  6,  14  ;  1  Chitty,  Pract.  374,  where 
the  remedies  for  an  ouster  are  pointed  out. 
See  Judgment  of  Respondeat  Ouster  ;  Ros- 
coe.  Real  Actions,  502,  552,  574,  582;  2 
Crabb,  Real  Prop,  g  2454  a;  1  AVooddeson, 
Lect.  501 ;  Washburn,  Real  Prop. 

OUSTER  LE  MAIN  (L.  Fr.  to  take  out 
of  the  hand).  In  Old  English  Law.  A 
livery  of  lands  out  of  the  hands  of  the  lord 
after  the  tenant  came  of  age.  If  the  lord  re- 
fused to  deliver  such  lands,  the  tenant  was 
entitled  to  a  writ  to  recover  the  same  from  the 
lord :  this  recovery  out  of  the  hands  of  the 
lord  was  called  ouster  le  main. 

OUT  OF  THE  STATE.  Beyond  sea, 
which  title  see. 

OUT  OF  TIME.  In  Marine  Insurance. 

Missing.  Generally  speaking,  a  ship  may 
be  said  to  be  missing  or  out  of  time  when  she 
has  not  been  heard  of  after  the  longest  ordi- 
nary time  in  which  the  voyage  is  safely  per- 
formed. 1  Arnoult,  Ins.  540;  2  Duer,  In8, 
469,  n. 

OUTFIT.     An  allowance  made  by  the 
government  of  the  United  States  to  a  minis- 
ter  plenipotentiary,  or  charge  des  affaires,  on  ; 
going  from  the  United  States  to  any  foreign . 
country. 

The  outfit  can  in  no  case  exceed  one  year's  ^ 
full  salary  of  such  minister  or  charge  des  / 
affaires.  No  outfit  is  allowed  to  a  consul.  •. 
Act  of  Congr.  May  1,  1810,  s.  1.  See  Min-  : 
ISTER.  ; 

OUTHOUSES.  Buildings  adjoining  or 
belonging  to  dwelling-houses. 

Buildings  subservient  to,  yet  distinct  from, 
the  principal  mansion-house,  located  either 
within  or  without  the  curtilage.    1  Bishop, ; 
Crim.  Law,  I  175  ;  4  Conn.  46 ;  4  Gill  &  J. ' 
Md.  402 ;  2  Crawf.  &  D.  Cr.  Cas.  479.  \ 

It  is  not  easy  to  say  what  comes  within  and 
what  is  excluded  from  the  meaning  of  out-  '< 
house.  It  has  been  decided  that  a  scliool-room, 
separated  from  the  dwelling-house  by  a  nar- 
row passage  about  a  yard  wide,  the  roof  of 
which  was  partly  upheld  by  that  of  the  dwell- 
ing-house, the  two  buildings,  together  with 
some  other,  and  the  court  which  inclosed 
them,  being  rented  by  the  same  person,  was 
properly  described  as  an  outhouse.  Russ.  & 
R.  Cr.  Cas.  295.  See,  for  other  cases.  Coke, 
3d  Inst.  67 ;  Burn,  Just.  Burninq,  II ;  1  Leach, 
Cr.  Cas.  49 ;  2  East,  PI.  Cr.  1020,  1021 :  5 
Carr.  &  P.  555  ;  6  id.  402 ;  8  Barnew.  &  C. 
461;  1  Mood.  Cr.  Cas.  323,  336  ;  4  Conn.  446; 
11  Ala.  N.  s.  594;  20  id.  30. 

OUTLAW.  In  English  Law.  One  who 
is  put  out  of  the  protection  or  aid  of  the  law. 
22  Viner,  Abr.  316;  1  Phillipps,  Ev.  Index; 
Bacon,  Abr.  Outlawry;  2  Sellon,  Pract.  277  j 
Doctrina  Plac.  331 ;  3  Sharswood,  Blackst. 
Comm.  283,  284. 

OUTLAWRY.   In  English  Law.  Th« 


OUTRAGE 


267 


OWING 


act  of  being  put  out  of  the  protection  of  the 
iuw,  by  process  regularly  sued  out  against  a 
person  who  is  in  contempt  in  refusing  to  be- 
come amenable  to  the  court  having  jurisdic- 
tion. The  proceedings  themselves  are  also 
called  the  outlawry. 

Outlawry  may  take  place  in  criminal  or  in 
civil  cases.  3  Sharswood,  Blackst.  Comm. 
283  ;  Coke,  Litt.  128  ;  4  Bouvier,  Inst.  n.  4196. 

In  the  United  States,  outlawry  in  civil  cases 
ib  unknown,  and  if  there  are  any  cases  of 
outlawry  in  criminal  cases  they  are  very  rare. 
Dane,  Abr.  ch.  193  a,  34.  See  Bacon,  Abr. 
Abatement  (B),  Ovtlawry ;  Gilbert,  Hist.  19G, 
197  ;  2  Va.  Cas.  244 ;  2  Dall.  Penn.  92. 

OUTRAG-E.  A  grave  injury;  a  serious 
wrong.  This  is  a  generic  word  which  is  ap- 
plied to  every  thing  which  is  injurious  in  a 
^reat  degree  to  the  honor  or  rights  of  another. 

OUTRIDERS.    In  English  Practice. 

Bailiffs  employed  by  the  sheriffs  and  their 
deputies  to  ride  to  the  farthest  places  of  their 
counties  or  hundreds,  to  summon  such  as  they 
thought  good  to  attend  their  county  or  hun- 
dred court. 

OVERDRAW.  To  draw  bills  or  checks 
upon  an  individual,  bank,  or  other  corpora- 
tion, for  a  greater  amount  of  funds  than  the 
party  who  draws  is  entitled  to. 

2.  When  a  person  has  overdrawn  his  ac- 
count without  any  intention  to  do  so,  and 
afterwards  gives  a  check  on  a  bank,  the  holder 
is  required  to  present  it,  and  on  refusal  of 
payment  to  give  notice  to  the  maker,  in  order 
to  hold  him  bound  for  it ;  but  w^hen  the  maker 
has  overdrawn  the  bank  knowingly,  having 
no  funds  there  between  the  time  the  check 
is  given  and  its  presentment,  the  notice  is 
not  requisite.    2  Nott  &  M'C.  So.  C.  433. 

OVERDUE.  A  bill,  note,  bond,  or  other 
contract  for  the  payment  of  money  at  a  par- 
ticular day,  when  not  paid  upon  the  day,  is 
overdue. 

The  indorsement  of  a  note  or  bill  overdue 
is  equivalent  to  drawing  a  new  bill  payable 
at  sight.  2  Conn.  419  ;  18  Pick.  Mass.  260 ; 
9  Ala.  N.  s.  153. 

A  note,  when  passed  or  assigned,  when  over- 
due is  subject  to  all  the  equities  between  the 
original  contracting  parties.  6  Conn.  5  ;  10 
id.  30,  55  ;  3  Harr.  N.  J.  222. 

OVER-INSURANCE.  See  Double  In- 
surance. 

OVERPLUS.  What  is  left  beyond  a  cer- 
tain amount ;  the  residue  ;  the  remainder  of 
a  thing.    The  same  as  surplus. 

The  overplus  may  be  certain  or  uncertain.  It  is 
certain,  for  example,  when  an  estate  is  worth  three 
thousand  dolhirs,  and  the  owner  asserts  it  to  be  so 
in  his  will,  and  devises  of  the  proceeds  one  thou- 
sand dollars  to  A,  one  thousand  dollars  to  B,  and 
the  overplus  to  C,  and  in  consequence  of  the  dete- 
rioration of  the  estate,  or  from  some  other  cause,  it 
sells  for  less  than  three  thousand  dollars,  each  of 
the  legatees.  A,  B,  and  C,  shall  take  one-third.  The 
overplus  is  uncertain  where,  for  example,  a  testator 
does  not  know  the  value  of  his  estate,  and  gives 
''arious  legacies,  and  the  overplus  to  another  legatee : 


the  latter  will  be  entitled  only  to  what  may  be  left 
18  Ves.  Ch.  406.    See  Residue;  Suhi'Mjs. 

OVERRULE.    To  annul ;  to  make  void. 

This  word  is  frequently  used  to  signify  that  a 
case  bus  been  decided  directly  opposite  to  a  former 
case:  when  this  takes  place,  the  first-decided  case 
is  said  to  be  overruled  as  a  precedent,  and  cannot 
any  longer  be  considered  as  of  binding  authority. 

Mr.  Grcenleaf  has  made  a  very  valuable  collec- 
tion of  overruled  cases,  of  great  service  to  the  prac- 
titioner. 

It  also  signifies  that  a  majority  of  the  judges 
have  decided  ngainst  the  opinion  of  the  minority, 
in  which  case  the  latter  are  said  to  be  overruled. 

OVERSEERS  OF  THE  POOR.  Per- 
sons appointed  or  elected  to  take  care  of  the 
poor  with  moneys  furnished  to  them  by  the 
public  authority. 

The  duties  of  these  officers  are  regulated 
by  local  statutes.  In  general,  the  overseers 
are  bound  to  perform  those  duties,  and  the 
neglect  of  them  will  subject  them  to  an  in- 
dictment. See  1  Sharswood,  Blackst.  Comm. 
360  ;  16  Viner,  Abr.  150  ;  1  Mass.  459  ;  3  id, 
436;  1  Penn.  N.  J.  6,  136;  Comyns,  Dig. 
Justices  of  the  Peace  (B  63-65). 

OVERSMAN.    In  Scotch  Law.  A 

person  commonly  named  in  a  suljmission,  to 
whom  power  is  given  to  determine  in  case 
the  arbiters  cannot  agree  in  the  sentence. 
Sometimes  the  nomination  of  the  oversman  ia 
left  to  the  arbiters.  In  either  case  the  overs- 
man  has  no  power  to  decide  unless  the  arbi- 
ters differ  in  opinion.  Erskine,  Inst.  4.  3. 16. 
The  office  of  an  oversman  very  much  resem 
bles  that  of  an  umpire. 
OVERT.  Open. 

An  overt  act  in  treason  is  proof  of  the  in 
tention  of  the  traitor,  because  it  opens  his  de- 
signs :  without  an  overt  act,  treason  cannot 
be  committed.  2  Chitty,  Crim.  Law,  40.  An 
overt  act,  then,  is  one  which  manifests  the 
intention  of  the  traitor  to  commit  treason. 
Archbold,  Crim.  Plead.  379;  4  Sharswood, 
Blackst,  Comm.  79  ;  Coke,  3d  Inst.  12  ;  1  Dall. 
Penn.  33  ;  2  id.  346  ;  4  Cranch,  75  ;  3  Wash. 
C.  C.  234 ;  2  Gabbett,  Crim.  Law,  890,  891. 

The  mere  contemplation  or  intention  to 
commit  a  crime,  although  a  sin  in  the  sight 
of  Heaven,  is  not  an  act  amenable  to  human 
laws.  The  mere  speculative  wantonness  of  a 
licentious  imagination,  however  dangerous  or 
even  sanguinary  in  its  object,  can  in  no  case 
amount  to  a  crime.  But  the  moment  that 
any  overt  act  is  manifest,  the  offender  becomes 
amenable  to  the  laws.  See  Attempt  ;  Con- 
spiracy ;  Croke  Car.  577. 

OWELTY.  The  difference  which  is  paid 
or  secured  by  one  coparcener  to  another  for 
the  purpose  of  equalizing  a  partition.  Lit- 
tleton, §  251 ;  Coke,  Litt.  169  a;  1  AVatts,  Penn. 
265  ;  1  Whart.  Penn.  292 ;  Cruise,  Dig.  tit. 
19,  ^  32;  1  Vern.  Ch.  133;  Plowd.  134;  16 
Viner,  Abr.  223,  pi.  3  ;  Brooke,  Abr.  Parti- 
tion, I  5. 

OWING.    Something  unpaid.    A  debt, 
for  example,  is  owing  while  it  is  unpaid,  and 
1  whether  it  be  due  or  not. 


OWLER 


268 


OYEZ 


I 


In  affidavits  to  hold  to  bail  it  is  usual  to 
state  that  the  debt  on  which  the  action  is 
founded  is  due,  owing  and  unpaid.  1  Penn. 
Law  Journ.  210. 

OWLER.  In  English  Law.  One  guilty 
of  the  offence  of  owling. 

OWLING.  In  English  Law.  The 
offence  of  transporting  wool  or  sheep  out  of 
the  kingdom. 

The  name  is  said  to  owe  its  origin  to  the 
fact  that  this  offence  was  carried  on  in  the 
night,  when  the  owl  was  abroad. 

OWNER.  He  who  has  dominion  of  a 
thing,  real  or  personal,  corporeal  or  incorpo- 
real, which  he  has  a  right  to  enjoy  and  do 
with  as  he  pleases, — even  to  spoil  or  destroy 
it,  as  far  as  the  law  permits,  unless  he  be  pre- 
vented by  some  agreement  or  covenant  which 
restrains  his  right. 

2.  Although  there  can  be  but  one  absolute 
owner  of  a  thing,  there  may  be  a  qualified 
ownership  of  the  same  thing  by  many.  Thus, 
a  bailor  has  the  general  ownership  of  the 
thing  bailed,  the  bailee  the  special  owner- 
ship. The  right  of  the  absolute  owner  is 
more  extended  than  that  of  him  who  has  only 
a  qualified  ownership:  as,  for  example,  the 
use  of  the  thing.  Thus,  the  absolute  owner 
of  an  estate,  that  is,  an  owner  in  fee,  may  cut 
the  wood,  demolish  the  buildings,  build  new 
ones,  and  dig  wherever  he  may  deem  proper 
for  minerals,  stone,  plaster,  and  similar 
things,  which  would  be  considered  waste  and 
would  not  be  allowed  in  a  qualified  owner 
of  the  estate,  as  a  lessee  or  a  tenant  for  life. 
The  word  owner,  when  used  alone,  imports 
an  absolute  owner ;  but  it  has  been  held  in 
Ohio  that  the  word  owner,  in  the  Mechanic 
Lien  Law  of  that  state,  included  the  owner  of 
the  leasehold  as  well  as  of  the  reversion,  on 
the  ground  that  any  other  construction  would 
be  subversive  of  the  policy  and  intent  of  the 
statute.    2  Ohio,  123. 

3.  The  owner  continues  to  have  the  same 
right  although  he  perform  no  acts  of  owner- 
ship or  be  disabled  from  performing  them, 
and  although  another  perform  such  acts  with- 
out the  knowledge  or  against  the  will  of  the 
owner.  But  the  owner  may  lose  his  right  in 
a  thing  if  he  permit  it  to  remain  in  the  pos- 
session of  a  third  person  for  a  sufficient  time 
to  enable  the  latter  to  acquire  a  title  to  it  by 
prescription  or  under  the  Statute  of  Limita- 
tion. See  La.  Civ.  Code,  b.  2,  tit.  2,  c.  1 ; 
Encyclopedie  de  M.  d'Alembert,  ProprU- 
taire, 

4.  When  there  are  several  joint-owners  of 
a  thing, — as,  for  example,  of  a  ship, — the 
majority  of  them  have  the  right  to  make  con- 
tracts in  respect  of  such  thing  in  the  usual 
course  of  business  or  repair,  and  the  like,  and 
the  minority  will  be  bound  by  such  contracts. 
Holt,  586;  1  Bell,  Comm.  5th  ed.  519;  5 
Whart.  Penn.  36*6. 

OWNERSHIP.    The  right  by  which  a 


thing  belongs  to  some  one  in  particular,  to 
the  exclusion  of  all  others.  La.  Civ.  Code 
art.  480. 

OXGANG  (fr.  Sax.  gang,  going,  and  ox  ; 
Law  Lat.  hovata).    In  Old  Ilnglish  Law. 

So  much  land  as  an  ox  could  till.  Accord- 
ing to  some,  fifteen  acres.  Coke,  Litt.  69  a; 
Crompton,  Jurisd.  220.  According  to  Bal- 
four, the  Scotch  oxengang,  or  oxgate,  con- 
tained twelve  acres  ;  but  this  does  not  corre- 
spond with  ancient  charters.  See  Bell,  Diet. 
Ploiighgate.  Skene  says  thirteen  acres.  Cowel. 

OYER  (Lat.  audire;  through  L. Fr.  oyer,  to 
hear.). 

In  Pleading.  A  prayer  or  petition  to  the 
court  that  the  party  may  hear  read  to  him 
the  deed,  etc.  stated  in  the  pleadings  of  the 
opposite  party,  and  which  deed  is  by  intend- 
ment of  law  in  court  when  it  is  pleaded  with 
a  profert.  The  same  end  is  now  generally 
attained  by  giving  a  copy  of  the  deed  of 
which  oyer  is  asked,  or,  in  other  instances,  by 
setting  forth  the  instrument  in  full  in  the 
plaintiff's  statement  of  his  case.  Oyer  as  it 
existed  at  common  law  seems  to  be  abolished 
in  England.  1  Bos.  &  P.  646,  n.  6 ;  3  id.  398  ; 
25  Eng.  L.  &  Eq.  304.  Oyer  may  be  de- 
manded of  any  specialty  or  other  written 
instrument,  as,  bonds  of  all  sorts,  deeds-poll, 
indentures,  letters  testamentary  and  of  ad- 
ministration, and  the  like,  which  the  adverse 
party  is  obliged  to  plead  with  a  profert  in 
cu7'ia.  But  pleading  with  a  profert  unneces- 
sarily does  not  give  a  right  to  demand  oyer, 
1  Salk.  497  ;  and  it  may  not  be  had  except 
when  profert  is  made.  1  Hempst.  Ark.  265. 
Denial  of  oyer  when  it  should  be  granted  is 
ground  for  error.  1  Blackf.  Ind.  126.  In  such 
cases  the  party  making  the  claim  should 
move  the  court  to  have  it  entered  on  record, 
which  is  in  the  nature  of  a  plea,  and  the 
plaintiff  may  counterplead  the  right  of  oyer, 
or  strike  out  the  rest  of  the  pleading  follow- 
ing the  oyer,  and  demur,  1  Saund.  9  6,  n.  1 ; 
Bac.  Abr.  Pleas,  1 ;  upon  which  the  judgment 
of  the  court  is  either  that  the  defendant  have 
oyer,  or  that  he  answer  without  it.  Id. ;  2 
Lev.  142 ;  6  Mod.  28.  See  Profert  in  Curia. 

After  craving  oyer,  the  defendant  may  set 
forth  the  deed  or  a  part  thereof,  or  not,  at  his 
election,  1  Chitty,  PI.  372,  and  may  after- 
wards plead  nan  est  factum,  or  any  other 
plea,  without  stating  the  oyer,  2  Strange, 
1241 ;  1  Wils.  97,  and  may  demur  if  a  mate- 
rial variance  appear  between  the  oyer  and 
declaration.    2  Saund.  366,  n. 

See,  generally,  Comyns,  Dig.  Pleader  (P), 
Abatement  (I  22) ;  3  Bouvier,  Inst.  n.  2890. 

OYER  AND  TERMINER.  See  As- 
size ;  Court  or  Oyer  and  Terminer. 

OYEZ  (Fr.  hear  ye).  The  introduction  to 
any  proclamation  or  advertisement  by  public 
crier.  It  is  wrongly  and  usually  pronounced 
oh  yes.  4  Sharswood,  Blackst.  Comm.  340,  n. 


PACE 


269 


PANDECTS 


P. 


I  FACE.  A  measure  of  length,  containing 
I  two  feet  and  a  half.  The  geometrical  pace  is 
I  five  feet  long.   The  common  pace  is  the  length 

of  a  step ;  the  geometrical  is  the  length  of 

two  steps,  or  the  whole  space  passed  over  by 
I  the  same  foot  from  one  step  to  another. 

PACIFICATION  (Lat.^ax,  peace, /acere, 

to  make).    The  act  of  making  peace  between 

two  countries  which  have  been  at  war ;  the 

restoration  of  public  tranquillity. 

PACK.   To  deceive  by  false  appearances  ; 

to  counterfeit ;  to  delude  :  as,  packing  a  jury. 

See  Jury  ;  Bacon,  Abr.  Juries  (M) ;  12  Conn. 

262. 

PACT.  In  Civil  Law.  An  agreement 
made  by  two  or  more  persons  on  the  same 
subject,  in  order  to  form  some  engagement, 
or  to  dissolve  or  modify  one  already  made: 
Coiweniio  est  duormn  in  idem  placitum  consen- 
sus de  re  solvendd,  id  est  faciendd  vel  prces- 
tandd.  Dig.  2.  14 ;  Clef  des  Lois  Rom. ;  Ay- 
liffe,  Pand.  558 ;  Merlin,  Rep.  Fade. 

PACTIONS.  In  International  Law. 
Contracts  between  nations  which  are  to  be 
performed  by  a  single  act,  and  of  which 
execution  is  at  an  end  at  once.  1  Bouvier, 
Inst.  n.  100. 

PACTUM  CONSTITUTiE  PECU- 
Nl-ffi  (Lat.).  In  Civil  Law.  An  agree- 
ment by  w"iich  a  person  appointed  to  his 
creditor  a  certain  day,  or  a  certain  time,  at 
which  he  promised  to  pay  ;  or  it  may  be  de- 
fined simply  an  agreement  by  which  a  per- 
son promises  a  creditor  to  pay  him. 

When  a  person  by  this  pact  promises  his  own  cre- 
ditor to  pay  him,  there  arises  a  new  obligation,  which 
does  not  destroy  the  former  by  which  he  was  already 
Dound,  but  which  is  accessory  to  it;  and  by  this 
multiplicity  of  obliji^ations  the  right  of  the  creditor 
is  strengthened.    Pothier,  Obi.  pt.  2,  c.  6,  s.  9. 

There  is  a  striking  conformity  between  the  'pac- 
tum coiifititutse  pecunise,  as  above  defined,  and  our 
indebitatus  assumpsit.  The  pactum  constitutse  pe- 
cunise was  a  promise  to  pay  a  subsisting  debt, 
whether  natural  or  civil,  made  in  such  a  manner 
as  not  to  extinguish  the  preceding  debt,  and  intro- 
duced by  the  praetor  to  obviate  some  formal  diffi- 
culties. The  action  of  indebitatus  assumpsit  was 
brought  upon  a  promise  for  the  payment  of  a  debt : 
it  was  not  subject  to  the  wager  of  law  and  other 
technical  difficulties  of  the  regular  action  of  debt; 
but  by  such  promise  the  right  to  the  action  of  debt 
was  not  extinguished  nor  varied.  4Coke,  91, 95.  See 
1  H.  Blackst.  550-555,  850;  Dougl.  6,  7 ;  3  Wood, 
Inst.  168,  169,  n.  c;  1  Viner.  Abr.  270;  Brooke, 
Abr.  Action  sur  le  Case  (pi.  7,  69,  72) ;  Fitzherbert, 
Nat.  Brcv.  94  A,  n.  a,  145  G ;  4  Bos.  &  P.  295 ;  1 
Chitty,  Plead.  89 ;  Toullier,  Dr.  Civ.  Fr.  liv.  3,  t.  3, 
c.  4,  nn.  .388,  396. 

PACTUM  DE  NON  PETANDO  (Lat.). 
In  Civil  Law.  An  agreement  made  between 
a  creditor  and  his  debtor  that  the  former  will 
not  demand  from  the  latter  the  debt  due.  By 
this  agreement  the  debtor  is  freed  from  his 
Dbligation.    This  is  not  unlike  the  covenant 


not  to  sue,  of  the  common  law.  Wolff,  Dr.  de 
la  Nat.  I  755. 

PACTUM  DE  QUOTA  LITIS  (Lat.). 
In  Civil  Law.  An  agreement  ]jy  which  a 
creditor  of  a  sum  difficult  to  recover  promises 
a  portion — for  example,  one-third — to  the 
person  who  will  undertake  to  recover  it.  In 
general,  attorneys  will  abstain  from  making 
such  a  contract:  yet  it  is  not  unlawful  at 
common  law. 

PAGODA.  In  Commercial  Law.  A 
denomination  of  money  in  Bengal.  In  the 
computation  of  ad  valorem  duties  it  is  valued 
at  one  dollar  and  ninety-four  cents.  Act  of 
March  2,  1799,  s.  61,  1  Story,  U.  S.  Laws, 
G2G.    See  Foreign  Coins, 

PAINE  FORTE  ET  DURE.  See  Peine 
Forte  et  Dure. 

PAIS,  PAYS.  A  French  word,  signify- 
ing country.  In  law,  matter  in  pais  is  mat- 
ter ^of  fact,  in  opposition  to  matter  of  record : 
a  trial  per  pais  is  a  trial  by  the  country, — 
that  is,  by  a  jury. 

PALACE  COURT.  In  English  Law 
A  court  which  had  jurisdiction  of  all  personal 
actions  arising  between  any  parties  within 
twelve  miles  of  Whitehall,  not  including  the 
city  of  London. 

It  was  erected  in  the  time  of  Charles  I., 
and  was  held  by  the  steward  of  the  house- 
hold, the  knight-marshal  and  steward  of  the 
court,  or  his  deputy.  It  had  its  sessions  once 
a  week,  in  the  borough  of  Southwark.  It 
was  abolished  by  12  &  13  Vict.  c.  101,  ^  13. 

PALFRIDUS  (L.  Lat.).  A  palfrey;  a 
horse  to  travel  on.  Fitzherbert,  Nat.  Brev.  93. 

PANDECTS.    In  Civil  Law.  The 

name  of  an  abridgment  or  compilation  of  the 
civil  law,  made  by  Tribonian  and  others,  by 
order  of  the  emperor  Justinian,  and  to  which 
he  gave  the  force  of  law  a.d.  533. 

2.  It  is  also  known  by  the  name  of  the  Digest 
because  in  his  compilation  the  writings  of  the 
jurists  were  reduced  to  order  and  condensed  quasi 
digestise.  The  emperor,  in  530,  published  an  ordi- 
nance entitled  De  Cuncep/tione  JDic/estorum,  which 
was  addressed  to  Tribonian,  and  by  which  he  waa 
required  to  select  some  of  the  most  distinguished 
lawyers  to  assist  him  in  composing  a  collection  of 
the  best  decisions  of  the  ancient  lawyers,  and  com- 
pile them  in  fifty  books,  without  confusion  or  con- 
tradiction. The  instructions  of  the  emperor  were 
to  select  what  was  useful,  to  omit  what  was  anti- 
quated or  superfluous,  to  avoid  contradictions,  and, 
by  the  necessary  changes,  to  produce  a  complete 
body  of  law.  This  work  was  a  companion  to  the 
Code  of  Justinian,  and  was  to  be  governed  in  its 
arrangement  of  topics  by  the  method  of  the  Code. 
Justinian  allowed  the  commissioners,  who  were 
sixteen  in  number,  ten  years  to  compile  it:  but  the 
work  was  completed  in  three  years,  and  promul- 
gated in  533.  A  list  of  the  writers  from  whose 
works  the  collection  was  made,  and  an  account  o*' 
the  method  pursued  by  the  commissioners,  will  l-e 
found  in  Smith's  Diet,  of  Gr.  &  R.  Antiq.  The 


PANDECTS 


I  igest,  although  compiled  in  Constantinople,  was 
c  riginally  written  in  Latin,  and  afterwards  trans- 
Uted  into  Greek. 

The  Digest  is  divided  in  two  different  ways :  the 
first  into  tifty  books,  each  book  into  several  titles, 
and  each  title  into  several  extracts  or  leges,  and  at 
(he  head  of  each  series  of  extracts  is  the  name  of 
the  lawyer  from  whose  work  they  were  taken. 

3.  The  firiit  book  contains  twentj'-two  titles. 
The  subject  of  the  first  is  De  Juaticia  et  Jure,  of 
the  division  of  person  and  things,  of  magistrates, 
etc.  The  second,  divided  into  fifteen  titles,  treats 
of  the  power  of  magistrates  and  their  jurisdiction, 
the  manner  of  commencing  suits,  of  agreements 
and  compromises.  The  third,  composed  of  six  titles, 
treats  of  those  who  can  and  those  who  cannot  sue, 
of  advocates  and  attorneys  and  syndics,  and  of 
calumny.  The  fourth,  divided  into  nine  titles, 
tieats  of  causes  of  restitution,  of  submissions  and 
aF'bitrations,  of  minors,  carriers  by  water,  inn- 
keepers, and  those  who  have  the  care  of  the  pro- 
perty of  others.  In  the  Jifth  there  are  six  titles, 
which  treat  of  jurisdiction  and  inofficious  testa- 
ments. The  subject  of  the  sixth,  in  which  there 
are  three  titles,  is  actions.  The  seventh,  in  nine 
tides,  embraces  whatever  concerns  usufructs,  per- 
soial  servitudes,  habitations,  the  uses  of  real  estate 
and  its  appurtenances,  and  of  the  sureties  required 
of  the  usufructuary.  The  ei<jhth  book,  in  six  titles, 
regulates  urban  and  rural  servitudes.  The  ninth 
book,  in  four  titles,  explains  certain  personal  actions. 
T)ie  tenth,  in  four  titles,  treats  of  mixed  actions. 
The  object  of  the  eleventh  book,  containing  eight 
titles,  is  to  regulate  interrogatories,  the  cases  of 
which  the  judge  was  to  take  cognizance,  fugitive 
slaves,  of  gamblers,  of  surveyors  who  made  false 
reports,  and  of  funerals  and  funeral  expenses.  The 
twelfth  book,  in  seven  titles,  regulates  personal 
actions  in  which  the  plaintiff  claims  the  title  of  a 
thing.  The  thirteenth,  in  seven  titles,  and  the  four- 
teeuth,  in  six  titles,  regulate  certain  actions.  The 
fifteenth,  in  four  titles,  treats  of  actions  to  which 
a  father  or  master  is  liable  in  consequence  of  the 
acts  of  his  children  or  slaves,  and  those  to  which 
he  is  entitled,  of  the  pecuUum  of  children  and 
slaves,  and  of  the  actions  on  this  right. 

4.  The  sixteenth,  in  three  titles,  contains  the  law 
relating  to  the  senatua-consultum  Velleianum,  of 
compensation  or  set-off,  and  of  the  action  of  deposit. 
The  seventeenth,  in  two  titles,  expounds  the  law  of 
mandates  and  partnership.  The  eigliteenth  book, 
in  seven  titles,  explains  the  contract  of  sale.  The 
nineteenth,  in  five  titles,  treats  of  the  actions  which 
arise  on  a  contract  of  sale.  The  law  relating  to 
pawns,  hypothecation,  the  preference  among  cre- 
ditors, and  subrogation,  occupy  the  twentieth  book, 
which  contains  six  titles.  The  tu-entii -first  book 
explains,  under  three  titles,  the  edict  of  the  ediles 
relating  to  the  sale  of  slaves  and  animals,  then  what 
relates  to  evictions  and  warranties.  The  twenty- 
second  book,  in  six  titles,  treats  of  interest,  profits, 
and  accessories  of  things,  proofs,  presumptions, 
and  of  ignorance  of  law  and  fact.  The  twenty-third, 
in  five  titles,  contains  the  law  of  marriage,  and  its 
accompanying  agreements.  The  twenty-fourth,  in 
three  titles,  and  the  twenty-fifth,  in  seven  titles, 
regulates  donations  between  husband  and  wife, 
divorces  and  their  consequence.  The  twenty-sixth 
And  twenty-seventh,  each  in  two  titles,  contain  the 
law  relating  to  tutorship  and  curatorship.  The 
twenty -eighth,  in  eight  titles,  and  the  twenty-ninth, 
in  seven,  contain  the  law  on  last  will  and  testa- 
ments. 

The  thirtieth,  thirty-first  and  thirty -second,  each 
divided  into  two  titles,  contain  the'  law  of  trusts 
and  specific  legacies. 

The  thirty-third,  thirty-fonrth,  and  thirty-fifth — 
the  first  divided  into  ten  titles,  the  second  into 
nine  titles,  and  the  last  into  three  titles — treat  of  i 


0  PANDECTS 


various  kinds  of  legacies.  The  thirty-sixth,  con- 
taining four  titles,  explains  <he  senatus-consultuni 
Trebellianum,  and  the  time  when  trusts  become 
due. 

5.  The  thirty-seventh  book,  containing  fifteen 
titles,  has  two  objects, — to  regulate  successions  and 
to  declare  the  respect  which  children  owe  their 
parents  and  freedmen  their  patrons.  The  thirty- 
eighth  book,  in  seventeen  titles,  treats  of  a  a  ariety 
of  subjects :  of  successions,  and  of  the  degree  of 
kindred  in  successions  ;  of  possession  ;  and  of  heirs 
The  thirty-ninth  explains  the  means  which  the  law 
and  the  prjetor  take  to  prevent  a  threatened  injury, 
and  donations  inter  vivos  and  mortis  cnund.  Th* 
fortieth,  in  sixteen  titles,  treats  of  the  state  and 
condition  of  persons,  and  of  what  relates  to  freed- 
men and  liberty.  The  different  means  of  acquiring 
and  losing  title  to  property  are  explained  in  the 
forty-first  book,  in  ten  titles.  The  forty-second,  in 
eight  titles,  treats  of  the  res  jttdicata,  and  of  the 
seizure  and  sale  of  the  property  of  a  debtor.  In- 
terdicts, or  possessory  actions,  are  the  object  of  the 
forty-third  book,  in  three  titles.  The  forty-Jourth 
contains  an  enumeration  of  defences  which  arise  in 
consequence  of  the  res  judicata,  from  the  lapse  of 
time,  prescription,  and  the  like.  This  occupies  six- 
titles  ;  the  seventh  treats  of  obligations  and  actions?. 
The  forty-fifth  speaks  of  stipulations,  by  freedmen 
or  by  slaves.  It  contains  only  three  titles.  The 
forty-sixth,  in  eight  titles,  treats  of  securities,  no- 
vations and  delegations,  psiyments,  releases,  and 
acceptilations.  In  the  forty-seventh  book  are  ex- 
plained the  punishments  inflicted  for  private  crimes, 
de'privatis  delictis,  among  which  are  included  lar- 
cenies, slander,  libels,  offences  against  religion  and 
public  manners,  removing  boundaries,  and  similar 
off"ences. 

6.  The  forty-eighth  book  treats  of  public  crimes, 
among  which  are  enumerated  those  of  Isesx-inojexta- 
tis,  adultery,  murder,  poisoning,  parricide,  extortion,  ^ 
and  the  like,  with  rules  for  procedure  in  such  cases.  ■ 
The  forty-ninth,  in  eighteen  titles,  treats  of  appeals,  ; 
of  the  rights  of  the  public  treasury,  of  those  who  are 
in  captivity,  and  of  their  repurchase.    The  fiftieth  ; 
and  last  book,  in  seventeen  titles,  explains  the  rights  ' 
of  municipalities,  and  then  treats  of  a  variety  of  ■ 
public  officers.  ! 

These  fifty  books  are  allotted  in  seven  parts:  ■ 
the  first  contains  the  first  four  books ;  the  second, 
from  the  fifth  to  the  eleventh  book  inclusive;  the  | 
third,  from  the  twelfth  to  the  nineteenth  inclusive;  <! 
the  fourth,  from   the  twentieth  to  the  twenty-  ^ 
seventh  inclusive  ;  the  fifth,  from  the  twenty-eighth 
to  the  thirty-sixth  inclusive ;  the  sixth  commences  j 
with  the  thirty-seventh  and  ended  with  the  forty-  ' 
seventh  book ;  and  the  seventh,  or  last,  is  com- 
posed of  the  last  six  books. 

The  division  into  digestum  vetns  (book  first  to 
and  including  title  second  of  book  twenty-fourth), 
digestum  infortiatum  (title  third  of  book  twenty- 
fourth,  to  and  including  book  thirty-eighth),  and 
digestum  novum  (from  book  thirty-ninth  to  the 
end),  has  reference  to  the  order  in  which  these 
three  parts  appeared. 

The  Pandects  arc  more  usually  cited  by  English 
and  American  jurists  by  numbers,  thus :  Dig.  2.3. 
.3.  5.  6,  meaning  book  23,  title  3,  law  or  fragment 
5,  section  6  ;  sometimes,  also,  otherwise,  as,  J).  23. 
3.  fr.  6.  ^  6;  or  fr.  5.  ^  6.  D.  23.  3.  The  old  mode 
of  citing  was  by  titles  and  initial  words,  thus: 
D.  de  jure  dotium,  L.  profectitia,  ^  si  j^uter  ;  or  tho 
same  references  in  reverse  order.  From  this  after- 
wards originated  the  following :  L.  jyrofectitia  6. 
^  si  pater  6,  D.  de  jure  dotium,  and,  lastly,  L.  5. 
^_  6.  D.  de  jure  dotium, — which  is  the  form  com- 
monly used  by  the  continental  jurists  of  Europe. 
]  Mackeldy,  CW.  Law,  54,  55,  ^  65.  And  see  Tay- 
lor, Civ.  Law,  24,  25.  The  abbreviation  j^.  wai 
i  commonly  used  instead  of  Dig.  or  Pandects. 


PANEL 


271 


PARATUM  ITABEO 


7.  The  Pimdccls— as  well  indeed  as  all  Jus- 
tinian's laws,  except  some  fragments  of  the  Code 
and  Novels — were  lost  to  all  Europe  for  a  consi- 
derable period.  During  the  pillage  of  Anialli,  in 
the  war  between  the  two  soi-disant  pojjcs  Inno- 
cent II.  and  Anaclet  II.,  a  soldier  discoveied  an 
old  manuscript,  which  attracted  his  attention  by 
its  envelope  of  many  colors.  It  was  carried  to  the 
Emperor  Clothaire,  and  proved  to  be  the  Pandects 
of  Justinian.  The  work  was  arranged  in  its  pre- 
sent order  by  'Warner,  a  German,  whose  Latin 
name  is  Irnerius,  who  was  appointed  by  that  cnipe- 
ror  I'rofessor  of  Roman  Law  at  Bologna.    1  Four- 

I  nel,  Hist,  des  Avocats,  44,  46,  61.  The  style  of  the 
work  is  very  grave  and  pure,  and  contrasts  in 
this  respect  with  that  of  the  Code,  which  is  very 
far  from  classical.    On  the  other  hand,  the  learn- 

!  ing  of  the  Digest  stands  rather  in  the  discussing 
of  subtle  questions  of  law,  and  enumerations  of 
the  variety  of  opinions  of  ancient  lawyers  there- 

.  upon,  than  in  practical  matters  of  daily  use,  of 
which  the  Code  so  simply  and  directly  treats.  See 
Ridley,  View,  pt.  i.  oh.  1,  2. 

PANEL  (diminutive  from  either  pane, 
apart,  or  page,  pagella.  Cowel).  In  Prac- 
tice. A  schedule  or  roll,  containing  the 
names  of  jurors  summoned  by  virtue  of  a 
writ  of  venire  facias,  and  annexed  to  the  writ. 
It  is  returned  into  the  court  whence  the  venire 
issued.  Coke,  Litt.  158  b;  3  Sharswood, 
Blackst.  Comm.  353. 

In  Scotch  Law.  The  prisoner  at  the 
bar,  or  person  who  takes  his  trial  before  the 
court  of  justiciary  for  some  crime.  So  called 
from  the  time  of  his  appearance.  Bell,  Diet. 
Spelled,  also,  pannel. 

PAPER-BOOK.  In  Practice.  A  book 
or  pape"r  containing  an  abstract  of  all  the 
facts  and  pleadings  necessary  to  the  full  un- 
derstanding of  a  case. 

Courts  of  error,  and  other  courts,  on  argu- 
ments, require  that  the  judges  shall  each  be 
furnished  with  such  a  paper-book.  In  the 
court  of  king's  bench,  in  England,  the  tran- 
script containing  the  whole  of  the  proceed- 
ings filed  or  delivered  between  the  parties, 
when  the  issue  joined,  in  an  issue  in  fact,  is 
called  the  paper-hook.  Stephen,  Plead.  95  ; 
3  Sharswood,  Blackst.  Comm.  317;  3  Chitt. 
Pract.  521;  2  Strange,  1131,  12G6 ;  1  Chitt. 
Bail,  277  ;  2  Wils.  243  ;  Tidd,  Pract.  727. 

PAPER-DAYS.     In    English  Law. 

Days  on  which  special  arguments  are  to  take 
place.  Tuesdays  and  Fridays  in  term-time 
are  paper-days  appointed  by  the  court.  Lee, 
Diet,  of  Pract. ;  Archbold,  Pract.  101. 

PAPER  MONEY.  The  engagements  to 
pay  money  which  are  issued  by  governments 
and  banks,  and  which  pass  as  money. 
Pardessus,  Droit  Com.  n.  9.  Bank-notes 
are  generally  considered  as  cash,  and  Mall 
answer  all  the  purposes  of  currency ;  but 
I  paper  money  is  not  a  legal  tender  if  objected 
to.    See  Legal  Tender. 

PAR.    In  Common  Law.   Equal.   It  is 

used  to  denote  a  state  of  equality  or  equal 
value.  Bills  of  exchange,  stocks,  and  the 
like,  are  at  par  when  they  sell  for  their 
nominal  value  ;  above  par,  or  below  par,  when 
they  sell  for  more  or  less. 


PAR  OF  EXCHANGE.   The  par  of  the 

currencies  of  any  two  countries  moans  th« 
equivalence  of  a  certair,  amount  of  the  cur- 
rency of  the  one  in  the  currency  of  tlio  other, 
supposing  the  currency  of  bom  to  be  of  the  pre- 
cise weight  and  purity  fixed  by  their  respective 
mints.  The  exchange  between  the  two  coun- 
tries is  said  to  be  at  par  when  bills  are  nego- 
tiated on  this  footing, — i.e.  when  a  )>ill  for 
£100  drawn  on  London  sells  in  Paris  foi 
2520  frs.,  and  vice  versa.  Bowen,  Pol.  Econ. 
321.    See  11  East,  2G7. 

PARAGE.  Equality  of  blood,  name,  or 
dignity,  but  more  especially  of  land  in  the 
partition  of  an  inheritance  between  co-heirs. 
Coke,  Litt.  166  b.  Hence  disparage,  and  dis- 
paragement. Blount. 

In  Feudal  Law.  Where  heirs  took  of 
the  same  stock  and  by  same  title,  but  from 
right  of  primogeniture,  or  some  other  cause, 
the  shares  were  unequal,  the  younger  was 
said  to  hold  of  the  elder,  jure  et  titulo  paragii, 
by  right  and  title  of  parage,  being  equal  in 
every  thing  but  the  quantity,  and  owing  n<? 
homage  or  fealtv.    Calvinus,  Lex. 

P  AR  AGIUM  ( from  th  e  Latin  adj  ecti  ve_par; 
equal;  made  a  substantive  by  the  addition  of 
agium.  1  Thomas,  Coke,  Litt.  681).  Equality 
In  Ecclesiastical  Law.  The  portion 
which  a  woman  gets  on  her  marriage.  Aylifie, 
Par  erg.  330. 

PARAMOUNT  {par,  by,  mounter,  to  as- 
cend). Above;  upwards.  Kelham,  Norm. Diet. 
Paramount  especijie,  above  specified.  Plowd. 
209  a.  _ 

That  which  is  superior:  usually  applied  to 
the  highest  lord  of  the  fee  of  lands,  tene- 
ments, or  hereditaments.  Fitzherbert,  Nat. 
Brev.  135.  Where  A  lets  lands  to  B,  and 
he  underlets  them  to  C,  in  this  case  A  is 
the  paramount  and  B  is  the  mesne  landlord. 
See  Mesne;  2  Sharswood,  Blackst.  Comm. 
91;  1  Thomas,  Coke,  Litt.  484,  n. 79,  485,  n. 81. 

P AR APHERN A  ( Lat. ) .  In  Civil  Law. 
Goods  brought  by  wife  to  husband  over  and 
above  her  dower  [dos).  Voc.  Jur.  Utr. ;  Fleta, 
lib.  5,  c.  23,  §  6 ;  Mackeldy,  Civ.  Law,  I  529. 

PARAPHERNALIA.  Apparel  and  or- 
naments of  a  wife,  suitable  to  her  rank  and 
degree.    2  Blackstone,  Comm.  435. 

These  are  subject  to  the  control  of  the  hus- 
band during  his  lifetime,  3  Atk.  Ch.  394,  but 
go  to  the  wife  upon  his  death,  in  preference 
to  all  other  representatives,  Croke  Car.  343, 
and  cannot  be  devised  away  by  the  husband. 
Noy,  Max.  They  are  liable  to  be  sold  to  pay 
debts  on  a  failure  of  assets.  1  P.  Will.  Ch. 
730.  See,  also,  2  Atk.  Ch.  642 ;  11  Viner,  Abr 
176.  The  judge  of  probate  is,  in  the  practice 
of  most  states,  entitled  to  make  an  allowance 
to  the  widow  of  a  deceased  person  which  more 
than  takes  the  place  of  the  paraphernalia. 
See  4  Bouvier,  Inst.  3996,  3997. 

PARATITLA  (Lat.).    In  Civil  Law 
An  abbreviated  explanation  of  some  titles  or 
books  of  the  Code  or  Digest. 
I     PARATUM    HABEO    (Lat.   I  havs 
I  ready).    In  Practice.   A  return  made  by 


PARAVAIL 


272 


PARDON 


the  sheriff  to  a  ca'^ias  ad  respondendum, 
which  signified  that  he  had  the  defendant 
ready  to  bring  into  court.  This  was  a  fiction, 
where  the  defendant  was  at  large.  After- 
wards he  was  required,  by  statute,  to  take 
bail  from  the  defendant,  and  he  returned 
cepi  corpus  and  bail-bond.  But  still  he  might 
be  ruled  to  bring  in  the  body.  7  Penn.  St.  535. 

PARAVAIL.  Tenant  paravail  is  the 
lowest  tenant  of  the  fee,  or  he  who  is  the 
immediate  tenant  to  one  who  holds  of  an- 
other. He  is  called  tenant  paravail  because 
it  is  presumed  he  has  the  avails  or  profits  of 
the  land.  Fitzherbert,  Nat.  Brev.  135  ;  Coke, 
2d  Inst.  296. 

PARCEL.  A  part  of  the  estate.  1 
Comyns,  Dig.  Abatement  (H  51),  Grant  (E 
10).  To  parcel  is  to  divide  an  estate.  Bacon, 
Abr.  Conditions  (0). 

A  small  bundle  or  package. 

The  word  "  parcel'^  is  not  a  sufficient  de- 
scription of  the  property  alleged  in  an  indict- 
ment to  have  been  stolen.  The  prisoner  was 
indicted  for  stealing  "  one  parcel,  of  the  value 
of  one  shilling,  of  the  goods,"  etc.  The  parcel 
in  question  was  taken  from  the  hold  of  a  vessel, 
out  of  a  box  broken  open  by  the  prisoner. 
Held  an  insufficient  description.  7  Cox,  Cr. 
Cas.  13. 

PARCENARY.  The  state  or  condition 
of  holding  title  to  lands  jointly  by  parceners, 
before  the  common  inheritance  has  been 
divided.    See  Coparcenary. 

PARCENERS.  The  daughters  of  a 
man  or  woman  seised  of  lands  and  tenements 
in  fee-simple  or  fee-tail,  on  whom,  after  the 
death  of  such  ancestor,  such  lands  and  tene- 
ments descend,  and  they  enter.  See  Copar- 
ceners. 

PARCO  FRACTO  (Lat.).  In  English 
Law.  The  name  of  a  writ  against  one  who  vio- 
lently breaks  a  pound  and  takes  from  thence 
beasts  which,  for  some  trespass  done,  or 
some  other  just  cause,  were  lawfully  im- 
pounded. 

PARCUS  (Lat.).    A  park. 

PARDON.  An  act  of  grace,  proceeding 
from  the  power  intrusted  with  the  execution 
of  the  laws,  which  exempts  the  individual  on 
whom  it  is  bestowed  from  the  punishment 
the  law  inflicts  for  a  crime  he  has  committed. 
7  Pet.  160. 

Every  pardon  granted  to  the  guilty  is  in  dero- 
gation of  the  law:  if  the  pardon  be  equitable,  the 
hiw  is  bad;  for  where  legislation  and  the  adminis- 
tration of  the  law  are  perfect,  pardons  must  be  a 
violation  of  the  law.  But,  as  human  actions  are 
necessarily  imperfect,  the  pardoning  power  must 
be  vested  somewhere,  in  order  to  prevent  injustice 
when  it  is  ascertained  that  an  error  has  been  com- 
mitted. 

An  absolute  pardon  is  one  which  frees  the 
criminal  without  any  condition  whatever. 

A  conditional  pardon  is  one  to  which  a 
condition  is  annexed,  performance  of  which 
is  necessary  to  the  validity  of  the  pardon. 
1  Bail.  So.  C.  283;  10  Ark.  284;  1  M'Cord, 
So.  C.  176 ;  1  Park.  Crim.  Cas.  N.  Y.  47. 


A  general  pardon  is  one  which  extends  t(i 
all  offenders  of  the  same  kind.  It  may  be 
express,  as  when  a  general  declaration  U 
made  that  all  offenders  of  a  certain  class 
shall  be  pardoned,  or  implied,  as  in  case  of 
the  repeal  of  a  penal  statute.  2  Ov.  Tenn. 
423. 

2.  The  pardoning  power  is  lodged  in  the 
executive  of  the  United  States  and  of  the 
various  states,  and  extends  to  all  offences  ex- 
cept those  which  are  punished  by  impeach- 
ment after  conviction.  In  some  states  a 
concurrence  of  one  of  the  legislative  bodies 
is  required.  See  U.  S.  Const,  art.  3,  §  2 ; 
N.  Y.  Rev.  Stat.  pt.  1,  tit.  1,  c.  8,  ^  3 ;  111. 
Const,  art.  4,  ^  8 ;  Wise.  Const,  art.  5,^6; 
Tex.  Const,  art.  5,  ^  11 ;  12  Miss.  751; 
Penn.  Const,  art.  2,  ^  9  ;  Mich.  Const,  art.  5, 
subs.  11 ;  Iowa  Const,  art.  4,  subs.  11  ;  Ohio 
Const,  art.  2,  ^  5  ;  1  M'Cord,  So.  C.  178  ;  Mass. 
Const,  art.  8,  U  ;  Me.  Const,  art.  5,  ^  11  ;  Vt. 
Const,  pt.  2,  §  11  ;  Va.  Const,  art.  4,  subs.  4; 
15  Ark.  427;  1  Jones,  No.  C.  1. 

It  is  to  be  exercised  in  the  discretion  of  the 
power  with  whom  it  is  lodged.  As  to  pro- 
mises of  pardon  to  accomplices,  see  1  Chitty, 
Crim.  Law,  83;  1  Leach,  Cr.  Cas.  115. 

In  order  to  render  a  pardon  valid,  it  must 
express  with  accuracy  the  crime  intended  to  be  ■ 
forgiven.  4  Sharswood,  Blackst.  Comm.  40G  ; 
3  Wash.  C.  C.  335  ;  7  Ind.  359  ;  1  Jones,  No.  ' 
C.  1.  In  case  of  a  conditional  pardon,  if  ; 
there  be  a  breach  of  condition  the  pardon  is  < 
avoided.  1  M'Cord,  So.  C.  176 ;  1  Bail.  So.  C.  ' 
283  ;  2  id.  516  ;  2  Caines,  N.  Y.  57  ;  1  Park.  , 
Crim.  Ca&.  N.  Y.  47.  See  3  Johns.  Cas.  N.  Y.  r 
333  ;  9  Port.  Ind.  20  ;  1  Bay,  So.  C.  334.  . 

3.  The  effect  of  a  pardon  is  to  protect  from 
punishment  the  criminal  for  the  offence  par-  ; 
doned,  but  for  no  other.    10  Ala.  475;  1 
Bay,  So.  C.  34.    It  seems  that  the  pardon  of 
an  assault  and  battery  which  afterwards  be-  ' 
comes  murder  by  the  death  of  the  person 
beaten  would  not  operate  ^s  a  pardon  of  the  i 
murder.    12  Pick.  Mass.  496.    See  Plowd.  I 
401 ;  1  Hall,  N.  Y.  426.    In  general,  the  ; 
effect  of  a  full  pardon  is  to  restore  the  con- 
vict to  all  his  rights.    But  to  this  there  are  ; 
some  exceptions.     Fir.st,  it  does  not  restore 
civic  capacity.    2  Leigh,  Va.  724.   And  see 

1  Strobh.  So.  C.  150 ;  2  Wheel.  Cr.  Cas.  N.  Y. 
451;  33  N.  H.  388.  Second,  it  does  not 
affect  a  status  of  other  persons  which  has 
been  altered  or  a  right  which  has  accrued  ia 
consequence  of  the  commission  of  the  crime  or 
its  punishment.  10  Johns.  N.  Y.  232  ;  4  Wash. 
C.  C.  64 ;  2  Bay,  So.  C.  565  ;  5  Gilm.  111.  214. 

4.  When  the  pardon  is  general,  either  by 
an  act  of  amnesty,  or  by  the  repeal  of  a  penal 
law,  it  is  not  necessary  to  plead  it ;  bf-cause 
the  court  is  bound,  ex  officio,  to  take  notice  of 
it,  1  Baldw.  C.  C.  91 ;  and  the  criminal  can- 
not even  waive  such  pardon,  because  by  his  * 
admittance  no  one  can  give  the  court  power 
to  punish  him  when  it  judicially  appeara 
there  is  no  law  to  do  it.  But  when  the  par- 
don is  special,  to  avail  the  criminal  it  must 
judicially  appear  that  it  has  been  accepted: 
and  for  this  reason  it  must  be  specially 


PARENS  PATRIiE  273 


PARLIAMENT 


pleaded,  7  Pet.  150,  162 ;  and  if  he  has  ob- 
tained a  pardon  before  arraignment,  and  in- 
stead of  pleading  it  in  bar  he  pleads  the  gene- 
ral issue,  he  shall  be  deemed  to  have  waived 
the  benefit  of  it,  and  cannot  afterwards  avail 
himself  of  it  in  arrest  of  judgment.  1  Rolle, 
297.  See  1  Dy.  34  a  ;  Keilw.  58  ;  T.  Raym. 
13  ;  3  Mete.  Mass.  453. 

All  contracts  made  for  the  buying  or  pro- 
curing a  pardon  for  a  convict  are  void ;  and 
such  contracts  will  be  declared  null  by  a 
court  of  equity,  on  the  ground  that  they  are 
opposed  to  public  policy.  4  Bouvier,  Inst, 
n.  3857. 

See,  generally,  Bacon,  Abr.  Pardon;  Co- 
myns.  Dig.  Pardon;  Viner,  Abr.  Pardon; 
13  Petersdorf,  Abr. ;  Dane,  Abr. ;  Coke,  3d 
Inst.  233-240  ;  Hawkins,  PI.  Cr.  b.  2,  c.  37  ; 
1  Chitty,  Crim.  Law,  762-778;  2  Russell, 
Crimes,  595  ;  Starkie,  Crim.  Plead.  368,  380. 

PARENS  PATRI^  (Lat.).  Father 
of  his  country.  In  England,  the  king ;  in 
America,  the  people.  3  Sharswood,  Blackst. 
Comm.  427  ;  2  Stephen,  Comm.  528 ;  4  Kent, 
Comm.  508,  n. ;  17  How.  393;  Shelford, 
Ins.  12. 

PARENTAGE.  Kindred  in  the  direct 
ascending  line.    See  2  Bouvier,  Inst.  n.  1955. 

PARENTS.  The  lawful  father  and 
mother  of  the  party  spoken  of.  1  Murph. 
No.  C.  336;  11  Serg.  &  R.  Penn.  93. 

The  term  parent  diflFers  from  that  of  ancestor, 
the  latter  embracing  not  only  the  father  and  mother, 
but  every  person  in  an  ascending  line.  It  differs 
also  from  predecessor,  which  is  applied  to  corpo- 
rators. Wood,  Inst.  68  ;  7  Ves.  Ch.  522  ;  1  Murph. 
No.  C.  336;  6  Binn.  Penn.  255.  See  Father; 
Mother. 

By  the  civil  law,  grandfathers  and  grand- 
mothers, and  other  ascendants,  were,  in  certain 
cases,  considered  parents.  Diet,  de  Jur.  Parente. 
See  1  Ashm.  Penn.  55 ;  2  Kent,  Comm.  159 ;  5  East, 
223;  Bouvier,  Inst.  Index. 

PARES  (Lat.).  A  man's  equals;  his 
peers.    3  Sharswood,  Blackst.  Comm.  349. 

PARES  CURI-ai  (Lat.).  In  Feudal 
Law.  Those  vassals  who  were  bound  to  at- 
tend the  lord's  court.  Erskine,  Inst.  b.  2,  tit. 
3,  s.  17;  1  Washburn,  Real  Prop. 

PARI  DELICTO  (Lat.).  In  Criminal 
Law.  In  a  similar  offence  or  crime  ;  equal 
in  guilt. 

A  person  who  is  in  pari  delicto  with  another 
diflFers  from  a  particeps  criminia  in  this,  that  the 
former  term  always  includes  the  latter,  but  the  latter 
does  not  always  include  the  former.  8  East,  381,  382. 

PARI  MATERIA  (Lat.).  Of  the  same 
matter;  on  the  same  subject:  as,  laws  pari 
materia  must  be  construed  with  reference  to 
each  other.    Bacon,  Abr.  Statute  (I  3). 

PARI  PASSU  (Lat.).  By  the  same  gra- 
dation. Used  especially  of  creditors  ^^  ho,  in 
marshalling  assets,  are  entitled  to  receive 
out  of  the  same  fund  without  any  precedence 
over  each  other. 

PARISH.  A  district  of  country,  of  dif- 
ferent extents. 

In  Ecclesiastical  Law.  The  territory 
committed  to  the  charge  of  a  parson,  or  vicar, 
Vol.  II.— 18 


or  other  minister. .  Ayliffe,  Parerg.  404  ;  2 
Sharswood,  Blackst.  Comm.  112. 

In  Louisiana.  Divisions  corresponding 
to  counties.  The  state  is  divided  into  pa- 
rishes. 

In  New  England.  Divisions  of  a  town, 
originally  territorial,  but  which  now  consti- 
tute quasi-corporations,  ccnsisting  of  those 
connected  with  a  certain  church.  Soe2Mass. 
501;  7  id.  447;  10  id.  457,  488,  492  et  seq.: 

1  Pick.  Mass.  91. 

PARIUM  JUDICIUM  (Lat.  the  deci- 
sion  of  equals).  The  right  of  trial  by  one's 
peers  :  i.e.  by  jury  in  the  case  of  a  commoner, 
by  the  house  of  peers  in  the  case  of  a  peer. 

PARK  (L.  Ij^i.  2)arcus).  An  inclosure.  2 
Sharswood,  Blackst.  Comm.  38.  A  pound.  Reg. 
Orig.  166  ;  Cowel.  An  enclosed  chase  extend- 
ing only  over  a  man's  own  grounds.   13  Car. 

II.  c.  10 ;  Manwood,  For.  Laws ;  Crompton, 
Jur.  fol.  148 ;  2  Sharswood,  Blackst.  Comm.  38. 

Pairk  is  still  retained  in  Ireland  for 
"  pound." 

PARLE  HILL  (also  called  Parling 
Hill).  A  hill  where  courts  were  held  in  old 
times.  Cowel. 

PARLIAMENT  (said  to  be  derived  from 
parter  la  ment,  to  speak  the  mind,  or  parum 
lamentum). 

In  English  Law.  The  legislative  branch 
of  the  government  of  Great  Britain,  consisting 
of  the  house  of  lords  and  the  house  of  commons. 

2.  The  parliament  is  usually  considered  to  con- 
sist of  the  king,  lords,  and  commons.  See  1  Shars- 
wood, Blackst.  Comm.  147*,  157*,  Chitty's  note; 

2  Stephen,  Comm.  537.  In  1  Wooddeson,  Lect.  30, 
the  lords  temporal,  the  lords  spiritual,  and  the  com- 
mons are  called  the  three  estates  of  the  realm  :  yet  the 
king  is  called  a  jjart  of  the  parliament,  in  right  of 
his  prerogative  of  veto  and  the  necessity  of  his  ap- 
proval to  the  passage  of  a  bill.  That  the  connec- 
tion between  the  king  and  the  lords  temporal,  the 
lords  spiritual,  and  the  commons,  who  when  as- 
sembled in  parliament  form  the  three  estates  of  the 
realm,  is  the  same  as  that  which  subsists  between 
the  king  and  those  estates — the  people  at  large — 
out  of  parliament,  the  king  not  being  in  either  case 
a  member,  branch,  or  co-estate,  but  standing  solely 
in  the  relation  of  sovereign  or  head,  see  Colton, 
Records,  710;  Rot.  Pari.  vol.  iii.  623  a;  2  Mann.  & 
G.  457,  n. 

3,  Records  of  writs  summoning  knights,  bur- 
gesses, and  citizens  to  parliament  are  first  found  to- 
wards the  end  of  the  reign  of  Henry  III.,  such  writs 
having  issued  in  the  thirty-eighth  and  forty-ninth 
years  of  his  reign.  4  Sharswood,  Blackst.  Comm. 
425  ;  Prynne,  4th  Inst.  2.    In  the  reign  of  Edward 

III.  it  assumed  its  present  form.  Id.  Since  the  reign 
of  Edward  III.  the  history  of  England  shows  an 
almost  constant  increase  in  the  power  of  parlia- 
ment. Anne  was  the  last  sovereign  who  exercised  the 
royal  prerogative  of  veto  ;  and,  as  this  prerogative 
no  longer  practically  exists,  the  authority  of  parlia- 
ment is  absolutely  unrestrained.  The  parliament 
can  only  meet  when  convened  by  the  sovereign, 
except  on  the  demise  of  the  sovereign  with  no  par- 
liament in  being,  in  which  case  the  last  parliament 
is  to  assemble.  6  Anne,  c.  7.  The  sovereign  has 
also  power  to  prorogue  and  dissolve  the  parliament. 
May.  Imperial  Parliament.  The  origin  of  the  Eng- 
lish parliament  seems  traceable  tr  the  witetia  gemote 
of  the  Saxon  kings.  Encyc.  Brit.  See  High 
Court  of  Parliament. 

PARLIAMENTUM  INDOCTUM 


274  PARSON  IMPARSONA 


PAROL 


(Lat.  unlearned  parliament).  A  name  applied 
to  a  parliament  assembled,  under  a  law  that  no 
Uuvyer  should  be  a  member  of  it,  at  Coventry. 
6  Hen.  IV. ;  1  Sharswood,  Blackst.  Comm. 
177  ;  Walsingham,  412,  n.  30 ;  Rot.  Pari.  6 
Hen.  IV. 

PAROL  (more  properly,  parole.  A 
French  word,  which  means,  literally,  word,  or 
speech).  A  term  used  to  distinguish  con- 
tracts which  are  made  verbally,  or  in  writing 
not  under  seal,  which  are  called  parol  con- 
tracts, from  those  which  are  under  seal, 
which  bear  the  name  of  deeds  or  specialties. 
1  Chitty,  Contr.  1;  7  Term,  350,  351,  n. ;  3 
Johns.  Cas.  N.  Y.  60  ;  1  Chitty,  Plead.  88.  It 
is  proper  to  remark  that  when  a  contract  is 
made  under  seal,  and  afterwards  it  is  modi- 
fied verbally,  it  becomes  wholly  a  parol  con- 
tract. 2  Watts,  Penn.  451;  9  Pick.  Mass. 
298;  13  Wend.  N.  Y.  71. 

Pleadings  are  frequently  denominated  the 
parol.  In  some  instances  the  term  parol  is 
used  to  denote  the  entire  pleadings  in  a  cause: 
as,  when  in  an  action  brought  against  an  in- 
fant heir,  on  an  obligation  of  his  ancestors,  he 
prays  that  the  parol  may  demur,  i.e.  that  the 
pleadings  may  be  stayed  till  he  shall  attain 
full  age.  3  Sharswood,  Blackst.  Comm.  300:  4 
East,  485  ;  1  Hoffm.  N.  Y.  178.  See  a  form  of  a 
plea  in  abatement,  praying  that  the  parol  may 
demur,  in  1  Wentworth,  Plead.  43,  and  2 
Chitty,  Plead.  520.  But  a  devisee  cannot 
pray  the  parol  to  demur.    4  East,  485. 

PAROL  EVIDENCE.  Evidence  verb- 
ally delivered  by  a  witness.  As  to  the  cases 
when  such  evidence  will  be  received  or  re- 
jected, see  Starkie,  Ev.  pt.  4,  pi.  995-1055  ;  1 
Phillipps,  Ev.  460,  c.  10,  s.  1 ;  Sugden,  Vend. 
97. 

PAROL  LEASE.  An  agreement  made 
orall}^  between  parties,  by  which  one  of  them 
leases  to  the  other  a  certain  estate. 

By  the  English  Statute  of  Frauds  of  29  Car.  II. 
c.  3,  ss.  1,  2,  3,  it  is  declared  that  "all  leases,  es- 
tates, or  terms  of  years,  or  any  uncertain  interest 
in  lands,  created  by  livery  only,  or  by  parol,  and 
not  put  in  writing  and  signed  by  the  party,  should 
have  the  force  and  effect  of  leases  or  estates  at  will 
only,  except  leases  not  exceeding  the  term  of  three 
years,  whereupon  the  rent  reserved  during  the  term 
shall  amount  to  two  third  parts  of  the  full  im- 
proved value  of  the  thing  demised."  "And  that 
no  lease  or  estate,  either  of  freehold  or  term  of 
years,  should  be  assigned,  granted,  or  surrendered 
unless  in  writing."  The  principles  of  tbis  statute 
have  been  adopted,  with  some  modifications,  in 
nearly  all  the  states  of  the  Union.  4  Kent,  Comm. 
9.5  ;  1  Hill,  Abr.  130. 

PAROLE.     In  International  Law. 

Tiie  agreement  of  persons  who  have  been 
taken  by  an  enemy  that  they  will  not  again 
take  up  arms  against  those  who  captured 
them,  either  for  a  limited  time  or  during  the 
continuance  of  the  war.  Vattel,  liv.  3,  c.  8, 
I  151. 

PARRICIDE  (from  Ij^vi. pater,  father,  and 
cedere,  to  slay).  In  Civil  Law.  One  who 
murders  his  father.  One  who  murders  his 
mother,  his  brother,  his  sister,  or  his  children. 
Merlin,  R6p.  Parricide;  Dig.  48.  9.  1.  3,  4. 


2.  This  offence  is  defined  almost  in  the  samt. 
words  in  the  penal  code  of  China.  Penal  Laws  of 
China,  b.  1,  s.  2,  g  4. 

The  criminal  was  punished  by  being  scourged, 
and  afterwards  sewed  in  a  sort  of  sack,  with  a  dog, 
a  cock,  a  viper,  and  an  ape,  and  then  thrown  into 
the  sea  or  into  a  river ;  or,  if  there  were  no  water,  he 
was  thrown  in  this  manner  to  wild  beasts.  Dig.  48, 
9.  9;  Code,  9,  17.  1.  1.  4,  18,  6;  Brown,  Civ.  Law, 
423 ;  Wood,  Civ.  Law,  b.  3,  c.  10,  s.  9. 

3.  By  the  laws  of  France,  parricide  is  the  crime 
of  him  who  murders  his  father  or  mother,  whether 
they  be  the  legitimate,  natural,  or  adopted  parents 
of  the  individual,  or  the  murder  of  any  other  legiti- 
mate ascendant.  Code  Penal,  art.  297.  This  crime 
is  there  punished  by  che  criminal's  being  taken  to 
the  place  of  execution  without  any  other  garment 
than  his  shirt,  barefooted,  and  with  his  head 
covered  with  a  black  veil.  He  is  then  exposed  on 
the  scaffold,  while  an  ofiicer  of  the  court  reads  his 
sentence  to  the  spectators ;  his  right  hand  is  then 
cut  off,  and  he  is  immediately  put  to  death.  Id. 
art.  13. 

The  common  law  does  not  define  this  crime,  and 
makes  no  difference  between  its  punishment  and 
the  punishment  of  murder.  1  Hale,  PI.  Cr.  380  ; 
Prin.  Penal  Law,  c.  18,  ^  8,  p.  243;  Dalloz,  Diet. 
Homicide,  ^  3. 

PARS  ENITIA  (Lat.).  In  Old  English 
Law.  The  share  of  the  eldest  daughter  where 
lands  were  parted  between  daughters  by  lot, 
she  having  her  first  choice  after  the  division  ' 
of  the  inheritance.    Coke,  Litt.  166  h;  Glan-  . 
ville,  lib.  7,  c.  3  ;  Fleta,  lib.  5,  c.  10,  I  in  di-  [ 
visionem.  ; 

PARS  RATIONABILIS  (Lat.  reason-  ' 
able  part).     That  part  of  a  man's  goods 
which  the  law  gave  to  his  wife  and  children.  ■ 

2  Sharswood,  Blackst.  Comm.  492;  Magn.  ^ 
Chart. ;  9  Hen.  III.  c.  18  ;  2  Stephen,  Comm.  ■ 
228,  254. 

PARSON.    In  Ecclesiastical  Law.  ' 

One  that  hath  full  possession  of  all  the  rights  ■ 
of  a  parochial  church.  ~  • 

So  called- because  the  church,  which  is  an  invisi-  f 
ble  body,  is  represented  by  his  person.    In  England  ] 
he  is  himself  a  body  corporate,  in  order  to  protect 
and  defend  the  church  (which  he  personates)  by  a  ) 
perpetual  succession.    Coke,  Litt.  300.  i 

The  parson  has,  during  life,  the  freehold  ■ 
in  himself  of  the  parsonage-house,  the  glebe,  ' 
the  tithes,  and  other  dues,  unless  these  are 
appropriated,  i.e.  given  away,  to  some  spi- 
ritual corporation,  sole  or  aggregate,  which 
the  law  esteems  as  capable  of  providing 
for  the  service  of  the  church  as  any  single 
private  clergyman.  4  Sharswood,  Blackst. 
Comm.  384 ;  1  Hagg.  Cona.  162 ;  Plowd.  493; 

3  Stephen,  Comm.  70. 

The  ecclesiastical  or  spiritual  rector  A  a 
rectory.  1  Wooddeson,  Lect.  311;  Fleta,  lib. 
7,  c.  18  ;  Coke,  Litt.  300.  Also,  any  clergyman 
having  a  spiritual  preferment.  Coke,  Litt.  17, 
18.  Holy  orders,  presentation,  institution,  and 
induction  are  necessary  for  a  parson ;  and  a 
parson  may  cease  to  be  such  by  death,  resig 
nation,  cession,  or  deprivation,  which  last 
may  be  for  simony,  non-conformity  to  canons, 
adultery,  etc.  Coke,  Litt.  120 ;  4  Coke.  75, 
76. 

PARSON  IMPARSONA  (Lat.).  A  per- 
sona, or  parson,  may  be  termed  impersonata,  or 


PART 


275 


PARTIES 


tiTipersonee,  only  in  regard  to  the  possession 
he  hath  of  the  rectory  by  the  act  of  another. 
Coke,  Litt.  300.  One  that  is  inducted  and 
in  possession  of  a  benefice:  e.g.  a  dean  and 
chapter.  Dy.  40,  221.  He  that  is  in  posses- 
sion of  a  church,  be  it  presentative  or  appro- 
priate, and  with  whom  the  church  is  full, — 
peisona  in  this  case  meaning  the  patron  who 
gives  the  title,  and  persona  impersoiiaia  the 
parson  to  whom  the  benefice  is  given  in  the 
patron's  right.    Reg.  Jud.  24. 

PART.  A  share  ;  a  purpart.  This  word 
is  also  used  in  contradistinction  to  counter- 
part: covenants  were  formerly  made  in  a 
script  and  rescript,  or  part  and  counterpart. 

PART  AND  PERTINENT.  In  Scotch 
Law.  A  term  in  a  conveyance  including 
lands  or  servitudes  held  for  forty  years  as 
part  of,  or  pertinent  to,  lands  conveyed,  natu- 
ral fruits  before  they  are  separated,  woods 
and  parks,  etc. ;  but  not  steelbow  stock,  un- 
less the  lands  have  been  sold  on  a  rental. 
Bell,  Diet. ;  Erskine,  Inst.  2.  5.  3  et  seq. 

PART-OWNERS.  Those  who  own  a 
thing  together,  or  in  common. 

In  Maritime  Law.  A  term  applied  to 
Iwo  or  more  persons  who  own  a  vessel  to- 
gether, and  not  as  partners. 

In  general,  when  a  majority  of  the  part- 
owners  are  desirous  of  employing  such  a  ship 
upon  a  particular  voyage  or  adventure,  they 
have  a  right  to  do  so  upon  giving  security  in 
the  admiralty  by  stipulation  to  the  minority, 
if  required,  to  bring  her  back  and  restore  the 
ship,  or,  in  case  of  her  loss,  to  pay  them  the 
value  of  their  respective  shares.  4  Bouvier, 
Inst.  n.  3780 ;  Abbott,  Shipp.  70 ;  3  Kent, 
Comm.  151,  4th  ed. ;  Story,  Partn.  ^489;  11 
Pet.  175.  When  the  majority  do  not  choose  to 
employ  the  ship,  the  minority  have  the  same 
right,  upon  giving  similar  security.  11  Pet. 
175  ;  1  Hagg.  Adm.  306 ;  Jacobsen,  Sea-Laws, 
442. 

When  part-owners  are  equally  divided  as  to 
the  employment  upon  any  particular  voyage, 
the  courts  of  admiralty  have  manifested  a  dis- 
position to  support  the  right  of  the  court  to 
order  a  sale  of  the  ship.  Story,  Partn.  |  439  ; 
Bee,  Adm.  2 ;  Gilp.  Dist.  Ct.  10 ;  18  Am. 
Jur.  48G.    See  Parsons,  Marit,  Law. 

PARTES  FINIS  NIL  HABUERUNT 
(Lat.  the  parties  to  the  fine  had  nothing:  i.e. 
nothing  which  they  could  convey).  In  Old 
English  Pleading.  The  plea  to  a  fine  levied 
by  a  stranger,  and  which  only  bound  parties 
and  privies.  2  Sharswood,  Blackst.  Comm. 
356* ;  Hob.  334 ;  1  P.  Will.  Ch.  520 ;  1 
Wooddeson,  Lect.  315. 

PARTIAL  LOSS.  A  loss  of  a  part  of  a 
thing  or  of  its  value,  as  contrasted  with  a 
total  loss. 

Where  this  happens  by  damage  to  an  article, 
it  is  also  called  a  particular  average,  which 
18  to  be  borne  by  the  owner,  as  distinguished 
from  a  general  average  loss,  w^hich  is  to  be 
contributed  for  by  the  other  interests  exposed 
to  the  snme  perils.  1  Phillips,  Ins.  U  1269, 
1422.    See  Average. 


PARTICULAR  AVERAGE.  Every 
kind  of  expense  or  damage,  short  of  total  loss, 
which  regards  a  particuhir  concern,  and 
which  is  to  be  wholly  borne  by  the  proprietor 
of  that  concern  or  interest  alone.  See  2 
Phillips,  Ins.  ^  354;  1  Parsons,  Marit.  Law, 
284;  Avkrage. 

PARTICULAR   AVERMENT.  See 

AVEKMICNT. 

PARTICULAR  CUSTOM.  A  custom 
which  only  affects  the  inhabitants  of  some 
particular  district. 

To  be  good,  a  particular  custom  mast  have 
been  used  so  long  that  the  memory  )f  nan 
runneth  not  to  the  contrary ;  must  ha^ebeen 
continued;  must  have  been  peaceable  ;  must 
be  reasonable;  must  be  certain;  must  be 
consistent  wnth  itself ;  must  be  consistent 
wnth  other  customs.  1  Blackstone,  Comm. 
74,  79. 

PARTICULAR  ESTATE.  An  estate 
which  is  carved  out  of  a  larger,  and  which 
precedes  a  remainder :  as,  an  estate  for  years 
to  A,  remainder  to  B  for  life ;  or,  an  estate 
for  life  to  A,  remainder  to  B  in  tail :  this 
precedent  estate  is  called  the  particular  estate. 
2  Blackstone,  Comm.  165  ;  4  Kent,  Comm. 
226  ;  16  Viner,  Abr.  216  ;  4  Comyns,  Dig. 
32  ;  5  id.  346.    See  Remainder. 

PARTICULAR  LIEN.  A  right  which 
a  person  has  to  retain  property  in  respect  of 
money  or  labor  expended  on  such  particular 
property.    See  Lien. 

PARTICULAR  STATEMENT.  In 
Pennsylvania  Pleading  and  Practice.  A 
statement  particularly  specif3'ing  the  date  of 
a  promise,  book-account,  note,  bond  {penal  or 
single),  bill,  or  all  of  them,  on  which  an  action 
is  founded  and  the  amount  believed  by  the 
plaintiff  to  be  due  from  the  defendant.  6 
Serg.  &  R.  Penn.  21.  It  is  founded  on  the 
provisions  of  a'statute  passed  March  21,  1806. 
See  4  Smith,  Penn.  Laws,  328.  It  is  an  un- 
methodical declaration,  not  restricted  to  any 
particular  form.  2  Serg.  &  R.  Penn.  537  ;  3 
id.  405  ;  8  id.  316,  567  ;  2  Browne,  Penn.  40. 

PARTICULARS.  See  Bill  of  Par- 
ticulars. 

PARTIES  (Lat.  pars,  a  part).  Those 
who  take  part  in  the  performance  of  an  act, 
as,  making  a  contract,  carrying  on  an  action. 
A  party  in  law-  may  be  said  to  be  those  united 
in  interest  in  the  performance  of  an  act:  it 
may  then  be  composed  of  one  or  more  per- 
sons. Parties  includes  every  party  to  an 
act.  It  is  also  used  to  denote  all  the  indi- 
vidual separate  persons  engaged  in  the  act, — 
in  which  sense,  however,  a  corporation  may 
be  a  party. 

2.  To  Contracts.  Those  persons  who 
engage  themselves  to  do  or  not  to  do  the 
matters  and  things  contained  in  an  agree- 
ment. 

In  general,  all  persons  may  be  parties  to 
contracts.  But  no  person  can  contract  with 
himself  in  a  different  capacit}-,  as  there  must 
be  an  agreement  of  minds.  1  Vern.  Ch.  465  : 


PARTIES 


276 


PARTIES 


2  Atk.  Ch.  59  ;  9  Ves.  Ch.  234 ;  12  id.  372  ; 
13  id.  156  ;  2  Brown,  Ch.  400 ;  1  Pet.  C.  C. 
373  ;  3  Binn.  Penn.  54  ;  7  Watts,  Penn.  387  ; 
13  Serg.  &  R.  Penn.  210;  9  Paige,  Ch.  N.  Y. 
238,  650  ;  3  Sandf.  N.  Y.  61 ;  2  Johns.  Ch.  N. 
Y.  252  ;  4  How.  503.  And  no  want,  imma- 
turity, or  incapacity  of  mind,  in  the  consider- 
ation of  the  law,  disables  a  person  from  be- 
coming a  party.  Such  disability  may  be 
entire  or  partial,  and  must  be  proved.  2  Stark. 
326 ;  1  Esp.  353  ;  1  Term,  648  ;  11  Ad.  &  E. 
634  ;  17  Law  Journ.  Exch.  233. 

Aliens  were  under  greater  disabilities  at 
common  law  with  reference  to  real  than  to 
personal  property.  7  Coke,  25  a;  1  Ventr. 
417  ;  6  Pet.  102;  11  Paige,  Ch.  N.  Y.  292; 

1  Cush.  Mass.  531 ;  1  Parsons,  Contr.  323. 
The  disability  is  now  removed,  in  a  greater  or 
less  degree,  by  statutes  in  the  various  states,  2 
Kent,  Comm.  Lect.25 ;  and  alien  friends  stand 
on  a  very  different  footing  from  alien  enemies. 

2  Sandf.  Ch.  N.  Y.  586  ;  11  Paige,  Ch.  N.  Y. 
292 ;  2  Woodb.  &  M.  C.  C.  1 ;  3  Stor.  C.  C. 
458  ;  2  How.  65  ;  5  id.  103  ;  8  Cranch,  110  ; 

3  Dall.  Penn.  199. 

3.  Bankrupts  and  insolvents  are  disabled 
to  contract*,  by  various  statutes,  in  England, 
as  well  as  by  insolvent  laws  in  the  states  of 
the  United  States. 

Duress  renders  a  contract  voidable  at  the 
option  of  him  on  whom  it  was  practised.  See 
Duress. 

Excommunication  can  have  no  effect  in  the 
United  States,  as  there  is  no  national  church 
recognized  by  the  law. 

Infants  are  generally  incapable  of  contract- 
ing before  the  age  of  twenty-one  years.  This 
provision  is  intended  for  their  benefit ;  and 
therefore  most  of  their  contracts  are  voidable, 
and  not  void.  It  is  the  infant's  privilege  at  ma- 
turity to  elect  wh  eth er  to  avoid  or  ratify  the  con- 
tract he  has  made  during  minority.  Though 
the  infant  is  not  bound,  the  adult  with  whom 
it  may  contract  is  so.  The  infant  may  always 
sue,  but  cannot  be  sued.  Strange,  937, — which 
seems  to  be  an  exception  to  the  mutuality  of 
contracts.  The  infant  cannot  avoid  his  con- 
tract for  necessaries.  10  Vt.  225  ;  11  N.  H. 
61 ;  12  Mete.  Mass.  559  ;  6  Mees.  &  W.  Exch. 
42  :  1  Parsons,  Contr.  245. 

4.  Married  women,  at  common  law,  were 
almost  entirely  disabled  to  contract,  their 
personal  existence,  by  feudal  principles,  being 
almost  entirely  merged  in  that  of  their  hus- 
bands, 2  J.  J. 'Marsh.  Ky.  «2  :  23  Me.  305  ;  2 
Chitty,  Bail,  117  ;  5  Exch.  388  :  so  that  con- 
tracts made  by  them  before  marriage  may  be 
taken  advantage  of  and  enforced  by  their 
husbands,  but  not  bv  themselves.  13  Mass. 
384 ;  17  Me.  29 ;  2  Dev.  No.  C.  360 ;  9  Cow. 
230 ;  14  Conn.  99 ;  6  T.  B.  Monr.  Ky.  257.  The 
contract  of  a  feme  covert  is,  then,  generally 
void,  unless  she  be  the  agent  of  her  husband, 
in  which  case  it  is  the  husband's  contract,  and 
not  hers.  15  East,  607  ;  6  Mod.  171  ;  6  N.  II. 
124;  16Vt.390;  5  Binn.  Penn.  285  ;  15  Conn. 
347.    See  Wife. 

Kon-compotes  mentis.  At  common  law, 
formerly,  in  this  class  were  included  lunatics, 


insane  persons,  and  idiots.    It  is  understc 
now  to  include  drunkards,  3  Day,  Conn.  905 

4  Conn.  203  ;  2  N.  H.  435 ;  15  Johns.  N.  Y. 
503  ;  2  Harr.  &  J.  Md.  421 ;  11  Pick.  Mass. 
304 ;  1  Rice,  So.  C.  56  ;  5  Munf.  A^a.  46-6  ;  3 
Blackf.  Ind.  51 ;  1  Green,  N.  J.  233  ;  1  Bibb, 
Ky.  168  ;  17  Miss.  94  ;  13  Mees.  &  W.  Exch. 
623 ;  spendthrifts,  13  Pick.  Mass.  206 ;  1  Par- 
sons, Contracts,  315  ;  and  seamen.  Act  of 
1813  of  U.  S.  ch.  2;  2  Sumn.  C.  C.  444  ;  2 
Mas.  C.  C.  541 ;  2  Dods.  Adm.  504 ;  3  Kent, 
Comm.  193.    See  these  titles. 

Outlawry  does  not  exist  in  the  United 
States. 

5.  Slaves  can  make  no  binding  contracts 
with  their  masters,  U  B.  Monr.  Ky.  239  ;  9 
Gill  &  J.  Md.  19  ;  see  3  Bos.  &  P.  69  ;  8  Mart. 
La.  161 ;  nor  can  he  appear  as  a  suitor  in  court 
of  law  or  equity  to  enforce  any  contract  against 
any  person  ;  and  the  better  opinion  is  that 
contracts  made  by  a  slave  with  one  not  hia 
master,  and  without  his  master's  consent,  arc 
void.  2  Const.  So.  C.  330 ;  9  Gill  &  J.  Md.  27 ; 

5  Harr.  &  J.  Md.  190.  See  8  Martin,  161 ;  La. 
Civ.  Code,  art.  1785.  This  disability  of  the 
slave  seems  to  extend  even  to  marriage.  2 
Kent,  Comm.  88;  5  Harr.  &  J.  Md.  193  ;  2 
Dev.  &  B.  No.  C.  177  ;  5  Cow.  N.  Y.  397  ;  6 
Mart.  La.  559. 

6.  As  to  the  character  in  which  parties  con- 
tract. They  may  act  independently  or  seve- 
rally, jointly,  or  jointly  and  severally.  Th« 
decision  of  the  question  of  the  kind  of  lia- 
bility incurred  depends  on  the  terms  of  the 
contract,  if  they  are  express,  or,  if  not  ex- 
press, upon  the  intention  of  the  parties  as 
gathered  from  the  circumstances  of  the  case. 
Whenever,  however,  the  obligation  is  under- 
taken by  two  or  more,  or  a  right  given  to  two 
or  more,  it  is  a  general  presumption  of  law 
that  it  is  a  joint  obligation  or  ri^ht ;  worda 
of  joinder  are  not  necessary  for  this  purpose ; 
but,  on  the  other  hand,  there  should  be  worda 
of  severance  in  order  to  produce  a  several 
responsibility  or  a  several  right.  1  Taunt.  7  ; 
4  Tyrwh.  487  ;  13  Mees.  &  W.  Exch.  499  ;  8 
Carr.  &  P.  332 ;  Sheppard,  Touchst.  375  ;  6 
Wend.  N.  Y.  629  ;  7  Mass.  58  ;  10  Barb.  385, 
638  ;  14  id.  644;  1  Lutw.  695 ;  Peake,  Nisi  P. 
130 ;  Holt,  Nisi  P.  474 ;  1  Barnew.  &  C.  407  ; 
12  Gill  &  J.  Md.  265.  It  may  be  doubted, 
however,  whether  any  thing  less  than  express 
words  can  raise  at  once  a  joint  and  several 
liability.  Parties  may  act  as  the  representa- 
tives of  others,  as  agents,  factors  or  brokers^ 
servants,  attorneys^  executors  or  administrar 
tors,  and  guardians.    See  these  titles. 

They  may  act  in  a  collective  capacity,  as 
corporations,  joint-stock  companies,  or  as 
partnerships.    See  these  titles. 

New  parties  may  be  made  to  contracts 
already  in  existence,  by  novation,  assignment, 
and  indorsement,  which  see. 

•y.  To  Suits  in  Equity.  The  person  who 
seeks  a  remedy  in  chancery  by  suit,  com- 
monly called  the  plaintiff,  or  complainant, 
and  the  person  against  whom  the  remedy  is 
sought,  usually  denominated  the  defendant, 
are  the  parties  to  a  suit  in  equity 


PARTIES 


277 


PARTIES 


Active  parties  are  those  who  arc  so  involved 
in  the  subject-matter  in  controversy  that  no 
decree  can  be  made  without  their  being  in 
court.  Passive  parties  are  those  whose  inte- 
rests are  involved  in  granting  complete  relief 
to  those  who  ask  it.  1  Wash.  C.  C.  517.  See 
3  Ala.  361. 

Plaintiffs. 

8*  In  general,  all  persons,  whether  natural 
or  artificial,  may  sue  in  equity;  and  an  equi- 
table title  only  is  sufficient.  10  111.  332.  Inca- 
pacities which  prevent  suit  are  absolute  which 
disable  during  their  continuance,  or  pai'iial 
which  disable  the  party  to  sue  alone.  Alieii 
enemies  are  under  an  absolute  incapacity  to 
sue. 

Alien  friends  may  sue,  Mitford,  Eq.  PI.  129 ; 
Cooper,  Eq.  PI.  27,  if  the  subject-matter  be 
not  such  as  to  disable  them,  Coke,  Litt.  129 
b,  although  a  sovereign.  2  Bligh,  n.  s.  1 ;  1 
Dowl.  N.  s.  179  ;  1  Sim.  Ch.  94 ;  2  Gall.  C.  C. 
105  ;  8  Wheat.  464 ;  4  Johns.  Ch.  N.  Y.  370 ; 
Adams,  Eq.  314.  In  such  case  he  has  been 
recognized  by  the  executive  of  the  forum. 
Story,  Eq.  PI.  ^  55  ;  3  Wheat.  324. 

In  such  case  the  sovereign  submits  to  the 
jurisdiction,  as  to  the  subject-matter,  and 
must  answer  on  oath.  Mitford,  Eq.  PI.  30 ; 
Adams,  Eq.  313 ;  6  Beav.  Rolls,  1. 

9.  Attorney-general.  Government  (in  Eng- 
land, the  crown)  may  sue  both  in  its  own 
behalf,  for  its  own  political  rights  and  inte- 
rests, and  in  behalf  of  the  rights  and  inte- 
rests of  those  partaking  of  its  prerogatives 
or  claiming  its  peculiar  protection,  Mitford, 
Eq.  PI.  421-424 ;  Cooper,  Eq.  PI.  21,  101 ; 
usually  by  the  agency  of  the  attorney-gene- 
ral or  solic: tor-general.  Mitford,  Eq.  PI.  7  ; 
Adams,  Eq.  312.  See  Injunction;  Quo  War- 
ranto ;  Trusts. 

Corporations,  like  natural  persons,  may 
sue,  Grant,  Corp.  198,  although  foreign,  id. 
200  ;  but  in  such  case  the  corporate  act  must 
be  set  forth,  1  Strange,  612 ;  1  Crompt.  M.  & 
R.  Exch.  296 ;  4  Johns.  Ch.  N.  Y.  327,  as  it 
must  if  they  are  domestic  and  created  by  a 
private  act,  3  Conn.  199 ;  15  Viner,  Abr, 
198.  All  the  members  of  a  voluntary  as- 
soci?,tion  must  be  joined,  15  111.  251,  unless 
too  numerous.  2  Pet.  566 ;  3  Barb.  Ch.  N. 
Y.  362. 

Idiots  and  lunatics  may  sue  by  their  com- 
mittees. Mitford,  Eq.  PI.  29 ;  Adams,  Eq.  301 ; 
Goldsb.  Eq.  93.  As  to  when  a  mere  petition 
is  sufficient,  see  7  Johns.  Ch.  N.  Y.  24 ;  2 
Ired.  Eq.  No.  C.  294. 

Infants  may  sue,  Mitford,  Eq.  PI.  25,  and, 
if  they  be  on  the  wrong  side  of  the  suit,  may 
be  transferred  at  any  time,  on  suggestion.  3 
Edw.  Ch.  N.  Y.  32.  The  bill  must  be  filed  by 
the  next  friend.  Cooper,  Eq.  PI.  27  ;  1  Smith, 
Chanc.  Pract.  54 ;  2  Ala.  406,  who  must  not 
have  an  adverse  interest,  2  Ired.  Eq.  No.  C.  478, 
and  who  may  be  compelled  to  give  bail.  1 
Paige,  Ch.  N.  Y.  178.  If  the  infant  have  a 
guardian,  the  court  may  decide  in  whose 
name  the  suit  shall  continue.    12  111.  424. 

A.  married  woman  is  under  partial  incapacity 


to  sue.  7  Vt.  369.  Otherwise,  when  in  such 
condition  as  to  be  considered  in  law  a  feme 
sole.  2  Hay  w.  No.  C.  406.  She  may  sue  on  a 
separate  claim  by  aid  of  a  next  friend  of  her 
own  choice,  Story,  Eq.  PI.  §  61  ;  Fonblanque, 
Eq.  b.  1,  c.  2,  I  6,  note  p ;  1  Freem.  Ch.  215  ; 
but  see  2  Paige,  Ch.  N.  Y.  454 ;  and  the  de- 
fendant may  insist  that  she  shall  sue  in  this 
manner.  2  Paige,  Ch.  N.  Y.  255  ;  4  Rand. 
Va.  397. 

Defendants. 

10.  Generally,  all  who  are  able  to  suf*  may 
be  sued  in  equity.  To  constitute  a  person 
defendant,  process  must  be  prayed  ^v-.^Ipst 
him.,  2  Bland,  Ch.  Md.  106  ;  4  Ired.  Eq.  No. 
C.  175  ;  5  Ga.  251 ;  1  A.  K.  Marsh.  Ky.  594. 
Those  who  are  under  incapacity  may  be  made 
defendants,  but  must  appear  in  a  peculiar 
manner.  One,  or  more,  interested  with  the 
plaintiff,  who  refuse  to  join,  may  be  made  de- 
fendants. 2  Bland,  Ch.  Md.  264:  3  Des.  So. 
C.  31 ;  10  111.  534  ;  15  id.  251. 

Corporations  must  be  sued  by  their  corpo- 
rate names,  unless  authorized  to  come  into 
court  in  the  name  of  some  other  person,  as 
president,  etc.  Story,  Eq.  PI.  ?  70  ;  4  Ired. 
Eq.  No.  C.  195.  Governments  cannot,  gene- 
rally, be  sued  in  their  own  courts.  Story,  Eq. 
PI.  ^  69 :  yet  the  attorney-general  may  be 
made  a  party  to  protect  its  rights  when  in- 
volved, 1  Barb.  Ch.  N.  Y.  157  ;  and  the  rule 
does  not  prevent  suits  against  officers  in  their 
official  capacity.    1  Dougl.  Mich.  225. 

Idiots  and  lunatics  may  be  defendants  and 
defend  by  committees,  usually  appointed 
guardians  ad  litem  as  of  course.  Mitford, 
Eq.  PI.  103 ;  Cooper,  Eq.  PI.  30 ;  Story,  Eq. 
PI.  70  ;  Shelford,  Lun.  425  ;  6  Paige,  Ch.  N. 
Y.  237. 

A  guardian  de  facto  may  not  have  a  bill 
against  a  lunatic  for  a  balance  due  him,  but 
must  proceed  by  petition.  2  Dev.  &  B.  Eq. 
No.  C.  385  ;  2  Johns.  Ch.  N.  Y.  242  ;  2  Paige, 
Ch.  N.  Y.  422 ;  8  id.  609. 

Infants  defend  by  guardians  appointed  by 
the  court.  Mitford,  Eq.  PI.  103  ;  Cooper,  Eq. 
PL  20  ;  9  Ves.  Ch.  357  ;  10  id.  159  ;  11  id 563 ; 

1  Madd.  Ch.  290  ;  8  Pet.  128  ;  12  Mass.  16  : 

2  Tayl.  No.  C.  125. 

On  becoming  of  age,  an  infant  is  allowed, 
as  of  course,  to  put  in  a  new  plea,  or  to 
demur  on  showing  that  it  is  necessary  to 
protect  his  rights.    6  Paige,  Ch.  N.  Y.  353. 

11,  Married  women  may  be  made  defend- 
ants, and  may  answer  as  if  femes  sole,  i  f  the 
husband  is  plaintiff,  an  exile,  or  an  alien 
enemy,  has  abjured  the  realm  or  been  trans- 
ported under  criminal  sentence.  Adams,  Eq. 
313  ;  Mitford,  Eq.  PI.  104. 

She  should  be  made  defendant  where  her 
husband  seeks  to  recover  an  estate  held  in 
trust  for  her  separate  use,  9  Paige,  Ch.  N.  Y. 
225,  and,  generally,  where  the  interests  of  her 
husband  conflict  with  hers  in  the  suit,  and 
he  is  plaintiff.  3  Barb.  Ch.  N.  Y.  397.  See, 
also,  11  Me.  145;  Mitford,  Eq.  PI.  104.  See. 
generally,  as  to  who  may  be  defendants. 
Joinder  of  Parties. 


PARTIES 


27 


•8 


PARTIES 


At  Law.    Ill  actions  ex  coniradu. 

Plaintiffs.  In  general,  all  persons  who 
nave  a  just  cause  of  action  may  sue,  unless 
some  disability  be  shown.  An  action  on  a 
contract,  of  whatever  description,  must  be 
brought  in  the  name  of  the  party  in  whom 
the  legal  interest  is  vested.  1  East,  497 ; 
Yi^lx.  25,  n.  1 ;  1  Lev.  235  ,  3  Bos.  &  P.  147; 
1  n.  Blackst.  84  ;  5  Serg.  &  R.  Penn.  27  ;  10 
Mass.  230,  287;  13  id.  105;  15  id.  286;  1 
Pet.  C.  C.  109  ;  2  Root,  Conn,  119  ;  2  AVend. 
N.  y.  158 ;  21  id.  110;  1  Hempst.  Ark.  541 ; 
4  Dan.  Ky.  474. 

On  simple  contracts  by  the  party  from 
whom  (in  part,  at  least)  the  consideuation 
moved,  Browne,  Act.  99  ;  Broom.  Part.  12  ;  1 
Strange,  592;  2  Watts  &  S.  P(  an.  237;  al- 
though the  promise  was  made  to  another,  if 
for  his  benefit,  Browne,  Act.  103  ;  lO'Mass. 
287  ;  3  Pick.  Mass.  83  ;  2  Wend.  N.  Y.  158 ; 
10  id.  8/1,  156 ;  5  Du.  N.  Y.  168  ;  5  Dan.  Ky. 
45,  and  not  by  a  stranger  to  the  considera- 
tion, even  though  the  contract  be  for  his  sole 
benefit,  Browne,  Act.  101  ;  Broom,  Part.  13. 
On  contracts  under  seal  by  parties  to  the 
instrument  only.  10  Wend.  N.  Y.  87  ;  Coke, 
Litt.  231. 

12.  Agents  contracting  in  their  own  name, 
without  disclosing  their  principals,  may,  in 
general,  sue  in  their  own  names,  3  Barnew. 
&  Aid.  280;  5  id.  393;  1  Campb.  337;  4 
Barnew.  &  C.  656  ;  10  id.  672  ;  1  Crompt.  M. 
&  R.  Exch.  413  ;  5  Mees.  &  W.  Exch.  650 ;  2 
Carr.  &  K.  152 ;  5  Penn.  St.  41 ;  or  the  prin- 
cipals may  sue.  6  Cow.  N.  Y.  181  ;  3  Hill, 
N.  Y.  72 ;  2  Ashm.  Penn.  485  ;  Broom,  Part. 
44. 

So  they  may  sue  on  contracts  made  for  an 
unknown  principal,  3  Eng:  L.  &  Eq.  391,  and 
also  when  acting  under  a  del  credere  com- 
mission, 4  Maule  &  S.  566  ;  6  id.  172 ;  4 
Campb.  195  ;  10  Barb.  N.  Y.  202 ;  but  not 
an  ordinary  merchandise  broker.  An  auc- 
tioneer may  sue  for  the  price  of  goods  sold,  1 
H.  Blackst.  81 ;  16  Johns.  N.  Y.  1 ;  but  a 
mere  attorney  having  no  beneficial  interest 
may  not  sue  in  his  own  name.  10  Johns.  N. 
Y.  383. 

Alien  enemies,  unless  resident  under  a  license 
or  contracting  under  specific  license,  cannot 
sue,  nor  can  suit  be  brought  for  their  benefit. 
Broom,  Part.  84 ;  6  Term,  23  ;  1  Campb.  482; 
1  Salk.  46 ;  15  East,  418  ;  1  Kent,  Comm. 
67  ;  11  Johns.  N.  Y.  418  ;  2  Paine,  C.  C.  639. 
License  is  presumed  if  they  are  not  ordered 
away.  10  Johns.  N.  Y.  69;  6  Binn.  Penn. 
241.  See,  also,  Coke,  Litt.  129  b;  15  East, 
260;  1  Kent,  Comm.  68. 

Alien  friends  may  luring  actions  concerning 
personal  property,  ]3rowne.  Act.  304  ;  Bacon, 
A])r.  Aliens,  for  libel  published  here,  8  Scott, 
182 ;  and  now,  in  regard  to  real  estate  gene- 
rally, by  statute,  3  Bouvier,  Inst.  107 ;  12 
Wend.  N.  Y.  342 ;  see  15  Tex.  495  ;  and,  by 
common  law,  till  office  found,  against  an 
intruder.  13  Wend.  N.  Y.  546  ;  1  Johns.  Cas. 
N.  Y.  399  ;  3  id.  109 ;  3  Hill,  N.  Y.  79.  But 
s.  e  5  Cal.  373. 


13.  Assignees  of  choses  in  action  cannot, 
at  common  law,  maintain  actions  in  their  own 
names.  Broom,  Part.  10;  42  Mc  221.  Pro- 
missory notes,  bills  of  exchange,  bail-bonds, 
and  replevin-bonds,  etc.,  are  exceptions  to 
this  rule.    Hammond,  Part.  108. 

An  assignee  of  real  estate  may  have  an 
action  in  his  own  name  for  breaches  of  a 
covenant  running  with  the  land,  occurring 
after  assignment,  3  Bouvier,  Inst.  150 ;  Broom, 
Part.  9  ;  14  Johns.  N.  Y.  89  ;  and  he  need  not 
be  named  in  an  express  covenant  of  this  cha- 
racter.   Broom,  Part.  8. 

An  assignee  in  insolvency  or  bankruptcy 
should  sue  in  his  own  name  on  a  contract 
made  before  the  act  of  bankruptcy  or  the 
assignment  in  insolvency.  1  Chitty,  PI,  14 ; 
Hammond,  Part.  167  ;  Comyns,  Dig.  Abate- 
ment (E  17)  ;  3  Yeates,  Penn.  520;  3  Dall. 
Penn.  276;  5  Serg.  &  R.  Penn.  394;  7  id. 
182  ;  9  id.  434.  See  3  Salk.  61 ;  3  Term,  779. 
Otherwise  of  a  suit  by  a  foreign  assignee.  11 
Johns.  N.  Y.  488.  The  discharge  of  the  in- 
solvent pending  suit  does  not  abate  it.  2 
Johns.  N.  Y.  342 ;  11  id.  488.  But  see  1 
Johns.  N.  Y.  118. 

An  assignee  who  is  to  execute  trusts  may 
sue  in  his  own  name.  4  Abbott,  106.  Ces- 
tuis  que  trust  cannot  sue  at  law.  3  Bouvier, 
Inst.  135. 

14.  Civil  death  occurring  in  case  of  an  . 
outlaw,  an  attainted  felon,  or  one  sentenced  ■ 
to  imprisonment  for  life,  incapacitates  the  ' 
person  for  suing  as  plaintifi"  during  the  con- 
tinuance of  the  condition.  Broom,  Part.  85.  ' 
Sentence  as  above,  during  suit,  abates  it,  1  ' 
Du.  N.  Y.  664 ;  but  the  right  to  sue  is  sus-  ' 
pended  only.    Broom,  Part.  85. 

Corporations  may  sue  in  their  true  corpo-  ' 
rate  name,  on  contracts  made  in  their  behalf  ■ 
by  officers  or  agents,  2  Blatchf.  C.  C.  343  ; 
6  Cal.  258;  3  Bouvier,  Inst.  151  (M)  ;  5  Vt. 
500;  20  Me.  45;  3  N.  J.  321 ;  9Ind.  359:  as,  ^ 
a  bank,  on  a  note  given  to  a  cashier.  5  Mo.  1 
26 ;  4  How.  Pract.  63 ;  21  Pick.  Mass.  486.  ) 
See,  also,  15  Me.  443.  j 

The  name  must  be  that  at  the  time  of  suit,  ' 
3  Ind.  285  ;  4  Rand.  Va.  359,  with  an  aver-  ' 
ment  of  the  change,  if  any,  since  the  making 
of  the  contract,  6  Ala.  327,  494 ;  even  though 
a  wrong  name  were  used  in  making  the  con- 
tract. 6  Serg.  &  R.  Penn.  16  ;  10  Mass.  360; 
5  Ark.  234;  10  N.  H.  123;  5  Halst.  N.  J. 
323. 

If  the  corporation  be  a  foreign  one,  proof 
of  its  existence  must  be  given.  1  Carr.  &  P. 
569;  13  Pet.  519:  2  Gall.  C.  C.  105  ;  5  Wend. 
N.  Y.  478  ;  7  id.  539  ;  6  Cow.  46  ;  1  Hill,  44 ; 
10  Mass.  91 ;  2  Tex.  531 ;  1  T.  B.  Monr.  Ky. 
170  ;  7  id.  584  ;  2  Rand.  Va.  465  ;  2  Green, 
N.  J.  439 ;  1  Mo.  184. 

As  to  their  ability  to  sue  in  the  United 
States  courts,  see  5  Cfanch,  57. 

15.  Executors  and  administrators  in  whom 
is  vested  the  legal  intei^est  are  to  sue  in  all 
personal  contracts,  3  Term,  393  ;  Williams, 
Exec,  Index  :  see  15  Serg.  &  R.  Penn.  183,  or 
covenants  affecting  the  realtv  but  not  run- 
ning with  the  land,  2  II.  Blackst.  310;  and 


PARTIES 


279 


on  such  covenants  running  with  the  hmd,  for 
breach  (luring  the  decedent's  lifetime  occasion- 
ing special  damage.  2  Jolins.  Cas.  N.  Y,  17  ;  4 
Johns.  N.  Y.  72.  They  must  sue  as  such,  on 
causes  accruing  prior  to  the  death  of  the  de- 
cedent, 1  Saund.  112;  Comyns,  Dig.  Pleader 
(2  D  1) ;  3  Dougl.  36  2  Swan,  Tenn.  170, 
and  as  such,  or  in  their  own  names,  at  their 
election,  for  those  accruing  su})sequent,  IG 
Ark.  36  ;  3  Dougl.  36  ;  Williams.  Exec.  1590  ; 
and  upon  contracts  made  by  them  in  their 
official  capacity,  30  Ala.  482 ;  32  Miss.  319  ; 
15  Tex.  44  ;  in  their  own  names  only,  in  some 
states.    4  Jones,  No.  C.  159. 

On  death  of  an  executor,  his  executor,  or 
administrator  de  bonis  non  if  he  die  intes- 
tate, is  the  legal  representative  of  the  original 
decedent.  7  Mees.  &  W.  Exch.  306 ;  2  Swan, 
Tenn.  127 ;  2  Sharswood,  Blackst.  Comm. 
500. 

Foreign  governments^  whether  monarchical 
or  republican,  5  Du.  N.  Y.  634,  if  recognized 
by  the  executive  of  the  forum,  3  Wheat.  324 ; 
Story,  Eq.  PI.  I  55 ;  see  4  Cranch,  272  ;  9  Ves. 
Ch.347;  lOiW.  354;  11  tcf.  283,  may  sue.  26 
Wend.  N.  Y.  212 ;  6  Hill,  N.  Y.  33. 

16.  Husband  must  sue  alone  for  wages 
accruing  to  the  wife,  for  the  profits  of  busi- 
ness carried  on  by  her,  or  money  lent  by 
her  during  coverture,  Broom,  Part.  71 ;  2  W. 
Blackst.  1239  ;  4  E.  D.  Smith,  N.  Y.  384;  and 
see  1  Salk.  114;  2  Wils.  424;  9  East,  472; 

1  Maule  &  S.  180  ;  4  Term,  516  ;  for  slander- 
ous words  spoken  of  the  wife  which  are 
actionable  only  by  reason  of  special  damage, 

2  Du.  N.  Y.  633 ;  on  a  fresh  promise,  for  which 
the  consideration  was  in  part  some  matter 
moving  from  him,  renewing  a  contract  made 
with  the  wife  dum  sola,  1  Maule  &  S.  180 ; 
and  see  2  Penn.  St.  827  ;  for  a  legacy  accru- 
ing to  the  wife  during  coverture,  22  Pick. 
Mass.  480 ;  and  as  administrator  of  the  wife 
to  recover  chattels  real  and  personal  not 
previously  reduced  into  possession.  Broom, 
Part.  74. 

He  may  sue  alone  for  property  that  belonged 
to  the  wife  before  coverture,  1  Murph.  No.  C. 
41 ;  5  T.  B.  Monr.  Ky.  264 ;  on  a  joint  bond 
given  for  a  debt  due  to  the  wife  du7n  sola,  1 
Maule  &  S.  180;  4  Term,  616;  1  Chitty, 
Plead.  20;  on  a  covenant  running  to  both, 
Croke  Jac.  399  ;  2  Mod.  217  ;  1  Barnew.  & 
C.  443  ;  1  Bulstr.  31 ;  to  reduce  choses  in 
action  into  possession,  2  Maule  &  S.  396,  n. 
(b) ;  2  Mod.  217  ;  2  Ad.  &  E.  30 ;  and,  after 
her  death,  for  any  thing  he  became  entitled  to 
during  coverture.  Coke,  Litt.  351  a,  n.  1. 
And  see  4  Barnew.  &  C.  529. 

Infants  may  sue  only  by  guardian  or  pro- 
clinn  ami.  3  Bouvier,  Inst.  138  ;  13  Mees.  & 
W.  Exch.  640;  Broom,  Part.  84;  11  How. 
Pract.  188  ;  13  id.  413  ;  13  B.  Monr.  Ky.  193. 

Joint  tenants.    See  Joinder  ;  Parties. 

Lunatic,  or  non-compos  mentis,  may  main- 
tain an  action,  which  should  be  in  his  own 
name.  Broom,  Part.  84;  Browne,  Act.  301  ; 
Hob.  215  ;  8  Barb.  N.  Y.  552.  His  wife  may 
appear,  if  he  have  no  committee.  7  Dowl.  22. 
An  idiot  may  by  a  next  friend  who  petitions 


for  that  purpose.  Browne,  Act.  301  ;  2  Chitty, 
Arclibold,  Pract.  7th  ed.  909. 

IT.  Married  women  cannot,  in  general,  sue 
alone  at  common  law.  Broom,  Part.  74 ;  but 
a  married  woman  may  sue  alone  where  her 
husband  is  civilly  dead,  see  4  1'erm,  361 ; 
Croke  Eliz.  519  ;  9  East,  472  ;  4  Esp.  27  ;  2 
Bos.  &  P.  165;  1  Selwyn,  Nisi  P.  286 ;  or,  in 
England,  where  he  is  an  alien  out  of  the 
country,  on  her  separate  contracts,  2  Esp. 
544 ;  1  Bos.  &  P.  357  ;  2  id.  226  ;  11  East, 
301  ;  3  Campb.  123,  while  he  is  in  such  con- 
dition.   Broom,  Part.  I  114. 

So  she  may  sue  alone  after  a  sentence  of 
nullity  or  divorce  a  vinculo,  1  G(av.  10 ;  9 
Barnew.  &  C.  698  ;  8  Term,  548 ;  but  not  after 
a  divorce  a  mensa  et  thoro,  or  voluntary  sepa- 
ration merely.    3  Barnew.  &  C.  297. 

She  may,  where  he  is  legally  presumed  to 
be  dead,  2  Campb.  113  ;  5  Barnew.  &  Ad.  94; 
2  Mees.  &  W.  Exch.  894,  or  where  he  has 
been  absent  from  the  country  for  a  very  long 
time.  12  Mo.  30  ;  23  Eng.  L.  &  Eq.  127.  See 
11  East,  301  ;  2  Bos.  &  P.  226. 

When  the  wife  survives  the  husband,  she 
may  sue  on  all  contracts  entered  into  by 
others  with  her  before  coverture,  and  she 
may  recover  all  arrears  of  rent  oif  her  real 
estate  which  became  due  during  the  cover- 
ture, on  their  joint  demise.  8  Taunt.  181 ;  1 
RoUe,  Abr.  350  d.  She  is  also  entitled  to  all 
her  real  property,  and  her  chattels  real  and 
chose**  in  action  not  reduced  into  possession 
by  the  husband.    Broom,  Part.  76. 

18.  Partners.  One  cannot,  in  general,  sue 
another  for  goods  sold,  9  Barnew.  &  C.  356 ; 
for  work  done,  1  Barnew.  &  C.  74  ;  7  id.  419  ; 
for  money  had  and  received  in  connection 
with  a  partnership  transaction,  6  Barnew. 
&  C.  194 ;  or  for  contribution  towards  a  pay- 
ment made  under  compulsion  of  law.  5 
Barnew.  &  Ad.  936 ;  1  Mees.  &  W.  Exch 
504.  See  1  Mees.  &  AY.  Exch.  168 ;  2  Term, 
476.  But  one  may  sue  the  other  for  a  final  bal- 
ance struck,  Broom,  Part.  57  ;  2  Term,  479  ;  5 
Mees.  &  W.  Exch.  21 ;  2  Crompt.  &  M.  Exch. 
361 ;  see  Joinder  ;  and  they  may  sue  the 
administrator  of  a  deceased  partner.  4  Wise. 
102. 

Survivors.  The  survivor  or  survivors  of 
two  or  more  jointly  interested  in  a  contract 
not  running  with  the  land  must  sue  as  such. 
Addison,  Contr.  285  ;  Broom,  Part.  21 :  Arch- 
bold,  Plead.  54 ;  1  East,  497  ;  Yelv.  177  ;  1 
Dall.  Penn.  65,  248  ;  4  id.  354 ;  2  Johns.  Cas. 
N.  Y.  374 ;  7  Ala.  89. 

The  survivor  of  a  partnership  must  sue 
alone  as  such.  2  Salk.  444 ;  9  Barnew.  &  C. 
538  ;  4  Barnew.  &  Aid.  374 ;  2  Maule  &  S. 
225. 

The  survivor  of  several,  parties  to  a  simple 
contract,  should  describe  himself  as  such.  3 
Conn.  203. 

Tenants  in  common  may  sue  each  other 
singly  for  actual  ouster.  Woodfall,  Landl.  & 
Ten.  789.    See  Joinder. 

Trustees  must  sue,  and  not  the  cestuis  que 
trust.  1  Lev.  235  ;  15  Mass.  286  ;  12  Pick. 
Mas«.  554  ;  4  Dan.  Ky.  474.    See  Joi^ek. 


PARTIES 


280 


PARTIES 


Defendants,  j 

19.  All  persons  having  a  direct  and  im- ! 
mediate  legal  interest  in  the  subject-matter 
of  the  suit  are  to  be  made  parties.  The 
proper  defendants  to  a  suit  on  a  specialty  are 
pointed  out  by  the  instrument. 

In  case  of  simple  contracts,  the  person  made 
liable  expressly  by  its  terms,  3  Bingh.  n.  c. 
732;  8  East,  12,  or  by  implication  of  law,  is 
to  be  made  defendant,  2  Sharswood,  Blackst. 
Comm.  443  ;  3  Campb.  356 ;  1  H.  Blackst. 
93  ;  2  id.  563.  See  6  Mass.  253  ;  8  id.  198  ; 
11  id.  335;  1  Chitty,  PI.  24.  Where  there 
are  several  persons  parties,  if  the  liability  be 
joint,  all  must  bejoined  as  defendants,  either  on 
Bpecialties,  1  Williams,  Saund.  154,  or  simple 
contracts.  Chitty,  Contr.  99.  If  it  be  joint  and 
several,  all  may  bejoined,  1  Williams,  Saund. 
154,  n.4,  or  each  sued  separately,  1  Williams, 
Saund.  191,  c ;  Comyns,  Dig.  Obligations 
(G) ;  3  Term,  782 ;  1  Ad.  &  E.  207  ;  if  it  be 
several,  each  must  be  sued  separately.  1 
East,  226.  The  presumption  is,  in  such  case, 
that  a  written  agreement  is  joint,  2  Campb. 
640;  3  id.  49,  51,  n. ;  otherwise  of  verbal 
contracts.  1  Ad.  &  E.  691 ;  3  Barnew.  &  Aid. 
89 ;  1  Bingh.  201 ;  Broom,  Part.  121. 

Alien  enemies  may  be  sued.  Broom,  Part. 
18-21 ;  1  W.  Blackst.  30  ;  Croke  Eliz.  516  ;  4 
Bingh.  421 ;  Comyns,  Dig.  Abatement  (E  3)  ; 
and,  of  course,  alien  friends. 

20.  Assignees  of  a  mere  personal  contract 
cannot,  in  general,  be  sued ;  of  covenants  run- 
ning with  the  realty  may  be,  for  breach  after 
assignment,  2  Saund.  304,  n.  12 ;  Woodfall, 
Landl.  &  Ten.  113  ;  1  Fonblanque,  Eq.  359,  n. 
v;  3Salk.4;  7Term,312;  1  Dall. Penn. 210, 
but  not  after  an  assignment  by  him.  Bacon, 
Abr.  Covenant  (E  4).  See,  on  this  subject, 
Bouvier,  Inst.  162. 

Assignees  of  bankrupts  cannot  be  sued  as 
such  at  law.  Cowp.  134 ;  Chitty,  Plead.  11, 
n.  (f). 

Bankrupts  after  discharge  cannot  be  sued. 
An  insolvent  after  discharge  may  be  sued  on 
his  contracts,  but  his  person  is  not  liable  to 
arrest  in  a  suit  on  a  debt  which  was  due  at 
the  date  of  his  discharge.  Dougl.  93  ;  8  East, 
311;  1  Saund.  241,  n.  5;  Ingalls,  Insolv. 
377. 

See  Conflict  of  Laws  ;  Bankruptcy  ;  In- 
solvency. 

Corporations  must  be  sued  by  their  true 
names.  7  Mass.  441;  2  Cow.  778;  15111.185; 
4  Rand.  Va.  359  ;  2  Blatchf.  C.  C.  343.  The 
suit  may  be  brought  in  the  United  States 
courts  by  a  citizen  of  a  foreign  state.  2  How. 
497.  Assumpsit  lies  against  a  corporation 
aggregate  on  an  express  or  implied  promise, 
in  the  same  manner  as  against  an  individual. 

3  Halst.  N.  J.  182;  3  Serg.  &  R.  Penn.  117  ; 

4  id.  16  ;  12  Johns.  N.  Y.  231 ;  14  id.  118  ;  7 
Cranch,  297  ;  2  Bay,  So.  C.  109 ;  10  Mass. 
397;  1  Aik.  Vt.  180;  9  Pet.  541;  3  Dall. 
Penn.  496 ;  1  Pick.  Mass.  215  ;  2  Conn.  260 ;  5 
Q.  B.  547. 

21.  Executors  and  administrators  of  a  de- 
ceased contractor  or  the  survivor  of  several 


joint  contractors  may  be  sued,  Hammond, 
Part.  156 ;  but  not  if  any  of  the  original  con- 
tractors survive.  P.  A.  Browne,  Penn.  31 ;  6  ■ 
Serg.  &  R.  Penn.  272  ;  2  Wheat.  344. 

The  liability  does  not  commence  till  pro- 
bate of  the  will.  2  Sneed,  Tenn.  58.  The 
executor  or  administrator  de  bonis  non  of  a 
deceased  person  is  the  proper  defendant. 
Broom,  Part.  197. 

The  liability  is  limited  by  the  amount  of 
assets,  and  does  not  arise  on  subsequent 
breach  of  a  covenant  which  could  be  per- 
formed only  by  the  covenantor.  Broom, 
Part.  118.  They,  or  real  representatives,  may  j 
be  parties,  at  election  of  the  plaintiff,  where  } 
both  are  equally  liable.    1  Lev.  189,  303.  ' 

Foreign  governments  cannot  be  sued  to  en- 
force a  remedy,  but  may  be  made  defendants 
to  give  an  opportunity  to  appear.  14  How. 
Pract.  Rep.  517. 

Heirs  may  be  liable  to  suit  under  the  an- 
cestor's covenant,  if  expressly  named,  to  the 
extent  of  the  assets  received.  Broom,  Part, 
118  ;  Piatt,  Cov.  449. 

Husband  may  be  sued  alone  for  breach  of 
joint  covenant  of  himself  and  wife,  15  Johns. 
*N.  Y.  483 ;  17  How.  609,  and  must  be  on  a 
mere  personal  contract  of  the  wife  made  during 
coverture,  Comyns,  Dig.  Pleader  (2  A  2) ;  3  • 
W.  Raym.  6  ;  1  Lev.  25 ;  8  Term,  545  ;  2  Bos. 
&  P.  105  ;  Palm.  312  ;  1  Taunt.  217  ;  4  Price,  '■ 
Exch.  48  ;  16  Johns.  N.  Y.  281,  even  if  made  : 
to  procure  necessaries  when  living  apart,  6  • 
Watts  &  S.  Penn.  346 ;  mag  be  on  a  new 
promise  for  which  the  consideration  is  a  debt  , 
due  by  the  wife  before  marriage,  Al.  72 ;  7  t 
Term,  348 ;  but  such  promise  must  be  express,  >. 
Broom,  Part.  174,  and  have  some  additional  : 
considerations,  as  forbearance,  etc.,  1  Show.  ; 
183  ;  11  Ad.  &  E.  438,  451 ;  on  lease  to  both 
made  during  coverture,  Comyns,  Dig.  Baron 
(&  F.  {2  B);  on  lease  to  wife  dum  sola,  for  ' 
rent  accruing  during  coverture,  or  to  wife  aa  i 
executrix.  Broom,  Part.  178 ;  Comyns,  Dig.  ! 
Baron  &  F.  {T) ;  1  Rolle,  Abr.  149  ;  not  on  \ 
wife's  contracts  dum  sola  after  her  death,  3  < 
Mod.  186 ;  Rep.  temp.  Talb.  173 ;  3  P.  Will. 
Ch.  410,  except  as  administrator.    7  Term,  \ 
350 ;  Croke  Jac.  257  ;  1  Campb.  189,  n. 

He  is  liable,  after  death  of  the  wife,  in 
cases  where  he  might  have  been  sued  alone 
during  her  lifetime. 

22.  Idiots,  lunatics,  and  non-compotes 
mentis,  generally,  may  be  sued  on  contracts 
for  necessaries.  2  Mees.  &  W.  Exch.  2.  See 
Appearance. 

Infants  may  be  sued  on  their  contracts  for 
necessaries.  10  Mees.  &  W.  Exch.  195  ;  Mac- 
pherson,  Inf.  447.  Ratification  in  due  form, 
11  Ad.  &  E.  934,  after  arriving  at  full  age, 
renders  them  liable  to  suit  on  contracts  made 
before. 

Partner  is  not  liable  to  suit  by  his  co- 
partners. A  sole  ostensible  partner,  the  others 
being  dormant,  may  be  sued  alone  by  (»ne 
contracting  with  him.    Broom,  Part.  172. 

iSurvivor  of  two  or  more  joint  contract >r8 
must  b-^  sued  alone.  1  Saund.  291,  n.  2 ; 
Carth.  105  ;  2  Burr.  1196.    A  sole  surviving 


PARTIES 


281 


PARTIES 


partner  may  be  sued  alone.  Chitty,  PI.  152, 
note  d  ;  1  Barnew.  &  Aid.  29. 

In  actions  ex  delicto. 
Plaintiffs. 

The  plaintiff  must  have  a  legal  right  in 
the  property  affected,  whether  real,  2  Term, 
684 ;  7  id.  50  ;  Broom,  Part.  202 ;  Coke,  Litt. 
240  h;  2  Blackstone,  Comm.  185,  or  personal, 

11  Cush.  Mass.  55  ;  though  a  mere  possession 
IS  sufficient  for  trespass,  and  trespass  quare 
clausum,  Croke  Jac.  122;  11  East,  65;  4 
Barnew.  &  C.  591 ;  2  Bingh.  n.  c.  98 ;  1  Ad. 
&  E.  44 ;  and  the  possession  may  be  construct- 
ive in  case  of  trespass  for  injury  to  personal 
property.  1  Term,  450 ;  6  Q.  B.  606 ;  5  Barnew. 
&  Aid.  603  ;  1  Hill,  N.  Y.  311.  The  property 
of  the  plaintiff  may  be  absolute,  3  Campb. 
187;  5  Bingh.  305;  1  Taunt.  190;  1  C.  B. 
672,  or  special.  See  7  Term,  9  ;  4  Barnew. 
&  C.  941 ;  3  Scott,  N.  s.  358. 

23.  Agents  who  have  a  qualified  property 
in  goods  may  maintain  an  action  of  tort  in 
their  own  names  for  injury  to  the  goods. 

A  principal  may  sue  in  the  name  of  his 
agent  for  a  false  representation  to  the  agent. 

12  Wend.  N.  Y.  176. 

Assignees  of  property  may  sue  in  their 
own  names  for  tortious  injuries  committed 
after  the  assignment,  4  Bingh.  106  ;  3  Maule 
&  S.  7 ;  5  id.  105  ;  1  Ad.  &  E.  580,  although 
it  has  never  been  in  their  possession.  9 
Wend.  N.  Y.  80  ;  2  N.  Y.  293  ;  1  E.  D.  Smith, 
N.  Y.  522 ;  8  Barnew.  &  C.  270 ;  5  Barnew. 

6  Aid.  604;  Williams,  Saund.  252  a,  n.  (7). 
Otherwise  of  the  assignee  of  a  mere  right 

of  action.   12N.Y.322;  18  Barb.  N.  Y.  500  ; 

7  How.  Pract.  N.  Y.  492.  See  15  N.  Y.  432. 
Assignees  in  insolvency  may  sue  for  torts  to 
the  property,  6  Binn.  Penn.  186  ;  8  Serg.  & 
R.  Penn.  124,  but  not  to  the  person  of  the 
assignee.    W.  Jones,  215. 

Executors  and  administrators  cannot,  in 
general,  sue  in  actions  ex  delicto,  as  such 
actions  are  said  to  die  with  the  plaintiff. 
Broom,  Part.  212  ;  13  N.  Y.  322.  See  Per- 
sonal Action.  They  may  sue  in  their  own 
names  for  torts  subsequent  to  the  death  of 
the  deceased.    11  Rich.  So.  C.  363. 

Heirs  and  devisors  have  no  claim  for  torts 
committed  during  the  lifetime  of  the  ances- 
tor or  devisor.    2  Inst.  305. 

24.  Husband  must  sue  alone  for  all  in- 
juries to  his  own  property  and  person,  3 
Blackstone,  Comm.  143  ;  2  Ld.  Raym.  1208  ; 
Croke  Jac.  473  ;  1  Lev.  3  ;  2  id.  20,  including 
personalty  of  the  wife  which  becomes  his 
upon  marriage,  1  Salk.  141 ;  6  Call,  Va.  55  ; 

13  N.  H.  283  ;  Croke  Eliz.  133  ;  6  Ad.  &  E. 
259  ;  27  Vt.  17 ;  1  Hempst.  Ark.  64,  and  in- 
cluding the  continuance  of  injuries  to  such 
property  commenced  before  marriage,  1  Salk. 
141 ;  6  Call,  Va.  55  ;  1  Selwyn,  Nisi  P.  10th 
ed.  656;  in  replevin  for  timber  cut  on  land 
belonging  to  both,  8  Watts,  Penn.  412 ;  for 
personal  injuries  to  the  wife  for  the  damages 
which  he  sustains,  3  Blackst.  Comm.  140 ; 
Chitty,  Plead.  718,  n. ;  4  Barnew.  &  Aid.  523 ; 
4  Ic  wa.  420 :  as  in  battery,  2  Ld.  Raym.  1208 ; 


8  Mod.  342  ;  2  Brev.  No.  C.  170 ;  slander, 
where  words  are  not  actionable  per  se,  1  Lev. 
140;  1  Salk.  119;  3  Mod.  120  ;  4  Barnew.  & 
Ad.  514  ;  22  Barb.  N.  Y.  396  ;  2  Hill,  N.  Y. 
309  ;  or  for  special  damages.  4  Barnew.  & 
Ad.  514. 

He  7nay  sue  alone,  also,  for  injuries  to  per- 
sonalty commenced  before  marriage  and  con- 
summated afterwards,  2  Lev.  107  ;  Ventr. 
260  ;  2  Bos.  &  P.  407 ;  and  the  right  survives 
to  him  after  death  of  the  wife  in  all  cases 
where  he  can  sue  alone,  1  Chitty,  Plead.  75 ; 
Viner,  Abr.  Baron  &  F.  (G) ;  for  cutting  trees 
on  land  held  by  both  in  right  of  the  wife,  16 
Pick.  Mass.  235  ;  1  Roper,  Husb.  &  W.  2d 
ed.  215  ;  and,  generally,  for  injury  to  real 
estate  of  the  wife  during  coverture,  18  Pick. 
Mass.  110;  20  Conn.  296;  2  Wils.  414,  al- 
though her  interests  be  reversionary  only.  5 
Mees.  &  W.  Exch.  142. 

Infants  may  sue  by  guardian  for  torts. 
Broom,  Part.  238. 

Lessors  and  reversioners,  generally,  may 
have  an  action  for  injury  to  their  reversions. 
Broom,  Part.  214.  Damage  necessarily  to  the 
reversion  must  be  alleged  and  shown.  1 
Maule  &  S.  234 ;  11  Ad.  &  E.  40 ;  5  Bingh. 
153  ;  10  Barnew.  &  C.  145. 

25.  Lessees  and  tenants,  generally,  may 
sue  for  injuries  to  their  possession.  4  Burr. 
2141 ;  3  Lev.  209 ;  Selwyn,  Nisi  P.  1417 ; 
Woodfall,  Landl.  &  Ten.  661. 

Married  woman  must  sue  alone  for  injury 
to  her  separate  property,  29  Barb.  N.  Y.  512; 
especially  after  her  husband's  death.  37  N. 
H.  355. 

The  restrictions  on  her  power  to  sue  are 
the  same  as  in  actions  ex  contractu.  Broom, 
Part.  233.  Actions  in  which  she  might  or 
must  have  joined  her  husband  survive  to  her. 
Rolle,  Abr.  349  (A)._ 

Master  has  an  action  in  tort  for  enticing 
away  an  apprentice,  3  Blackstone,  Comm. 
342;  3  Burr.  1345  ;  3  Maule  &  S.  191 ;  and, 
upon  the  same  principle,  a  parent  for  a  child, 
1  Halst.  N.  J.  322  ;  4  Barnew.  &  C.  660  ;  4 
Litt.  Ky.  25,  and  for  personal  injury  to  his 
servant,  for  loss  of  time,  expenses,  etc.  3 
Blackstone,  Comm.  342. 

For  seduction  or  debauchery,  a  master. 
Broom,  Part.  227  ;  4  Cow.  N.  Y.  422,  and,  if 
any  service  be  shown,  a  parent,  2  Mees.  &  W. 
Exch.  542 ;  6  id.  56 ;  2  Terra,  166,  has  his 
action. 

Survivor,  whether  sole  or  several,  must  sue 
for  a  tortious  injury,  the  rule  being  that  the 
remedy,  and  not  the  right,  survives.  Broom, 
Part.  212  ;  1  Show.  188 ;  Carth.  170  ;  2  Maule 
&  S.  225. 

26.  Tenants  in  common  must  sue  strangers 
separately  to  recover  land.  15  Johns.  N.  Y. 
479;  1  Wend.  N.Y.  380;  2  Caines,  N.  Y.  169 ; 
5  Hill,  N.  Y.  36,  234. 

A  tenant  in  common  may  sue  his  co-tenant, 
[  where  there  has  been  actual  ouster,  in  eject- 
ment, Littleton,  ^  322;  1  Campb.  173;  11 
East,  49 ;  Cowp.  217,  or  trespass  quare  claw- 
sum,  7  Penn.  St.  397,  and  trespass  for  mesne 
profits  after  recovery.  3  Wils.  Ch.  118.  Where 


PARTIES 


282 


PARTITION 


there  is  a  total  destruction  or  conversion  of 
the  property,  one  tenant  in  common  may  sue 
his  co-tenant  in  trespass,  Coke,  Litt.  200  a, 
h;  Croke  Eliz.  157  ;  8  Barnew.  &  C.  257,  or  in 
trover.  Selwyn,  Nisi  P.  13G6  ;  1  Term,  658  ; 
2  Ga.  73  ;  2  Johns.  N.  Y.  408  ;  3  id.  175  ;  9 
Wend.  N.  Y.  338  ;  21  id.  72;  6  Ired.  No.  C. 
388.  For  a  misfeasance,  waste,  or  case  in  the 
nature  of  vraste,  may  be  brought. 

Defendants. 

The  party  committing  the  tortious  act  or 
asserting  the  adverse  title  is  to  be  made  de- 
fendant: as,  the  MTongful  occupant  of  land,  in 
ejectment,  7  Term,  327  ;  1  Bos.  &  P.  573,  the 
party  converting,  in  trover,  Broom,  Part.  246, 
making  fraudulent  representations.  3  Term, 
56  ;  5  Bingh.  n.  c.  97  ;  3  Mees.  &  W.  Exch. 
632  ;  4  id.  337.  The  act  may,  hov^'ever,  have 
been  done  by  the  defendant's  agent,  2  Mees. 
&  W.  Exch.  650,  his  mischievous  animal,  12 
Q.  B.  29,  or  by  the  plaintiif  himself,  if  acting 
with  due  care  and  suffering  from  the  defend- 
ant's negligence.  1  Q.  B.  29  ;  3  Lev.  352 ;  1 
Ld.  Raym.  738  ;  10  111.  425. 

Agents  and  principals,  Story,  Ag.  ^  425  ; 
Paley,  Ag.  294,  are  both  liable  for  tortious 
act  or  negligence  of  the  agent  under  the 
direction,  1  Sharswood,  Blackst.  Comm.  431, 
n.,  or  in  the  regular  course  of  employment,  of 
the  principal.  10  111.  425  ;  1  Mete.  Mass.  550. 
See  2  Den.  N.  Y.  115  ;  5  id.  639.  As  to  the 
agent  of  a  corporation  acting  erroneously  with- 
out malice,  see  1  East,  555. 

Subsequent  ratification  is  equivalent  to 
prior  authority.    Broom,  Part.  259. 

Agents  are  liable  to  their  principals  for 
conversion.  14  Johns.  N.  Y.  128  ;  8  Penn.  St. 
442. 

^K,  Assignees  are  liable  only  for  torts  com- 
mitted by  them:  as,  where  one  takes  property 
from  another  who  has  possession  unlawfully, 
Bacon,  Abr.  Actions  (B),  or  continues  a 
nuisance.    2  Salk.  460 ;  1  Bos.  &  P.  409. 

BanJiTiipts,  3  Barnew.  &  Aid.  408  ;  2  Den. 
N.  Y.  73,  and  insolvents,  Broom,  Part.  284 ;  2 
Chitty,  Bail,  222 ;  2  Barnew.  &  Aid.  407  ;  9 
Johns.  N.  Y.  161 ;  10  id.  289  ;  14  id.  128,  are 
liable  even  after  a  discharge,  for  torts  com- 
mitted previously. 

Cojporaiions  are  liable  for  torts  committed 
by  their  agents,  7  Cow.  N.  Y.  485  ;  2  Wend. 
N.  Y.  452  ;  17  Mass.  503  ;  4  Serg.  &  R.  Penn. 
16;  9  id.  94;  2  Ark.  255;  4  Ohio,  500;  4 
Wash.  C.  C.  106 ;  5  Ind.  252 ;  but  not,  it  seems, 
at  common  law,  in  replevin,  Kyd,  Corp.  205, 
or  trespass  quare  claiisum..    9  Ohio,  31. 

Death  of  a  tort-feasor,  at  common  law,  takes 
away  all  cause  of  action  for  torts  disconnected 
with  contract.  5  Term,  651 ;  1  Saund.  291 
e.  But  actions  against  the  personal  repre- 
Bentatives  are  provided  for  by  statute  in  most 
of  the  states,  and  in  England  by  stat.  3  &  4 
Will.  IV.  c.  42,  'i  2. 

Executors  and  administrators,  at  common 
law,  are  liable  for  the  continuance  of  torts 
first  committed  by  the  deceased,  W.  Jones, 
173  ;  5  Dan.  Ky.  34 ;  see  28  Ala.  n.  s.  360 ; 
hut  such  continuance  must  be  laid  to  be,  as  it 


reallv  is,  the  act  of  the  executor.  1  Cowp/ 
373  {  Williams,  Exec.  1358 ;  13  Penn.  St.  54 ; 
1  Ilarr.  Mich.  7. 

iJ8.  Husband  must  be  sued  alone  for  hia 
torts,  and  in  detinue  for  goods  delivered  to 
himself  and  wife.  2  Bulstr.  308;  1  Leon. 
312. 

He  may  be  sued  alone  for  a  conversion  by 
the  wife  during  coverture.  2  Roper,  Husb.  k 
W.  127. 

Idiots  and  lunatics  are~^  liable,  civilly,  for 
torts  committed,  Hob.  134  ;  Bacon,  Abr.  Tres- 
pass  (G),  though  they  may  be  capable  of 
design.  Broom,  Part.  281.  But  if  the  luna- 
tic is  under  control  of  chancery,  proceedings 
must  be  in  that  court,  or  it  will  constitute  a 
contempt.    3  Paige,  Ch.  N.  Y.  199. 

Injdnts  may  be  sued  in  actions  ex  delicto, 
whether  founded  on  positive  wrongs  or  con- 
structive torts,  21  Kent,  Comm.  241 ;  Bi'oom, 
Part.  280;  Coke,  Litt.  180  b,n.4:  as,  in  de- 
tinue for  goods  delivered  for  a  specific  pur- 
pose, 4  Bos.  &  P.  140  ;  for  tortiously  convert- 
ing or  fraudulently  obtaining  goods,  3  Pick. 
Mass.  492;  5  Hill,  N.  Y.  391 ;  4  M'Cord,  So. 
C.  387  ;  for  uttering  slander,  8  Term,  337  ; 
but  only  if  the  act  be  wholly  tortious  and 
disconnected  from  contract.  8  Term,  35  ;  6 
Watts,  Penn.  1 ;  6  Cranch,  226. 

Lessor  and  lessee  are  respectively  liable  for 
their  part  of  the  tort  in  case  of  a  wrong  com- 
menced by  one  and  continued  by  the  other: 
as,  for  example,  a  nuisance.  2  Salk.  460 ; 
Broom,  Part.  253  ;  Woodfall,  Landl.  &  Ten. 
671. 

29.  Master  is  liable  for  a  negligent  tor- 
tious act  or  default  of  his  servant  while  act- 
ing within  the  scope  of  his  employment,  6 
Cow.  N.  Y.  189  ;  1  Pick.  Mass.  465  ;  2  Gray, 
Mass.  181 ;  23  N.  H.  157  ;  16  Me.  241 ;  5 
Rich.  So.  C.  44 ;  18  Mo.  362,  although  not  in 
his  immediate  employ,  5  Barnew.  &  C.  554; 

8  Ad.  &  E.  109  ;  see  3  Gray,  Mass.  349  ;  for 
the  direct  effect  of  such  negligence,  17  Mass. 
132 ;  but  not  to  one  servant  for  the  neglect 
of  another  engaged  in  the  same  general  busi- 
ness, 36  Eng.  L.  &  Eq.  486 ;  4  Mete.  Mass. 
49  ;  3  Cush.  Mass.  270  ;  23  Penn.  St.  384  ;  15 
Barb.  N.  Y.  574 ;  6  Ind.  205  ;  22  Ala.  n.  s. 
294;  23  Me.  269;  4  Sneed,  Tenn.  3(^;  see  5 
Du.  N.  Y.  39 ;  37  Eng.  L.  &  Eq.  281,  if  the 
servant  injured  be  not  unnecessarily  exposed. 
28  Vt.  59 ;  6  Cal.  209  ;  4  Sneed,  Tenn.  36. 

And  the  servant  is  also  liable:  1  Shars- 
wood, Blackst.  Comm.  431,  n.  For  wilful  acts. 

9  Carr.  &  P.  607 ;  3  Barb.  42,  for  those  not  com- 
mitted while  in  the  master's  service,  26  Penn. 
St.  482,  or  not  within  the  scope  of  his  em- 
ployment, he  alone  is  liable. 

Partners  may  be  sued  separatel}^  for  acts 
of  the  firm,  its  agents  or  servants.  4  Gill,  Md, 
406;  lCarr.&M.93;  17  Mass.  182  ;  1  Mete. 
Mass.  560;  11  Wend.  N.  Y.  571  ;  18  id.  175. 

PARTITION.  The  division  which  ia 
made  between  several  persons  of  lands,  tene- 
ments, or  hereditaments,  or  of  goods  and 
chattels,  which  bek)ng  to  them  as  co-heirs  or 
co-proprietors.  The  term  is  more  technically 
applied  to  the  division  of  real  estate  made 


PARTNERS 


283 


PARTNERS 


between  coparceners,  tenants  in  common,  or 
joint  tenants. 

Compulsory  is  that  which  takes  place 
without  regard  to  the  wishes  of  one  or  more 
of  the  owners. 

Voluntary  partition  is  that  made  by  the 
owners  by  mutual  consent. 

"Z,  Voluntary  partition  is  effected  by  mu- 
tual conveyances  or  releases,  to  each  person, 
of  the  share  which  he  is  to  hold,  executed  by 
the  other  owners. 

Compulsory  partition  is  made  by  virtue  of 
ppecial  lavrs  providing  that  remedy.  "  It  is 
presumed/'  says  Chancellor  Kent,  4  Comm. 
360,  "  that  the  English  statutes  of  31  &  32 
Henry  VIII.  have  been  generally  re-enacted 
and  adopted  in  this  country,  and,  probably, 
with  increased  facilities  for  partition,"  In 
some  states  the  courts  of  law  have  jurisdic- 
tion. The  courts  of  equity  have  for  a  long 
time  exercised  jurisdiction  in  awarding  par- 
tition. 1  Johns.  Ch.  N.  Y.  113,  302 ;  4  Rand. 
Va.  493.  In  Massachusetts,  the  statute  author- 
izes a  partition  to  be  effected  by  petition 
without  writ.  2  Mass.  4G2  ;  15  id.  155.  In 
Pennsylvania,  intestates'  estates  may  be  di- 
videi.1  upon  petition  to  the  orphans'  court.  By 
the  Civil  Code  of  Louisiana,  art.  1214  et  seq., 
partition  of  a  succession  may  be  made.  See, 
generally.  Cruise,  Dig.  tit.  32,  c.  6,  s.  15  ; 
Comyns,  Dig.  Pleader  (3  F),  Parcener  (C)  ; 
16  Viner,  Abr.  217  ;  1  Suppl.  Ves.  Jr.  168, 171 ; 
La.  Civ.  Code,  b.  3,  t.  1,  c.  8. 

3.  Courts  of  equity  exercise  jurisdiction 
in  cases  of  partition  on  various  grounds,  in 
cases  of  such  complication  of  titles  that  no 
adequate  remedy  can  be  had  at  law,  17  Ves. 
Ch.  551 ;  2  Freem.  Ch.  26  ;  but  even  in  such 
cases  the  remedy  in  equity  is  more  complete, 
for  equity  directs  conveyances  to  be  made,  by 
which  the  title  is  more  secure.  "  Partition 
at  law  and  in  equity,"  says  Lord  Redesdale, 
"  are  very  different  things.  The  tirst  operates 
by  the  judgment  of  a  court  of  law,  and  de- 
livering up  possession  in  pursuance  of  it, 
which  concludes  all  the  parties  to  it.  Par- 
tition in  equity  proceeds  upon  conveyances 
to  be  executed  by  the  parties ;  and  if  the 
parties  be  not  competent  to  execute  the  con- 
vevance,  the  partition  cannot  be  effectually 
had."  2  Schoales  &  L.  Ch.  Ir.  371.  See  1 
Hilliard,  Abr.  c.  55,  where  may  be  found  an 
al)Stract  of  the  laws  of  the  several  states  on 
this  subject.    See  Washburn,  Real  Prop. 

PARTNERS.  In  Contracts.  Members 
of  a  ])artnership. 

Dormant  partners  are  those  whose  names 
and  transactions  as  partners  are  professedly 
concealed  frc  m  the  world. 

JSo7ninal  partners  are  ostensible  partners 
who  have  no  interest  in  the  firm  or  business. 

Ostensible  paj-tners  are  those  whose  names 
appear  to  the  world  as  partners,  and  who  in 
reality  are  such. 

2.  Who  may  be.  Persons  who  have  the 
legal  capacity  to  make  other  contracts  may 
enter  into  that  of  partnership.  Collyer, 
Partn.  11,  12.  A  lunatic  seems  not  to  be 
absolutely  incapable  of  being  a  partner.  2 


Mylne  &  K.  125  ;  6  Beav.  Rolls,  324  ;  1  Lind- 
ley,  Partn.  76,  77.  A  minor  may  contract  the 
relation  of  partner,  as  he  may  make  any  other 
trading  contract  which  may  possibly  turn  out 
to  be  for  his  benefit.  1  Stark.  25  ;  8  Taunt. 
35  ;  5  Barnew.  &  Aid.  147.  This  contract  is 
subject  to  the  right  of  avoidance  by  the  minor; 
but,  as  in  the  case  of  continuiny  contracts, 
he  is  presumed  to  ratify  it,  and  will  )je  liable 
on  subsequent  contracts  made  on  the  credit  ol 
the  partnership,  if  he  do  not,  within  a  reason- 
able time  after  he  has  attained  his  full  age, 
give  notice  of  his  disaffirmance  of,  or  <jther- 
wise  repudiate,  the  partnership.  5  Barnew, 
&  Aid.  147  ;  9  Vt.  368  ;  2  Hill,  So.  C.  479  ; 
3  Cush.  Mass.  372;  Collyer,  Partn.  §  528; 
Chitty,  Contr.  1860  ed.  170,  171  ;  Story, 
Partn.  g  37  ;  3  Kent,  Comm.  68  ;  1  Lindley, 
Partn.  74-76.  It  has  been  held  that  if  a 
party  who  was  a  member  of  a  firm  during 
his  minority  does  in  any  manner  concur  in 
carrying  on  the  partnership,  or  receive  profits 
from  it,  after  he  comes  of  age,  it  amounts  to  a 
confirmation,  and  will  render  him  liable  on 
the  contracts  of  the  firm  made  during  his 
minority.  2  Hill,  So.  C.  497.  The  person 
with  whom  the  minor  contracts  will  be  bound 
by  all  the  consequences.  Strange,  939 ;  2 
Maule  &  S.  205.  _ 

Persons  domiciled  and  trading  in  different 
countries  at  war  with  each  other  cannot  be 
partners.  Collyer,  Partn.  §  14  ;  15  Johns.  N. 
Y.  57  ;  16  id.  438  ;  3  Kent,  Comm.  62,  67  ;  1 
Lindley,  Partn.  79. 

3.  A  married  woman  cannot  by  the  com- 
mon law  sustain  the  character  of  partner. 
Collyer,  Partn.  §  15  ;  Story,  Partn.  ^  10 ;  3 
De  Gex,  M.  &  G.  18  ;  1  Lindley,  Partn.  77  ; 
9  Exch.  422.  Where  a  married  woman  is 
authorized  by  custom  to  carry  on  a  trade  as  a 
feme  sole,  it  has  been  supposed  that  she  may 
be  a  partner,  Bohun,  Priv.  Lond.  187  :  2 
Bos.  &  P.  93  ;  see  3  All.  Mass.  127  ;  41  Me. 
405  ;  46  id.  239  ;  but  the  consent  of  the  hus- 
band that  his  wife  may  carry  on  trade  for 
her  sole  and  separate  use  does  not  necessarily 
import  that  she  may  involve  herself  in  the 
complex  transactions,  responsibilities,  and 
duties  of  a  partnership.  Story,  Partn.  §  12. 
In  cases  Avhere  the  law  treats  the  marriage  as 
suspended,  and  allows  the  wife  to  act  as  a 
J'enie  sole  (as  in  cases  of  the  civil  death  of 
the  husband  by  exile,  banishment,  abjuration, 
or  transportation),  there  may  be  ground  to 
presume  that,  as  she  is  thereby  generally 
restored  to  her  rights  as  a  feme  sole,  she  may 
enter  into  a  partnership  in  trade.  Collver, 
Partn.  |  12.  See  2  Serg.  &  R.  Penn.  189  ;  2 
Nott  &  M'C.  So.  C.  242;  1  Bay,  So.  C.  162, 
333.  There  is  no  general  principle  of  law 
which  prevents  a  corporation  from  being  a 
partner  with  another  corporation,  or  with 
ordinary  individuals,  except  the  principle 
that  a  corporation  cannot  lawfully  employ  its 
funds  for  purposes  not  authorized  by  its  con- 
stitution.   1  Lindley,  Partn.  78. 

Generally  speaking,  the  common  law  im- 
poses no  restriction  as  to  the  number  of 
persons  who  may  carry  on  trade  as  part- 


PARTNERS 


284 


PARTNERS 


ners.  Collyer,  Partn.  §  11 ;  1  Lindley,  Partn. 
71. 

4.  WJio  are  partners.  It  persons  suffer 
their  names  to  be  used  in  a  business,  or  other- 
wise hold  themselves  out  as  partners,  they 
are  to  be  so  considered,  whatever  may  be  the 
engagements  between  them  and  the  other 
partners.  14  Vt.  540 ;  3  Kent,  Comm.  32,  33  ; 
Collyer,  Partn.  ^  86 ;  27  N.  H.  252.  In  such 
cases  they  will  be  equally  responsible  with 
the  other  partners  although  they  receive  no 
profits  ;  for  the  contract  of  one  is  the  contract 
of  all.  2  Campb.  802  ;  2  McLean,  C.  C.  347 ;  5 
Mill.  La.  406,  409;  5Bingh.776;  lOBarnew. 
&  C.  140  ;  1  Mood.  &  R.  9  ;  19  Ves.  Ch.  459  ; 
17  Vt.  449.  This  rule  of  law  arises  not  upon 
the  ground  of  the  real  transaction  between 
the  partners,  but  upon  principles  of  general 
policy,  to  prevent  the  frauds  to  which  credit- 
ors would  be  liable  if  they  were  to  suppose 
that  they  lent  their  money  upon  the  apparent 
credit  of  three  or  four  persons,  when  in  fact 
they  lent  it  only  to  two  of  them,  to  whom, 
without  others,  they  would  have  lent  nothing. 
2  H.  Blackst.  235  ;  Dougl.  Penn.  371 ;  2  W. 
Blackst.  998  ;  3  Kent,  Comm.  32,  33  ;  6  Serg. 
&  R.  Penn.  259,  333  ;  16  Johns.  N.  Y.  40 ;  2 
Pes.  So.  C.  148  ;  2  Nott  &  M'C.  So.  C.  427 ; 
Collyer,  Partn.  §  86 ;  Watson,  Partn.  26.  It 
has  been  held  that  it  is  not  necessary  for  a 
person  charging  a  nominal  partner  to  have 
been  aware  of  the  partnership  at  the  time  of 
the  contract,  2  H.  Blackst.  242;  3  Watts, 
Penn.  39 ;  and  this  doctrine  has  been  vindi- 
cated on  the  ground  that  the  object  of  the  rule 
is  to  prevent  the  extension  of  unsound  credit. 
Collyer,  Partn.  ^  86.  But  the  doctrine  has 
been  very  much  questioned.  See  1  Smith, 
Lead.  Cas.  Engl.  ed.  507 ;  10  Barnew.  &  C. 
140 ;  2  McLean,  C.  C.  347  ;  Mood.  &  R.  9  ;  1 
Barnew.  &  Aid.  11 ;  8  Ala.  n.  s.  560 ;  7  B. 
Monr.  Ky.  456.  The  term  "holding  one's 
self  out  as  partner"  imports,  at  least,  the 
voluntary  act  of  the  party  holding  himself 
out,  Collyer,  Partn.  §  97 ;  3  Conn.  324 ;  2 
Campb.  617  ;  but  no  particular  mode  of  hold- 
ing himself  out  is  requisite  to  charge  a  party. 
The  usual  evidence  to  charge  a  party  in  such 
cases  is  that  he  has  suffered  the  use  of  his 
name  over  the  shop-door,  in  printed  notices, 
bills  of  parcels,  and  advertisements,  or  that 
he  has  done  other  acts,  or  suffered  his  agents 
to  do  acts,  37  N.  H.  9,  no  matter  of  what 
kind,  suificient  to  induce  others  to  believe 
him  to  be  a  partner.  Collyer,  Partn.  §  97  ;  3 
McLean,  C.  C.  364,  549;  3  Campb.  310;  1 
Ball&B.9;  6Bingh.776:  4  Moore  «fc  P.  713 ; 
20  N.  II.  453,  454 ;  39  Me.  157.  If  there  be  a 
stipulation  that  a  person  appearing  to  be  a 
partner  shall  be  liable  to  no  loss,  he  of  course 
will  not  be  liable  as  a  partner  to  those  who 
have  absolute  knoMdedge  of  such  stipulation. 
1  Campb.  404;  5  Brown,  Pari.  Cas.  489; 
Collyer,  Partn.  §  98.  But  see  2  Chitt.  Bail, 
120.  How  knowledge  of  the  terms  of  the 
agreement  under  which  parties  are  associated 
will  affect  third  persons,  see  0  Mete.  Mass.  93, 
94;  6  Pick.  Mass.  372;  15  Mass.  339;  4 
Johns.  N.  Y.  25 1 ;  5  Co w.  N.  Y.  489 ;  28  Vt.  108. 


5.  Dormant  partners  are,  when  discovered, 
equally  liable  with  those  who  are  held  out  to 
the  world  as  partners,  upon  contracts  made 
during  the  time  they  participate  in  the  profits 
of  the  business.  5  Scott,  619,  635  ;  4  Esp.  89  ; 
1  Crompt.  &  J.  Exch.  316  ;  5  Mas.  C.  C.  176 ; 
9  Pick.  Mass.  272 ;  5  Pet.  529  ;  2  Harr.  &  G. 
Md.  159;  Chitty,  Contr.  1860  ed.  262;  5 
Watts,  Penn.  454;  1  Dougl.  371;  IH.  Blackst. 
37  ;  3  Price,  Exch.  538.  The  principle  upon 
which  dormant  partners  are  liable  is  that,  as 
they  have  the  benefit  of  a  share  in  the  profits 
which  are  a  part  of  the  fund  to  which  a 
creditor  looks  for  payment,  they  shall  be 
bound  by  the  burdens.  1  Stor.  C.  C.  371, 
376;  5  Mas.  C.  C.  187,  188;  5  Pet.  574;  10 
Vt.  170;  16  Johns.  N.  Y.  40  ;  16  East,  174; 
1  H.  Blackst.  31 ;  2  id.  247  ;  Collyer,  Partn. 
§  18.  Another  reason  given  for  holding  them 
liable  is  that  they  might  otherwise  receive 
usurious  interest  without  any  risk.  Lord 
Mansfield,  1  Dougl.  371;  4  East,  143;  4 
Barnew.  &  Aid.  663 ;  3  C.  B.  641,  650 ;  10 
Johns.  N.  Y.  226. 

6.  The  general  result  of  the  authorities 
seems  to  be  that  persons  who  share  the  profits 
of  the  concern  a,ve  prima  facie  liable  as  part- 
ners to  third  persons :  if  they  have  not  held 
themselves  out,  or  allowed  themselves  to  be 
held  out,  as  partners,  they  may  repel  the  pre- 
sumption of  partnership  by  showing  that  the 
legal  relation  of  partnership  inter  se  does  not 
exist.  Collyer,  Partn.  §  85.  This  presump- 
tion may  be  repelled  by  showing  that  the 
persons  who  receive  a  share  of  the  profits 
are  mere  servants,  agents,  factors,  brokers,  or 
other  persons  receiving  such  share  of  the 
profits  in  lieu  of  wages  or  commission  for 
their  labor,  trouble,  or  services.  Collyer, 
Partn.  ^  25,  39 ;  Story,  Partn.  33,  34,  49, 
55  ;  4  Sandf.  N.  Y.  311 ;  14  Pick.  Mass.  195  ; 
6  Mete.  Mass,  91 ;  12  Conn.  69 ;  2  M'Cord,  So. 
C.  421 ;  3  Wils.  40.  But  see  38  N.  H.  287, 
The  officers  and  crews  of  whaling  and  other 
fishing  vessels,  who  are  to  receive  certain  pro- 
portions of  the  produce  of  the  voyage  in  lieu 
of  wages,  4  Esp.  182 ;  17  Mass.  206  ;  3  Pick, 
Mass.  435  ;  4  id.  234 ;  14  id.  195  ;  23  id.  495  ; 
3  Stor.  C.  C.  112;  2  Younge  &  C.  Exch.  61; 
captains  of  merchant-ships  who,  instead  of 
wages,  receive  shares  in  the  profits  of  the 
adventures  on  which  they  sail,  4  Maule  &  S, 
240,  or  who  take  vessels  under  an  agreement 
with  the  owners  to  pay  certain  charges  and 
receive  a  share  of  the  earnings,  6  Pick.  Mass. 
335;  16  Mass.  336;  7  Me.  261,  persons 
making  shipments  on  half-profits,  and  the  like, 
17  Mass.  206  ;  14  Pick.  Mass.  195,  have  gene 
rally  been  held  not  to  be  partners  with  tho 
owners. 

•y.  A  distinction  has  sometimes  been  made 
between  sharing  the  gross  profits  or  earnings 
and  the  net  profits ;  but  it  is  far  from  being 
treated  as  decisive  on  the  question  of  partner- 
ship. See  1  Campb.  330  ;  6  Vt.  119  ;  10  id, 
170  ;  6  Pick.  Mass.  335  ;  14  id.  193  ;  6  Mete. 
Mass.  91 ;  4  Me.  264  ;  12  Conn.  69 ;  38  N. 
II.  287,  304 ;  Collyer,  Partn.  g  35,  and  note; 
Abbott,  C.  J.,  4  Barnew.  &  Aid.  663. 


PARTNERS 


285 


The  law  merchant  in  reference  to  dormant 
partners  has  been  held  to  be  confined  to  trade 
and  commerce,  and  not  to  extend  to  specula- 
tions in  the  purchase  and  sale  of  lands.  4 
Mass.  424,  426;  3  Kent,  Comm.  31,  note;  3 
Sumn.  C.  C.  435,  470;  11  Me.  337.  It  has, 
however,  been  frequently  held  that  there  may 
be  a  partnership  in  the  business  of  purchas- 
ing and  selling  real  estate.  21  Me.  418 ; 
Story,  Partn.  82,  83 ;  Dav.  Dist.  Ct.  320 : 
7  Penn.  St.  165  ;  10  Cush.  Mass.  468,  469  ;  4 
Ohio  St.  1. 

The  contract  must  be  voluntary  among  the 
members :  therefore  no  stranger  can  be  intro- 
duced into  the  firm  without  a  concurrence  of 
the  whole  firm.  7  Pick.  Mass.  235,  238  ;  11 
Me.  488 ;  1  Hill,  N.  Y.  234 ;  8  Watts  &  S. 
Penn.  63  ;  16  Ohio,  166 ;  Collyer,  Partn. 
8,  192 ;  Pothier,  Partn.  ch.  5,  g  ii.  art.  91 ;  2 
Rose,  Bank.  254.  The  delectus  personoe,  as  it 
is  called,  is  so  essentially  necessary  to  the 
constitution  of  a  partnership  that  even  the 
executors  or  other  representatives  of  partners 
themselves  do  not,  in  their  capacity  of  ex- 
ecutors or  representatives,  succeed  to  the 
state  and  condition  of  partners.  Collyer, 
Partn.  §  9 ;  7  Pick.  Mass.  237,  238  ;  3  Kent, 
Comm.  55,  56.  The  civilians  carried  this 
doctrine  so  far  as  not  to  permit  it  to  he  stipu- 
lated that  the  heirs  or  executors  of  partners 
should  themselves  be  partners.  Domat,  lib. 
1,  tit.  8,  s.  2;  Pothier,  Partn.  n.  145.  But  in 
this  respect  the  common  law  is  otherwise.  2 
Ves.  Sen.  Ch.  34;  Collyer,  Partn.  ^|  9,  228 
et  sea. ;  3  Kent,  Comm.  56,  57  ;  1  Swanst.  Ch. 
510,  n. ;  9  Ves.  Ch.  500  ;  7  Conn.  307.  And 
Pothier  thinks  such  a  stipulation  is  binding. 
Pothier,  Partn.  n.  145.  Clauses  providing 
for  the  admission  into  the  firm  of  a  deceased 
partner's  representatives  will,  in  general,  be 
construed  as  giving  them  an  option  to  become 
partners,  and  not  as  constituting  them  part- 
ners absolutely.  7  Jarman,  Con  v.  120;  1 
M'Clel.  &  Y.  Exch.  569 ;  2  Russ.  Ch.  62 ; 
Bisset,  Partn.  169,  170;  Collyer,  Partn.  | 
230. 

8.  Although  the  delectus  personoe,  which  is 
inherent  in  the  nature  of  partnership,  pre- 
cludes the  introduction  of  a  stranger  into  the 
concern  against  the  will  of  any  of  the  part- 
ners, yet  no  partner  is  precluded  from  enter- 
ing into  a  sub-partnersJiip  with,  a  stranger: 
nam  socii  mei  socius,  meus  socius  non  est. 
Dig.  lib.  17,  tit.  2,  s.  20  ;  Pothier,  Partn.  ch. 
5,  §  ii.  n.  91.  In  such  case  the  stranger  may 
share  the  profits  of  the  particular  partner 
with  whom  he  contracts ;  and  although  it 
has  been  decided  that  it  is  not  true  as  a 
general  proposition  that  such  stranger  will 
not  be  liable  for  the  debts  of  the  general 
partnership,  13  Gray,  Mass.  468,  still,  it  is 
quite  evident  that  a  mere  participation  in 
profits  renders  one  responsible  only  for  the 
debts  and  liabilities  of  those  with  whom 
he  participates ;  and,  inasmuch  as  such 
stranger  shares  the  profits  only  of  and  with 
one  of  the  partners,  he  can  be  held  only  as 
the  partner  of  that  partner  ;  he  cannot  be 
held  as  a  partner  in  the  general  partnership, 


because  he  does  not  share  or  participate  with 
the  other  persons  who  compose  it.  See  Rose, 
Bank.  255  ;  1  Jac.  Ch.  284;  3  Kent,  Comm. 
52 :  2  Sim.  &  S.  Ch.  124 ;  1  Bos.  &  P.  546 ; 
Collyer,  Partn.  ^  194 ;  Mont.  &  M'A.  445  ;  2 
Bell,  Comm.  636  ;  1  Lindley,  Partn.  52,  53  ; 
3  Ross,  Comm.  Law,  697.  Besides,  a  sub- 
partner  does  not  receive  a  certain  share  of 
the  whole  profits  of  the  firm,  but  only  a  part 
of  a  share  thereof ;  and  he  does  not  receive 
this  part  of  a  share,  nor  is  he  entitled  to 
interfere  with  it  at  all,  to  say  whether  it  shall 
be  more  or  less  in  amount,  until  it  has  actu- 
ally been  set  out  and'  the  time  has  come  for 
a  division  between  himself  and  the  partner 
with  whom  he  contracted.  He  does  not  draw 
out  of  the  general  concern  any  of  its  profits: 
he  only  draws  from  the  profits  of  one  who 
has  previously  drawn  them  from  the  general 
partnership.  See  6  Madd.  Ch.  5  ;  4  Russ. 
Ch.  285  ;  Pothier,  Partn.  c.  5,  ^  11,  n.  91 ; 
Starkie,  Partn.  155  ;  3  Ross,  Comm.  Law, 
697.  If  this  stranger  has  caused  damage  to 
the  partnership  by  his  default,  the  party  who 
has  taken  him  into  the  partnership  will  be 
liable  to  the  other  partners  the  same  as  if  ho 
had  done  the  damage  himself.  Pothier,  Partn. 
n.  93. 

9.  Power  of  partners.  It  may  be  stated  us 
a  general  principle,  which  governs  all  part- 
nerships in  trade,  that  each  individual  partner 
constitutes  the  others  his  agents  for  the  pur- 
pose of  entering  into  all  contracts  for  him 
within  the  scope  of  the  partnership  concern, 
and,  consequently,  that  he  is  liable  to  the 
performance  of  all  such  contracts  in  the  same 
manner  as  if  entered  into  personally  by  him- 
self. 6Bingh.  792;  Story,  Partn.  1 ;  20  Miss. 
122;  10  N.  H.  16;  Collyer,  Partn.  §  195; 
Pothier,  Partn.  c.  5,  n.  90 ;  4  Exch.  623,  630. 
In  truth,  the  law  of  partnership  is  a  branch 
of  the  law  of  principal  and  agent.  If  two 
agree  that  they  should  carry  on  a  trade  and 
share  the  profits  of  it,  each  is  a  principal  and 
each  is  an  agent  for  the  other,  and  each  is 
bound  by  the  other's  contracts  in  carrying  on 
the  trade  as  much  as  a  single  principal  would 
be  by  the  act  of  an  agent  who  was  to  give 
the  whole  of  the  profits  to  his  employer. 
Hence  it  becomes  a  test  of  liability  of  one  for 
the  contract  of  another,  that  he  is  to  receive 
the  whole  or  a  part  of  the  profits  arising  from 
that  contract  by  virtue  of  the  agreement 
made  at  the  time  of  the  employment.  23  Bost. 
Law  Rep.  498.  If  an  act  is  done  by  one 
partner  on  behalf  of  the  firm,  and  it  can  be 
said  to  have  been  necessary  for  the  carrying 
on  of  the  partnership  business  in  the  ordi 
nary  way,  the  firm  will  prima  facie  be  liable 
although  in  point  of  fact  the  act  was  not 
authorized  by  the  other  partners ;  but  if  the 
act  cannot  be  said  to  have  been  necessary  for 
the  carrying  on  of  the  partnership  business 
in  the  ordinary  way,  the  firm  will  prima  facie 
not  be  liable.  10  Barnew.  &  C.  128  ;  14  Mees. 
&  W.  Exch.  11;  4  Exch.  630;  1  Lindley, 
Partn.  192-195. 

10.  Each  partner  has  the  power  to  manage 
the  ordinary  business  of  the  firm,  whatever 


PARTNERS 


286 


PARTNERS 


it  may  be,  and,  consequently,  to  bind  his 
partners,  whether  they  be  ostensible,  dor- 
mant, actual,  or  nominal,  7  East,  210 ;  2 
Barnew.  &  Aids  673  ;  1  Crompt.  &  J.  Exch. 
316,  by  whatever  he  may  do,  in  the  course 
of  such  management,  as  entirely  as  himself. 
A  partner  may,  for  instance,  borrow  monev, 

1  Esp.  406 ;  CoUyer,  Partn.  U  390,  391  ;  "^4 
Mete.  Mass.  577,  purchase  goods,  Comb.  383  : 

2  Carr.  &  K.  828  ;  5  Watts  &  S,  Penn.  564; 
and  sell,  Godb.  244;  Cowp.  445;  3  Kent, 
Comm.  44,  the  whole  of  the  partnership  effects 
at  a  single  sale.  24  Pick.  Mass.  89  ;  Collyer, 
Partn.  §  394 ;  1  Brock,  Va.  456 ;  5  Watts, 
Penn.  22;  4  Wash.  C.  C.  234;  1  Harr.  Ch. 
Mich.  2.  So  he  may  pledge  the  partnership 
goods,  Barn.  343  ;  3  Kent,  Comm.  46  ;  CoU- 
yer, Partn.  ^  396  ;  10  Hare,  Ch.  453  ;  5  Exch. 
489  ;  7  Mann.  &  G.  607,  even  in  the  case  of  a 
particular  adventure.  Gow.  132,  135,  note  ; 
1  Rose,  Bank.  297  ;  4  Barnew.  &  C.  867.  This 
principle  does  not  extend  to  the  case  of  a 
joint-purchase  or  sub-purchase.  5  Barnew. 
&  Aid.  395.  The  right  of  a  partner  to  dispose 
of  the  property  of  the  firm  extends  to  assign- 
ments of  it  as  security  for  antecedent  debts, 
as  well  as  for  debts  thereafter  to  be  contracted 
on  account  of  the  firm.  Story,  Partn.  g  101 ; 
5  Cranch,  298  ;  1  Brock,  Va.  456  ;  17  Vt.  394. 
The  assignment  may  be  for  the  benefit  of  one 
creditor  or  of  several,  or  of  all  the  joint  cre- 
ditors, where  all  are  admitted  to  an  equal  par- 
ticipation. Story,  Partn.  ^  101 ;  4  Day,  Conn. 
428  ;  6  Pick.  Mass.  360 ;  4  M'Cord,  So.  C. 
519  ;  4  Mas.  C.  C.  206  ;  5  Watts,  Penn.  22  ; 
1  Hoff.  Ch.  N.  Y.  511.  Whether  one  partner 
may,  without  the  express  consent  of  his  co- 
partner, assign  all  the  property  of  the  firm  to 
pay  the  debts  of  the  firm,  is  a  question  on 
which  the  authorities  differ.  Collyer,  Partn. 
I  395  and  notes  ;  Chitty,  Contr.  (ed.  1860) 

278  ;  4  Wash.  C.  C.  282  ;  17  Vt.  390  ;  1  Brock, 
Va.  456  ;  5  Paige,  .Ch.  N.  Y.  30,  31 ;  1  Mete. 
Mass.  515  ;  2  Pick.  Mass.  89  ;  5  Watts,  Penn. 
22 ;  8  Leigh,  Va.  416  ;  1  Pes.  So.  C.  537,  540 ; 

3  Sandf.  N.  Y.  292,  296. 

11.  It  has  been  held  that  one  partner  may, 
without  the  consent  or  knowledge  of  his  co- 
partners, mortgage  all  the  goods  of  the  firm 
to  secure  a  particular  creditor  of  the  firm. 

1  Mete.  Mass.  518,  519  ;  7  id  248.  The  right 
of  one  partner  to  dispose  of  the  partnership 
property  is,  however,  confined  strictly  to  per- 
sonal effects,  and  does  not  extend  to  real 
estate  held  by  the  partnership.  1  Mete. 
Mass.  518,  519;  Story,  Partn.  §  101 ;  1  Brock, 
Va.  456,  463. 

A  partner  may  draw,  accept,  and  indorse 
bills,  notes,  and  checks  in  the  name  and  for 
the  use  of  the  firm,  Salk.  126  ;  7  Term,  210  ; 

2  Peake,  150 ;  3  Dow.  219  ;  Buller,  Nisi  P. 

279  ;  20  Miss.  226  ;  4  Johns.  N.  Y.  265  ;  Story, 
Partn.  102 ;  5  Blackf.  Ind.  210  ;  4  Md.  288  ; 
and  a  note  or  bill  executed  by  one  partner  in 
the  name  of  the  tirm  is  prima  Jacie  evidence 
that  it  was  executed  for  partnership  purposes. 
C(jllyer,  Partn.  ^  401,  note ;  6  Wend.  N.  Y. 
615  ;  16  Me.  419  ;  5  Mas.  C.  C.  176  ;  7  Ala. 
N  s.  19.    But  if  a  partnership  bo  carried  )n 


under  a  single  name,  it  has  been  held  thjj 
the  legal  presumption  in  regard  to  a  notl 
signed  by  that  name  is  that  it  was  a  per- 
sonal and  not  a  partnership  note.  See  26 
Barb.  N.  Y.  610  ;  38  Me.  506  ;  5  Pick.  Mass. 
11.  One  partner  mav  effect  insurance,  4 
Campb.  66;  Collyer,  Partn.  ^  438;  Story 
Partn.  §  102,  and  receive  money  for  tlie  firm, 
Holt,  434;  Cowp.  814;  may  compromise  with 
its  debtors  or  creditors.  Story,  Partn.  ^115; 
7  Gill,  Md.  49;  Rice,  So.  C.  291,  and  release 
debts  due  to  it,  3  Kent,  Comm.  48  ;  Chitty. 
Contr.  1860  ed.  274;  Collyer,  Partn.  |  468 
and  note  ;  Bacon,  Abr.  Release  fD)  ;  3  Bingh. 
103  ;  17  Johns.  N.  Y.  58  ;  7  N.  H.  567  ;  4 
Mas.  C.  C.  232;  4  Gill  &  J.  Md.  310;  3 
Wash.  C.  C.  511 ;  3  C.  B.  742,  745  ;  Story, 
Partn.  ^  115  ;  and  such  acts  and  dealings,  if 
they  fall  within  the  ordinary  business  of  the 
firm,  6  Beav.  Rolls,  324;  2  Phill.  354,  will 
bind  all  the  other  partners.  A  warranty  of 
a  horse,  upon  sale  thereof  by  one  of  several 
horse-dealers,  partners,  would  bind  the  others. 
2  Barnew.  &  Aid.  679. 

12.  Upon  the  principle  that  the  act  and 
assurance  of  one  partner,  made  with  reference 
to  business  transacted  by  the  firm,  will  bind 
all  the  partners,  the  acknowledgment,  pro- 
mise, or  undertaking  of  one  partner  with 
reference  to  the  contracts  of  the  partnership 
is  held  to  be  the  acknowledgment,  promise, 
or  undertaking  of  all.  1  Taunt.  104  ;  Story, 
Partn.  §  107  ;  1  Esp.  135  ;  1  Russ.  &  M.  199 ; 
4  Barnew.  &  Aid.  663 ;  4  Dowl.  &  R.  7  ;  1 
Salk.  291 ;  Collyer,  Partn.  ^  422.  How  far 
an  acknowledgment  or  admission  made  by 
one  partner  after  the  dissolution  of  the  firm 
binds  the  other  partners  in  regard  to  partner- 
ship transactions,  see  Collyer,  Partn.  §  423 
et  seq.  and  notes,  430  and  notes. 

One  partner  will  be  bound  by  the  fraud  of 
his  copartner  in  contracts  relating  to  the 
affairs  of  the  partnership,  made  with  innocent 
third  persons.  Collyer,  Partn.  ^  445 ;  2 
Barnew.  &  Aid.  795;  Cowp.  114;  1  Mete. 
Mass.  563  ;  6  Cow.  N.  Y.  497  ;  1  Ry.  &  M. 
364 ;  6  Barnew.  &  C.  561 ;  2  Clark  &  F.  Hou. 
L.  250 ;  7  T.  B.  Monr.  Ky.  617  ;  1  Campb. 
185  ;  7  Ired.  No.  C.  4 ;  15  Mass.  75,  81,  331 ; 
17  id.  182  ;  Bisset,  Partn.  76.  This  doctrine 
proceeds  upon  the  ground  that  where  one  of 
two  innocent  persons  must  suffer  by  the  act 
of  a  third  person,  he  shall  suffer  who  has  been 
the  cause  or  the  occasion  of  the  confidence  and 
credit  reposed  in  such  third  person.  Story, 
Partn.  ^08;  1  Mete.  Mass.  562,  563.  The 
liability,  therefore,  does  not  arise  when  there 
is  collusion  between  the  fraudulent  partners 
and  the  party  with  whom  he  deals,  Bisset, 
Partn.  80,  81 ;  1  East,  48,  53,  or  the  latter 
have  reason  to  suppose  that  the  partner  is 
acting  on  his  own  account.  Peake,  80,  81 ; 
Chitty,  Contr.  1800  ed.  280,  284 ;  2  C.  B.  821 ; 
10  Barnew.  &  C.  298. 

13.  A  partner  may  be  made  liable  for 
other  wrongs  committed  in  reference  to  the 
partnership  business  by  his  copartners:  as, 
where  a  partner  injures  a  third  person  by 
negligence  in  driving  a  coach,  the  property 


PARTNERS 


287 


PARTNERS 


of  the  firm  and  employed  on  their  business. 
Chitty,  Contr.  1860  ed.  280,  note ;  CoUyer, 
Partn.  ^  458  ;  12  N.  II.  270.  A  joint  con- 
version may  be  raised  in  point  of  law  by  the 
assent  of  the  partner  to  the  acts  of  his  copart- 
ner. CoUyer,  Partn.  g  458 ;  1  Maulc  &  S. 
588 ,  Story,  Partn.  §  IGG.  Demand  of,  and 
a  refusal  by,  one  partner  to  deliver  up  pro- 
perty is  evidence  of  a  conversion  by  both.  4 
Hill,  N.  Y.  13  ;  24  Wend.  N.  Y.  1G9  ;  4  Rawle, 
Penn.  120.  But  the  wilful  tort  of  one  partner 
seems  not,  in  general,  to  be  imputable  to  the 
firm.    3  Dowl.  160;  10  Exch.  352. 

As  a  general  rule,  the  act  or  admission  of 
one  partner  in  legal  proceedings,  as  also  no- 
tice to  or  by  one  partner,  is  held  to  be  bind- 
ing on  the  tirm.  Colly er,  Partn.  441,  442, 
443;  15  M?lss.  44;  2  Wash.  C.  C.  388;  4 
Conn.  326 ;  3  Litt.  Ky.  250 ;  Story,  Partn.  § 
107  ,  1  Maule  &  S.  259  ;  5  id.  49  ;  1  Carr.  & 
P.  550  ;  1  Campb.  82  ;  2  Crompt.  &  M.  318. 
In  an  action  against  partners,  one  may  enter 
an  appearance  for  the  rest,  7  Term,  207  ;  17 
Vt.  531 ;  see  2  M'Cord,  So.  C.  310  ;  but  not  to 
bind  them  personally  and  individually  when 
not  within  the  jurisdiction  and  not  served  with 
process.  9  Cush.  Mass.  360 ;  11  How.  165. 
Where  one  partner  released  an  action  after 
the  tirm  had  instructed  their  attorney  to  pro- 
ceed to  trial,  the  court  refused  to  interfere,  7 
J.  B.  Moore,  356  ;  a>r(d  it  seems  that  one  part- 
ner has  also  the  power  of  suspending  pro- 
ceedings in  an  action.  Bisset,  Partn.  75  ; 
Gow,  Partn.  65,  note. 

14.  One  partner  may  give  notice  of  aban- 
donment, under  a  policy  of  insurance,  for  all. 
6  Maule  &  S.  47.  Notice  of  dishonor  to  one 
of  several  partners,  joint  indorsers  of  a  bill 
or  note,  is  notice  to  all.  Chitty,  Bills,  339  ; 
6  La.  684 ;  20  Johns.  N.  Y.  176.  One  part- 
ner may  act  for  the  others  in  proceedings 
under  bankrupt  laws,  Collyer,  Partn.  ^444;  4 
Ves.  Ch.  597 ;  19  id.  291 ;  1  Rose,  Bank.  2 ;  2  id. 
174;  Bisset,  Partn.  Eng.  ed.  76  ;  except  in  the 
case  of  a  petition  for  a  fiat.    Bisset,  Partn.  76. 

A  partner  derives  no  authority  from  the 
mere  relation  of  partnership  to  bind  the  firm  as 
the  guarantor  of  the  debt  of  another,  5  Q.  B. 
833 ;  4 Exch.  623 ;  Collyer,  Partn.  ^  421 ;  Chitty, 
Contr.  1860  ed.  276,  277,  and  notes ;  Story, 
Partn.  ^  127 ;  3  Kent,  Comm.  46, 47 ;  3  Ired.  No. 
C.  241;  2  Harr.  N.  J.  24;  2  Ala.  n.  s.  502:  2 
Cush.  Mass.  309;  or  as  a  party  to  a  bill  or  note  for 
the  accommodation  of,  or  as  a  mere  and  avowed 
suretv  for,  another.  2  Cush.  Mass.  309  ;  Coll- 
yer, Partn.  §  421  ;  19  Johns.  N.  Y.  154;  1 
Wend.  N.  Y.  531  ;  5  Conn.  574 ;  21.Miss.  122; 
31  Me.  452  ;  3  Humphr.  Tenn.  597  :  14  Wend. 
N.  Y.  133,  138  ;  4  Hill,  N.  Y.  161.  In  neither 
of  these  cases  can  the  act  of  one  partner  bind 
the  firm,  unless  there  be  a  special  authority 
for  the  purpose,  or  one  to  be  implied  from  the 
common  course  of  business  or  the  previous 
course  and  habit  of  dealing,  with  the  know- 
ledge and  consent  of  the  firm,  or  unless  the 
transaction  is  subsequently  adopted  by  the 
firm.  Collyer,  Partn.  g  421  and  note ;  3 
Kent,  Comm.  46,  47  ;  Chitty,  Contr.  1860  ed. 
270,  277  ;  3  Humphr.  Tenn.  597  ;  4  Hill,  N. 


Y.  261.  Whether  it  appears  upon  the  instru- 
ment or  in  some  other  way  that  the  contract 
is  one  of  guaranty,  suretyship,  or  accommo- 
dation, the  ))urden  of  proof  is  upon  the  party 
holding  it,  if  he  took  it  knowing  such  to  be 
the  character  of  the  ctjntract,  to  show  the 
facts  necessary  to  render  it  availal)lo  against 
the  firm.  19  Johns.  N.  Y.  154 ;  7  Wend.  N. 
Y.  309  ;  2  Cush.  Mass.  314,  315  ;  2  Penn.  St 
177  ;  21  Miss.  122  ;  22  Me.  188,  189  ;  31  id. 
454.  Direct  or  positive  proof  is  not  necessary : 
the  authority  or  ratification  may  be  inferred 
from  circumstances.  2  Cush.  Mass.  309;  22 
Me.  188,  189  ;  14  Wend.  N.  Y.  133  ;  2  Litt. 
Ky.  41  ;  10  Vt.  268. 

15.  One  partner,  without  authority,  ex- 
press or  implied  from  circumstances,  cannot 
bind  the  firm  by  a  contract  to  convey  real 
estate  of  the  partnership  unless  there  be  a 
subsequent  ratification  or  adoption  of  the  con- 
tract. 5  Hill,  N,  Y.  107.  One  partner  has  no 
implied  authority  to  bind  his  copartners  by 
deed,  3  Kent,  Comm.  47,  48  ;  Story,  Partn.  | 
117  et  seq.;  Collyer,  Partn.  463;  but  a  deed 
made  by  one  partner  in  the  name  and  for  the 
use  of  the  members  of  the  firm  will  bind  the 
other  partners,  if  they  assent  to  it  or  subse- 
quently adopt  it ;  aind  this  consent  or  adoption 
may  be  by  parol.  11  Pick.  Mass.  400 ;  4 
Mete.  Mass.  548  ;  11  Ohio,  223  ;  Chitty,  Contr. 
1800  ed.  278,  note;  Collyer,  Partn.  §  462  et 
seq.,  ^  469  et  seq.  So  one  partner  may  bind  the 
firm  to  a  conveyance  by  deed  of  the  eifects  of 
the  firm  which  he  might  have  conveyed  with- 
out deed.  The  mere  circumstance  of  annex- 
ing a  seal  to  the  instrument  in  such  a  case 
does  not  annul  a  transfer  so  consummated.  1 
Brock,  Va.  456  :  1  Mete.  Mass.  515  :  7  id. 
244;  5  Hill,  N.  Y.  107  ;  8  Leigh,  Va.  415.  A 
deed  of  assignment  of  the  partnership  pro- 
perty, executed  by  one  partner  as  his  deed 
only,  passes  his  interest  in  the  property.  11 
Mees.  &  W.  Exch.  128.  But  see  17  Ves.  Ch. 
193,  200;  5  Mo.  466. 

One  partner  cannot  bind  the  firm  by  sub- 
mitting any  of  the  affairs  of  the  firm  to  arbi- 
tration, whether  by  deed  or  parol.  3  Kent, 
Comm.  49;  Story,  Partn.  H  114,  115;  3 
Bingh.  101 ;  3  Hurlst.  &  N.  Exch.  500 ;  1 
Crompt.  M.  &  R.  Exch.  681 ;  3  C.  B.  742,  745  ; 
19  Johns.  N.  Y.  137  ;  1  Pet.  221 ;  Collyer, 
Partn.  439,  470.  The  principle  is  that 
there  is  no  implied  authority,  exce[)ting  so  far 
as  it  is  necessary  to  carry  on  the  business  of 
the  firm.  1  Crompt.  M.  &  R.  Exch.  581 ;  3 
Bingh.  101.  It  might  also  affect  the  rights 
of  the  other  partners  to  resort  to  the  ordinary 
course  of  justice.  Collyer,  Partn.  I  439.  In 
some  states,  however,  one  partner  may  sub- 
mit partnership  matters  to  arbitration. 
Wright,  Ohio,  420;  12  Serg.  &  R.  Penn.  243  ; 

3  T.  B.  Monr.  Ky.  433. 

16.  The  rule  that  one  partner  cannot  bind 
his  copartners  bv  deed  does  not  extend  to  re- 
leases. Collyer,  *Partn.  §4^8  ;  2  Coke,  68  ;  4 
Term,  519  ;  3  Bingh.  101 ;  3  Johns.  N.  Y.  68  ; 

4  Gill  &  J.  Md.  310 ;  3  Kent,  Comm.  48.  As 
a  release  by  one  partner  is  a  release  by  all,  so 
a  release  to  one  partner  is  a  release  to  all. 


PARTNERS 


288 


PARTNERS 


March.  202  ;  8  Coke,  136 ;  23  Pick.  Mass.  444 ; 
3  Penn.  57  ;  5  Gill  &  J.  Md.  314 ;  22  Pick. 
Mass.  305  ;  Chitty,  CoDtr.  1860  ed.  275,  note. 

The  power  of  a  partner  to  dispose  of  the 
property  of  the  firm  does  not  extend  to  real 
estate  held  by  the  partnership :  one  partner 
cannot  convey  away  the  real  estate  of  the  firm 
without  special  authority.  1  Mete.  Mass.  518, 
519  ;  Story,  Partn.  §  101 ;  1  Brock,  Va.  456, 
468 ;  3  McLean,  C.  C.  27 ;  CoUyer,  Partn.  §  394. 

One  partner  cannot  by  confessing  a  volun- 
tary judgment  bind  his  copartners,  unless 
actually  brought  into  court  by  regular  service 
of  process  against  him  and  his  partner.  A 
judgment  so  confessed  will  bind  the  partners 
who  did  it  only.  1  Wend.  N.  Y.  311;  1 
Blackf.  Ind.  252 ;  1  Watts  &  S.  Penn.  340, 
619;  7  id.  172;  3  C.  B.  742;  Collyer,  Partn. 
§  464,  note  ;  4  Moore  &  P.  57.  Nor  can  one 
partner,  by  entering  an  appearance  for  an- 
other, bind  him  personally  and  individually 
where  the  latter  is  not  within  the  jurisdic- 
tion and  has  not  been  served  with  process.  9 
Gush.  Mass.  360 ;  1  How.  165. 

The  act  of  a  partner  wholly  uncon- 
nected with  the  business  of  the  partnership 
does  not  bind  the  firm.  4  Exch.  623  ;  Coll- 
yer, Partn.  ^  437,  484 ;  2  Barnew.  &  Aid. 
678 ;  4  Johns.  N.  Y.  265  ;  8  Me.  820 ;  15 
Pick.  Mass.  290 ;  3  Conn.  198 ;  3  Johns.  Ch. 
N.  Y.  23  ;  Story,  Partn.  U  112,  113  ;  Chitty, 
Contr.  1860  ed.  275  ;  3  Q.  B.  316  ;  4  Dan.  Ky. 
3?8 ;  2  Ell.  &  B.  61.  Still,  a  partner  may 
bind  the  firm  in  matters  out  of  the  usual 
course  of  the  business  of  the  firm,  if  those 
matters  arise  out  of,  and  are  connected  with, 
the  regular  transactions  of  the  firm.  Collyer, 
Partn.  1  484;  2  Barnew.  &  Aid.  673.  If  one 
partner  is  a  trustee,  and  he  improperly  em- 
ploys the  trust  funds  in  the  partnership  busi- 
ness, his  knowledge  that  he  is  doing  so  is  not 
imputable  to  the  firm.  1  Lindley,  Partn.  231 ; 
1  Brock,  Va.  386. 

No  arrangement  between  the  partners 
themselves  can  limit  or  prevent  their  ordinary 
responsibilities  to  third  persons,  unless  the 
latter  assent  to  such  arrangement.  Collyer, 
Partn.  §  386 ;  2  Barnew.  &  Aid.  679  ;  3  Kent, 
Comm.  41 ;  5  Mas.  C.  C.  187, 188  ;  5  Pet.  129 ; 
.3  Barnew.  &  C.  427.  But  where  the  creditor 
nas  express  notice  of  a  private  arrangement 
between  the  partners,  by  which  either  the 
power  of  one  to  bind  the  firm  or  his  liability 
on  partnership  contracts  is  qualified  or  de- 
feated, such  creditor  will  be  bound  by  the 
arrangement.  Collyer,  Partn.  ?  387  ;  12  N.  H. 
275  ;  4  Ired.  No.  C.  129  ;  38  N.  H.  287  ;  6  Pick. 
Mass.  372 ;  4  Johns.  N.  Y.  251 ;  5  Conn.  597, 
598  ;  1  Campb.  404  ;  5  Brown,  Pari.  Cas.  489  ; 
1  Lindl.  Partn.  260  et  seq.,  267-269.  The  act 
or  contract  of  one  partner,  even  in  a  transac- 
tion purely  of  a  partnership  nature,  does  not 
bind  the  firm  if  the  creditor  has  express  no- 
tice from  the  other  partners  that  they  will 
not  consider  themselves  responsible,  1  Salk. 
202;  10  East,  264;  1  Stark.  164;  1  Younge 
&  J.  Exch.  227  ;  for  the  authority  of  one 
partner  to  bind  the  firm  is  only  implied  ;  and 
no  one  can  become  the  creditor  of  another 


against  his  express  and  declared  will.  Chit 
Contr.  1860  ed.  284 ;  Collyer,  Partn.  §  387 

18.  One  partner  may  interfere,  and,  by  his 
dissent  from  future  contracts  by  his  copartner 
or  from  the  closing  of  contracts  with  him 
which  have  not  become  binding  upon  the 
firm,  he  may,  upon  express  notice  thereof, 
avoid  any  liability  subsequently  arising  upon 
such  contracts  if  entered  into,  unless  the  dis 
senting  partner  afterwards  assents  to  and 
ratifies  the  transaction.  1  Stark.  164 ;  3  Kent, 
Comm.  45  ;  3  Conn.  124 ;  1  Campb.  403  ;  16 
Viner,  Abr.244;  15  Me.  198;  Collyer,  Partn. 
§g  388,  389 ;  Pothier,  Partn.  n.  90.  But  it 
seems  that  the  dissenting  partner  would  not 
be  liable  merely  on  the  ground  that  the  goods 
purchased,  or  the  fruits  of  the  contract,  came 
to  the  use  of  the  firm,  15  Me.  l78,  181;  3 
Conn.  124 ;  10  East,  204  ;  1  Younge  &  J.  227, 
230,  unless  they  were  of  some  benefit  to  the  fi  rm. 
1  Stark.  104 ;  15  Me.  181.  It  has,  however, 
been  questioned  whether  the  dissent  of  one 
partner,  where  the  partnership  consists  of 
more  than  two,  will  afiect  the  validity  of 
partnership  contracts  made  by  the  majority 
of  the  firm  in  the  usual  course  of  business 
and  within  the  scope  of  the  concern.  3  Kent, 
Comm.  45 ;  Collyer,  Partn.  g§  147,  389  and 
note;  Story,  Partn.  §  123  ;  1  Johns.  Ch.  N.  Y. 
400 ;  4  id.  573,  597 ;  1  Turn.  &  R.  Ch.  496,  517, 
525.  It  is  said  by  a  learned  writer  that,  in 
the  absence  of  an  express  stipulation,  a 
majority  must  decide  as  to  the  disposal  of  the 
partnership  property,  3  Chitty,  Comm.  Law, 
234 ;  but  the  power  of  the  majority  must  be  ^ 
confined  to  the  ordinary  business  of  the  part- 
nership, Collyer,  Partn.  §  197;  9  Hare,  Ch. 
326  ;  3  DeGex  &  J.  123  ;  4  Kay  &  J.  733  ;  2 
Phill.  740  ;  14  Beav.  Rolls,  367  ;  2  DeGex, 
M.  &  G.  49  ;  3  Smale  &  G.  176 :  it  does  not 
extend  to  the  right  to  change  any  of  the 
articles  thereof,  Collyer,  Partn.  §  198 ;  Story,  ^ 
Partn.  ^  125  ;  4  Johns.  Ch.  N.  Y.  573  ;  32  N. 
H.  9,  nor  to  engage  the  partnership  in  trans-  \ 
actions  for  which  it  was  never  intended. ' 
Gow,  Partn.  3d  ed.  398,  App. ;  3  Maule  &  S. 
488 ;  1  Taunt.  241 ;  1  Sim.  &  S.  Ch.  31. 
Where  a  majority  is  authorized  to  act,  it  must 
be  fairly  constituted  and  must  proceed  with 
the  most  entire  good  faith.  Turn.  &  R.  Ch. 
525 ;  10  Hare,  Ch.  493 ;  5  DeGex  &  S.  310. 

19.  Each  partner  is  liable  to  pay  the 
whole  partnership  debts.  In  what  proportion 
the  partners  shall  contribute  is  a  matter 
merely  among  themselves.    Lord  Mansfield^ 

5  Burr.  2613.  Universally,  whatever  agree- 
ment may  exist  among  the  partners  them- 
selves, stipulating  for  a  restricted  responsi- 
bility, and  however  limited  may  be  the  ex- 
tent of  his  own  separate  beneficial  interest  in, 
and  however  numerous  the  members  of,  the 
partnership,  each  individual  member  is  liable 
for  the  joint  debt  to  the  whole  extent  of  his 
property.  Bisset,  Partn.  9  ;  5  Burr.  2611 ;  3 
W.  Blackst.  947  ;  9  East,  516  ;  5  Term,  601 ; 
1  Ves.  &  B.  Ch.  Ir.  157;  2  Deas.  So.  C.  148 ; 

6  Serg.  &  R.  Penn.  333  ;  1  Lindley,  Partn. 
300.  In  Louisiana,  ordinary  partners  are 
bound  in  solido  for  the  debts  of  the  partner- 


PARTNERS 


289 


PARTNERS 


ship,  La.  Civ.  Code,  art.  2843  ;  each  partner 
is  bound  for  his  share  of  the  partnership 
debts,  calculating  such  share  in  proportion  to 
the  number  of  partners,  without  attention  to 
the  proportion  of  the  stock  or  profits  each  is 
entitled  to.    Id.  art.  2844. 

Partners  are  said  to  be  joint  tenants  of  the 
partnership  property  without  benefit  of  sur- 
vivorship inter  se.  Bisset,  Partn.  44,  45  ;  7 
Jarman,  Conv.  67  ;  Comyns,  Dig.  Merchants 
D) ;  Collyer,  Partn.  g  123  ;  Story,  Partn.  H 
9,  90.  But,  in  addition  to  the  ordinary  right 
of  joint  tenants,  each  partner  has  also  a  power, 
singly,  to  dispose  of  the  entire  right  of  all 
the  partners  in  the  partnership  efiects,  for  the 
purposes  of  partnership  and  in  the  name  of 
the  firm.  Bisset,  Partn.  45  ;  Story,  Partn.  § 
90;  Cowp.445. 

ilO.  Partnership  also  differs  from  a  ten- 
ancy in  common  in  reference  to  the  power  of 
disposal,  and  because,  inter  se,  each  partner 
has  a  claim,  not  to  any  specific  share  or  inte- 
rest in  the  property  in  specie,  as  a  tenant  in 
common  has,  but  to  the  proportion  of  the 
residue  which  shall  be  found  to  be  due  to 
him  upon  the  final  balance  of  their  accounts, 
after  the  conversion  of  the  assets  and  the 
liquidation  thereout  of  all  claims  upon  the 
partnership  ;  and  therefore  each  partner  has 
a  right  to  have  the  same  applied  to  the  dis- 
charge and  payment  of  all  such  claims  before 
any  one  of  the  partners,  or  his  personal  repre- 
sentatives, or  his  individual  creditors,  can 
claim  any  right  or  title  thereto.  Story, 
Partn.  §  97 ;  7  Jarman,  Conv.  68  ;  Cowp.  469  ; 
I  Ves.  Sen.  Ch.  239  ;  4  Ves.  Ch.  396  ;  6  id. 
119;  17  id.  193. 

Each  partner  has  also  a  specific  lien  on  the 
present  and  future  property  of  the  partner- 
ship, the  stock  brought  in,  and  every  thing 
eoming  in  lien,  during  the  continuance  and 
after  the  determination  of  the  partnership, 
not  only  for  the  payment  of  debts  due  to 
third  persons,  but  also  for  the  amount  of  his 
own  share  of  the  partnership  stock,  and  for 
all  moneys  advanced  by  him  beyond  that 
amount  for  the  use  of  the  partnership,  as 
also  for  moneys  abstracted  by  his  copartners 
beyond  the  amount  of  his  share.  Story, 
Partn.  H  97,  326,  441 ;  Collyer,  Partn.  |  125  ; 
3  Kent,  Comm.  65,  66  ;  8  Dana,  278  :  10  Gill 
&  J.  Md.  253  ;  20  Vt.  479  ;  9  Cush.  Mass.  558 ; 
1  Lindley,  Partn.  576 ;  1  Ves.  Sen.  239  ;  9  Beav.' 
Rolls,  239  ;  20  id.  20 ;  25  id.  280 ;  3  Mont.  D.  & 
D.  198.  This  lien  attaches  on  real  estate  held 
by  the  partnership  for  partnership  purposes, 
as  well  as  upon  the  personal  estate,  5  Mete. 
Mass.  562,  577-579,  585,  and  is  coextensive 
,with  the  transactions  on  joint  account.  1 
Dan.  Ky.  58  ;  11  Ala.  n.  s.  412. 

21,  If  a  partner  has  taken  the  whole  or 
any  part  of  his  share  out  of  the  partnership 
stock,  the  stock  so  taken,  if  identified,  is 
applicable  to  the  payment  of  what,  upon 
an  account  taken,  shall  be  found  to  be  due 
from  him  to  the  partnership,  before  it  can 
be  applied  to  the  payment  of  his  separate 
creditors.  3  P.  Will. '180;  Collyer,  Partn.  g 
126  ;  Story,  Partn.  g  97.   The  same  rule  will  I 

Vol.  II.— 19 


apply  to  any  other  property  into  which  the 
partnership  property  may  have  been  con- 
verted, so  far  and  so  long  as  its  original  cha- 
racter and  identity  can  be  distinctly  traced, 

4  Harr.  &  Mil,  Md.  107  ;  Story,  Partn.  g  97  ; 
and  hence  no  separate  creditor  of  any  partner 
can,  merely  as  such  creditor,  take  any  pt^rtion 
of  the  partnership  effects,  by  process  or  (jther 
wise,  except  for  so  much  as  belongs  to  that 
partner,  as  his  share  or  balance,  after  all  prior 
claims  thereon  are  deducted  and  satisfied. 
Story,  Partn.  ^  97  ;  9  Me.  28  ;  Collyer,  Partn. 
I  822  and  notes  ;  5  Johns.  Ch.  N.  Y.  417. 

Upon  the  decease  of  one  of  several  partners, 
his  personal  representatives  become,  both 
at  law  and  in  equity,  tenants  in  common 
with  the  surviving  partners.  Collyer,  Partn. 
§  346;  3  Kent,  Comm.  37  ;  Story,  Partn.  ^ 
346 ;  35  N.  H.  403.  Still,  as  the  surviving 
partner  stands  chargeable  with  the  whole  of 
the  partnership  debts,  he  takes  the  partner- 
ship property  by  survivorship,  for  all  purposes 
of  holding  and  administering  the  estate,  until 
the  effects  are  reduced  to  money  and  the 
debts  paid,  3  Kent,  Comm.  37  ;  Story,  Partn. 
§  346;  Collyer,  Partn.  §  129  ;  5  Mete.  Mass. 
576,  585;  10  Gill  &  J.  Md.  404;  30  Me'.  386; 
6  Cow.  N.  Y.  441 ;  3  Paige,  Ch.  N.  Y.  527  ; 
13  Miss.  44 ;  18  Conn.  294.  See  1  Exch.  164 ; 
Year  B.  38  Edw.  III.  f.  7,  t.  Accompt.  The 
debts  of  the  partnership  must  be  collected  in 
the  name  of  the  surviving  partner.  6  Cow. 
N.  Y.  441  ;  Story,  Partn.  ^  346  ;  3  Kent, 
Comm.  37  ;  4  Mete.  Mass.  540.  In  Louisiana 
the  surviving  partner  does  not  possess  the 
right  until  he  is  authorized  by  the  court  of 
probate  to  sue  alone  for  or  receive  partner- 
ship debts.    6  La.  194 ;  16  id.  30. 

The  partnership  property  consists  of 
the  original  stock  and  the  additions  made  to 
it  in  the  course  of  trade.  All  real  estate  pur- 
chased for  the  partnership,  paid  for  out  of  the 
funds  thereof,  and  devoted  to  partnership 
uses  and  trusts,  whether  the  legal  title  is  in 
one  or  all  of  the  partners,  is  treated  in  equity 
in  the  same  manner  as  other  partnership 
property  until  the  partnership  account  is 
settled  and  the  partnership  debts  are  paid. 
Bisset,  Partn.  47-56,  60  ;  Storv,  Partn.  I  98  ; 

5  Ves.  Ch.  189  ;  3  Swanst.  Chi  489  ;  Collyer, 
Partn.  §  135  ;  10  Cush.  Mass.  458  ;  4  Mete. 
Mass.  527  ;  5  id.  562;  3  Kent,  Comm.  37  ; 
27  N.  H.  37.  Leases  of  real  estate  taken  by 
one  partner  for  partnership  purposes,  mines, 
and  trade-marks  are  held  to  be  partnership 
property.  17  Ves.  Ch.  298  ;  Bisset,  Partn. 
60,  61 ;  1  Taunt.  250 ;  10  Jur.  106  ;  5  Ves. 
Ch.  308 ;  Story,  Partn.  g  98. 

A  peculiar  species  of  interest,  called  the 
good  will  of  the  trade  or  business,  is  often 
treated  as  in  some  sort  a  part  of  the  partner- 
ship property.  But  Chancellor  Kent  says 
"  the  good  will  of  a  trade  is  not  partnership 
stock."  3  Kent,  Comm.  64.  Still,  the  good- 
will of  a  business  is  often  recognized  as  a 
valuable  interest.  3  Mer.  Ch.  452,  455  ;  1 
Hoff  Ch.  N.  Y,  68;  5  Ves.  Ch.  539.  It  is 
considered  to  enhance  the  value  of  the  effects 
on  which  it  is  attendant,  and  will,  therefore. 


PARTNERS 


290 


PARTNERS 


be  included  in  <a  decree  for  the  sale  of  those 
effects.  Collyer,  Partn.  161,322;  Story, 
Partn.  ^  99,  100;  Bisset,  Partn.  62.  The 
good  will  of  a  professional  partnership  be- 
longs, in  the  absence  of  express  stipulations, 
exclusively  to  the  survivors.  Bisset,  Partn. 
64;  3  Madd.  Ch.  64;  Collyer,  Partn.  ^  163. 

23.  Distribution  of  interest.  As  between 
the  partners,  they  may  by  agreement  stipu- 
late for  equal  or  unequal  shares  in  the  profit 
and  loss  of  the  partnership.  Story,  Partn.  ^  23  ; 
but  in  the  absence  of  any  express  agreement  or 
stipulation  between  them,  and  of  all  controll- 
ing evidence  and  circumstances,  the  presump- 
tion has  been  held  to  be  that  they  are  interested 
in  equal  shares.  Story,  Partn.  ^  24  ;  Bisset, 
Partn.  56,  57  ;  Collyer,  Partn.  ^161 ;  1  Mood. 
&  R.  527  ;  6  Wend.  N.  Y.  263 ;  9  Ala.  n.  s. 
372  ;  13  id.  752 ;  2  Murph.  No.  C.  70  ;  5  Dan. 
Ky.  211 ;  8  id  214;  1  Ired.  Eq.  No.  C.  332; 
1  J.  J.  Marsh.  Ky.  506  ;  1  Lindley,  Partn. 
573  ;  20  Beav.  Rolls,  98  ;  7  De  Gex,  M.  &  G. 
239  ;  17  Ves.  Ch.  49  ;  7  Hare,  159  ;  1  Mood. 
&  R.  527.  And  the  circumstance  that  each 
partner  has  brought  an  unequal  amount  of 
capital  into  the  common  stock,  or  that  one  or 
more  have  brought  in  the  whole  capital  and 
the  others  have  only  brought  industry,  skill, 
and  experience,  would  not  seem  to  furnish 
any  substantial  ground  of  difference  as  to  the 
distribution.  Story,  Partn.  ^  24 ;  3  Kent, 
Comm.  28,  29;  21  Me.  117. 

24.  It  has  sometimes  been  asserted,  how- 
ever, that  it  is  a  matter  of  fact,  to  be  settled 
by  a  jury  or  by  a  court,  according  to  all  the 
circumstances,  what  would  be  a  reasonable 
apportionment,  uncontrolled  by  any  natural 
presumption  of  equality  in  the  distribution. 
Story,  Partn.  §  24;  2  Campb.  45;  7  Bligh, 
132 ;  5  Mills  &  S.  16.  The  opinion  in  Eng- 
land seems  divided  ;  but  in  America  the  au- 
thorities seem  decidedly  to  favor  the  doc- 
trine of  a  presumed  equality  of  interest.  See 
American  cases  cited  above;  Story,  Partn. 
24-26. 

Whether  a  partnership  includes  the  capital 
stock,  or  is  limited  to  the  profit  and  loss,  must 
be  determined  from  the  agreement  and  inten- 
tion of  the  parties.  21  Me.  120 ;  Collyer, 
Partn.  169-171.  See  5  Taunt.  74 ;  4  Barnew. 
&  C.  867  ;  Story,  Partn.  §  26. 

A  bond  fide  sale,  for  a  valuable  considera- 
tion, by  one  partner  to  another,  of  all  the 
partnership  effects,  is  valid,  and  the  property 
so  conveyed  becomes  the  separate  estate  of 
the  purchaser  although  the  firm  and  both 
partners  are  at  the  time  insolvent.  9  Cush. 
Mass.  553  ;  Collyer,  Partn.  U  174,  894,  903 ; 
21  Conn.  130,  137  ;  21  N.  H.  462,  469. 

25.  Mutual  rights  and  personal  obligations 
of  partners.  Good  faith,  reasonable  diligence 
and  skill,  and  the  exercise  of  a  sound  judg- 
ment and  discretion,  lie  at  the  very  founda- 
tion of  the  relation  of  partnership.  The 
same  rules  and  tests  are  to  be  applied  to  the 
conduct  of  partners  as  are  ordinarily  applied 
to  that  of  trustees.  Indeed,  the  functions, 
rights,  and  duties  of  partners  in  a  great  mea- 
sure comprehend  those  both  of  trustees  and 


agents.  Collyer,  Partn.  ^  178,  182  ;  StoryM 
Partn.  ^09;  3  Stor.  C.  C.  93,  101 ;  3  Ves.  M 

B.  Ch.  Ir.  36 ;  1  Johns.  Ch.  N.  Y.  470 ;  1« 

Hare,  Ch.  522,  536  ;  14  Beav.  Rolls,  250  ;  ■ 
Macn.  &  G.  294;  3  Smale  &  G.  419  ;  1  Lind« 
ley,  Partn.  492, 493.  If  the  partnership  sufferm 
loss  from  the  gross  negligence,  unskilfulnes8,B 
fraud,  or  other  wanton  misconduct  of  a  part** 
ner  in  the  partnership  business,  or  from  » 
known  deviation  from  the  partnership  articles Jl 
he  is  ordinarily  responsible  over  to  the  othar™ 
partners  for  all  losses  and  damages  sustained 
thereby.    1  Sim.  Ch.  89  ;  Pothier,  Partn.  n. 
133  ;  3  Kent,  Comm.  52,  note;  Story,  Partn. 
^  173  and  note.    A  partner  withdrawing  the 
funds  of  the  concern,  thereby  diminishing 
the  stock,  and  applying  it  to  his  own  use,  shall 
account  to  the  others  for  the  injur3\    1  J.  J. 
Marsh.  Ky.  507 ;  3  Stor.  C.  C.  101.    But  if 
one  partner,  acting  fairly  and  for  the  best 
according  to  his  judgment,  causes  a  loss,  he 
is  not  answerable  to  the  others.    3  Wash.  C. 

C.  224.  Not  only  gross  frauds,  but  intrigues 
for  private  benefit,  are  clearly  offences  against 
the  partnership  at  large,  and,  as  such,  are 
relievable  in  a  court  of  equitj^  Collyer, 
Partn.  ^79;  15  Ves.  Ch.  227 ;  3  Kent,  Comm. 
51,  52 ;  1  Sim.  Ch.  52,  89 ;  17  Ves.  Ch.  298. 

26.  As  it  is  the  duty  of  the  partners  to 
devote  themselves  to  the  interests  of  the  con-  : 
cern,  to  exercise  due  diligence  and  skill  for 
the  promotion  of  the  common  benefit  of  the  ■ 
partnership,  it  follows  that  they  must  do  it  • 
without  any  reward  or  compensation,  although 
the  services  performed  by  the  partners  are  ' 
very  unequal  in  amount  and  value,  unless  ' 
there  is  an  express  stipulation  for  remunera- 
tion.   7  Paige,  Ch.  N.  Y.  483  ;  1  Anstr.  94; 
1  Johns.  Ch.  N.  Y.  157,  165  ;  8  Dan.  Ky.  219 ;  ' 
4  Gill,  Md.  338  ;  2  Dev.  &  B.  Eq.  No.  C.  123 ; 
3  Johns.  Ch.  N.  Y.  431 ;  Story,  Partn.  §182 ;  ; 
Collyer,  Partn.  §  183.    So  no  partner  has  a  ; 
right  to  engage  in  any  business  or  specula-  • 
tion  which  must  necessarily  deprive  the  part-  \ 
nership  of  a  portion  of  his  skill,  industry,  or  \ 
capital,  3  Kent,  Comm.  51,52;  Collyer,  Partn. 
§  184;  Story,  Partn.  ^77;  1  Johns.  Ch.  N.  Y.  ; 
305  ;  1  Sim.  &  S.  Ch.  133,  ftor  to  place  him-  ' 
self  in  a  position  which  gives  him  a  bias 
against  the  discharge  of  his  dutv,  Collyer, 
Partn.  |  186 ;  1  Madd.  &  G.  Ch.  367  ;  Story, 
Partn.  §175;  1  Sim.  &  S.  Ch.  124;  9  Sim. 
Ch.  607  ;  11  Serg.  &  R.  Penn.  41,  48  ;  3  Kent, 
Comm.  61,  nor  to  make  use  of  the  partner- 
ship stock  for  his  own  private  benefit,  Mosely, 

3  ;  Collyer,  Partn.  §  196  ;  6  Madd.  Ch.  367  ; 

4  Beav.  Rolls,  534 ;  16  id.  485  ;  17  Ves.  Ch. 
298  ;  1  Macn.  &  G.  294 ;  1  Sim.  Ch.  52,  nor 
to  introduce  a  stranger  into  the  concern.  Coll- 
yer, Partn.  |§  8,  192 ;  7  Pick.  Mass.  238 ;  8 
Watts  &  S.  Penn.  63 ;  16  Ohio,  166.  Each 
partner  should  keep  precise  accounts,  and  have 
them  always  ready  for  inspection.  Collyer, 
Partn.  §  189;  2  Jac.  &  W.  Ch.  558;  Story, 
Partn.  §  181  ;  16  Ves.  Ch.  51 ;  1  Lindley, 
Partn.  665,  666 ;  3  Beav.  Rolls,  388,  note ;  1 
DeGex  &  S.  692;  12  Sim.  Ch.  460;  2  Phill. 
222  ;  3  Younge  &  C.  655 ;  20  Beav.  Rolls,  219. 

2^.  In  all  ordinary  matters  relating  to  the 


PARTNERSHIP 


291 


PARTNERSHIP 


partnership,  the  powers  of  the  partners  are 
coextensive,  and  neither  has  a  right  to  exclude 
another  from  an  equal  share  in  the  manage- 
ment of  the  concern  or  from  the  possession 
of  the  partnership  effects.  Colly er,  Partn. 
^  190 :  2  Paige,  Ch.  N.  Y.  310 ;  IG  Ves.  Ch. 
CI ;  2  Jac.  &  W.  Ch.  558 ;  1  Lindley,  Partn. 
404.  A  partner  ought  not  to  transcend  the 
ordinary  privileges  of  a  partner  by  incurring 
extravagant  and  unnecessary  expense  in  the 
management  of  the  concern,  though  for  part- 
nership purposes.    Collyer,  Partn.  ^  191. 

The  weight  of  authority,  it  is  said  by  Mr. 
Chancellor  Kent,  is  in  favor  of  the  power  of 
a  majority  of  the  firm,  acting  in  good  faith, 
to  bind  the  minority  in  the  ordinary  transac- 
tions of  the  partnership  and  when  all  have 
been  consulted.  3  Kent,  Comm.  45  and  note. 
See,  also,  Story,  Partn.  ^  123  and  notes ;  3 
Chitty,  Comm.  Law,  234  ;  6  Ves.  Ch.  777  ;  5 
Brown,  Pari.  Cas.  47G,  489;  Turn.  &  II.  Ch. 
510,  525  ;  3  Johns.  Ch.  N.  Y.  400,  405,  406 ; 
iid.  473;  1  Vern.  Ch.  465. 

It  is  the  duty  of  those  upon  whom,  by  ap- 
pointment or  otherwise,  it  devolves,  after  the 
dissolution  of  a  firm,  to  wind  up  the  affairs 
of  the  partnership,  to  act  for  the  best  advan- 
tage of  the  concern,  to  make  no  inconsistent 
use  of  the  property,  and  to  seek  no  private 
advantage  in  the  composition  of  debts  or  in 
any  other  transaction  in  the  performance  of 
this  business.  1  Taunt.  104  ;  1  Swanst.  Ch. 
507  ;  2  id.  627.  Nor,  in  this  case,  can  any 
partner  claim  any  commission  for  getting  in 
the  debts,  or,  in  any  other  particular,  reward 
or  compensation  for  his  trouble.  1  Knapp, 
Priv.  Counc.  ^12  ;  3  Kent.  Comm,  64,  note  ; 
Story,  Partn.  f  331  and  note ;  17  Pick.  Mass. 
519;  4Gratt.  Va.  138;  Collyer,  Partn.  |  199 
and  note.  But  in  16  Vt.  613,  a  partner  who 
performed  services  in  settling  up  the  affairs 
of  a  firm  after  dissolution  was  allowed  com- 
pensation for  them.    See,  also,  15  Mass.  120. 

PARTNERSHIP.  In  Contracts.  A 
^^oluntary  contract  between  two  or  more  per- 
sons for  joining  together  their  money,  goods, 
labor,  and  skill,  or  any  or  all  of  them,  in 
some  lawful  commerce  or  business,  under  an 
understanding,  express,  or  implied  from  the 
nature  of  the  enterprise,  that  there  shall  be  a 
communion  of  profit  and  loss  between  them, 
will  constitute  a  partnership.  Collyer,  Partn. 
§  2 ;  10  Me.  489 ;  3  Harr.  N.  J.  485  ;  5  Ark. 
278. 

3.  The  law  of  partnership,  as  administered  in 
England  and  in  the  United  States,  rests  on  a  founda- 
tion composed  of  three  materials, — the  common  law, 
the  law  of  merchants,  and  the  Roman  law.  Collyer, 
Partn.  ^  1. 

\n  agreement  that  something  shall  be  attempted 
with  a  view  to  gain,  and  that  the  gain  shall  be 
shared  by  the  parties  to  the  agreement,  is  the  grand 
characteristic  of  every  partnership,  and  is  the  lead- 
ing feature  in  every  definition  of  the  term.  See  1 
Lindley,  Partn.  1,  6,  where  many  definitions  are 
collected. 

But  every  association  of  persons  engaged  in 
trade  with  a  view  to  share  the  profits  arising  there- 
from is  not  necessarily  a  partnership :  it  may  be  a 
corporation.  There  are,  however,  important  differ- 
ences between  a  corporation  and  an  ordinary  part- 


nership. A  corporation  is  a  fictitious  person, 
oreated  by  special  authority,  and  endowed  by  that 
authority  with  a  capacity  to  acquire  rights  and  to 
incur  obligations  as  a  single  individual.  It  cod- 
sists  of  a  numl)er  of  persons;  but  they  transact 
business  only  collectively,  as  one  fictitious  whole, 
and  that  wh(de  is  treated  as  different  from  tlie  i>er- 
sonfl  composing  it;  whereas  the  rights  and  liabili- 
ties of  a  partnership  are  the  rights  and  liabilities 
of  the  partners,  and  are  enforceaMc  by  and  against 
them  individually.  6  Ves.  Ch.  77;i;  y  Ves.  &  11. 
Ch.  Ir.  180. 

3.  In  order,  then,  to  constitute  a  partnership, 
properly  so  called,  it  is  requisite — Jirnt,  that  there 
shall  be  two  or  more  persons  who  have  agreed  that 
some  business  shall  be  carried  on  for  their  common 
profit ;  and,  necontiiij,  that  the  profits  shall  be  .shared 
amongst  them,  not  as  members  of  a  body  corpor.-.te, 
but  merely  as  individuals  who  have  entered  into 
an  agreement  to  that  effect.  Although  the  usual 
characteristics  of  an  ordinary  partnership  are  a 
community  of  interest  in  profits  and  losses,  a  com- 
munity of  interest  in  the  capital  to  be  employed, 
and  a  community  of  power  in  the  management  of 
the  business  engaged  in,  still,  perhajjs,  nothing  can 
be  said  to  be  absolutely  essential  to  the  existence 
of  a  partnership  except  a  community  of  interest  in 
profits. 

It  is  not  essential  to  the  existence  of  a  partner- 
ship that  there  should  be  any  joint  capital  or  stock. 
2  Bingh.  170.  Sometimes  a  partnership  exists  be- 
tween parties  merely  as  the  managers  and  disposers 
of  the  goods  f)f  others.  Collyer,  Partn.  jJ  17;  4 
Barnew.  Aid.  663 ;  15  Johns.  N.  Y.  409,  422.  So, 
it  seems,  two  persons  may  be  owners  in  common  of 
property,  and  also  partners  in  the  working  and 
management  of  it  for  their  common  benefit.  Coc/c- 
buni,  C.  J.,  2  C.  B.  N.  s.  357,  363;  8  Carr.  &  P. 
345;  3  Kay  &  J.  Ch.  271;  16  Mees.  &  W.  Exch. 
503;  2  Stark.  107  ;  3  Ross,  Lead.  Cas.  529. 

A  partner.-hip  may  exist  in  a  single  transaction 
as  well  as  in  a  series.  Dav.  Dist.  Ct.  323 ;  3  Kent, 
Comm.  30  ;  Story,  Partn.  ^  81 ;  2  Ga.  18;  3  C.  B. 
641,  651;  9  id.  458. 

4.  Pai-tnerjhips  are  sometimes  divided  into  part- 
nerships between  the  parties,  which  only  are  pro- 
perly so  called,  and  partnerships  as  to  third  per- 
sons, which  are  not,  in  fact,  partnerships  at  all. 
What  is  called  a  partnership  as  to  third  persons 
(q-MosZ-partnership)  is  nothing  more  than  the  rela- 
tion existing  between  a  number  of  persons,  who,  in 
consequence  of  certain  acts  done  by  them,  are  held 
liable  for  each  other's  conduct,  as  if  they  had 
actually  entered  into  a  contract  of  partnershii 
amongst  themselves. 

There  can  be  no  doubt  whatever  that  persons  en- 
gaged in  any  trade,  business,  or  adventure,  upon 
the  terms  of  sharing  the  profits  and  losses  arising 
therefrom,  are  partners  in  that  trade,  business,  or 
adventure.  This  is  a  true  partnership,  both  between 
the  parties  and  quoad  third  persons.  2  Bingh.  n.  c. 
108;  3  Jur.  n.  s.  31,  in  the  Rolls;  Bisset,  Partn. 
Eng.  ed.  7. 

An  agreement  to  share  profits,  nothing  being 
said  about  the  losses,  amounts  prima  faci-!  to  aa 
agi'oement  to  share  losses  also :  so  that  an  agree- 
ment to  share  profits  is  prima  facie  an  agreement 
for  a  partnership ;  and,  accordingly,  it  is  held  that, 
unless  an  agreement  to  the  contrary  is  shown,  per- 
sons engaged  in  any  business  or  adventure,  and 
sharing  the  profits  derived  from  it,  are  partners  as 
regards  that  business  or  adventure.  Still,  it  cannot 
be  said  that  persons  who  share  profits  are  necessa- 
rily arid  inevitably  partners  in  the  proper  sense  of 
the  word.  1  Campb.  330 ;  9  C.  B.  440.  But  see 
38  N.  H.  287. 

The  doctrine  that  where  there  is  a  community  of 
profit  there  is  a  partnership  is,  however,  so  strong 
that,  even  if  community  of  loss  be  expressly  stipu- 
lated against,  partnership  may  nevertheless  8ub- 


PARTNERSHIP 


292 


PARTNERSHIP 


sist.  1  H.  Blackst.  49;  3  Mees.  &  W.  Exch.  367; 
6  id.  119;  2  Bligh,  270;  3  €.  B.  32,  39;  Chitty, 
Contr.  1860  ed.  200,  261. 

Whether  persons  are  partners  or  not  inter  ae  is  a 
question  of  intention,  to  be  decided  by  a  considera- 
tion of  the  whole  agreement  into  which  they  have 
entered,  and  ought  not  to  be  made  to  turn  upon  a 
consideration  of  only  a  part  of  its  provisions.  1 
Huds.  &  B.  Ch.  Ir.  83;  15  Mees.  &  W.  Exch.  292  ; 
Chitty,  Contr.  1860  ed.  257;  2  Barnew.  &  C.  401; 

1  Stor.  C.  C.  371;  3  Kent,  Comm.  27;  3  C.  B.  250; 

2  Bligh,  270. 

5.  A  ^imsj'-partnersbip,  or,  as  it  is  usually  called, 
a  partnership  as  to  third  persons,  arises  by  opera- 
tion of  law  acting  upon  the  conduct  of  the  parties, 
under  which  persons  who  are  not  partners  incur 
liabilities  as  if  they  were,  without  any  intention  to 
do  so.  1  Stor.  C.  C.  371 ;  Coilyer,  Partn.  74,  83  ; 
Bisset,  Partn.  Eng.  ed.  9.  This  may  result  from 
sharing  profits,  or  from  persons  holding  themselves 
out  as  partners.  The  doctrines  by  which  a  qnasi- 
partnership  results  from  merely  sharing  profits  seem 
to  find  their  root  in  decisions  of  a  comparatively 
modern  date.  They  are  certainly  not  very  clearly 
defined,  and  sometimes  lead  to  great  apparent  in- 
justice. 1  Lindl.  Partn.  34  et  seq.  ;  2  W.  Blackst. 
998;  2  H.  Blackst.  235;  18  C.  B.  617;  3  N.  H. 
287,  307.    See  Partners. 

It  has  been  held  that  a  9?«a«{-partnership  subsists 
between  merchants  who  divide  the  commissions  re- 
ceived by  each  other  on  the  sale  of  goods  recom- 
mended or  "influenced"  by  the  one  to  the  other.  4 
Barnew.  &  Aid.  663.  So  between  persons  who 
agree  to  share  the  profits  of  a  single  isolated  adven- 
ture, 9  C.  B.  431 ;  1  Rose.  Bank.  297  ;  4  East,  144; 
and  between  persons  one  erf  whom  is  in  the  position 
of  a  servant  to  the  others,  but  is  paid  a  share  of  the 
profits  instead  of  a  salary,  1  Deac.  Bank.  341 ;  1 
Rose,  Bank.  92  ;  and  between  persons  one  of  whom 
is  paid  an  annuity  out  of  the  profits  made  by  the 
others,  17  Ves.  Ch.  412 ;  8  Bingh.  469,  or  an  an- 
nuity in  lieu  of  any  share  in  those  profits.  2  W. 
Blackst.  999.  So  between  the  vendor  and  pur- 
chaser of  a  business,  if  the  former  guarantees  a 
clear  profit  of  so  much  a  year,  and  is  to  have  all 
profits  beyond  the  amount  guaranteed.  3  C.  B.  641. 
The  character  in  which  a  portion  of  the  profits  is 
received  does  not  aff'ect  the  result.  See  1  Maule  k 
S.  412;  10  Ves.  Ch.  119;  21  Beav.  Rolls,  164 ;  5  Ad. 
&  E.  28;  11  C.  B.  406.  Persons  who  share  profits 
are  (yua^i-partners  although  their  community  of 
interest  may  be  confined  to  the  profits.  2  Barnew. 
&  C.  401;  5  Jur.  650. 

6.  The  other  mode  in  which  persons  not  partners 
become  liable  as  if  they  were  is  by  so  conducting 
themselves  as  to  lead  other  people  to  suppose  that 
they  are  willing  to  be  regarded  by  them  as  if  they 
were  partners  in  point  of  fact.  This  is  nothing 
more  than  an  application  of  the  general  principle 
of  estoppel  by  conduct  acted  on.  6  Ad.  &  E.  469 ; 
2  Exch.  654;  19  Ves.  Ch.  461;  2  H.  Blackst.  235; 
2  Chitty,  Bail,  120.  A  person  is  not  relieved  from 
liabilitj'  though  he  was  induced  by  the  fraud  of 
others  to  hold  himself  out  as  a  partner  with  them. 
See  5  Bingh.  521 :  1  Rose,  Bank.  69.  The  holding 
out  must  have  been  before  the  contract  with  the 
third  person  was  entered  into,  and  must  have  been 
the  inducement  to  it.  7  Barnew.  &  C.  409;  10  id. 
140  ;  1  Fost.  &  F.  344;  6  Bingh,  776;  3  C.  B.  32; 
2  Campb.  617. 

A  person  does  not  become  liable  as  partner  be- 
cause he  represents  that  he  is  willing  or  intends  to 
become  one.  9  Barnew.  <t  C.  632 ;  15  Mees.  &  AV. 
Exch.  517.  The  question  whether  one  has  so  held 
himself  out  as  to  bccon)e  liable  as  partner  is  one  of 
fact,  to  be  determined  by  a  jury.  6  Mann.  &  G.  928  ; 
6  Q.  B.  477. 

A  sub-partnership  is  as  it  were  a  partnership 
within  a  partnership.  If  several  persons  are  part- 
ners, and  one  of  them  agrees  to  share  the  profits 


derived  by  him  with  a  stranger,  this  will  constitute 
what  is  called  a  sub-partnership :  that  is  to  say,  it 
makes  the  parties  to  it  partners  inter  se  ;  but  it  iu 
no  way  afi'ects  the  other  members  of  the  principal 
firm,  nor  is  there  any  authority  for  saying  that  be 
cause  the  stranger  shares  the  profits  of  that  one 
partner  he  can  be  made  liable  to  persons  dealing  with 
the  firm  as  if  he  were  a  partner  therein.  1  Lindl 
Partn.  52,  53  ;  Coilyer,  Partn.  §  194.  See  Partners. 

7»  The  proposition  being  admitted  that  a  parti 
cipation  in  profits  will  render  the  participator  liable 
as  a  partner  to  third  persons,  the  most  diflicult 
question,  and  one  that  requires  further  considera 
tion,  remains,  viz. :  what  kind  or  degree  of  partici 
pation  will  produce  that  efi'ect?    Bisset,  Partn.  10 

It  seems  to  be  no  longer  true,  as  a  general  pro 
position,  that  receiving  a  certain  proportion  of  the 
profits,  whether  gross  or  net,  Coilyer,  Partn.  ^  35 
and  note,  arising  from  a  union  in  business  of  the 
capital  of  one  man  and  the  labor,  services,  or  skill 
of  another,  necessarily  creates  a  partnership. 
Gray,  Mass.  59,  60;  6  Mete.  Mass.  92;  10  id.  303 
12  Conn.  69;  13  N.  H.  185;  Coilyer,  Partn.  ^  44, 
note ;  15  Me.  294  ;  30  id.  386  ;  3  C.  B.  xN.  s.  562,  563 
See  18  Johns.  N.  Y.  34;  18  Wend.  N.  Y.  175 
Conn.  347  ;  Coilyer,  Partn.  ^  38.    Although  a  pre 
sumption  of  partnership  would  seem  to  arise  in  such 
a  case,  Coilyer,  Partn.  \  85,  still,  the  particular  cir- 
cumstances of  the  case  may  be  such  as  to  repel  this 
presumption.    It  may  appear  that  the  share  of  the 
profits  taken  was  merely  a  compensation  to  one 
party  for  labor  and  service,  or  for  furnishing  the 
raw  materials,  or  a  mill-privilege,  or  a  factory,  or 
the  like,  from  which  the  other  is  to  earn  profit 
Story,  Partn.  ^  36 ;  5  Gray,  Mass.  60;  Coilyer, 
Partn.  g  85;  8  Cush.  Mass.  556,  662  ;  3Kent,  ,Comm 
33;  6  Halst.  N.  J.  181.  -      ■  '  '  -  ^'  ?  *  '  • 

Subtle  distinctions  have  been  taken  between 
payment  out  of  profits  and  a  payment  varying  with 
them,  and  between  an  agreement  to  share  profits  as 
such  and  an  agreement  to  share  profits  not  as  pro 
fits  but  as  something  else.  It  has  been  held  that  in 
order  to  render  a  man  liable  because  he  participates 
in  the  profits  he  must  have  a  specific  interest  in  the 
profits  themselves,  as  profits.  17  Ves.  Ch.  404, 419 
1  Rose,  Bank.  89;  18  Ves.  Ch.  300  ;  Bisset,  Partn. 
13 ;  Coilyer,  Partn.  40,  41 ;  4  Paige,  Ch.  N.  Y^ 
148  ;  12  Conn.  69  ;  6  Mete.  Mass.  82  ;  6  Den.  N.  Y. 
180;  3  Kent,  Comm.  34.  The  distinction  is  be- 
tween payments  out  of  profits  as  such  and  pay- 
ments not  out  of  them  as  such.  This  distinction 
must  be  considered  as  settled  in  point  of  law.  See 
1  Lindl.  Partn.  39 ;  3  C.  B.  32. 

In  other  cases,  it  is  held  that  in  order  to  render  a 
man  liable  as  partner  he  must  have  a  specific  in- 
terest in  the  profits  as  a.  principal  trader.  Coilyer, 
Partn.  ^  25;  12  Conn.  77,  78;  1  Den.  N.  Y.  337;  15 
Conn.  73  ;  10  Mete.  Mass.  303.  But  in  reference 
to  these  positions  the  questions  arise.  When  may  a 
party  be  said  to  have  a  specific  interest  in  the  profits, 
as  profits  ?  when,  as  a  principal  trader? — questions  in 
themselves  very  nice,  and  difiicult  to  determine.  See 
6  Mete.  Mass.  82;  12  Conn.  77.  These  subtleties 
are  attributable,  on  the  one  hand,  to  the  establish- 
ment of  the  rule  that  persons  who  share  profits  shall 
be  answerable  for  the  losses,  and,  on  the  other,  to  a 
disinclination  to  apply  that  principle  to  cases  in 
which  it  is  clear  that  those  who  share  the  profits 
never  intended  to  become  {)artners  inter  se. 

8.  There  are  other  cases  in  which  considerable 
stress  is  laid  on  the  right  to  an  account  of  pro- 
fits, as  furnishing  a  rule  of  liability.  Bisset,  Partn. 
14,15;  3  Kent,  Comm.  25,  note;  1  Rose,  Bank.  91 ; 
Casey,  Partn.  11,  note  (1);  18  Wend.  N.  Y.  184, 
185;  3  C.  B.  N.  s.  544,  561;  Story,  Partn.  49. 
But,  although  it  is  true  that  every  partner  must 
have  a  right  to  an  account,  it  seems  not  to  be 
equally  true  that  every  party  who  has  a  right  to  an 
account  is  a  partner.  5  Gray,  Mass.  68;  Bisset, 
Partn.  14;  7  Jarman,  Conv.  Sweet  ed.  11,  n.  (a). 


PARTNERSHIP 


293 


PARTNERSHIP 


There  are  still  other  cases,  which  rely  upon  a  dis- 
tinction between  receiving  a  share  of  the  gross  pro-  ' 
fits  or  returns  nnd  a  share  of  the  net  profits,  in 
which  it  is  held  that  shiiring  the  net  profits  makes 
one  liable  as  a  partner,  but  sharing  the  gross  profits 
or  returns  dcies  not.  But  the  decisions  are  neither 
clear  nor  uniform  upon  this  distinction.  Collyer, 
Partn.  ^  H5,  note;  1  Campb.  329;  Story,  Partn.  ^ 
34;  3  Kent,  Comm.  25,  note;  3  Mees.  <fc  W.  Exch'. 
357,  360.  3(51 ;  3  C.  B.  N.  s.  544,  562  ;  9  C.  B.  432; 
2  11.  Blackst.  590  ;  4  Maule  &  S.  240. 

It  has  frequently  been  held  that  a  partnership 
does  not  result  from  an  agreement  to  share  gross 
returns.  If  several  persons  make  advances  for  a 
common  object,  and  agree  to  share  the  gross  re- 
turns in  proportion  to  their  advances,  this  does  not 
create  such  acommunity  of  interest  in  profits  or  losses 
as  to  make  such  persons  partners.  9Bingh.297;  Sel. 
Cas.  in  Ch.  9  ;  2  C.  B.  n.  s.  357 ;  4  Maule  &  S.  240. 

9.  The  truth  is,  the  doctrines  upon  which  men 
are  held  liable  as  partners  often  tend  so  strongly  to 
work  injustice  that  many  refinements  have  been 
ingrafted  upon  them,  and  the  decisions  have  fre- 
quently been  made  to  turn  upon  their  own  peculiar 
circumstances :  so  that  no  clear  and  intelligible  prin- 
ciple running  throuuh  and  governing  all  the  cases  can 
easily  be  extracted  from  them.  Without  a  careful 
examination  of  the  disturbing  causes,  it  would  cer- 
tainly be  difiicult  to  see  why  receiving  a  certain  share 
of  the  profits  for  labor  and  services,  or  for  furnishing 
raw  materials,  etc.,  should  not  be,  while  receiving 
a  certain  share  of  the  profits  for  a  loan  of  money 
ehould  be,  held  to  render  a  man  liable  as  a  partner. 

A  loan  of  money  to  be  repaid  with  interest,  how- 
ever exorbitant,  and  however  much  it  may  dra  n 
the  resources  of  the  borrower,  does  not  constitute 
a  <^((a'<i-partnership  between  him  and  the  lender; 
but  it  is  otherwise  if  profits  are  pointed  at  as  a  form 
for  payment.  2  W.  Blackst.  999  ;  5  Barnew.  &  Aid. 
954;  1  Jac.  Ch.  144;  Bisset,  Partn.  24,  25;  1 
Lindl.  Partn.  40 ;  6  Pick.  Mass.  372. 

The  principal  distinction  between  a  partnership 
and  a  mere  agency  is  that  a  partner  has  a  commu- 
nity of  interest  with  the  other  partners  in  the  busi- 
ness and  responsibilities  of  the  partnership, — some- 
times both  in  the  stock  and  profits,  and  sometimes 
only  in  the  profits, — whereas  an  agent,  as  such,  has 
no  interest  in  either,  Stdry.  Partn.  ^  1  ;  Bisset, 
Partn.  35  ;  16  Yes.  Ch,  49;  17  id.  404;  4  Barnew. 
&  C.  67  ;  1  Deac.  Bank.  3t].  "The  authority  of  a 
partner  is  much  more  extensive  than  that  of  a  mere 
agent."    10  N.  H.  16. 

10.  The  formation  of  a  contract  of  part- 
nership does  not  require  any  particular  for- 
mality. It  is,  in  general,  sufficient  that  it  is 
formed  by  the  voluntary  consent  of  the  parties, 
whether  that  be  express  or  implied,  whether 
it  be  by  written  articles,  tacit  approbation, 
or  by  parol  contract,  or  even  by  mere  acts. 
Story,  Partn.  §  86  ;  3  Kent,  Comm.  27  ;  Dav. 
Dist.  Ct,  320 ;  4  Conn.  568.  There  are  but 
f^w  cases  in  which  a  writing  is  necessary. 
Hnder  the  Statute  of  Frauds,  where  there  is  an 
atrreement  that  a  partnership  shall  commence 
a*-  some  time  more  than  a  year  from  the 
making  of  the  agreement,  a  writing  is  neces- 
sary, 5  Barnew.  &  C.  108.  With  respect  to 
th^.t  part  of  the  Statute  of  Frauds  relating  to 
lands,  it  has  been  held  that  a  partnership 
m»y  be  constituted  without  writing,  20  Beav. 
Rf^lls,  449,  and  that  if  a  partnership  is  proved 
to  exist  it  may  be  shown  that  its  property 
consists  of  land,  although  there  is  no  signed 
agreement  between  the  parties.  5  Ves.  Ch. 
509  ;  10  Gush.  Mass.  458.  So  it  has  been  held 
that  an  agreement  tt»  form  a  partnership  for  i 


the  purpose  of  buying  and  selling  land  may 
be  |)roved  by  parol,  5  Hare,  Ch.  369 ;  2 
Phi  11.  266  ;  2  Hall  &  T.  224.  But  this  latter 
proposition  is  not  generally  conceded.  Tlioc(ni- 
trary  doctrine  has  the  weight  of  learned  opi- 
nions. See  Dav.  Dist.  Ct.  320  ;  St(»ry,  Partn.  | 
83  ;  3  Sumn.  C.  C.  458-471 ;  2  DeGex  &  J.  52. 

11.  Whether  a  partnership  exists  or  not  in 
a  particular  case  is  not  a  mere  question  of 
fact,  but  one  mixed  of  law  and  fact.  It  is, 
nevertheless,  generally  to  be  decided  by  a 
jury.  See  3  llarr.  N.  J.  358;  4  id.  190";  6 
(Conn.  347 ;  1  Nott  &  M'C.  So.  C.  20  ;  1  Cainos, 
N.  Y.  184;  2  Fla.  541 ;  9  C.  B.  457  ;  3  C.  B 
N.  s.  562,  563;  9  Bingh.  117. 

The  existence  of  a  partnership  may  be 
proved  by  showing— ^rs^,  a  distinct  agree- 
ment for  a  partnership :  or,  second,  an  agree- 
ment to  share  profit  and  loss  ;  either  of  these 
will  be  conclusive  :  or,  third,  an  agreement  to 
share  profits, — which  will  be  strong  evidence 
of  a  partnership :  or,  fourth,  circumstances 
sufficient  to  establish  a  ^wa^i-partnership, 
which,  being  proved,  is  held  to  he  prima  facie 
evidence  of  a  real  partnership. 

Where  there  is  no  written  agreement,  the 
evidence  generally  relied  upon  to  prove  a 
partnership  is  the  conduct  of  the  parties,  the 
mode  in  which  they  have  dealt  with  each 
other,  and  the  mode  in  which  each  has,  with 
the  knowledge  of  the  others,  dealt  with,  other 
persons.  This  can  be  shown  by  the  books  of 
account,  by  the  testimony  of  clerks,  agents, 
and  other  persons,  by  letters  and  admissions, 
and,  in  short,  by  any  of  the  modes  in  which 
facts  can  be  established.  As  to  the  presump- 
tion arising  from  the  joint  retainer  of  solicit- 
ors, see  20  Beav.  Rolls,  98 ;  7  DeGex,  M.  & 
G.  239  ;  7  Hare,  Ch.  159,  164.  For  cases  in 
w^hich  partnership  has  been  inferred  from 
various  circumstances,  see  4  Russ.  Ch.  247  ; 
2  Bligh,  N.  s.  215  ;  3  Brown,  Pari.  Cas.  548 ; 
5  id.  482;  1  Stark.  81 ;  2  Campb.  45. 

12.  It  is  said  by  Mr.  Collyer  that  "  per- 
haps it  may  be  laid  down  generally  that  a 
partnership  may  exist  in  any  business  or 
transaction  which  is  not  a  mere  personal 
office,  and  for  the  performance  of  which  pay- 
ment may  be  enforced."  Collyer,  Partn.  1 56. 

There  may  be  a  partnership  to  trade  in 
land.  21  Me.  421,  422  ;  Dav.  Dist.  Ct.  320  ;  7 
Penn.  St.  165  ;  10  Cush.  Mass.  458  ;  4  Conn. 
568;  Story,  Partn.  U  82,  83.  A  ship,  as  well 
as  any  other  chattel,  may  be  held  in  strict 
partnership.  3  Kent,  Comm.  154 ;  Collyer, 
Partn.  g  1185;  12  Mass.  54;  6  Me.  77  ;  ibid, 
427.  But  ships  are  generally  owned  by  parties 
as  tenants  in  common ;  and  they  are  not 
in  consequence  of  such  ownership  to  bo 
considered  as  partners.  Collyer,  Partn.  | 
1185 ;  6  Me.  77  ;  6  Pick.  Ma^s.  120 ;  24  id. 
19  ;  Abbott,  Shipp.  97 ;  14  Conn.  404 :  14 
Penn.  St.  34,  38 ;  T.  Raym.  15  ;  8  Gill,  Md. 
92.  The  same  is  true  of  any  other  species  of 
property  in  w^hich  the  parties  have  only  a 
community  of  interest.  Pothier,  Partn.  n.  2  ; 
Story,  Partn.  ^  3  ;  1  Lindlev,  Partn.  30  etseq, ; 
8  Exch.  825  ;  21  Beav.  Rolls,  536 ;  24  id.  283 . 
2  C.  B.  N.  s.  357. 


PARTNERSHIP 


294 


PARTNERSHIP 


13.  Partnerships,  in  regard  to  their  extent, 
are  divided  by  writers  on  partnership  law 
into  universal,  general,  and  particular,  special 
or  limited.  There  were  two  kinds  of  univer- 
sal partnerships  under  the  Roman  law:  one, 
by  which  the  parties  agreed  to  put  in  com- 
mon all  their  property,  both  present  and 
future  ;  the  other,  by  which  they  put  in  com- 
mon all  they  might  acquire,  during  its  con- 
tinuance, from  every  kind  of  commerce.  The 
former  they  were  not  presumed  to  have 
entered  into  except  by  express  contract :  the 
latter  they  were  considered  to  enter  into  wnen 
they  contracted  together  a  partnership  without 
any  further  explanation.  Pothier,  Partn.  nn. 
29,  43.  Such  contracts  are  said  to  be  within 
the  scope  of  the  common  law  ;  but  they  are  of 
very  rare  existence.  Story,  Partn.  1 72;  5  Mas. 
C.  C.  183.  General  partnerships  are  properly 
such  M^here  parties  carry  on  all  their  trade 
and  business,  whatever  it  may  be,  for  their 
joint  benefit  or  profit,  whether  the  capital 
stock  be  limited  or  not,  or  the  contributions 
of  the  partners  be  equal  or  unequal.  Cowp. 
814,  816.  But  where  the  parties  are  engaged 
in  one  branch  of  trade  or  business  only,  they 
would  be  usually  spoken  of  as  engaged  in 
a  general  partnership.    Story,  Partn.  ^  74. 

14.  Special  partnerships,  in  the  sense  of 
the  common  law,  are  those  which  are  formed 
for  a  special  or  particular  branch  of  business, 
as  contradistinguished  from  the  general  busi- 
ness or  employment  of  the  parties,  or  of  one 
of  them.  Cowp.  814,  816  ;  Story,  Partn.  §  75. 
These  seem  to  embrace  what  are  called  by 
Pothier,  Partn.  c.  2,  s.  2,  particular  partner- 
ships, under  which  head  he  includes  partner- 
ships in  particular  things  or  in  one  thing 
alone,  partnerships  for  the  exercise  of  a  profes- 
sion, and  partnerships  for  commerce  or  trade, 
Pothier,  Partn.  nn.  54,  55,  56  ;  these  latter  he 
again  divides  into  partnerships  en  nam  col- 
lectif,  into  which  two  or  more  traders  enter  to 
carry  on  in  common  a  certain  commerce  in 
the  name  of  all  the  partners  ;  partnerships  en 
commandite,  into  which  a  trader  enters  with 
a  private  person  (a  person  not  in  trade)  for  a 
trade  to  be  carried  on  in  the  name  of  the 
trader  only,  and  to  which  the  other  contract- 
ing party  contributes  only  a  certain  sum  of 
money,  which  he  brings  into  the  capital  of  the 
partnership,  under  an  agreement  that  he  is 
to  have  a  certain  share  of  the  profits,  if  there 
are  any,  and  to  bear,  in  the  contrary  event, 
the  same  share  of  the  losses,  in  which,  never- 
theless, he  will  only  be  bound  to  the  extent 
of  the  capital  he  has  brought  into  the  part- 
nership, Pothier,  Partn.  n.  60 ;  the  anomj- 
mons  or  unknown  partnership,  which  is  also 
called  compte  en  participation  ;  this  is  that  by 
which  two  or  more  persons  agree  to  take  a 
share  in  a  certain  business,  which  shall  be 
carried  on  by  one  or  the  other  of  them  in  his 
own  name  alone.    Pothier,  Partn.  n.  61. 

15.  The  above  classification  is  of  very 
little  practical  importance,  except  for  the 
purpose  of  distinguishing  cases  in  which  per- 
sons are  partners  in  some  trade  or  business 
penerally,  from  those  in  which  they  are  part- 


ners in  some  particular  transaction  or  ad 
venture  only.  If  persons  who  are  not  part- 
ners at  all  agree  to  share  the  profits  and 
losses,  or  the  profits,  of  one  particular  trans- 
action or  adventure,  they  become  partners  as 
to  that  transaction  or  adventure,  but  not  as 
to  any  thing  else.  See  1  Esp.  29  ;  9  C.  B.  431 

2  Barnew.  &  C.  401 ;  20  Beav.  Rolls,  98  ; 
DeGex,  M.  &  G.  Exch.  239 ;  7  Hare,  164 ; 
Younge  &  C.  Exch.  481.  ~ 

There  is  another  class  of  partnerships,  al- 
lowed by  charter  in  England,  and  by  statute 
in  most  of  the  American  states,  generally 
called  "limited  partnerships,"  in  which  it  is 
provided  that  there  shall  be  one  or  more  part- 
ners, called  general  partners,  with  unre- 
stricted liability,  and  one  or  more,  called 
special  partners,  who  shall  be  liable  only  to 
the  extent  of  the  capital  furnished  bv  them. 
Collyer,  Partn.  b.  1,  c.  1,  s.  3,  §  99  etseq.;  3 
Kent,  Comm.  34.  These  have  the  general 
characteristics  of  partnerships ewcowwanc7zYe. 

16.  There  is  still  another  class  of  partner- 
ships, called  "joint-stock  companies."  These 
generally  embrace  a  large  number  of  persons, 
but,  except  under  express  statute  provisions, 
the  members  are  liable  to  the  same  extect  as 
in  ordinary  partnerships.  Collyer,  Partn.  I 
1078;  Story,  Partn.  |  164 ;  4  Mete.  Mass. 
535  ;  2  Carr.  &  P.  408,  n. ;  1  Ves.  &  B.  Ch. 
Ir.  157. 

Partnerships,  in  regard  to  their  duration, 
may  be  distinguished  by  the  terms  of  part- 
nerships at  will,  or  unlimited,  and  partner- 
ships for  a  term,  or  limited. 

A  partnership  at  will  is  presumed  to  con- 
tinue so  long  as  the  parties  are  in  life  and  of 
capacity  to  continue  it.  1  Greenleaf,  Ev.  § 
42 ;  Story,  Partn.  g  271 ;  9  Humphr.  Tenn. 
750.  A  partnership  for  a  term  is  presumed 
to  continue  during  the  term,  provided  the 
parties  are  in  life  dnd  of  legal  capacity  to 
continue  it.  See  7  Mo.  29  ;  Collyer,  Partn.  | 
105.  But  in  no  case  will  the  law  presume  a 
partnership  to  exist  beyond  the  life  of  the 
parties.  1  Swanst.  Ch.  521 ;  1  Wils.  Ch.  181 ; 
Story,  Partn.  ^  84. 

ITT.  Dissolution  of.  A  partnership  may  be 
dissolved— hy  the  act  of  the  parties  ;  as, 
by  their  mutual  consent,  Story,  Partn.  §  268; 

3  Kent,  Comm.  54 ;  Pothier,  Partn.  n.  149  ; 
and  where  no  specified  period  is  limited  for 
the  continuance  of  the  partnership,  either 
party  may  dissolve  it  at  any  time.  4  Russ. 
Ch.  260  ;  1  Swanst.  Ch.  508  ;  3  Kent,  Comm. 
53,  54 ;  Gow.  Partn.  3d  ed.  109  ;  Story,  Partn. 
U  84,  272,  273.  See  5  Ark.  280.  Whether 
a  partnership  for  a  certain  time  can  be  dis- 
solved by  one  partner  at  his  mere  will  and 
pleasure  before  the  term  has  expired,  seems 
not  to  be  absolutely  and  definitively  settled. 
Story,  Partn.  I  275.  In  favor  of  the  right  of 
one  partner  in  such  cases,  see  3  Kent,  Comm. 
55;  17  Johns.  N.  Y.  525;  19  id.  538;  1 
Hoffm.  Ch.  N.  Y.  534 ;  3  Bland,  Ch.  Md.  074. 
Against  it,  see  Story,  Partn.  275,  276;  5 
Ark.  281;  4Wash.C.C.234;  Pothier,  Partn. 
152.  See,  also,  15  Me.  180 ;  Gow,  Partn.  3d 
ed.  218,  219,  225,  226  ;  1  Swanst.  Ch.  495 ;  16 


PARTNERSHIP 


295 


PARTNERSHIP 


Ves.  Ch.  5G  ;  Bisset,  Partn.  84.  As  against 
third  persons,  a  partner  may  certainly  with- 
draw from  a  partnership  at  his  pleasure.  3 
C.  B.  N.  s.  561. 

Second,  by  the  act  of  God:  as,  by  the  death 
of  one  of  the  partners  ;  and  this  operates  from 
the  time  of  the  death,  3  Mer.  Ch.  GIO  ;  0  Cow. 
N.  Y.  441  ;  Pothier,  Partn.  n.  144;  G  Conn. 
184;  2  How.  5G0 ;  7  Ala.  n.  s.  19;  Collyer, 
Piirtn.  ^  113  ;  3  Kent,  Comm.  55,  5G  ;  Story, 
Partn.  II  317,  319  ;  7  Pet.  594  ;  5  Mete.  Mass. 
575  :  Pick.  Mass.  519  ;  5  Gill,  Md.  1  ;  un- 
less there  be  an  express  stipulation  to  the 
contrary.    3  Madd.  Ch.  251 ;  2  How.  5G0. 

Third,  by  the  act  of  the  law:  as,  by  the  bank- 
ruptcy of  one  of  the  partners.  4  Burr.  2174  ; 
Cowp.448;  GVes.Ch.  126;  5  Maule  &  S.  340. 

Fourth,  by  a  valid  assignment  of  all  the 
partnership  effects  for  the  benefit  of  creditors, 
either  under  insolvent  acts,  Collyer,  Partn,  § 
1 12,  or  otherwise,  41  Me.  373,  and  by  a  sale  of 
the  partnership  effects  under  a  separate  execu- 
tion against  one  partner.  Collyer,  Partn.  ^ 
112  ;  Cowp.  445  ;  2  Ves.  &  B.  Ch.  Ir.  300  ;  3 
Kent,  Comm.  59.  But  the  mere  insolvency  of 
one  or  all  of  the  members  of  a  partnership 
does  not  of  itself  operate  a  dissolution.  24 
Pick.  Mass.  89.    See  1  Bland,  Ch.  Md.  408 ; 

2  Ashm.  Penn.  305  ;  Pothier,  Partn.  n.  148. 
18.  It  may  be  dissolved— ^/"/A,  by  the  civil 

death  of  one  of  the  partners.  Collyer,  Partn. 
^lU;  Pothier,  Partn.  n.  147.  But  the  ab- 
sconding of  a  party  from  the  state  does  not 
of  itself  operate  a  dissolution.  24  Pick.  Mass. 
89.    See  Story,  Partn.  g  298. 

Sixth,  by  the  breaking  out  of  a  war  between 
two  states  in  which  the  partners  are  domi- 
ciled and  carrying  on  trade.  16  Johns.  N.  Y. 
438  ;  3  Kent,  Comm.  62;  Story,  Partn.  H  315, 
316 ;  3  Bland,  Ch.  Md.  674. 

Seventh,  by  the  marriage  of  a  feme  sole 
partner.  4  Russ.  Ch.  2G0 ;  3  Kent,  Comm. 
55 ;  Story,  Partn.  I  306  ;  Collyer,  Partn.  §  115. 

Eighth,  by  the  extinction  of  the  subject- 
matter  of  the  joint  business  or  undertaking, 
16  Johns.  N.  Y.  401,  402  ;  Pothier,  Partn.  nn. 
5.  140-143  ;  Collyer,  Partn.  I  115,  and  by  the 
completion  of  the  business  or  adventure  for 
which  the  partnership  was  formed.  Pothier, 
Partn.  n.  143  ;  Story,  Partn.  \  280. 

Ninth,  by  the  termination  of  the  period  for 
which  a  partnership  for  a  certain  time  was 
formed.  Collyer,  Partn.  ^  119;  Pothier, 
Partn.  n.  139.  If  the  partnership  be  con- 
tinued, by  express  or  tacit  consent,  after  that 
period,  it  will  be  presumed  to  continue  on 
the  old  terms,  17  Serg.  &  R.  Penn.  165; 
Chitty,  Contr.  1860  ed.  285,  note,  but  as  a 
partnership  at  will. 

Tenth,  by  the  assignment  of  the  whole  of 
one  partner's  interest  either  to  his  copartner 
or  to  a  stranger,  Collyer,  Partn.  g  110,  note; 

3  Kent,  Comm.  59  ;  Story,  Partn.  ?P07,  308 ; 

4  Barnew.  &  Ad.  175  ;  17  Johns.  N.  Y.  525  ;  1 
Freem.  Ch.  Miss.  231;  8  Watts  &  S.  Penn. 
262;  where  it  does  not  appear,  that  the  as- 
signee acts  in  the  concern  after  the  assign- 
ment. 17  Johns.  N.  Y.  525  ;  8  Wend.  N.  Y. 
442 ;  5  Dan.  Ky.  213  ;  1  Whart.  Penn.  381 ; 


2  Dev.  No.  C.  Eq.  481.  But  see  14  Pick.  Mass. 
322,  where  it  was  ludd  that  this  would  not 
ipso  facto  work  a  dissolution. 

Eleventh,  by  the  award  of  arbitrators  ap- 
pointed under  a  clause  in  the  partnership 
articles  to  that  effect.  See  Bisset,  Partn.  8/ ; 
1  W.  Bhickst.  475  ;  4  Barnew.  k  Ad.  172. 

lf>.  A  partnership  for  a  term  may  be  dis- 
solved before  the  exi)iration  of  the  term,  by 
the  decree  of  a  court  of  equity  founded  (ui  the 
wilful  fraud  or  other  gross  misconduct  of  one 
of  the  partners,  Collyer,  Partn.  ^290  ;  Chitty, 
Contr.  18G0  ed.  285;  4  Beav.  Rolls,  502;  21 
id.  482 ;  2  Ves.  &  B.  Ch.  Ir.  299  ;  so  on  hia 
gross  carelessness  and  waste  in  the  adminis 
tration  of  the  partnership,  and  his  exclusion 
of  the  other  partners  from  their  just  share  of 
the  management,  Collyer,  Partn.  ^  227  ;  1 
Jac.  &  W.  Ch.  592  ;  2  id.  200  ;  5  Ark.  278 ;  2 
Ashm.  Penn.  309,  310  ;  3  Ves.  Ch.  74  ;  so  on 
the  existence  of  violent  and  lasting  dissen- 
sions between  the  partners,  1  Jarman,  Conv. 
26 ;  Gow,  Partn.  3d  ed.  227  ;  1  Iowa,  537 ; 
Collyer,  Purtn.  §  297  ;  see  4  Sim.  Ch.  11  ; 
Story,  Partn.  §  288  ;  4  Beav.  Rolls,  503  ;  14 
Ohio,  315,  where  these  are  of  such  a  charac- 
ter as  to  prevent  the  business  from  being  con- 
ducted upon  the  stipulated  terms,  3  Kent, 
Comm.  60,  61 ;  Collyer,  Partn.  ^  297,  and  to 
destroy  the  mutual  confidence  of  the  partners 
in  each  other.  4  Beav.  Rolls,  502 ;  21  id.  482 ; 

1  Lindley,  Partn.  184,  185.  But  a  partner 
cannot,  by  misconducting  himself  and  render- 
ing it  impossible  for  his  copartners  to  act  in 
harmony  with  him,  obtain  a  dissolution  on 
the  ground  of  the  impossibility  so  created  by 
himself.  21  Beav.  Rolls,  493,  494 ;  3  Hare, 
Ch.  387.  A  partnership  may  be  dissolved  by 
decree  when  its  business  is  in  a  hopeless 
state,  its  continuance  impracticable,  and  its 
property  liable  to  be  wasted  and  lost.  CoU-^ 
yer,  Partn.  g  291 ;  3  Kent,  Comm.  60  ;  1  Cox, 
212  ;  2  Ves.  &  B.  Ch.  Ir.  290  ;  16  Johns.  N. 
Y.  491 ;  Gow,  Partn.  3d  ed.  226,  227  ;  1  Lind- 
ley, Partn.  180,  181 ;  3  Kay  &  J.  78  ;  13  Sim. 
Ch.  495. 

20.  The  confirmed  lunacy  of  an  active 
partner  is  sufficient  to  induce  a  court  of 
equity  to  decree  a  dissolution,  not  only  for 
the  purpose  of  protecting  the  lunatic,  but  also 
to  relieve  his  copartners  from  the  difficult 
position  in  which  the  lunacy  places  them. 
See  1  Cox,  Ch.  107  ;  1  Swanst.  Ch.  514,  note ; 

2  Mylne  &  K.  125  ;  6  Beav.  Rolls,  324  ;  1  De- 
Gex,  M.  &  G.  Exch.  171;  2  Kay  &  J.  Ch. 
441  :  Collyer,  Partn.  ^  292 ;  3  Kent,  Comm. 
58  ;  Watson,  Partn.  382  ;  3  Younge  &  C.  184  ; 
Bisset,  Partn.  83.  The  same  may  be  said  of 
every  other  inveterate  infirmity,  such  as 
palsy,  or  the  like,  which  has  seized  upon  one 
of  the  partners  and  rendered  him  incom- 
petent to  act  where  his  personal  labor  and 
skill  were  contracted  for.  Pothier,  Partn.  n. 
152 ;  3  Kent,  Comm.  62 ;  Collyer,  Partn.  I 
295. 

But  lunacy  does  not  itself  dissolve  the  firm, 
nor  do  other  infirmities.    3  Kent,  Comm.  58; 
I  Story,  Partn.  I  295 ;   3  Jur.  358 ;  Bisset, 
1  Partn.  85.    It  is,  however,  contended  by  Mr. 


PARTNERSHIP 


296 


PARTY-WALL 


Justice  Story  and  by  Parker,  C.  J.,  that  a 
clear  case  of  insanity  ought  to  effect  that 
result.  St6ry,  Partn.  ^  295  ;  10  N.  H.  101. 
The  CO  irt  does  not  decree  a  dissolution  on  the 
ground  of  lunacy  except  upon  clear  evidence 
that  the  malady  exists  and  is  incurable.  3 
Younge  &  C.  184 ;  2  Kay  &  J.  441.  A  tem- 
porary illness  is  not  sufficient.  2  Ves.  Sen. 
Ch.  34 ;  1  Cox,  107  ;  1  Lindley,  Partn.  182, 
183.  A  dissolution  by  the  court  on  the 
ground  of  insanity  dates  from  the  decree  and 
not  from  a  prior  day.  1  Phill.  172 ;  2  Coll. 
276  ;  1  Kay  &  J.  765  ;  1  Lindley,  Partn.  183. 

21.  A  partnership  dissolved  by  the  death 
of  one  of  the  partners  is  dissolved  as  to  the 
whole  frm,  7  Peters,  586,  594 ;  Chitty,  Contr. 
1860  ed.  285,  note ;  and  the  reason  given  for 
this  rule  is  applicable  not  only  to  dissolution 
by  death,  but  to  every  species  of  dissolution. 
CoUyer,  Partn.  113, 116,  117, 118;  Pothier, 
Partn.  n.  146  ;  Story,  Partn.  j§  317,  318. 

The  partnership  quoad  third  persons — in 
other  vrords,  the  liability  of  partners  quoad 
third  persons — cannot  be  dissolved  without 
notice  to  them  that  the  partnership  no  longer 
exists.  Actual  notice  must  be  brought  home 
to  persons  who  have  been  in  the  habit  of 
dealing  with  the  firm  ;  but  as  to  all  persons 
who  have  had  no  previous  dealings  with  the 
firm,  notice  fairly  given  in  the  public  news- 
papers is  deemed  sufficient.  Collyer,  Partn. 
II  532-534.  This  notice  is  necessary  to  ter- 
minate the  agency  of  each  partner,  and,  con- 
sequently, his  power  to  bind  the  firm.  1 
Lindley,  Partn.  261,  324 ;  1  Younge  &  J.  227  ; 
1  Stark.  164 ;  7  Price,  Exch.  193 ;  1  Campb. 
402  ;  10  East,  264. 

[t  is  not  necessary  to  give  notice  of  the  re- 
tiiement  of  a  dormant  partner  from  the  firm, 
it  the  fact  of  his  being  a  partner  be  unknown 
iu  all  the  creditors  of  the  firm :  if  it  be  known 
to  some,  notice  to  those  must  be  given,  but 
that  will  be  sufficient.  Collyer,  Partn.  H  120, 
536  ;  1  Esp.  89  ;  1  Carr.  &  K.  580  ;  1  Mete. 
Mass.  19  ;  1  Barnew.  &  Ad.  11  ;  4  id.  179  ;  5 
B.  Monr.  Ky.  170;  Chitty,  Contr.  1860  ed. 
287  atid  note ;  5  Cow.  N.  Y.  534 ;  1  Lindley, 
Partn.  326. 

22.  Notice  of  the  dissolution  is  not  ne- 
cessary, in  case  of  the  death  of  one  of  the 
partners,  to  free  the  estate  of  the  deceased 
partner  from  further  liability,  Collyer,  Partn. 
g  120;  Siory,  Partn.  162,  336,  343;  3  Kent, 
Comm.  63  ;  3  Mer.  Ch.  614  ;  17  Pick.  Mass. 
519;  Bisiset,  Partn.  103,  104;  nor  is  notice, 
in  fact,  necessary  in  any  case  where  the 
dissolution  takes  place  by  operation  of  law. 
Collyer,  Partn.  ^  538  :  3  Kent,  Comm.  63,  67  ; 
15  Johns.  N.  Y.  57  ;  16  id.  494. 

EJject  of  dissolution.  The  effect  of  disso- 
lution, as  between  the  partners,  is  to  termi- 
nate all  transactions  between  them  as  part- 
ners, except  for  the  purpose  of  taking  a  gene- 
ral account  and  winding  up  the  concern.  1 
Penn.  St.  274  ;  3  Kent,  Cimim.  62  et  seq.  As 
to  third  persons,  the  effect  of  a  dissolution  is 
to  absolve  the  partners  from  all  liability  for 
future  transactions,  but  not  for  past  trans- 
flCtiona  of  the  firm.    Collyer,  Partn.  g  121 ; 


Story,  Partn.  ch.  15  ;  3  Kent,  Comm.  62 
seq.;  2  Cush.  Mass.  175;  Pothier,  Partn.  nj 
155  ;  3  M'Cord,  So.  C.  378  ;  4  Munf.  Va.  215; 
5  Mas.  C.  C.  56 ;  Harp.  So.  C.  470 ;  4  Johns. 
N.  Y.  224 ;  6  Cow.  N.  Y.  701 ;  41  Me.  376. 

23.  It  is  said  that  a  firm,  notwithstanding 
its  dissolution,  continues  to  exist  so  far  as 
may  be  necessary  for  the  winding  up  of  its 
business.  11  Ves.  Ch.  5  ;  15  id.  227  ;  16  id, 
57;  2  Russ.  Ch.  242.  The  power  of  the 
partners  subsists  for  many  purposes  after  dis- 
solution :  among  these  are—Jirst,  the  comple- 
tion of  all  the  unfinished  engagements  of  the 
partnership ;  second,  the  conversion  of  all 
the  property,  means,  and  assets  of  the  part- 
nership existing  at  the  time  of  the  dissolu- 
tion, for  the  benefit  of  those  who  were  part- 
ners, according  to  their  respective  shares ; 
third,  the  application  of  the  partnership  funds 
to  the  payment  of  the  partnership  debts. 
Story,  Partn.  ^  326  ;  Chitty,  Contr.  1860  ed. 
288  ;  3  Kent,  Comm.  57  ;  17  Pick.  Mass.  519. 
But  although,  for  the  purposes  of  winding  up 
the  concern  and  fulfilling  engagements  that 
could  not  be  fulfilled  during  its  existence,  the 
power  of  the  partners  certainly  subsists  even 
after  dissolution,  yet,  legally  and  strictly 
speaking,  it  subsists  for  those  purposes  only. 
Collyer,  Partn.  §  119  ;  15  Ves.  Ch.  227  ;  5 
Mann.  &  G.  504  ;  1  H.  Blackst.  156  ;  3  Esp. 
108  ;  4  Mees.  &  W.  Exch.  461,  462  ;  10  Hare, 
Ch.  453  ;  4  DeGex,  M.  &  G.  Exch.  542. 

Whether  a  dissolution  of  a  partnership  is 
per  se  a  breach  of  a  contract  by  the  firm  to 
employ  a  person  in  their  service  is  question- 
able. 3  Hurlst.  &  N.  Exch.  931.  See  Firm  ; 
Partners  ;  Profit. 

PARTURITION.  The  act  of  giving 
birth  to  a  child.    See  Birth. 

PARTUS  (Lat.).  The  child  just  before 
it  is  born,  or  immediately  after  its  birth. 

Offspring.  See  Maxims,  Partus  sequiiur^ 
etc. 

PARTY.    See  Parties. 

PARTY- JURY.  A  jury  de  medieiate 
linguce,  which  title  see. 

PARTY-WALL.  A  wall  erected  on  the 
line  between  two  adjoining  estates,  belonging 
to  different  persons,  for  the  use  of  both  estates. 
2  Bouvier,  Inst.  n.  1615. 

2.  Party-walls  are  generally  regulated  by 
acts  of  the  local  legislatures.  The  principles 
of  these  acts  generally  are  that  the  wall 
shall  be  built  equally  on  the  lands  of  the  ad- 
joining owners,  at  their  joint  expense,  but 
when  only  one  owner  wishes  to  use  such  wall 
it  is  built  at  his  expense,  and  when'the  other 
wishes  to  make  use  of  it  he  pays  one-half  of 
its  value.  Each  owner  has  a  right  to  place 
his  joists  in  it  and  use  it  for  the  support  of 
his  roof.  See  4  Sandf.  N.  Y.  480  ;  24  Mo.  69 ; 
12  La.  Ann.  785.  When  the  party-wall  has  been, 
built,  and  the  adjoining  owner  is  desirous  of 
having  a  deeper  foundation,  he  has  a  right 
to  undermine  such  wall,  using  due  care  and 
diligence  to  prevent  any  injury  to  his  neigh- 
bour ;  and,  having  done  so,  he  is  not  answer- 
able for  any  consequential  damages'  Trhich  may 


i 


PARVUM  CAPE 


297 


Patent 


ensue.  17  Johns.  N.  Y.  92;  12  Mass.  220; 
2  N.  II.  534.  See  1  Dull.  Penn.  340  ;  5  Serg. 
&  R.  Penn.  1. 

3.  When  such  a  wall  exists  between  two 
buildings,  belonging  to  different  persons,  and 
one  of  them  takes  it  down  with  his  buildings, 
he  is  required  to  erect  another  in  its  place  in 
a  reasonable  time  and  with  the  least  incon- 
venience ;  the  other  owner  must  contribute  to 
the  expense,  if  the  wall  required  repairs,  but 
such  expense  will  be  limited  to  the  costs  of 
the  old  wall.  3  Kent,  Comm.  436  ;  G  Den.  N. 
Y.  717.  When  the  wall  is  taken  down,  it 
must  be  done  with  care ;  but  it  is  not  the  duty 
of  the  person  taking  it  down  to  shore  up  or 
prop  the  house  of  his  neighbor  to  prevent  it 
from  falling.  If,  however,  the  work  be  done 
with  negligence,  by  which  injury  accrues  to 
the  neighboring  house,  an  action  will  lie.  1 
Mood.  &  M.  362;  15  N.  Y.  601.  Consult 
Washburn,  Easements ;  2  Washburn,  Real 
Prop. ;  4  Carr.  &  P.  161  ;  9  Barnew.  &  C. 
725  ;  3  Barnew.  &  Ad.  874 ;  2  Ad.  &  E.  493  ; 
1  Crompt.  &  J.  Exch.  20  ;  4  Paige,  Ch.  N.  Y. 
169 ;  1  Pick.  Mass.  434 ;  12  Mass.  220 ;  2 
Rolle,  Abr.  564. 

PARVUM  CAPE.    See  Petit  Cape. 

PASS.  A  certificate  given  to  a  slave,  by 
his  master  or  mistress,  in  which  it  is  stated 
that  he  is  permitted  to  leave  his  home  with 
their  authority.  The  paper  on  which  such 
certificate  is  written. 

In  Practice.  To  be  given  or  entered :  as, 
let  the  judgment  pass  for  the  plaintiff". 

To  become  transferred:  thus,  the  title  to 
goods  passes  by  the  sale  whenever  the  parties 
have  agreed  upon  the  sale  and  the  price,  and 
nothing  remains  to  be  done  to  complete  the 
agreement.    1  Bouvier,  Inst.  n.  939. 

To  decide  upon.  When  a  jury  decide  upon 
the  rights  of  the  parties,  which  are  in  issue, 
they  are  said  to  pass  upon  them. 

PASS-BOOK.    In  Mercantile  Law. 

A  book  used  by  merchants  with  their  cus- 
tomers, in  which  an  entry  of  goods  sold  and 
delivered  to  a  customer  is  made. 

It  is  kept  by  the  buyer,  and  sent  to  the  merchant 
whenever  he  wishes  to  purchase  any  article.  It 
ought  to  be  a  counterpart  of  the  merchant's  books, 
as  far  as  regards  the  customer's  account. 

Among  English  bankers,  the  term  pass-book  is 
given  to  a  small  book  made  up  from  time  to  time 
from  the  banker's  ledger  and  forwarded  to  the 
customer :  this  is  not  considered  as  a  statement  of 
account  between  the  parties :  yet  when  the  customer 
neglects  for  a  long  time  to  make  any  objection  to 
the  correctness  of  the  entries,  he  will  be  bound  by 
them.  2  Atk.  Ch.  252;  2  Deac.  &  C.  Bank.  534:  2 
Mees.  &  W.  Exch.  2. 

PASSAGE.  A  way  over  water.  A  yoy- 
age  made  over  the  sea  or  a  great  river :  as, 
the  Sea-Gull  had  a  quick  passage.  The 
money  paid  for  the  transportation  of  a  person 
over  the  sea :  as,  my  passage  to  Europe  was 
one  hundred  and  fifty  dollars. 

PASSAGE-MONEY.  The  sum  claim- 
able for  the  conveyance  of  a  person,  with  or 
without  luggage,  on  the  water. 

The  difference  between  freiyht  and  paasaye-money 


is  this,  that  the  former  is  claimable  for  the  carriage 
of  goods,  and  the  latter  for  the  carriage  of  the 
person.  The  sanic  rules  which  govern  the  claim 
for  freight  affect  that  for  passage-money,  o  Chitty, 
Comm.  Law,  424;  1  Pet.  Adm.  I2G;  3  Johns.  N.  Y. 
335.    See  Common  Cauuikk.s  of  Passknoeks. 

PASSENGER.  One  who  has  taken  a 
place  in  a  public  conveyance  for  the  purpo.se 
of  being  transported  from  one  place  to  another. 
One  who  is  so  conveyed  from  one  place  to  an- 
other. 

Such  persons  are  entitled  to  be  carried 
in  safety  to  the  place  of  destination.  See 
Common  Carriers  of  Passengers.  Full  pro 
visions  for  the  health  and  safety  of  pass- 
engers by  sea  have  been  made  by  the  United 
States  laws.  See  Act  of  Congr.  May  17,  1848, 
11  U.  S.  Stat,  at  Large,  127  ;  March  2,  1847, 
11  id.  149;  January  31,  1848,  11  id.  210. 
See  Gilp.  Dist.  Ct.  334. 

PASSIVE.  All  the  sums  of  which  one 
is  a  debtor. 

It  is  used  in  contradistinction  to  active.  By 
active  debts  are  understood  thos^e  which  may  be 
employed  in  furnishing  assets  to  a  merchant  to 
pay  those  which  he  owes,  which  are  called  passive 
delats. 

PASSPORT  (Fr.  passer,  to  pass,  port, 
harbor  or  gate).    In  Maritime  Law.  A 

paper  containing  a  permission  from  the  neu- 
tral state  to  the  captain  or  master  of  a  ship 
or  vessel  to  proceed  on  the  voyage  proposed. 
It  usually  contains  his  name  and  residence, 
the  name,  property,  description,  tonnage,  and 
destination  of  the  ship,  the  nature  and  quan- 
tity of  the  cargo,  the  place  from  whence  it 
comes,  and  its  destination,  with  such  other 
matters  as  the  practice  of  the  place  requires. 

It  is  also  called  a  sea-hnef,  or  sea-letter.  But 
Marshall  distinguishes  sea-letter  from  passport, 
which  latter,  he  says,  is  intended  to  protect  the 
ship,  while  the  former  relates  to  the  cargo,  destina- 
tion, etc.    See  Jacobs.  Sea-Laws,  66,  note. 

This  document  is  indispensably  necessary  in  time 
of  war  for  the  safety  of  every  neutral  vessel.  Mar- 
shall, Ins.  b.  1,  c.  9,  s.  6,  317,  406  b. 

A  Mediterranean  pass,  or  protection  against 
the  Barbary  powers.  Jacobs.  Sea-Laws,  66, 
note ;  Act  of  Congr.  1796. 

A  document  granted  in  time  of  war  to  pro- 
tect persons  or  property  from  the  general 
operation  of  hostilities.  Wheaton,  Int.  Law, 
475  ;  1  Kent,  Comm.  161 ;  6  Wheat.  3. 

In  most  countries  of  continental  Europe; 
passports  are  given  to  travellers.  These  are 
intended  to  protect  them  on  their  journey 
from  all  molestation  while  they  are  obedient 
to  the  laws.  Passports  are  also  granted  by 
the  secretary  of  state  to  persons  travelling 
abroad,  certifying  that  they  are  citizens  of 
the  United  States.  9  Pet.  692.  See  1  Kent, 
Comm.  162,  182  ;  Merlin,  Repert.  Sweden 
has  recently  set  the  example  of  abolishing 
the  vexatious  system  of  passports. 

PASTURES.  Lands  upon  which  beasts 
feed  themselves.  By  a  grant  of  pastures  the 
land  itself  passes.  1  Thomas,  Coke,  Litt. 
202. 

PATENT.  A  grant  of  some  piivilege, 
property,  or  authority,  made  by  the  govern- 


PATENT 


298 


PATENT 


ment  or  sovereign  of  a  country  to  one  or 
more  individuals.    Phillips,  Pat.  1. 

As  the  term  was  originally  used  in  Eng- 
land, it  signified  certain  written  instruments 
emanating  from  the  king  and  sealed  with 
the  great  seal.  These  instruments  conferred 
grants  of  lands,  honors,  or  franchises  ;  they 
were  called  letters  patent,  from  being  de- 
livered open,  and  by  way  of  contradistinction 
from  instruments  like  the  French  lettres  de 
cachet,  which  went  out  sealed. 

In  the  United  States,  the  word  patent  is 
sometimes  understood  to  mean  the  title-deed 
by  which  a  government,  either  state  or  fede- 
ral, conveys  its  lands.  But  in  its  more  usual 
acceptation  it  is  understood  as  referring  to 
those  instruments  by  which  the  United  States 
secures  to  inventors  for  a  limited  time  the 
exclusive  use  of  their  own  inventions. 

2.  The  granting  of  exclusive  privileges  by  means 
of  letters  patent  was  a  power  which  for  a  long 
time  was  greatly  abused  by  the  sovereigns  of  Eng- 
land. The  sole  right  of  dealing  in  certain  com- 
modities was  in  that  manner  conferred  upon  par- 
ticular individuals,  either  as  a  matter  of  royal 
favor  or  as  a  means  of  replenishing  the  royal 
treasury.  These  exclusive  privileges,  which  were 
termed  monopolies,  became  extremely  odious,  and, 
at  an  early  day,  met  with  the  most  determined 
resistance.  One  of  the  provisions  of  Magna  Charta 
was  intended  to  prevent  the  granting  of  mono- 
polies of  this  character ;  and  subsequent  pro- 
hibitions and  restrictions  were  enacted  by  parlia- 
ment even  under  the  most  energetic  and  absolute 
of  their  monarchs.  See  Hallam,  Const.  Hist., 
Harp.  ed.  153,  205;  7  Lingard,  Hist.  Eng.  Dol- 
man's ed.  247,  380 ;  9  id.  182. 

Still,  the  unregulated  and  despotic  power  of  the 
crown  proved,  in  many  instances,  superior  to  the 
law,  until  the  reign  of  James  I.,  when  an  act  was 
passed,  in  the  twenty-first  year  of  his  reign,  known 
as  the  Statute  of  Monopolies,  which  entirely  pro- 
hibited all  grants  of  that  nature,  so  far  as  the 
traffic  in  commodities  already  known  was  con- 
cerned. But  the  king  was  permitted  to  secure  by 
letters  patent,  to  the  inventor  of  any  new  manufac- 
ture, the  sole  right  to  make  and  vend  the  same  for 
a  term  not  exceeding  fourteen  years.  Since  that 
time  the  power  of  the  monarch  has  been  so  far  con- 
trolled by  the  law  that  the  prohibition  contained 
in  the  Statute  of  Monopolies  has  been  fully  ob- 
served, and  under  that  statute  has  grown  up  the 
present  system  of  British  patent  law,  from  which 
ours  has  to  a  great  extent  been  derived. 

3.  The  constitution  of  the  United  States  confers 
upon  congress  the  power  to  pass  laws  ''  to  promote 
the  progress  of  science  and  the  useful  arts,  by 
securing  for  limited  times  to  authors  and  inventors 
the  exclusive  right  of  their  respective  writings  or 
discoveries."  U.  S.  Const,  art.  i.  s.  6,  cl.  8.  This 
right  can,  accordingly,  be  conferred  only  upon  the 
authovH  and  inventors  themselves;  but  it  rests  in 
the  sound  discretion  of  congress  to  determine  the 
langth  of  time  during  which  it  shall  continue.  Con- 
gress at  an  early  day  availed  itself  of  the  power; 

The  first  act  passed  was  that  which  established 
the  patent  office,  on  the  10th  of  April,  1790.  There 
were  several  supplements  and  modifications  to  this 
law,  namely,  the  acts  passed  February  7,  1793,  June 
7,  1794,  April  17,  1800,  July  3,  1832,  July  13,  1832. 
These  were  all  repealed,  by  an  act  passed  July  4, 
1836,  and  a  new  system  was  established,  which,  with 
Bome  modifications  of  a  secondary  character,  has 
ever  since  remained  in  force.  The  existing  laws 
01.  the  subject  are  the  act  of  July  4,  1836,  already 
mentioned,  the  acts  of  March  3,  1837,  March  3, 


1839,  August  29,  1842,  May  27,  1848,  February  18, 
1861,  March  2,  1861,  and  March  3,  1863. 

4.  This  new  system  differs  from  the  old,  in  part, 
by  being  more  full  and  complete  in  all  its  details; 
but  the  distinguishing  difference  consists  in  the 
provision  it  contains,  by  which  all  applications  for 
patents  are  subjected  to  a  thorough  and  rigid  ex- 
amination, with  a  view  of  preventing,  as  far  as 
possible,  the  granting  of  any  patent  which  will  not 
afterwards  be  sustained  by  the  courts  as  valid.  In 
this  respect  it  is  believed  to  differ  from  all  laws  of 
this  kind  that  have  ever  existed;  for,  although  in 
other  countries  patents  are  sometimes  refused,  it  is 
for  other  reasons  than  the  mere  fact  that  the  title 
of  the  patentee  would  be  invalid  :  that  is  a  matter 
which  is  left  entirely  at  the  risk  of  the  applicant. 

The  present  law  does  not,  indeed,  furnish  any 
guarantee  of  the  validity  of  the  title  conferred 
upon  the  patentee.  The  patent  is,  nevertheless, 
prima  facie  evidence  of  its  own  validity,  1  Stor. 
C.  C.  336;  3  id.  172;  1  Mas.  C.  C.  153;  14  Pet. 
458;  2  Blatchf.  C.  C.  229;  1  McAll.  C.  C.  171,  as 
well  for  a  defendant  in  an  action  as  for  a  plain- 
tiff. 15  How.  252.  No  provision  is  made  by  law 
for  setting  it  aside  directly,  however  invalid  it  may 
prove,  except  in  the  special  case  of  interference  ■■ 
between  two  patents  or  an  application  and  a  pat- 
ent. But,  throughout  its  whole  term  of  existence, 
whenever  an  action  is  brought  against  any  one  for 
having  infringed  it  he  is  permitted  to  show  its 
original  invalidity  in  his  defence.  The  exclusive 
right  of  the  patentee  did  not  exist  at  common  law ; 
it  is  created  by  acts  of  congress;  and  no  rights  can 
be  acquired  unless  authorized  by  the  statute  and  in 
the  manner  it  prescribes.  10  How.  494  ;  19  id.  195; 
3  N.  Y.  9 ;  8  Pet.  658.  The  power  granted  by  the 
patent  is  domestic  in  its  character,  and  confined 
within  the  limits  of  the  United  States:  consequently 
it  does  not  extend  to  a  foreign  vessel  lawfully  enter- 
ing one  of  our  ports,  where  the  patented  improve-  ' 
ment  was  placed  upon  her  in  a  foreign  port  and 
authorized  by  the  laws  of  the  country  to  which  she  . 
belongs.    19  How.  183. 

We  will  now  proceed  to  treat  of  some  of  the 
details  of  our  present  law  on  this  subject. 

5.  Of  the  subject-matter  of  a  patent.  The 
act  of  July  4, 1836,  provides  for  the  granting  . 
of  a  patent  to  the  first  inventor  or  discoverer 
of  any  new  and  useful  art,  machine,  manu- 
facture, or  composition  of  matter,  or  of  any 
new  and  useful  improvement  thereon.  The 
distinction  between  a  process  and  a  machine 
is  discussed  in  15  How.  252.  There  are  with 
us,  according  to  the  phraseology  of  the  sta- 
tute, four  classes  of  inventions  which  may  be 
the  subjects  of  patents:  Jirsi,  an  art ;  second,  a 
machine;  //nVc?,  a  manufacture;  and,  fourth, 
a  composition  of  matter.  In  Great  Britain, 
as  we  have  seen,  letters  patent  granting 
exclusive  privileges  can  be  issued  only  to  the 
inventors  of  a  "  new  manufacture.^'  But  the 
courts,  in  defining  the  meaning  of  the  term, 
have  construed  the  word  "  manufacture"  to 
be  coextensive  in  signification  with  the  whole 
of  the  four  classes  of  inventions  thus  re- 
cognized by  our  law.  An  art  or  process,  a 
machine,  and  a  composition  of  matter  are 
aii  regarded  there  as  manufactures.  The 
field  of  invention  in  Great  Britain  is,  there- 
fore, coincident  with  that  provided  by  our 
law,  and  the,  legal  subject-matter  of  patents 
is  the  same  in  each  country.  2  Barnew.  & 
Aid.  349 ;  8  Term,  99 :  2  iH.  Blackst.  492 

2  Mees.  &  W.  Exch.  544 ;  Webster,  Vat.  Cas. 
237,  393,  459. 


Pi\TENT 


299 


PATENT 


6.  But,  inasmuch  as  we  have  three  other 
classes  of  inventions,  the  term  "  manufac- 
ture" has  a  more  limited  signification  here 
than  it  receives  in  Great  Britain.  In  thiis 
country  it  is  understood  to  mean  a  new 
article  of  merchandise  which  has  required 
the  exercise  of  something  more  than  ordinary 
mechanical  skill  and  ingenuity  in  its  con- 
trivance: no  new*  principle  or  coml>ination 
of  parts  is  necessary  to  render  a  patent  of 
this  kind  valid.  All  that  is  requisite  is  that 
a  substantially  new  commodity  shall  have 
been  produced  for  the  public  use  and  con- 
venience. A  mere  change  in  the  form  of  a 
well-known  article  may  sometimes  justify 
the  granting  of  a  patent  for  the  same,  where 
such  change  adapts  it  to  an  essentially  new 
use,  and  where  something  beyond  the  range 
of  ordinary  skill  and  ingenuity  must  have 
been  called  into  exercise  in  its  contrivance. 
See  11  How.  248. 

The  general  rule,  then,  is  that  wherever 
invention  has  been  exercised  there  will  be 
found  the  subject-matter  of  a  patent.  1  Mc- 
All.  C.  C.  48.  And  as  the  law  looks  to  the 
fact,  and  not  to  the  result  by  which  it  was 
accomplished,  it  is  immaterial  what  amount 
of  thought  was  involved  in  making  the  in- 
vention.   4  Mas.  C.  C.  6. 

•y.  Although  the  word  "discovery"  is  used 
in  our  statute  as  entitling  the  discoverer  to  a 
patent,  still,  every  discovery  is  not  a  patent- 
able invention.  The  discovery  of  a  mere 
philosophical  principle,  or  abstract  theory, 
or  elementary  truth  of  science,  cannot  obtain 
a  patent  for  the  same,  unless  he  applies  it  to 
some  directly  useful  purpose.  The  patent 
can  only  be  for  such  a  principle,  theory,  or 
truth  reduced  to  practice  and  embodied  in  a 
particular  structure  or  combination  of  parts. 
1  Stor.  C.  C.  285  ;  1  Mas.  C.  C.  187;  4  id.  1 ; 
1  Pet.  C.  C.  342.  Nor  can  there  be  a  patent 
for  a  function  or  for  an  effect  only,  but  for 
an  effect  produced  in  a  given  manner  or  by  a 

Seculiar  operation.  1  Gall.  C.  C.  480 ;  1 
las.  C.  C.  476  ;  1  Stor.  C.  C.  270  ;  2  id.  164; 

1  Pet.  C.  C.  394 ;  5  McLean,  C.  C.  76 ;  15 
How.  62. 

An  invention,  to  be  patentable,  must  not 
only  be  7iew,  but  must  also  be  useful.  But  by 
this  it  is  not  meant  that  it  must  be  more  use- 
ful than  any  thing  of  the  kind  previously 
known,  but  that  it  is  capable  of  use  for  a 
beneficial  purpose.  The  word  useful"  is 
also  to  be  understood  in  contradistinction  to 
"psrnicious."  or  *'  frivolous."  A  contrivance 
directly  and  mainly  calculated  to  aid  the 
counterfeiter,  the  pickpocket,  or  the  assassin, 
or  which  would  in  any  way  be  directly  cal- 
culated to  be  injurious  to  the  morals,  the 
health,  or  the  good  order  of  society,  would 
not  be  patentable.  Neither  would  a  new  con- 
trivance which  was  of  too  trivial  a  character 
to  be  worthy  of  serious  consideration.  1 
Mas.  C.  C.  186,  303  ;  4  Wash.  C.  C.  9  ;  1 
Paine,  C.  C.  203  ;  1  Blatchf.  C.  C.  372,  488 ; 

2  id.  132 ;  1  Woodb.  &  M.  C.  C.  290  ;  2  Mc- 
Lean, C.  C.  35  :  5  III.  44;  1  Baldw.  C.  C. 
303  ;  13  N.  H.  311 ;  14  Pick.  Mass.  217  ;  16 


Vt.  226.  But  it  has  been  said  that  a  court 
cannot  pronounce  a  patent  worthlens,  merely 
from  the  npecification,  without  evidence  of 
any  experiments.  1  N.  II.  347.  In  the  trial 
of  an  action  for  infringement,  evidence  of  the 
comparative  utility  of  the  plaintiff's  niachine 
and  the  defendant's  is  inadmissible,  ox(M;pt  for 
the  purpose  of  showing  a  substantial  differ- 
ence between  the  two  machines.  1  Stor.  C. 
C.  336. 

S.  A  mere  application  of  an  old  device  or 
process  to  the  manuiacture  of  an  article  is 
held  to  constitute  only  a  double  use,  and  not 
to  be  patentable.  There  must  be  some  new 
process  or  machinery  used  to  produce  the 
effect.  2  Stor.  C.  C.  190,  408;  Gilp.  Dist. 
Ct.  489  ;  3  Wash.  C.  C.  443  ;  1  Woodb.  & 
M.  C.  C.  290  ;  2  McLean,  C.  C.  35  ;  4  id.  456 ; 
2  Curt.  C.  C.  340.  But  where  the  now  use  is 
not  analogous  to  the  old  and  would  not  be 
suggested  by  it, — where  invention  is  neces- 
sary in  order  to  conceive  of  the  new  applica- 
tion, and  experiment  is  required  to  test  its 
success,  and  the  result  is  a  new  or  superior 
result, — there  a  patent  may  be  obtained. 

No  patent  can  be  granted  in  the  United 
States  for  the  mere  importation  of  an  inven- 
tion brought  from  abroad ;  although  it  is 
otherwise  in  England.  The  constitution,  as 
we  have  seen,  only  authorizes  congress  to 
grant  these  exclusive  privileges  to  the  in- 
ventors themselves.  The  mere  fact  of  having 
obtained  a  patent  for  the  same  thing  in  a  for- 
eign country  will  not  prevent  the  obtaining 
of  a  patent  here  at  any  time  within  seventeen 
years  after  the  date  of  the  foreign  patent. 
But  if  an  invention  has  been  introduced  into 
public  and  common  use  in  the  United  States, 
and  if  it  has  also  been  patented  abroad  more 
than  six  months  prior  to  the  date  of  the  ap- 
plication here,  the  patent  will  be  denied- 
See  Act  of  1839,  |  6. 

9.  Of  caveats.  The  twelfth  section  of  the 
act  of  1836  authorizes  the  inventor  of  any 
thing  patentable — provided  he  be  a  citizen, 
or  an  alien  who  has  resided  within  the  United 
States  for  one  year  next  preceding  his  appli- 
cation and  has  made  oath  of  his  intention  to 
become  a  citizen — to  file  a  caveat  in  the  pat- 
ent office  for  his  own  security.  This  caveat 
consists  in  a  simple  statement  of  his  inven- 
tion, in  any  language  which  will  render  it  in- 
telligible. It  is  always  well  to  attach  a  draw- 
ing to  the  description,  in  order  that  it  may 
be  more  easily  and  thoroughh'  understood ; 
but  this  is  not  indispensable.  A  fee  of  ten 
dollars  must  hii  paid  to  the  office  at  the  same 
time. 

The  right  acquired  by  the  caveator  in  this 
manner  is  that  of  preventing  the  grant  of 
any  interfering  patent,  on  any  application 
filed  within  one  year  from  the  day  when  the 
caveat  was  lodged  in  the  patent  office,  with 
out  his  being  notified  of  the  same  and  having 
an  opportunity  of  contesting  the  priority  of 
invention  of  the  applicant,  by  means  of  an 
"interference,"  which  will  be  treated  of 
hereafter.  In  this  way  an  inventor  can  ob- 
tain a  year  to  perfect  his  invention,  without 


PATENT 


300 


PATENT 


the  risk  of  having  the  patent  to  which  he  is 
entitled  granted  to  another  in  the  mean  time. 
He  can  also,  at  any  time  before  the  expira- 
tion of  the  year,  renew  the  caveat  for  another 
year,  by  paying  another  fee  of  ten  dollars, 
and  so  on  from  year  to  year,  as  long  as  he 
feels  disposed  so  to  do.  The  caveat  is  filed  in 
the  confidential  archives  of  the  office,  and 
preserved  in  secrecy. 

10.  Of  the  application  for  a  patent.  When 
the  invention  is  complete,  and  the  inventor 
desires  to  apply  for  a  patent,  he  causes  a 
specification  to  be  prepared,  setting  forth  in 
clear  and  intelligible  terms  the  exact  nature 
of  his  invention,  describing  its  dilferent  parts 
and  the  principle  and  mode  in  which  they 
operate,  and  stating  precisely  what  he  claims 
as  new,  in  contradistinction  from  those  parts 
and  combinations  which  were  previously  in 
use.  This  should  be  accompanied  by  a  pe- 
tition tc  the  commissioner  of  patents,  stating 
the  general  nature  of  his  invention  and  the 
object  of  his  application.  Duplicate  draw- 
ings should  be  attached  to  the  specification, 
where  the  nature  of  the  case  admits  of  draw- 
ings ;  and,  where  the  invention  is  for  a  com- 
position of  matter,  specimens  of  the  ingre- 
dients and  of  the  composition  of  matter  should 
be  furnished.  The  specification,  as  well  as 
the  drawings,  must  be  signed  by  the  appli- 
cant and  attested  by  two  witnesses ;  and  ap- 
pended to  the  specification  must  be  an  affi- 
davit of  the  applicant,  stating  that  he  verily 
believes  himself  to  be  the  original  and  first 
inventor  of  that  for  which  he  asks  a  patent, 
and,  also,  of  what  country  he  is  a  citizen. 
The  whole  is  then  filed  in  the  patent  office. 
A  model  must  also  be  furnished  to  the  office, 
in  all  cases  which  admit  of  a  representation 
by  model.  This,  by  the  rules  of  the  office, 
should  not  exceed  one  foot  in  any  of  its  di- 
mensions, where  it  can  practically  be  brought 
within  that  limit. 

11.  By  the  old  law,  a  citizen  of  a  foreign 
country  was  required  to  pay  a  higher  patent 
fee  than  an  American  citizen,  or  an  alien 
who  had  resided  a  year  in  the  United  States 
and  had  made  oath  of  his  intention  of  be- 
coming such  citizen.  But  the  act  of  March 
2,  1861,  has  done  away  with  this  difierence, 
except  as  against  the  citizens  of  those  coun- 
tries which  discriminate  against  our  own 
citizens  who  apply  for  patents  there.  This 
discrimination  is  believed  to  be  limited  to 
the  inhabitants  of  some  of  the  British  North 
American  provinces  which  still  refuse  patents 
to  the  people  of  the  United  States  on  the 
same  terms  on  which  they  are  granted  to 
their  own  citizens.  The  patent  fee  required 
•if  the  inhabitants  of  such  British  province 
is  five  hundred  dollars,  instead  of  thirty-five 
dollars,  which  is  all  that  is  required  of  any 
other  applicant. 

liJ.  Of  the  examination.  As  has  been 
already  observed,  our  law  provides  for  an 
examination  whenever  an  application  is  com- 
pleted in  the  prescribed  manner.  And  if  on 
such  examination  it  appears  that  the  claim 
.■»f  the  applicant  is  invalid  and  would  not  be 


i 


sustained  by  the  courts,  the  application  is 
rejected.  In  cases  of  doubt,  however,  the 
approved  practice  of  the  patent  office  is  to 
grant  the  patent,  and  thus  give  the  party  an 
opportunity  to  sustain  it  in  the  courts  if  he 
can.  Formerly,  about  two-thirds  of  all  the 
applications  for  patents  were  rejected  ;  but 
within  the  last  few  years  a  more  liberal 
practice  prevails,  and  the  number  of  patents 
now  issued  is  more  than  one-half  of  that  of 
all  the  applications. 

As  a  general  rule,  an  invention  is  patent- 
able whenever  the  applicant  is  shown  to  be 
the  original  and  first  inventor  ;  and  his  own 
affidavit  appended  to  the  application  is  suf- 
ficient to  raise  a  presumption  that  he  is  the 
first  inventor,  until  the  contrary  is  shown. 
But  if  it  is  ascertained  by  the  office  that  the 
same  thing  had  been  invented  by  any  other 
person  in  this  country,  or  that  it  had  been 
patented  or  described  in  any  printed  publica- 
tion in  this  or  any  foreign  country,  prior  to 
its  invention  by  the  applicant,  a  patent  will 
be  denied  him.  But  a  mere  prior  invention 
of  the  same  thing  in  a  foreign  country,  if 
not  patented  or  described  in  some  printed 
publication,  will  not  afiect  his  right  to  a 
patent  here. 

13.  The  rule  that  the  applicant  is  entitled 
to  a  patent  whenever  he  is  shown  to  be  the 
original  and  first  inventor  is  subject  to  one 
important  exception.  If  he  has,  either  actu- 
ally or  constructively,  abandoned  his  inven- 
tion to  the  public,  he  can  never  afterwards 
recall  it  and  resume  his  right  of  ownership. 
4  Mas.  C.  C.  Ill ;  4  Wash.  C.  C.  544 ;  2  Pet. 
16  :  6  id.  248  ;  7  id.  313  ;  1  How.  202. 

By  the  seventh  section  of  the  act  of  1836, 
the  commissioner  is  directed  to  reject  the 
application  whenever  it  shall  appear  that  the 
invention  had  been  in  public  use  or  on  sale, 
with  the  consent  and  allowance  of  the  appli- 
cant, prior  to  the  date  of  the  application. 
But  by  the  seventh  section  of  the  act  of  1839, 
such  sale  or  public  use  will  not  of  itself 
prejudice  the  rights  of  the  inventor,  provided 
the  application  is  made  within  two  years  from 
the  time  when  such  sale  or  public  use  first 
occurred. 

If  the  application  for  a  patent  is  rejected, 
the  specification  may  be  amended  and  a 
second  examination  requested.  If  again  re- 
jected, an  appeal  may  be  taken  to  the  ex- 
aminers-in-chief. If  rejected  by  them,  tiD 
appeal  lies  to  the  commissioner  in  person,  ou 
payment  of  a  fee  of  twenty  dollars ;  and  if 
rejected  by  him,  an  appeal  may  be  taken  to 
one  of  the  judges  of  the  supreme  court  of 
the  District  of  Columbia,  on  payment  of  a 
fee  of  twenty-five  dollars.  If  all  this  proves 
inefi'ectual,  the  applicant  may  still  file  a  bill 
in  equity  to  compel  the  allowance  of  his 
patent.  See  §  16  of  the  Act  of  July  4,  1836, 
and  I  10  of  the  Act  of  March  3,  1839. 

All  the  proceedings  before  the  patent  office 
connected  with  the  application  for  a  patent 
are  ex  parte,  and  are  kept  secret,  except  in 
cases  of  conflicting  claims,  which  will  next 
be  referred  to. 


PATENT 


301 


PATENT 


14.  Of  the  date  of  the  patent.  The  patent 
usually  takes  date  on  the  day  it  issues ;  but 
the  applicant  may,  at  his  option,  cause  it  to 
be  dated  as  of  the  day  on  w^hich  his  specifica- 
tion and  drawings  were  filed, — not,  however, 
exceeding  six  months  prior  \a)  the  actual 
issuing  of  the  patent.  See  §  8  of  the  Act  of 
July  4,  1836.  This  is  a  privilege  of  which 
inventors  rarely  avail  themselves.  Or  the 
patent  may  be  dated  as  of  a  day  not  later 
than  six  months  after  its  allowance.  See  ^ 
3  of  the  Act  of  March  3,  1863. 

The  obtaining  of  foreign  letters  patent 
does  not  prevent  the  granting  of  a  patent 
here.  But  in  that  case  the  American  patent 
will  expire  at  the  end  of  fourteen  years  from 
the  date  of  the  foreign  patent.  See  ^  6  of 
the  Act  of  March  3,  1839.  This  limit  was 
thus  fixed  when  the  American  patent  was 
of  only  fourteen  years'  duration :  its  exten- 
sion to  seventeen  years  does  not  seem  to  en- 
large this  limitation.  If  the  American  pat- 
ent purports  to  continue  more  than  fourteen 
years  from  the  date  of  the  foreign  patent,  it 
will  be  void.    5  McLean,  C.  C.  76. 

15.  Of  interferences.  The  eighth  section 
of  the  act  of  1836  provides  that  when  an 
application  is  made  which  interferes  with 
another  pending  application  or  with  an  un- 
expired patent,  a  trial  shall  be  allowed  for 
the  purpose  of  determining  who  was  the 
prior  inventor,  and  a  patent  is  directed  to  be 
issued  accordingly.  An  appeal  to  one  of  the 
judges  of  the  supreme  court  of  the  District 
of  Columbia  is  allowed  from  the  decision  of 
the  patent  office  in  these  cases,  in  the  same 
manner  as  in  those  of  rejected  applications. 

16.  Of  the  specification.  The  specifica- 
tion is  required,  by  the  Act  of  1836,  §  6,  to 
describe  the  invention  in  such  full,  clear,  and 
exact  terms  as  to  enable  any  person  skilled 
in  the  art  or  science  to  which  it  relates  to 
make,  construct,  or  use  it.  In  the  trial  of 
an  action  for  infringement,  it  is  a  question 
of  fact  for  the  jury  whether  this  requirement 
has  been  complied  with.    2  Brock,  Va.  298; 

1  Mas.  C.  C.  182 ;  2  Stor.  C.  C.  432 ;  3  id. 
122  ;  1  Woodb.  &  M.  C.  C.  53.    At  the  same 
time,  the  interpretation  of  the  specification, 
and  the  ascertainment  of  the  subject-matter 
of  the  invention  from  the  language  of  the 
specification  and  from  the  drawings,  is,  as 
appears  from  the  authorities  just  referred 
to,  as  well  as  from  others,  a  matter  of  law 
exclusively  for  the  court.    5  How.  1  ;  3  Mc- 
Lean, C.  C.  250,  432.    The  specification  will 
bo  liberally  construed  by  the  court,  in  order  ! 
to  sustain  the  invention,  1  Sumn.  C.  C.  482 ;  I 
3  id.  514,  535 ;  1  Stor.  C.  C.  270 ;  5  McLean,  | 
C.  C.  44 ;  but  it  must,  nevertheless,  identify  | 
with  reasonable  clearness  and  accuracy  the  } 
invention  claimed,  and  describe  the  manner 
of  its  construction  and  use  so  that  the  public 
from  the  specification  alone  may  be  enabled 
to  practise  it;  and  if  the  court  cannot  satis- 
factorily ascertain  the  meaning  of  the  patent 
from  its  face,  it  will  be  void  for  ambiguity. 

2  Blatchf  C.  C.  1  ;  2  Brock,  Va.  303 ;  1  Sumn. 
r!.  C.  482;  1  Mas.  C.  C.  182,  447. 


It  is  required  to  distinguish  between  what 
is  new  and  what  is  old,  and  not  mix  them 
up  together  without  disclosing  distinctly  that 
for  which  the  patent  is  granted.  4  Wash.  C. 
C.  68  ;  2  Brock,  Va.  298  ;  1  Stor.  C.  C.  273  ; 

1  Mas.  C.  C.  188,  475  ;  1  Gall.  C.  C.  438,  478  ; 

2  id.  51  ;  1  Sumn.  C.  C.  482;  3  Wheat.  534; 
7  id.  356.  If  the  invention  consists  of  an 
improvement,  the  patent  should  be  confined 
thereto,  and  should  clearly  distinguish  the 
improvement  from  the  prior  machine,  so 
as  to  show  that  the  former  only  is  claimed. 
1  Gall.  C.  C.  438,  478  ;  2  id.  51 ;  1  Mas.  C. 
C.  447  ;  3  McLean,  C.  C.  250.  Ambiguous 
terms  should  be  avoided ;  nothing  material 
to  the  use  of  the  invention  should  be  omitted ; 
and  the  necessity  of  trials  and  experiments 
should  not  be  thrown  upon  the  public. 

Of  re-issues.  It  often  happens  that 
errors,  defects,  and  mistakes  occur  in  the 
specification  of  a  patent,  by  which  it  is 
rendered  wholly  or  partially  inoperative  and 
perhaps  invalid.  To  provide  a  remedy  in 
such  cases,  the  thirteenth  section  of  the  act 
of  1836  declares  that  when  such  errors  or 
defects  are  the  result  of  inadvertency,  ac- 
cident, or  mistake,  without  any  fraudulent 
or  deceptive  intention,  the  patent  may  be 
surrendered  by  the  patentee,  his  executors, 
administrators,  or  assigns,  and  a  new  patent 
issued  in  proper  shape  to  secure  the  real 
invention  intended  to  be  patented  originally. 
The  identity  between  the  invention  described 
in  the  re-issued  and  that  in  the  original  pat- 
ent is  a  question  of  fact  for  the  jury.  4 
How.  380.  But  see  Burr  vs.  Duryea,  1  Wal- 
lace, 531. 

A  re-issued  patent  is  to  have  the  same 
efi'ect  and  operation  in  law,  on  the  trial  of  all 
actions  for  causes  subsequently  accruing,  as 
though  the  patent  had  been  originally  issued 
in  such  corrected  form.  See  Act  of  1836,  § 
13.  From  this  it  appears  that  after  a  re-issue 
no  action  can  be  brought  for  a  past  infringe- 
ment of  the  patent,  unless  the  act  would  have 
been  an  infringement  of  the  patent  as  it  stood 
previous  to  the  re-issue.  But,  as  the  bare  use 
of  a  patented  machine  is  (if  unauthorized)  an 
infringement  of  the  rights  of  the  patentee,  a 
machine  constructed  and  lawfully  used  prior 
to  the  re-issue  may  be  an  infringement  of  the 
patent  if  used  afterwards.  The  re-issued 
patent  will  expire  when  the  original  patent 
would  have  expired.  The  patent  fee  in  cases 
of  re-issue  is  thirty  dollars. 

For  the  principles  applicable  to  a  surrender 
!  and  re-issue,  and  the  extent  to  which  the 
j  action  of  the  commissioner  of  patents  is  con- 
I  elusive,  see  2  McLean,  C.  C.  35 ;  2  Stor.  C.  C. 
I  432;  3  id.  749;  4  How.  380,  646;  15  id.  112; 
I  17  id.  74;  6  Pet.  218;  7  id.  202:  1  Woodb. 
&  M.  C.  C.  248 ;  2  id.  121.    The  re-issued 
patent  is  not  a  new  patent;  and  an  existing 
contract  concerning  the  patent  before  its  sur- 
render applies  equally  to  it  after  the  surren- 
der and  re-issue.    11  Cush.  Mass.  569. 

IS.  Of  patents  for  designs.  The  act  of 
1861  permits  any  citizen,  or  any  alien  who 
has  resided  one  year  in  the  United  States  and 


PATENT 


302 


PATENT 


has  taken  his  oath  of  intention  to  become  a 
citizen,  to  obtain  a  patent  for  a  design,  which 
shall  continue  in  force  for  three  and  a  half, 
seven,  or  fourteen  years,  at  the  option  of  the 
applicant,  upon  the  payment  of  a  fee  of  ten, 
fifteen,  or  thirty  dollars,  according  to  the 
length  of  the  patent  obtained.  These  pat- 
ents are  granted  wherever  the  applicant,  by 
his  own  industry,  genius,  efforts,  and  expense, 
may  have  invented  or  produced  any  new  and 
original  design  for  a  manufacture,  whether 
of  metal  or  other  material  or  materials,  any 
original  design  for  a  bust,  statue,  or  bas-re- 
lief, or  composition  in  alto  or  basso  relievo,  or 
any  new  and  original  impression  or  ornament, 
or  to  be  placed  on  any  article  of  manufacture, 
the  same  being  formed  in  marble  or  other 
material,  or  any  new  and  useful  pattern,  or 
print,  or  picture,  to  be  either  worked  into  or 
worked  on,  or  printed,  or  painted,  or  cast,  or 
otherwise  fixed,  on  any  article  of  manufacture, 
or  any  new  and  original  shape  or  configuration 
of  any  article  of  manufacture,  not  known  or 
used  by  others  before  his,  her,  or  their  inven- 
tion or  production  thereof,  and  prior  to  the 
time  of  his,  her,  or  their  application  for  a 
patent  therefor. 

The  general  method  of  making  the  applica- 
tion is  the  same  as  has  been  hereinbefore  de- 
scribed, and  the  patent  issues  in  a  similar  form. 

19.  Of  disclaimers.  The  seventh  section 
of  the  act  of  1837  provides  that  whenever 
any  patentee  shall  have,  through  inadvert- 
ence, accident,  or  mistake,  made  his  speci- 
fication of  claim  too  broad,  claiming  more 
than  that  of  which  he  was  the  original  or 
first  inventor, — some  material  and  substan- 
tial part  of  the  thing  patented  being  truly 
and  j  ustly  his  own, — any  such  patentee,  his  ad- 
ministrators, executors,  and  assigns,  whether 
of  the  whole  or  of  a  sectional  interest  therein, 
may  make  disclaimer  of  such  parts  of  the 
thing  patented  as  the  disclaimant  shall  not 
claim  to  hold  by  virtue  of  the  patent  or 
assignment,  stating  therein  the  extent  of  his 
interest  in  such  patent;  which  disclaimer 
shall  be  in  writing,  attested  by  one  or  more 
witnesses,  and  recorded  in  the  patent  office, 
on  payment  by  the  person  disclaiming,  in 
manner  as  other  patent  duties  are  required 
by  law  to  be  paid,  of  the  sum  of  ten  dollars. 
And  such  disclaimer  shall  thereafter  be  taken 
and  considered  as  part  of  the  original  speci- 
fication, to  the  extent  of  the  interest  which 
shall  be  possessed  in  the  patent  or  right 
secured  thereby  by  the  disclaimant  and  by 
those  claiming  by  or  under  him  subsequent 
to  the  record  thereof.  But  no  such  dis- 
claimer shall  affect  any  action  pending  at 
the  time  of  its  being  filed,  except  so  far  as 
may  relate  to  the  question  of  unreasonable 
neglect  or  delay  in  filing  the  same." 

StO.  To  understand  the  object  and  purpose 
of  some  of  these  provisions,  it  must  be  known 
that  by  the  fifteenth  section  of  the  act  of 
183G  it  was  provided  that  it  should  be  a  good 
defence  to  an  action  for  infringement  that  the 
specification  was  too  broad ;  and  although 
this  was  modified  by  the  ninth  section  of  the 


act  of  1837  so  as  to  permit  a  patentee  who 
by  mistake,  accident,  or  inadvertence,  and 
without  any  wilful  intent,  had  claimed  some 
things  of  which  he  was  not  the  first  inventor, 
to  recover  damages  for  the  infringement  of 
what  was  really  his  invention,  where  the 
parts  invented  could  be  clearly  separated 
from  the  parts  improperly  claimed,  yet  in 
such  cases  the  plaintiff  was  not  entitled  to 
recover  costs  unless  previous  to  the  com 
mencement  of  the  suit  he  had  eutrrcd 
disclaimer  for  that  which  was  uot  his  inve\i' 
tion.    But  no  person  can  avail  himself  c 
the  benefits  of  this  provision  who  has  un 
reasonably  neglected  or  delayed  to  enter  his 
disclaimer.    The  .provisions  authorizing  dis- 
claimers, and  their  effect  upon  the  question 
of  costs,  are  discussed  in  1  Stor.  C.  C.  590 
1  Blatchf.  C.  C.  244,  445  ;  2  id.  194 ;  15  How 
121 ;  19  id.  96 ;  20  id.  378 ;  3  N.  Y.  9  ;  5  Den 
N.  Y.  314. 

Not  only  the  patentee,  but  his  executors, 
administrators,  and  assigns,  whether  of  a 
whole  or  sectional  interest,  may  enter  a  dis- 
claimer ;  but  a  disclaimer  by  one  owner  will 
not  affect  the  interest  of  any  other  owner. 

21.  Of  the  extension  of  a  patent.  Pat- 
ents were  formerly  granted  for  fourteen  years, 
the  commissioner  of  patents  being  author- 
ized in  special  cases  to  extend  the  same  for 
seven  years  longer.  But  by  the  act  of  1861 
the  length  of  time  for  the  patent  to  run  was 
extended  to  seventeen  years,  and  the  right 
to  an  extension  on  such  patents  was  denied. 
The  only  extensions  hereafter  granted  will, 
therefore,  be  of  patents  issued  before  March 
2,  1861. 

The  extension  cannot  be  made  after  the  patr 
ent  expires ;  but  it  may  be  granted  to  an  admi- 
nistrator as  well  as  to  the  patentee.  3  Stor.  C. 
C.  171 ;  4  How.  646 ;  3  McLean,  C.  C.  250. 

Sixty  days'  notice  of  the  application  must 
be  given  through  newspapers.  The  appli- 
cant must  apply  to  the  commissioner  in 
proper  time,  which  is  about  three  months 
prior  to  the  expiration  of  the  patent.  After 
paying  a  fee  of  fifty  dollars,  he  must,  in 
accordance  with  the  act  of  congress  and  the 
rules  of  the  office,  file  a  sworn  statement  of 
his  receipts  and  expenditures,  sufficiently  in 
detail  to  exhibit  a  true  and  faithful  account 
of  loss  and  profit  in  any  manner  accruing  to 
him  from  and  by  reason  of  said  invention. 
See  Act  of  1836, 18  ;  Act  of  1848,  H  ;  and 
Act  of  1861,  §  10. 

Any  person  may  appear  and  show 
cause  against  the  extension  of  the  patent. 
But  if,  after  all  is  done,  the  commissioner  is 
fully  satisfied  that,  having  due  regard  to  the 
public  interest,  it  is  just  and  proper  that  the 
term  of  the  patent  should  be  extended,  by 
reason  of  the  patentee,  without  neglect  or 
fault  on  his  part,  having  failed  to  obtain  from 
the  use  and  sale  of  his  invention  a  reason- 
able remuneration  for  the  time,  ingenuity, 
and  expense  bestowed  upon  the  same  an^l  the 
introduction  thereof  into  use,  it  is  rendered 
his  duty  to  grant  the  extension  as  prayed  for. 
And  thereupon  the  patent  has  the  same  effect 


PATENT 


303 


PATENT 


in  law  as  though  it  had  been  originally 
granted  for  the  term  of  twenty-one  years. 
The  extension  enures  only  to  the  benefit  of 
r,he  patentee,  and  not  of  his  assignees,  unless 
tut  has  contracted  to  con^ey  to  tliem  an  inte- 
rest or  right  therein.  But  the  assignee  has 
1  right  to  continue  the  use  by  himself  of  the 
patented  machine  which  he  is  using  at  the 
time  of  the  renewal,  4  How.  646,  709,  712; 
19  id.  211 ;  3  McLean,  C.  C.  250 ;  4  id.  52() ; 
1  Bhitchi'.  C.  C.  167,  258 ;  2  id.  471 ;  3  Stor. 
0.  C.  122,  171 ;  and  a  purchaser  may  repair 
hi!«  own  machine,  when  necessary,  though 
the  repair  Cvinsist  in  the  replacement  of  an 
essentia:  part  of  the  combination  patented. 
9  IIow  lOy.  Upon  the  granting  of  an  ex- 
tension, ai.  additional  fee  of  fifty  dollars  is 
required     Act  cf  1861,  §  10. 

The  act  ot  the  commissioner  in  granting  the 
extension  is  ^inclusive,  in  the  absence  of  fraud 
or  excess  of  jurisdiction.    2  Curt.  C.  C.  506. 

•13.  0/  tht  assignment  of  patents.  The 
eleventh  'section  of  the  act  of  1836  authorizes 
the  assignment  of  a  patent,  either  in  whole 
or  in  part,  bj  any  instrument  in  writing, — 
which  assignment  must  be  recorded  in  the 
patent  office  within  three  months  from  the 
execution  thereof  But  it  has  been  held 
that  this  provision  for  recording  is  directory 
merely,  for  the  protection  of  bond  fide  pur- 
chasers without  notice,  and  not  an  absolute 
prerequisite  tu  the  validity  of  the  assignment. 
.2  Stor  C.  C.  52b,  2  Blatchf.  0.  C.  144;  3 
McLean  C.  (?.  42''  ;  4  id.  527  ;  G  Ind.  428  ; 
28  Mo.  539;  2  N  U.  61;  18  Conn.  377.  It 
has  been  accordingly,  determined  that  the 
recording  might  take  place  not  only  after 
the  expiration  of  three  months,  but  even 
after  suit  brought.    2  Stor.  C.  C.  609. 

24.  Strictly  speaking,  the  w  i-d  "  assign- 
ment" appliei?  to  the  transfer  cf  the  entire 
interest  of  the  inventor,  or  to  a  fraction  of 
that  entire  interest  running  throughout  the 
whole  United  States.  A  conveyance  oi  an 
exclusive  interest  within  and  throughout  any 
specified  part  or  oortion  of  the  United  States 
is  more  properly  denominated  a  grant  A 
mere  authority  or  permission  tu  use,  seil  or 
manufacture  the  thing  patented,  either  in 
the  whole  United  States  or  in  any  specific 
portion  thereof,  is  knjwn  as  a  license  But 
all  three  are  sometimes  included  under  the 
general  term  of  an  assignment.  Whore  the 
assignment,  however,  iw  not  ot  the  patent 
itself,  or  of  any  undivided  part  thereol,  or 
of  any  right  therein  limited  to  a  particular 
locality,  but  constitutes  m.^rely  a  license  or 
authority  from  the  patentee,  not  exclusive 
and  not  transferring  any  interest  in  the 
patent  itself,  it  has  been  held  that  it  need 
not  be  recorded.  2  Stor.  C  0.  541.  Acts 
in  pais  will  sometimes  justify  the  presunip 
tion  of  a  license.  1  How.  202  ,  17  Pet.  228 ; 
3  Stor.  C.  C.  402.  As  to  the  distinction 
between  a  license  and  assignment,  see  10 
How.  477. 

An  assignment  may  be  made  prior  to  the 
granting  of  a  patent.  And  when  duly  made 
and  recorded,  the  patent  may  be  issued  to 


the  assignees.  See  Act  of  1836,  g  6.  This, 
however,  only  applies  to  cases  of  assign- 
ments proper,  as  contradistinguished  from 
grants  or  licenses.  The  applicaticm  must, 
however,  in  such  cases  Vjc  made  and  the 
specification  sworn  to  by  the  inventor.  See 
5  McLean,  C.  C.  131 ;  4  Wash.  0.  C.  71 ;  4 
Mas.  C.  C.  15  ;  1  Blatchf.  C.  C.  506.  The 
assignment  transfers  the  right  to  the  as- 
signee although  the  patent  should  be  after- 
wards issued  to  the  assignor.  10  IIow.  477. 
See  1  Wash.  C.  C.  168 ;  4  Mas.  C.  C.  15  ;  7 
Ham.  249. 

It  has  also  been  held  by  the  attorney-gene- 
ral of  the  United  States  that,  if  the  inventor 
desires  the  patent  to  issue  to  himself  and 
another  person  jointly,  it  is  not  enough  for 
him  to  convey  an  interest  to  the  other  party, 
retaining  the  remainder  himself ;  but  he  must 
make  a  joint  conveyance  to  himself  and  the 
other  party. 

The  fee  for  recording  an  assignment,  if  it 
does  not  contain  more  than  three  hundred 
words,  is  one  dollar ;  if  more  than  three 
hundred  and  not  more  than  one  thousand,  it 
is  two  dollars ;  and  if  more  than  one  thousand, 
it  is  three  dollars. 

25.  Of  joint  inventors.  The  patent  must 
in  all  cases  issue  to  the  inventor,  if  alive  and 
if  he  has  not  assigned  his  interest.  And 
if  the  invention  is  made  jointly  by  two  in- 
ventors, the  patent  must  issue  to  them  both. 
This  is  equally  the  case  where  one  makes  a 
portion  of  the  invention  at  one  time  and 
another  at  another  time.  A  failure  to  ob- 
serve this  rule  may  prove  fatal  to  the  validity 
of  the  patent.    See  1  Mas.  C.  C.  447. 

Of  executors  and  administrators.  The 
tenth  section  of  the  act  of  1836  provides 
that,  where  an  inventor  dies  before  obtain- 
ing a  patent,  his  executor  or  administrator 
may  apply  for  and  obtain  such  patent,  hold- 
ing it  in  trust  for  the  heirs  at  law  or  devisees, 
accordingly  as  the  inventor  died  intestate  or 
testate.  Nothing  is  said  as  to  its  being 
appropriated  to  the  payment  of  debts  ;  but, 
having  once  gone  into  the  hands  of  the  ex- 
ecutt)rs  or  administrators,  it  would  perhaps 
become  assets,  and  be  used  like  other  personal 
property.  In  England,  a  patent  will  pass  as 
assets  tn  assignees  in  bankruptcy.  3  Bos.  & 
P.  565 

The  right  to  make  a  surrender  and  receive 
a  re-issue  of  a  patent  also  vests  by  law  in  the 
executor  or  administrator.  See  Act  of  1836, 
§  13  The  law  further  provides  that  the 
executor  or  administrator  may  make  the  oath 
necessary  to  obtain  the  patent, — diflering  in 
this  respect  from  the  case  of  an  assignment, 
where,  although  the  patent  issues  to  the  as- 
signee, the  inventor  must  make  the  oath. 

26.  The  liability  of  a  patent  to  be  levied 
upon  for  debt.  The  better  opinion  is  that 
letters  patent  cannot  be  levied  upon  and  sold 
by  a  common-law  execution.  The  grant  of 
privilege  to  the  patentee  would,  from  its 
incorporeal  nature,  seem  to  be  incapable  of 
manual  seizure  and  of  sale.  Even  if  such  a 
sale  were  made,  there  does  not  appear  to  be 


PATENT 


304 


PATENT 


1 


any  provision  in  the  acts  of  congress  which 
contemplates  the  recording  of  a  sheriff's  deed ; 
and  without  a  valid  record  the  patentee  might 
nevertheless  make  a  subsequent  transfer  to 
a  bond  fide  purchaser  without  notice,  which 
would  be  valid. 

But  this  peculiar  species  of  property  may, 
perhaps,  be  subjected  to  the  payment  of 
debts  through  the  instrumentality  of  a  bill 
in  equity.  The  chancellor  can  act  upon  the 
person.  He  can  direct  the  patent  to  be  sold, 
and  by  attachment  can  compel  the  patentee 
to  execute  a  conveyance  to  the  purchaser. 
The  assignment  thus  executed  will  be  re- 
covered, and  the  transfer  will  thus  become 
complete. 

These  seem  to  be  the  views  deducible  from 
the  decisions  in  1  Gall.  C.  C.  458 ;  14  How. 
528  ;  17  id.  448. 

527.  How  far  a  patent  is  retroactive.  By 
the  earlier  law  on  this  subject  in  the  United 
States,  a  patent,  when  granted,  operated  re- 
troactively :  so  that  a  machine  covered  by 
the  terms  of  the  patent,  though  constructed 
previously  to  the  date  of  that  instrument, 
could  not  be  used  after  the  issuing  of  the 
patent  without  subjecting  the  party  so  using 
it  to  an  action  for  infringement.  Of  course 
the  use  of  the  machine  previous  to  the  date 
of  the  patent  was  not  unlawful. 

The  seventh  section  of  the  act  of  1839 
provides  "  that  every  person  or  corporation 
who  has  or  shall  have  purchased  or  con- 
structed any  newly-invented  machine,  manu- 
facture, or  composition  of  matter  prior  to  the 
application  by  the  inventor  or  discoverer  for 
a  patent  shall  be  held  to  possess  the  right  to 
use,  and  vend  to  others  to  be  used,  the  specific 
machine,  manufacture,  or  composition  of  mat- 
ter so  made  or  purchased,  without  liability 
therefor  to  the  inventor  or  any  other  person 
interested  in  such  invention." 

At  present,  therefore,  property  rightfully 
acquired  in  a  specific  machine  cannot  be 
affected  by  a  patent  subsequently  applied 
for  by  the  patentee.  It  has  been  held,  how- 
ever, that,  under  the  general  grant  contained 
in  the  constitution,  congress  has  power  to 
pass  a  special  act  which  shall  operate  retro- 
spectively so  as  to  give  a  patent  for  an 
invention  already  in  public  use.  3  Wheat. 
454 ;  2  Stor.  C.  C.  164 ;  3  Sumn.  C.  C.  535. 
The  infringement  must  be  subsequent  to  the 
date  of  the  patent ;  but  on  the  question  of 
novelty  the  patent  will  be  considered  as  re- 
lating back  to  the  original  discovery.  4 
Wash.  C.  C.  G8,  703. 

28.  Of  foreign  inventors.  An  alien  who 
has  resided  one  year  in  the  United  States, 
and  who  has  taken  an  oath  of  his  intention 
to  become  a  citizen,  stands,  so  far  as  the  pat- 
ent law8  are  concerned,  in  the  same  position 
as  a  native-born  citizen  ;  but  other  foreigners 
have  not  in  all  respects  the  same  rights  and 
advantages. 

There  is  still  a  discrimination  in  the  rate 
of  fees  to  be  paid  by  the  inhabitants  of  those 
countries  which  discriminate  against  our 
citizens.    See  Act  of  1801,  g  10.    Nor  are 


aliens  permitted  to  file  a  caveat  or  to  apply 
for  a  patent  for  a  design.  In  these  latter 
respects  the  disability  may  have  been  unin- 
tentional, but  it  is  nevertheless  real.  There 
is  also  another  marked  difference  made  by 
law  between  a  domestic  and  a  foreign  pat- 
entee. The  former  is  under  no  legal  obli- 
gation to  bring  his  invention  into  use.  He 
may  not  only  fail  to  use  it  himself,  but 
may  utterly  refuse  to  allow  it  to  be  used  by 
any  one  else  upon  any  terms  whatever.  In 
this  way  he  may  prevent  the  public  from 
enjoying  any  benefit  from  the  invention  for 
the  whole  term  of  fourteen  years,  without  in 
any  respect  affecting  the  rights  conferred  by 
his  patent. 

But  if  the  foreign  patentee  fails  and 
neglects  for  the  space  of  eighteen  months 
from  the  date  of  his  patent  to  put  and  con- 
tinue his  invention  on  sale  to  the  public 
on  reasonable  terms,  his  patent  is  rendered 
wholly  invalid.  Act  of  183G,  |  15.  An 
American  assignee  of  an  alien  inventor  is 
not,  however,  within  the  provisions  of  the 
act ;  and  even  the  alien  patentee  is  not  bound 
to  prove  that  he  hawked  the  invention  to 
obtain  a  market  for  it ;  but  it  rests  on  those 
who  seek  to  defeat  the  patent  to  prove  that 
the  patentee  neglected  or  refused  to  sell  the 
patented  inyention  for  reasonable  prices  when 
application  was  made  to  him  to  purchase.  2 
Blatchf.  C.  C.  49. 

29.  Penalties  provided  in  certain  cases. 
The  fifth  section  of  the  act  of  1842  provides 
"  that  if  any  person  or  persons  shall  paint, 
or  print,  or  mould,  cast,  carve,  or  engrave, 
or  stamp,  upon  any  thing  made,  used,  or  sold 
by  him,  for  the  sole  making  or  selling  of 
which  he  hath  not  or  shall  not  have  obtained 
letters  patent,  the  name  or  any  imitation 
of  the  name  of  any  other  person  who  hath 
or  shall  have  obtained  letters  patent  for  the 
sole  making  and  vending  of  such  thing, 
without  consent  of  such  patentee  or  his  as- 
signs or  legal  representatives  ;  or  if  any  per- 
son upon  any  such  thing,  not  having  been 
purchased  from  the  patentee  or  some  person 
who  purchased  it  from  or  under  such  pat- 
entee, or  not  having  the  license  or  consent 
of  such  patentee  or  his  assigns  or  legal 
representatives,  shall  write,  paint,  print, 
mould,  cast,  carve,  engrave,  stamp,  or  other- 
wise make  or  affix,  the  word  '  patent,^  or  the 
words '  letters  patent,'  or  the  word  *  patentee,' 
or  any  word  or  words  of  like  kind,  meaning 
or  import,  with  the  view  or  intent  of  imi- 
tating or  counterfeiting  the  stamp,  mark,  or 
other  device  of  the  patentee ;  or  shall  afl&x 
the  same,  or  any  word,  stamp,  or  device  of 
like  import,  on  any  unpatented  article,  for 
the  purpose  of  deceiving  the  public,  he,  she, 
or  they  so  offending  shall  be  liable  for  such 
offence  to  a  penalty  of  not  less  than  one 
hundred  dollars,  with  costs,  to  be  recovered 
by  action  in  any  of  the  circuit  courts  of  the 
United  States,  or  in  any  of  the  district  courts 
of  the  United  States  having  the  powers  andi 
jurisdiction  of  a  circuit  court.  One-half  of  I 
such  penalty  so  recovered  shall  be  paid  to  the. 


PATENT 


305 


PATENT 


patent  fund,  and  the  other  half  to  any  person 
who  shall  sue  for  the  same." 

30.  The  thirteenth  section  of  the  act  of 
1861  declares  that  in  all  cases  where  an 
terticle  is  made  or  vended  by  any  person 
under  the  protection  of  letters  patent,  it 
shall  be  the  duty  of  such  person  to  give 
suflBcient  notice  to  the  public  that  said  article 
is  so  patented,  either  by  fixing  thereon  the 
word  "  patented,"  together  with  the  day  and 
year  the  patent  was  granted,  or  when,  from 
the  character  of  the  article  patented,  that 
may  be  impracticable,  by  enveloping  one  or 
more  of  the  said  articles,  and  affixing  a  label 
to  the  package,  or  otherwise  attaching  thereto 
a  label,  on  which  the  notice,  with  the  date, 
is  printed ;  on  failure  of  which,  in  any  suit 
for  the  infringement  of  letters  patent  by  the 
party  failing  so  to  mark  the  article  the  right 
10  which  is  infringed  upon,  no  damage  shall 
he  recovered  by  the  plaintiff,  except  on  proof 
that  the  defendant  was  duly  notified  of  the 
infringement,  and  continued  after  such  notice 
to  make  or  vend  the  article  patented. 

The  act  of  congress  of  Feb.  28,  1839,  5 
U.  S.  Stat,  at  Large,  322,  establishes  a  five- 
years  limitation  of  suits  or  prosecutions  for 
a  penalty  under  the  laws  of  the  United  States. 
The  penalty  of  not  less  than  one  hundred  dol- 
lars, imposed  by  the  act,  is  a  penalty  of  one  hun- 
dred dollars  and  no  more.    2  Curt.  C.  C.  502. 

A  similar  statute— that  of  5  &  6  Will.  IV. 
c.  83 — exists  in  England,  for  observations 
upon  which  see  Hindmarch,  Patents,  366. 
It  has  been  decided  under  that  statute  that 
where  there  has  been  an  unauthorized  use 
of  the  word  patent"  it  must  be  proved  that 
the  word  was  used  with  a  view  of  imitating 
or  counterfeiting  the  stamp  of  the  patentee, 
and  that  it  is  no  defence  that  the  patented 
article  imitated  was  not  a  new  manufacture, 
the  grant  of  the  patent  being  conclusive  on 
the  defendant.    3  Hurlst.  &  N.  Exch.  802. 

31.  Of  infringements.  The  criterion  of 
infringement  is  substantial  identity  of  con- 
struction or  operation.  Mere  changes  of 
form,  proportion,  or  position,  or  substitution 
of  mechanical  equivalents,  will  be  infringe- 
ments, unless  they  involve  a  substantial 
difference  of  construction,  operation,  or  effect. 
3  McLean,  C.  C.  250,  432;  1  Wash.  C.  C. 
108;  15  How.  02;  1  Curt.  C.  C.  279;  1 
McAll.  C.  C.  48.  As  a  general  rule,  when- 
ever the  defendant  has  incorporated  in  his 
structure  the  substance  of  what  the  plaintiff 
has  invented  and  properly  claimed,  he  is 
responsible  to  the  latter.  Burr  vs,  Duryea, 
1  Wallace,  531. 

Where  the  patent  is  for  a  new  combination 
of  machines  to  produce  certain  effects,  it  is 
no  infringement  to  use  any  of  the  machines 
separately,  if  the  whole  combination  is  not 
used.  1  Mas.  C.  C.  447;  2  id,  112;  1  Pet. 
C.  C.  322 ;  1  Stor.  C.  C.  568  ;  2  id.  190  ;  16 
Pet.  336  ;  3  McLean,  C.  C.  427  ;  4  id.  70  ;  6 
id.  539  ;  14  How.  219  ;  24  Vt.  66  ;  1  Black, 
427  ;  1  Wallace,  78.  But  it  is  an  infringe- 
ment to  use  one  of  several  improvements 
claimed,  or  to  use  a  substantial  part  of  the 

Vol.  IL— 20 


invention,  although  with  some  modification 
or  even  improvement  of  form  or  apparatus. 

2  Mas.  C.  C.  112  ;  1  Stor.  C.  C.  273.  Where 
the  patent  describes  and  claims  a  m.achine, 
it  cannot  be  construed  to  be  for  a  process  or 
function,  so  as  to  make  all  other  machines 
infringements  which  perform  the  same  func- 
tion ;  and  no  infringement  will  in  such  case 
take  place  where  the  practical  manner  of 
giving  effect  to  the  principle  is  by  a  different 
mechanical  structure  and  mechanical  action. 
15  IIow.  252.  If  the  patentee  is  the  inventor 
of  a  device,  he  may  treat  as  infringers  all 
who  make  a  similar  device  operating  on  the 
same  principle  and  performing  the  same 
functions  by  analogous  means  or  equivalent 
combinations,  although  the  infringing  ma- 
chine may  be  an  improvement  of  the  original 
and  patentable  as  such.  But  if  the  inven- 
tion claimed  is  itself  but  an  improvement  on 
a  known  machine,  by  a  mere  change  of  form 
or  combination  of  parts,  it  will  not  be  an 
infringement  to  improve  the  original  machine 
by  the  use  of  a  different  form  or  combina. 
tion  of  parts  performing  the  same  functions 
The  doctrine  of  equivalents  does  not  in  such 
case  apply,  unless  the  subsequent  improve- 
ments are  mere  colorable  invasions  of  the 
first.    20  How.  405. 

A  sale  of  the  thing  patented  to  an  agent 
of  the  patentee,  employed  by  him  to  make 
the  purchase  on  account  of  the  patentee,  \% 
not  j^er  se  an  infringement,  although,  accom- 
panied by  other  circumstances,  it  may  be  evi 
dence  of  infringement.    1  Curt.  C.  C.  260. 

The  making  of  a  patented  machine  for 
philosophical  experiment  only,  and  not  foT 
use  or  sale,  has  been  held  to  be  no  infringe- 
ment, 1  Gail.  C.  C.  429,  485  ;  but  a  use  with 
a  view  to  an  experiment  to  test  its  value  is 
an  infringement.  4  Wash.  C.  C.  580.  Thf5 
sale  of  the  articles  produced  by  a  patented 
machine  or  process  is  not  an  infringement, 

3  McLean,  C.  C.  295  ;  4  How.  709 ;  nor  is 
the  bond  fde  purchase  of  patented  articles 
from  an  infringing  manufacturer.  10  Wheat. 
359.  As  to  infringement  by  a  railroad  cor- 
poration, where  its  road  was  worked  and  its 
stock  owned  by  a  connecting  road,  soe  17 
How.  30.  Ignorance  by  the  infringer  of  the 
existence  of  the  patent  infringed  is  no  defence, 
but  may  mitigate  damages.    11  How.  587. 

32.  Of  damages  for  infringements.  The 
act  of  1836,  I  14,  provides  "that  whenever, 
in  any  action  for  damages  for  making,  using, 
or  selling  the  thing  whereof  the  exclusive 
right  is  secured  by  any  patent  heretofore 
granted,  or  by  any  patent  which  may  here- 
after be  granted,  a  verdict  shall  be  rendered 
for  the  plaintiff  in  such  action,  it  shall  be  in 
the  power  of  the  court  to  render  judgment 
of  any  sum  above  the  amount  found  by  such 
verdict  as  the  actual  damages  sustained  by 
the  plaintiff,  not  exceeding  three  times  the 
amount  thereof,  according  to  the  circum- 
stances of  the  case,  with  costs.  And  such 
damages  may  be  recovered  by  action  on  the 
case  in  any  court  of  competent  jurisdiction, 
to  be  brought  in  the  name  or  names  of  the 


PATENT  OFFICE 


306 


PATENT  OFFICE 


person  or  persons  interested,  whether  as  pat- 
entee, assignees,  or  as  grantees  of  the  exclu- 
sive right  within  and  throughout  a  specified 
part  of  the  United  States." 

The  actual  damage  is  all  that  can  be 
allowed  by  a  jury,  as  contradistinguished 
from  exemplary,  vindictive,  and  punitive 
damages.  The  amount  of  defendant's  pro- 
fits from  the  unlawful  user  is,  in  general,  the 
measure  of  the  plaintifi'^s  damages  ;  and  this 
may  be  determined  by  the  plaintiff's  price 
for  a  license.  11  How.  607  ;  15  id.  546  ;  16 
id.  480;  20  id.  198;  1  Gall.  C.  C.  476;  1 
Blatchf.  C.  C.  244,  405  ;  2  id.  132,  194,  229, 
476.  The  rule  of  damages  is  different  where 
a  patent  is  only  for  an  improvement  on  a  ma- 
chine and  where  it  is  for  an  entire  machine. 
16  How.  480.  If  there  be  a  mere  making 
and  no  user  proved,  the  damages  should  be 
nominal.    1  Gall.  C.  C.  476. 

33.  Jurisdiction  of  cases  under  the  patent 
laws.  The  act  of  1836,  ^17,  gives  original 
jurisdiction  to  the  circuit  courts  of  the 
United  States  in  all  cases  arising  under  the 
laws  of  the  United  States  granting  exclusive 
privileges  to  inventors.  This  jurisdiction 
extends  both  to  law  and  equity,  and  is  irre- 
spective of  the  citizenship  of  the  parties  or 
the  amount  in  controversy.  The  prevailing 
opinion  is  that  the  jurisdiction  of  the  federal 
courts  is  exclusive  of  that  of  the  state  courts. 
3  N.  Y.  9  ;  8  Paige,  Ch.  N.  Y.  132  ;  40  Me. 
430.  But  this  is  to  be  understood  of  cases 
arising  directly  under  the  acts  of  congress, 
and  not  of  those  where  the  patent  comes 
collaterally  in  question :  as,  for  instance, 
where  it  is  the  subject-matter  of  a  contract 
or  the  consideration  of  a  promissory  note. 
3  McLean,  C.  C.  525  ;  1  Woodb.  &  M.  C.  C. 
34 ;  16  Conn.  409.  Hence,  a  bill  to  enforce 
the  specific  performance  of  a  contract  for 
the  sale  of  a  patent-right  is  not  such  a  case 
arising  under  the  patent  laws  as  gives  juris- 
diction to  the  federal  courts.  10  How.  477. 
By  the  act  of  February  18,  1861,  a  writ  of 
error  or  appeal  lies  to  the  supreme  court  of 
the  United  States  from  all  judgments  or  de- 
crees of  any  circuit  court  in  any  suit  under 
the  patent  law,  without  respect  to  the  sum 
or  value  in  controversy  in  the  action. 
,  The  principal  authors  of  works  upon  the 
general  subject  are — Curtis,  Phillips,  and 
Fessenden,  in  this  country ;  Webster,  Hind- 
jnarch,  Carpmael,  Godson,  Coryton,  Lund, 
Norman,  and  Turner,  in  England ;  and  Re- 
nouard  and  Perpigna,  in  France. 

See  Abandonment  of  Invention  ;  Caveat  ; 
Commissioner  of  Patents;  Extension  of 
Patents ;  Infringement  ;  Interference ; 
Invention;  Machine;  Manufacture;  Mod- 
els ;  Patent  Office  ;  Patent  Office,  Ex- 
aminers In  ;  Process  ;  Utility  ;  With- 
drawal. 

PATENT  OFFICE.  The  office  through 
which  applications  for  patents  are  made,  and 
from  which  those  patents  emanate. 

Some  provision  for  the  purpose  of  issuing  pat- 
ents is,  of  course,  found  in  every  country  where 
ibe  system  of  granting  patents  for  inventions  pre- 


vails ;  but  nowhere  else  is  there  an  establishment  1 
which  is  organized  in  all  respects  on  the  same  scale  j 
as  the  United  States  Patent  Office.  ] 
By  the  act  of  1790,  the  duty  of  transacting  this  | 
business  was  devolved  upon  the  secretary  of  state,  ] 
the  secretary  of  war,  and  the  attorney-general.  In  ' 
the  provision  for  a  board  for  this  purpose  found  in  \ 
the  act  of  1793,  the  secretary  of  war  is  omitted. 
From  that  time  during  a  period  of  more  than  forty  j 
years  all  the  business  connected  with  the  granting  \ 
of  patents  was  transacted  by  ^  clerk  in  the  office  \ 
of  the  secretary  of  state, — the  duties  of  the  l  ecre- 
tary  in  this  respect  being  little  more  than  nominal, 
and  the  attorney -genersil  acting  only  as  a  legal 
adviser. 

The  act  of  July  4,  1836,  reorganized  the  office 
and  gave  it  a  new  and  higher  position.  A  com- 
missioner of  patents  was  constituted.  Provision 
was  made  for  a  library,  which  has  since  become 
one  of  the  finest  of  the  kind  in  the  country.  The 
law  authorized  the  appointment  of  four  clerks, 
together  with  a  draughtsman,  machinist,  and  mes- 
senger. One  of  these  clerks  was  to  be  an  examiner; 
but  so  rapidly  has  the  business  of  the  office  in- 
creased since  that  date  that  there  are  now  nearly 
thirty  examiners  and  assistants  constantly  em- 
ployed, and  nearly  one  hundred  persons  in  all  who 
are  attached  to  the  patent  office. 

The  patent  office,  from  being  a  mere  clerkship  in 
the  state  department,  became  almost  a  department 
of  itself.  It  was,  after  its  reorganization  in  1836, 
attached  as  a  bureau  to  the  state  department,  and 
afterwards  to  that  of  the  interior;  but  still  it  occu- 
pied a  station  of  little  more  than  nominal  depend- 
ence upon  either.  The  commissioner  had  the  sole 
appointment  of  many  of  his  subordinates,  and  the 
remainder  were  appointed  by  him  subject  to  the 
approval  of  the  secretary.  All  the  funds  of  the 
office  were  placed  under  his  exclusive  control. 
His  decisions  in  relation  to  the  granting,  re- issue, 
or  extension  of  patents  were  not  subject  to  the 
review  of  the  secretary.  He  made  his  report  not 
through  the  head  of  the  department,  but  directly 
to  congress.  The  agricultural  division  of  the  office 
was  constituted  a  species  of  subordinate  bureau, 
and  the  appropriations  and  management  were  placed 
by  law  under  his  entire  control. 

The  patent  office  is  an  office  of  record,  in 
which  assignments  of  patents  are  recordable, 
and  the  record  is  notice  to  all  the  world  of 
the  facts  to  be  found  on  record.  Under  sec- 
tion four  of  the  act  of  1793,  an  assignment 
was  not  valid  unless  recorded  in  the  office  of 
the  secretary  of  state,  4  Blackf.  Ind.  183 ;  and 
this  was  held  in  the  case  of  a  suit  upon  a  note 
given  to  an  assignee  whose  assignment  was 
not  recorded,  where  the  note  was  ruled  void  as 
being  without  consideration.  In  other  cases, 
however,  it  was  held  that  the  assignee's  righta 
were  capable  of  being  completed  by  recording, 
though  until  that  took  place  the  assignee  was 
not  substituted  to  the  rights  of  the  assignor 
1  Stor.  C.  C.  29G.  The  better  opinion  seems  to 
be  that,  under  section  eleven  of  the  act  of 
1836,  recording  is  not  necessary  for  C()m})l3ting 
the  assignment  as  between  the  parties  to  the 
conveyance,  that  the  provisions  of  the  act 
are  directory  merely,  and  that  the  effect  of 
the  record  is  merely  to  give  notice  to  bind 
subsequent  purchasers.  Thus,  it  was  said  by 
Judge  Story  that  "the  provision  of  the  sta- 
tute is  merely  directoiy,  and,  except  as  to  inter- 
mediate bond  fide  purchasers  without  notice, 
any  subsequent  recording  of  the  assignment 
will  be  sufficient  to  pass  the  title  to  the  as- 


P.ATENT  OFFICE,  EXAMINERS  IN  307 


PATER-FAMILIAS 


eisnee."  2  Stor.  C.  C.  542,  G15,  618.  And 
it  has  also  been  held  that  the  record  may  be 
made  even  after  suit  brought;  and  it  is  said 
to  be  like  the  case  of  a  deed  required  to  be 
registered.  2  Stor.  018.  Other  cases  hold 
more  strongly  that  recording  is  not  necessary, 
but  that  the  title  passes  as  between  the  par- 
ties by  the  assignment,  though  subsequent 
bond  Jide  purchasers  without  notice  are  not 
bound  without  record.  2  N.  II.  03  ;  3  Mc- 
Lean, C.  C.  429  ;  4  id.  527  ;  18  Conn.  388  ;  2 
Am.  Law  Jour.  319.  Three  cases  only  are 
said  to  be  provided  for  by  statute :  Jirst,  an 
assignment  of  the  whole  patent ;  second,  an 
assignment  of  an  undivided  part  thereof;  and, 
third,  a  grant  or  conveyance  of  an  exclusive 
right  under  the  patent  within  a  specified  part 
or  portion  of  the  United  States.  2  Stor.  C.  C. 
542;  2  Blatchf.  C.  C.  148;  9  Vt.  177.  A 
question  may  arise  whether  the  act  of  1800, 
in  prescribing  a  tariff  of  fees  for  recording 
other  papers,  as  agreements,  etc.,  has  not 
reco<:;nized  the  usage  of  the  office  in  re- 
cording them  as  within  the  meaning  of  the 
acts  of  congress,  and  rendered  them  record- 
able. 

PATENT  OFFICE,  EXAMINERS  IN. 

Upon  the  reorganization  of  the  patent  office, 
in  1836,  under  the  act  of  July  4  of  that 
year,  a  new  and  important  principle  w^as  in- 
troduced. Prior  to  that  date,  any  one  was  at 
liberty  to  take  out  his  patent  for  almost  any 
contrivance,  if  he  was  willing  to  pay  the 
fees.  At  least,  this  was  the  practical  opera- 
tion of  the  system ;  for  although  a  patent 
was  not  granted  until  it  was  allowed  by  cer- 
tain heads  of  departments,  still,  as  the  exami- 
nation in  such  cases  went  no  farther  than 
merely  to  ascertain  whether  the  contrivance 
was  of  sufficient  importance  to  be  worthy  of 
a  patent,  without  any  inquiry  as  to  who  w^as 
t'.ie  first  inventor  thereof,  the  allowance  of 
the  patent  was  rather  a  matter  of  course  in 
almost  every  case.  The  applicant,  at  his 
own  peril,  decided  for  himself  whether  the 
subject-matter  of  the  patent  was  new.  If  it 
was  not  so,  the  patent  would  be  of  no  value, 
as  it  could  never  be  enforced.  The  question 
of  novelty  could  be  raised  whenever  an  action 
for  infringement  was  brought ;  or  a  proceed- 
ing might  be  directly  instituted  to  test  the 
validity  of  the  patent,  and  to  annul  it  if  the 
patentee  was  found  not  to  be  the  original 
and  first  inventor.  The  law  in  these  re- 
spects was  like  that  of  England  and  most 
other  European  countries. 

But  the  act  of  1836  provided  for  a  tho- 
rough examination  of  every  application,  with 
a  view  of  ascertaining  whether  the  contri- 
vance thus  shown  was  novel  as  well  as  use- 
ful :  so  that  no  patent  should  issue  which 
would  not  be  sustained  by  the  courts.  In 
theory,  this  was  to  be  done  by  the  commis- 
sioner of  patents ;  but  the  amount  of  busi- 
ness on  his  hands  was  such,  even  then,  as  to 
render  it  impossible  for  him  to  perform  all 
that  labor  in  person ;  and  provision  was  ac- 
cordingly made  by  law  for  an  examining 
clerk  to  assist  him  in  these  examinations. 


At  present,  so  greatly  has  the  amcmnt  of  this 
labor  become  augment(;d  that  nearly  thirty 
of  these  iissistants  are  kept  constantly  and 
industriously  employed,  all  of  whom  are 
known  as  examiners  in  the  patent  office. 

The  duty  of  these  examiners  is  to  deter- 
mine whether  the  subject-matter  of  the  re- 
spective patents  which  are  applied  for  had 
been  invented  or  discovered  by  any  other 
person  in  this  country,  or  had  been  patented 
or  described  in  any  printed  puljlicution  in 
this  or  any  foreign  country,  prior  to  the  al- 
leged invention  thereof  l)y  the  applicant.  If 
not,  and  the  invention  is  deemed  useful 
within  the  meaning  of  the  patent  law,  a 
patent  is  aUowed,  unless  it  clearly  ap))ear8 
that  the  invention  has  been  abandoned  to  the 
public.  If  the  invention  has  been  in  public  use 
more  than  two  years  with  the  consent  and 
allowance  of  the  inventor,  that  single  circum- 
stance amounts  to  a  statutory  abandonment 
of  the  invention  •,  although  it  may  be  aban- 
doned in  various  other  methods.  But,  unless 
the  fact  of  abandonment  is  very  clear,  the 
office  does  not  assume  to  decide  against  the 
applicant,  but  leaves  the  matter  to  a  court 
and  jury.    See  Patents,  and  Patent  Office. 

PATENT  ROLLS.  Registers  in  which 
are  recorded  all  letters  patent  granted  since 
1510.  2  Sharswood,  Blackst.  Comm.  340; 
App.  to  First  Rep.  of  Select  Commit,  on  Pub. 
Rec.  pp.  53,  84. 

PATENT  WRIT.  A  writ  not  closed  or 
sealed  up.  Jacob,  Law  Diet. ;  Coke,  Litt. 
289  ;  2  id.  39  ;  7  Coke,  20. 

PATENTEE.  He  to  whom  a  patent  has 
been  granted.  The  term  is  usually  applied 
to  one  who  has  obtained  letters  patent  for  a 
new  invention. 

PATER  (Lat.).  Father.  The  Latin  term 
is  considerably  used  in  genealogical  tables. 

PATER-FAMILIAS  (Lat.).  In  Civil 
Law.  One  who  was  sui  juris,  and  not  sub- 
ject to  the  paternal  power. 

2,  In  order  to  give  a  correct  idea  of  what  was 
understood  in  the  Roman  law  by  this  term,  it  is 
proper  to  refer  briefly  to  the  artificial  organization 
of  the  Roman  family, — the  greatest  moral  pheno- 
menon in  the  history  of  the  human  race.  The 
comprehensive  term  familia  embraced  both  persons 
and  property:  money,  lands,  houses,  slaves,  chil- 
dren, all  constituted  part  of  this  artificial  family, 
this  juridical  entity,  this  legal  patrimony,  the  title 
to  which  was  exclusively  vested  in  the  chief  or 
jjater-fdmilias,  who  alone  was  capax  dominii,  and 
who  belonged  to  himself,  sui  juris. 

The  word  pafer-familias  is  by  no  means  equiva- 
lent to  the  modern  expression  father  of  a  family, 
but  means  proprietor  in  the  strongest  sense  of  that 
term;  it  is  he  qui  in  di>ino  dominium  hahet,  in  whom 
were  centred  all  property,  all  power,  all  authority: 
he  was,  in  a  word,  the  lord  and  master,  whose  au- 
thority was  unlimited.  No  one  but  he  who  was  sui 
juris,  who  was  pater-familias,  was  capable  of  ex- 
ercising any  right  of  property,  or  wielding  any 
superiority  or  power  over  any  thing;  for  nothing 
could  belong  to  him  who  was  himself  alieui  Juris. 
Hence  the  children  of  the  Jih'i-/amilias,  as  well 
as  those  of  slaves,  belonged  to  the  pater-familias. 
In  the  same  manner,  every  thing  that  was  acquired 
by  the  sons  or  slaves  formed  a  part  of  the/awu7j«. 


PATER-FAMILIAS  308 


and,  consequently,  belonged  to  its  chief.  This  ab- 
solute property  and  power  of  the  pater-familiats  only 
ceased  with  his  life,  unless  he  voluntarily  parted 
with  them  by  a  sale;  for  the  alienation  by  sale  is  in- 
variably the  symbol  resorted  to  for  the  purpose  of 
dissolving  the  stern  dominion  of  ih^  pater-fnmiU ax 
over  those  belonging  to  the  familia.  Thus,  both 
emancipation  and  adoption  are  the  results  of  ima- 
ginary sales, — per  imaginarhis  venditinnea.  As  the 
daughter  remained  in  the  family  of  her  father, 
grandfather,  or  great-grandfather,  as  the  case  might 
be,  notwithstanding  her  marriage,  it  followed  as  a 
necessary  consequence  that  the  child  never  belonged 
to  the  same  family  as  its  mother:  there  is  no  civil 
relationship  between  them ;  they  are  natural  rela- 
tions,— cognati, — but  they  are  not  legally  related  to 
each  other, — agnati ;  and  therefore  the  child  never 
inherits  from  its  mother,  nor  the  mother  from  her 
child.  There  was,  however,  a  means  by  which  the 
wife  might  enter  into  the  family  and  subject  her- 
self to  the  power  of  her  husband,  in  nianu  mariti, 
and  thereby  establish  a  legal  relationship  between 
herself  and  her  husband.  This  marital  power  of 
the  husband  over  the  wife  was  generally  acquired 
either  coemptione,  by  the  purchase  of  the  wife  by 
the  husband  from  the  pater-familiaa,  or  «s»,  by 
the  prescription  based  on  the  possession  of  one 
year, — the  same  by  which  the  title  to  movable  pro- 
perty was  acquired  according  to  the  principles 
governing  the  vsiicdpio  {iisu  cnpere,  to  obtain  by 
use).  Another  mode  of  obtaining  the  same  end 
■was  the  confarreatio,  a  sacred  ceremony  performed 
by  the  breaking  and  eating  of  a  small  cake, /ar- 
reum,  by  the  married  couple.  It  was  supposed 
that  by  an  observance  of  this  ceremony  the  mari- 
tal power  was  produced  by  the  intervention  of  the 
gods.  This  solemn  mode  of  celebrating  marriages 
was  peculiar  to  the  patrician  families.  By  means 
of  these  fictions  and  ceremonies  the  wife  became 
in  the  eye  of  the  law  the  daughter  of  her  husband, 
and  the  sister  of  the  children  to  whom  she  gave 
birth,  who  would  otherwise  have  been  strangers 
to  her.  Well  might  Gaius  say,  Fere  nnlli  alii  sunt 
homines  qui  talem  in  liberos  habeant  potestatem,  qua- 
lem  nos  habemus. 

3.  There  is  some  similarity  between  the  agnntio, 
or  civil  relationship,  of  the  Romans,  and  the  trans- 
mission of  the  name  of  the  father,  under  the  modern 
law,  to  all  his  descendants  in  the  male  line.  The 
Roman  law  says  of  the  children,  patris,  non  matris, 
familiam  seqnuntnr ;  we  SAy, patris,  non  matris,  noinen 
seqmintur.  All  the  members  of  the  family  who, 
with  us,  bear  the  same  name,  were  under  that 
law  agnates,  or  constituted  the  agnatio,  or  civil 
family.  Those  children  only  belonged  to  the 
family,  and  were  subject  to  the  paternal  power,  who 
had  been  conceived  'mjnstls  nuptiis,  or  been  adopted. 
Nuptlse,  or  matrimonium,  was  a  marriage  celebrated 
in  conformity  with  the  peculiar  rules  of  the  civil 
law.  There  existed  a  second  kind  of  marriage, 
called  concnbinatns, — a  valid  union  and  a  real  mar- 
riage,— which  has  been  often  improperly  confounded, 
even  by  high  authority,  with  concubinage.  This 
confusion  of  ideas  is  attributable  to  a  superficial 
examination  of  the  subject;  for  the  illicit  inter- 
course between  a  man  and  a  woman  which  we  call 
concubinage  was  stigmatized  by  the  opprobrious 
term  stnprmn  by  the  Romans,  and  is  spoken  of 
in  the  strongest  terms  of  reprobation.  The  concu- 
binatus  was  the  natural  marriage,  and  the  only  one 
which  those  who  did  not  enjoy  the  jits  connubii 
were  permitted  to  contract.  The  Roman  law  re- 
cognized two  species  of  marriage,  the  one  civil, 
and  the  other  natural,  in  the  same  manner  as  there 
were  two  kinds  of  relationship,  the  agnatio  and 
cognatio.  The  Just/je  niijtliir.  uv  jiistuni  niatrimonium, 
or  civil  marriage,  could  only  be  contracted  by  Ro- 
man citizens  and  by  those  to  whom  ihajus  connubii 
had  been  conceded:  this  kind  of  marriage  alone 


PATERNITY 


produced  the  paternal  power,  the  right  of  inherit- 
ance, etc. 

4.  But  the  rapid  rise  and  extraordinary  greatness 
of  the  city  attracted  immense  crowds  of  stran- 
gers, who,  not  possessing  the  jns  connubii,  could 
form  no  other  union  than  that  of  the  concnbinatns, 
which,  though  authorized  by  law,  did  not  give  rise 
to  those  legal  eff'ects  which  flowed  from  the  justst 
nnptise.  By  adoption,  the  person  adopted  was 
transferred  from  one  family  to  another ;  he  passed 
from  the  paternal  power  of  one  pater -/ami  lias  to 
that  of  another :  consequently,  no  one  who  was 
s\ii  juris  ci}\\\A.  be  adopted  in  the  strict  sense  of  that 
word.  But  there  was  another  species  of  adoption, 
called  adrogalio,  by  which  a  person  sui  juris  en- 
tered into  another  family,  and  subjected  himself  to 
the  paternal  power  of  its  chief.  The  eflfect  of  the 
adrogation  was  not  confined  to  the  person,  adro- 
gated  alone,  but  extended  over  his  family  and  pro- 
perty.   1  Marcade,  75  et  seq. 

This  extraordinary  organization  of  the  Roman 
family,  and  the  unlimited  powers  and  authority 
vested  in  the  pater-familias,  continued  until  the 
reign  of  Justinian,  who,  by  his  118th  Novel,  en- 
acted on  the  9th  of  August,  544,  abolished  the  dis- 
tinction between  the  agnatio  and  cognatio,  and 
established  the  order  of  inheritance  which,  with 
some  modifications,  continues  to  exist  at  the  pre- 
sent day  in  all  countries  whose  jurisprudence  is 
based  on  the  civil  law.    See  Patria  Potestas. 

PATERNA  PATERNIS  (Lat.  the  fa- 
ther's to  the  father's).    In  French  Law. 
An  expression  used  to  signify  that,  in  a  sue-  ; 
cession,  the  property  coming  from  the  father  • 
of  the  deceased  descends  to  his  paternal  re-  - 
lations.  ' 

PATERNAL.  That  which  belongs  to 
the  father  or  comes  from  him :  as,  paternal 
power,  paternal  relation,  paternal  estate,  pa- 
ternal line.    See  Line. 

PATERNAL  POWER.  The  authority 
lawfully  exercised  by  parents  over  their  chil 
dren.    See  Father. 

PATERNAL  PROPERTY.  That  which 
descends  or  comes  from  the  father  and  other 
ascendants  or  collaterals  of  the  paternal 
stock.    Domat,  Li  v.  Pr61.  tit.  3,  s.  2,  n.  11. 

PATERNITY.    The  state  or  condition 
of  a  father. 

2.  The  husband  is  prima  facie  presumed  \ 
to  be  the  father  of  his  wife's  children  born 
during  coverture  or  within  a  competent  time 
afterwards :  patei'  is  est  quern  nupiice  demon- 
strant  7  Mart.  La.  n.  s.  553.  So  if  the 
child  is  en  ventre  sa  mire  at  time  of  marriage, 
Coke,  Litt.  123;  8  East,  192.  In  civil  law 
the  presumption  holds  in  case  of  a  child  born 
before  marriage  as  well  as  after.  1  Shars- 
wood,  Blackst.  Comm.  446,  454 ;  Fleta,  lib. 
1,  c.  6.  In  cases  of  marriage  of  a  widow 
within  ten  months  after  decease  of  husband, 
the  paternity  is  to  be  decided  by  circum- 
stances. Ilargrave,  note  to  Coke,  Litt.  g  188, 
n.  190.  Marriage  within  ten  months  after 
decease  of  husband  was  forbidden  by  Koman, 
Danish,  and  Saxon  law,  and  English  law 
before  the  Conquest.  1  Beck,  Med.  Jur.  481  ; 
Brooke,  Abr.  Bastard}/,  pi.  18;  Palm.  10;  1 
Sharswood,  Blackst.  Coram.  456. 

3*  The  presumption  of  paternity  may 
always  be  rebutted  by  showing  circurastancefl 
which  render  it  impossible  that  the  husband 

i 


PATHOLOGY 


309 


PATRIA  POTESTAS 


can  be  the  father.  6  Binn.  Penn.  283  ;  1 
P.  A.  Browne,  Penn.  Appx.  xlvii. ;  Hard. 
Ky.  479;  8  East,  193;  Strange,  51,  940  ;  4 
Term,  356  ;  2  Myhie  &  K.  349;  3  Paige,  Ch. 
N.  Y.  139;  1  Sim.  &  S.  Ch.  150;  Turn.  &  11. 
Ch.  138  ;  1  Bouvier,  Inst.  n.  302  ei  seq. 

The  declarations  of  one  or  both  of  the 
spouses,  however,  cannot  affect  the  condition 
of  a  child  born  during  the  marriage.  7 
Mart.  La.  n.  s.  553  ;  3  Paige,  Ch.  N.  Y.  139. 
See  Bastard;  Bastardy  ;  Legitimacy  ;  Ma- 
ternity ;  Pregnancy. 

PATHOLOGY.  In  Medical  Jurispru- 
dence. The  science  or  doctrine  of  diseases. 
In  cases  of  homicides,  abortions,  and  the 
like,  it  is  of  great  consequence  to  the  legal 
practitioner  to  be  acquainted  in  some  degree 
with  pathology.    2  Chitty,  Pract.  42,  n. 

PATRIA  (Lat.).  The  country  ;  the  men 
of  the  neighborhood  competent  to  serve  on  a 
jury;  a  jury.  This  word  is  nearly  synony- 
mous with  pais,  which  see. 

PATRIA  POTESTAS  (Lat.).  In  Civil 
Law.  The  paternal  power;  the  authority 
which  the  law  vests  in  the  father  over  the  per- 
sons and  property  of  his  legitimate  children. 

2.  One  of  the  effects  of  marriage  is  the  paternal 
authoritj'  over  the  children  born  in  wedlock.  In 
the  early  period  of  the  Roman  history,  the  paternal 
authority  was  unlimited :  the  father  had  the  absolute 
control  over  his  children,  and  might  even,  as  the 
domestic  magistrate  of  his  family,  condemn  them 
to  death.  They  could  acquire  nothing  except  for 
the  benefit  of  the  2^a<er-/(/wt7<a«  (which  see) ;  and 
they  were  even  liable  to  be  sold  and  reduced  to 
elavery  by  the  author  of  their  existence.  But  in 
the  progress  of  civilization  this  stern  rule  was  gra- 
dually relaxed;  the  voice  of  nature  and  humanity 
Was  listened  to  on  behalf  of  the  oppressed  children 
of  a  cruel  and  heartless  father.  A  passage  in  the 
.37th  book,  t.  12,  §  5,  of  the  Pandects  informs  us 
that,  in  the  year  870  of  Rome,  the  emperor  Trajan 
compelled  a  father  to  release  his  son  from  the  pa- 
ternal authority,  on  account  of  cruel  treatment. 
The  same  emperor  sentenced  a  father  to  transport- 
ation because  he  had  killed  his  son  in  a  hunting- 
party,  although  the  son  had  been  guilty  of  adultery 
with  his  stepmother;  for,  says  Marcianus,  who 
reports  the  case,  patria  jiotestaa  in  pietate  debet, 
noil  in  atrocitate,  consistere.  Ulpianus  says  that  a 
father  is  not  permitted  to  kill  his  son  without  a 
judgment  from  the  prefect  or  the  president  of  the 
province.  In  the  year  981  of  Rome,  the  emperor 
Alexander  Severus  addressed  a  constitution  to  a 
father,  which  is  found  in  the  8th  book,  t.  47, 
g  3,  of  the  Justinian  Code,  in  which  he  says, 
*'  Your  paternal  authority  authorizes  you  to 
chastise  your  son;  and,  if  he  persists  in  his  mis- 
conduct, you  may  bring  him  before  the  president 
of  the  province,  who  will  sentence  him  to  such 
punishment  aa  you  may  desire."  In  the  same 
book  and  title  of  the  Code  we  find  a  constitution 
of  the  emperor  Constantine,  dated  in  the  year  of 
Rome  1065,  which  inflicts  the  punishment  de- 
nounced against  parricide  on  the  father  who  shall 
be  convicted  of  having  killed  his  son.  The  power 
of  selling  the  child,  which  at  first  was  unlimited, 
was  also  much  restricted,  and  finally  altogether 
abolished,  by  subsequent  legislation,  especially 
during  the  empire.  Paulus,  who  wrote  about  the 
middle  of  the  tenth  century  of  Rome,  informs  us 
that  the  father  3ould  only  sell  his  child  in  case  of 
extreme  poverty  :  contemplatione  extremse  neceesita- 
tU  aut  alimentarum  gratia.    In  1039  of  Rome, 


Diocletian  and  Maximian  declare  in  a  re&criptthat 
it  is  beyond  doubt  {manifeHtinii!mi  juris)  that  a 
father  can  neither  sell  nor  pledge  nor  donate  his 
children.  Constantine,  in  1059,  permitted  the  sale 
by  the  father  of  his  child,  at  its  birth  and  when 
forced  to  do  so  by  abject  poverty :  propter  nirniam 
paiiperUifem  egestatemqiic  victuH  ;  and  the  same  law 
is  re-enacted  in  the  Code  of  Justinian.  C.  4.  43,  t. 
2,  3. 

3.  The  father,  being  bound  to  indemnify  the 
party  who  had  been  injured  by  the  offences  of  his 
child,  could  release  himself  from  this  responsibility 
by  an  abandonment  of  the  offender,  in  the  same 
manner  as  the  master  could  abandon  his  slave  for 
a  similar  purpose, — noxali  coma  mancijjare.  This 
power  of  abandonment  continued  to  exist,  with  re- 
gard to  male  children,  up  to  the  time  of  Gaius,  in 
the  year  925  of  Rome.  But  by  the  Institutes  of 
Justinian  it  is  forbidden.    Inst.  4.  8.  7. 

With  regard  to  the  rights  of  the  father  to  the 
property  the  child  might  acquire,  it  was  originally 
as  extensive  and  absolute  as  if  it  iiad  been  acquired 
by  a  slave :  the  child  could  possess  nothing  nor 
acquire  any  thing  that  did  not  belong  to  the  father. 
It  is  true,  the  child  might  posse.-^s  a  pecvUum;  but 
of  this  he  had  only  a  precarious  enjoyment,  subject 
to  the  will  and  pleasure  of  the  father.  Under  the 
first  emperors  a  distinction  was  made  in  favor  of 
the  son  as  to  such  property  as  had  been  acquired 
by  him  in  the  army,  which  was  called  cuHtrense 
pcndium,  to  which  the  son  acquired  a  title  in  him- 
self. Constantine  extended  this  rule  by  applying  it 
to  such  property  as  the  child  had  acquired  by  ser- 
vices in  offices  held  in  the  state  or  by  following  a 
liberal  profession :  this  was  denominated  quaai- 
castrense  pecnlium.  He  also  created  the  peculium 
adventitium,  which  was  composed  of  all  property 
inherited  by  the  son  from  his  motLer,  whether  by 
will  or  ab  intestat  ;  but  the  father  had  the  usu- 
fruct of  this  peculium.  Arcadius  and  Honorius  ex- 
tended it  to  every  thing  the  son  acquired  by  suc- 
cession or  donations  from  his  grandfather  or  mo- 
ther or  other  ascendants  in  the  maternal  line. 
Theodosius  and  Valentinian  embraced  in  it  what- 
ever was  given  by  one  of  the  spouses  to  the  other; 
and  Justinian  included  in  it  every  thing  acquired 
by  the  son,  except  such  as  was  produced  by  pro- 
perty belonging  to  the  father  himself.  It  is  thus 
seen  that,  by  the  legislation  of  Justinian  and  his 
predecessors,  the  paternal  power  with  regard  to 
property-  was  almost  entirely  destroyed. 

The  pater-fatuiiias  had  not  only  under  his  pa- 
ternal power  his  own  children,  but  also  the  chil- 
dren of  his  sons  and  grandsons, — in  fact,  all  his 
descendants  in  the  male  line ;  and  this  authority 
continued  in  full  force  and  vigor  no  matter  what 
might  be  the  age  of  those  subject  to  it.  The 
highest  ofl5ces  in  the  government  did  not  release 
the  incumbent  from  the  paternal  authority.  The 
victorious  general  or  consul  to  whom  the  honors 
of  a  triumph  were  decreed  by  the  senate  was  sub- 
ject to  the  paternal  power  in  the  same  manner  and 
to  the  same  extent  as  the  humblest  citizen.  It  is 
to  be  observed,  however,  that  the  domestic  subjec- 
tion did  not  interfere  with  the  capacity  of  exer- 
cising the  highest  public  functions  in  the  stale. 
The  children  of  the  daughter  were  not  subject  to 
the  paternal  authority  of  her  father :  they  entered 
into  the  family  of  her  husband.  Women  could 
never  exercise  the  paternal  power.  And  even 
when  a  woman  was  herself  sui  jxrif,  she  could  not 
exercise  the  paternal  power.  It  is  for  this  reason, 
Ulpian  observes,  that  the  family  of  which  a  woman, 
sui  juris,  was  the  head,  inater-familins,  commenced 
and  ended  with  her:  mtilier  autem  familise  siise  ei 
caput  et  Jinis  est.    1  Ortolan,  191  et  seq. 

4.  The  modern  civil  law  has  hardly  preserved 
any  features  of  the  old  Roman  jurisprudence  con. 
cerning  the  paternal  power.    Artitle  233  of  the 


PATRICIDE 


310 


PAUPER 


1 


Louisiana  Code  provides,  it  is  true,  that  a  child, 
whatever  be  its  age,  owes  honor  and  respect  to  its 
father  and  mother ;  and  the  next  article  adds  that 
the  child  remains  under  the  authority  of  the  father 
and  mother  until  his  majority  or  emancipation, 
and  that  in  case  of  a  difference  of  opinion  between 
the  parents  the  authority  of  the  father  shall  pre- 
vail. In  the  succeeding  article  obedience  is  en- 
joined on  the  child  to  the  orders  of  the  parents  as 
long  as  he  remains  subject  to  the  paternal  author- 
ity. But  article  236  renders  the  foregoing  rules  in 
a  great  measure  nugatory,  by  declaring  that  "a 
child  under  the  age  of  puberty  cannot  quit  the  pa- 
ternal house  without  the  permission  of  his  father 
and  mother,  who  have  a  right  to  correct  him,  pro- 
vided it  be  done  in  a  reasonable  manner."  So  that 
the  power  of  correction  ceases  with  the  age  of  four- 
teen for  boys  and  twelve  for  girls :  nay,  at  these 
ages  the  children  may  leave  the  paternal  roof  in 
opposition  to  the  will  of  their  parents.  It  is  seen 
that,  by  the  modern  law,  the  paternal  authority  is 
vested  in  both  parents,  but  practically  it  is  gene- 
rally exercised  by  the  father  alone ;  for  wherever 
there  is  a  difference  of  opinion  his  will  prevails. 
The  great  object  to  be  attained  by  the  exercise  of  the 
paternal  power  is  the  education  of  the  children  to 
prepare  them  for  the  battle  of  life,  to  make  them 
useful  citizens  and  respectable  members  of  society. 
During  the  marriage,  the  parents  are  entitled  to 
the  enjoyment  of  the  property  of  their  minor  chil- 
dren, subject  to  the  obligation  of  supporting  and 
educating  them,  and  of  paying  the  taxes,  making 
the  necessary  repairs,  etc.  Donations  made  to 
minors  are  accepted  by  their  parents  or  other 
ascendants.  The  father  has  under  his  control  all 
actions  which  it  may  be  necessary  to  bring  for 
his  minor  children  during  the  marriage.  When 
the  marriage  is  dissolved  by  the  death  of  one  of 
the  spouses,  the  paternal  power  ceases,  and  the 
tutorship-  is  opened ;  but  the  surviving  parent  is 
the  natural  tutor,  and  can  at  his  death  appoint  a 
testamentary  tutor  to  his  minor  children.  See  Pa- 
ter-Familias. 

PATRICIDE.    One  guilty  of  killing  his 

father.    See  Parricide. 

PATRIMONIAL.  A  thing  which  comes 
from  the  father,  and,  by  extension,  from  the 
mother  or  other  ancestor. 

PATRIMONIUM.  In  Civil  Law.  That 
which  is  capable  of  being  inherited. 

Things  capable  of  being  possessed  by  a  single 
person  exclusively  of  all  others  are,  in  the  Roman 
or  civil  law,  said  to  be  in  patrimonio ;  when  in- 
capable of  being  so  possessed,  they  are  extra  patri- 
nionium. 

Most  things  may  be  inherited  ;  but  there  are  some 
which  are  said  to  be  extra  j^citrimonium^  or  which 
are  not  in  commerce.  These  are  such  as  are  com- 
mon, as  the  light  of  heaven,  the  air,  the  sea,  and  the 
like ;  ihmgspnhlic,  as  rivers,  harbors,  roads,  creeks, 
ports,  arms  of  the  sea,  the  sea-shore,  highways, 
bridges,  and  the  like;  things  which  belong  to  cities 
and  municipal  corporations,  as  public  squares, 
Streets,  market-houses,  and  the  like.  See  1  Bouvier, 
Inst.  nn.  421-446. 

PATRIMONY.  Any  kind  of  property. 
Such  estate  as  has  descended  in  the  same 
family ;  estates  which  have  descended  or 
been  devised  in  a  direct  line  from  the  fa- 
ther, and,  ])y  extension,  from  the  mother  or 
other  ancestor. 

The  father's  duty  to  take  care  of  his  chil- 
dren.   Swinburne,  "Wills,  pt.  3,  ^  18,  n.  31, 

p.  2:i5. 

PATRINUS  (Lat.).    A  godfather. 


PATRON.  In  Ecclesiastical  Law.  He 

who  has  the  disposition  and  gift  of  an  eccle- 
siastical benefice. 

In  Roman  Law.  The  former  master  of  a 
freedman.    Dig.  2.  4.  8.  1. 

PATRONAGE.  The  right  of  appointing 
to  ofiice :  as,  the  patronage  of  the  president 
of  the  United  States,  if  abused,  may  endan- 
ger the  liberties  of  the  people. 

In  Ecclesiastical  Law.  The  right  of  pre- 
sentation to  a  church  or  ecclesiastical  bene- 
fice.   2  Sharswood,  Blackst.  Comm.  21. 

PATRONUS  (Lat.).  In  Roman, Law 
A  modification  of  the  Latin  word  pater,  father. 
A  denomination  applied  by  Romulus  to  the 
first  senators  of  Home,  and  which  they  always 
afterwards  bore. 

Komulus  at  first  appointed  a  hundred  of  them. 
Seven  years  afterwards,  in  consequence  of  the  asso- 
ciation of  Tatius  to  the  Romans,  a  hundred  moro 
were  appointed,  chosen  from  the  Sabines.  Tar- 
quinius  Prisons  increased  the  number  to  three  hun- 
dred. Those  appointed  by  Romulus  and  Tatiua 
were  called  patres  majorum  rjentiiim,  and  the  others 
were  called  patres  minorum  gentium.  These  and 
their  descendants  constituted  the  nobility  of  Rome. 
The  rest  of  the  people  were  called  plebeians,  every 
one  of  whom  was  obliged  to  choose  one  of  these  fa- 
thers as  his  patron.  The  relation  thus  constituted 
involved  important  consequences.  The  plebeian, 
who  was  called  cliens  (a  client),  was  obliged  to  fur- 
nish the  means  of  maintenance  to  his  chosen  pa- 
tron, to  furnish  a  portion  for  his  patron's  daugh- 
ters, to  ransom  him  and  his  sons  if  captured  by  an 
enemy,  and  pay  all  sums  recovered  against  him  by 
judgment  of  the  courts.  The  patron,  on  the  othei 
hand,  was  obliged  to  watch  over  the  interests  of  hia 
client,  whether  present  or  absent,  to  protect  his 
person  and  property,  and  especially  to  defend  him 
in  all  actions  brought  against  him  for  any  cause. 
Neither  could  accuse  or  bear  testimony  against  the 
other,  or  give  contrary  votes,  etc.  The  contract 
was  of  a  sacred  nature :  the  violation  of  it  was  a 
sort  of  treason,  and  punishable  as  such.  According 
to  Cicero  (De  Repub.  ii.  9),  this  relation  formed 
an  integral  part  of  the  governmental  system,  El 
hahtiit  plehem  in  clientclas  principum  descriptnm, 
which  he  aflSrms  was  eminently  useful.  Blackstone 
traces  the  system  of  vassalage  to  this  ancient  rela- 
tion of  patron  and  client.  It  was,  in  fact,  of  the 
same  nature  as  the  feudal  institutions  of  the  middle 
ages,  designed  to  maintain  order  in  a  rising  state 
by  a  combination  of  the  opposing  interests  of  the 
aristocracy  and  of  the  common  people,  upon  the 
principle  of  reciprocal  bonds  for  mutual  interests. 
Dumazeau,  Barreau  Romain,  ^  iii.  Ultimately, 
by  force  of  radical  changes  in  the  institution,  the 
word  patronua  came  to  signify  nothing  more  than 
an  advocate.    Id.  iv. 

PATROON.  In  New  York.  The  lord 
of  a  manor. 

PATRUELIS  (Lat.).  In  Civil  Law.  A 

cousin-german  by  the  father's  side  ;  the  son  or 
daughter  of  a  father's  brother.    Dig.  38. 10. 1. 

PATRUUS  (Lat.).  In  Civil  Law.  An 
uncle  by  the  father's  side  ;  a  father's  brother. 
Dig.  38.  10.  10.  Fati-uus  magnus  is  a  grand- 
father's brother,  grand-uncle.  Patruvs  major 
is  a  great-grandfather's  brother.  Fatrum 
maximus  is  a  great-grandfather's  father's  bro- 
ther. 

PAUPER  (Lat.  poor).  One  so  poor  that 
he  must  be  supported  at  the  public  expense. 


j 


PAUPERIES 


311 


PAYMENT 


The  statutes  of  the  several  states  make 
1    ample  provisions  for  the  support  of  the  poor, 
i    ft  is  not  vs'ithin  the  plan  of  this  work  even  to 
give  an  abstract  of  such  extensive  legislation. 
See  10  Viner,  Abr.  259  ;  Botts,  Poor-Laws ; 
Woodfall,  Landl.  &  T.  201. 
I      PAUPERIES  ( Lat.).  In  Civil  Law.  Po- 
verty.   In  a  technical  sense,  damnum  absque 
injuria:  i.e.  a  damage  done  wnthout  wrong  on 
the  part  of  the  doer:  e.g.  damage  done  by  an  ir- 
rational being,  as  an  animal.    L.  1,  §  3,  D.  si 
quod  paup.  fee. ;  Vicat,  Voc.  Jur. ;  Calvinus, 
Lex. 

PAVIAGE.  A  contribution  or  tax  for 
paving  streets  or  highways. 

PAWN.  A  pledge.  A  pledge  includes, 
in  Louisiana,  a  pawn  and  an  antichresis  ;  but 
sometimes  pawn  is  used  as  the  general  word, 
including  pledge  and  antichresis.  La.  Civ. 
Code,  art.  3101;  Ilennen,  'Dig.  Pledge. 

PAWNBROKER.  One  whose  business 
it  is  to  lend  money,  usually  in  small  sums, 
upon  pawn  or  pledge. 

PAWNEE.  He  who  receives  a  pawn  or 
pledge. 

PAWNOR.  One  who,  being  liable  to  an 
engagement,  gives  to  the  person  to  whom  he 
is  liable  a  thing  to  be  held  as  a  security  for  the 
payment  of  his  debt  or  the  fulj&lment  of  his 
liability. 

PAX  REGIS  (Lat.).  The  peace  of  the 
king.  That  peace  or  security  for  life  and  goods 
which  the  king  promises  to  all  persons  under 
his  protection.  Bructon,  lib.  3,  c.  11;  6  Ric. 
II.  Stat.  1,  c.  13. 

In  ancient  times  there  were  certain  limits  which 
were  known  by  this  name.  The  pax  regis,  or 
rerge  of  the  court,  as  it  was  afterwards  palled,  ex- 
tended from  the  palace-gate  to  the  distance  of  three 
miles,  three  furlongs,  three  acres,  nine  feet,  nine 
palms,  and  nine  barleycorns,  Crabb,  C.  L.  41 ;  or 
from  the  four  sides  of  the  king's  residence,  four 
miles,  three  furlongs,  nine  acres  in  breadth,  nine 
feet,  nine  barleycorns,  etc.  LL.  Edw.  Conf.  c.  12, 
et  LL.  Hen.  I. 

PAYEE.  The  person  in  whose  favor  a 
bill  of  exchange  is  made  payable.  See  Bills 
OF  Exchange. 

PAYMENT.  The  fulfilment  of  a  pro- 
mise, or  the  performance  of  an  agreement. 

The  discharge  in  money  of  a  sum  due. 

2.  The  word  payment  is  not  a  technical  term  :  it 
has  been  imported  into  law  proceedings  from  the 
exchange,  and  not  from  law  treatises.  When  pay- 
ment is  pleaded  as  a  defence,  the  defendant  must 
prove  the  payment  of  money,  or  something  accepted 
in  its  stead,  made  to  the  plaintiff  or  to  some  person 
authorized  in  his  behalf  to  receive  it.  2  Greenleaf, 
Ev.  509. 

Payment,  in  its  most  general  acceptation,  is  the 
accomplishment  of  every  obligation,  whether  it  con- 
sists in  giving  or  in  doing :  Solutio  est  prsestalio 
ejus  quod  in  obligntlone  est. 

It  follows,  therefore,  that  every  act  which,  while 
it  extinguishes  the  obligation,  has  also  for  its  object 
the  release  of  the  debtor  and  his  exemption  from 
liability,  is  not  payment.  Payment  is  doing  pre- 
cisely what  the  payer  has  agreed  to  do.  Solvere 
dicitur  cum  qui /ect't  quod  facere  promisit. 

However,  practically,  the  name  of  payment  is 
often  given  to  methods  of  release  which  are  not 


accompanied  by  the  performance  of  the  thing  pro- 
mised, liestrinxinius  salutioneH  ad  cntnpetisah'onem, 
ad  novationein,  ad  de/<:t/atiouem,  et  ad  'iiinienitioucm. 

3.  In  a  more  restricted  sense,  payment  is  the 
discharge  in  money  of  a  sum  due.  Nuuicmtio  eat 
vnmmarisc  solutio.  5  Masse,  Droit  commerciel,  229. 
That  a  payment  may  extinguish  a  debt,  it  must  be 
made  by  a  person  who  has  a  right  to  make  it, 
to  a  person  who  is  entitled  to  receive  it,  in  some- 
thing proper  to  be  received  both  as  to  kind  and 
quality,  and  at  the  apjjointcd  place  and  time. 

In  the  civil  law,  it  is  said,  where  payment  is 
something  to  be  done,  it  must  be  done  by  the 
debtor  himself.  If  I  hire  a  skilful  mechanic  to 
build  a  steam-engine  for  me,  he  cannot  against  my 
will  substitute  in  his  stead  another  workman. 
•Where  it  is  something  to  be  given,  the  general  rule 
is  that  it  can  be  paid  by  any  one,  whether  a  co- 
obliger,  or  surety,  or  even  a  third  person  who  has  no 
interest  ;  except  that  in  this  last  case  subrogation 
will  prevent  the  extinction  of  the  debt  as  to  the 
debtor,  unless  the  payer  at  the  time  of  payment 
act  in  the  name  of  the  debtor,  or  in  his  own  name 
to  release  the  debtor.    See  Subrogation. 

What  constitutes  payment. 

4.  According  to  Comyns,  payment  by  mer- 
chants must  be  made  in  money  or  by  bill. 
Comyns,  Dig.  Mei'chant  (F). 

It  is  now  the  law  for  all  classes  of  citizens 
that  payment  must  be  made  by  money,  unless 
the  obligation  is,  by  the  terms  of  the  instru- 
ment creating  it,  to  be  discharged  by  other 
means.  In  the  United  States,  congress  has, 
by  the  constitution,  power  to  decide  what 
shall  be  a  legal  tender ;  that  is,  in  what  form 
the  creditor  may  demand  his  payment  or  must 
receive  it  if  ofiered ;  and  congress  has  deter- 
mined this  by  statutes.  The  same  power  is 
exercised  by  the  governments  of  all  civilized 
countries.  Payment  in  the  United  States 
must  be  made  in  coined  money  (or  treasury 
notes  made  legal  tender),  if  the  creditor  insists 
upon  having  it,  3  Ilalst.  N.  J.  172 ;  4  N.  H. 
296  ;  4  Dev.  &  B.  No.  C.  435  ;  and  copper  cents 
are  not  legal  tender  under  the  United  States 
constitution.    2  Nott  &  M'C.  So.  C.  519. 

In  England,  Bank-of-England  notes  are 
legal  tender.  See  Legal  Tender.  But  the 
creditor  may  waive  this  right,  and  any  thing 
which  he  has  accepted  as  satisfaction  for  the 
debt  will  be  considered  as  payment. 

5.  Upon  a  plea  of  payment,  the  defendant 
may  prove  a  discharge  in  bank-notes,  nego- 
tiable notes  of  individuals,  or  a  debt  already 
due  from  the  payee,  delivered  and  accepted 
or  discounted  as  payment.  Phillipps,  Ev. 
Cowen  &  H.  ed.  n.  387.  Bank-notes,  in  con- 
formity to  usage  and  common  understanding, 
are  regarded  as  cash,  1  Burr:  452  ;  3  id. 
1516;  9  Johns.  N.  Y.  120;  6  Md.  37  ;  unless 
objected  to.  1  Mete.  Mass.  356  ;  8  Ohio,  169  ; 
10  Me.  475;  2  Crompt.  &  J.  Exch.  16,  n.:  5 
Yerg.  Tenn.  199  ;  4  Esp.  267  ;  3  Humphr. 
Tenn.  162;  6  Ala.  n.  s.  226.  Treasury  notes 
are  not  cash.  3  Conn.  534.  Giving  a  check  is 
not  considered  as  payment ;  but  the  holder 
may  treat  it  as  a  nullity  if  he  derives  no 
benefit  from  it,  provided  he  has  not  been 
guilty  of  negligence  so  as  to  cause  injury  to 
the  drawer.  2  Parsons,  Contr.  136:  2  Campb 
515;  8  Term,  451;  2  Bos.  &  P.  518;  4  Ad. 


PAYMENT 


312 


PAYMENT 


6  E.  952 ;  4  Johns.  N.  Y.  296 ;  1  Hall,  N. 
Y.  56  ;  30  N.  II.  256.    But  see  14  How.  240. 

6.  Payment  in  forged  bills  is  generally  a 
nullity,  both  in  England  and  this  country. 
10  Wheat.  333  ;  2  Johns.  N.  Y.  455  ;  6  Hill, 
N.  Y.  340 ;  7  Leigh.  Va.  617  ;  3  Hawks,  No. 
C.  568 ;  2  Harr.  &  J.  Md.  368  ;  4  Gill  &  J. 
Md.  463;  4  111.  392;  11  id.  137;  3  Penn. 
St.  330  ;  5  Conn.  71.  So  also  of  counterfeit 
coin  ;  but  an  agreement  to  sell  goods  and 
accept  specific  money  is  good,  and  payment 
in  these  coins  is  valid  even  though  they  be 
counterfeit.  1  Term,  225;  14  Serg.  &  R. 
Penn.  51.  And  the  forged  notes  must  be  re- 
turned in  a  reasonable  time,  to  throw  the 
loss  upon  the  debtor.  7  Leigh.  Va.  617;  11 
111.  137.  Payment  to  a  bank  in  its  own  notes 
which  are  received  and  afterwards  discovered 
to  be  forged  is  a  good  payment.  1  Parsons, 
Contr.  220.  A  forged  check  received  as  cash 
and  passed  to  the  credit  of  the  customer  is 
good  payment.  4  Dall.  Penn.  234:  s.  c,  1 
Binn.  Penn.  27  ;  10  Vt.  141.  Payment  in 
bills  of  an  insolvent  bank,  where  both  parties 
were  innocent,  has  been  held  no  payment. 

7  Term,  64;  13  Wend.  N.  Y.  101;  11  Vt. 
576  ;  9  N.  H.  365  ;  22  Me.  85.  On  the  other 
hand,  it  has  been  held  good  payment,  in  1 
Watts  &  S.  Penn.  92 ;  6  Mass.  185 ;  12  Ala. 
280;  8  Yerg.  Tenn.  175.  The  point  is  still 
unsettled,  and  it  is  said  to  be  a  question  of 
intention  rather  than  of  law.  Story,  Prom. 
Notes,  125*,  477*  641. 

If  a  bill  of  exchange  or  promissory 
note  be  given  to  a  creditor  and  accepted  as 
payment,  it  shall  be  a  good  payment.  Corny  ns, 
Dig.  Mercliant  (F);  30  N.  H.  540;  27  Ala. 
N.  s.  254;  16  111.  161;  2  Du.  N.  Y.  133; 
14  Ark.  267 ;  4  Rich.  So.  C.  600 ;  34  Me. 
324.  But  regularly  a  bill  of  exchange  or 
note  given  to  a  creditor  shall  not  be  a  dis- 
charge of  the  debt  till  payment  of  the  bill, 
unless  so  accepted.    Skinn.  410;  1  Salk.  124. 

If  the  debtor  gives  his  own  promissory 
note,  it  is  held  in  England  and  the  United 
States  generally  not  to  be  payment,  unless  it 
be  shown  that  it  was  so  intended .  10  Pet.  567 ; 
4  Mas.  C.  C.  336 ;  27  N.  H.  244 ;  15  Johns. 
N.  Y.  247  ;  3  Wend.  N.  Y.  66 ;  9  Conn.  23  ; 
2  N.  H.  525  ;  26  Eng.  L.  &  Eq.  56. 

And  if  payment  be  made  in  the  note  of  a 
factor  or  agent  employed  to  purchase  goods, 
or  intrusted  with  the  money  to  be  paid  for 
them,  if  the  note  be  received  as  payment  it 
will  be  good  in  favor  of  the  principal,  1 
Barnew.  &  Aid.  14 ;  7  Barnew.  &  C.  17 ; 
but  not  if  received  conditionally  ;  and  this  is 
a  question  of  fact  for  the  jury.  6  Cow.  N.  Y. 
181;  9  Johns.  N.  Y.  310;  10  Wend.  N.  Y. 
271. 

It  is  said  that  an  agreement  to  receive 
the  debtor's  own  note  in  payment  must  be 
expressed,  1  Cow.  N.  Y.  359 ;  1  Wash.  C.  C. 
328  ;  and  when  so  expressed  it  extinguishes 
the  debt.  5  Wend.  N.  Y.  85.  Whether  there 
was  such  an  agreement  is  a  question  for  the 
jury.    9  Johns.  N.  Y.  310. 

A  bill  of  exchange  drawn  on  a  third  per- 
son and  accepted  discharges  the  debt  as  to 


the  drawer,  10  Mod.  37 ;  and  in  an  action  tc 
recover  the  price  of  goods,  in  England,  pay« 
ment  by  a  bill  not  dishonored  has  been  held 
a  good' defence.  4  Esp.  Cas.  48;  3  Campb. 
411 ;  1  Mood.  &  M.  28 ;  4  Bingh.  454 ;  5 
Maule  &  S.  62. 

Retaining  a  draft  on  a  third  party  an  un- 
reasonable length  of  time  will  operate  as  pay- 
ment if  loss  be  occasioned  thereby.  3  Wils. 
553  ;  2  Dall.  Penn.  100 ;  13  Serg.  &  R.  Penn. 
318  ;  2  Wash.  C.  C.  191. 

In  the  sale  of  a  chattel,  if  the  note  of  a 
third  person  be  accepted  for  the  price,  it  is 
good  payment.  3  Cow.  N.  Y.  272  ;  1  Dev.  & 
B.  No.  C.  291.  Not  so,  however,  if  the  note 
be  the  promise  of  one  of  the  partners  in  pay- 
ment of  a  partnership  debt.  4  Dev.  No.  C. 
91,  460. 

9.  In  Maine  and  Massachusetts,  the  pre- 
sumption where  a  negotiable  note  is  taken, 
whether  it  be  the  debtor's  promise  or  that  of 
a  third  person,  is  that  it  is  intended  as  pay- 
ment. 6  Mass.  143  ;  12  Pick.  Mass.  268 ;  2 
Mete.  Mass.  168  ;  8  Me.  298  ;  18  id.  249  ;  34 
id.  324 ;  37  id.  419.  The  fact  that  a  note 
was  usurious  and  void  was  allowed  to  over- 
come this  presumption.    11  Mass.  361. 

Generally,  the  question  will  depend  upon 
the  fact  whether  the  payment  was  to  have 
been  made  in  notes  or  the  receiving  them 
was  a  mere  accommodation  to  the  purchaser. 
17  Mass.  1. 

And  the  presumption  never  attaches  where 
non-negotiable  notes  are  given.  11  Me.  381; 
15  id.  340. 

10.  Payment  may  be  made  through  the 
intervention  of  a  third  party  who  acts  as  the 
agent  of  both  parties :  as,  for  example,  a 
stake-holder.  If  the  money  be  deposited  with 
him  to  abide  the  event  of  a  legal  wager, 
neither  party  can  claim  it  until  the  wager  is 
determined,  and  then  he  is  bound  to  pay  it  to 
the  winner.  4  Campb.  37.  If  the  wager  is 
illegal,  the  depositor  may  reclaim  the  money 
at  any  time  before  it  is  paid  over.  4  Taunt. 
474 ;  5  Term,  405  ;  8  Barnew.  &  C.  221 ;  29 
Eng.  L.  &  Eq.  424  ;  31  id.  452.  And  at  any 
time  after  notice  given  in  such  case  he  may 
hold  the  stake-holder  responsible,  even  though 
he  may  have  paid  it  over.  See  2  Parsons, 
Contr.  138.  ^ 

An  auctioneer  is  often  a  stake-holder, 
as  in  case  of  money  deposited  to  be  made 
over  to  the  vendor  if  a  good  title  is  made 
out.  In  such  case  the  purchaser  cannot  re- 
claim except  on  default  in  giving  a  clear 
title.  But  if  the  contract  has  been  rescinded 
by  the  parties  there  need  be  no  notice  to  the 
stake-holder  in  case  of  a  failure  to  perform 
the  condition.  2  Mees.  &  W.  Exch.  244 ;  1 
Mann.  &  R.  614. 

11.  A  transfer  of  funds,  called  by  the  civil- 
law  phrase  a  payment  by  delegation,  is  pay- 
ment only  when  completely  effected,  2  Par^ 
sons,  Contr.  137;  and  an  actual  transfer  of 
claim  or  credit  assented  to  by  all  the  parties 
is  a  good  payment.  4  Bingh.  112 ;  2  Barnew. 
&  Aid.  39  ;  5  id.  228  ;  7  N.  II.  345,  397  ;  17 
Mass.  400.    This  seems  to  be  very  similar  to 


PAYMj5,.VT 


313 


PAYMENT 


payment  by  drawing  and  acceptance  of  a  bill 
of  exchange. 

Foreclosure  of  a  mortijage  given  to  secure 
a  debt  operates  as  payment  made  when  the 
foreclosure  is  complete ;  but  if  the  property 
mortgaged  is  not  equal  in  value  to  the  amount 
of  the  debt  then  due,  it  is  payment  jaro  tanto 
only.  2  Greenleaf,  Ev.  ^24;  3  Mass.  5G2  ; 
2  Gall.  C.  C.  152 ;  3  Mas.  C.  C.  474 ;  10  Pick. 
Mass.  396;  11  Wend.  N.  Y.  106.  A  legacy 
also  is  payment,  if  the  intention  of  the  tes- 
tator that  it  should  be  so  considered  can  be 
shown,  and  if  the  debt  was  liquidated  at  the 
death  of  the  testator.  1  Esp.  187  ;  12  Mass. 
391 ;  5  Cow.  N.  Y.  368.    See  Legacy. 

1^.  When  money  is  sent  by  letter,  even 
though  the  money  is  lost,  it  is  good  payment, 
and  the  debtor  is  discharged,  if  he  was  ex- 
pressly authorized  or  directed  by  the  creditor 
so  to  send  it,  or  if  such  authority  can  be  pre- 
sumed from  the  course  of  trade.  Peake,  67; 
11  Mees.  &  W.  Exch.  233.  But,  even  if  the 
authority  be  given  or  inferred,  at  least  ordi- 
nary diligence  must  be  used  by  the  debtor  to 
have  the  money  safely  conveyed.  See  3  Mass. 
249  ;  Ry.  &  M.  149 ;  1  Exch.  477  ;  Peake, 
186.  Payment  must  be  of  the  whole  sum ;  and 
even  where  a  receipt  in  full  has  been  given 
for  a  payment  of  part  of  an  ascertained  sum, 
it  has  been  held  not  to  be  an  extinction  of  the 
debt.  5  Coke,  117;  2  Barnew.  &  C.  477;  5 
East,  230  ;  3  N.  H.  518  ;  11  Vt.  60  ;  26  Me. 
88 ;  37  id.  361 ;  10  Ad.  &  E.  121 ;  4  Gill  &  J. 
Md.  305  ;  9  Johns.  N.  Y.  333  ;  17  id.  169  ;  11 
How.  100. 

13.  But  payment  of  part  may  be  left  to 
the  jury  as  evidence  that  the  whole  has  been 
paid,  5  Cranch,  11 :  3  N.  H.  518 ;  and  pay- 
ment of  a  part  at  a  different  time,  2  Mete. 
Mass.  283,  or  place,  3  Hawks,  No.  C.  580,  or 
in  any  way  more  beneficial  to  the  creditor 
than  that  prescribed  by  the  contract,  is  good. 
15  Mees.  &  W.  Exch.  23.  Giving  a  chattel, 
though  of  less  value  than  the  debt,  is  a  dis- 
charge, Dy.  75  a;  2  Litt.  Ky.  49  ;  3  Barb. 
Ch.  N.Y.  621,  or  rendering  certain  services, 
with  the  consent  of  the  creditor,  5  Day,  Conn, 
359,  or  assigning  certain  property.  5  Johns. 
N.  Y.  386 ;  13  Mass.  424.  So  if  a  stranger 
pay  a  part,  or  give  his  note  for  a  part,  and 
this  is  accepted,  it  is  a  good  payment  of  the 
debt.  11  East,  390  ;  4  Barnew.  &  C.  500  ;  13 
Ala.  N.  s.  353  ;  14  Wend.  N.  Y.  116;  2  Mete. 
Mass.  283.  And  where  a  creditor  by  process 
of  law  compels  the  payment  of  a  part  of  his 
claim,  this  is  generally  a  discharge  of  the 
whole.  11  Serg.  &  R.  Penn.  78  ;  16  Johns. 
N.  Y.  121 ;  2  Seld.  N.  ^  .  179 ;  6  Cush.  Mass. 
28  ;  2  Parsons,  Contr.  232. 

14*  The  payment  must  have  been  accepted 
knowingly.  Many  instances  are  given  in 
the  old  writers  to  illustrate  acceptance:  thus, 
if  the  money  is  counted  out,  and  the  payee 
takes  a  part  and  puts  it  in  a  bag,  this  is  a 
good  payment,  and  if  any  be  lost  it  is  the 
payee's  loss.  5  Mod.  398.  Where  A  paid  B 
£100  in  redemption  of  a  mortgage,  and  B 
bade  C  put  it  in  his  closet,  and  C  did  so,  and 
A  demanded  his  papers,  which  B  refused  to 


deliver,  and  A  demanded  back  his  money,  and 
B  directed  C  to  give  it  to  him,  and  C  did,  it 
was  held  to  be  a  payment  of  the  mortgage. 
Viner,  Abr.  Payment  (E). 

Generally,  there  can  be  but  little  doubt  as 
to  acceptance  or  non-acceptance,  and  the 
question  is  one  of  fact  for  the  jury  to  deter- 
mine under  the  circumstances  of  each  par- 
ticular case. 

Of  course,  where  notes  or  bank-bills  are 
given  in  payment  of  a  debt,  the  evidence 
that  they  were  so  given  is  to  be  the  same  as 
evidence  of  any  other  fact  relating  to  pay- 
ment. 

15.  Evidence  of  payment.  Evidence  that 
any  thing  has  been  done  and  accepted  as  pay- 
ment is  evidence  of  payment. 

A  receipt  is  prima  facie  evidence  of  pay- 
ment ;  but  a  receipt  acknowledging  the  re- 
ception of  ten  dollars  and  acquitting  and 
releasing  from  all  obligations  would  be  a 
receipt  for  ten  dollars  only.  2  Ves.  Ch.  310; 
5  Barnew.  &  Aid.  606  ;  18  Pick.  Mass.  325  ; 
1  Edw.  Ch.  N.  Y.  341.  And  a  receipt  is  only 
prima  facie  evidence  of  payment.  2  Taunt. 
241 ;  7  Cow.  N.  Y.  334 ;  4  Ohio,  346.  For 
cases  explaining  this  rule,  see,  also,  2  Mas.  C. 
C.  141 ;  11  Mass.  27  ;  9  Johns.  N.  Y.  310 ;  4 
Harr.  &  M'H.  Md,  219 ;  3  Caines,  N.  Y.  14. 
And  it  may  be  shown  that  the  particular 
sum  stated  in  the  receipt  was.  not  paid,  and, 
also,  that  no  payment  has  been  made.  2 
Term,  366  ;  26  N.  H.  12 ;  9  Conn.  401 ;  2  N. 
J.  59 ;  10  Humphr.  Tenn.  188 ;  13  Penn.  St.  46. 

Payment  may  be  presumed  by  the  jury  in 
the  absence  of  direct  evidence :  thus,  posses- 
sion by  the  debtor  of  a  security  after  the 
day  of  payment,  which  security  is  usually 
given  up  on  payment  of  the  debt,  is  primd 
acie  evidence  of  payment  by  the  debtor.  1 
tark.  374 ;  9  Serg.  &  R.  Penn.  385. 

16.  If  an  acceptor  produce  a  bill  of  ex- 
change, this  is  said  to  afford  in  England  no 
presumption  of  payment  unless  it  is  shown 
to  have  been  in  circulation  after  he  accepted 
it.  2  Campb.  439.  See,  also,  14  Mees.  &  W. 
Exch.  379.  But  in  the  United  States  such 
possession  is  prima  facie  evidence  of  pay- 
ment. 7  Serg.  &  R.  Penn.  116 ;  4  Johns.  N. 
Y.  296  ;  2  Pick.  Mass.  204.  Payment  is  also 
conclusively  presumed  from  lapse  of  time. 
After  twenty  years'  non-demand,  unexplained, 
the  court  will  presume  a  payment  without 
the  aid  of  a  jury.  1  Campb.  27  14  Serg.  & 
R.  Penn.  15  ;  6  Cow.  N.  Y.  401 ;  2  Cranch, 
180.  Facts  which  destroy  the  reason  of  this 
rule  may  rebut  the  presumption.  1  Pick. 
Mass.  60 ;  2  La.  481.  And  a  jury  may  infer 
payment  from  a  shorter  lapse  of  time,  espe- 
cially if  there  be  attendant  circumstances 
favoring  the  presumption.  7  Serg.  &  R.  Penn. 
410.  As  to  presumptions  against  the  exist- 
ence of  the  debt,  see  5  Barb.  N.  Y.  63. 

17'.  A  presumption  may  arise  from  the  courso 
of  dealing  between  the  parties,  or  the  regular 
course  of  trade :  thus,  after  two  years  it  was 
presumed  that  a  workman  had  been  paid,  as 
it  was  shown  that  the  employer  paid  his 
workmen  every  Saturday  night,  and  this  man 


PAYMENT 


314 


PAYMENT 


had  been  seen  -w  aiting  among  others.  1  Esp. 
296.    See,  also,  3  Campb.  10. 

A  receipt  for  the  last  year's  or  quarter's 
rent  is  prima  facie  evidence  of  the  payment 
of  all  the  rents  previously  due.  2  Pick.  Mass. 
204.  If  the  last  instalment  on  a  bond  is 
paid  in  due  form,  it  is  evidence  that  the 
others  have  been  paid ;  if  paid  in  a  different 
form,  that  the  parties  are  acting  under  anew 
agreement. 

Where  receipts  had  been  regularly  given 
for  the  same  amount,  but  for  a  sum  smaller 
than  was  due  by  the  agreement,  it  was  held 
svidence  of  full  payment.    4  Mart.  La.  698. 

IS.  Who  may  make  payment.  Payment 
may  be  made  by  the  primary  debtor,  and  by 
other  persons  from  whom  the  creditor  has  a 
right  to  demand  it. 

An  agent  may  make  payment  for  his  prin- 
cipal. 

An  attorney  may  discharge  the  debt  against 
his  client.  5  Bingh.  506.  One  of  any  num- 
ber of  joint  and  several  obligors,  or  one  of 
several  joint  obligors,  may  discharge  the 
debt.  Viner,  Abr.  Payment  (B).  Payment 
may  be  made  by  a  third  person,  a  stranger  to 
the  contract. 

It  may  be  stated,  generally,  that  any  act 
done  by  any  person  in  discharge  of  the  debt, 
if  accepted  by  the  creditor,  will  operate  as 
payment.  In  the  civil  law  there  are  many 
exceptions  to  this  rule,  introduced  by  the 
operation  of  the  principle  of  subrogation. 
Most  of  these  have  no  application  in  the  com- 
mon law,  but  have  been  adopted,  in  some  in- 
stances, as  a  part  of  the  law  merchant.  See 
Subrogation  ;  Contribution. 

19.  To  ivhom  payment  may  be  made.  Pay- 
ment is  to  be  made  to  the  creditor.  But  it 
may  be  made  to  an  authorized  agent.  And 
if  made  in  the  ordinary  course  of  business, 
without  notice  requiring  the  payment  to  be 
made  to  himself,  it  is  binding  upon  the  prin- 
cipal. 11  East,  36 ;  6  Mann.  & G.  166 ;  Cowp. 
257 ;  4  Barnew.  &  Aid.  395 ;  3  Stark.  Cas. 
16  ;  1  Campb.  477.  Payment  to  a  third  per- 
son by  appointment  of  the  principal  will  be 
substantially  payment  to  the  principal.  1 
Phillipps,  Ev.  200.  Payment  to  an  agent 
who  made  the  contract  with  the  payee  (with- 
out prohibition)  is  payment  to  the  principal. 
1  Campb.  339  ;  16  Johns.  N.  Y.  86 ;  2  Gall. 
C.  C.  565  ;  10  Barnew.  &  C.  755.  But  pay- 
ment may  be  made  to  the  principal  after  au- 
thority given  to  an  agent  to  receive.  6  Maule 
&  S.  156.  Payment  to  a  broker  or  factor  who 
sells  for  a  principal  not  named  is  good.  11 
East,  36.  Payment  to  an  agent  when  he  is 
known  to  be  such  will  be  good  if  made  upon 
the  terms  authorized,  11  East,  36,  if  there 
be  no  notice  not  to  pay  to  him,  3  Bos.  &  P. 
485  ;  15  East,  65 ;  and  even  after  notice,  if  the 
factor  had  a  lien  on  the  money  when  paid. 
C  Barnew.  &  Aid.  27.  If  the  broker  sell 
goods  as  his  own,  payment  is  good  though  the 
mode  varies  from  that  agreed  on.  11  East, 
36 ;  1  Maule  &  S.  147 ;  2  Carr.  &  P.  49. 

20.  Payment  to  an  attorney  is  as  effectual 
as  payment  to  the  principal  himself.    1  W. 


Blackst.  8  ;  1  Wash.  C.  C.  9  ;  1  Call,  Va.  1  47. 
So,  also,  to  a  solicitor  in  chancery  after  a  de- 
cree. 2  Chanc.  Cas.  38.  The  attorney  of  re- 
cord may  give  a  receipt  and  discharge  the 
judgment.  1  Call,  Va.  147 ;  1  Coxe,  N.  J. 
214  ;  1  Pick.  Mass.  347  ;  10  Johns.  N.  Y.  220; 

2  Bibb,  Ky.  382,  if  made  within  one  year.  1 
Me.  257.  Not  so  of  an  agent  appointed  by 
the  attorney  to  collect  the  debt.  2  Dougl. 
623.  Payment  by  an  officer  to  an  attorney 
whose  power  had  been  revoked  before  he  re- 
ceived the  execution  did  not  discharge  the 
officer.  13  Mass.  465 ;  3  Yeates,  Penn.  7.  See, 
also,  1  Des.  Ch.  So.  C.  461.  Payment  to  one 
of  two  copartners  discharges  the  debt,  8 
Wend.  N.  Y.  542  ;  15  Ves.  Ch.  198  ;  2  Blackf. 
Ind.  371  ;  1  111.  107;  6  Maule  &  S.  156;  1 
Wash.  C.  C.  77,  even  after  dissolution.  4  Carr. 
&  P.  108.  And  see  7  N.  H.  568.  So  payment 
to  one  of  two  joint  creditors  is  good,  though  they 
are  not  partners.  4  J.  J.  Marsh.  Ky.  367. 
But  payment  by  a  banker  to  one  of  several 
joint  depositors  without  the  assent  of  the 
others  was  held  a  void  payment.  1  Mood.  & 
R.  145  ;  Ry.  &  M.  364 ;  4  Eng.  L.  &  Eq.  342. 

21.  Payment  to  the  wife  of  the  creditor  is 
not  a  discharge  of  the  debt,  unless  she  is  ex- 
pressly or  impliedly  his  agent.  2  Scott,  n.  r. 
372  ;  1  Add.  Penn.  316  ;  2  Freem.  178  ;  22 
Me.  335.  An  auctioneer  employed  to  sell  real 
estate  has  no  authority  to  receive  the  pur- 
chase-money by  virtue  of  that  appointment 
merely.  1  Mood,  &  R.  326.  Usually,  the  terms 
of  sale  authorize  him  to  receive  the  purchase- 
money.  5  Mees.  &  W.  Exch.  645.  Payment 
was  made  to  a  person  sitting  in  the  creditor's 
counting-room  and  apparently  doing  his  busi- 
ness, and  it  was  held  good,  1  Mood.  &  M.  200; 

5  Taunt.  307;  but  payment  to  an  apprentice 
so  situated  was  held  not  to  be  good.  2  Crompt. 

6  M.  Exch.  304.  Generally,  payment  to  the 
agent  must  be  made  in  money,  to  bind  the 
principal.  11  Mod.  71 ;  10  Barnew.  &  C.  760. 
Power  to  receive  money  does  not  authorize  an 
agent  to  commute,  1  Wash.  C.  C.  454  ;  1  Pick. 
Mass.  347,  nor  to  submit  to  arbitration.  5 
How.  891.    See,  also,  Story,  Ags  §  99. 

An  agent  authorized  to  receive  money 
cannot  bind  his  principal  by  receiving  goods, 
4  Carr.  &  P.  501,  or  a  note,  1  Salk.  442  ;  2  Ld. 
Raym.  928 ;  5  Mees.  &  W.  Exch.  645  ;  but  a 
subsequent  ratification  would  remedy  any 
such  departure  from  authority  ;  and  it  is  said 
that  slight  acts  of  acquiescence  will  be  deemed 
ratification.  Payment  to  one  of  several  joint 
creditors  of  his  part  will  not  alter  the  nature 
of  the  debt  so  as  to  enable  the  others  to  sue 
separately.  4  Tyrwh.  Exch.  488.  Payment  to 
one  of  several  executors  has  been  held  sufficient. 

3  Atk.  Ch.  695.  Payment  to  a  trustee  gene- 
rally concludes  the  cestui  que  trust  in  law.  5 
Barnew.  &  Ad.  96.  Payment  of  a  debt  to  a 
marshal  or  sheriff  having  custody  of  the  per- 
son of  the  debtor  does  not  satisfy  the  plaintiff. 
2  Show.  129  ;  14  East,  418 ;  4  Barnew.  &  C. 
32.  Interest  may  be  paid  to  a  scrivener 
holding  the  mortgage-deed  or  bond,  and 
also  the  principal,  if  he  deliver  up  the  bond ; 
otherwise  of  a  mortgage-deed  as  to  the  prin- 


PAYMENT 


315  PAYMENT  INTO  COURT 


jipal,  for  there  must  be  a  re-conveyance.  1 
Salk.  157.  It  would  seem,  then,  that  in  those 
states  where  no  re-conveyance  is  needed,  a 
payment  of  the  principal  to  a  person  holding 
the  security  would  be  good,  at  least  prima 
facie. 

Subsequent  ratification  of  the  agent's  acts 
is  equivalent  to  precedent  authority  to  receive 
money.    Pothier,  Obi.  n.  528. 

23.  When  to  be  made.  Payment  must  be 
made  at  the  exact  time  agreed  upon.  This 
rule  is  held  very  strictly  in  law ;  but  in 
equity  payment  will  be  allowed  at  a  time 
subsequent,  generally  when  damages  can  be 
estimated  and  allowed  by  way  of  interest.  8 
East,  208  ;  3  Pick.  Mass.  414;  5  id.  106, 187. 
Where  payment  is  to  be  made  at  a  future  day, 
of  course  nothing  can  be  demanded  till  the 
time  of  payment,  and,  if  there  be  a  condition 
precedent  to  the  liability,  not  until  the  con- 
dition has  been  performed.  And  where  goods 
had  been  sold  "  at  six  or  nine  months'  credit," 
the  debtor  was  allowed  the  option.  5  Taunt. 
338. 

Where  no  time  of  payment  is  specified,  the 
money  is  to  be  paid  immediately  on  demand. 
Viner,  Abr.  Payment  (11);  1  Pet.  455;  4 
Rand.  Va.  346.  When  payment  is  to  be 
made  at  a  certain  time,  it  may  be  made  at  a 
dilFerent  time  if  the  plaintiff  will  accept, 
Viner,  Abr.  Payment  (II);  and  it  seems  that 
the  debtor  cannot  compel  the  creditor  to  re- 
ceive payment  before  the  debt  is  due. 

24.  Where  to  he  made.  Payment  must  be 
made  at  the  place  agreed  upon,  unless  both 
the  parties  consent  to  a  change.  If  no  place  of 
payment  is  mentioned,  the  payer  must  seek 
out  the  payee.  J.  B.  Moore,  Priv.  Counc.  274  ; 
Sheppard,  Touchst.  378  ;  2  Brod.  &  B.  165  ; 
2  Maule  &  S.  120 ;  2  Mees.  &  W.  Exch.  223; 
20  Eng.  L.  &  Eq.  498. 

So,  too,  the  creditor  is  entitled  to  call  for 
payment  of  the  whole  of  his  claim  at  one  time, 
unless  the  parties  have  stipulated  for  payment 
in  parcels. 

Questions  often  arise  in  regard  to  the  pay- 
ment of  debts  and  legacies  by  executors  and 
administrators.  These  questions  are  gene- 
rally settled  by  statute  regulations.  See  Dis- 
tributions ;  Executor  ;  Administrator. 

As  a  general  rule,  debts  are  to  be  paid  first, 
then  specific  legacies.  The  personal  property 
is  made  liable  for  the  testator's  debts,  and, 
after  that  is  exhausted,  the  real  estate,  under 
restrictions  varying  in  the  different  states. 

In  the  payment  of  mortgages,  if  the  mort- 
gage was  made  by  the  deceased,  the  personal 
estate  is  liable  to  discharge  the  mortgage  debts. 
2  Cruise,  Dig.  147.  But  where  the  deceased 
acquired  the  land  subject  to  the  mortgage,  his 
real  estate  must  pay  the  debt.  2  Cruise,  Dig. 
164-168  ;  3  Johns.  Ch.  N.  Y.  252 ;  2  P.  Will. 
Ch.  664,  n.  1 ;  2  Brown,  Ch.  57  ;  5  Ves.  Ch. 
534 ;  14  id.  417.    See  Mortgage. 

25.  Effect  of  payment.  The  effect  of  pay- 
ment is — -first,  to  discharge  the  obligation ; 
and  it  may  happen  that  one  payment  will  dis- 
charge several  obligations  bymeansof  a  trans- 
fer of  the  evidences  of  obligation.  Pothier, 


Obi.  554,  n.  Second,  payment  does  not  pre- 
vent a  recovery  when  made  under  a  mistuke 
of  fact.  The  general  rule  is  that  mistake  or 
ignorance  of  law  furnishes  no  ground  to  re- 
claim money  paid  voluntarily  under  a  claim 
of  right.  2  Kent,  Comm.  401  ;  2  Greenleaf, 
Ev.  §  123.  But  acts  done  under  a  mistake  or 
ignorance  of  an  essential  fact  are  voidable 
and  relicvable  both  in  law  arid  equity.  Laws 
of  a  foreign  country  are  matters  of  fact, 
Story,  Const.  ^^§407,  411  ;  0  Pick.  Mass.  112  ; 
and  the  several  United  States  are  foreign  to 
each  other  in  this  respect.  See  Conplict  of 
Laws  ;  Foreign  Laws.  In  Kentucky  and 
Connecticut  there  is  a  power  of  recovery 
equally  in  cases  of  mistake  of  law  and  of  fact. 
19  Conn.  548  ;  3  B.  Monr.  Ky.  510  ;  4  id.  190 
In  Ohio  it  may  be  remedied  in  equity.  11 
Ohio,  223.  In  New  York  a  distinction  is 
taken  between  ignorance  of  laM^  and  mistake 
of  law,  giving  relief  in  the  latter  case.  18 
Wend.  N.  Y.  422 ;  2  Barb.  Ch.  N.  Y.  508.  In 
England,  money  paid  under  a  mistake  of  law 
cannot  be  recovered  back.    4  Ad.  &  E.  858. 

26.  Third,  part  payment  of  a  note  will 
have  the  effect  of  waiver  of  notice  as  to  the 
whole  sum.  Fourth,  payment  of  part  of  the 
•debt  will  bar  the  application  of  the  Statute 
of  Limitations  as  to  the  residue,  22  N.  II.  219  ; 
6  Md.  201 ;  8  Mass.  134;  28  Eng.  L.  &.  Eq. 
454,  even  though  made  in  goods  and  chattels. 
2  Crompt.  M.  &  R.  Exch.  337  ;  4  Ad.  &  E.  71 ; 
4  Scott,  n.  r.  119.  But  it  must  be  shown 
conclusively  that  the  payment  was  made  as 
part  of  a  larger  debt.  1  Crompt.  M.  &  R. 
Exch.  252  ;  2  Bingh.  n.  c.  241 ;  6  Mees.  &  W. 
Exch.  824  ;  20  Miss.  663  ;  24  id.  92  ;  9  Ark. 
455  ;  11  Barb.  N.  Y.  554;  24  Vt.  216.  See, 
also,  2  Parsons,  Contr.  353-359. 

In  Pleading.  The  name  of  a  plea  by 
which  the  defendant  alleges  that  he  has  paid 
the  debt  claimed  in  the  declaration  :  this 
plea  must  conclude  to  the  country.  See  Chitty, 
Plead. 

See,  also,  generally.  Parsons,  Story,  and 
Chitty,  on  Contracts ;  Greenleaf,  Phillipps,  and 
Starkie,  on  Evidence ;  Story,  Parsons,  and 
Byles,  on  Bills  and  Notes  ;  Greenleafs  Cruise, 
on  Real  Property;  Kent,  vol.  iii.;  Masse, 
Droit  commerciel,  vol.  v.  p.  229  ei  seq. ;  Do- 
mat,  Civil  Law ;  Pothier,  on  Obligation  ; 
Guyot,  Repertoire  Universelle,  Payment;  Co- 
myns ;  Viner,  Burn,  and  Dane,  Abridge- 
ment, Par/ment. 

PAYMENT  INTO  COURT.  In  Prac 
tice.    Depositing  a  sum  of  money  with  the 
proper  officer  of  the  court  by  the  defendant 
in  a  suit,  for  the  benefit  of  the  plaintiff  and 
in  answer  to  his  claim. 

It  may  be  made  in  some  states  under  sta- 
tutory provisions,  18  Ala.  293  ;  7  111.  671 ;  1 
Barb.  N.  Y.  21 ;  5  llarr.  Del.  17  ;  24  Ga. 
211;  16  Tex.  461;  11  Ind.  532;  and  see  3 
Eng.  L.  &  Eq.  185  ;  7  id.  152;  and  in  most 
by  a  rule  of  court  granted  for  the  purpose,  2 
Bail.  So.  C.  28;  7  Ired.  No.  C.  201 ;  1  Swan, 
Tenn.  92,  in  which  case  notice  of  an  inten- 
tion to  apply  must,  in  general,  have  been 
previously  given. 


PAYS 


316 


PEC UNI  A 


The  effect  is  to  divest  the  plaintiff  of  all 
rig;ht  to  withdraw  the  money,  1  Wend.  N.  Y. 
191;  1  E.  D.  Smith,  N.  Y.  398;  3  Watts, 
Penn.  248,  except  by  leave  of  court,  1  Coxe, 
N.  J.  298,  and  to  admit  conclusively  every 
fact  which  the  plaintiff  would  be  obliged  to 
prove  in  order  to  recover  the  money,  1 
Barnew.  &  C.  3  ;  6  Mees.  &  W.  Exch.  9  ;  2 
Scott,  N.  s.  56  ;  9  Dowl.  21 ;  1  Dougl.  Mich. 
330  ;  24  Vt.  140;  and  see  7  Cush.  Mass.  556  ; 
as,  that  the  amount  tendered  iscZw«,  1  Campb. 
658  ;  2  id.  341 :  5  Mass.  365  ;  2  Wend.  N.  Y. 
431 ;  7  Johns.  N.  Y.  315,  for  the  cause  laid 
in  the  declaration,  5  Bingh.  28,  32  ;  2  Bos.  & 
P.  550 ;  5  Pick.  Mass.  285  ;  6  id.  340,  to  the 
plaintiff  in  the  character  in  which  he  sues,  2 
Campb.  441 ;  the  jurisdiction  of  the  court,  5 
Esp.  19;  that  the  contract  was  made,  3 
Campb.  52  ;  3  Taunt.  95,  and  broken  as  al- 
leged, 1  Barnew.  &  C.  3,  but  only  in  refer- 
ence to  the  amount  paid  in,  7  Johns.  N.  Y. 
315  ;  3  Eng.  L.  &  Eq.  548 ;  and  nothing  be- 
yond such  facts.  1  Greenleaf,  Ev.  ^  206. 
And  see  2  Mann.  &  G.  208,  233 ;  5  Carr.  & 
P.  247. 

Generally,  it  relieves  the  defendant  from  the 
payment  of  costs  until  judgment  is  recovered 
for  a  sum  larger  than  that  paid  in.  1  Wash. 
Va.  10 ;  3  Cow.  N.  Y.  36 ;  3  Wend.  N.  Y. 
326  ;  2  Miles,  Penn.  65  ;  2  Rich.  So.  C.  64 ; 
24  Vt.  140.  As  to  the  capacity  in  which  the 
officer  receiving  the  money  acts,  see  1  Coxe, 
N.  J.  298 ;  2  Bail.  So.  C.  28 ;  17  Ala.  293. 

PAYS.  Country.  Trial  per  pays,  trial 
by  jury  (the  country).    See  Pais. 

PEACE.  The  concord  or  final  agreement 
in  a  fine  of  lands.  18  Edw.  I.  modus  levandi 
finis. 

^  The  tranquillity  enjoyed  by  a  political  so- 
ciety, internally  by  the  good  order  which 
reigns  among  its  members,  and  externally 
by  the  good  understanding  it  has  with  all 
other  nations.  Applied  to  the  internal  regu- 
lations of  a  nation,  peace  imports,  in  a  tech- 
nical sense,  not  merely  a  state  of  repose  and 
security  as  opposed  to  one  of  violence  or  war- 
fare, but  likewise  a  state  of  public  order  and 
decorum.  Hammond,  Nisi  P.  139 ;  12  Mod. 
566.  See,  generally.  Bacon,  Abr.  Preroga- 
tive (D  4);  Hale,  Hist.  Comm.  Pleas,  160;  3 
Taunt.  14;  1  Barnew.  &  Aid.  227;  Peake, 
89  ;  1  Esp.  294 ;  Harrison,  Dig.  Officer  (V  4) ; 
2  Bentham,  Ev.  319,  note;  Good  Behavior; 
Surety  of  the  Peace. 

PEACE  OP  OOD  AND  THE 
CHURCH.  The  freedom  from  suits  at  law 
between  the  terms.  Spelraan,  Gloss. ;  Jacob, 
Law  Diet. 

PECK.  A  measure  of  capacity,  equal  to 
two  gallons.    See  Measure. 

PECULATION.    In  Civil  Law.  The 

unlawful  appropriation  by  a  depositary  of 
public  funds,  of  the  property  of  the  govern- 
ment intrusted  to  his  care,  to  his  own  use 
or  that  of  others.  Domat,  Suppl.  au  Droit 
Public,  1.  3,  tit.  5. 

PECULIAR.    In  Ecclesiastioal  Law. 


A  parish  or  church  in  England  which  ha.s 
Jurisdiction  of  ecclesiastical  matters  within 
itself  and  independent  of  the  ordinary. 

They  may  be  either — 

Royal,  which  include  the  sovereign's  free 
chapels  ; 

Of  the  archhisliops,  excluding  the  jurisdic- 
tion of  the  bishops  and  archdeacons ; 

Of  the  bishops,  excluding  the  jurisdiction 
of  the  bishop  of  the  diocese  in  which  they 
are  situated ; 

Of  the  bishops  in  their  own  diocese,  ex- 
cluding archdiaconal  jurisdiction ; 

Of  deans,  deans  and  chapters,  prebendaries^ 
and  the  like,  excluding  the  bishop's  jurisdic- 
tion in  consequence  of  ancient  compositions. 

The  court  of  peculiars  has  jurisdiction  of 
causes  arising  in  such  of  these  peculiars  as 
are  subject  to  the  metropolitan  of  Canterbury. 
In  other  peculiars  the  jurisdiction  is  exer- 
cised by  commissaries.  1  Phill.  Eccl.  202, 
n.,  245  ;  Skinn.  589  ;  3  Sharswood,  Blackst. 
Comm.  65. 

PECULIUM(Lat.).  In  Civil  Law.  The 

most  ancient  kind  of  pecuUum  was  the peculium 
profectitium  of  the  Roman  law,  which  signi- 
fied that  portion  of  the  property  acquired  by 
a  son  or  slave  which  the  father  or  master 
allowed  him,  to  be  managed  as  he  saw  fit. 
In  modern  civil  law  there  are  other  kinds  of 
peculium,  viz.:  peculium  castrense,  which  in- 
cludes all  movables  given  to  a  son  by  rela- 
tives and  friends  on  his  going  on  a  campaign, 
all  the  presents  of  comrades,  and  his  military 
pay  and  the  things  bought  with  it ;  peculium 
quasi-cash^ense,  which  includes  all  acquired 
by  a  son  by  performing  the  duties  of  a  public 
or  spiritual  office  or  of  an  advocate,  and  also 
gifts  from  the  reigning  prince ;  peculium  ad- 
ventitium,  which  includes  the  property  of  son's 
mother  and  relatives  on  that  side  of  the 
house,  and  all  which  comes  to  him  on  a 
second  marriage  of  his  parents,  and,  in  gene- 
ral, all  his  acquisitions  which  do  not  come 
from  his  father's  property  and  do  not  come 
under  castrense  or  quasi-casirense  peculium. 

The  peculium  prof ectiiium  remains  the  pro- 
perty of  the  father.  The  peculium  castrenst 
and  quasi-castrense  are  entirely  the  property 
of  the  son.  The  peculium  adventitium  belongs 
to  the  son  ;  but  he  cannot  alien  it  nor  dis- 
pose of  it  by  will ;  nor  can  the  father,  unless 
under  peculiar  circumstances,  alien  it  with- 
out consent  of  son.  Mackeldy,  Civ.  Law.  ^ 
557-559  ;  Vicat,  Voc.  Jur. ;  Inst.  2.  9.  1 ;  Dig. 
15.  1.  5.  3  ;  Pothier,  ad  Pand.  lib.  50,  tit.  17, 
c.  2,  art.  3. 

A  master  is  not  entitled  to  the  extraordi- 
nary earnings  of  his  apprentices  which  do 
not  interfere  with  his  services  so  as  to  affect 
the  master's  profits.  An  apprentice  wai 
therefore  decreed  to  be  entitled  to  salvage,  in 
opposition  to  his  master's  claim  for  it.  2 
Cranch,  270. 

PECUNIA  (Lat.).  In  Civil  Law.  Pro- 
perty, real  or  personal,  corporeal  or  incorpo- 
real. Things  in  general  (o/nwei-m").  Sothelaw 
of  the  Twelve  Tables  said,  uti  quisque  pater 


PECUNIA  NUMERATA  317 


PEERS 


famillas  legasset  super  pecnnid  tntelare  rei 
suae,  iia  jus  csto :  in  whatever  manner  a 
father  of  a  family  may  have  disposed  of  his 
property  or  of  the  tutorship  of  his  things,  let 
this  disposition  be  law.  1  Logons  El§m.  du 
Dr.  Civ.  Rom.  288.  But  Paulus,  in  1.  5,  D. 
de  verb,  sif/nif.,  gives  it  a  narrower  sense  than 
res,  which  he  says  means  what  is  not  in- 
cluded within  patrimony,  pecunia  what  is. 
Vicat,  Voc.  Jur.  In  a  still  narrower  sense, 
it  means  those  things  only  which  have  mea- 
sure, weight,  and  number,  and  most  usually 
strictly  money.    Jd.    The  general  sense  of 

Eroperty  occurs,  also,  in  the  old  English  law. 
leg.  Edw.  Confess,  c.  10. 

Flocks  were  the  first  riches  of  the  ancients;  and 
it  is  from  pecns  that  the  words  pecunia,  peculium, 
pecnlatus,  are  derived.  In  old  English  la,vf  pecunia 
often  retains  the  force  of  pccun.  So  often  in 
Domesday:  paatura  ibidem  pecunipe  villse,  i.e.  pas- 
ture for  cattle  of  the  village.  So  vivse  pecnnise,  live 
stock.  Leg.  Edw.  Confess,  c.  10 ;  Emendat.  Wil- 
lielmi  Primi  ad  Leges  Edw.  Confess. ;  Cowel. 

PECUNIA  NUMERATA  (Lat.).  Money 
given  in  payment  of  a  debt.  Properly  used 
of  the  creditor,  who  is  properly  said  to  num- 
ber,  i.e.  count  out,  the  money  to  the  debtor 
which  he  must  pay,  and  improperly  of  the 
debtor,  who  is  said  to  number  or  count  out 
the  money  to  the  creditor,  i.e.  to  pay  it.  Vicat, 
Voc.  Jur. ;  Calvinus,  Lex. 

PECUNIA  NON-NUMERATA  (Lat.). 
Money  not  paid  or  numbered.  The  exceptio 
non-numeratce  pecunice  (plea  of  money  not 
paid)  is  allowed  to  the  principal  or  surety 
by  the  creditor.    Calvinus,  Lex. 

PECUNIA  TRAJECTITIA  (Lat.).  A 
loan  of  money  which,  either  itself  or  in  the 
shape  of  goods  bought  with  it,  is  to  be  carried 
over  the  sea,  the  lender  to  take  the  risk  from  the 
commencement  of  voyage  till  arrival  at  port 
of  destination,  and  on  that  account  to  have 
higher  interest ;  which  interest  is  not  essen- 
tial to  the  contract,  but,  if  reserved,  is  called 
foenus  nauticum.  Mackeldy,  Civ.  Law,  ^ 
398  b.  The  term  fcenus  nauticum  is  some- 
times applied  to  the  transaction  as  well  as  the 
interest,  making  it  coextensive  with  pecunia 
trajeciitia. 

PECUNIARY.  That  which  relates  to 
money. 

PECUNIARY  CAUSES.  Causes  in 
ecclesiastical  courts  where  satisfaction  is 
sought  for  withholding  ecclesiastical  dues  or 
the  doing  or  neglecting  some  act  connected 
with  the  church.  3  Sharswood,  Blackst. 
Comm.  88.  For  what  causes  are  ecclesias- 
tical, see  2  Burn,  Eccl.  Law,  39. 

PEDAGIUM  (Lat.  pes,  foot).  Money 
paid  for  passing  by  foot  or  horse  through  any 
forest  or  country.  Pupilla  ocidi,  p.  9,  c.  7  ; 
Cassan  de  Coutum.  Burgund.  p.  118;  Rot. 
Vase.  22  Edw.  III.  m.  34. 

PEDAULUS  (Lat.  pes,  foot).  In  Civil 
Law.  A  Judge  who  sat  at  the  foot  of  the 
tribunal,  i.e.  on  the  lowest  seats,  ready  to 
try  matters  of  little  moment  at  command  of 
pr«i'/-or.    Calvinus,  Lex.;  Vicat,  Voc.  Jur. 


PEDIGREE.  A  succession  of  degrees 
from  the  origin:  it  is  the  state  of  the  family 
as  far  as  regards  the  relationship  of  the  dif- 
ferent members,  their  births,  marriages,  and 
deaths.  This  term  is  applied  to  persons  or 
families  who  trace  their  origin  or  descent. 

On  account  of  the  difficulty  of  proving  in 
the  ordinary  manner,  by  living  witnessos, 
facts  which  occurred  in  remote  times,  hear- 
say evidence  has  been  admitted  to  prove  ft 
pedigree.    See  Declaration  ;  Hearsay. 

PEDIS  POSITIO  (Lat.  a  planting  or 
placing  of  the  foot).  A  term  used  to  de- 
note an  actual  corporal  possession.  Possessio 
est  quasi  pedis  positio :  possession  is  as  it 
were  a  planting  of  the  foot.  3  Coke,  42 ;  8 
Johns.  N.  Y.,  per  Kent,  C.  J. ;  5  Penn.  St. 
303 ;  2  Nev.  &  M.  343.    See  Pedis  Possessio. 

PEDIS  POSSESSIO  (Lat.).  A  foothold; 
an  actual  possession.  To  constitute  adverse 
possession,  there  must  be  pedis  posse>isio,  or 
a  substantial  inclosure.  2  Bouvier,  Inst.  n. 
2193 ;  2  Nott.  &  M'C.  So.  C.  343. 

PEDLARS.  Persons  who  travel  about 
the  country  with  merchandise  for  the  pur- 
pose of  selling  it. 

Persons,  except  those  peddling  newspapers, 
Bibles,  or  religious  tracts,  who  sell,  or  offer 
to  sell,  at  retail,  goods,  wares,  or  other  com- 
modities, travelling  from  place  to  place,  in 
the  street,  or  through  different  parts  of  the 
country.    Act  of  Congr.  July  1,  1862. 

They  are  obliged,  under  the  laws  of  per- 
haps all  the  states,  and  of  the  United  States, 
to  take  out  licenses,  and  to  conform  to  the 
regulations  which  those  laws  establish. 

PEERS  (Lat.  pares).  The  vassals  of  a 
lord ;  the  freeholders  of  a  neighborhood, 
before  whom  livery  of  seisin  was  to  be  made, 
and  before  whom,  as  the  jury  of  the  county, 
trials  were  had.  2  Sharswood,  Blackst. 
Comm.  316.  Trial  by  a  man's  peers  or 
equals  is  one  of  the  rights  reserved  by  Magna 
Charta.  4  Sharswood,  Blackst.  Comm.  349. 
These  vassals  were  called  pares  curice,  which 
title  see.    1  Washburn,  Real  Prop.  23. 

The  nobility  of  England,  who,  though  of 
different  ranks,  viz.  dukes,  marquises,  earls, 
viscounts,  and  barons,  yet  are  equal  in  their 
privilege  of  sitting  and  voting  in  the  house 
of  lords :  hence  they  are  called  peers  of  the 
realm. 

They  are  created  by  writ  summoning  them 
to  attend  the  house  of  lords  by  the  title  in- 
tended to  be  given,  or  by  letters  patent  di- 
rectly conferring  the  dignity.  The  former 
is  the  more  ancient  way  ;  but  the  grant  by 
patent  is  more  certain.  See  Sullivan,  Lect. 
19  a;  1  Wooddeson,  Lect.  37. 

Peers  are  tried  by  their  peers  in  cases  of 
treason,  felony,  and  misprision  of  the  same. 
In  cases  of  treason,  felony,  and  breach  of  the 
peace,  they  have  no  privilege  from  arrest. 
1  Sharswood,  Blackst.  Comm.  401*,  n.  11. 

Bishops  who  sit  in  parliament  are  peers; 
but  the  word  spiritual  is  generally  added* 
e.g.  "lords  temporal  and  spiritual."  1  Shars- 
wood, Blackst.  Comm.  401*.  n.  12. 


PEINE  FORTE  ET  DURE 


318 


PENETRATION 


Peerage  may  be  for  life,  which  does  not 
make  the  peer  a  lord  of  parliament,  i.e. 
entitle  him  to  a  seat  in  the  house  of  lords. 

1  Sharswood,  Blackst.  Comm.  401*,  n.  10. 
A  peerage  is  not  transferable,  except  with 
consent  of  parliament.  Id.  A  peerage  is 
lost  by  attainder.  1  Sharswood,  Blackst. 
Comm.  412*. 

PEINE  FORTE  ET  DURE  (L.Fr.).  In 
English  Law.  A  punishment  formerly  in- 
flicted in  England  on  a  person  who,  being  ar- 
raigned of  felony,  refused  to  plead  and  put  him- 
self on  his  trial,  and  stubbornly  stood  mute. 
He  was  to  be  laid  down,  naked,  on  his  back, 
on  the  ground,  his  feet  and  head  and  loins 
covered,  his  arms  and  legs  drawn  apart  by 
cords,  and  as  mueh  weight  of  iron  or  stone  as 
he  could  bear  placed  on  his  chest.  He  was  to 
have  the  next  day  three  morsels  of  barley 
bread,  without  drink;  the  next,  three  draughts, 
as  much  each  time  as  he  could  drink,  of  the 
nearest  stagnant  water  to  the  prison,  with- 
out bread  ;  and  such  was  to  be  his  diet  on 
alternate  days,  till  he  died.  This  punish- 
ment was  vulgarly  called  pressing  to  death. 

2  Reeve,  Hist.  Eng.  Law,  134 ;  4  Sharswood, 
Blackst.  Comm.  324;  Cowel ;  Britton,  c.  4. 
fol.  11*.  This  punishment  was  introduced 
between  31  Edw.  III.  and  8  Hen.  IV.  4 
Sharswood,  Blackst.  Comm.  324 ;  Year  B.  8 
Hen.  IV.  1.  Standing  mute  is  now,  by 
statute,  in  England,  equivalent  to  a  confession 
or  verdict  of  guilty.  12  Geo.  III.  c.  20.  See 
Mute. 

The  only  instance  in  which  this  punish- 
ment has  ever  been  inflicted  in  this  country 
is  that  of  Giles  Cory,  of  Salem,  who  refused 
to  plead  when  arraigned  as  a  witch.  Wash- 
burn, Jud.  Hist.  142 ;  1  Chandler,  Crim. 
Trials,  122. 

PELT  WOOL.  The  wool  pulled  ofi"  the 
skin  or  pelt  of  a  dead  ram. 

PENAL  ACTION.  An  action  for  re- 
covery of  statute  penalty.  3  Stephen,  Comm. 
635.  See  Hawkins,  PI.  Cr.  Liformatio.  It  is 
distinguished  from  a  popular  or  qui  tarn,  action, 
in  which  the  action  is  brought  by  the  in- 
former, to  whom  part  of  the  penalty  goes.  A 
penal  action  or  information  is  brought  by  an 
officer,  and  the  penalty  goes  to  the  king. 
1  Chitty,  Gen.  Pract.  25,  note ;  2  Archbold, 
Pract.  188. 

PENAL  BILL.  The  old  name  for  a 
bond  with  condition,  by  which  a  person  is 
bound  to  pay  a  certain  sum  of  money  or  do 
a  certain  act,  or,  in  default  thereof,  pay  a 
certain  sum  of  money  by  way  of  penalty. 
Jacob,  Law  Diet.  Bill. 

PENAL  STATUTES.  Those  which  in- 
flict a  penalty  for  the  violation  of  some  of 
their  provisions. 

It  is  a  rule  of  law  that  such  statutes  must 
be  construed  strictly.  1  Blackstone,  Comm. 
88;  Espinasse,  Pen.  Actions,  1;  Boscawen, 
Conv. ;  Croke  Jac.  415  ;  1  Comyns,  Dig.  444  ; 
5  id.  360;  1  Kent,  Comm.  4G7.  They  can- 
not, therefore,  b«  extended  by  their  spirit  or 
equity  to  other  offences  than  those  clearly 


described  and  provided  for.    1  Paine,  C. 
32;  6  Cranch,  171. 

PENALTY.  A  clause  in  an  agreement, 
by  which  the  obligor  agrees  to  pay  a  certain 
sum  of  money  if  he  shall  fail  to  fulfil  the 
contract  contained  in  another  clause  of  tho 
same  agreement. 

A  penal  obligation  differs  from  an  alternative 
obligation,  for  this  is  but  one  in  its  essence;  while 
a  penalty  always  includes  two  distinct  engagements, 
and  when  the  first  is  fulfilled  the  second  is  void. 
When  a  breach  has  taken  place,  the  obligor  has 
his  option  to  require  the  fulfilment  of  the  first  obli- 
gation,  or  the  payment  of  the  penalty,  in  those 
cases  which  cannot  be  relieved  in  equity,  when 
the  penalty  is  considered  as  liquidated  damages. 
Dalloz,  Diet.  Obligation  avec  Clause  jjeiiale. 

A  distinction  is  made  in  courts  of  equity  between 
penalties  and  forfeitures.  In  cases  of  forfeiture 
for  the  breach  of  any  covenant  other  than  a  cove- 
nant to  pay  rent,  relief  will  not  be  granted  in 
equity,  unless  upon  the  ground  of  accident,  fraud, 
mistake,  or  surprise,  when  the  breach  is  capable 
of  compensation.  Eden,  Inj.  22;  3  Ves.  Ch.  692; 
16  id.  403;  18  id.  68;  4  Bouvier,  Inst.  n.  3916. 

For  the  distinction  between  a  penalty  and  liquid- 
ated damages,  see  Liquidated  Damages. 

The  penalty  remains  unaffected  although  the 
condition  may  have  been  partially  performed:  as, 
in  a  case  where  the  penalty  was  one  thousand 
dollars,  and  the  condition  was  to  pay  an  annuity 
of  one  hundred  dollars,  which  had  been  paid  for 
ten  years,  the  penalty  was  still  valid.    5  Vt.  356. 

The  punishment  inflicted  by  law  for  its 
violation.  The  term  is  mostly  applied  to  a 
pecuniary  punishment.  See  G  Pet.  404;  7 
Wheat.  13  ;  10  id.  246  ;  1  Wash.  C.  C.  1 ;  2 
id.  323  ;  1  Paine,  C.  C.  661 ;  1  Gall.  C.  C.  26 ; 
2  id.  515  ;  1  Mas.  C.  C.  243  ;  3  Johns.  Cas. 
N.  Y.  297  ;  7  Johns.  N.  Y.  72 ;  1  Pick.  Mass. 
451 ;  4  Mass.  433  ;  8  id.  232  ;  15  id.  488  ;  8 
Comyns,  Dig.  846 ;  16  Viner,  Abr.  301 ;  1 
Vern.  Ch.  83,  n. ;  1  Saund.  58,  n. ;  1  Swanst. 
Ch.  318.  See,  generally,  Bouvier,  Inst.  Index. 

PENANCE.  In  Ecclesiastical  Law. 
An  ecclesiastical  punishment  inflicted  by  an 
ecclesiastical  court  for  some  spiritual  offence. 
Ayliffe,  Parerg.  420. 

PENCIL.  An  instrument  made  of  plum- 
bago, red  chalk,  or  other  suitable  substance, 
for  writing  without  ink. 

It  has  been  holden  that  a  will  written  with 
a  pencil  could  not  on  this  account  be  an- 
nulled.   1  Phill.  Ecd.  1 ;  2  id.  173. 

PENDENTE  LITE  (Lat.).  Pending  the 
continuance  of  an  action  while  litigation  con- 
tinues. 

An  administrator  is  appointed  pendente 
lite,  when  a  will  is  contested.  2  Bouvier, 
Inst.  n.  1557.  See  Administrator;  Lis 
Pendens. 

PENDENTES  (Lat.).    In  Civil  Law 

The  fruits  of  the  earth  not  yet  separated  from 
the  ground  ;  the  fruits  hanging  by  the  roots. 
Erskine,  Inst.  b.  2,  lit.  2,  s.  4. 

PENETRATION.  The  act  of  inserting 
the  penis  into  the  female  organs  of  genera- 
tion. 9  Carr.  &  P.  118.  See  5  Carr.  &  P. 
321 ;  8  id.  614;  9  id.  31.  It  was  once  held 
that  in  order  to  commit  the  crime  of  rape  it 
is  requisite  that  the  penetration  should  be 


PENITENTIARY 


319 


PENNSYLVANIA 


such  as  to  rupture  the  hymen.  5  Carr.  &  P. 
321.  But  this  case  has  since  been  expressly 
overruled.  2  Mood.  Cr.  Cas.  90;  9  Carr.  & 
P.  752. 

This  has  been  denied  to  be  sufficient  to 
constitute  a  rape  without  emission.  The 
statute  9  Geo.  IV.  c.  31,  ^  18,  enacts  that  the 
carnal  knowledge  shall  be  deemed  complete 
upon  proof  of  penetration  only.  Statutes  to 
the  same  effect  have  been  passed  in  some  of 
the  United  States ;  but  these  statutes  have 
been  thought  to  be  merely  declaratory  of  the 
common  law.  3  Greenleaf,  Ev.  §  210.  See, 
on  this  subject,  1  Hale,  PI.  Cr.  028 ;  1  East, 
PI.  Cr.  437  ;  1  Chitty,  Med.  Jur.  380-395  ;  1 
Russell,  Crim.  Law,  800;  Rape. 

I     PENITENTIARY.    A  prison  for  the 

!  punishment  of  convicts. 

There  are  two  systems  of  penitentiaries  in  the 
United  States,  each  of  which  is  claimed  to  be  the 
best  by  its  partisans, — the  Pennsylvania  system 
and  the  New  York  system.  By  the  former,  con- 
victs are  lodged  in  separate,  well-lighted,  and  well- 
Ventilated  cells,  where  they  are  required  to  work 
during  stated  hours.  During  the  whole  time  of 
their  confinement  they  are  never  permitted  to  see 
or  speak  with  each  other.  Their  usual  employ- 
ments are  shoemaking,  weaving,  winding  yarn, 
picking  wool,  and  such  like  business.  The  only 
punishments  to  which  convicts  are  subject  are  the 
privation  of  food  for  short  periods,  and  confinement 
without  labor  in  dark  but  well-aired  cells :  this 
discipline  has  been  found  sufficient  to  keep  perfect 
order  j  the  whip  and  all  ether  corporeal  punish- 
ments are  prohibited.  The  advantages  of  the  plan 
are  numerous.  Men  cannot  long  remain  in  solitude 
without  labor;  convicts,  when  deprived  of  it,  ask 
it  as  a  favor,  and,  in  order  to  retain  it,  use,  gene- 
rally, their  best  exertions  to  do  their  work  well ; 
being  entirely  secluded,  they  are  of  course  unknown 
to  their  fellow-prisoners,  and  can  form  no  combina- 
tion to  escape  while  in  prison,  or  associations  to 
prey  upon  society  when  they  are  out ;  being  treated 
with  kindness,  and  afforded  books  for  their  instruc- 
tion and  amusement,  they  become  satisfied  that 
society  does  not  make  war  upon  them,  and  more 
disposed  to  return  to  it,  which  they  are  not  pre- 
vented from  doing  by  the  exposure  of  their  fellow- 
prisoners  when  in  a  strange  place;  the  labor  of 
the  convicts  tends  greatly  to  defray  the  expenses 
of  the  prison.  The  disadvantages  which  were  an- 
ticipated have  been  found  to  be  groundless.  Among 
these  were  that  the  prisoners  would  be  unhealthy; 
experience  has  proved  the  contrary :  that  they 
■would  become  insane;  this  has  also  been  found  to 
be  otherwise:  that  solitude  is  incompatible  with 
the  performance  of  business :  that  obedience  to  the 
discipline  of  the  prison  could  not  be  enforced. 
These,  and  all  other  objections  to  this  system,  are 
by  its  friends  believed  to  be  without  force. 

The  New  York  system,  adopted  at  Auburn, 
which  was  probably  copied  from  the  penitentiary 
at  Ghent,  in  the  Netherlands,  called  La  Maison  de 
Force,  is  founded  on  the  system  of  isolation  and 
Reparation,  as  well  as  that  of  Pennsylvania,  but 
with  this  difference,  that  in  the  former  the  prisoners 
are  confined  to  their  separate  cells  during  the  night 
only ;  during  the  working-hours  in  the  daytime 
they  labor  together  in  workshops  appropriated  to 
their  use.  They  eat  their  meals  together,  but  in 
such  a  manner  as  not  to  be  able  to  speak  with  each 
other.  Silence  is  also  imposed  upon  them  at  their 
labor.  They  perform  the  labor  of  carpenters,  black- 
smiths, weavers,  shoemakers,  tailors,  coopers,  gar- 
deners, wood-sawyers,  etc.  The  discipline  of  the 
prison  is  enforced  by  stripes,  inflicted  by  the  as- 


sistant keepers,  on  the  backs  of  the  prisoners; 
though  Ihis  punishment  is  rarely  exercised.  The 
advantages  of  this  plan  are  that  the  convicts  are 
in  solitary  confinement  during  the  night ;  that  their 
labor,  by  being  joint,  is  more  productive;  that,  in- 
asmuch as  a  clergyman  is  employed  to  preach  to 
the  prisoners,  the  system  affords  an  opportunity  for 
mental  and  moral  improvements.  Among  the  ob- 
jections made  to  it  are  that  the  prisoners  have 
opportunities  of  communicating  with  each  ofher 
and  of  forming  plans  of  escape,  and,  when  they  ar* 
out  of  prison,  of  associating  together  in  conse- 
quence of  their  previous  acquaintance,  to  the  de- 
triment of  those  who  wish  to  return  to  virtue,  and 
to  the  danger  of  the  public;  that  the  discipline  is 
degrading,  and  that  it  engenders  bitter  resentment 
in  the  mind  of  the  convict. 

See,  generally,  on  the  subject  of  penitentiaries, 
Report  of  the  Commissioners  (Messrs  King,  Shaler, 
and  Wharton)  on  the  Penal  Code  of  Pennsylvania; 
De  Beaumont  and  De  Tocqucville,  on  the  Peniten- 
tiary System  of  the  United  States;  Mease  on  the 
Penitentiary  System  of  Pennsylvania;  Carey  on 
ditto;  Reports  of  the  Boston  Prison  Discipline  So- 
ciety ;  Livingston's  excellent  Introductory  Report 
to  the  Code  of  Reform  and  Prison  Discipline,  pre- 
pared for  the  state  of  Louisiana;  Encycl.  Americ. 
Prison  Discijiline  ;  De  I'Etat  actuel  des  Prisons  en 
France,  par  L.  M.  Moreau  Christophe ;  Dalloz, 
Diet.  Peine,  ^  1,  n.  3,  and  Supplem.  Prisons  et 
Bagnes. 

PENNSYLVANIA.  One  of  the  thir- 
teen original  states  of  the  United  States  of 
America. 

It  received  its  name  from  a  royal  charter,  granted 
by  Charles  II.  to  William  Penn  on  the  4th  of 
March,  168L  By  that  charter  William  Penn  was 
constituted  the  proprietary  and  governor  of  the  ter- 
ritory. The  first  frame  of  government  was  adopted 
on  the  20th  of  April,  1682.  This  was  amended  in 
1683,  again  in  1696,  and  again  in  1701.  The  or- 
ganic Ifiw,  as  adopted  in  1701,  continued  the  su- 
preme law  of  the  province  during  the  residue  of  the 
proprietary  government.  In  1776,  after  the  decla- 
ration of  American  independence,  a  constitution 
was  formed  adapted  to  the  altered  circumstances 
of  the  country,  which  continued  in  force  until  1790, 
when  a  new  one  was  substituted.  This  was  amended 
in  1838  by  the  introduction  of  some  very  radical 
changes.  Other  amendments  were  made  in  1850, 
in  1857,  and  in  1864. 

The  form  of  government  established  by  the  con- 
stitution is  republican.  Legislative,  executive,  and 
judicial  power?  are  committed  to  three  distinct  de- 
partments, neither  of  which  can  exercise  the  powers 
of  any  other  department. 

The  legislative  power  is  vested  in  a  general  as- 
sembly, consisting  of  a  senate  and  house  of  repre- 
sentatives. 

The  supreme  executive  power  is  vested  in  a  gov- 
ernor. 

All  judicial  power  is  vested  in  a  supreme  court, 
in  courts  of  oyer  and  terminer  and  general  jail  de- 
livery, in  a  court  of  common  pleas,  orphans'  court, 
register's  court,  and  court  of  quarter  sessions  of  the 
peace,  for  each  county,  in  justices  of  the  peace,  and 
in  such  other  courts  as  the  legislature  may  from 
time  to  time  establish. 

The  members  of  the  senate  and  house  of  repre- 
sentatives, the  governor,  and  all  judicial  oflScers.  are 
elected  by  the  people,  and  they  hold  their  offices 
during  limited  periods.  All  elections  are  by  ballot, 
except  those  made  by  persons  acting  in  a  represent- 
ative character.  Every  white  freeman,  a  citizen  of 
the  United  States,  of  the  age  of  twenty-one  years, 
having  resided  in  the  state  one  j'ear  and  in  the  elec- 
tion district  where  he  offers  to  vote  ten  days  imme- 
diately preceding  the  election,  and  having  withio 


PENNSYLVANIA 


320 


PENNSYLVANIA 


two  years  paid  a  state  or  county  tax  assessed  at 
least  ten  days  before  the  election,  is  entitled  to  the 
rights  of  an  elector ;  and  a  citizen  of  the  United 
States,  who  had  previously  been  a  qualified  voter 
of  the  state,  and  removed  therefrom  and  returned, 
is  entitled  to  A'ote  after  a  new  residence  within  the 
state  for  six  months,  if  he  has  resided  in  the  elec- 
tion district  and  paid  taxes  as  aforesaid.  White 
freemen,  citizens  of  the  United  States,  between  the 
ages  of  twenty-one  and  twenty-two,  are  entitled  to 
vote  without  the  payment  of  taxes,  subject  to  the 
restrictions  respecting  residence  already  mentioned. 
Qualified  electors  in  actual  military  service  of  the 
United  States  or  of  the  state,  under  a  requisitiorr 
from  the  president  of  the  United  States  or  under 
authority  of  the  commonwealth,  are  also  entitled  to 
vote,  under  regulations  prescribed  by  law,  without 
being  present  at  their  usual  place  of  election. 

The  general  election  is  held  on  the  second  Tues- 
day of  October  in  each  year. 

The  house  of  representatives  consists  of  one  hun- 
dred members,  chosen  annually.  They  are  appor- 
tioned aud  distributed  every  seventh  year  through- 
out the  diate,  by  districts,  in  proportion  to  the  num- 
ber of  taxable  inhabitants  therein.  No  person  is 
eligible  to  the  house  of  representatives  who  has  not 
attained  to  the  age  of  twenty-one  years,  and  been  a 
citizen  and  inhabitant  of  the  state  three  years  next 
preceding  the  election,  and  the  last  of  the  three 
years  an  inhabitant  of  the  district  in  and  for  which 
he  shall  be  chosen  a  representative,  unless  he  shall 
have  been  absent  on  the  public  business  of  the 
United  States  or  of  the  state. 

The  number  of  the  senators  is  fixed  by  the  legis- 
lature at  the  several  periods  of  making  the  septen- 
nial enumeration  of  taxables.  It  can  never  be  less 
than  one-fourth  nor  greater  than  one-third  of  the 
number  of  the  members  of  the  house  of  representa- 
tives. It  is  at  present  thltty-three.  The  senators 
are  chosen  in  districts  formed  by  the  legislature. 
No  county  can  be  divided  in  forming  a  district;  and 
no  district  can  be  entitled  to  more  than  two  sena- 
tors, unless  the  number  of  taxables  in  any  city  or 
county  is  such  as  to  entitle  it  to  elect  more  than 
two.  No  city  or  county,  however,  is  entitled  to 
elect  more  than  four.  The  city  of  Philadelphia  is 
divided  into  single  senatorial  districts.  Senators 
hold  their  offices  three  years,  and  one-third  of  the 
members  of  the  senate  are  elected  each  year.  No 
person  is  eligible  as  a  senator  who  has  not  attained 
the  age  of  twenty -five  years,  and  been  a  citizen  and 
inhabitant  of  the  state  four  years  next  before  his 
election,  and  the  last  year  thereof  an  inhabitant  of 
the  district  for  which  he  shall  be  chosen,  unless  he 
shall  have  been  absent  on  the  public  business  of  the 
United  States  or  of  the  state.  No  person  can  hold 
the  office  of  senator  after  his  removal  from  the  dis- 
trict for  which  he  was  chosen. 

The  powers  and  privileges  of  the  legislature  do 
not  difter  materially  from  those  which  belong  to  the 
legislatures  of  the  other  states  of  the  United  States. 
There  are  numerous  restrictions  imposed  by  the 
constitution  upon  general  power  to  legislate,  and 
most  of  the  essential  provisions  of  Magna  Charta 
have  been  incorporated  into  it. 

The  supreme  executive  power  of  the  state  is  vested 
in  a  governor,  who  is  chosen  by  the  electors  quali- 
fied to  elect  members  of  the  legislature.  His  term 
of  office  is  three  years  from  the  third  Tuesday  of 
January  next  ensuing  his  election,  and  he  is  in- 
capable of  holding  it  more  than  six  years  in  any 
term  of  nine  years.  He  must  be  at  least  thirty 
years  of  age  ;  and  he  must  have  been  a  citizen  and 
an  inhabitant  of  the  state  seven  years  next  before 
his  election,  unless  he  shall  have  been  absent  on 
the  public  business  of  the  United  States  or  of  the 
state.  No  member  of  congress  or  person  holding 
any  office  under  the  United  States  or  of  the  state  can 
exercise  the  office  of  governor. 


The  governor  is  ex  officio  commander-in-chief  o( 
the  army  and  navy  of  the  commonwealth,  and  of 
the  militia,  except  when  they  are  called  into  the 
actual  service  of  the  United  States,  It  is  his  duty 
to  see  that  the  laws  of  the  commonwealth  are  exe- 
cuted. He  appoints  a  secretary  of  the  common- 
wealth during  pleasure.  He  appoints  also  an  at- 
torney-general. He  has  power  to  fill  all  vacancies 
in  judicial  offices  in  courts  of  record,  and  his  ap- 
pointees continue  in  office  until  the  first  Monday  of 
December  succeeding  the  next  general  election.  All 
commissions  must  be  in  the  name  and  by  authority 
of  the  commonwealth,  and  be  sealed  with  the  state 
seal  and  signed  by  the  governor.  He  has  also 
power  to  remit  fines  and  forfeitures,  and  grant  re- 
prieves and  pardons,  except  in  cases  of  impeach- 
ment. He  may  convene  the  legislature  on  extra- 
ordinary occasions,  and,  in  case  of  disagreement 
between  the  two  houses  with  respect  to  the  time  of 
adjournment,  he  may  adjourn  them  to  such  time  as 
he  may  think  proper,  not  more  remote  than  four 
months.  It  is  made  his  duty  to  communicate  to 
the  legislature  from  time  to  time  information  of  the 
state  of  the  commonwealth,  and  recommend  to  their 
consideration  such  measures  as  he  may  deem  expe- 
dient. He  has  a  veto  power  over  every  bill  passed 
by  the  legislature ;  but  if,  notwithstanding  his  ob- 
jection, two-thirds  of  both  houses  agree  to  the  bill 
after  reconsideration,  it  becomes  a  law. 

In  case  of  the  death  or  resignation  of  the  gov- 
ernor, or  his  removal  from  office,  the  office  devolves 
upon  the  speaker  of  the  senate  until  another  gov- 
ernor is  duly  qualified;  but  in  such  a  case,  another 
governor  is  to  be  chosen  at  the  next  annual  election 
occurring  more  than  three  months  after  such  death, 
resignation,  or  removal.  In  case  of  a  contested 
election,  if  the  trial  continue  longer  than  until  the 
third  Tuesday  of  January  next  ensuing  the  day  of 
the  general  election,  the  governor  of  the  last  year 
or  the  speaker  of  the  senate  who  may  then  be  it 
the  exercise  of  the  executive  authority,  continues 
therein  until  the  determination  of  such  contested 
election,  and  until  a  governor  shall  be  qualified. 

The  supreme  court  is  the  highest  judicial  tribu- 
nal of  the  state.  It  is  composed  of  five  judges,  who 
hold  their  offices  for  the  terra  of  fifteen  years,  if 
they  so  long  behave  themselves  well.  The  judge 
whose  commission  will  first  expire  is  the  chief  jus- 
tice; but  if  two  or  more  commissions  expire  on  the 
same  day,  the  judges  holding  such  commissions 
decide  by  lot  which  shall  be  chief  justice.  The 
jurisdiction  of  the  court  extends  over  the  state,  and 
the  judges  are,  ex  officio,  justices  of  oyer  and  ter- 
miner and  general  jail  delivery  in  the  several 
counties.  The  court  is  principally  a  court  of  errors 
and  appeals,  and  its  writs  run  to  all  other  courts  in 
the  state.  It  has  also  a  limited  original  jurisdic- 
tion within  the  city  and  county  of  Philadelphia, 
and  original  jurisdiction  in  equity  extending  over 
the  commonwealth.  It  holds  its  sessions  once  in 
each  year  at  least,  in  Philadelphia,  Pittsburg, 
Harrisburg,  and  Sunbury,  for  the  adjudication  of 
writs  of  error  and  appeals. 

For  the  courts  of  common  pleas,  the  state  is 
divided  into  twenty-six  districts ;  these  districts 
are  subject  to  change  by  the  legislature,  but  no 
more  than  five  counties  can  at  any  time  be  included 
in  one  judicial  district.  The  president  jud{,'es  of 
these  courts,  and  all  other  judges  thereof  that  are 
required  to  be  learned  in  the  law,  as  well  as  such 
judges  of  other  courts  of  record  as  may  from 
time  to  time  be  established  by  the  legislature,  hold 
their  offices  for  the  term  of  ten  years  if  they  so 
long  behave  themselves  well.  In  each  county  they 
are,  ex  officio,  justices  of  oyer  and  terminer  and 
general  jail  delivery  for  the  trial  of  capital  and 
other  offenders  therein;  but  they  have  no  power 
to  hold  a  court  of  oyer  nnd  terminer  out  of  their 
proper  districts,  nor  can  they  hold  such  a  court  in 


PENNY 


321 


PER  CAPITA 


Rny  county  when  the  judges  of  the  supreme  court, 
or  any  of  them,  are  sitting  in  the  same  county. 

The  orphans'  court  ami  the  court  of  quarter 
sessions  of  the  peace  for  each  county  are  composed 
of  the  judges  of  the  court  of  common  pie.is  for 
the  county,  or  any  two  of  them;  and  the  register 
of  wills,  together  with  the  said  judges,  or  two  of 
them,  compose  the  register's  court. 

Associate  judges  of  the  court  of  common  pleas 
are  elected  in  each  county.  They  arc  not  generally 
required  to  be  learned  in  the  law  :  when  not  so  re- 
quiredy  they  hold  their  offices  for  the  term  of  five 
years,  if  tliey  so  long  behave  themselves  well. 

The  legislature  has  also  established  two  district 
courts,  one  for  the  city  and  county  of  Philadelphia 
and  one  fur  the  county  of  Alleghany. 

Most  civil  issues  are  tried  by  the  courts  of  com- 
mon pleas  and  by  the  district  courts,  and  the  de- 
cisions of  those  courts  are  reviewable  in  the  su- 
preme court.  A  register's  office  for  the  probate  of 
wills  and  granting  letters  of  administration,  and, 
also,  an  oflice  for  recording  deeds,  are  maintained 
in  each  county.  Appeals  may  be  taken  from  de- 
crees of  the  register  to  the  register's  court.  The 
orphans'  courts  have  general  jurisdiction  over  the 
settlement  of  decedents'  estates  and  the  accounts 
of  executors,  administrators,  and  guardians,  sub- 
ject, however,  to  an  appellate  jurisdiction  in  the 
supreme  court. 

Civil  writs  issue,  generally,  from  the  offices  of 
the  clerks  of  tlie  courts  in  each  county  ;  and  the 
style  of  all  process  is  required  to  be  *'  The  Common- 
wealth of  Pennsylvania." 

PENNY.  The  name  of  an  English  coin, 
of  the  value  of  one-twelfth  part  of  a  shil- 
ling. 

While  the  United  States  were  colonies,  each 
adopted  a  monetary  system  composed  of  pounds, 
shillings,  and  pence.  The  penny  varied  in  value  in 
the  different  colonies. 

PENNYWEIGHT.  A  troy  weight 
which  weighs  twenty-four  grains,  or  one- 
twentieth  part  of  an  ounce.    See  Weights. 

PENSION.  A  stated  and  certain  allow- 
ance granted  by  the  government  to  an  indi- 
vidual, or  those  who  represent  him,  for 
valuable  services  performed  by  him  for  the 
country.  The  government  of  the  United 
States  has,  by  general  laws,  granted  pensions 
to  revolutionary  soldiers,  see  1  Story,  U.  S. 
Laws,  G8,  101,  224,  304,  363,  371,  451 ;  2  id 
903,  915,  983,  1008,  1240;  3  id.  1662,  1747, 
1778,  1794,  1825,  1927;  4  id.  2112,  2270, 
2329,  2336,  2366  ;  to  naval  officers  and  sailors, 
1  Story,  (J.  S.  Laws,  474,  677,  769;  2  id. 
1284 ;  3  id.  1565  ;  to  the  army  generally,  1 
id.  360,  412,  448 ;  2  id.  833  ;  3  id.  1573  ;  to 
the  militia  generally,  1  id.  255,  360,  412, 
488;  2  id.  1382;  Sid.  1873;  in  the  Seminole 
war.  3  id.  1706.  See  Act  of  Congr.  July  14, 
1862,  12  U.  S.  Stat,  at  Large,  566 ;  July  4, 
1864,  13  U.  S.  Stat,  at  Large,  387. 

PENSIONER.  One  who  is  supported  by 
an  allowance  at  the  will  of  another.  It  is 
more  usually  applied  to  him  who  receives  an 
annuity  or  pension  from  the  government. 

PEONIA.  In  Spanish  Law.  A  por- 
tion of  land  which  was  formerly  given  to  a 
simple  soldier  on  the  conquest  of  a  country. 
It  is  now  a  quantity  of  land  of  different  size 
in  different  provinces.  In  the  Spanish  pos- 
sessions in  America  it  measured  fifty  feet 
Vol.  II._21 


front  and  one  hundred  feet  deep.  2  Wiiite, 
Coll.  49  ;  12  Pet.  444,  notes. 

PEOPLE.  A  state  :  as,  the  people  of  the 
state  of  New  York.  A  nation  in  its  collective 
and  political  capacity.  4  Term,  783.  See  6 
Pet.  467. 

The  word  people  occurs  in  a  policy  of  in- 
surance. The  insurer  insures  against  "de- 
tainments of  all  kings,  princes,  and  people." 
He  is  not  by  this  understood  to  insure  against 
any  promiscuous  or  lawless  rabble  which  may 
be  guilty  of  attacking  or  detaining  a  ship. 
2  Marshall,  Ins.  508.  See  Body  Politic; 
Nation. 

PER.  By.  When  a  writ  of  entry  is  sued 
out  against  the  alienee,  or  descendant  of  the 
original  disseisor,  it  is  then  said  to  be  brought 
in  the  po',  because  the  writ  states  that  the 
tenant  had  not  the  entry  but  by  the  original 
wrong-doer.  3  Blackstone,  Comm.  181.  See 
Entry,  Writ  of. 

PER  iES  ET  LIBRAM  (Lat.  (es,  brass, 
lihram,  scale).  In  Civil  Law.  A  sale  was 
said  to  be  made  per  ces  et  lihram  when  one 
called  lihripens  held  a  scale  [libra],  which  the 
one  buying  struck  with  a  brazen  coin  (ce^), 
and  said,  "  I  say,  by  the  right  of  a  Roman, 
this  thing  is  mine,"  and  gave  the  coin  to  the 
vendor,  in  presence  of  at  least  three  witnesses. 
This  kind  of  sale  was  used  in  the  emancipa- 
tion of  a  son  or  slave,  and  in  making  a  will. 
Calvinus,  Lex.  Mancipatio;  Vicat,  Voc.  Jur. 
Mancipatio. 

PER  ALLUVIONEM  (Lat.).  In  Civil 
Law.  By  alluvion,  or  the  gradual  and  im- 
perceptible increase  arising  from  deposit  by 
water.  Vocab.  Jur.  Utr.  Alluvia ;  Angell  & 
A.  Waterc.  53-57. 

PER  ANNULUM  ET  BACULUM 
(Lat.).  In  Ecclesiastical  Law.  The  sym- 
bolical investiture  of  an  ecclesiastical  dignity 
was  per  annulum  et  baculum,  i.e.  by  staff  and 
crosier.  1  Sharftwood,  Blackst.  Comm.  378, 
379  ;  1  Burn,  Eccl.  Law,  209. 

PER  AVERSIONEM  (Lat.).  In  Civil 
Law.  By  turning  away.  Applied  to  a  sale  not 
by  measure  or  weight,  but  for  a  single  price  for 
the  whole  in  gross :  e.g.  a  sale  of  all  the  wine 
of  a  vineyard  for  a  certain  price.  Vocab. 
Jur.  Utr.  Aversio.  Some  derive  the  mean- 
ing of  the  phrase  from  a  turning  away  of  the 
risk  of  a  deficiency  in  the  quantity  from  the 
seller  to  the  buyer;  others,  from  turning 
away  the  head,  i.e.  negligence  in  the  sale ; 
others  think  aversio  is  for  adversio.  Calvinus, 
Lex.;  2  Kent,  Comm.  640 ;  4  id.  517. 

PER  CAPITA  (Lat.  by  the  head  or 
polls).  When  descendants  take  as  individuals, 
and  not  by  right  of  representation  [per 
stirpes),  they  are  said  to  take  per  capita.  For 
example,  if  a  legacy  be  given  to  the  issue  of 
A  B,  and  A  B  at  the  time  of  his  death  shall 
have  two  children  and  two  grandchildren, 
his  estate  shall  be  divided  into  four  parts,  and 
the  children  and  grandchildren  shall  each 
have  one  of  them.  3  Ves.  Ch.  257;  13  id. 
344;  2  Sharswood,  Blackst.  Comm.  218:  6 
Cush.  Mass.  158,  162 ;  2  Jarman,  Wills,  Per- 


PER  AKD  CUI 


322 


PERDUELLIO 


kins'  Notes,  47  ;  3  Beav.  Rolls,  451 :  4  id.  239  : 
2  Stephen,  Comm.  253  ;  3  id.  197  ;  2  Wood- 
deson,  Lect.  114. 

PER  AND  GUI.  When  a  writ  of  entry 
is  brought  against  a  second  alienee  or  de- 
scendant from  the  disseisor,  it  is  said  to  be  in 
the  per  and  cui,  because  the  form  of  the  writ 
is  that  the  tenant  had  not  entry  but  hy  and 
under  a  prior  alienee,  to  whom  the  intruder 
himself  demised  it.  2  Blackstone,  Comm. 
181.    See  Entry,  Writ  of. 

PER  CURIAM  (Lat.  by  the  court).  A 
phrase  which  occurs  in  all  the  reports.  It  is 
sometimes  translated.  See  3  Barb.  N.  Y.  353. 

PER  FORMAM  DONI  (Lat.  by  the 
form  of  the  gift).  According  to  the  line  of 
descent  prescribed  in  the  conveyance  of  the 
ancestor  or  donor  of  estate-tail.  2  Shars- 
wood,  Blackst.  Comm.  113*  :  3  Harr.  &  J.  Md. 
323 ;  1  Washburn,  Real  Prop.  74,  81. 

PER  FRAUDEM  (Lat.).  A  replication 
to  a  plea  where  something  has  been  pleaded 
which  would  be  a  discharge  if  it  had  been 
honestly  pleaded  that  such  a  thing  has  been 
obtained  by  fraud:  for  example,  where,  on 
debt  on  a  statute,  the  defendant  pleads  a  prior 
action  depending,  if  such  action  has  been  com- 
menced by  fraud  the  plaintiff  may  reply  ^er 
fraudem.    2  Chitty,  Plead.  *675.. 

PER  INFORTUNIUM  (Lat.  by  misad- 
venture). In  Criminal  Law.  Homicide 
per  infortunium,  or  by  misadventure,  is  said 
to  take  place  when  a  man  in  doing  a  lawful 
act,  without  any  intent  to  hurt,  unfortunately 
kills  another.  Hawkins,  PI.  Cr.  b.  1,  c.  11  ; 
Foster,  Crim.  Law,  258,  259 ;  Coke,  3d  Inst.  56. 

PER  MINAS  (Lat.  by  threats).  When 
a  man  is  compelled  to  enter  into  a  contract 
by  threats  or  menaces,  either  for  fear  of  loss 
of  life  or  mayhem,  he  may  avoid  it  after- 
wards. 1  Sharswood,  Blackst.  Comm.  131 ; 
Bacon,  Abr.  Duress,  Murder  (A).  See  Duress. 

PER  MY  ET  PER  TOUT  (Law  Fr.  by 
the  moiety,  or  half,  and  by  the  whole).  The 
mode  in  which  joint  tenants  hold  the  joint 
estate,  the  effect  of  which,  technically  con- 
sidered, is  that  for  purposes  of  tenure  and 
survivorship  each  is  the  holder  of  the  whole, 
but  for  purposes  of  alienation  each  has  only 
his  own  share,  which  is  presumed  in  law  to 
be  equal.  1  Washburn,  Real  Prop.  406 ;  2 
Sharswood,  Blackst.  Comm.  182. 

PER  QUOD  CONSORTIUM  AMISIT 
(Lat.  by  which  he  lost  her  company).  If  a 
man's  wife  is  so  badly  beaten  or  ill  used  that 
thereby  he  loses  her  company  and  assistance 
for  any  time,  he  has  a  separate  remedy  by  an 
action  of  trespass  (in  the  nature  of  an  action 
on  the  case)  jjer  quod  consortium  ami  sit,  in 
which  he  shall  recover  satisfaction  in  dam- 
ages. 3  Sharswood,  Blackst.  Comm.  140 ; 
Croke  Jac.  501,  538  ;  1  Chitty,  Gen.  Pract.  59. 

PER  QUOD  SERVITIUM  AMISIT 
(Lat.  by  which  he  lost  her  or  his  service). 
Where  a  servant  has  been  so  beaten  or  in- 
jured that  his  or  her  services  are  lost  to  the 
master,  the  mas^ter  has  an  action  of  trespass 


vi  et  armis,  per  quod  servitium  amisit^  in 
which  he  must  allege  and  prove  the  special 
damage  he  has  sustained.  3  Sharswood, 
Blackst.  Comm.  142.  This  action  is  com- 
monly brought  by  the  father  for  the  seduc- 
tion of  his  daughter,  in  which  case  very 
slight  evidence  of  the  relation  of  master  and 
servant  is  necessary;  but  still  some  loss  of 
service,  or  some  expense,  must  be  shown. 
5  East,  45  ;  6  id.  391 ;  11  id.  23 ;  T.  Raym, 
459;  3Wils.  18;  2  Term,  4;  5  Bos.  &  P. 
466  ;  Peake,  253 ;  1  Stark.  287  ;  2  id.  493 ; 
3  Esp.  119  ;  5  Price,  Exch.  641 ;  11  Ga.  603 ; 
15  Barb.  N.  Y.  279;  18  id.  212;  8  N.  Y. 
191;  11  id.  343;  14  id.  413;  20  Penn.  St. 
354;  5  Md.  211;  1  Wise.  209;  3  Sneed, 
Tenn.  29. 

PER  STIRPES  (Lat.  stirps,  trunk  or 
root  of  a  tree  or  race).  By  or  according  to 
stocks  or  roots ;  by  right  of  representation. 
Mass.  Gen.  Stat.  1860,  c.  9,  ^  12;  6  Cush. 
Mass.  158,  162;  2  Sharswood,  Blackst. 
Comm.  217,  218 ;  2  Stephen,  Comm.  253  ;  2 
Wooddeson,  Lect.  114,  115;  2  Kent,  Comm. 
425. 

PER  UNIVERSITATEM  (Lat.  by  the 

whole).  Used  of  the  acquisition  of  any 
property  as  a  whole,  in  opposition  to  an 
acquisition  by  parts :  e.^.  the  acquisition  of 
an  inheritance,  or  of  the  separate  property 
of  the  son  {peculium),  etc.  Calvinus,  Lex. 
Universiias. 

PERAMBULATIONE  FACIENDA, 
WRIT  DE.  In  English  Law.  The  name 
of  a  writ  which  is  sued  by  consent  of  both 
parties  when  they  are  in  doubt  as  to  the 
bounds  of  their  respective  estates :  it  is 
directed  to  the  sheriff  to  make  perambulation, 
and  to  set  the  bounds  and  limits  between  them 
in  certainty.   Fitzherbert,  Nat.  Brev.  309. 

"  The  writ  de  perambulatione  faciendd  is 
not  known  to  have  been  adopted  in  practice 
in  the  United  States,"  says  Professor  Green- 
leaf,  Ev.  I  146,  n. ;  "but  in  several  of  the 
states  remedies  somewhat  similar  in  prin- 
ciple have  been  provided  by  statutes." 

PERCEPTION  (From  'per  and  capere). 
The  taking  possession  of.  For  example,  a 
lessee  or  tenant  before  perception  of  the 
crops,  i.e.  before  harvesting  them,  has  a 
right  to  offset  any  loss  which  may  happen 
to  them,  against  the  rent ;  but  after  the  per- 
ception they  are  entirely  at  his  risk.  Mae- 
keldy.  Civil  Law,  |  378.  Used  of  money,  it 
means  the  counting  out  and  payment  of  a 
debt.  Also  used  for  food  due  to  soldiers. 
Vicat,  Voc.  Jur. 

PERCH.  The  length  of  sixteen  feet  and 
a  half ;  a  pole  or  rod  of  that  length.  Forty 
perches  in  length  and  four  in  breadth  n^ake 
an  acre  of  land. 

PERDONATIO  UTLAGARIiE  (Lat.). 
In  English  Law.  A  pardon  for  a  man  who, 
for  contempt  in  not  yielding  obedience  to  the 
process  of  the  king's  courts,  is  outlawed,  and 
afterwards,  of  his  own  accord,  surrenders. 

PERDUELLIO  (Lat.).  In  Civil  Law. 
At  first,  an  honorable  enmity  to  the  republic; 


PEREGRINI 


323 


PERILS  OF  THE  SEA 


afterwards,  a  traitorous  enmity  of  a  citizen ; 
3onsisting  in  being  of  a  liostile  disposition 
towards  the  republic,  e.g.  treason  aiming  at  the 
supreme  power,  violating  the  privileges  of  a 
Roman  citizen  by  beating  him,  etc.,  attempt- 
ing any  thing  against  the  person  of  the  em- 
peror, and,  in  general,  any  open  hostility  to 
the  republic.  Sometimes  used  for  the  enemy 
or  traitor  himself.  Perduellio  was  distin- 
guished from  crimen  imminutce  majestatis,  as 
being  an  attempt  against  the  whole  republic, 
punishable  in  comitia  centuriata,  by  cruci- 
fixion and  by  infamy  after  death.  Calvinus, 
Lex.;  Vicat,  Voc.  Jur. 

PEREGRINI  (Lat.).  In  Civil  Law. 
Under  the  denomination  of  j^ere^rmi  were  com- 
prehended all  who  did  not  enjoy  any  capacity 
of  the  law,  namely,  slaves,  alien  enemies, 
and  such  foreigners  as  belonged  to  nations 
with  which  the  Romans  had  not  established 
relations.    Savigny,  Dr.  Rom.  |  6G. 

PEREMPTORIUS  (Lat.  from  perimcre, 
to  destroy).  In  Civil  Law.  That  which  takes 
away  or  destroys  forever :  hence,  exceptio  per- 
emptoria,  a  plea  which  is  a  perpetual  bar. 
See  Peremptory.  Bracton,  lib.  4,  c.  20 ; 
Fleta,  lib.  6,  c.  36,  ^  3 ;  Calvinus,  Lex. 

PEREMPTORY.  Absolute ;  positive. 
A  final  determination  to  act,  without  hope  of 
renewing  or  altering.  Joined  to  a  substan- 
tive, this  word  is  frequently  used  in  law  :  as, 
peremptory  action,  Fitzherbert,  Nat.  Brev. 
35,  38,  104,  108;  peremptory  nonsuit,  id. 
5,  11 ;  peremptory  exception,  Bracton,  lib. 
4,  c.  20  ;  peremptory  undertaking,  3  Chitty. 
Pract.  112,  793  ;  peremptory  challenge  of 
jurors.  Inst.  4.  13.  9  ;  Code,  7.  50.  2  ;  8.  36. 
8;  Dig.  5.  1.  70.  73. 

PEREMPTORY  CHALLENGE.  A 

challenge  M'ithout  cause  given,  allowed  to 
prisoner's  counsel  in  criminal  cases,  up  to  a 
certain  number  of  jurors.  11  Chitty,  Stat. 
59,  689  ;  2  Ilargrave,  St.  Tr.  808 :  4  id.  1 ; 
Foster,  Crim.  Law,  42  ;  4  Sharswood,  Blackst. 
Comm.  353*. 

PEREMPTORY  DEFENCE.  A  de- 
fence which  insists  that  the  plaintifi"  never 
had  the  right  to  institute  the  suit,  or  that,  if 
he  had,  the  original  right  is  extinguished  or 
determined.    4  Bouvier,  Inst.  n.  4206. 

PEREMPTORY  EXCEPTION.  Any 

defence  which  denies  entirely  the  ground  of 
action.  1  White,  New  Recop.  283.  So  of 
a  demurrer.    1  Tex.  364. 

PEREMPTORY  MANDAMUS.  A 

mandamus  requiring  a  thing  to  be  done  ab- 
solutely. It  is  usually  granted  after  fail- 
ure^  to  show  satisfactory  cause  on  an  alter- 
native mandamus.  No  other  return  will  be 
permitted  but  absolute  obedience.  3  Shars- 
wood, Blackst.  Comm.  110*;  Tapping,  Mand. 
400  et  fifq.    See  Mandamus. 

PEREMPTORY  PLEA.  A  plea  which 
goes  to  destroy  the  right  of  action  itself;  a 
lea  in  bar  or  to  the  action.  3  Stephen,  Comm. 
76;  3  Wooddeson,  Lect.  57;  2  Saunders, 
Plead.  &  Ev  645  ;  3  Bouvier,  Inst.  n.  2891. 


PERFECT.  Complete. 

This  term  is  applied  to  obligations  in  order  to 
distinguish  those  which  may  be  enforced  by  law, 
which  are  called  perfect,  from  those  which  rannot 
be  so  enforced,  which  are  said  to  be  imperfect. 

PERFIDY.  The  act  of  one  who  has  en- 
gaged his  faith  to  do  a  thing,  and  does  not  do 
it,  but  does  the  contrary.    Wolff',  ^  390. 

PERFORMANCE.  The  act  of  doing 
something.  The  thing  done  is  also  called  a 
performance :  as,  Paul  is  exonerated  from  the 
obligation  of  his  contract  by  its  performance. 

When  a  contract  has  been  made  by  parol, 
which  under  the  Statute  of  Frauds  and  Per- 
juries could  not  be  enforced,  because  it  was 
not  in  writing,  and  the  party  seeking  to  avoid 
it  has  received  the  whole  or  a  part  perform- 
ance of  such  agreement,  he  cannot  afterwards 
avoid  it,  14  Johns.  N.  Y.  15  ;  1  Johns.  Ch.  N. 
Y.  273  ;  and  such  part  performance  will  enable 
the  other  party  to  prove  it  aliunde.  1  Pet. 
C.  C.  380 ;  1  Rand.  Va.  165  ;  1  Blackf.  Ind. 
58  ;  2  Day,  Conn.  255  ;  5  id.  67  ;  1  Des.  So. 
C.  350;  1  Binn.  Penn.  218  ;  1  Johns.  Ch.  N. 
Y.  131,  146;  3  Paige,  Ch.  N.  Y.  545. 

PERIL.  The  accident  by  which  a  thing 
is  lost.    Lemons  Elem.  Dr.  Rom.  §  911. 

In  Insurance.  The  risk,  contingency,  or 
cause  of  loss  insured  against,  in  a  policy  of 
insurance.  •  See  Risk  ;  Ixsurance. 

PERILS  OF  THE  SEA.  A  phrase 
contained  in  bills  of  lading,  and  a  class  of 
dangers  to  goods  carried,  the  effects  of  which 
the  carriers  do  not  undertake  to  insure  against 
in  virtue  of  their  general  undertaking. 

2.  Bills  of  lading  generally  contain  an  ex- 
ception that  the  carrier  shall  not  be  liable  for 
"perils  of  the  sea."  What  is  the  precise  im- 
port of  this  phrase  is  not,  perhaps,  very  ex- 
actly settled.  In  a  strict  sense,  the  words 
perils  of  the  sea  denote  the  natural  accidents 
peculiar  to  the  sea  ;  but  in  more  than  one  in- 
stance they  have  been  held  to  extend  to  events 
not  attributable  to  natural  causes.  For  in- 
stance, they  have  been  held  to  include  a  cap- 
ture by  pirates  on  the  high  sea,  and  a  case 
of  loss  by.  collision  of  two  ships,  where  no 
blame  is  imputable  to  the  injured  ship.  Ab 
bott,  Shipp.  pt.  3,  c.  4,  II  1-6  ;  Park,  Ins.  c.  3  ; 
Marshall,  Ins.  b.  1,  c.  7,  p.  214 ;  1  Bell,  Comm. 
579  ;  3  Kent,  Comm.  299-307  ;  3  Esp.  67. 

It  has  indeed  been  said  that  by  perils  of 
the  sea  are  properly  meant  no  other  than  in- 
evitable perils  or  accidents  upon  the  sea,  and 
that  by  such  perils  or  accidents  common  car- 
riers are  prima  facie  excused,  whether  there 
be  a  bill  of  lading  containing  the  expression 
of  "peril  of  the  sea"  or  not.    1  Conn.  487. 

3.  It  scf^ms  that  the  phrase  perils  of  the 
sea,  on  the  western  waters  of  the  United  States, 
signifies  and  includes  perils  of  the  ricer.  8 
Ala.  176. 

If  the  law  be  so,  then  the  decisions  upon 
the  meaning  of  these  words  become  important 
in  a  practical  view  in  all  cases  of  maritime  oi 
water  carriage. 

4.  It  seems  that  a  loss  occasioned  by  leak 

I  age  which  is  caused  by  rats  gnawing  a  hole 


PERIPHRASIS 


324 


PERJURY 


in  the  bottom  of  the  vessel  is  not,  in  the 
English  law,  deemed  a  loss  by  peril  of  the 
sea  or  by  inevitable  casualty.  1  Wils.  281 ; 
4  Campb.  203.  But  if  the  master  had  used 
all  reasonable  precautions  to  prevent  such 
loss,  as  by  having  a  cat  on  board,  it  seems 
agreed  it  would  be  a  peril  of  the  sea  or  in- 
evitable accident.  Abbott,  Shipp.  pt.  3,  c.  3, 
^  9.  But  see  3  Kent,  Comm.  299-301.  In 
conformity  to  this  rule,  the  destruction  of 
goods  at  sea  by  rats  has,  in  Pennsylvania, 
been  held  a  peril  of  the  sea,  where  there  has 
been  no  default  in  the  carrier.  1  Binn.  Penn. 
592.  But  see  6  Cow.  N.  Y.  266  ;  3  Kent. 
Comm.  248,  n,  c.  On  the  other  hand,  the  de- 
struction of  a  ship's  bottom  by  worms  in  the 
course  of  a  voyage  has,  both  in  America  and 
England,  been  deemed  not  to  be  a  peril  of  the 
sea,  upon  the  ground,  it  would  seem,  that  it 
is  a  loss  by  ordinary  wear  and  decay.  Park, 
Ins.  c.  3  ;  1  Esp.  444 ;  2  Mass.  429.  But  see 
2  Caines,  N.  Y.  85.  See,  generally,  Act  of 
God;  Fortuitous  Event  ;  Marshall,  Ins.  ch.  7, 
ch.  12,  ^  1 ;  Phillips,  Ins. ;  Parsons,  Marit.  Law. 

PERIPHRASIS.  Circumlocution ;  the 
use  of  other  words  to  express  the  sense  of 
one. 

Some  words  are  so  technical  in  their  meaning 
that  in  charging  offences  in  indictments  they  must 
be  used  or  the  indictment  will  not  be  sustained  :  for 
example,  an  indictment  for  treason  must  contain 
the  word  trattorottsli/  ;  an  indictment  for  burglary, 
hnrrjlnrionsli/  ;  and  feloniously  must  be  introduced 
into  every  indictment  for  felony.  1  Chitty,  Crim. 
Law,  242;  Coke,  3d  Inst.  15;  Carth.  319;  2  Hale, 
PI.  Cr.  172,184;  4  Sharswood,  Blackst.  Comm.  307 ; 
Hawkins,  PI.  Cr.  b.  2,  c.  25,  s.  55 ;  1  East,  PL  Cr.  115 ; 
Bacon,  Abr.  Indictment  (G  1)  ;  Comyns,  Dig.  In- 
dictment (G  6);  Croke  Car.  c.  37. 

PERISH.  To  come  to  an  end ;  to  cease 
to  be  :  to  die. 

What  has  never  existed  cannot  be  said  to  have 
perished. 

When  two  or  more  persons  die  by  the  same  acci- 
dent, as  a  shipwreck,  no  presumption  arises  that 
one  perished  before  the  other. 

PERISHABLE  GOODS.  Goods  which 
are  lessened  in  value  and  become  worse  by 
being  kept. 

PERJURY.  In  Criminal  Law.  Awil 
ful  false  oath  by  one  who,  being  lawfully  re- 
quired to  depose  the  truth  in  any  judicial 
proceeding,  swears  absolutely  in  a  matter 
material  to  the  point  in  cjuestion,  whether  he 
be  believed  or  not. 

The  wilful  giving,  under  oath  in  a  judicial 
proceeding  or  course  of  justice,  of  false  testi- 
mony material  to  the  issue  or  point  of  inquiry. 
2  Bishop,  Crim.  Law,  I  860. 

2.  The  intention  must  he  wilful.  The  oath 
must  be  taken  and  the  falsehood  asserted 
with  deliberation  and  a  consciousness  of  the 
nature  of  the  statement  made ;  for  if  it  has 
arisen  in  consequence  of  inadvertency,  sur- 
prise, or  mistake  of  the  import  of  the  ques- 
tion, there  was  no  corrupt  motive.  Hawkins, 
PI.  Cr.  b.  ],  c.  09,  8.  2;  Croke  Eliz.  492:  2 
Show.  105  ;  4  McLean,  C.  C.  113  ;  3  Dev.  No. 
C.  114;  7  Dowl.  &  R.  G65;  5  Barnew.  &  C. 
340  ;  7  Carr.  «&  P.  17  ;  11  Q.  B.  1028  ;  1  Rob. 


Va.  729 ;  3  Ala.  n.  s.  602.  But  one  who 
swears  wilfully  and  deliberately  to  a  matter 
which  he  rashly  believes,  which  is  false,  and 
which  he  had  no  probable  cause  for  believing, 
is  guilty  of  perjury.  6  Binn.  Penn.  249.  See 
1  Baldw.  C.  C.  370 ;  1  Bail.  So.  C.  50 ;  4  Mc- 
Lean, C.  C.  113. 

3.  The  oath  must  he  false.  The  party  must 
believe  that  what  he  is  swearing  is  fictitious  ; 
and  if,  intending  to  deceive,  he  asserts  that 
which  may  happen  to  be  true,  without  any 
knowledge  of  the  fact,  he  is  equally  criminal, 
and  the  accidental  truth  of  his  evidence  will 
not  excuse  him.  Coke,  3d  Inst.  160 ;  Haw- 
kins, PI.  Cr.  b.  1,  c.  69,  8.  6.  See  4  Mo.  47  ;  4 
Zabr.  N.  J.  455  ;  9  Barb.  N.  Y.  467  ;  1  Carr. 

6  K.  519.  As,  if  a  man  swears  that  C  D  re- 
voked his  will  in  his  presence,  if  he  really  had 
revoked  it,  but  it  was  unknown  to  the  witness 
that  he  had  done  so,  it  is  perjury.    Hetl.  97. 

4.  The  party  must  he  lawfully  sworn.  The 
person  by  whom  the  oath  is  administered 
must  have  competent  authority  to  receive  it: 
an  oath,  therefore,  taken  before  a  private 
person,  or  before  an  officer  having  no  juris- 
diction, will  not  amount  to  perjury.  "  For 
where  the  court  hath  no  authority  to  hold  plea 
of  the  cause,  but  it  is  coram  nan  judice,  there 
perjury  cannot  be  committed."    1  Ind.  232; 

1  Johns.  N.  Y.  498 ;  9  Cow.  N.  Y.  30 ;  3 
M'Cord,  So.  C.  308  ;  4  id.  165  ;  3  Carr.  &  P. 
419  ;  4  Hawks,  No.  C.  182 ;  1  Nott  &  M'C.  So. 
C.  546 ;  3  M'Cord,  So.  C.  308 ;  2  Hayw.  No. 
C.  50  ;  8  Pick.  Mass.  453  ;  12  Q.  B.  1026; 
Dearsl.  Cr.  Cas.  251 ;  2  Russell,  Crimes,  520; 
Coke,  3d  Inst.  166. 

5.  The  proceedirigs  must  he  Judicial.  5  Mo. 
21 ;  1  Bail.  So.  C.  595  ;  11  Mete.  Mass.  406; 
5  Humphr.  Tenn.  83;  1  Johns.  N.  Y.  49; 
Wright,  Ohio,  173  ;  Russ.  &  R.  459.  Proceed 
ings  before  those  who  are  in  any  way  in 
trusted  with  the  administration  of  justice,  in 
respect  of  any  matter  regularly  before  them, 
are  considered  as  judicial  for  this  purpose. 

2  Russell,  Crimes,  518 ;  Hawkins,  PI.  Cr.  b. 
1,  c.  69,  s.  3.  See  3  Yeates,  Penn.  414 ;  9  Pet. 
238  ;  2  Conn.  40  ;  11  id.  408  ;  4  M'Cord,  So. 
C.  165.  Perjury  cannot  be  committed  where 
the  matter  is  not  regularlv  before  the  court. 
4  Hawks,  No.  C.  182 ;  2  Hayw.  No.  C.  56  ;  3 
M'Cord,  So.  C.  308  ;  8  Pick.  Mass.  453  ;  1 
Nott  &  M'C.  So.  C.  546  ;  9  Mo.  824 ;  18  Barb. 
N.  Y.  407;  10  Johns.  N.  Y.  167;  26  Me.  33; 

7  Blackf.  Ind.  25  ;  5  Barnew.  &  Aid.  634;  1 
Carr.  &  P.  258  ;  9  id.  513. 

6.  The  assertion  must  be  absolute.  If  a  man, 
however,  swears  that  he  believes  that  to  be 
true  which  he  knows  to  be  false,  it  will  be 
perjury.  10  Q.  B.  670  ;  3  Wils.  427  ;  2  W. 
Blackst. 881;  1  Leach, 242;  6 Binn.  Penn. 249 ; 
Gilbert,  Ev.  Loff't  ed.  662.  It  is  immaterial 
whether  the  testimony  is  given  in  answer  to 
a  question  or  voluntarily.  3  Zabr.  N.  J.  49; 
12  Mete.  Mass.  225.  Perjury  cannot  be  as- 
signed upon  the  valuation,  under  oath,  of  a 
jewel  or  other  thing  the  value  of  which  con- 
sists in  estimation.  Sid.  146;  1  Kebl.  510. 
But  in  some  cases  a  false  statement  of  opinion 
may  become  perjury.    10  Q.  B.  670;  15  III 


PERJURY 


325 


PERPETUAL  CURACY 


}57  ;  3  Ala.  n.  s.  602;  3  Strobh.  So.  C.  147  ; 
0  Blackf.  Ind.  62 ;  1  Leach,  Cr.  Cas.  4th  ed. 
325. 

T.  The  oath  must  he  material  to  the  question 
depending.  1  Term,  G3  :  12  Mass.  274 ;  3 
Murph.  No.  C.  123  ;  4  Mo.  47  ;  2  111.  80 ; 
9  Miss.  149  ;  6  Penn,  St.  170  ;  2  Cush.  Mass. 
212.  Where  the  facts  sworn  to  are  wholly 
foreign  from  the  purpose  and  altogether  im- 
material to  the  matter  in  question,  the  oath 
does  not  amount  to  a  legal  perjury.  2  Rus- 
sell, Crimes,  521 ;  Coke,  3d  Inst.  107  ;  8  Ves. 
Ch.  35  ;  2  Rolle,  41,  42,  369  ;  1  Hawkins,  PI, 
Cr.  b.  1,  c.  69,  s.  8  ;  Bacon,  Abr.  Perjury  (A)  ; 
2  Nott  &  M'C.  So.  C.  18 ;  2  Mo.  158.  But 
every  question  in  cross-examination  which 
goes  to  the  credit  of  a  witness,  as,  whether  he 
has  been  before  convicted  of  felony,  is  ma- 
terial. 3  Carr.  &  K.  26 ;  2  Mood.  Cr.  Cas. 
263  ;  1  Carr.  &  M.  655.  And  see  1  Ld.  Raym. 
257 ;  10  Mod.  195  ;  8  Rich.  So.  C.  456  ;  9  Mo. 
824;  12  Mete.  Mass.  225.  False  evidence, 
whereby,  on  the  trial  of  a  cause,  the  judge  is 
induced  to  admit  other  material  evidence,  even 
though  the  latter  evidence  is  afterwards  with- 
drawn by  counsel,  or  though  it  was  not  legally 
receivable,  is  indictable  as  perjury.  2  Den. 
Cr.  Cas.  302 ;  3  Carr.  &  K.  302. 

8.  It  is  not  within  the  plan  of  this  work  to 
cite  all  the  statutes  passed  by  the  general 
government  or  the  several  states  on  the  sub- 
ject of  perjury.  It  is  proper,  however,  here  to 
transcribe  a  part  of  the  thirteenth  section  of 
the  act  of  congress  of  March  3,  1825,  which 
provides  as  follows:  "If  any  person  in  any 
case,  matter,  hearing,  or  other  proceeding, 
when  an  oath  or  ajB&rmation  shall  be  required 
to  be  taken  or  administered  under  or  by  any 
law  or  laws  of  the  United  States,  shall,  upon 
the  taking  of  such  oath  or  affirmation,  know- 
ingly and  willingly  swear  or  affirm  falsely, 
every  person  so  offi3nding  shall  be  deemed 
guilty  of  perjury,  and  shall,  on  conviction 
thereof,  be  punished  by  fine,  not  exceeding 
two  thousand  dollars,  and  by  imprisonment 
and  confinement  to  hard  labor,  not  exceeding 
five  years,  according  to  the  aggravation  of 
the  off'ence.  And  if  any  person  or  persons 
shall  knowingly  or  willingly  procure  any 
such  perjury  to  be  committed,  every  person 
so  ofiending  shall  be  deemed  guilty  of  subor- 
nation of  perjury,  and  shall,  on  conviction 
thereof,  be  punished  by  fine,  not  exceeding 
two  thousand  dollars,  and  by  imprisonment 
and  confinement  to  hard  labor,  not  exceeding 
five  years,  according  to  the  aggravation  of 
the  ofi'ence.''  See  4  Blackf.  Ind.  146  ;  15  N. 
H.  83 ;  9  Pet.  238 ;  2  McLean,  C.  C.  135  ;  1 
Wash.  C.  C.  84 ;  2  Mas.  C.  C.  69. 

In  general,  it  may  be  observed  that  a  per- 
jury is  committed  as  well  by  making  a  false 
affirmation  as  a  false  oath.  See,  generally, 
16  Yincr,  Abr.  307;  Bacon,  Abr.;  Comyns, 
Dig.  Justices  of  the  Peace  (B  102-106)  ;  4 
Sharswood,  Blackst.  Comm.  137-139  ;  Coke, 
3d  Inst.  163-168  ;  Hawkins,  PI.  Cr.  b.  1,  c.  69 ; 
Russell,  Crimes,  b.  5,  c.  1 ;  2  Chitty,  Crim. 
Law,  c.  9  ;  Roscoe,  Crim.  Ev. ;  Burn  Just. ; 
Williams,  Just. 


PERMANENT  TRESPASS.  A  tres- 
pass  consisting  of  tresj)asHes  of  one  and  the 
same  kind,  committed  on  several  days,  which 
arc  in  their  nature  capable  of  ren(;wal  or 
continuation,  and  are  actually  renewed  or 
continued  from  day  to  day,  so  that  the  par- 
ticular injury  done  on  each  particular  day 
cannot  be  distinguished  from  what  was  done, 
on  another  day.  In  declaring  for  such  tres- 
passes, they  may  be  laid  with  a  continuando. 
3  Blackstone,  Comm.  212 ;  Bacon,  Abr.  Tres- 
2)ass  (B  2,  I  2)  ;  1  Saund.  24,  n.  1.  See  Con- 
tinuando ;  Trespass. 

PERMISSION.  A  license  to  do  a  thing  ; 
an  authority  to  do  an  act  which  without  such 
authority  would  have  l;ecn  unlawful.  A  per- 
mission differs  from  a  law  :  it  is  a  check  upon 
the  operations  of  the  law. 

Express  pei'missions  derogate  from  some- 
thing which  before  was  forbidden,  and  may 
operate  in  favor  of  one  or  more  persons,  or 
for  the  performance  of  one  or  more  acts,  or 
for  a  longer  or  shorter  time. 

Implied  permissions  are  those  which  arise 
from  the  fact  that  the  law  has  not  forbidden 
the  act  to  be  done. 

PERMISSIVE.  Allowed  ;  that  which 
may  be  done :  as,  permissive  waste,  which 
is  the  permitting  real  estate  to  go  to  waste. 
When  a  tenant  is  loound  to  repair,  he  is  punish- 
able for  permissive  waste.  2  Bouvier,  Inst.  u. 
2400.    See  Waste. 

PERMIT.  A  license  or  warrant  to  do 
something  not  forbidden  by  law :  as,  to  land 
goods  imported  into  the  United  States,  after 
the  duties  have  been  paid  or  secured  to  be 
paid.  Act  of  Congr.  March  2,  1799,  s.  49,  cl. 
2.  See  form  of  such  a  permit,  Gordon,  Dig. 
App.  II.  46. 

PERMUTATION.  In  Civil  Law.  Ex- 
change ;  barter. 

This  contract  is  formed  by  the  consent  of  the 
parties;  but  delivery  is  indispensable,  for  without 
it  it  is  a  mere  agreement.  Dig.  31.  77.  4;  Code,  4. 
64.  3. 

Permutation  differs  from  sale  in  this,  that  in  the 
former  a  delivery  of  the  articles  sold  must  be  made, 
while  in  the  latter  it  is  unnecessary.  It  agrees 
with  the  contract  of  sale,  however,  in  the  follow- 
ing particulars:  that  he  to  whom  the  delivery  is 
made  acquires  the  right  or  faculty  of  prescribing, 
Dig.  41.  3.  4.  17;  that  the  contracting  parties  are 
bound  to  guarantee  to  each  other  the  title  of  the 
things  delivered,  Code,  4.  64.  1 ;  and  that  they  are 
bound  to  take  back  the  things  delivered  when  they 
have  latent  defects  which  they  have  concealed. 
Dig.  21.  1.  63.  See  Aso  &  M.  Inst.  b.  2,  t.  16,  c.  1  ; 
MuTATiox;  Transfer. 

PERNANCY  (from  Fr.  prendre,  to  take). 
A  taking  or  receiving. 

PERNOR  OF  PROFITS.  He  who  re- 
ceives the  profits  of  lands,  etc.  A  cestui 
que  use,  who  is  legally  entitled  and  actually 
does  receive  the  profits,  is  the  pernor  of  profits. 

PERPETUAL.  That  which  is  to  last 
without  limitation  as  to  time:  as,  a  per- 
petual statute,  which  is  one  without  limit  as 
to  time,  although  not  expressed  to  be  so. 

PERPETUAL  CURACY.    The  office 


PERPETUATING  TESTIMONY  326 


PERSONAL  ACTION 


of  a  curate,  in  a  parish  where  there  is  no 
Bpiritual  rector  or  vicar,  but  where  the  curate 
is  appointed  to  officiate  for  the  time  by  the 
impropriator.    2  Burn,  Eccl.  Law,  55. 

The  church  of  which  the  curate  is  per- 
petual.   2  Ves.  Sen.  Ch.  425,  429.    See  2 
Stephen,  Comm.  76 ;  2  Burn,  Eccl.  Law,  55 
9  Ad.  &  E.  556.    As  to  whether  such  curate 
may  be  removed,  see  2  Burn,  Eccl.  Law,  55. 

PERPETUATING  TESTIMONY. 
The  act  by  which  testimony  is  reduced  to 
writing  as  prescribed  by  law,  so  that  the 
same  shall  be  read  in  evidence  in  some  suit 
or  legal  proceedings  to  be  thereafter  in- 
stituted. 

The  origin  of  this  practice  may  be  traced 
to  the  canon  law,  cap.  5,  X  ut  lite  non  contes- 
tata,  etc.  Bockmer,  n.  4 ;  8  Toullier,  n.  22. 
Statutes  exist  in  most  of  the  states  for  this 
purpose.  Equity  also  furnishes  means,  to  a 
limited  extent,  for  the  same  purpose. 

PERPETUITY.  Any  limitation  tending 
to  take  the  subject  of  it  out  of  commerce  for 
a  longer  period  than  a  life  or  lives  in  being, 
and  twenty-one  jears  beyond,  and,  in  case 
of  a  posthumous  child,  a  few  months  more, 
allowing  for  the  term  of  gestation.  Randell, 
Perp.  48.  Such  a  limitation  of  property  as 
renders  it  unalienable  beyond  the  period 
allowed  by  law.  Gilbert,  Uses,  Sugd.  ed. 
260,  n. 

Mr.  Justice  Powell,  in  Scattergood  vs.  Edge,  12 
Mod.  278,  distinguished  perpetuities  into  two  sorts, 
absolute  and  qualified ;  meaning  thereby,  as  it  is 
apprehended,  a  distinction  between  a  plain,  direct, 
and  palpable  perpetuity,  and  the  case  where  an 
estate  is  limited  on  a  contingency,  which  might 
happen  within  a  reasonable  compass  of  time,  but 
where  the  estate  nevertheless,  from  the  nature  of 
the  limitation,  might  be  kept  out  of  commerce 
longer  than  was  thought  agreeable  to  the  policy 
of  the  common  law.  But  this  distinction  would 
not  now  lead  to  a  better  understanding  or  ex- 
planation of  the  subject ;  for  whether  an  estate  be 
so  limited  that  it  cannot  take  effect  until  a  period 
too  much  protracted,  or  whether  on  a  contingency 
which  may  happen  within  a  moderate  compass  of 
time,  it  equally  falls  within  the  line  of  perpetuity, 
and  the  limitation  is  therefore  void ;  for  it  is  not 
sufficient  that  an  estate  may  vest  within  the  time 
allowed,  but  the  rule  requires  that  it  must.  Randell, 
Perp.  49.  See  Cruise,  Dig.  tit.  32,  c.  23;  1  Belt, 
Suppl.  to  Ves.  Jr.  406  ;  2  Ves.  Ch.  357;  3  Saund. 
388;  Comyns,  Dig.  Chancery  (4  G  1);  3  Chanc. 
Cas.  1 ;  2  Bouvier,  Inst.  n.  1890. 

PERQUISITES.  In  its  most  extensive 
sense,  perquisites  signifies  any  thing  gotten 
Ky  industry  or  purchased  with  money,  dif- 
ferent from  that  which  descends  from  a 
father  or  ancestor.  Bracton,  1.  2,  c.  30,  n. 
3  ;  1.  4,  c.  22.  In  a  more  limited  sense,  it 
means  something  gained  by  a  place  or  office 
beyond  the  regular  salary  or  fee. 

PERSON.  A  man  considered  according 
to  the  rank  he  holds  in  society,  with  all  the 
rights  to  which  the  place  he  holds  entitles 
him,  and  the  duties  which  it  imposes.  1 
Bouvier,  Inst.  n.  137. 

A  corporation,  which  is  an  artificial  person. 
1  vSharswood,  Blackst.  Comm.  12.') ;  4  Bingh. 
C69;  Wooddeson,  Lect,  UG ;  1  Mod.  104. 


2.  The  term,  as  is  seen,  is  more  extensive  than 
man, — including  artificial  beings,  as  corporations, 
as  well  as  natural  beings.  But  when  the  word 
''persons"  is  spoken  of  in  legislative  acts,  natural 
persons  will  be  intended,  unless  something  appear 
in  the  context  to  show  that  it  applies  to  artificial 
persons.    2  111.  178. 

Natural  persons  are  divided  into  males,  or  men, 
and  females,  or  women.  Men  are  capable  of  all 
kinds  of  engagements  and  functions,  unless  by 
reasons  applying  to  particular  individuals.  Women 
cannot  be  appointed  to  any  public  ofiice,  nor  per- 
form any  civil  functions,  except  those  which  the 
law  specially  declares  them  capable  of  exercising. 
La.  Civ.  Code,  art.  25. 

3.  They  are  also  sometimes  divided  into  free  per- 
sons and  slaves.  Freemen  are  those  who  have  pre- 
served their  natural  liberty,  that  is  to  say,  who 
have  the  right  of  doing  what  is  not  forbidden  by 
the  law.  A  slave  is  one  who  is  in  the  power  of  a 
master  to  whom  he  belongs.  Slaves  are  sometimes 
ranked  not  with  persons,  but  things.  But  some- 
times they  are  considered  as  persons:  for  example, 
a  negro  is  in  contemplation  of  law  a  person,  so  ag 
to  be  capable  of  committing  a  riot  in  conjunction 
with  white  men.    1  Bay,  So.  C.  358.    See  Man. 

Persons  are  also  divided  into  citizens  and  aliens, 
when  viewed  with  regard  to  their  political  rights. 
When  they  are  considered  in  relation  to  their  civil 
rights,  they  are  living  or  civilly  dead,  see  Civil, 
Death;  outlaws;  and  infamous  persons. 

Persons  are  divided  into  legitimates  and  bastards,  ' 
when  examined  as  to  their  rights  by  birth. 

When  viewed  in  their  domestic  relations,  they  ' 
are  divided  into  parents  and  children ;  husbands  " 
and  wives;  guardians  and  wards;  and  masters  " 
and  servants.  ' 

For  the  derivation  of  the  word  person,  as  it  is 
understood   in  law,   see  1  Toullier,   n.  168;   1  i 
Bouvier,  Inst.  n.  1890,  note.  i 

PERSONA  (Lat.).  In  Civil  Law.  Cha-  : 
racter,  in  virtue  of  which  certain  rights  belong 
to  a  man  and  certain  duties  are  imposed  upon  ; 
him.  Thus,  one  man  may  unite  many  cha- 
racters [personcB) :  as,  for  example,  the  cha- 
racters of  father  and  son,  of  master  and  ser- 
vant.   Mackeldy,  Civ.  Law,  I  117.  ' 

In  its  original  signification,  a  mask ;  afterwards,  ] 
a  man  in  reference  to  his  condition  or  charaetei  '■ 
{status).  Vicat,  Voc.  Jur.  It  is  used  metaphori-  \ 
eally  of  things,  among  which  are  counted  slaves.  , 
It  is  often  opposed  to  res:  as,  actio  in  personam  and  i 
actio  in  rem.  ^  ' 

Power  and  right  belonging  to  a  person  in  a 
certain  character  [pro  jure  et  potestate  person 
competente).  Vioat,  Voc.  Jur.  Its  use  is  not  con- 
fined to  the  living,  but  is  extended  to  the  dead 
and  to  angels.  Id.  A  statue  in  a  fountain  whence 
water  gushes. 

PERSONAL.    Belonging  to  the  person. 

This  adjective  is  frequently  employed  in  connec- 
tion with  substantives,  things,  goods,  chattels, 
actions,  right,  duties,  and  the  like:  as,  personal 
estate,  put  in  opposition  to  real  estate ;  personal 
actions,  in  contradistinction  to  real  actions.  Per- 
sonal rights  are  those  which  belong  to  the  person; 
personal  duties  are  those  which  are  to  be  performed 
in  person. 

PERSONAL  ACTION.    In  Practice. 

In  the  Civil  Law. 
An  action  in  which  one  person  (the  actor) 
sues  another  (the  reus)  in  respect  of  some 
obligation  which  he  is  under  to  the  actor 
cither  ex  contractu  or  ex  delicto.  It  will  be 
seen  that  this  includes  all  actions  against  a 
person,  without  reference  to  the  nature  (if  the 


PERSONAL  CHATTELS  327 


PERSONATE 


property  invoked.  In  a  limited  sense  of  the 
word  action  in'  the  civil  law,  it  includes  only 
personal  actions,  all  others  being  called 
petitions.    See  Real  Action. 

At  the  Common  Law. 

An  action  brought  for  the  recovery  of  per- 
sonal property,  for  the  enforcement  of  some 
contract  or  to  recover  damages  for  its  breach, 
or  for  the  recovery  of  damages  for  the  com- 
mission of  an  injury  to  the  person  or  pro- 
perty. Such  arise  either  upon  contracts,  as 
account,  assumpsit,  covenant,  debt,  and  de- 
tinue (see  these  words),  or  for  wrongs, 
injuries,  or  torts,  as  trespass,  trespass  on  the 
case,  replevin,  trover.  (See  these  w^ords.) 
Other  divisions  of  personal  actions  are  made 
in  the  various  states  ;  and  in  Vermont  and 
Connecticut  an  action  is  in  use  called  the 
action  of  book  debt.    See  Book  Debt. 

PERSONAL  CHATTELS.  Strictly 
and  properly  speaking,  things  movable, 
which  may  be  annexed  to  or  attendant  on 
the  person  of  the  owner,  and  carried  about 
with  him  from  one  part  of  the  world  to 
another.   2  Sharswood,  Blackst.  Comm.  388*. 

PERSONAL  CONTRACT.  A  con- 
tract as  to  personal  property.  A  covenant 
(or  contract)  personal  relates  only  to  matters 
personal  as  distinguished  from  real,  and  is 
binding  on  the  covenantor  (contractor) 
during  his  life,  and  on  his  personal  repre- 
gentatives  after  his  decease,  in  respect  of  assets. 
Angell  &  A.  Waterc.  305  ;  Coke,  Litt.  22. 

PERSONAL  COVENANT.  A  cove- 
nant w^hich  binds  only  the  covenantor  and  his 
personal  representatives  in  respect  to  assets, 
and  can  be  taken  advantage  of  only  by  the 
covenantee. 

A  covenant  which  must  be  performed  by 
the  covenantor  in  person.  Fitzherbert,  Nat. 
Brev.  340. 

All  covenants  are  either  personal  or  real;  but 
some  confusion  exists  in  regard  to  the  division 
between  them.  Thus,  a  covenant  may  be  personal 
as  regards  the  covenantor,  and  real  as  regards  the 
covenantee ;  and  different  definitions  have  been 
given,  according  to  whether  the  rights  and  liabilities 
of  the  covenant  or  or  the  covenantee  have  been  in 
consideration.  It  is  apprehended,  however,  that 
the  prevalent  modern  usage  is  to  hold  a  covenant 
real,  if  it  is  real, — that  is,  runs  with  the  land 
so  as  to  apply  to  an  assignee,  either  as  regards 
the  covenantor  or  the  covenantee.  See  Piatt,  Gov. 
61;  4  Sharswood,  Blackst.  Comm.  304,  n.,  305,  n.; 
3  N.  J.  2G0 ;  7  Gray,  Mass.  83. 

All  covenants  which  relate  to  personalty 
merely  are  of  this  class.    30  Miss.  145. 

PERSONAL  LIBERTY.  See  Liberty. 

PERSONAL  PROPERTY.  The  right 
or  interest  which  a  man  has  in  things  per- 
sonal. 

The  right  or  interest  less  than  a  freehold 
which  a  man  has  in  realty,  or  any  right  or 
interest  which  he  has  in  things  movable. 

Personal  property  is  to  be  distinguished  from 
things  personal.  There  may  be,  for  example,  a 
personal  estate  in  realty,  as  chattels  real ;  but  the 
only  property  which  a  man  can  have  in  things 
personal  must  be  a  personal  property.  The  essen- 
tial idea  of  personal  property  is  that  of  property 


in  a  thing  movable  or  separable  from  the  realty, 
or  of  perishability  or  po.s.sibility  of  brief  duration 
of  interest  as  compared  with  the  owner's  life  in  a 
thing  real,  without  any  action  on  the  part  of  the 
owner.  See  2  Sharswood,  Blackst.  Comm.  14  and 
notes,  384  and  notes. 

2.  A  crop  growing  in  the  ground  is  per- 
sonal property  so  far  as  not  to  be  considered 
an  interest  in  land,  under  the  Statute  of 
Frauds.  11  East,  3G2  ;  12  Me.  337 ;  5  Barnew. 
&  C.  829 ;  9  id.  501 ;  10  Ad.  &  E.  753. 

It  is  a  general  principle  of  American  law 
that  stock  held  in  corporations  is  to  be  con- 
sidered as  personal  property,  Walker,  Am. 
Law,  211 ;  4  Dane,  Abr.  670  ;  Sullivan,  Land 
Tit.  71 ;  1  Ililliard,  Real  Prop.  18  ;  though  it 
was  held  that  suclr  stock  was  real  estate,  2 
Conn.  5G7 ;  but,  this  being  found  inconvenient, 
the  law  was  changed  by  the  legislature. 

3.  Title  to  personal  property  is  acquired — 
first,  by  original  acquisition  by  occupancy : 
as,  by  capture  in  war,  by  finding  a  lost  thing; 
second,  by  original  acquisition  by  accession  ; 
tliird,  by  original  acquisition  by  intellectual 
labor :  as,  copyrights  and  patents  for  inven- 
tions ;  fourth,  by  transfer,  w^hich  is  by  act  of 
law,  by  forfeiture,  by  judgment,  by  insol- 
vency, by  intestacy  ;  Jifth,  by  transfer  by  act 
of  the  party,  by  gift,  by  sale.  See,  gene- 
rally, 16  Viner,  Abr.  335  ;  8  Comyns,  Dig. 
474,562  ;  1  Belt,  Suppl.  Ves.  Ch.  49,  121,  160, 
198,  255,  368,  369,  399,  412,  478 ;  2  id.  10, 
40,  129,  290,  291,  341 ;  1  Vern.  Ch.  3,  170, 
412;  2  Salk.  449;  2  Ves.  Ch.  59,  176,  261, 
271,  336,  683;  7  id.  453.  See  Pew;  Pro- 
PERTY ;  Real  Property. 

PERSONAL  REPRESENTATIVES. 
The  executors  or  administrators  of  the  person 
deceased.  6  Mod.  155  ;  5  Ves.  Ch.  402 ;  1 
Madd.  Ch.  108. 

In  wills,  these  words  are  sometimes  con- 
strued to  mean  next  of  kin.  2  Jarman,  Wills, 
28  ;  1  Beav.  Rolls,  46  ;  1  Russ.  &  M.  Ch.  587. 

PERSONAL  SECURITY.  The  legal 
and  uninterrupted  enjoyment  by  a  man  of  his 
life,  his  body,  his  health,  and  his  reputatiou. 
1  Bouvier,  Inst.  n.  202. 

PERSONAL  STATUTE.  A  law  whose 
principal,  direct,  and  immediate  object  is  to 
regulate  the  condition  of  persons. 

The  term  is  not  properly  in  use  in  the  common 
law,  although  Lord  Mansfield,  in  2  W.  Blackst.  234, 
applied  it  to  those  legislative  acts  which  resj^ect  per- 
sonal transitory  contracts,  but  is  occasionally  used 
in  the  sense  given  to  it  in  civil  law  and  which  is 
adopted  as  its  definition.  It  is  a  law,  ordinance, 
regulation,  or  custom,  the  disposition  of  which  af 
fects  the  person  and  clothes  him  with  a  capacity  oi 
incapacity  which  he  does  not  change  with  his  abode. 
See  2  Kent,  Comm.  10th  ed.  613. 

PERSONALTY.  That  which  is  mova 
ble ;  that  which  is  the  subject  of  personal 
property  and  not  of  a  real  property. 

PERSONATE.   In  Criminal  Law.  To 

assume  the  character  of  another  without  law- 
ful authority,  and,  in  such  character,  do  some- 
thing to  his  prejudice,  or  to  the  prejudice  of 
another,  without  his  will  or  consent. 

The  bare  fact  of  personating  another  for 
the  purpose  of  fraud  is  no  more  than  a  cheat 


PERSUADE,  PERSUADING 


328 


PETITION 


or  misdemeanor  at  common  law,  and  punish- 
able as  such.  2  East,  PI.  Cr.  1010  ;  2  Russell, 
Crimes,  479. 

By  the  act  of  congress  of  the  30th  April 
1790,  s.  15,  1  Story,  U.  S.  Laws,  86,  it  is  en- 
acted that  "if  any  person  shall  acknowledge, 
or  procure  to  be  acknowledged,  in  any  court 
of  the  United  States,  any  recognizance,  bail, 
or  judgment,  in  the  name  or  names  of  any 
other  person  or  persons  not  privy  or  consent- 
ing to  the  same,  every  such  person  or  persons, 
on  conviction  thereof,  shall  be  fined  not 
exceeding  five  thousand  dollars,  or  be  im- 
prisoned not  exceeding  seven  years,  and 
whipped  not  exceeding  thirty-nine  stripes. 
Provided,  nevertheless,  that  this  act  shall  not 
extend  to  the  acknowledgment  of  any  judg- 
ment or  judgments  by  any  attorney  or  attor- 
neys, duly  admitted,  for  any  person  or  per- 
sons against  whom  any  such  judgment  or 
judgments  shall  be  had  or  giveu.'^  See, 
generally,  2  Johns.  Cas.  N.  Y.  293  ;  16  Viner, 
Abr.  336  ;  Corny ns,  Dig.  Action  on  the  Case 
for  a  Deceit  (A3). 

PERSUADE,  PERSUADING.  To 
persuade  is  to  induce  to  act.  Persuading  is 
inducing  others  to  act.  Inst.  4.  6.  23 ;  Dig. 
11.3.1.5. 

In  the  act  of  the  legislature  which  declared 
that  "  if  any  person  or  persons  knowingly  and 
willingly  shall  aid  or  assist  any  enemies  at 
open  war  with  this  state,  etc.,  by  persuading 
others  to  enlist  for  that  purpose,  etc.,  he  shall 
be  adjudged  guilty  of  high  treason,''  the  word 
persuading  thus  used  means  to  succeed ; 
and  there  must  be  an  actual  enlistment  of 
the  person  persuaded  in  order  to  bring  the 
defendant  within  the  intention  of  the  clause. 
1  Dall.  Penn.  39  ;  4  Carr.  &  P.  369  ;  9  id.  79  ; 
Administering.  See  2  Ld.  Raym.  889.  It 
may  be  fairly  argued,  however,  that  the 
attempt  to  persuade  without  success  would 
be  a  misdemeanor.    1  Russell,  Crimes,  44. 

In  England  it  has  been  decided  that  to 
incite  and  procure  a  person  to  commit  suicide 
is  not  a  crime  for  which  the  party  could  be 
tried.  9  Carr.  &  P.  79.  See  Attempt;  Solicit- 
ation. 

PERSUASION.  The  act  of  influencing 
by  expostulation  or  request.  While  the  per- 
suasion is  confined  within  those  limits  which 
leave  the  mind  free,  it  may  be  used  to  induce 
another  to  make  his  will,  or  even  to  make  it 
in  his  own  favor.  But  if  such  persuasion 
should  so  far  operate  on  the  mind  of  the  tes- 
tator that  he  would  be  deprived  of  a  perfectly 
free  will,  it  would  vitiate  the  instrument.  3 
Serg.  &  R.  Penn.  269 ;  5  id.  207 ;  13  id.  323. 

PERTINENT  (from  Lat.  pertineo,  belong- 
ing to).  Which  tends  to  prove  or  disprove  the 
allegations  of  the  parties.  Willcs,  319.  Mat- 
ters which  have  no  such  tendency  are  called 
impertinent.    8  Toullier,  n.  22. 

PERTURBATION.  This  is  a  technical 
word  which  signifiesdisturbance  or  infringe- 
ment of  a  right.  It  is  usually  applied  to  the 
disturbance  of  pews  or  seats  in  a  church. 
In  the  ecclesiastical  courts,  actions  for  these 


disturbances  are  technii^ally  called  "  suits  fol 
perturbation  of  seat."  1  Phill.  Eccl.  323. 
See  Pew. 

PERVISE,  PARVISE.  The  palace  yard 
at  Westminster. 

A  place  where  counsel  used  to  advise  with 
their  clients. 

An  afternoon  exercise  or  moot  for  the  in- 
struction of  students.    Cowel ;  Blount. 

PES  AG-E.  In  England,  a  toll  charged  for 
weighing  avoirdupois  goods  other  than  wool. 
2  Chitty,  Com.  Law,  16. 

PETIT  (sometimes  corrupted  into  petty). 
A  French  word  signifying  little,  small.  It  \s 
frequently  used :  as,  petit  larceny,  petit  jury, 
petit  treason. 

PETIT  CAPE.  When  the  tenant  is  sum- 
moned on  a  plea  of  land,  and  comes  on  the 
summons  and  his  appearance  is  recorded,  if 
at  the  day  given  him  he  prays  the  view,  and, 
having  it  given  him,  makes  default,  then  shall 
this  writ  issue  from  the  king.  Old  Nat.  Brev. 
162  ;  Reg.  Jud.  fol.  2 ;  Fleta,  lib.  2,  c.  44.  See 
Grand  Cape. 

PETIT,  PETTY  JURY.  The  ordinary 
jury  of  twelve,  as  opposed  to  the  grand  jury, 
which  was  of  a  larger  number  and  whoso 
duty  it  was  to  find  bills  for  the  petit  jury  to 
try.    3  Sharswood,  Blackst.  Comm.  351*. 

PETIT,  PETTY  LARCENY.  Larceny 
to  the  amount  of  twelve  pence  or  less.  4 
Sharswood,  Blackst.  Comm.  229*.  See  1 
Bishop,  Crim.  Law,  ^§  378,  379.  See  Larceny 

PETIT  SERJEANTY.  A  tenure  by 
which  lands  are  held  of  the  crown  by  the 
service  of  rendering  yearly  some  small  im- 
plement of  war,  as  a  lance,  an  arrow,  etc.  2 
Sharswood,  Blackst.  Comm.  82.  Though  the 
stat.  12  Car.  II.  took  away  the  incidents  of 
livery  and  primer  seisin,  this  tenure  still  i-e- 
mains  a  dignified  branch  of  socage  tenure, 
from  which  it  only  difi'ers  in  name  on  account 
of  its  reference  to  war.  Such  is  the  tenure 
of  the  grants  to  the  dukes  of  Marlborough 
and  Wellington. 

PETIT  TREASON.    In  English  Law. 

The  killing  of  a  master  by  his  servant,  a  hus- 
band by  his  wife,  a  superior  by  a  secular  or 
religious  man.  In  the  United  States  this  is 
like  any  other  murder.  See  High  Treason  ; 
Treason. 

PETITE  ASSIZE.  Used  in  contradistinc- 
tion from  the  grand  assize,  which  was  a  jury  to 
decide  on  questions  of  property.  Petite  assize, 
a  jury  to  decide  on  questions  of  possession. 
Britton,  c.  42;  Glanville,  lib.  2,  c.  6,  7;  Home, 
Mirror,  lib.  2,  c.  de  Novel  Disseisin. 

PETITION.  An  instrument  of  writing 
or  printing,  containing  a  prayer  from  the 
person  presenting  it,  called  the  petitioner,  to 
the  body  or  person  to  whom  it  is  present*^', 
for  the  redress  of  some  wrong  or  the  grant  of 
some  favor  which  the  latter  has  the  right  to  give. 

By  the  constitution  of  the  United  States,  the 
right  "to  petition  the  government  for  a  re- 
dress of  grievances"  is  secured  to  the  people. 
Amend,  art.  1. 


PETITION  OF  RIGHT 


329 


PHYSICIAN 


Petitions  are  frequontly  presented  to  the 
courts  in  order  to  bring  some  matters  beforo 
them.  It  is  a  general  rule  in  such  cases 
that  an  affidavit  should  be  made  that  the 
facts  therein  contained  are  true  as  far  as 
known  to  the  petitioner,  and  that  those  facts 
which  he  states  as  knowing  from  others  he 
believes  to  be  true. 

PETITION  OF  RIGHT.  In  English 
Law.  A  proceeding  in  chancery  by  w^hich 
a  subject  may  recover  property  in  the  posses- 
sion of  the  king. 

This  is  in  the  nature  of  an  action  against  a 
subject,  in  which  the  petitioner  sets  out  his 
right  to  that  which  is  demanded  by  him,  and 
prays  the  king  to  do  him  right  and  justice  ; 
and,  upon  a  due  and  lawful  trial  of  the  right, 
to  make  him  restitution.  It  is  called  a  pe- 
tition of  right  because  the  king  is  bound  of 
right  to  answer  it  and  let  the  matter  therein 
contained  be  determined  in  a  legal  way,  in 
like  manner  as  causes  between  subject  and 
subject.  The  petition  is  presented  to  the 
king,  who  subscribes  it  with  these  words, 
soil  droit  fait  al  parlie,  and  thereupon  it  is 
delivered  to  the  chancellor  to  be  executed 
according  to  law.  Coke,  4th  Inst.  419,  422  b  ; 
Mitford,  Eq.  Plead.  30,  31 ;  Cooper,  Eq.  Plead. 
22,  23. 

PETITORY.  That  which  demands  or 
petitions;  that  which  has  the  quality  of  a 
prayer  or  petition  ;  a  right  to  demand. 

A  petitory  suit  or  action  is  understood  to  be  one 
in  which  the  mere  title  to  property  is  to  be  enforced 
by  means  of  a  demand,  petition,  or  other  legal  pro- 
ceeding, as  distinguished  from  a  suit  where  only  the 
right  of  possession  and  not  the  mere  right  of  pro- 
perty is  in  controversy.  1  Kent,  Comm.  371 ;  7 
How.  846  ;  10  id.  257.  Admiralty  suits  touching 
property  in  ships  are  either  petitory,  in  which  the 
mere  title  to  the  property  is  litigated,  or  jjossessori/,  to 
restore  the  possession  to  the  party  entitled  thereto. 

The  American  courts  of  admiralty  exercised 
unquestioned  jurisdiction  in  petitory  as  well 
as  possessory  actions ;  but  in  England  the 
courts  of  law,  some  time  after  the  restoration 
in  1660,  claimed  exclusive  cognizance  of  mere 
questions  of  title,  until  the  statute  of  3  &  4 
Vict.  c.  65.  By  that  statute  the  court  of  ad- 
miralty was  authorized  to  decide  all  questions 
as  to  the  title  to  or  ownership  of  any  ship 
or  vessel,  or  the  proceeds  thereof  remaining 
in  the  registry  in  any  cause  of  possession,  sal- 
vage, damage,  wages,  or  bott'^mry,  instituted 
in  such  court  after  the  passing  of  that  act. 
Ware,  Dist.  Ct.  232  ;  18  How.  267  ;  2  Curt.  C. 
C.  426. 

In  Scotch  Law.  Actions  in  which  dam- 
ages are  sought. 

This  class  embraces  such  actions  as  as- 
sumpsit, debt,  covenant,  and  detinue,  at  com- 
mon law.    See  Patterson,  Comp.  1058,  n. 

PETTY  AVERAGE  (called,  also,  cus- 
tomary average).  Several  petty  charges  which 
are  borne  partly  by  the  ship  and  partly  by 
the  cargo,  such  as  the  expense  of  tonnage, 
beaconage,  etc.  Abbott,  Shipp.  7th  ed.  404 ; 
2  Parsons,  Mar.  Law,  312 ;  1  Bell,  Cod^^. 
5G7  ;  2  Magens,  277 


PETTY  BAG  OFFICE.  In  English 
Law.  An  office  in  the  court  of  chancery, 
appropriated  for  suits  against  attorneys  and 
officers  of  the  court,  and  for  process  and  pro- 
ceedings by  extent  on  statutes,  recognizances 
ad  quod  damnum,  and  the  like.  Termes  do 
la  Ley. 

PETTY  CONSTABLE.  The  ordinary 
constable,  as  distinguished  from  the  high  con- 
stable of  the  hundred.  1  Sharsw^ood,  Blackst. 
Comm.  355  ;  Bacon,  Law  Tr.  181,  OJice  of 
Co7istahle;  Willcock,  Cons.  c.  1,  §  1.  For 
duties  of  constable  in  America,  see  New 
England  Sheriff. 

PETTIFOGGER.  One  who  pretends  to 
be  a  lawyer,  but  possesses  neither  knowledge 
of  the  law  nor  conscience. 

An  unprincipled  practitioner  of  law,  whose 
business  is  confined  to  petty  cases. 

PEW.  A  seat  in  a  church,  separated  from 
all  others,  with  a  convenient  place  to  stand 
therein. 

2.  It  is  an  incorporeal  interest  in  the  real 
property.  And  although  a  man  has  the  ex- 
clusive right  to  it,  yet  it  seems  he  cannot 
maintain  trespass  against  a  person  entering 
it,  1  Term,  430 ;  but  case  is  the  proper  remedy. 
3  Barnew.  &  Aid.  361 ;  8  Barnew.  &  C. 
294. 

The  right  to  pews  is  limited  and  usufruc- 
tuary, and  does  not  interfere  with  the  right 
of  the  parish  or  congregation  to  pull  down 
and  rebuild  the  church.  4  Ohio,  541  ;  5  Cow. 
N.  Y.  496  ;  17  Mass.  435  ;  1  Pick.  Mass.  102 ; 
3  id.  344 ;  6  Serg.  &  R.  Penn.  508  ;  9  Wheat. 
445 ;  9  Cranch,  52 ;  6  Johns.  N.  Y.  41 ;  4  Johns. 
Ch.  N.  Y.  596 ;  6  Term,  396.  See  Powell, 
Mortgages,  Index :  2  Sharswood,  Blackst. 
Comm.  429;  1  Chitty,  Pract.  208,  210;  1 
Powell,  Mortg.  17,  n. 

3.  In  Connecticut  and  Maine,  pews  are 
considered  real  estate.  In  Massachusetts  and 
New  Hampshire,  they  are  personal  property. 
Mass.  Gen.  Stat.  c.  30,  ^  38  ;  1  Smith,  St.  145. 
The  pjrecise  nature  of  such  property  does  not 
appear  to  be  well  settled  in  New  York.  15 
Wend.  N.  Y.  218 ;  16  id.  28  ;  5  Cow.  N.  Y. 
494.  See  Conn.  L.  432  ;  10  Mass.  323  ;  17 
id.  438 ;  7  Pick.  Mass.  138  ;•  4  N.  H.  180 ;  4 
Ohio,  515  ;  4  Harr.  &  M'H.  Md.  279  ;  Best, 
Pres.  Ill;  Crabb,  Real  Prop.  §|  481-497; 
Washburn,  Easements. 

PHAROS.  A  light-house  or  beacon.  It 
is  derived  from  Pharos,  the  name  of  a  small 
island  at  the  mouth  of  the  Nile,  on  which  was 
built  a  watch-tower. 

PHYSICIAN.  A  person  who  has  re- 
ceived the  degree  of  doctor  of  medicine  from 
an  incorporated  institution. 

One  lawfully  engaged  in  the  practice  of 
medicine. 

2.  Although  the  physician  is  civilly  and 
criminally  responsible  for  his  conduct  while 
discharging  the  duties  of  his  profession,  he 
is  in  no  sense  a  warrantor  or  insurer  of  a 
favorable  result,  without  an  express  contract 
to  that  effect.  Elwell,  Malp.  20 ;  ^  Carr.  «fe 
P.  81. 


PHYSICIAN 


330         PIGNORATIVE  CONIRACT 


Every  person  who  offers  his  services  to  the 
public  generally  impliedly  contracts  with  the 
employer  that  he  is  in  possession  of  the  ne- 
cessary ordinary  skill  and  experience  which 
are  possessed  by  those  who  practise  or  profess 
to  understand  the  art  or  science,  and  which 
are  generally  regarded  by  those  most  con- 
Tersant  with  the  profession  as  necessary  to 
qualify  one  to  engage  in  such  business  suc- 
cessfully. This  ordinary  skill  may  differ  ac- 
cording to  locality  and  the  means  of  informa- 
tion. Elwell,  Malp.  22-24,  201 ;  Story,  Bailm. 
433 ;  3  Carr.  &  P.  629;  8  id.  475.  _ 

3.  The  physician's  responsibility  is  the 
same  when  he  is  negligent  as  when  he  lacks 
ordinary  skill,  although  the  measure  of  in- 
demnity and  punishment  may  be  different. 
Elwell,  Malp.  27 ;  Archbold,  Crim.  PI.  2d  ed. 
411 ;  2  Ld.  Raym.  1583 ;  3  Maule  &  S.  14, 
15  ;  5  id,  198  ;  1  Lew.  Cr.  Cas.  169  ;  2  Starkie, 
Ev.  526  :  Broom,  Leg.  Max,  1st  ed.  108,  169 ; 
4  Den.  N  Y.  464;  19  Wend.  N.  Y.  345,  346. 

In  England,  a  physician  cannot  maintain 
an  action  for  his  fees  for  any  thing  done  as 
physioian  either  while  attending  to  or  pre- 
scribing for  a  patient ;  but  a  distinction  is 
taken  when  he  acts  as  a  surgeon  or  in  any 
other  capacity  than  that  of  physician,  and 
in  such  cases  an  action  for  fees  will  be  sus- 
tained. All  acts  of  a  physician  as  such  are 
considerbd  strictly  honorary,  and  therefore 
without  compensation  except  when  there 
exists  an  express  contract.  Without  this 
express  agreement  the  physician  cannot  even 
recover  his  travelling  expenses  while  going 
to  attend  his  patient  and  returning, — such 
expense  being  incidental  to  the  attendance,  and 
regarded  as  money  paid  to  the  physician's  own 
use  in  the  ordinary  exercise  of  his  profession, 
and  not  money  paid  to  the  use  of  the  patient. 
1  Carr.  &  M.  227,  370 ;  3  Gale  &  D.  198. 

4.  In  this  country,  the  various  states  have 
statutory  enactments  regulating  the  collec- 
tion of  fees  and  the  practice  of  medicine. 
In  Georgia,  a  physician  cannot  recover  for 
his  services  unless  he  shows  that  he  is 
licensed  as  required  by  the  act  of  1839,  or 
unless  he  is  within  the  proviso  in  favor  of 
physicians  who  were  in  practice  before  its 
passage.  8  Ga.  -74.  In  New  York,  prior  to 
the  act  repealing  all  former  acts  prohibit- 
ing unliccinsed  physicians  from  recovering  a 
compensation  for  their  services  (Stat,  of  1844, 
p.  406),  an  unlicensed  physician  could  not 
maintain  an  action  for  medical  attendance 
and  medicines.  4  Den.  N.  Y.  60.  Under 
the  Maine  statute  of  1838,  c.  53,  a  person 
who  is  not  allowed  by  law  to  collect  his  dues 
for  medical  or  isurgical  services  as  a  regular 
practitioner  cannot  recover  compensation 
for  such  services  unless  previous  to  their 
performance  he  obtained  a  certificate  of  good 
moral  character  in  manner  prescribed  by 
that  statute,  nor  can  he  recover  payment  for 
such  services  under  the  provision  of  the  Re- 
vised Statute,  c.  22,  by  having  obtained  a 
medical  degree,  in  manner  prescribed  by  that 
statute,  after  the  performance  of  the  service, 
though  prior  to  the  suit.    25  Me.  104. 


5.  In  Alabama  and  Missouri,  a  non-li 
censed  physician  cannot  recover  for  profea 
sional  services.  Hallowell  vs.  Adams,  21  Ala. 
N.  s.  680 ;  15  Mo.  407.  When  A,  the  plant- 
ation physician  of  a  planter,  found  a  sur- 
gical operation  necessary  on  one  of  the  ne- 
groes, and  requested  the  overseer  to  send  for 
B,  another  physician,  who  came  and  performed 
the  operation  without  any  assistance  from  A, 
it  was  held  that  B  could  not  maintain  an 
action  against  A  to  recover  for  his  services 
1  Strobh.  So.  C.  171.  In  Vermont,  the  em- 
ployment of  a  physician,  and  a  promise  to  pay 
him  for  his  services,  made  on  the  Sabbath- 
day,  is  not  prohibited  by  statute.  14  Vt.  332. 
In  Massaclmsetts,  an  unlicensed  physician  or 
surgeon  may  maintain  an  action  for  profes- 
sional service.    1  Mete.  Mass.  154. 

6.  Where  the  wife  of  the  defendant,  being 
afflicted  with  a  dangerous  disease,  was  carried 
by  him  to  a  distance  from  his  residence  and 
left  under  the  care  of  the  plaintiff  as  a  sur- 
geon, and  after  the  lapse  of  some  weeks  the 
plaintiff  performed  an  operation  on  her  for 
the  cure  of  the  disease,  soon  after  which  she 
died,  it  was  held,  in  an  action  by  the  plaintiff 
against  the  defendant  to  recover  compensa- 
tion for  his  services,  that  the  performance  of 
the  operation  was  within  the  scope  of  the 
plaintiff's  authority,  if,  in  his  judgment,  it 
was  necessary  or  expedient,  and  that  it  was 
not  incumbent  on  him  to  prove  that  it  M^as 
necessary  or  proper  under  the  circumstances, 
or  that  before  he  performed  it  he  gave  no- 
tice to  the  defendant,  or  that  it  would  have 
been  dangerous  to  the  wife  to  wait  until 
notice  could  be  given  to  the  defendant.  19 
Pick.  Mass.  333.  In  assumpsit  by  a  physi- 
cian for  his  services,  the  defendant  cannot 
prove  the  professional  character  of  the  plain- 
tiff. 3  Hawks,  No.  C.  105.  Physicians  can 
recover  for  the  services  of  their  students  in 
attendance  upon  their  patients.  4  Wend.  N. 
Y.  200.  Partners  in  the  practice  of  physio 
are  within  the  law  merchant,  which  excludes 
the  jus  accrescendi  between  traders.  9  Cow. 
N.  Y.  631.  If  a  physician  carries  conta- 
gious disease  into  a  family,  on  a  suit  for  ser- 
vices this  may  be  shown  to  reduce  such  claim. 
12  B.  Monr.  Ky.  465. 

PICKERY.  In  Scotch  Law.  Stealing 
of  trifles,  punishable  arbitrarily.  Bell,  Diet.; 
Tait,  Inst.  Theff. 

PICKPOCKET.  A  thief;  one  who  in  a 
crowd  or  in  other  places  steals  from  the  pockets 
or  person  of  another, without  putting  him  in 
fear.  This  is  generally  punished  as  simple 
larceny. 

PIGNORATIO  (Lat.  from  pignorare,  to 
pledge).  In  Civil  Law.  The  obligation  of 
a  pledge.  L.  9.  D.  de  pignor.  Sealing  up  [ob- 
signatio).  A  shutting  up  of  an  animal 
caught  m  one's  field  and  keeping  it  till  the 
expenses  and  damage  have  been  paid  by  its 
master.    New  Decis.  1.  34.  13. 

PIGNORATIVE  CONTRACT.  In 
Civil  Law.  A  contract  by  which  the  owner 
of  an  estate  engages  it  to  another  for  a  sum 


PIGNORIS  CAPriO 


33 


PIRACY 


of  money  and  grants  to  him  and  his  buuces- 
Bors  the  right  to  enjoy  it  until  he  shall  be  re- 
imbursed, voluntarily,  that  sum  of  money. 
Pothier,  Obi. 

PIGNORIS  CAPTIO(Lat.).  In  Roman 
Law.  The  name  given  to  one  of  the  lc<jis 
aciiones  of  the  Roman  law.  It  consisted 
chiefly  in  the  taking  of  a  pledge,  and  v^-as,  in 
fact,  a  mode  of  execution.  It  vras  confined  to 
special  cases  determined  by  positive  law  or 
by  custom,  such  as  taxes,  duties,  rents,  etc., 
and  is  comparable  in  some  respects  to  dis- 
tresses at  common  law.  The  proceeding  took 
place  in  the  presence  of  a  prcetor. 

PIGNUS  (Lat.).  In  Civil  Law.  Pledge, 
or  pawn.  The  contract  of  pledge.  The  right 
in  the  thing  pledged. 

"  It  is  derived,"  says  Gaius,  '*  from  pugiuim,  the 
fist,  because  what  is  delivered  in  pledge  is  delivered 
in  hand."  Dig.  50.  16.  238.  2.  This  is  one  of  seve- 
ral instances  of  the  failure  of  the  Roman  jurists 
when  they  attempted  etymological  explanations  of 
words.  The  elements  of  pignus  {jny)  are  con- 
tained in  the  woxdi  pan{g)-o  and  its  cognate  forms. 
See  Smith,  Diet.  Gr.  &  Rom.  Antiq. 

Though  pledge  is  distinguished  from  mort- 
gage [hypotheca),  as  being  something  de- 
livered in  hand,  while  mortgage  is  good 
without  possession,  yet  a  pledge  {pignus) 
may  also  be  good  without  possession.  Domat, 
Civ.  Law,  b.  iii.  tit.  1,  ^  5  ;  Calvinus,  Lex. 
Pignus  is  properly  applied  to  movables,  hy- 
potheca  to  immovables ;  but  the  distinction 
is  not  always  preserved.  Id. 

PILLAGE.  The  taking  by  violence  of 
private  property  by  a  victorious  army  from 
the  citizens  or  subjects  of  the  enemy.  This 
in  modern  times  is  seldom  .allowed,  and  then 
only  when  authorized  by  the  commanding  or 
chief  officer  at  the  place  where  the  pillage 
is  committed.  The  property  thus  violently 
taken  belongs,  in  general,  to  the  common 
soldiers.  See  Dalloz,  Diet.  ProprUU,  art.  3, 
I  5  ;  Wolff,  \  1201 ;  Booty  ;  Prize. 

PILLORY.  A  wooden  machine,  in  which 
the  neck  of  the  culprit  is  inserted. 

2.  This  punishment  has  in  most  of  the 
states  been  superseded  by  the  adoption  of 
the  penitentiary  system.  See  1  Chitty,  Crim. 
Law,  797.  The  punishment  of  standing  in 
the  pillory,  so  far  as  the  same  was  provided 
by  the  laws  of  the  United  States,  was  abo- 
lished by  the  act  of  congress  of  February  27, 
1839,  s.  5.    See  Barrington,  Stat.  48,  note. 

PILOT.  An  office"  serving  on  board  of 
a  ship  during  the  course  of  a  voyage  and 
having  the  charge  of  the  helm  and  of  the  ship's 
route.  An  officer  authorized  by  law  who  is 
taken  on  board  at  a  particular  place  for  the 
purpose  of  conducting  a  ship  through  a  river, 
road,  or  channel,  or  from  or  into  port. 

Pilots  of  the  second  description  are  esta- 
blished by  legislative  enactments  at  the  prin- 
cipal seaports  in  this  country,  and  have  rights, 
and  are  bound  to  perform  duties,  agreeably  to 
the  provisions  of  the  several  laws  establishing 
them. 

Pilots  have  been  established  in  all  mari- 


time countries.  After  due  trial  and  experi- 
ence of  their  qualifications,  they  are  licensed 
to  offer  themselves  as  guides  in  difficult  navi- 
gation ;  and  they  are  usually,  on  the  other 
hand,  bound  to  obey  the  call  of  a  ship-master 
to  exercise  their  functions.  Abbott,  Shipp 
180 ;  1  Johns.  N.  Y.  305  ;  4  Dall.  Penn.  205 ; 
5  Bos.  &  P.  82 ;  5  Rob.  Adm.  308  ;  G  id.  316  ; 
Laws  of  Oleron,  art.  23 ;  Molloy,  b.  2,  c.  9, 
ss.  3,  7  ;  Weskett,  Ins.  395  ;  Act  of  Cougr.  of 
August  7,  1789,  8.  4;  Merlin,  Kepert.;  Par- 
dessus,  n.  637. 

PILOTAGE.  The  compensation  given 
to  a  pilot  for  conducting  a  vessel  in  or  out  of 
port.    Pothier,  Bcs  Avaries,  n.  147. 

Pilotage  is  a  lien  on  the  ship,  when  the 
contract  has  been  made  by  the  master  or 
quasi-master  of  the  ship  or  some  other  per- 
son lawfully  authorized  to  make  it,  1  Mas. 
C.  C.  508 ;  and  the  admiralty  court  has 
jurisdiction  when  services  have  been  per- 
formed at  sea.  Id.;  10  Wheat.  428  ;  6  Pet. 
682 ;  10  id.  108.  And  see  1  Pet.  Adm.  Dec. 
227. 

PIN-MONEY.  Money  allowed  by  a  man 
to  his  wife  to  spend  for  her  own  personal 
comforts. 

It  has  been  conjectured  that  the  term  pin-money 
has  been  applied  to  signify  the  provision  for  a 
married  woman,  because  anciently  there  was  a  tax 
laid  for  providing  the  English  queen  with  pins. 
Barrington,  Stat.  181. 

When  pin-money  is  given  to  but  not  spent 
by  the  wife,  on  the  husband's  death  it  belongs 
to  his  estate.  4  Viner,  Abr.  133,  Baron  <& 
Feme  (E  a.  8) ;  2  Eq.  Cas.  Abr.  156  ;  2  P. 
Will.  341 ;  3  id.  353  ;  1  Ves.  Ch.  267 ;  2  id, 
190 ;  1  Madd.  Ch.  489,  490. 

In  England  it  was  once  adjudged  that  a 
promise  to  a  wife,  by  the  purchaser,  that  if 
she  would  not  hinder  the  bargain  for  the  sale 
of  the  husband's  lands  he  would  give  her  ten 
pounds,  was  valid,  and  might  be  enforced  by 
an  action  of  assumpsit  instituted  by  husband 
and  wife.    Rolle,  Abr.  21,  22. 

In  the  French  law,  the  term  €pingles,  pins, 
is  used  to  designate  the  present  which  is  some- 
times given  by  the  purchaser  of  an  immovable 
to  the  wife  or  daughters  of  the  seller  to  induce 
them  to  consent  to  the  sale.  This  present  is 
not  considered  as  a  part  of  the  consideration, 
but  a  purely  voluntary  gift.  Diet,  de  Jur. 
Epingles. 

PINT.  A  liquid  measure,  containing  half 
a  quart  or  the  eighth  part  of  a  gallon. 

PIPE.  In  English  Law.  The  name  of 
a  roll  in  the  exchequer,  otherwise  called  the 
Great  Roll.  A  measure,  containing  two  hogs- 
heads :  one  hundred  and  twentj-six  gallons 
is  also  called  a  pipe. 

PIRACY.  In  Criminal  Law.  A  rob- 
bery or  forcible  depredation  on  the  high  seas, 
without  lawful  authority,  done  ammo  fu- 
randi,  in  the  spirit  and  intention  of  universal 
hostilitv.  3  Wheat.  610:  5  id.  153,  163  ; 
3  Wash.  C.  C.  209.  This  is  the  definition  of 
this  offence  by  the  law  of  nations.  1  Kent, 
Comm.  183. 


PIRACY 


332 


PLACE  OF  BUSINESS 


The  word  is  derived  from  nsipa,  deeeptio,  deceit 
or  deception,  or  from  ithpwv,  wandering  up  and 
down,  and  resting  in  no  place,  but  coasting  hither 
and  thither  to  do  mischief.  Ridley,  View,  part  2, 
c.  1,  s.  3. 

2.  Congress  may  define  and  punish  pira- 
cies and  felonies  on  the  high  seas,  and 
offences  against  the  law  of  nations.  Const. 
U.  S.  art.  1,  s.  7,  n.  10 ;  3  Wheat.  336 ;  5 
id.  76,  153,  184.  In  pursuance  of  the  au- 
thority thus  given  by  the  constitution,  it  was 
declared  by  the  act  of  congress  of  April  30, 
1790,  s.  8,  1  Story,  U.  S.  Laws,  84,  that  mur- 
der or  robbery  committed  on  the  high  seas, 
or  in  any  river,  haven,  or  bay  out  of  the 
jurisdiction  of  any  particular  state,  or  any 
offence  which  if  committed  within  the  body 
of  a  county  would  by  the  laws  of  the  United 
States  be  punishable  with  death,  should  be 
adjudged  to  be  piracy  and  felony,  and  punish- 
able with  death.  It  was  further  declared  that 
if  any  captain  or  mariner  should  piratically 
and  feloniously  run  away  with  a  vessel,  or  any 
goods  or  merchandise  of  the  value  of  fifty- 
dollars,  or  should  yield  up  such  vessel  vol- 
untarily to  pirates,  or  if  any  seaman  should 
forcibly  endeavor  to  hinder  his  commander 
from  defending  the  ship  or  goods  committed 
to  his  trust,  or  should  make  revolt  in  the 
ship  every  such  offender  should  be  adjudged 
a  pirate  and  felon,  and  be  punishable  with 
death.  Accessaries  before  the  fact  are  pun- 
ishable as  the  principal ;  those  after  the  fact, 
with  fine  and  imprisonment. 

3>.  By  a  subsequent  act,  passed  March  3, 
1819,  3  Story,  U.  S.  Laws,  1739,  made  per- 
petual by  the  act  of  May  15,  1820,  1  Story, 
U.  S.  Laws,  1798,  congress  declared  that  if 
any  person  upon  the  high  seas  should  commit 
the  crime  of  piracy  as  defined  by  the  law 
of  nations,  he  should,  on  conviction,  suffer 
death. 

And  again,  by  the  act  of  May  15,  1820,  s. 
3, 1  Story,  U.  S.  Laws,  1798,  congress  declared 
that  if  any  person  should  -upon  the  high 
eeas,  or  in  any  open  roadstead,  or  in  any  harbor, 
haven,  basin,  or  bay,  or  in  any  river  where 
the  tide  ebbs  and  flows,  commit  the  crime  of 
robbery  in  or  upon  any  ship  or  vessel,  or 
upon  any  of  the  ship's  company  of  any  ship 
or  vessel,  or  the  lading  thereof,  such  person 
should  be  adjudged  to  be  a  pirate,  and  suffer 
death.  And  if  any  person  engaged  in  any 
piratical  cruise  or  enterprise,  or  being  of  the 
crew  or  ship's  company  of  any  piratical  ship 
or  vessel,  should  land  from  such  ship  or 
vessel,  and,  on  shore,  should  commit  robbery, 
such  person  should  be  adjudged  a  pirate,  and 
Buffer  death.  Provided  that  the  state  in 
which  the  offence  may  have  been  committed 
fihould  not  be  deprived  of  its  jurisdiction 
over  the  same,  when  committed  within  the 
body  of  a  county,  and  that  the  courts  of  the 
United  States  should  have  no  jurisdiction  to 
try  such  offenders  after  conviction  or  ac- 

5uittal,  for  the  same  offence,  in  a  state  court, 
'he  fourth  and  fifth  sections  of  the  last-men- 
tioned act  declare  persons  engaged  in  the 
f'ttve-trade,  or  in  forcibly  detaining  a  free 


negro  or  mulatto  and  carrying  him  in  any 
ship  or  vessel  into  slavery,  piracy,  punish- 
able with  death.  See  1  Kent,  Comm.  183 ; 
Beaussant,  Code  Maritime,  t.  1,  p.  244; 
Dalloz,  Diet.  Supp. ;  Dougl.  613  ;  Park,  Ins. 
Index  ;  Bacon,  Abr. ;  16  Viner,  Abr.  346  ; 
Ayliffe,  Pand.  42;  11  Wheat.  39  ;  1  Gall.  C. 
C.  247,  524 ;  3  Wash.  C.  C.  209,  240 ;  1  Pet. 
C.  C.  118,  121. 

In  Torts.  By  piracy  is  understood  the 
plagiarisms  of  a  book,  engraving,  or  other 
work  for  which  a  copyright  has  been  taken 
out. 

When  a  piracy  has  been  made  of  such  a 
work,  an  injunction  will  be  granted.  4  Ves. 
Ch.  681 ;  5  id.  709 ;  12  id.  270.  See  Copy- 
right. 

PIRATE.  A  sea-robber,  who,  to  enrich 
himself,  by  subtlety  or  open  force,  setteth 
upon  merchants  and  others  trading  by  sea, 
despoiling  them  of  their  loading,  and  some- 
times bereaving  them  of  life  and  sinking 
their  ships.  Ridley,  View,  pt.  2,  c.  1,  s.  3. 
One  guilty  of  the  crime  of  piracy.  Merlin, 
Repert.  See,  for  the  etymology  of  this  word, 
Bacon,  Abr.  Piracy. 

PIRATICALLY.  In  Pleading.  This 
is  a  technical  word,  essential  to  charge  the 
crime  of  piracy  in  an  indictment,  which 
cannot  be  supplied  by  another  word  or  any 
circumlocution.  Hawkins,  PI.  Cr.  b.  1,  c. 
37,  s.  15;  Coke,  3d  Inst.  112;  1  Chitty, 
Crim.  Law,  *244. 

PISCARY.  The  right  of  fishing  in  the 
waters  of  another.  Bacon,  Abr. ;  5  Comyns, 
Dig.  366.    See  Fishery. 

PISTAREEN.  A  small  Spanish  coin. 
It  is  not  made  current  by  the  laws  of  the 
United  States.    10  Pet.  618. 

PIT.  A  hole  dug  in  the  earth,  which 
was  filled  with  water,  and  in  which  women 
thieves  were  drowned,  instead  of  being  hung. 
The  punishment  of  the  pit  was  formerly 
common  in  Scotland. 

PIT  AND  GALLOWS  (Law  Lat. 
fossa  et  f urea).  In  Scotch  Law.  A  pri- 
vilege of  inflicting  capital  punishment  for 
theft,  given  by  king  Malcolm,  by  which  a 
woman  could  be  drowned  in  a  pit  [fossa) 
or  a  man  hanged  on  a  gallows  [furca). 
Bell,  Diet. ;  Stair,  Inst.  277,  |  62. 

PLACE.    See  Venue. 

PLACE  OF  BUSINESS.  The  place 
where  a  man  usually  transacts  his  affairs  or 
business. 

2.  When  a  man  keeps  a  store,  shop,  count- 
ing-room, or  office,  independently  and  dis- 
tinctly from  all  other  persons,  that  is  deemed 
his  place  of  business  ;  and  when  he  usually 
transacts  his  business  at  the  counting-house, 
oflQce,  and  the  like,  occupied  and  used  by 
another,  that  will  also  be  considered  hiaJ 
place  of  business,  if  he  has  no  independent] 
place  of  his  own.    But  when  he  has  no  par- 
ticular right  to  use  a  place  for  such  privat 
purpose,  as  in  an  insurance-ofiice,  an  ex*] 
change-room,  a  banking-room,  a  post-office, 


PLACITA  COMMUNIA 


333 


•iJ^LAN 


and  the  like,  where  persons  generally  resort, 
these  will  not  be  considered  as  the  party's 
place  of  business,  alth()u<;h  he  may  occasion- 
ally or  transiently  transact  ljusiness  there. 

I  Pet.  582  ;  2  id.  121 ;  10  Johns.  N.  Y.  501 ; 

II  id.  231 ;  16  Pick.  Mass.  392. 

3.  It  is  a  general  rule  that  a  notice  of  the 
non-acceptance  or  non-payment  of  a  bill,  or 
of  the  non-payment  of  a  note,  may  be  sent 
either  to  the  domicil  or  place  of  business  of 
the  person  to  be  affected  by  such  notice  ;  and 
the  fact  that  one  is  in  one  town  and  the  other 
in  the  other  will  make  no  difference,  and  the 
liolder  has  his  election  to  send  to  either.  A 
notice  to  partners  may  be  left  at  the  place 
of  business  of  the  firm  or  of  any  one  of  the 
partners.   Story,  Prom.  Notes,  ^  312. 

PLACITA  COMMUNIA  (Lat.).  Com- 
mon pleas.  All  civil  actions  between  subject 
and  subject.  3  Sharswood,  Blackst.  Comm. 
38,  40'^ ;  Cowel,  Plea.    See  Placitum. 

PLACITA  CORONA  (Lat.).  Pleas  of 
the  crown.  All  trials  for  crimes  and  misde- 
meanors, wherein  the  king  is  plaintiff,  on 
behalf  of  the  people.  3  Sharswood,  Blackst. 
Comm.  40*  ;  Cowel,  Flea. 

PLACITA  JURIS  (Lat.).  Arbitrary 
rules  of  law.  Bacon,  Law  Tr.  73  ;  Bacon, 
Max.  Reg.  12. 

PLACITUM  (Lat.  from placere).  In  Civil 
Law.  Any  agreement  or  bargain.  A  law ; 
a  constitution  or  rescript  of  the  emperor ; 
the  decision  of  a  judge  or  award  of  arbitra- 
tors. Vicat,  Voc.  Jur.  ;  Calvinus,  Lex. ; 
Dupin,  Notions  sur  le  Droit. 

In  Old  English  Law  (Ger.  plats,  Lat. 
plateis,  i.e.  fields  or  streets).  An  assembly 
of  all  degrees  of  men,  where  the  king  pre- 
sided and  they  consulted  about  the  great 
affairs  of  the  kingdom :  first  held,  as  the 
name  would  show,  in  the  fields  or  street.  Cowel. 

So  on  the  continent.  Hinc.  de  Ordine 
Palatii,  c.  29  ;  Bertinian,  Annals  of  France 
in  the  year  767;  Const.  Car.  Mag.  cap.  ix. ; 
Hinc.  Ep^st.  197,  227  ;  Laws  of  the  Longo- 
bards,  passim. 

A  lord's  court.  Cowel. 

An  ordinary  court.  Placita  is  the  style  of 
the  English  courts  at  the  beginning  of  the 
record  at  nisi  prius :  in  this  sense,  placita 
are  divided  into  pleas  of  the  crown  and  com- 
mon pleas,  which  see.  Cowel. 

A  trial  or  suit  in  court.    Cowel ;  Jacobs. 

A  fine.  Black  Book  of  Exchequer,  lib.  2, 
tit.  13;  1  Hen.  I.  cc.  12,  13. 

A  plea.  This  word  is  nomen  generalissi- 
mum,  and  refers  to  all  the  pleas  in  the  case. 
1  Saund.  388,  n.  G;  Skinn.  554;  Carth.  334; 
Yelv.  65.  By  placitum  is  also  understood 
the  subdivisions  in  abridgments  and  other 
works,  where  the  point  decided  in  a  case  is 
set  down  separately,  and,  generally,  num- 
bered. In  citing,  it  is  abbreviated  as  follows: 
Viner,  Abr.  Abatement,  pi.  3. 

Placitum  nominatum  is  the  day  appointed 
for  a  criminal  to  appear  and  plead. 
.    Placitum  fractum.    A  day  past  or  lost  to 
the  defendant.    1  Hen.  I.  c.  59. 


PLAGIARISM.  The  act  of  appropr! 
ating  the  ideas  and  language  of  another  and 
passing  them  for  one's  own. 

When  this  amounts  to  piracy,  the  party 
who  has  been  guilty  of  it  will  be  enjoined 
when  the  original  author  has  a  copyright. 
See  Copyright;  Piracy;  Quotation;  Par- 
dessus,  Dr.  Com.  n.  109. 

PLAGIARIUS  (Lat.).    In  Civil  Law. 

He  who  fraudulently  concealed  a  freeman  or 
slave  who  belonged  to  another. 

The  ofience  itself  was  called  plar/ium. 

It  differed  from  larceny  or  theft  in  this,  that  lar- 
ceny always  implies  that  the  guilty  party  intended 
to  make  a  jjrofit,  whereas  the  platjiariuH  did  not 
intend  to  make  any  profit.  Dig.  48.  15.  6 ;  Code, 
9.  20.  9,  15. 

PLAGIUM  (Lat.).  Man-stealing;  kid- 
napping. This  ofience  is  the  crimen  pla(/ii 
of  the  Romans.    Alison,  Crim.  Law,  280,  281. 

PLAINT.  In  English  Law.  The  ex- 
hibiting of  any  action,  real  or  personal,  in 
writing.  The  party  making  his  plaint  ia 
called  the  plaintiff. 

PLAINTIFF  [Yv.  pleyntife).  He  who 
complains.  He  who,  in  a  personal  action, 
seeks  a  remedy  for  an  injury  to  his  rights. 
3  Sharswood,  Blackst.  Comm.  25  ;  Hammond, 
Part.;  1  Chitty,  Plead.;  Chitty,  Pract.;  1 
Comyns,  Dig.  36,  205,  308. 

The  legal  plaintiff  is  he  in  whom  the  legal 
title  or  cause  of  action  is  vested. 

The  equitable  plaintiff  is  he  who,  not  having 
the  legal  title,  yet  is  in  equity  entitled  to  the 
thing  sued  for.  For  example :  when  a  suit 
is  brought  by  Benjamin  Franklin  for  the  use 
of  Robert  Morris,  Benjamin  Franklin  is  the 
legal,  and  Robert  Morris  the  equitable,  plain- 
tiff. This  is  the  usual  manner  of  bringing 
suits  when  the  cause  of  action  is  not  assign- 
able at  law  but  is  so  in  equity.  See  Bouvier, 
Inst.  Index,  Parties. 

The  word  plaintiff  occurring  alone  means 
the  plaintiff  on  record,  not  the  real  or  equi- 
table plaintiff.  After  once  naming  the  plain- 
tiff in  pleading,  he  may  be  simply  called  the 
plaintiff.  1  Chitty,  Plead.  Green  ed.  2G6 ; 
9  Paige,  Ch.  N.  Y.  226 ;  4  Hill,  N.  Y.  468  • 
5  id.  523,  548 ;  7  Term,  50. 

PLAINTIFF  IN  ERROR.  A  party 
who  sues  out  a  writ  of  error ;  and  this,  whe- 
ther in  the  court  below  he  was  plaintiff  or 
defendant. 

PLAN.  The  delineation  or  design  of  a 
city,  a  house  or  houses,  a  garden,  a  vessel, 
etc.,  traced  on  paper  or  other  substance,  re- 
presenting the  position  and  the  relative  pro- 
portions of  the  different  parts. 

2.  When  houses  are  built  by  one  person 
agreeably  to  a  plan,  and  one  of  them  is  sold 
to  a  person,  with  windows  and  doors  in  it,  the 
owner  of  the  others  cannot  shut  up  those 
windows,  nor  has  his  grantee  anv  greater 
right.  1  Price,  Exch.  27  ;  2  Ry.  &  M.  24 : 
1  Lev.  122;  2  Saund.  114,  n.  4;  1  Mood.  & 
M.  396  ;  9  Bingh.  305  ;  1  Leigh,  Nisi  P.  559. 
See  12  Mass.  159  ;  Hammond,  Nisi  P.  202 ;  2 
Hilliard,  Real  Prop.  c.  12,  n.  6-12;  Comyns. 


PLANTATIONS 


334 


PLEA 


"Dig.  Action  on  the  Case  for  a  Nuisance  (A) ; 
Ancient  Lights  ;  Windows. 

PLANTATIONS.  Colonies ;  depend- 
encies.   1  Blackstone,  Comm.  107. 

In  England,  this  word,  as  it  is  used  in  stat.  12 
Car.  II.  c.  1  8,  is  never  applied  to  any  of  the  Brit- 
ish dominions  in  Europe,  but  only  to  the  colonies 
in  the  West  Indies  and  America.  1  Marshall,  Ins. 
b.  1,  c.  3,  §  2,  p.  64. 

PLAT.  A  map  of  a  piece  of  land,  on 
which  are  marked  the  courses  and  distances 
of  the  different  lines,  and  the  quantity  of 
land  it  contains. 

Such  a  plat  may  be  given  in  evidence  in 
ascertaining  the  position  of  the  land  and 
what  is  included,  and  may  serve  to  settle  the 
figure  of  a  survey  and  correct  mistakes.  5 
T.  B.  Monr.  Ky.  160.  See  17  Mass.  211;  5 
Me.  219  ;  7  id.  61 ;  4  Wheat.  444;  14  Mass. 
149. 

PLEA.  In  Equity.  A  special  answer 
showing  or  relying  upon  one  or  more  things 
as  a  cause  why  the  suit  should  be  either  dis- 
missed, or  delayed,  or  barred.  Mitford,  Eq. 
Plead.  Jeremy  ed.  219 ;  Cooper,  Eq.  Plead. 
223  ;  Story,  Eq.  Plead.  ^  649. 

2.  The  modes  of  making  defence  to  a  bill 
in  equity  are  said  to  be  by  demurrer,  which 
demands  of  the  court  whether  from  the  mat- 
ter apparent  from  the  bill  the  defendant  shall 
answer  at  all ;  hj  plea,  which,  resting  on  the 
foundation  of  new  matter  offered,  demands 
whether  the  defendant  shall  answer  further ; 
by  answer,  which  responds  generally  to  the 
charges  of  the  bill ;  by  disclaimer,  which 
denies  any  interest  in  the  matters  in  question. 
Mitford,  Eq.  Plead.  Jeremy  ed.  13  ;  2  Stor. 
C.  C.  59  ;  Story,  Eq.  Plead.  §  437.  Pleas  are 
said  to  be  pure  which  rely  upon  foreign  mat- 
ter to  discharge  or  stay  the  suit,  and  ano- 
malous or  negative  which  consist  mainly  of 
denials  of  the  substantial  matters  set  forth 
in  the  bill.  Story,  Eq.  Plead.  II  651,  667;  2 
Daniell,  Chanc.  Pract.  97,  110 ;  Beames,  Eq. 
PL  123  ;  Adams,  Eq.  236. 

Pleas  to  the  jurisdiction  assert  that  the 
court  before  which  the  cause  is  brought  is  not 
the  proper  court  to  take  cognizance  of  the 
matter. 

3.  Pleas  to  the  person  may  be  to  the  per- 
son of  the  plaintiff  or  defendant.  Those  of 
the  former  class  are  mainly  outlawry,  excom- 
munication, popish  recusant  convict,  which  are 
never  pleaded  in  America  and  very  rarely 
now  in  England ;  attainder,  which  is  now 
seldom  pleaded,  2  Atk.  Ch.  399  ;  alienage, 
which  is  not  a  disability  unless  the  matter 
respect  lands,  when  the  alien  may  not  hold 
them,  or  he  be  an  alien  enemy  not  under 
license,  2  Ves.  &  B.  Ch.  Ir.  323 ;  infancy,  cover- 
ture, and  idiocy,  which  are  pleadable  as  at 
law  (see  Abatement)  ;  bankruptcy  siml  insol- 
vency, in  which  case  all  the  facts  necessary  to 
establish  the  plaintiff  as  a  legally  declared 
bankrupt  must  be  set  forth,  3  Mer.  Ch.  667, 
though  not  necessarily  as  of  the  defendant's 
own  knowledge,  Younge,  Ch.  331 ;  4  Beav. 
Rolls,  554 ;  1  Younge  &  C.  Ch.  39  ;  wmit  of 
character  in  which  he  sues,  as  that  he  is  not 


an  administrator,  2  Dick,  Ch,  510  ;  1  Cox,  Ch 
198  ;  is  not  heir,  2  Ves.  &  B.  Ch.  Ir.  159  ;  2 
Brown,  Ch.  143  ;  3  id.  489  ;  is  not  a  creditor,  2 
Sim.  &  S.  Ch.  274 ;  is  not  a  partner,  6  Madd. 
Ch.  61,  as  he  pretends  to  be ;  that  the  plain- 
tiff named  is  a  fictitious  person,  or  was  dead 
at  the  commencement  of  the  suit.  Story,  Eq. 
Plead.  §  727.  Those  to  the  person  of  the  de- 
fendant may  show  that  the  defendant  is  not 
the  person  he  is  alleged  to  be,  or  does  not 
sustain  the  character  given  by  the  bill,  6 
Madd.  Ch.  61;  Rep.  temp.  Finch,  334,  or 
that  he  is  bankrupt,  to  require  the  assignees 
to  be  joined.  Story,  Eq.  Plead.  ^  732.  These 
pleas  to  the  person  are  pleas  in  abatement, 
or,  at  least,  in  the  nature  of  pleas  in  abate- 
ment. 

4.  Pleas  to  the  bill  or  the  frame  of  the  bill 
object  to  the  suit  as  framed,  or  contend  that  it 
is  unnecessary.  These  may  be — the  pendency 
of  another  suit,  which  is  analogous  to  the 
same  plea  at  law  and  is  governed  in  most  re- 
spects by  the  same  principles.  Story,  Eq. 
Plead.  ^36;  2  Mylne  &  C.  602 ;  1  PhilL 
Ch.  82  ;  1  Ves.  Ch.  544 ;  4  id.  357  ;  1  Sim.  & 
S.  Ch.  491 ;  Mitford,  Eq.  Plead.  Jeremy  ed. 
248  ;  see  Lis  Pendens  ;  and  the  other  suit 
must  be  in  equity,  and  not  at  law,  Beames, 
Eq.  Plead.  146-148;  loant  of  p)roper  parties, 
which  goes  to  both  discovery  and  relief,  where 
both  are  prayed  for.  Story,  Eq.  Plead.  ^  745  ; 
see  3  Younge  &  C.  Ch.  447,  but  not  to  a  bill 
of  discovery  merely,  2  Paige,  Ch.  N.  Y.  280; 
3  id.  222  ;  3  Cranch,  220  ;  a  multiplicity  of 
suits,  1  P.  Will.  Ch.  428;  2  Mas.  C.  C.  190; 
multifariousness,  which  should  be  taken  by 
way  of  demurrer,  when  the  joining  or  con- 
fession of  the  distinct  matters  appears  from 
the  face  of  the  bill,  as  it  usually  does.  Story, 
Eq.  Plead.  §  271. 

Pleas  in  bar  rely  upon  a  bar  created  ^y 
statute :  as,  the  Statute  of  Limitations,  1  Sim. 

6  S.  Ch.  4;  2  Sim.  Ch.  45  ;  3  Sumn.  C.  C. 
152 ;  which  is  a  good  plea  in  equity  as  well 
as  at  law,  and  with  similar  exceptions,  Cooper, 
Eq.  Plead.  253  ;  see  Limitations,  Statute 
OF ;  the  Statute  of  Frauds,  where  its  pro- 
visions apply,  1  Johns.  Ch.  N.  Y.  425 ;  2  id. 
275  ;  4  Ves.  Ch.  24,  720 ;  2  Brown,  Ch.  559  ; 
or  some  other  public  or  private  statute,  2 
Story,  Eq.  Jur.  |  768 ;  matter  of  record  or  as 
of  record  in  some  court,  as,  a  common  re- 
covery, 1  P.  Will.  754;  2  Freem.  Ch.  180;  1 
Vern.  Ch.  13  ;  a  judgment  at  law,  1  Keen, 
456  ;  2  Mylne  &  C.  Ch.  602  ;  Story,  Eq.  Plead. 
§  781,  n. ;  the  sentence  or  judgment  of  a 
foreign  court  or  a  court  not  of  record,  12 
Clark  &  F.  IIou.  L.  368 ;  14  Sim.  Ch.  265 ; 
3  Hare,  Ch.  100;  1  Younge  &  C.  Ch.  464, 
especially  where  its  jurisdiction  is  of  a  pe- 
culiar or  exclusive  nature,  12  Ves.  Ch.  307 ; 
Ambl.  Ch.756;  2  How.  619,  with  limitations 
in  case  of  fraud,  1  Ves.  Ch.  284 ;  Story,  Eq. 
Plead.  ^  788,  or  a  decree  of  the  same  or 
another  court  of  equity,  Qa^.tcmp.  Talb.  217; 

7  Johns.  Ch.  N.  Y.  1 ;  2  Sim.  &  S.  Ch.  464; 
2  Younge  &  C.  Ch.  43  ;  matters  purely  in  paiSt 
in  which  case  the  pleas  may  go  to  discovery, 
relief,  or  either,  both,  or  a  part  of  either,  ol 


PLFa 


335 


PLEA 


which  the  principal  (though  not  the  only) 
pleas  are :  account  stated  or  settled,  2  Atk. 
Ch.  1 ;  13  Price,  Fxch.  767  ;  7  Paige,  Ch.  N. 
Y.  573  ;  1  Mylne&  K.  231 ;  accord  and  satis- 
faction, 1  Hale,  Ch.  564 ;  award,  2  Ves.  &  B. 
Ch.  Ir.  764 ;  pu.-chase  for  valuable  considera- 
tion, 2  Sumn.  J.  C.  507 ;  2  Younge  &  C.  Ch. 
457;  release,  3  P.  Will.  315;  lapse  of  time, 
analogous  jo  the  Statute  of  Limitations,  1 
Ves.  Ch.  254 ;  10  id.  466  ;  1  Younge  &  C.  Ch. 
432,  453 ;  2  Jac.  &  W.  Ch.  1 ;  1  Hare,  Ch.  594 ; 
1  Russ.&  M.  Ch.  453;  2  Younge  &  C.  Ch. 
58;  J  Johns.  Ch.  N.  Y.  46  ;  10  Wheat.  152  ; 
1  Sfihoales  &  L.  Ir.  Ch.  721 ;  6  Madd.  Ch.  61 ; 
5  Paige,  Ch.  N.  Y.  273  ;  5  id.  26  ;  7  id.  62 ; 
title  in  the  defendant.  Story,  Eq.  Plead,  g 
812. 

5.  The  same  pleas  may  be  made  to  bills 
seeking  discovery  as  to  those  seeking  relief ; 
but  matter  vi'hich  constitutes  a  good  plea  to 
a  bill  for  relief  does  not  necessarily  to  a  bill 
for  discovery  merely.  See  Story,  Eq.  Plead. 
I  816 ;  Mitford,  Eq.  Plead.  Jeremy  ed.  281, 
282.  The  same  kind  of  pleas  may  be  made 
to  bills  not  original  as  to  original  bills,  in 
many  cases,  according  to  their  respective 
natures.  Peculiar  defences  to  each  may, 
however,  be  sometimes  urged  by  plea.  Story, 
Eq.  Plead.  ^  826  ;  Mitford,  Eq.  Plead.  Jeremy 
ed.  288. 

Effect  of  a  plea.  A  plea  may  extend  to 
the  whole  or  a  part,  and  if  to  a  part  only 
must  express  which  part,  and  an  answer  over- 
rules a  plea  if  the  two  conflict.  3  Younge  & 
C.  Ch.  683  ;  3  Cranch,  220.  The  plea  may  be 
accompanied  by  an  answer  fortifying  it  with 
a  protest  against  waiver  of  the  plea  thereby. 
Story,  Eq.  Plead.  §  695.  A  plea  or  argument 
may  be  allowed,  in  which  case  it  is  a  full  bar 
to  so  much  of  the  bill  as  it  covers,  if  true, 
Mitford,  Eq.  Plead.  Jeremy  ed.  301 ;  or  the 
benefit  of  it  may  be  saved  to  the  hearing, 
which  decides  it  valid  so  far  as  then  appears, 
but  allows  matter  to  be  disclosed  in  evidence 
to  invalidate  it,  or  it  may  be  ordered  to  stand 
for  an  answer,  which  decides  that  it  may  be 
a  part  of  a  defence,  4  Paige,  Ch.  N.  Y.  124, 
but  is  not  a  full  defence,  that  the  matter  has 
been  improperly  offered  as  a  plea,  or  is  not 
sufficiently  fortified  by  answer,  so  that  the 
truth  is  apparent.  3  Paige,  Ch.  N.  Y.  459. 
See,  generally.  Story,  Eq.  Plead.;  Mitford, 
Eq,  Plead,  by  Jeremy;  Beames,  Eq.  Plead.; 
Cooper,  Eq.  Plead.;  Blake,  Chanc.  Pract. ; 
Daniell,  Chanc.  Pract. ;  Barbour,  Chanc. 
Pract. ;  Bouvier,  Inst. 

At  Law.  The  defendant's  answer  by  mat- 
ter of  fact  to  the  plaintiff's  declaration,  as 
distinguished  from  a  demurrer,  which  is  an 
answer  by  matter  of  laio. 

6.  It  includes  as  well  the  denial  of  the  truth 
of  the  allegations  on  which  the  plaintiff  relies,  as 
the  statement  of  facts  on  which  the  defendant  re- 
lies. In  an  ancient  use  it  denoted  atjtion,  and 
is  still  used  sometimes  in  that  sense :  as,  "  sum- 
moned to  answer  in  a  plea  of  trespass."  Stephen, 
Plead.  38,  39,  n.;  Warren,  Law  Stud.  272,  note  w; 
Oliver,  Prec.  97.  In  a  popular,  and  not  legal,  sense, 
the  word  is  used  to  denote  a  forensic  argument.  It 
was  strictly  applicable  in  a  kindred  sense  when  the 


pleadings  were  conducted  orally  by  the  couneel. 
Stephen,  Plead,  App.  n.  1. 

Pleas  are  either  dilaionj,  which  tend  to 
defeat  the  particular  action  to  which  they 
apply  on  account  of  its  being  brought  before 
the  wrong  court  by  or  against  the  wrong  per- 
son or  in  an  improper  form,  or  peremptory, 
which  impugn  the  right  of  action  altogether, 
which  answer  the  plaintiff's  allegations  of 
right  conclusively.  Pleas  are  also  said  to  be 
to  the  jurisdiction  of  the  court,  in  suspension 
of  the  action,  in  abatement  of  the  writ,  in 
bar  of  the  action.  The  first  three  classes 
are  dilatory,  the  last  peremptory.  Stephen, 
Plead.  63;  1  Chitty,  Plead.  425;  Lawes, 
Plead.  36. 

Pleas  are  of  various  kinds.  In  abatement. 
See  Abatement.  In  avoidance,  called,  also, 
confession  and  avoidance,  which  admits,  in 
words  or  in  effect,  the  truth  of  the  matters 
contained  in  the  declaration,  and  alleges  some 
new  matter  to  avoid  the  effect  of  it  and  show 
that  the  plaintiff  is,  notwithstanding,  not  en- 
titled to  his  action.  1  Chitty,  Plead.  540 ; 
Lawes,  Plead.  122.  Every  allegation  made 
in  the  pleadings  subsequent  to  the  declara- 
tion which  does  not  go  in  denial  of  what  is 
before  alleged  on  the  other  side  is  an  allega- 
tion of  new  matter.  Gould,  Plead,  ch.  iii.  ^  195. 

'7,  Pleas  in  bar  deny  that  the  plaintiff  has 
any  cause  of  action.  1  Chitty,  Plead.  407; 
Coke,  Litt.  303  b.  They  either  conclude  the 
plaintiff  by  matter  of  estoppel,  show  that  he 
never  had  any  cause  of  action,  or,  admitting 
that  he  had,  insist  that  it  is  determined  by 
some  subsequent  matter.  1  Chitty,  Plead. 
407  ;  Stephen,  Plead.  70 ;  Britt.  92.  They 
either  deny  all  or  some  essential  part  of  the 
averments  in  the  declaration,  in  which  case 
they  are  said  to  traverse  it,  or,  admitting  them 
to  be  true,  allege  new  facts  which  obviate 
and  repel  their  legal  effect,  in  which  case 
they  are  said  to  confess  and  avoid.  Stephen, 
Plead.  70.  The  term  is  often  used  in  a  re- 
stricted sense  to  denote  what  are  with  pro- 
priety called  special  pleas  in  bar.  These 
pleas  are  of  two  kinds :  the  general  issue,  and 
special  pleas  in  bar.  The  general  issue  denies 
or  takes  issue  upon  all  the  material  allega- 
tions of  the  declaration,  thus  compelling  the 
plaintiff  to  prove  all  of  them  that  are  essen- 
tial to  support  his  action.  There  is,  however, 
a  plea  to  the  action  which  is  not  strictly 
either  a  general  issue  or  a  special  plea  in 
bar,  and  which  is  called  a  special  issue, 
which  denies  only  some  particular  part  of 
the  declaration  which  goes  to  the  gist  of  the 
action.  It  thus,  on  the  one  hand,  denies 
less  than  does  the  general  issue,  and,  on  the 
other  hand,  is  distinguished  from  a  "special 
plea  in  bar"  in  this, — that  the  latter  univer- 
sally advances  neio  matter,  upon  which  the 
defendant  relies  for  his  defence,  which  a 
special  issue  never  does ;  it  simply  denies. 
Lawes,  Plead.  110, 112,  113, 145  ;  Coke,  Litt. 
126  a;  Gould,  Plead,  ch.  ii.  §  38,  ch.  vi.  |  8. 
The  matter  which  ought  to  be  so  pleaded  is 
now  very  generally  given  in  evidence  under 
the  general  issue.    1  Chitty,  Plead.  415. 


PLEA 


336 


8.  Special  pleas  in  bar  admit  the  facts 
alleged  in  the  declaration,  but  avoid  the 
action  by  matter,  which  the  plaintiff  would 
not  be  bound  to  prove  or  dispute  in  the  first 
instance  on  the  general  issue.  1  Chitty, 
Plead.  442  ;  Ld.  Raym.  88.  They  are  very 
various,  according  to  the  circumstances  of 
the  defendant's  case :  as,  in  personal  action 
the  defendant  may  plead  any  special  matter 
in  denial,  avoidance,  discharge,  excuse,  or 
justification  of  the  matter  alleged  in  the 
declaration,  which  destroys  or  bars  the  plain- 
tiff's action ;  or  he  may  plead  any  matter 
which  estops  or  precludes  him  from  averring 
or  insisting  on  any  matter  relied  upon  by 
the  plaintiff  in  his  declaration.  The  latter 
sort  of  pleas  are  called  pleas  in  estoppel.  In 
real  actions,  the  tenant  may  plead  any 
matter  which  destroys  and  bars  the  demand- 
ant's title :  as,  a  general  release.  Stephen, 
Plead.  115,  116. 

The  general  qualities  of  a  plea  in  bar  are — 
first,  that  it  be  adapted  to  the  nature  and 
form  of  the  action,  and  also  conformable 
to  the  count.  Coke,  Litt.  303  a;  285  h; 
Bacon,  Abr.  Pleas  (I) ;  1  Rolle,  216.  Second, 
that  it  answers  all  it  assumes  to  answer, 
and  no  more.  Coke,  Litt.  303  a;  Comyns, 
Dig.  Pleader  (E  1,  36) ;  1  Saund.  28,  nn.  1,  2, 
3 ;  2  Bos.  &  P.  427 ;  3  id.  174.  Third,  in 
the  case  of  a  special  plea,  that  it  confess  and 
admit  the  fact.  3  Term,  298  ;  1  Salk.  394 ; 
Garth.  380 ;  1  Saund.  28,  n.,  14,  n.  3 ;  10 
Johns.  N.  Y.  289.  Fourth,  that  it  be  single. 
Coke,  Litt.  307;  Bacon,  Abr.  Pleas  (K  1, 
2) ;  2  Saund.  49,  50  ;  Plowd.  150  d.  Fifth, 
that  it  be  certain.  Comyns,  Dig.  Pleader 
(E  5-11,  C  41).  See  Certainty;  Pleading. 
Sixth,  it  must  be  direct,  positive,  and  not 
argumentative.  See  6  Cranch,  126  ;  9  Johns. 
N.  Y.  313.  Seventh,  it  must  be  capable  of 
trial.  Eighth,  it  must  be  true  and  capable 
of  proof. 

9.  The  parts  of  a  plea  are— first,  the 
title  of  the  court.  Second,  the  title  of  the 
term.  Third,  the  names  of  the  parties  in 
the  margin.  These,  however,  do  not  consti- 
tute any  substantial  part  of  the  plea.  The  sir- 
names  only  are  usually  inserted,  and  that  of 
the  defendant  precedes  the  plaintifi''s :  as, 
*'  Koe  vs.  Doe."  Fourth,  the  commence- 
ment, which  includes  the  statement  of  the 
name  of  the  defendant,  the  appearance,  the 
defence,  see  Defence,  the  actio  non,  see 
Actio  Non.  Fifth,  the  body,  which  may 
contain  the  inducement,  the  protestation, 
see  Protestation,  ground  of  defence,  qua; 
est  eadtin,  the  traverse.  Sixth,  the  conclusion. 

Dilatory  pleas  go  to  destroy  the  particular 
action,  but  do  not  affect  the  right  of  action 
in  the  plaintiff,  and  hence  delay  the  decision 
of  the  cause  upon  its  merits.  Gould,  Plead, 
ch.  ii.  ^  33.  This  class  includes  pleas  to  the 
jurisdiction,  to  the  disability  of  the  parties, 
and  all  pleas  in  abatement.  All  dilatory 
pleas  must  be  pleaded  MMth  the  greatest 
certainty,  must  contain  a  distinct,  clear,  and 
positive  averment  of  all  material  facts,  and 
must,  in  general,  enable  the  plaintiff  to  cor- 


r)leaded  to. 
.  ment  ;  Juris 


demand  of 
has  been 
.  Such 
•  \e  like, 
md  or 
t  ex- 
•ff'a 
•h 


rect  the  deficiency 
Chitty,  Plead.  365.  . 

DICTION. 

Pleas  in  discharge  a«. 
the  plaintiff,  and  show 
discharged  by  some  matt 
are  pleas  of  judgment,  relcc 

10.  Pleas  in  excuse  admi 
complaint  stated  in  the  decla 
cuse  the  non-compliance  with  . 
claim,  or  the  commission  of  the 
he  complains,  on  account  of  the  a  ^ 
having  done  all  in  his  power  to  s^ 
former,  or  not  having  been  the  c 
author  of  the  latter.    A  plea  of  tende. 
example  of  the  former,  and  a  plea  Ox 
assault  demesne  an  instance  of  the  latter. 

Foreign  pleas  go  to  the  jurisdiction ;  a. 
their  effect  is  to  remove  the  action  from  th 
county  in  which  the  venue  is  originally  laid. 
Carth.  402.  Previous  to  the  statute  of  Anne, 
an  affidavit  was  required.  5  Mod.  335 ;  Carth, 
402 ;  1  Saund.  Plead.  98,  n.  1  ;  Viner,  Abr. 
Foreign  Pleas  ;  1  Chitty,  Plead.  382 ;  Bacon, 
Abr.  Abatement  (R). 

Pleas  of  justification,  which  assert  that 
the  defendant  has  purposely  done  the  act  of 
which  the  plaintiff'  complains,  and  in  tho 
exercise  of  his  legal  rights.  8  Term,  78  ;  'B 
Wils.  71 ;  Com.  274.  No  person  is  bound  to 
justify  who  is  not  prima  foci^  a  wrong- 
doer.   1  Leon.  301;  2  id.  83;  Cow  p.  478-; 

4  Pick.  Mass.  126;  13  Johns.  N.  Y.  443, 
579  ;  1  Chitty,  Plead.  436. 

11.  Pleas  puis  darrein  continuance,  which 
introduce  new  matter  of  defence,  which  has 
arisen  or  come  to  the  plaintiff's  knowledge 
since  the  last  continuance.  In  most  of  the 
states,  the  actual  continuance  of  a  cause 
from  one  term  to  another,  or  from  one  par- 
ticular day  in  term  to  another  day  in  the 
same  term,  is  practically  done  away  with, 
and  the  prescribed  times  for  pleading  are 
fixed  without  any  reference  to  terms  of  court. 
Still,  this  right  of  a  defendant  to  change  his 
plea  so  as  to  avail  himself  of  facts  arising 
during  the  course  of  the  litigation  remains 
unimpaired;  and  though  there  be  no  con- 
tinuance, the  plea  is  still  called  a  plea  j?i<z6'  dar- 
rein continuance, — meaning,  now,  a  plea  upon 
facts  arising  since  the  last  stage  of  the  suit. 
They  are  either  in  bar  or  in  abatement. 
Matter  which  arises  after  purchase  or  issue 
of  the  writ,  and  before  issue  joined,  is  pro- 
perly pleaded  in  bar  of  the  further  mainte- 
nance of  the  suit,  4  East,  502  ;  3  Term,  186  ; 

5  Pet.  224 ;  4  Me.  582 ;  12  Gill  &  J.  Md. 
358 ;  see  7  Mass.  325 ;  while  matter  sub- 
sequent to  issue  joined  must  be  pleaded 
puis  dqrrein  continuance.  1  Chitty,  Plead. 
569  ;  30  Ala.  n.  s.  253  ;  1  Hempst.  Ark.  16  ; 
40  Me.  582;  7  Gill,  Md.  415;  10  Ohio,  300. 
Their  object  is  to  present  matter  which  has 
arisen  ^ince  issue  joined,  and  which  tho 
defendant  cannot  introduce  under  his  plead- 
ings as  they  exist,  for  the  rights  of  the 
parties  were  at  common  law  to  be  tried  as 
they  existed  at  the  time  of  bringing  the  suit, 
and  matters  subsequently  arising  come  id 


PLEA 


337 


PLEADING 


as  it  were  by  exception  and  favor.  See  7 
Johns.  N.  Y.  194. 

12.  Among  other  matters,  it  may  bo  plead- 
ed that  the  plaintiff  has  become  an  alien 
enemy,  3  Campb.  152 ;  that  an  award  has 
been  made  after  issue  joined,  2  Esp.  504  ; 
29  Ala.  N.  s.  619 ;  that  there  has  been  accord 
and  satisfaction,  5  Johns.  N.  Y.  392 ;  that 
the  plaintiff  has  become  bankrupt,  Tidd, 
Pract.  8th  ed.  800  ;  1  Dougl.  Mich.  267  ;  that 
the  defendant  has  obtained  a  bankrupt-cer- 
tificate, even  though  obtained  before  issue 
joined,  9  East,  82;  see  2  H.  Blackst.  553  ; 
3  Barnew.  &  C.  23  ;  3  Den.  N.  Y.  269 ;  that 
a  feme  plaintiff  has  taken  a  husband,  Buller, 
Nisi  P.  310;  1  Blackf.  Ind.  288 ;  that  judg- 
ment has  been  obtained  for  the  same  cause 
of  action,  9  Johns.  N.  Y.  221 ;  5  Dowl.  &  R. 
175  ;  that  letters  testamentary  or  of  admi- 
nistration have  been  granted,  2  Strange,  1106  ; 

1  Saund.  265,  n.  2,  or  revoked,  Comyns, 
Dig.  Abatement  (14);  that  the  plaintiff  has 
released  the  defendant.  4  Cal.  331 ;  3  Sneed, 
Tenn.  52 ;  17  Mo.  267.  See  33  N.  H.  179. 
But  the  defendant  in  ejectment  cannot  plead 
release  from  the  lessor  of  the  plaintiff,  4 
Maule  &  S.  300 ;  7  Taunt.  9  ;  and  the  release 
will  be  avoided  in  case  of  fraud.  7  Taunt. 
48  ;  4  Barnew.  &  Ad.  419  ;  4  J.  B.  Moore, 
Priv.  Counc.  192  ;  23  N.  H.  535. 

13.  As  a  general  rule,  such  matters  must 
be  pleaded  at  the  first  continuance  after  they 
happen  or  come  to  the  plaintiff's  knowledge, 
11  Johns.  N.  Y.  424 ;  1  Serg.  &  R.  Penn.  146  ; 
though  a  discharge  in  insolvency  or  bank- 
ruptcy of  the  defendant,  2  E.  D.  Smith,  N.  Y. 
396;  2  Johns.  N.  Y.  294;  9  id.  255,  392, 
and  coverture  of  the  plaintiff  existing  at  the 
purchase  of  the  suit,  are  exceptions,  Buller, 
Nisi  P.  310,  in  the  discretion  of  the  court. 
10  Johns.  N.  Y.  161 ;  4  Serg.  &  R.  Penn. 
239  ;  5  Dowl.  &  R.  521 ;  1  Watts,  Penn.  271 ; 

2  Mo.  100.  Great  ctrtainty  is  required  in 
pleas  of  this  description.  Yelv.  141 ;  Freem. 
112  ;  Croke  Jac.  261 ;  2  Wils.  130  ;  2  Watts, 

.Penn.  451.  They  must  state  the  day  of  the 
last  continuance,  and  of  the  happening  of  the 
new  matter,  Buller,  Nisi  P.  309 ;  1  Chitty, 
Plead.  572 ;  7  111.  252 ;  cannot  be  awarded 
after  assizes  are  over,  2  M'Clell.  &  Y.  350 ; 
Freem.  252  ;  must  be  verified  on  oath  before 
they  are  allowed,  1  Strange,  493  ;  1  Const. 
So.  C.455,  and  must  then  be  received.  5  Taunt. 
333 ;  3  Term,  554 ;  1  Stark.  52 ;  1  Marsh. 
70,  280 ;  15  N.  H.  410.  They  stand  as  a 
substitute  for  former  pleas,  1  Salk.  178; 
Hob.  81;  Buller,  Nisi  P.  309;  1  Hempst. 
Ark.  16 ;  4  Wise.  159 ;  1  Strobh.  So.  C.  17,  and 
demurrers,  32  Eng.  L.  &  Eq.  280 ;  may  be 
pleaded  after  a  plea  in  bar,  1  Wheat.  215  ; 
Al.  67  ;  Freem.  252 ;  and  if  decided  against 
the  defendant,  the  plaintiff  has  judgment  in 
chief.    1  Wheat.  215  ;  Al.  67  ;  Freem.  252. 

14.  Sham  pleas  are  those  which  are 
known  to  the  pleader  to  be  false,  and  are 
entered  for  the  purpose  of  delay.  There  are 
certain  pleas  of  this  kind  which,  in  con- 
sequence of  their  having  been  long  and 
frequently  used  in  practice,  have  obtained 

Vol.  TI.--22 


toleration  from  the  courts,  and,  though  dis- 
couraged, are  tacitly  allowed :  as,  for  example, 
the  common  plea  (A'  ju</gmeiit  recovered,  that 
is,  that  judgment  has  been  already  recovered 
by  the  plaintiff  for  the  same  cause  of  action, 
Stephen,  Plead.  444,  445;  1  Chitty,  Plead. 
505,  506.  See  14  Bart>.  N.  Y.  393;  2  Den. 
N.  Y.  195.  The  later  practice  <jf  c(jurts  in 
regard  to  sham  pleas  is  to  strike  them  out 
on  motion,  and  give  final  judgment  for  tho 
plaintiff",  or  impose  terms  (in  the  discretioD. 
of  the  court)  on  the  defendant,  as  a  con- 
dition of  his  being  let  in  to  plead  anew 
The  motion  is  made  on  the  plea  itself,  or  on 
affidavits  in  connecticm  with  the  plea. 

Fleas  in  suspension  of  the  action  show 
some  ground  for  not  proceeding  in  the  suit 
at  the  present  period,  and  pray  that  tho 
pleading  may  be  stayed  until  that  ground  be 
removed.  The  number  o^"  these  pleas  is 
small.  Among  them  is  that  which  is  Ibunded 
on  the  nonage  of  the  parties,  and  termed 
parol  demurrer,    Stephen,  Plead.  64. 

See,  generally,  Bacon,  Abr.  Pleas  (Q) ; 
Comyns,  Dig,  Abatement  (I  24,  34)  ;  Doctrina 
Plac.  297  ;  Buller,  Nisi  P.  309 ;  Lawes,  Civ. 
Plead.  173  ;  1  Chitty,  Plead.  634 ;  Stephen, 
Plead.  81 ;  Gould,  Plead. ;  Bouvier,  Inst.  In- 
dex. 

In  ecclesiastical  courts,  a  plea  is  called  an 
allegation.    See  Allegation. 

PLEAD,  TO.  To  answer  the  indictment, 
or,  in  a  civil  action,  the  declaration  of  the 
plaintiff,  in  a  formal  manner.  To  enter  the 
defendant's  defence  upon  record.  In  a  popu- 
lar use,  to  make  a  forensic  argument.  The 
word  is  not  so  used  by  the  profession. 
Stephen,  Plead.  App.  n.  I ;  Story,  Eq.  Plead, 

PLEADING.    In  Chancery  Practice. 

Consists  in  making  the  formal  written  alle- 
gations or  statements  of  the  respective  par- 
ties on  the  record  to  maintain  the  suit,  or  to 
defeat  it,  of  which,  when  contested  in  mat- 
ters of  fact,  they  propose  to  offer  proofs,  and 
in  matters  of  law  to  offer  arguments  to  the 
court.  Story,  Eq.  Plead.  ^  4,  n.  The  sub- 
stantial object  of  pleading  is  the  same,  but 
the  forms  and  rules  of  pleading  are  very 
different,  at  law  and  in  equity. 

In  Civil  Practice.  The  stating  in  a 
logical  and  legal  form  the  facts  which  consti- 
tute the  plaintiff's  cause  of  action  or  the 
defendant's  ground  of  defence :  it  is  the 
formal  mode  of  alleging  that  on  the  record 
which  constitutes  the  support  or  the  defence 
of  the  party  in  evidence.  3  Term,  159; 
Dougl.  278 ;  Comyns,  Dig.  Pleader  (A)  ; 
Bacon,  Abr.  Pleas  and  Pleading;  Cowp.  682. 
Pleading  is  used  to  denote  the  act  of  making 
the  pleadings. 

2.  The  object  of  pleading  is  to  .*ecure  a 
clear  and  distinct  statement  of  the  claims  of 
each  party,  so  that  the  controverted  points 
may  be  exactly  known,  examined,  and  de- 
cided, and  the  appropriate  remedy  or  punish- 
ment administered.  See  Cowp,  682  ;  Dougl, 
159.    Good  pleading  consists  in  good  matter 


PLEADING 


338 


PLEADING 


pleaded  in  good  form,  in  apt  time  and  due 
order.  Coke,  Litt.  303.  Good  matter  includes 
all  facts  and  circumstances  necessary  to  con- 
stitute the  cause  of  complaint  or  ground  of 
defence,  and  no  more.  It  does  not  include 
arguments  or  matters  of  law.  But  some 
matters  of  fact  need  not  be  stated,  though 
it  be  necessary  to  establish  them  as  facts. 
Such  are,  among  others,  facts  of  ichich  the 
courts  take  notice  by  virtue  of  their  office:  as, 
the  time  of  accession  of  the  sovereign,  2  Ld. 
Raym.  794 ;  time  and  place  of  holding  par- 
liament, 1  Saund.  131 ;  public  statutes  and 
the  facts  they  ascertain,  1  Term,  45,  including 
ecclesiastical,  civil,  and  marine  laws,  Ld. 
Raym.  338,  but  not  private,  2  Dougl.  97,  or 
foreign  laws,  2  Carth.  273  ;  4  R.  L  523; 
common-law  rights,  duties,  and  general  cus- 
toms, Ld.  Raym.  1542;  Coke,  Litt.  175; 
Croke  Car.  561 ;  the  almanac,  days  of  the 
week,  public  holidays,  etc.,  Salk.  269;  6  Mod. 
81 ;  4  Dowl.  48 ;  4  Fla.  158 ;  political  divisions. 
Marsh.  124;  Coke,  2d  Inst.  557  ;  4  Barnew. 
&  Aid.  242 ;  6  111.  73  ;  the  meaning  of  Eng- 
lish words  and  terms  of  art  in  ordinary  ac- 
ceptation, 1  Rolle,  Abr.  86,  525  ;  their  own 
course  of  proceedings,  1  Term,  118;  2  Lev. 
176 ;  10  Pick.  Mass.  470  ;  see  16  East,  39, 
and  that  of  courts  of  general  iurisdiction,  1 
Saund.  73  ;  5  McLean,  C.  C.  1*67  ;  10  Pick. 
Mass.  470 ;  3  Bos.  &  P.  183 ;  1  Greenleaf,  Ev. 
g§  4-6  ;  facts  ichich  the  law  presumes :  as,  the 
innocence  of  a  party,  illegality  of  an  act, 
«tc.,  4  Maule  &  S.  105  ;  1  Barnew.  &  Aid. 
463 ;  2  Wils.  147  ;  6  Johns.  N.  Y.  105 ;  16 
East,  343  ;  16  Tex.  335  ;  6  Conn.  130  ;  mat- 
ters which  the  other  parti/  should  plead,  as 
being  more  within  his  knowledge,  1  Shars- 
wood,  Blackst.  Comm.  293,  n. ;  8  Term,  167 ; 
Si  H.  Blackst.  530 ;  2  Johns.  N.  Y.  415  ;  9 
Cal.  286 ;  1  Sandf.  N.  Y.  89 ;  3  Cow.  N.  Y. 
96;  mere  matters  of  evidence  of  facts,  9  Coke, 
96;  WiUes.  130  ;  25  Barb.  N.  Y.  457  ;  7  Tex. 
603  ;  6  Blackf.  Ind.  173 ;  1  N.  Chipm.  Vt.  293  ; 
unnecessary  matter:  as,  a  second  breach  of 
condition,  where  one  is  sufficient,  2  Johns. 
N.  Y.  443  ;  1  Saund.  58,  n.  1 ;  33  Miss.  474  ; 
4  Ind.  409 ;  23  N.  H.  415  ;  12  Barb.  N.  Y. 
27  ;  2  Green,  N.  J.  577 ;  see  Duplicity,  or 
intent  to  defraud,  when  the  facts  alleged  con- 
stitute fraud,  16  Tex.  335  ;  see  3  Maule  &  S. 
182 ;  irrelevant  matter,  1  Chitty,  Plead.  209. 
Such  matter  may  be  rejected  without  damage 
to  the  plea,  if  wholly  foreign  to  the  case,  or 
repugnant,  7  Johns.  N.  Y.  462  ;  3  Day,  Conn. 
472  ;  2  Mass.  283  ;  8  Serg.  &  R.  Penn.  124  ;  11 
Ala.  145 ;  16  Tex.  656  ;  7  Cal.  348  ;  23  Conn. 
134;  1  Du.  N.  Y.  242;  6  Ark.  468;  8  Ala.  n. 
s.  320 ;  but  in  many  cases  the  matter  must 
be  proved  as  stated,  if  stated.  7  Johns.  N. 
Y.  321 ;  3  Day,  Conn.  283  ;  PhiUipps,  Ev. 
160.  The  matter  must  be  true  and  suscepti- 
ble of  proof ;  but  legal  fictions  may  be  stated 
as  facts.    2  Burr.  667  ;  4  Bos.  &  P.  140. 

3.  The  form  (f  statement  should  be  accord- 
ing to  the  established  forms.  Coke,  Litt. 
303  ;  6  East,  351 ;  8  Coke,  48  b.  This  is  to  be 
considered  as,  in  general,  merely  a  rule  of 
.  aution,  though  it  is  said  the  courts  disapprove 


a  dej 
of  pie 
of  th. 

Englaua  s' 
have 
ing :  & 
able  re^ 
able,  alti 
changed. 
301,  n.;  o 
Monr.  Ky. 
that  the  fac 
their  natural 
clearly  and  dit 


'om  the  well-established  1"  i 
1  Chitty,  Plead.  212.  In 
,of  the  United  States,  anu 
1852,  many  radical  change 
iuced  into  the  law  of  plead- 


pprehended  that  a  reason- 
3  old  forms  will  be  profit 
names  of  things  may  be 
\rswood,  Blackst.  Comm. 
28  Miss.  766;  14  B. 
neral,  it  may  be  said 
e  stated  logically,  in 
,*ith  certainty,  that  is, 
otly,  so  that  the  party  who 
is  to  answer,  the  court,  and  the  jury  may 
readily  understand  what  is  meant,  Cowp. 
682;  2  Bos.  &  P.  267  ;  Coke,  Litt.  303;  13 
East,  107  ;  33  Miss.  669 ;  1  Hempst.  Ark. 
238,  with  precision,  13  Johns.  N.  Y.  437 ;  19 
Ark.  695  ;  5  Du.  N.  Y.  689,  and  with  brevity. 
36  N.  H.  458 ;  1  Chitty,  Plead.  212.  The 
facts  stated  must  not  be  insensible  or  repug- 
nant, 1  Salk.  324  ;  7  Coke,  25  ;  25  Conn.  431 ; 
5  Blackf.  Ind.  339,  nor  ambiguous  or  doubtful 
in  meaning,  5  Maule  &  S.  38  ;  Yelv.  36,  nor 
argumentative.  Coke,  Litt.  303 ;  5  Blackf.  Ind. 
557,  nor  by  way  of  recital,  2  Bulstr.  214 ; 
Ld.  Raym.  1413,  and  should  be  stated  ac- 
cording to  their  legal  effect  and  operation. 
Stephen,  Plead.  378-392  ;  16  Mass.  443  ;  12 
Pick.  Mass.  251 ;  3  Stew.  319. 

4:.  The  time  within  which  pleas  must  be 
filed  is  a  matter  of  local  regulation,  de- 
pending upon  the  court  in  which  the  action 
is  brought.  The  order  of  pleading  different 
matters  is  of  importance  as  affecting  the  de- 
fendant, who  may  oppose  the  plaintiff's  suit 
in  various  ways.  The  order  is  as  follows : — 
First,  to  the  jurisdiction  of  the  court. 
Second,  to  the  disability,  etc.  of  the  person  : 
first,  of  the  plaintiff;  second,  of  the  defend- 
ant. 

Third,  to  the  count  or  declaration. 

Fourth,  to  the  writ:  frst,  to  the  form  of 
the  writ, — first,  matter  apparent  on  the  face ' 
of  it,  secondly,  matter  dehors  ;  second,  to  the 
action  of  the  writ. 

Fifth,  to  the  action  itself  in  bar. 

This  is  said  to  be  the  natural  order  of 
pleading,  because  each  subsequent  plea  ad- 
mits that  there  is  no  foundation  for  the  for- 
mer. 13  La.  Ann.  147  ;  41  Me.  102  ;  7  Gray, 
Mass.  38;  5  R.  I.  235 ;  2  Bosw.  N.  Y.  267  ;  1 
Grant,  Cas.  Penn.  359 ;  4  Jones,  No.  C.  241 ; 
3  Miss.  704;  20  id.  656;  1  Chitty,  Plead.  425. 
See  16  Tex.  114;  4  Iowa,  158.  An  excep- 
tion exists  where  matter  is  pleaded  puU 
darein  continuance,  see  Plea;  and  wl.ere 
the  subject-matter  is  one  over  which  the  c(  urt 
has  no  jurisdiction,  a  failure  to  plead  to  the 
puis  cannot  confer  jurisdiction.  10  Serg.  & 
R.  Penn.  229 ;  17  Tex.  52. 

The  science  of  pleading,  as  it  existed  at 
common  law,  has  been  much  modified  by 
statutory  changes ;  but,  under  whatever  names 
it  is  done, — wliether  under  rules  of  court,  or 
of  the  legislative  power,  by  the  parties,  the 
court,  or  the  jury, — it  is  evident  that,  in 
the  nature  of  things,  the  end  of  pleading 


PLEADING,  SPECIAL 


339 


PLEDGE,  PAWN 


mast  be  attained,  namely,  the  production  of 
one  or  more  points  of  issue,  where  a  sin<2;le 
fact  is  affirmed  by  one  party  and  denied  by 
the  other.  4  Gower,  404.  By  pleading  at 
the  common  law,  this  was  done  by  the  par- 
ties ;  in  the  civil  law,  by  the  court. 

In  Criminal  Practice,  the  rules  of  plead- 
ing are  the  same  as  in  civil  practice.  There 
is,  however,  less  liberty  of  amendment  of  the 
indictment.  The  order  of  the  defendant's 
pleading  is  as  follows -.—first,  to  the  juris- 
diction ;  second,  in  abatement ;  third,  spe- 
cial pleas  in  bar:  as,  autrefois  acquit,  autre- 
fois attaint,  autrefois  convict,  pardon  ;  fourth, 
the  general  issue. 

See,  generally,  Lawes,  Chitty,  Stephen, 
Gould,  Pleading ;  3  Sharsw^ood,  Blackst. 
Comm.  301  et  seq.  and  notes  ;  Coke,  Litt.  303  ; 
Comyns,  Dig.  Pleader;  Bacon,  Abr,  Plea  and 
Pleading. 

PLEADING,  SPECIAL.  By  special 
pleading  is  meant  the  allegation  of  special  or 
new  matter,  as  distinguished  from  a  direct 
denial  of  matter  previously  alleged  on  the 
opposite  side.  Gould,  Plead,  c.  1,  s.  18.  See 
Special  Pleading. 

PLEADINGS.  In  Chancery  Practice. 

The  written  allegations  of  the  respective  par- 
ties in  the  suit.  The  pleadings  in  equity 
are  less  formal  than  those  at  common  law. 

*X,  The  parts  of  the  pleadings  are — the  hill, 
which  contains  the  plaintiff's  statement  of  his 
case,  or  information,  where  the  suit  is  brought 
by  a  public  officer  in  behalf  of  the  sovereign  ; 
the  demnrrer,  by  which  the  defendant  demands 
judgment  of  the  court,  whether  he  shall  be 
compelled  to  answer  the  bill  or  not ;  the 
plea,  whereby  he  shows  some  cause  why 
the  suit  should  be  dismissed  or  barred ;  the 
answer,  which,  controverting  the  case  stated 
by  the  bill,  confesses  and  avoids  it,  or  traverses 
and  denies  the  material  allegations  in  the 
bill,  or,  admitting  the  case  made  by  the  bill, 
submits  to  the  judgment  of  the  court  upon 
it,  or  relies  upon  a  new  case  or  upon  new 
matter  stated  in  the  answer,  or  upon  both  ; 
disclaimer,  which  seeks  at  once  a  termination 
of  the  suit  by  the  defendants,  disclaiming 
all  right  and  interest  in  the  matter  sought 
by  the  bill.  Story,  Eq.  Plead,  g  546  ;  Mitford, 
Eq.  Plead,  by  Jeremy,  13,  106 ;  Cooper,  Eq. 
Plead.  108;  2  Story,  59. 

In  Civil  Practice.  The  statements  of  the 
parties,  in  legal  and  proper  manner",  of  the 
causes  of  action  and  grounds  of  defence. 
The  result  of  pleading.  They  were  formerly 
made  by  the  parties  or  their  counsel,  orally, 
in  open  court,  under  the  control  of  the  judge. 
They  were  then  called  the  parole.  3  Shars- 
wood,  Blackst.  Comm.  293  ;  2  Reeves,  Hist. 
Eng.  Law,  267. 

3.  The  parts  of  the  pleadings  may  be  ar- 
ranged under  two  heads:  the  regular,  which 
occur  in  the  ordinary  course  of  a  suit;  and  the 
irregular  or  collateral,  which  are  occasioned 
by  errors  in  the  pleadings  on  the  other  side. 

The  regular  parts  are — the  declaration  or 
count ;  the  plea,  which  is  either  to  the  juris- 


diction of  the  court,  or  suspending  the  ao 
tion,  as  in  the  case  of  a  parol  demurrer,  or 
in  abatement,  or  in  bar  of  the  action,  or  in 
rej)levin,  an  avowry  or  cognizance;  the  repli- 
cation, and,  in  case  of  an  evasive  plea,  a  new 
assignment,  or,  in  replevin,  the  ])lea  in  Oar  to 
the  avowry  or  cognizance  ;  the  rejoinder,  or, 
in  replevin,  the  replication  to  the  plea  in  bar; 
the  sur-rejoinder,  being  in  replevin  the  re- 
joinder; the  rebutter;  the.swr-re/yn^^e>',  Yiner, 
Abr.  Pleas  and  Pleading  (C);  Bacon,  Abr. 
Pleas  and  Pleadings  ( A) ;  pleas  pmis  darrein 
continuance,  when  the  matter  of  defence 
arises  pending  the  suit. 

4.  The  irregular  or  collateral  parts  of 
pleading  are  stated  to  be — demurrers  to  any 
part  of  the  pleadings  above  mentioned  ;  de- 
murrers to  evidence  given  at  trials  ;  hills  of 
exceptions  ;  pleas  in  scire  facias;  and  pleas  in 
error.  Viner,  Abr.  Pleas  and  Pleadings  (C)  ; 
Bouvier,  Inst.  Index. 

In  Criminal  Practice,  the  pleadings  are — 
frst,  the  indictment ;  second,  the  plea;  and 
the  other  pleadings  as  in  civil  practice. 

PLEAS  OF  THE  CROWN.  In  Eng- 
lish Law.  A  phrase  now  employed  to  sig- 
nify criminal  causes  in  which  the  king  is  a 
party.  Formerly  it  signified  royal  causes  for 
offenc;es  of  a  greater  magnitude  than  mere 
misdemeanors. 

These  were  left  to  be  tried  in  the  courts  of  the 
barons;  whereas  the  greater  offences,  or  royal 
causes,  were  to  be  tried  in  the  king's  courts,  under 
the  appellation  of  pleas  of  the  crown.  1  Robert- 
son, Hist.  Charles  V.  48. 

PLEAS  ROLL.    In  English  Practice. 

A  record  wdiich  contains  tlie  declaration, 
plea,  replication,  rejoinder,  and  other  plead- 
ings, and  the  issue.  Eunom.  Dial.  2,  §  29,  p 
111. 

PLEBEIAN.  One  who  is  classed  among 
the  common  people,  as  distinguished  from 
the  nobles. 

PLEBISCITUM  (Lat.).  In  Roman 
Law.  A  law  established  by  the  people  [plehs], 
on  the  proposal  of  a  popular  magistrate,  as  a 
tribune.  Vicat,  Voc.  Jur.  ;  Calvinus,  Lex. ; 
Mackeldy,  Civ.  Law,     27,  37. 

PLEDGE,  PAWN.  A  bailment  of  per- 
sonal property  as  security  for  some  debt  or 
engagement. 

A  pledge  or  pawn  (Lat.  pignus),  according  to 
Story,  is  a  bailment  of  personal  property  as  security 
for  some  debt  or  engagement.  Story,  Bailm. 
286,  which  see  for  the  less  comprehensive  defini-" 
tions  of  Sir  Wm.  Jones,  Lord  Holt,  Pothier,  etc. 
Doraat  broadly  defines  it  as  an  appropriation  of 
the  thing  given  for  the  security  of  an  engagemenL 
But  the  term  is  commonly  used  as  Sir  Wm.  Jonea 
defines  it:  to  wit,  as  a  bailment  of  goods  by  a 
debtor  to  his  creditor,  to  be  kept  till  the  debt  is 
discharged.  Jones,  Bailm.  117  :  2  Ld.  Baym.  909  ; 
Pothier,  de  Naut.  art.  prelim.  1:  Code.  Civ.  2071; 
Domat,  b.  3,  tit.  1,  1,  n.  1 ;  La.  Civ.  Code,  3100; 
6  Ired.  No.  C.  309.  The  pledgee  secures  his  debt 
by  the  bailment,  and  the  pledgeor  obtains  credit  or 
other  advantage.  See  1  Parsons,  Contr.  591  et  seq. 

2.  Delivery,  The  first  essential  thing  to 
be  done  is  a  delivery  to  the  pledgee.  Without 


PLEDGE,  PAWN 


340 


PLEDGE,  PAWN 


his  possession  of  the  thing,  the  transaction 
is  not  a  pledge.  37  Me.  543.  But  a  construct- 
ive possession  is  all  that  is  required  of  the 
pledgee.  Hence,  goods  at  sea  or  in  a  ware- 
house pass  by  transfer  of  the  muniments  of 
title,  or  by  symbolic  delivery.  Stocks  and 
equitable  interests  may  be  pledged  ;  and  it 
will  be  sufficient  if,  by  proper  transfer,  the 
property  be  put  within  the  power  and  control 
of  the  pledgee.  12  Mass.  300;  20  Pick. 
Mass.  405  ;  22  N.  H.  196  ;  2  N.  Y.  403  ;  7 
Hill,  N.  y.  497.  Stocks  are  usually  pledged 
by  delivery  of  the  company's  certificate,  leav- 
ing the  actual  transfer  to  be  made  subse- 
quently. But  here,  as  in  England,  the  joint- 
stock  company  must  be  notified  of  the  trans- 
fer. 

Prima  facie,  if  the  pledgee  redeliver  the 
pledge  to  the  pledgeor,  third  parties  without 
notice  might  regard  the  debt  as  paid.  Still, 
this  presumption  can  be  rebutted,  in  most 
states.  In  some  states,  courts  in  effect  hold 
that  even  in  case  of  sale,  as  well  as  in  case 
of  pledge,  possession  of  the  vendor  is  fraud 
per  se,  and  refuse  to  admit  explanatory  evi- 
dence. In  such  states,  therefore,  a  vendee 
may  always  take  the  pledge  if  found  in  the 
vendor's  possession.  5  N.  H.  345  ;  14  Pick. 
Mass.  509  ;  4  Jones,  No.  C.  40,  43.  The  pre- 
vailing rule  is,  however,  that  a  temporary  re- 
delivery to  the  pledgeor  makes  him  only  the 
agent  or  bailee  of  the  pledgee,  and  the  latter 
does  not  lose  his  special  property  or  even  his 
constructive  possession.  5  Bingh.  n.  c.  136  ; 
11  Eng.  L.  &  Eq.  584 ;  3  Whart.  Penn.  531  ; 
5  Humphr.  Tenn.  308  ;  32  Me.  211 ;  1  Sandf. 
N.  Y.  248. 

3.  Subject  of  pledge.  Any  tangible  pro- 
perty may  be  pledged.  Hence,  not  only 
goods  and  chattels  and  money,  but,  also,  nego- 
tiable paper,  may  be  put  in  pledge.  So  may 
choses  in  action,  patent-rights,  coupon  bonds, 
and  manuscripts  of  various  sorts.  1  Ves. 
Ch.  278  ;  2  Taunt.  268;  15  Mass.  389,  534; 
2  Blackf.  Ind.  198  ;  7  Me.  28  ;  4  Den.  N.  Y. 
227  ;  2  N.  Y.  443  ;  1  Stockt.  N.  J.  667  ;  Story, 
Bailm.  I  290.  Incorporeal  things  could  be 
pledged  immediately,  probably,  under  the 
civil  law,  and  so  in  the  Scotch  law,  or,  at  all 
events,  by  assignment.  1  Domat,  b.  3,  tit. 
1,  H  ;  Pothier,  de  Naut.  n.  6  ;  2  Bell,  Comm. 
23.  The  laws  of  France  and  Louisiana  re- 
quire a  written  act  of  pledge,  duly  registered 
and  made  known,  in  order  to  be  made  good 
against  third  parties.  In  the  civil  law,  pro- 
perty of  which  the  pledgeor  had  neither  pre- 
sent possession  nor  title  could  be  pledged, — 
though  this  was  rather  a  contract  for  pledge, 
called  a  hypothecation.  The  pledge  became 
complete  when  the  property  was  acquired  by 
the  pledgeor.  The  same  rule  holds  in  our 
law,  where  a  hypothecary  contract  gives  a 
lien  which  attaches  when  the  property  is 
vested.  1  Hare,  Ch.  549;  13  Pick.  Mass. 
175;  14  2(^.497;  21  Me.  86  ;  16  Conn.  276; 
Dav.  Dist.  Ct.  199.  And  it  has  been  held 
that  a  pledge  may  be  made  to  secure  an 
obligation  not  yet  risen  into  existence.  12 
La.  Ann.  529.    In  an  agreement  to  pledge  a 


vessel  not  then  completed,  the  intent  of  the 
parties  governs  in  determining  when  the 
property  passes.  8  Pick.  Mass.  236  ;  24  Eng. 
L.  &  Eq.  220. 

A  life-policy  of  insurance  may  be  pledged, 
or  a  wife's  life-policy.  The  common  law 
does  not  permit  the  pay  and  emoluments  of 
officers  and  soldiers  to  be  pledged,  from  pub- 
lic policy.  1  H.  Blackst.  627  ;  4  Term,  248. 
Hence,  probably,  a  fishing-bounty  could  not 
be  pledged,  on  the  ground  that  government 
pensions  and  bounties  to  soldiers,  sailors, 
etc.,  for  their  personal  benefit,  cannot  be 
pledged.  A  bank  can  pledge  the  notes  left 
with  it  for  discount,  if  it  is  apparent  on  the 
face  of  the  notes  that  the  bank  is  their  owner. 

4.  Ordinary  care.  The  pawnee  is  bound 
to  take  ordinary  care  of  his  pawn,  and  is 
liable  only  for  ordinary  neglect,  because  the 
bailment  is  for  the  mutual  benefit  of  both 
parties.  Hence,  if  the  pledge  is  lost  and  the 
pledgee  has  taken  ordinary  care,  he  may 
still  recover  his  debt.  Such  losses  often  re- 
sult from  casualty,  superior  force,  or  intrinsic 
defect,  against  which  a  man  of  ordinary  pru- 
dence would  not  have  effectually  guarded 
himself.  If  a  pledgeor  find  it  necessary  to 
employ  an  agent,  and  he  exercise  ordinary 
caution  in  his  selection  of  the  agent,  he  will 
not  be  liable  for  the  latter's  neglect  or  mis- 
conduct. 1  La.  Ann.  344 ;  10  B.  Monr.  Ky. 
239  ;  4  Ind.  425  ;  8  N.  H.  66  ;  14  id.  5Q7  ;  6 
Cal.  643. 

Loss  by  theft  is  prima  facie  evidence  of 
a  want  of  ordinary  care,  and  the  bailee  must  , 
rebut  the  presumption.    The  facts  in  each  j 
case  regulate  the  liability.    Theft  is  only 
evidence,  in  short,  and  not  absolute  presump- 
tior^,  of  negligence.    Perhaps  the  only  safe 
rule  is  that,  where  the  pledgee  pleads  loss  by 
theft  as  ground  for  not  performing  his  duty,  ' 
to  excuse  himself  he  must  show  that  the  ; 
theft  could  not  have  been  prevented  by  ordi-  j 
nary  care  on  his  part.    If  the  bailor  should  I 
assert  in  his  declaration  that  the  pledge  was  ' 
lost  by  the  bailee's  fault,  he  would  be  com-  ' 
pelled  to  prove  the  charge  as  laid.  i 

5.  Use.  The  reasonable  use  of  a  pledge  is 
allowed  to  a  pledgee,  according  to  Lord  Holt, 
Sir  Wm.  Jones,  and  Story,  provided  it  be  of 
no  injury  or  peril  to  the  bailment.  The 
reason  given  by  Story  is  precise,  namely, 
that  where  use  of  the  pledge  is  beneficial  to 
it,  or  cannot  depreciate  it,  the  consent  of  the 
pledgeor  to  such  use  may  fairly  be  presumed; 
but  not  otherwise.  Still,  the  word  peril  is 
somewhat  broad.  If  the  pawn  be  in  its  na- 
ture a  charge  upon  the  pawnee, — as  a  horse 
or  cow, — he  may  use  it,  moderately,  by  way  of 
recompense.  For  any  unusual  care  he  may 
get  compensation  from  the  owner,  if  it  were 
not  contemplated  by  the  parties  or  implied  in 
the  nature  of  the  bailment.  Ld.  Raym.  909 ; 
2  Salk.  522 ;  1  Parsons,  Contr.  593.  The 
pawnee  is  answerable  in  do,mages  for  an  in- 
jury happening  while  he  is  using  the  pawn. 
Still,  though  he  use  it  tortiously,  he  is  only 
answerable  by  action.  His  pledgee's  lien  is 
not  thereby  forfeited.  4  Watts,  Penn.  414  A 


PLEDGE,  PAWN 


341 


PLEDGE,  PAWN 


pledgee  can  exercise  a  horse,  but  not  loan  it 
for  hire.  The  rule  is,  that  if  he  derive  any 
profits  from  the  pledge  they  must  be  applied 
to  the  de])t.  2  Murph.  No.  C.  ill.  Hence, 
if  a  slave  be  pledged  as  security  for  a  debt, 
the  creditor  must  accouLt  for  the  profits  of 
the  slave,  and  apply  them  to  extinguish  the 
debt.    Wythe,  Va.  55  ;  15  Ala.  n.  s.  558. 

6.  Properti/.  The  pledgee  has  at  common 
i  law  a  special  property  in  the  pledge,  and  is  en- 
titled to  the  exclusive  possession  of  it  during 
the  time  and  for  the  objects  for  which  it  is 
pledged.  If  a  wrong-doer  take  the  pledge 
from  him,  he  is  not  thereby  ousted  from  his 
right.  His  special  property  is  enough  for 
him  to  support  replevin  or  trover  against 
the  wrong-doer.  lie  has,  moreover,  a  right 
to  action,  because  he  is  responsible  to  his 
pledgeor  for  proper  custody  of  the  bailment. 
The  pledgeor,  also,  may  have  his  action  against 
the  wrong-doer,  resting  it  on  the  ground  of 
his  general  property.  A  judgment  for  either 
pledgeor  or  pledgee  is  a  bar  against  a  similar 
action  by  the  other.  2  Blackstone,  Comm. 
395  ;  6  iBligh,  n.  s.  127  ;  1  Barnew.  &  Aid. 
59  ;  5  Binn.  Penn.  457  ;  16  Wend.  N.  Y.  335 ; 
9  Gill,  Md.  7  ;  13  Me.  436  ;  13  Vt.  504. 

The  bailee,  having  a  special  property,  re- 
covers only  the  value  of  his  special  property 
as  against  the  owner,  but  the  value  of  the 
whole  property  as  against  a  stranger,  and  the 
balance  beyond  the  special  property  he  holds 
for  the  owner.  15  Conn.  302.  So  if  the  owner 
brings  the  action  and  recovers  the  whole 
damages,  including  those  for  deprivation  of 
possession,  it  must  be  with  the  consent  of  the 
pledgee. 

A  pledgee  may  bring  replevin  or  trover 
I   against  the  pledgeor  if  the  latter  remove  his 
pledge  before  paying  the  debt  and  thus  injure 
the  pledgee's  rights,  on  the  ground  that  the 
owner  has  parted  with  his  absolute  right  of 
disposing  of  the  chattel  until  he  has  redeemed 
it  from  its  state  of  pledge.    2  Taunt.  268  ;  1 
Sandf.  N.  Y.  208 ;  22  N.  H.  196  ;  11  N.  Y. 
150 ;  2  M'Cord,  So.  C.  120.    Yet  in  trover 
i   the  damages  recovered  cannot  be  greater 
I   than  the  amount  of  the  debt,  if  the  defendant 
i   derives  title  under  the  pledgeor.    4  Barb.  N. 
I   Y.  491 ;  13  111.  405. 

1  l".  Sale.  If  the  pledgeor  fail  to  pay  the 
I  debt,  the  pledgee  may  sell  the  pledge.  For- 
!  merly  a  decree  of  court  was  necessary  to 
!  make  the  sale  valid,  and  under  the  civil  law 
I  it  is  still  so  in  many  continental  countries. 
;  It  is  safer  in  a  large  pledge  to  proceed  by  bill 
1  in  equity  to  foreclose  ;  but  this  course  is  ordi- 
|i  narily  too  expensive.  A  demand  of  payment, 
i  however,  must  be  made  before  sale ;  and  if 
j  the  pledgee  mentions  no  time  of  sale  he  may 
f  deniand  at  once,  and  may  sell  in  a  reason- 
\  able  time  after  demand.  Glanville,  lib.  x.  c. 
'   6 ;  5  Bligh,  N.  s.  136  ;  9  Mod.  275  ;  2  Johns. 

Oh.  N.  Y.  100;  1  Sandf.  N.  Y.  351;  8  III. 

42;} ;  4  Den.  N.  Y.  227 ;  3  Tex.  119  :  1  Browne, 

Penn.  176  ;  22  Pick.  Mass.  40;  2  N.  Y.  443. 

The  pledge  must  be  sold  at  public  auction,  and, 
j  if  it  be  divisible,  only  enough  must  be  sold 

to  pay  the  debt.  In  general,  also,  the  pledgee 


must  not  buy  the  pledge  when  put  up  at 
auction.  lie  must  not  bid  bona  fida  and 
bring  up  the  price  of  the  pawn.  Still,  the 
purchase  of  the  pledgee  is  proliably  not  void 
iptr  se,  hui  voidable  at  the  election  of  the 
pledgeor ;  and  the  latter  may  ratify  the  pur- 
chase by  receiving  the  surplus  over  the  debt, 
or  avoid  it  by  refusing  to  do  so.  The  pledgee 
may  charge  the  pledge  with  expenses  right- 
fully incurred,  as  the  costs  of  sale,  etc.  If 
the  pledge  when  sold  bond  fide  does  not 
bring  enough  to  pay  the  debt,  the  pledgee  ha8 
still  left  a  good  claim  against  the  pledgeor 
for  the  balance. 

8.  In  those  states  where  strict  foreclosure 
is  allowed,  an  absolute  transfer  of  title  is 
made  to  a  mortgagee,  and  hence  there  is  never 
any  inquiry  into  the  matter  of  surplus  after 
sale,  because  there  is  no  right  to  reclaim. 
But  in  such  states  the  mortgage  law  does  not 
apply  to  pawns ;  for  in  pawns  the  surplus 
over  the  amount  of  debt  after  sale  must  be 
given  back  to  the  pledgeor.  This  last  is 
also  the  law  of  mortgages  in  some  states  ;  but 
still,  everywhere,  pawns  and  mortgages  of 
personal  property  are  separate  in  law.  In 
order  to  authorize  any  sale  of  a  pledge  with- 
out judicial  proceedings,  not  only  personal 
notice  of  the  intent  to  redeem  must  be  given, 
but  also  of  the  time,  place,  and  manner  of 
the  intended  sale.  12  Barb.  N.  Y.  103;  4 
Den.  N.  Y.  226  ;  14  N.  Y.  392. 

9.  Negotiable  paper.  The  law  of  pledge 
applies,  probably,  to  promissory  notes  on  de- 
mand, held  in  pledge.  But  it  does  not  apply, 
in  general,  to  other  promissory  notes  and 
commercial  paper  pledged  as  collateral  se- 
curity. The  holder  of  negotiable  paper,  even 
though  it  be  accommodation  paper,  may 
pledge  it  for  an  antecedent  debt,  the  rule 
governing  pledges  not  being  applicable  to 
commercial  property  of  this  description.  3 
Penn.  St.  381 ;  13  Mass.  105  ;  3  Cal.  151 ;  5 
id.  260.  But  in  New  York  it  has  been  held 
that  pledgees  of  negotiable  paper  have  no 
right  to  sell  it,  but  must  w^ait  until  its  ma- 
turity and  then  collect  it.  3  Du.  N.  Y. 
660;  16  N.  Y.  392.  See,  also,  upon  the  law 
of  pledges  in  mercantile  property,  28  N.  H. 
561  ;  26  Vt.  686 ;  13  B.  Monr.  Ky.  432 ;  1 
Stockt.  Ch.  N.  J.  667  ;  17  Barb.  N.  Y.  492 ; 
5  Du.  N.  Y.  29  ;  14  Ala.  n.  s.  65  ;  10  Md 
373  ;  1  N.  Y.  Leg.  Obs.  25  ;  5  Tex.  318. 

In  most  states,  a  pledgee  cannot  sell  his 
pledge  unless  it  be  negotiable  paper.  And 
hence  any  pledgee  who  has  stock  put  into 
his  hands  cannot  sell  it  or  operate  with  it  as 
his  own.  If  he  do  sell  it,  the  pledgeor  can 
recover  of  him  the  highest  price  the  stock 
has  reached  at  any  time  previous  to  ad- 
judication, 2  Caines,  Cas,  N.  Y.  200;  5 
Johns.  N.  Y.  260  ;  1  Sandf.  N,  Y.  351 ;  4  id. 
14;  2  N.  Y.  443  ;  3  Hill,  N.  Y.  593  ;  7  id. 
497.  A  pledgeor  may  bring  trover  upon  the 
sale  of  a  pledge,  or  upon  a  tortious  repledging 
of  it, 

10.  Oihei'  debts.  A  pledge  cannot,  in 
general,  be  held  for  any  other  debt  than  that 
which  it  was  given  to  secure,  except  on  the 


PLEDGE,  PAWN 


342 


PLEDGE,  PAWN 


;e  needH 


SDecial  agreement  and  consent  of  the  parties.  | 
7  East,  224;  6  Term,  258;  2  Ves.  Ch.  372;  5 

6  id.  226 ;  7  Port.  Ala.  466 ;  15  Mass.  389  ;  ' 
2  Leigh,  Va.  493;  14  Barb.  N.  Y.  536. 
The  civil  law  and  Scotch  law  are  other- 
wise.   2  Bell,  Comm.  22. 

Pledgeor's  transfer.  The  pled^i^eor  may 
Bell  or  transfer  his  right  to  a  third  party, 
who  can  bring  trover  against  the  pledgee 
if  the  latter,  after  tender  of  the  amount  of 
his  debt,  refuse  to  deliver  the  pawn.  9  Cow. 
N.  Y.  52 ;  13  Mees.  &  AV.  Exch.  480.  .  A 
creditor  of  the  pledgeor  can  only  take  his 
interest,  and  must  pay  the  debt  before 
getting  the  pawn.  And  now  it  is  settled 
that  the  pledgeor's  general  property  in  the 
pawn  may  be  sold  at  any  time  on  execution, 
and  the  purchaser  or  assignee  of  the  pledgeor 
succeeds  to  the  pledgeor's  rights,  and  may 
himself  redeem.  At  common  law,  a  pledge 
could  not  be  taken  at  all  in  execution.  1 
Yes.  Ch.  278  ;  3  Watts,  Penn.  258 ;  17  Pick. 
Mass.  85  ;  1  Const.  20;_1  Gray,  254.  The  king 
takes  a  pawn  on  paying  the  pawnee's  debt. 

2  Chit.  Prerog.  285. 

11.  Factor.  A  factor  cannot,  at  common 
law,  pledge  his  principal's  goods;  and  the 
principal  may  recover  them  from  the  pledgee's 
hands.    2  Strange,  1178;  6  Maule  &  S.  1 ; 

3  Bingh.  139,  603;  2  Brod.  &  B.  639;  4 
Barnew.  &  C.  5  ;  1  M'Cord,  So.  C.  1 ;  6  Mete. 
Mass.  68 ;  20  Johns.  N.  Y.  421 ;  4  Hen.  & 
M.  Va.  432;  18  Mo.  147,  191 ;  11  How.  209, 
226.  The  question  is  very  fully  discussed 
in  Parsons,  Marit.  Law,  363.  But  statutes 
in  England  and  in  various  states,  as  Maine, 
Massachusetts,  Rhode  Island,  New  York, 
Pennsylvania,  Ohio,  etc.,  give  the  factor  a 
power  of  pledging,  with  various  modifications. 

7  Barnew.  &  C.  517  ;  6  Mees.  &  W.  Exch.  572 ; 
2  Mood.  &  R.  22;  3  Den.  N.  Y.  472;  4  id. 
323 ;  2  Sandf.  N.  Y.  68. 

Co  pledgees.  A  pledgee  may  hold  a  pledge 
for  another  pledgee  also,  and  it  will  be  a 
good  pledge  to  both.  If  the  pledge  be  not 
large  enough  for  both  debts  after  sale,  and 
no  other  arrangement  be  made,  the  prior 
pledgee  will  have  the  whole  of  his  debt  paid 
before  any  part  of  the  proceeds  is  applied  to 
the  subsequent  pledgee.  If  there  is  no  priority 
of  time,  they  will  divide  ratably.  But  an 
agreement  between  the  parties  will  always 
determine  the  rights  of  two  or  more  pledgees. 
12  Mass.  321.  Where  po8ses8i(m  is  given  to 
one  of  three  pledgees,  to  hold  for  all  three, 
the  other  two  have  a  constructive  possession, 
which  is  equally  good,  for  the  purpose  of 
sharing,  with  an  actual  possession.  Hence 
the  mere  manual  possession  of  one  pledge 
will  not  give  a  right  to  discharge  the  whole 
debt  of  the  holder  and  a  part  only  of  that 
of  his  co-pledgees.  So,  by  the  rule  of  con- 
structive possession,  if  the  holder  should 
lose  the  pledge  by  his  own  negligence,  he 
would  be  liable  to  his  co-bailees  out  of  actual 
possession,  as  well  as  to  his  bailor. 

There  is  a  clear  distinction  between  mortgages 
and  pledges.  In  a  pledge,  the  legal  title  remains 
in  the  pledgeor.    In  a  mortgage,  it  passes  to  the 


mortgagee.  In  a  mortgage,  the  mortgagee  nee(i 
not  have  possession.  In  a  pledge,  the  j)ludgfce 
must  have  possession,  though  it  be  only  construct- 
ive. In  a  mortgage,  at  common  law,  the  property 
on  non-payment  of  the  debt  passes  wholly  to  the 
mortgagee.  In  a  pledge,  the  property  irf  sold,  and 
only  so  much  of  the  proceeds  as  will  pay  his  debt 
passes  to  the  pledgee.  A  mortgage  is  a  conditional 
conveyance  of  property,  which  becomes  absolute 
unless  redeemed  at  a  specified  time.  A  pledge  is 
not  strictly  a  conveyance  at  a.11,  nor  need  any  day 
of  redemption  be  appointed  for  it.  A  mortgagee 
can  sell  and  deliver  the  thing  mortgaged,  subject 
only  to  the  right  of  redemption.  A  pledgee  can- 
not sell  and  deliver  his  pawn  until  the  debt  is  due 
and  payment  denied. 

The  civil  law  pigntts  was  our  pledge,  and  the 
hi/potheca  was  our  mortgage  of  chattels.  In  the 
former,  possession  was  in  the  bailor;  in  the  latter, 
in  the  bailee. 

Pledge  and  mortgage,  therefore,  are  diverse  in 
law.  Each  of  the  following  authorities  recognises 
one  or  another  of  the  preceding  distinctions :  3 
Brown,  Ch.  21;  Yelv.  178;  Prec.  in  Chanc.  419;  1 
Ves.  Ch.  358;  2  id.  372;  1  Bulstr.  29;  Comyns, 
Dig.  31ort(jage  ;  Ow.  123;  5  Johns.  N.  Y.  260 ;  8 
id.  97;  2  Pick.  Mass.  607;  5  id.  60;  3  Penn.  St. 
208  ;  6  Mass.  425  ;  22  Me.  248  ;  6  Pet.  449  ;  2  Barb. 
N.  Y.  538 ;  4  Wash.  C.  C.  418 ;  2  Ala.  n.  s.  555 ; 
9  Me.  82  ;  5  N.  H.  545  ;  4  Den.  N.  Y.  489  ;  5  Blackf. 
Ind.  320;  3  Mo.  516;  4  Barb.  N.  Y.  491;  3  Tex. 
119;  1  Parsons,  Contr.  591  et  seq.  « 

The  distinction  between  mortgages  and  pawns 
is  often  observed  strictly.  Hence  an  instrument 
giving  security  upon  a  chattel  for  the  future  pay- 
ment of  a  debt  was  held  to  be  a  mortgage  and 
not  a  pledge,  because  it  provided  for  the  continu- 
ance of  the  possession  of  the  debtor  until  pay- 
ment, or  on  non-payment  at  the  appointed  day 
authorized  the  creditor  to  take  possession ;  and  this 
was  held  although  instead  of  the  ordinary  terms 
of  conveyance  the  words  used  were,  "I  hereby 
pledge  and  give  a  lien  on,"  etc.  9  Wend.  N.  Y.  80. 
If  a  pledge  is  given  with  the  understanding  that 
if  the  debt  be  not  paid  within  the  stipulated  time 
the  pledgee  shall  have  the  pledge,  the  pledge 
does  not  pass  to  the  pledgee  oh  non-payment, 
unless  the  transaction  be  proved  a  mortgage  and 
not  a  pledge.  3  Tex.  119;  2  Cow.  N.  Y.  324. 
These  decisions  coincide,  apparently,  with  the  doc- 
trines of  the  civil  law  and  the  French  Code. 

12.  It  has  been  seen  that  when  no  definite 
day  is  appointed  the  pledge  may  be  re- 
deemed at  any  time.  Hence,  if  the  pledgee 
himself  do  not  give  notice  to  the  pledgeor 
to  redeem,  the  latter  has  his  whole  lifetime 
in  which  to  do  so  ;  and  his  right  of  re- 
demption survives  and  goes  to  his  represent- 
atives. 3  Mo.  316;  1  Call,  Va.  290.  But 
for  further  discussion  of  pledge  and  hypothe- 
cation see  2  Ld.  Raym.  982;  1  Atk.  Ch. 
165 ;  5  C.  Rob.  Adra.  218 ;  2  Curt.  C.  C. 
404;  1  Parsons,  Marit.  Law,  118. 

In  Louisiana  there  are  two  kinds  of 
pledges, — the  pawn  and  the  antichresis.  The 
former  relates  to  movable  securities,  and  the 
latter  to  immovables.  If  a  creditor  have  not 
a  right  to  enter  on  the  land  and  reap  the 
fruits,  the  security  is  not  an  antichresis.  3 
La.  157.  A  pledge  of  negotiable  paper  ia 
not  valid  against  third  parties  without  trans- 
fer from  debtor  to  creditor.  2  La.  387. 
See,  in  general,  13  Pet.  351 ;  5  Mart.  La.  N. 
s.  618  ;  18  La.  543  ;  1  La.  Ann.  340 ;  2  id. 
872. 


PLEDGEE 


343 


PLURALITY 


Additional  cases  on  special  rules  of  the 
law  of  pledge  are— 1  Iloffm.  Ch.  N.  Y.  487  ; 
I  Havw.  No.  C.  10  ;  2  id.  405  ;  Wright,  Ohio, 
370;'  8  N.  II.  325  ;  14  id.  507  ;  21  id.  11  ; 
Gilbert,  Eq.  104  ;  1  Harr.  &G.  Md.  11 ;  2  Aik. 
Vt.  150 ;  6  Vt.  536  ;  22  id.  274 :  4  Mas.  C.  C. 
515;  2  Hale,  PI.  Cr.  G3  ;  13  Ala.  n.  s.  77G, 
790;  1  La.  Ann.  31,  379;  11  Penn.  St.  120; 
22  id.  471  ;  3  Ohio  St.  270 ;  4  Eng.  L.  &  Eq. 
138  ;  13  id.  261. 

PLEDGEE.  He  to  whom  a  thing  is 
fledged. 

PLEDGEOR.  The  party  who  makes  a 
pledge. 

PLEDGES.  In  Pleading.  Those  per- 
sons who  became  sureties  for  the  plaintiff's 
prosecution  of  the  suit.  Their  names  were 
anciently  appended  at  the  foot  of  the  declara- 
tion. In  time  it  became  purely  a  formal 
matter,  because  the  plaintiff  was  no  longer 
liable  to  be  amerced  for  a  false  claim,  and  the 
fictitious  persons  John  Doe  and  Richard  Roe 
became  the  universal  pledges,  or  they  might 
be  omitted  altogether,  1  Tidd,  Pract.  455  ; 
Archbold,  Civ.  Plead.  171,  or  inserted  at  any 
time  before  judgment,  4  Johns.  N.  Y.  90,  and 
are  now  omitted. 

PLEGIIS  ACQUIETANDIS,  WRIT 

DE.  The  name  of  an  ancient  writ  in  the 
English  law,  which  lies  where  a  man  becomes 
pledge  or  surety  for  another  to  pay  a  certain 
sum  of  money  at  a  certain  day  :  after  the  day, 
if  the  debtor  does  not  pay  the  debt,  and  the 
surety  be  compelled  to  pay,  he  shall  have  this 
writ  to  compel  the  delDtor  to  pay  the  same. 
Fitzherbert,  Nat.  Brev.  321. 

PLENA  PROBATIO.    In  Civil  Law. 

A  term  used  to  signify  full  proof,  in  contra- 
distinction to  semi-plena  probatio,  which  is 
only  a  presumption.  Code,  4.  19.  5.  etc. ;  1 
Greenleaf,  Ev.  ^  119. 

PLENARTY.  In  Ecclesiastical  Law. 
Signifies  that  a  benefice  is  full.  See  Avoid- 
ance. 

PLENARY.    Full;  complete. 

In  the  courts  of  admiralty,  and  in  the  Eng- 
lish ecclesiastical  courts,  causes  or  suits  in 
respect  of  the  different  course  of  proceedings 
in  each  are  termed  plenary  or  summary. 
Plenary,  or  full  and  formal,  suits  are  those  in 
which  the  proceedings  must  be  full  andformal ; 
the  term  summary  is  applied  to  those  causes 
where  the  proceedings  are  more  succinct  and 
less  formal.    2  Chitty,  Pract.  481. 

PLENE  ADMINISTRAVIT  (Lat.  he 
has  fully  administered).  In  Pleading.  A 
plea  in  bar  entered  by  an  executor  or  admi- 
nistrator, by  which  he  affirms  that  he  had 
not  in  hifi possession  at  the  time  of  the  com- 
mencement of  the  suit,  nor  has  had  at  any 
time  since,  any  goods  of  the  deceased  to  be 
administered  ;  when  the  plaintiff  replies  that 
the  defendant  had  goods,  etc.  in  his  posses- 
won  at  that  time,  and  the  parties  join  issue, 
the  burden  of  the  proof  will  be  on  the  plain- 
tiff. See  15  Johns.  N.  Y.  323  ;  6  Term,  10 ; 
I  Barnew.  &  Aid.  254 ;  11  Viner.  Abr.  349  ; 


12  id.  185  ;  2  Phillipps,  Ev.  295  ;  3  Saund 
(a)  315,  n.  1  ;  6  Comyi.s,  Dig.  311. 

PLENE  ADMINISTRAVIT  PRiB 

TER  (Lat.  he  has  fully  administered  except). 
In  Pleading.  A  plea  ))y  which  a  defendant 
executor  or  administrator  admits  that  there 
is  a  balance  remaining  in  his  hands  unad- 
ministercd. 

PLENE  COMPUTAVIT  (Lat.  he  has 
fully  accounted).  In  Pleading.  A  plea  in 
an  action  of  account  render,  by  which  the  de- 
fendant avers  that  he  has  fully  accounted. 
Bacon,  Abr.  Accompt  (E).  This  plea  does 
not  admit  the  liability  of  the  defendant  to 
account.    15  Serg.  &  R.  Penn.  153. 

PLENIPOTENTIARY.  Possessing  full 
powers  :  as,  a  minister  plenipotentiary  is  one 
authorized  fully  to  settle  the  matters  con- 
nected with  his  mission,  subject,  however,  to 
the  ratification  of  the  government  by  which 
he  is  authorized.    See  Minister. 

PLENUM  DOMINIUM  (Lat.).  The 
unlimited  right  which  the  owner  has  to  use 
his  property  as  he  deems  proper,  without 
accountability  to  any  one. 

PLIGHT.  An  old  English  word,  used 
sometimes  for  the  estate  with  the  habit  and 
quality  of  the  land.  Coke,  Litt.  221.  It  ex- 
tends to  a  rent-charge  and  to  a  possibility  of 
dower.  Id.;  1  Rolle,  Abr.  447  ;  Littleton,  I 
289. 

PLOUGH-BOTE.  An  allowance  made 
to  a  rural  tenant  of  wood  sufficient  for  ploughs, 
harrows,  carts,  and  other  instruments  of  hus- 
bandry. 

PLOUGH-LAND.  In  Old  English  Law. 

An  uncertain  quantity  of  land.  According 
to  some  opinions,  it  contains  one  hundred  and 
twenty  acres.    Coke,  Litt.  69  a. 

PLUNDER.  The  capture  of  personal 
property  on  land  by  a  public  enemy,  with 
a  view  of  making  it  his  own.  The  property 
so  captured  is  called  plunder.  See  Booty  ; 
Prize. 

PLUNDERAGE.    In  Maritime  Law. 

The  embezzlement  of  goods  on  board  of  a 
ship  is  known  by  the  name  of  plunderage. 

The  rule  of  the  maritime  law  in  such  cases 
is  that  the  whole  crew  shall  be  responsible 
for  the  property  thus  embezzled,  because 
there  must  be  some  negligence  in  finding  out 
the  depredator.  Abbott,  Shipp.  457  ;  3  Johns. 
N.  Y.  17  ;  1  Pet.  Adm.  200,  239,  243  ;  4  Bos. 
&  P.  347. 

PLURAL.  A  term  used  in  grammar, 
which  signifies  more  than  one. 

Sometimes,  however,  it  may  be  so  used  that 
it  means  only  one :  as,  if  a  man  were  to  de- 
vise to  another  all  he  was  worth  if  he,  the 
testator,  died  without  children,  and  be  died 
leaving  one  child,  the  devise  would  not  take 
eff'ect.  See  Dig.  50.  16.  148  ;  Shelford,  Lun. 
504,  518. 

PLURALITY.  The  greatest  number  of 
votes  given  for  any  one  person. 

Phirality  has  the  meaning,  as  used  in  govern- 
mental law,  given  above.    Thus,  if  there  are  three 


PLURIES 


344 


POISON 


candidates,  for  whom  four  hundred,  three  hundred 
and  fifty,  and  two  hundred  and  fifty  votes  are  re- 
spectively given,  the  one  receiving  four  hundred 
has  a  plurality,  while  five  hundred  would  be  a  ma- 
jority of  the  votes  cast.    See  Majority. 

PLURIES  (Lat.  many  times).  A  writ 
issued  subsequently  to  a  first  and  second 
(alias)  of  the  same  kind,  which  have  proved 
ineffectual.  The  name  is  given  to  it  from 
the  word  pluries  in  the  Latin  form  of  the 
writ:  "we  command  you,  as  we  have  often 
[pluries]  commanded  you  before,"  which  dis- 
tinguishes it  from  those  which  have  gone  be- 
fore. Pluries  is  variously  translated,  in  the 
modern  forms  of  writs,  by  "  formerly,'' 
"more  than  once,"  "  often."  The  next  writ 
to  the  pluries  is  called  the  second  pluries: 
and  so  on.  3  Sharswood,  Blackst.  Comm. 
283,  App.  15  ;  Natura  Brev.  33. 

POACHING.  Unlawful  entering  land, 
in  night-time,  armed,  with  intent  to  destroy 
game.  1  Russell,  Crimes,  469  ;  2  Stephen, 
Comm.  82 ;  2  Chitty,  Stat.  221-245. 

POCKET  SHERIFF.  In  English  Law. 
A  sheriff  appointed  by  sole  authority  of  the 
crown,  not  being  one  of  the  three  nominated  by 
the  judges  in  tbe  exchequer.  1  Sharswood, 
Blackst.  Comm.  342*. 

POINDING.  In  Scotch  Law.  That 
diligence  affecting  movable  subjects  by  which 
their  property  is  carried  directly  to  the  cre- 
ditor. Poinding  is  real  or  personal.  Erskine, 
Inst.  3.  6.  11. 

POINDING,  PERSONAL.  Poinding 
of  the  goods  belonging  to  the  debtor,  and  of 
those  goods  only. 

It  may  have  for  its  warrant  either  letters 
of  horning,  containing  a  clause  for  poinding, 
and  then  it  is  executed  by  messengers  ;  or 
precepts  of  poinding,  granted  by  sheriffs, 
commissaries,  etc.,  which  are  executed  by 
their  proper  ofiicers.  No  cattle  pertaining  to 
the  plough,  nor  instruments  of  tillage,  can  be 
poinded  in  the  time  of  laboring  or  tilling  the 
ground,  unless  where  the  debtor  has  no  other 
goods  that  may  be  poinded.  Erskine,  Inst. 
3.  6.  11.  This  process  is  somewhat  similar 
to  distress. 

POINDING,  REAL.  Poinding  of  the 
Ground.  Though  it  be  properly  a  diligence, 
this  is  generally  considered  by  lawyers  as  a 
species  of  real  action,  and  is  so  called  to  dis- 
tinguish it  from  personal  poinding,  which  is 
founded  merely  on  an  obligation  to  pay. 

Every  dehitum  fundi,  whether  legal  or  con- 
ventional, is  a  foundation  for  this  action.  It 
is,  therefore,  competent  to  all  creditors  in 
debts  which  make  a  real  burden  on  lands. 
As  it  proceeds  on  a  real  right,  it  may  be  di- 
rected against  all  goods  that  can  be  found  on 
the  lands  burdened ;  but  goods  brought  upon 
the  ground  by  strangers  are  not  subject  to 
this  diligence.  Even  the  goods  of  a  tenant 
cannot  be  poinded  for  more  than  his  term's 
rent.    Erskine,  Inst.  4.  1.  3. 

POINT.  In  Practice.  A  proposition  or 
question  arising  in  a  case. 

It  is  the  duty  of  a  judge  to  give  an  opinion 


on  every  point  of  law  properly  arising  out 
of  the  issue  which  is  propounded  to  him. 

POINT  RESERVED.  A  point  or  ques- 
tion of  law  which  the  court,  not  being  fully 
satisfied  how  to  decide,  in  the  hurried  trial  of 
a  cause,  rules  in  favor  of  the  party  offering 
it,  but  subject  to  revision  on  a  motion  for  a 
new  trial.  If,  after  argument,  it  be  found  to 
have  been  ruled  correctly,  the  verdict  is  sup- 
ported ;  if  otherwise,  it  is  set  aside. 

POINTS.   Marks  in  writing  and  in  print,  ^ 
to  denote  the  stops  that  ought  to  be  made  in 
reading,  and  to  point  out  the  sense. 

Points  are  not  usually  put  in  legislative 
acts  or  in  deeds,  Eunom.  Dial.  2,  |  33,  p.  239 : 
yet,  in  construing  such  acts  or  instruments, 
the  courts  must  read  them  with  such  stops  as 
will  give  effect  to  the  whole.    4  Term,  65. 

The  points  are — the  comma,  the  semicolon, 
the  colon,  the  full  point,  the  point  of  interro- 
gation and  the  point  of  exclamation.  Bar- 
rington,  Stat.  294,  n.    See  Punctuation. 

POISON.  In  Medical  Jurisprudence. 
A  substance  having  an  inherent  deleterious 
property  which  renders  it,  when  taken  into 
the  system,  capable  of  destroying  life.  Whar- 
ton &  Stille,  Med.  Jur.  g  493 ;  Taylor,  Poi- 
sons, 2d  Am.  ed.  18. 

2.  The  history  of  poisoning,  and  many  remark- 
ahle  early  instances  of  a  wide-spread  use  of  poisons, 
are  recorded  in  works  on  medical  jurisprudence. 
See  these,  and  also,  especially,  Taylor,  Poisons; 
Archbold,  Crim.  Pract.  Waterman's  ed.  940  ;  Whar- 
ton &  Stille,  Med.  Jur.;  1  Beekman,  Hist.  Jur.  74 
et  seq.  The  classification  proposed  by  Mr.  Taylor 
is  as  follows  : — 

C  Acids, 

{Non-Metallic 


IRRITANTS 


J  Alkalies  and 
\  their  Salts. 
[  Metalloids. 
Metallic  ( Arsenic). 
"1  Vegetable  (Savin). 
1  Animal  {Canthurides). 
(  Cerebral  (Morphia). 
NARCOTICS-^  Spinal  (Strychnia). 

I  Cerebro-Spinal  (Conia,  Aconitina). 

GASEOUS. 

Irritant  poisons,  when  taken  in  ordinary  doses, 
occasion  speedily  violent  vomiting  and  purging, 
preceded,  accompanied,  or  followed  by  intense  pain 
in  the  abdomen,  commencing  in  the  region  of  the 
stomach.  The  corrosive  poisons,  as  distinguished 
from  those  in  a  more  limited  sense  termed  irritant, 
generally  produce  their  result  more  speedily,  and 
give  chemical  indications ;  but  every  corrosive  poi- 
son acts  as  an  irritant  in  the  sense  here  adopted. 

Narcotic  poisons  act  chiefly  on  the  brain  or  spinal 
marrow.  Either  immediately  or  some  time  after 
the  poison  has  been  swallowed,  the  patient  suffers 
from  headache,  giddiness,  paralysis,  stupor,  deli- 
rium, insensibility,  and,  in  some  instances,  convul- 
sions. 

3.  The  effects  of  one  class  are,  however,  sometimes 
produced  by  the  other, — more  commonly  as  se- 
condary, but  sometimes  even  as  primary,  symptoms. 

The  evidence  of  poisoning,  as  derived  from 
symjytoma,  is  to  be  looked  for  chiefly  in  %e  sudden- 
ness of  their  occurrence;  this  is  perhaps  the  most 
reliable  of  all  evidence  derived  from  symptoms  in 
cases  of  criminal  poisoning,  see  Taylor,  Pois.  107; 
Christison,  Pois.  42 ;  though  none  of  this  class  of 
evidence  can  be  considered  as  furnishing  any  thing 
better  than  a  high  degree  of  probability;  the  regu- 
lainty  of  their  increase;  this  feature  is  not  uni- 
versal, and  exists  in  many  diseases;  ■uniformity  in 
their  nature;  this  is  true  in  the  case  of  compara 


POLE 


345 


POLICY 


tiv«ly  few  poisons;  the  syinptoms  begin  soon  after  a 
meal ;  but  sleep,  the  maainer  of  administration,  or 
I  sertain  diseases,  may  affect  this  rule  in  the  case  of 
some  poisons;  token  several  partake  at  the  name  time 
of  the  same  poisoned  food,  all  suffer  from  similar 
symptoms,  2  Park.  Cr.  Cas.  N.  Y.  235 ;  Taylor, 
Poisons,  118;  the  symptoms  first  uppeaririy  while 
the  body  is  in  a  state  of  perfect  health.  Archbold, 
Crim.  Plead.  Waterman  ed.  948. 

Appearances  which  ^jreseni  themselves  on  post- 
mortem examinations  are  of  importance  in  regard  to 
,  some  classes  of  irritant  poisons,  see  The  Hersey 
Case,  Mass.  1861;  Palmer's  case,  Taylor,  Poisons, 
697;  but  many  poisons  leave  no  traces  which  can 
be  so  discovered. 
:      Chemical  analysis  often  results  in  important  evi- 
j  dcnce,  by  discovering  the  presence  of  poisons,  which 
I  must  then  be  accounted  for ;  but  a  failure  to  detect 
it  by  no  means  proves  that  it  has  not  been  given. 
Christison,  Poisons,  61,  62. 

The  evidence  derived  from  circnmstances  differs 
in  nothing  in  principle  from  that  in  case  of  com- 
mission of  other  crimes. 

4.  Homicide  by  poisoning  is,  of  course,  ge- 
nerally either  accidental,  so  as  not  to  amount 
i  to  murder,  or  deliberate :  yet  it  has  been 
!  held  that  there  may  be  a  verdict  of  murder 
j  in  the  second  degree  under  an  indictment  for 
I  poisoning.    19  Conn.  388.    The  doctrine  of 
i  principal  and  accessary  is  also  modified  to 
!  Bome  extent  in  its  application  to  cases  of  poi- 
!  Boning.    2  Mood.  Cr.  Cas.  120 ;  9  Carr.  &  P. 
!  356  ;  9  Coke,  81.    As  to  what  constitutes  an 
administration  of  poison,  see  4  Carr.  &  P. 
369  ;  6  id.  161 ;  2  Mood.  &  R.  213. 

Intent  to  kill  need  not  be  specifically  alleged 
in  an  indictment  for  murder  by  poison.  2 
Starkie,  Crim.  Plead,  prec.  18  ;  1  East,  PI. 
Cr.  346  ;  3  Cox,  Cr.  Cas.  300 ;  8  Carr.  &  P. 
418  ;  2  All.  Mass.  173. 
j     Many  of  the  states  have  statutes  inflicting 
I  eevere  penalties  upon  the  administering  of  poi- 
sons with  a  malicious  intent.    See  Archbold, 
Crim.  Pract.  Waterman's  ed.  942 ;  3  N.  Y. 
Rev.  Stat.  5th  ed.  941,  944,  969,  975  ;  Mich. 
Rev.  Stat.  c.  153,  g  13 ;  Mass.  Gen.  Stat.  c. 
160,  I  32 ;  Vt.  Rev.  Stat.  543  ;  Wise.  Rev. 
Stat.  c.  133,  I  44,  c.  144,  ^  39 ;  Iowa  Code,  § 
2728 ;  N.  J.  Rev.  Stat.  268 ;  Ohio  Stat.  1854 
!  ed.  c.  33,  §  34.  _ 

Consult  Christison,  Taylor,  on  Poisons ; 
'  Beck,  Taylor,  Wharton  &  Stille,  Med.  Jur. ; 
Archbold,  Crim.   Pract.  Waterman's  ed. ; 
Russell,  Crimes;  Wharton,  Homicide. 

POLE.  A  measure  of  length,  equal  to 
five  yards  and  a  half.    See  Measure. 

POLICE.  That  species  of  superintend- 
ence by  magistrates  which  has  principally 
for  its  object  the  maintenance  of  public  tran- 
quillity among  the  citizens.  The  officers  who 
are  appointed  for  this  purpose  are  also  called 
the  police. 

The  word  police  has  three  significations.  The 
first  relates  to  the  measures  which  are  adopted  to 
keep  order,  the  laws  and  ordinances  on  cleanliness, 
health,  the  markets,  etc.  The  second  has  for  its 
object  to  procure  to  the  authorities  the  means  of 
detecting  even  the  smallest  attempts  to  commit 
crime,  in  order  that  the  guilty  may  be  arrested  be- 
fore their  plans  are  carried  into  execution,  and  de- 
,  livered  over  to  the  justice  of  the  country.  The 
j  third  comprehends  the  laws,  ordinances,  and  other 


measures  which  require  the  citizens  to  exercise 
their  rights  in  a  particular  form. 
I  Police  has  also  been  divided  into  administrative 
j  police,  which  has  for  its  object  to  maintain  con- 
stantly public  order  in  every  part  of  the  generil 
administration;  uml  judiciary  police,  y/Wich  is  in- 
tended principally  to  prevent  crimes  by  puniih- 
ing  the  criminals.  Its  object  is  to  punish  Crimea 
which  the  administrative  police  has  not  been  able 
to  prevent. 

POLICE  JURY.    In  Louisiana.  A 

name  given  to  certain  officers  who  collectr 
ively  exercise  jurisdiction  in  certain  cases  of 
police:  as,  levying  taxes,  regulating  roads, 
etc. 

POLICY.  In  Insurance.  The  instru- 
ment whereby  insurance  is  made  by  an  un- 
derwriter in  favor  of  an  assured,  expressed, 
implied,  or  intended,  against  some  risk,  peril, 
or  contingency  in  reference  to  some  subject. 
It  is  usually  either  marine,  or  against  fire, 
or  on  a  life. 

It  must  show  expressly,  or  by  implication,  in 
whose  favor  it  is  made.  It  may  be  upon  a  valu- 
able property,  interest,  or  contingency,  or  be  a 
gaming  or  wagering  policy  on  a  subject  in  which  the 
assured  has  no  interest,  or  against  risks  in  respect 
to  which  the  assured  has  no  interest  except  what 
arises  from  the  contract  itself.  A  wagering  policy 
is  valid  or  not,  according  as  a  wager  is  or  is  not 
recognized  as  a  valid  contract  by  the  lex  loci. 

An  interest  policy  is  one  where  the  insured 
has  a  real,  substantial,  assignable  interest  in 
the  thing  insured. 

An  open  policy  is  one  on  which  the  value  is 
to  be  proved  by  the  assured.  1  Phillips,  Ins.  H 
4, 6, 7,  27, 439, 948, 1178.  By  an  "open  policy" 
is  also  sometimes  meant,  in  the  United  States, 
one  in  which  an  aggregate  amount  is  ex- 
pressed in  the  body  of  the  policy,  and  the 
specific  amounts  and  subjects  are  to  be  in- 
dorsed from  time  to  time.  12  La.  Ann.  259; 
19  N.  Y.  305  ;  6  Gray,  Mass.  214. 

A  valued  policy  is  one  where  a  value  has 
been  set  on  the  ship  or  goods  insured,  and 
this  value  inserted  in  the  policy  in  the  nature 
of  liquidated  damages.  In  such  a  policy  the 
value  of  the  subject  is  expressly  agreed,  or 
is,  as  between  the  parties,  the  amount  insured 

A  wager  policy  is  a  pretended  insurance, 
founded  on  an  ideal  risk,  where  the  insured 
has  no  interest  in  the  thing  insured,  and  can 
therefore  sustain  no  loss  by  the  happening 
of  any  of  the  misfortunes  insured  against. 
These  policies  are  strongly  reprobated.  3 
Kent,  Comm.  225. 

2.  Records  and  documents  expressly  re- 
ferred to  in  the  policy  are  in  effect,  for  the 
purpose  of  the  reference,  a  part  of  the  con- 
tract. 1  Phillips,  Ins.  U  70-74  ;  22  Conn. 
235;  37  Me.  137;  20  Barb.  N.  Y.  468;  23 
Penn.  St.  50;  23  Eng.  L.  &  Eq.  514;  2  N. 
H.  551 ;  33  id.  203  ;  10  Cush.  Mass.  337.  A 
policy  may  take  effect  on  actual  or  construct- 
ive delivery,  and  may  be  retrospective  where 
neither  party  knows  the  prior  circumstances. 
1  Phillips,  Ins.  ch.  xi.  sect.  i. :  1  Ind.  196, 
27  Penn.  St.  268  ;  42  Me.  259  ;  25  Conn. 
207 ;  17  N.  Y.  415  ;  2  Dutch.  N.  J.  268 ;  f 
Gray,  Mass.  52. 


POLITICAL 


346 


PONE 


Every  policy,  whether  marine,  against  fire, 
or  on  life,  specifies  or  imports  parties,  and 
specifies  the  subject  or  interest  intended  to 
be  insured,  the  premium  or  other  considera- 
tion, the  amount  insured,  the  risks  and  perils 
for  which  indemnity  is  stipulated,  and  the  pe- 
riod of  the  risk  or  the  terminus  a  quo  and  ad 
quern. 

3.  The  duration  of  the  risk,  under  a  marine 
insurance  or  one  on  inland  navigation,  is 
either  from  one  geographical  terminus  to 
another,  or  for  a  specified  time ;  that  of  a 
fire-policy  is  for  a  specified  time ;  one  on  life 
is  either  for  life  or  a  term  of  years,  months, 
etc.  It  is  a  leading  principle,  as  to  the  con- 
struction of  a  policy  of  insurance,  that  its 
distinguishing  character  as  a  contract  of  in- 
demnity is  to  be  favored ;  which  is  in  con- 
formity with  the  common  maxim,  ut  res  valeat 
magis  quam  pereat.  1  Phillips,  Ins.  ch.  i. 
sect,  xiii.;  8  N.  Y.  351;  18  id.  385;  8 
Cush.  Mass.  393  ;  9  id.  479  ;  10  id.  356  ;  17 
Penn.  St.  253  :  19  id.  45  ;  23  id.  2G2 ;  32  id. 
381 ;  29  Eng.  L.  &  Eq.  Ill,  215  ;  33  id.  514  ;  2 
Du.  N.  Y.  419,  554  ;  3  id.  435  ;  5  id.  517,  594 ; 
14  Barb.  N.  Y.  383  ;  20  id.  635  ;  16  Mo.  98  ; 
22  id.  82 ;  22  Conn.  235 ;  13  B.  Monr.  Ky. 
311  ;  16  id.  242;  3  Ind.  23  ;  11  id.  171  ;  28 
N.  H.  234;  29  id.  182;  2  Curt.  C.  C.  322, 
610 ;  37  Me.  137  ;  4  Zabr.  N.  J.  447  ;  18  111. 
653  ;  4  R.  I.  159  ;  5  id.  426  ;  6  Gray,  Mass. 
214,  257  ;  7  id.  261 ;  8  Ohio,  458. 

4.  In  marine  insurance  the  contract  has 
necessarily  more  implied  reference  to  cus- 
toms and  usages  than  most  other  contracts ; 
or,  in  other  words,  a  larger  proportion  of 
the  stipulations  are  not  specifically  expressed 
in  the  instrument,  1  Phillips,  Ins.  §  119; 
whence  it  has  been  thought  to  be  an  imper- 
fect, obscure,  confused  instrument.  1  Phil- 
lips, Ins.  ^  6,  n.  3 ;  1  East,  579 ;  5  Cranch, 
342 ;  1  Burr.  347.  But  the  difficulty  in  giv- 
ing it  a  practical  construction  seems  to  arise 
more  from  the  complication  of  the  circum- 
stances necessarily  involved,  than  from  any  re- 
mediable defects  in  its  provisions  and  phrase- 
ology. New  provisions  are,  however,  needed, 
from  time  to  time,  to  adapt  the  contract  to 
new  circumstances.  A  mistake  in  filling  up 
a  policy  may  be  corrected  by  order  of  a  court 
of  equity.  1  Phillips,  Ins.  |  117  ;  5  Bos.  & 
P.  322  ;  2  Caines,  N.  Y.  339  ;  1  Wash.  C.  C. 
415;  1  Ves.  Sen.  Ch.  317,456;  2  Cranch, 
441;  2  Johns.  N.  Y.  330;  1  Ark.  545;  1 
Paige,  Ch.  N.  Y.  278 ;  2  Curt.  C.  C.  277. 

See  Abandonment;  Average;  Insurable 
Interest  ;  Insurance  ;  Salvage  ;  Loss  ; 
Total  Loss. 

POLITICAL.  Pertaining  to  policy,  or 
the  administration  of  the  government.  Poli- 
tical riglits  are  those  which  may  be  exercised 
in  the  formation  or  administration  of  the 
government:  they  are  distinguished  from  civil 
rights,  which  are  the  rights  which  a  man 
enjoys  as  regards  other  individuals,  and  not 
in  relation  to  the  government.  A  political 
corporation  is  one  which  has  principally  for 
its  object  the  administration  of  the  govern- 
ment, or  to  which  the  powers  of  government, 


or  a  part  of  such  powers,  have  been  delegated, 
1  Bouvier,  Inst.  nn.  182,  197,  198. 

POLL.  A  head.  Hence  poll-tax  is  the 
name  of  a  tax  imposed  upon  the  people  at 
so  much  a  head. 

To  poll  a  jury  is  to  require  that  each 
juror  shall  himself  declare  what  is  his 
verdict.  This  may  be  done,  at  the  instance 
of  either  party,  at  any  time  before  the  ver- 
dict is  recorded,  according  to  the  practice  in 
some  states.  See  3  Cow.  N.  Y.  23 ;  18  Johns. 
N.  Y.  188 ;  1  111.  109 ;  7  id.  342 ;  9  id.  336. 
In  some  states  it  lies  in  the  discretion  of  the 
judge.    1  M'Cord,  So.  C.  24,  525 ;  22  Ga.  431. 

In  Conveyancing.  A  deed-poll,  or  single 
deed,  is  one  made  by  a  single  party,  whose 
edges  are  ptolled,  or  shaved  even,  in  dis' 
tinction  from  an  indenture,  whose  sides  are 
indented,  and  which  is  executed  by  more 
than  one  party.  2  Sharswood,  Blackst. 
Comm.  296.    See  Deed-Poll. 

POLL-TAX.  A  capitation  tax ;  a  tax 
assessed  on  every  head,  i.e.  on  every  male 
of  a  certain  age,  etc.,  according  to  statute. 
Mass.  Gen.  Stat.  74,  75;  Webster,  Diet.; 
Wharton,  Diet.  2d  Lond.  ed. 

POLLICITATION.  In  Civil  Law.  A 
promise  not  yet  accepted  by  the  person  to 
whom  it  is  made. 

It  differs  from  a  contract,  inasmuch  as  the  latter 
includes  a  concurrence  of  intention  in  two  parties, 
one  of  whom  promises  something  to  the  other, 
who  accepts,  on  his  part,  of  such  promise.  Grotius, 
1.  2,  c.  2 ;  Pothier,  Obi.  pt.  1,  c.  1,  s.  1,  art.  1,  g  2. 

POLLS.  The  place  where  electors  cast 
in  their  votes. 

POLYANDRY.  The  state  of  a  womaD 
who  has  several  husbands. 

Polyandry  is  legalized  only  in  Thibet. 
It  is  inconsistent  with  the  law  of  nature 
See  Law  of  Nature. 

POLYGAMY.  The  act  or  state  of  a 
person  who,  knowing  that  he  has  two  or 
more  wives,  or  that  she  has  two  or  more 
husbands,  marries  another. 

It  differs  from  bigamy,  which  see.  Comyns,  Dig. 
Justices  (So);  Diet,  de  Jur. ;  Coke,  3d  Inst.  88. 

But  bigamy  is  now  commonly  used  even  where 
polygamy  would  be  strictly  correct.  1  Russell, 
Crimes,  186,  n.  On  the  other  hand,  polygamy  it 
used  where  bigamy  would  be  strictly  correct. 
Mass.  Gen.  Stat.  1860,  p.  817. 

POLYGARCHY.  A  term  used  to  ex- 
press a  government  which  is  shared  by  several 
persons:  as,  when  two  brothers  succeed  to 
the  throne  and  reign  jointly. 

POND.    A  body  of  stagnant  water;  a  pool. 

Anyone  has  a  right  to  erectafish-poud ;  the 
fish  in  it  are  considered  as  real  estate,  and  pass 
to  the  heir,  and  not  to  the  executor.    Ow.  20. 

PONE  (Lat.  ponere,  to  put).  In  English 
Practice.  An  original  writ  issuing  out  of 
chancery,  for  the  purpore  of  removing  a 
plaint  from  an  inferior  court  into  tlie  superior 
courts  at  Westminster.  The  word  signifies 
"  put put  by  gages,  etc.  The  writ  is  called 
from  the  words  it  contained  when  in  Latin, 
Fane  per  vadium  et  salvos  plegios,  etc  :  put 


PONERE 


347 


ov  gfi^je  and  safe  pledges,  etc.  See  Fitzher- 
bert,  Nat.  Brev.  69,  70  a;  Wilkinson,  Kepi. 
Index. 

PONERE  (Lat.).  To  put.  The  word  is 
used  in  the  old  law  in  various  connections, 
in  all  of  which  it  can  be  translated  by  the 
English  verb  "puf  See  Glanville,  lib.  2, 
c.  3. 

PONIT  SE  (Lat.  puts  himself).  In 
English  Criminal  Practice.  When  the 
defendant  pleads  "not  guilty,''  his  plea  is 
recorded  by  the  officer  of  the  court,  either  by 
writing  the  words  "  po.  se,'*  an  abbreviation 
of  the  words  ponit  se  super  patriam  (puts 
himself  upon  his  country),  or,  as  at  the 
central  criminal  court,  no7i  cul.  2  Den.  Cr. 
Cas.  392.    See  Arraignment. 

PONTAGE.  A  contribution  towards  the 
maintenance,  rebuilding,  or  repairs  of  a 
bridge.  The  toll  taken  for  this  purpose  also 
bears  this  name.  Obsolete. 

POOL.    A  small  lake  of  standing  water. 

By  the  grant  of  a  pool,  it  is  said,  both  the 
land  and  water  will  pass.  Coke,  Litt.  5. 
Undoubtedly  the  right  to  fish,  and  probably 
the  right  to  use  hydraulic  works,  will  be 
acquired  by  such  grant.  2  N.  H.  259 ; 
Angell,  Waterc.  C.  47 ;  Coke,  Litt.  5  ;  Bacon, 
Abr.  Grants  (H  3)  ;  Corny ns,  Dig.  Grant 
(E  5)  ;  5  Cow.  N.  Y.  216;  Croke  Jac.  150; 
1  Lev.  44 ;  Plowd.  161 ;  Vaugh.  103. 

POOR  DEBTORS.  By  the  laws  which 
exist  in  some  states  for  the  relief  of  poor 
debtors,  it  is  generally  provided  that  any  one 
arrested  or  imprisoned  for  debt  or  upon 
mesne  process  in  an  action  of  contract,  to 
procure  his  discharge  from  arrest  may 
summon  his  creditor  before  a  magistrate,  and 
there  take  oath  that  he  has  no  property 
with  which  to  pay  the  debt  on  which  he  is 
detained. 

2.  The  debtor,  to  procure  his  discharge,  is 
usually  obliged  to  swear  that  he  has  not 
property  to  a  certain  amount  (usually  ten 
or  twenty  dollars)  over,  above,  and  besides 
certain  articles  exempted  as  necessary  to 
the  support  of  the  debtor  or  his  family. 
These  articles  are  usually  those  which  are 
also  exempted  from  attachment  on  mesne 
process  or  execution.  In  many  states,  poor 
debtors  are  protected  by  the  insolvent  laws. 
The  following  states  seem  to  have  made 
special  provisions  for  the  relief  of  poor 
debtors.  In  the  District  of  Columhia,  and 
Indiana,  any  one  who  is  arrested  may  free 
himself  by  delivering  to  the  marshal  or 
officer  all  his  property,  and  taking  oath 
before  a  magistrate.  Notice  is  given  the  cre- 
ditor, who  may  put  questions.  The  marshal 
or  officer  disposes  of  the  property  as  if  it  were 
taken  upon  execution.  Rev.  Code  Dist.  of 
Columbia,  1857,  §  62;  Rev.  Stat.  (1852) 
Ind. ;  2  Blackstone,  Comm.  394.  In  Georgia, 
a  woman  cannot  be  arrested  for  debt.  Act 
Feb.  2,  1854.  In  Illinois,  a  debtor  is  freed 
from  prison  upon  taking  the  poor  debtor's 
oath,  and,  if  h|  has  no  property,  the  creditor 


is  obliged  to  pay  the  fees  of  the  jail.  111. 
Stat.  p.  ii.  583.  In  Maine,  MassadmsettSy 
and  Rhode  Island,  the  poor  debtor  is  re. 
leased  upon  making  oath  that  he  has  not 
property  to  the  value  of  twenty  dollars 
above  the  articles  exempted  by  statute. 
These  exempted  articles  are  somewhat  dif- 
ferent in  the  different  states  mentioned.  lu 
Maine,  also,  the  debtor  makes  certain  dis- 
closures of  his  property  which  is  set  off  to 
satisfy  his  debts.  Me.  Rev.  Stat.  ch.  113,  p. 
634,  March  19,  1860;  Acts  March  13,  1861, 
Feb.  21  and  29, 1860  ;  Mass.  Gen.  Stat. (I860) 
ch.  124,  p.  633  ;  R.  I.  Rev.  Stat.  (1857)  481. 
In  ISew  Hampshire,  any  one  arrested  or  im- 
prisoned for  debt  may  petition  two  justices  of 
the  peace,  setting  forth  property  less  than 
twenty  dollars.  Fraud  on  the  debtor's  part 
prevents  discharge,  and  malice  or  wilful  act 
being  the  cause  of  arrest  makes  the  dis- 
charge discretionary  with  the  magistrates. 
N.  H.^Stat.  ch.  213,  p.  508.  In  New 
York,  any  one  imprisoned  for  above  five 
hundred  dollars  more  than  three  months 
may  make  a  petition  and  oath,  on  whiv^h  the 
proceedings  are  the  same  as  in  insolvency. 
Arrest  is  allowed  only  in  fraud.  In  North 
Carolina  and  Virginia,  a  debtor  after  lying 
in  jail  twenty  days  may  be  discharged. 
He  petitions  the  court  of  common  pleas, 
quarter  sessions,  two  justices  of  the  peace 
of  the  county,  or  a  judge  of  the  superior  or 
supreme  court.  Ten  days'  notice  is  given 
the  creditor,  or  to  the  clerk  of  the  court,  in 
case  of  bastardy.  The  oath  taken  is  that 
the  debtor  has  less  than  ten  dollars  in 
property.  He  may  still  be  arrested  by  any 
other  creditor.  5  Jones,  No.  C.  145  ;  No.  C. 
Rev.  Code  (1854),  c.  59,  ^  1 ;  Va.  Rev.  Code 
(1854).  In  Oregon,  execution  debtors  after 
ten  days  may  give  notice  that  they  will 
apply  and  be  examined  before  a  judge  of  the 
district  court,  or  two  justices  of  the  peace 
of  the  county.  An  oath  is  taken  that  the 
debtor  has  not  above  twenty  dollars.  A 
certificate  is  then  granted;  and  an  applica- 
tion may  be  made  every  ten  days.  5th  & 
6th  Sess.  Laws  of  Oregon.  In  Pennsylvania, 
after  thirty  days'  imprisonment  for  a  debt  of 
less  than  one  hundred  and  fifty-one  dollars, 
a  discharge  is  granted.  In  South  Carolina, 
a  person  imprisoned,  making  oath  that  he  is 
not  worth  forty  dollars,  is  discharged  the  debt 
and  costs.  3  So.  C.  Stat.  173.  In  Vermont, 
a  poor  debtor  may  be  discharged  from  im- 
prisonment, Vt.  Stat.  1850,  251-253,  II  70  -79, 
and  by  the  jail  commissioners.  Id.  577-581, 
§1  34-60.  In  Wisconsin,  the  prisoner  in 
execution  for  a  tort  may  free  himself  from 
arrest  by  taking  the  poor  debtor's  oath,  his 
property  remaining  subject  to  attachment. 
Wise.  Rev.  Stat.  (1858)  ch.  161,  p.  920.  In 
Upper  Canada,  there  is  an  "  Indigent  D(?btor'8 
Act."  U.C.  Cons.  Stat.  296,  c.  26.  The  debtor 
is  relieved  when  in  close  custody  on  mesne 
process.  He  makes  oath  that  he  has  not 
property  to  the  amount  of  five  pounds,  or 
that  he  believes  the  claim  unjust,  and  sub- 
mits to  examination. 


POPE 


348 


POSITIVE  LAW 


POPE.  The  head  of  the  Roman  Catholic 
church.  He  is  a  temporal  prince.  He  is 
elected  by  certain  officers  called  cardinals, 
and  remains  in  power  during  life.  In  the 
9th  Collation  of  the  Authentics  it  is  declared 
the  bishop  of  Rome  hath  the  first  place  of 
sitting  in  all  assemblies,  and  the  bishop  of 
Constantinople  the  second.  Ridley,  Civ.  & 
Eccl.  Law,  pt.  1,  c.  3,  |  10. 

The  pope  has  no  political  authority  in  the 
United  States. 

POPE'S  FOLLY.  The  name  of  a  small 
island  situated  in  the  bay  of  Passamaquoddy, 
which,  it  has  been  decided,  is  within  the 
iurisdiction  of  the  United  States.  1  Ware, 
bist.  Ct.  26. 

POPULAR  ACTION.  An  action  given 
by  statute  to  any  one  who  will  sue  for  the 
penalty.    A  qui  tam  action.    Dig.  47.  23.  1. 

POPULISCITUM(Lat.).  An  act  of  the 
commons :  same  as  plehiscitum.  Ainsworth, 
Diet.  * 

A  law  passed  by  the  whole  people  assem- 
bled in  comitia  centuriafa,  and  at  the  pro- 
posal of  one  of  the  senate,  instead  of  a 
tribune,  as  was  the  case  with  a  plebisciium. 
Taylor,  Civ.  Law,  178  ;  Mackeldy,  Civ.  Law, 
U  26,  37. 

PORT.  A  place  to  which  the  officers  of 
the  customs  are  appropriated,  and  which 
includes  the  privileges  and  guidance  of  all 
members  and  creeks  which  are  allotted  to 
them.  1  Chitty,  Com.  Law,  726;  Postle- 
vraith,  Com.  Diet.  According  to  Dalloz,  a 
port  is  a  place  within  land,  protected  against 
the  waves  and  winds  and  affording  to  vessels 
a  place  of  safety.  By  the  Roman  law  a  port 
is  defined  to  be  locus  conclusus,  quo  impor- 
iantur  merces  et  unde  exportantur.  Dig.  50. 
16.  59.    See  7  Mart.  La.  n.  s.  81. 

A  port  differs  from  a  haven,  and  includes 
something  more.  First,  it  is  a  place  at 
which  vessels  may  arrive  and  discharge  or 
take  in  their  cargoes.  Second,  it  compre- 
hends a  ville,  city,  or  borough,  called  in 
Latin  caput  corpus,  for  the  reception  of 
mariners  and  merchants,  for  securing  the 
goods  and  bringing  them  to  market,  and 
for  victualling  the  ships.  Third,  it  is  im- 
pressed with  its  legal  character  by  the  civil 
authority.  Hale,  de  Portibus  Mar.  c.  2 ;  1 
Hargrave,  Tracts,  46,  73  ;  Bacon,  Abr.  Pre- 
rogative (D  5) ;  Comyns,  Dig.  Navigation 
(E);  Coke,  4th  Inst.  148;  Callis,  Sewers, 
66;  2  Chitty,  Com.  Law,  2;  Dig.  50.  16.59; 
43.  12.  1.  13;  47.  10.  15.7;  39.4.  15. 

PORT  TOLL.  The  toll  paid  for  bringing 
goods  into  a  port. 

PORTATICA  (L.  Lat.).  In  English 
Law.  The  generic  name  for  port  duties 
charged  to  ships.   Hargrave,  Law  Tracts,  74. 

PORTER.  The  name  of  an  ancient 
English  officer  who  bore  or  carried  a  rod 
before  the  justices.  The  door-keeper  of  the 
English  parliament  also  bears  this  name. 

One  who  is  employed  as  a  common  carrier 
io  carry  goods  from  one  place  to  another  in 


the  same  town  is  also  called  a  por^^er.  Such 
person  is,  in  general,  answerable  as  a  common 
carrier.    Story,  Bailm.  §  496. 

PORTGREVE  (from  Sax.  gerefa,  reeve 
or  bailiff,  and  port).  A  chief  magistrate  in 
certain  maritime  towns.  The  chief  magis- 
trate of  London  was  anciently  so  called,  as 
appears  from  a  charter  of  king  William  I. 
Instead  of  this  portgreve  of  London,  the 
succeeding  kings  appointed  two  bailiffs,  and 
afterwards  a  mayor.    Camden,  Hist.  325. 

PORTION.  That  part  of  a  parent's 
estate,  or  the  estate  of  one  standing  in  loco 
parentis,  which  is  given  to  a  child.  1  Vern. 
204.  See  8  Comyns,  Dig.  539 ;  16  Viner, 
Abr.  432  ;  1  Belt,  Suppl.  Ves.  Ch.  34,  58,  303, 
308  ;  2  id.  46,  370,  404. 

PORTORIA{Lat.).  In  Civil  Law.  Duties 
paid  in  ports  on  merchandise.  Code,  4.  61. 
3.  Taxes  levied  in  old  times  at  city  gates. 
Tolls  for  passing  over  bridges.  Vicat,  Voc. 
Jur. ;  Spelman,  Gloss. 

PORTSALES.  Auctions  were  anciently 
so  called,  because  they  took  place  in  ports. 

POSITIVE.  Express ;  absolute ;  not 
doubtful.  This  word  is  frequently  used  in 
composition. 

POSITIVE  CONDITION.    One  in 

which  the  thing  which  is  the  subject  of  it  ' 
must  happen  :  as,  if  I  marry.    It  is  opposed  \ 
to  a  negative  condition,  which  is  where  the 
thing  which  is  the  subject  of  it  must  not  hap-  , 
pen  :  as,  if  I  do  not  marry:  , 

POSITIVE  EVIDENCE  is  that  which, 
if  believed,  establishes  the  truth  or  falsehood 
of  a  fact  in  issue,  and  does  not  arise  from 
any  presumption.  It  is  distinguished  from 
circumstantial  evidence.  3  Bouvier,  Inst,  n, 
3057. 

POSITIVE  FRAUD  is  the  intentional 
and  successful  employment  of  any  cunning,  • 
deception,  or  artifice,  to  circumvent,  cheat,  or  ' 
deceive  another.     1  Story,  Eq.  Jur.  186: 
Dig.  4.  3.  1.  2;  Dig.  2.  14.  7.  9.    It  is  cited 
in  opposition  to  constructive  fraud. 

POSITIVE  LAW.  Law  actually  or- 
dained or  established,  under  human  sanc- 
tions, as  distinguished  from  the  law  of  nature 
or  natural  law,  which  comprises  those  con 
siderations  of  justice,  right,  and  universal 
expediency  that  are  announced  by  the  voice 
of  reason  or  of  revelation.  Municipal  law  is 
chiefly,  if  not  essentially,  positive  ;  while  the 
law  of  nations  has  been  deemed  by  many  of 
the  earlier  writers  as  merely  an  application 
of  the  law  of  nature.  That  part  of  the  law 
of  nations  which  rests  on  positive  law  may 
be  considered  in  a  threefold  point  of  view: — 
first,  the  universal  vohintary  law,  or  those 
rules  which  become  law  by  the  uniform 
practice  of  nations  in  general,  and  by  the 
manifest  utility  of  the  rules  themselves; 
second,  the  customary  law,  or  that  which,, 
from  motives  of  convenience,  has,  by  tacit 
but  implied  agreement,  prevailed,  not  neces- 
sarily among  all  nations,  nor  with  so  perma 


POSSE 


349 


POSSESSION 


nent  a  utility  as  to  become  a  portion  of  the 
universal  voluntary  law,  but  enough  to  have 
acquired  a  prescriptive  obligation  among  cer- 
tain states  so  situated  as  to  be  mutually 
benefited  by  it,  1  Taunt.  241 ;  third,  the  con- 
vcntional  law,  or  that  which  is  agreed  between 
particular  states  by  express  treatij,  a  law  bind- 
ing on  the  parties  among  whom  such  treaties 
are  in  force.    1  Chitty,  Com.  Law,  28. 

FOSSE.  This  word  is  used  substantively 
to  signify  a  possibility.  For  example,  such 
a  thing  is  in  posse,  that  is,  such  a  thing  may 
possibly  be.  When  the  thing  is  in  being,  the 
phrase  to  express  it  is,  in  esse. 

POSSE  COMITATUS  (Lat.).  The 

power  of  the  county. 

^J.  The  sheriff,  or  other  peace  officer,  has 
authority  by  the  common  law,  while  acting 
under  the  authority  of  the  writ  of  the  United 
States,  commonwealth,  or  people,  as  the  case 
may  be,  and  for  the  purpose  of  preserving 
the  public  peace,  to  call  to  his  aid  the  posse 
comitaius. 

But  with  respect  to  writs  which  issue  in 
the  first  instance  to  arrest  in  civil  suits,  the 
sheriff  is  not  bound  to  take  the  posse  comita- 
ius to  assist  him  in  the  execution  of  them ; 
though  he  may,  if  he  pleases,  on  forcible  re- 
sistance to  the  execution  of  the  process. 
Coke,  2d  Inst.  193  ;  Coke,  3d  Inst.  161. 

3.  Having  the  authority  to  call  in  the 
assistance  of  all,  he  may  equally  require  that 
of  any  individual ;  but  to  this  general  rule 
there  are  some  exceptions  ;  persons  of  infirm 
health,  or  who  M'ant  understanding,  minors 
under  the  age  of  fifteen  years,  women,  and 
perhaps  some  others,  it  seems,  cannot  be  re- 
quired to  assist  the  sheriff,  and  are,  therefore, 
not  considered  as  a  part  of  the  power  of  the 
county.    Viner,  Abr.  Sheriff,  B. 

A  refusal  on  the  part  of  an  individual 
lawfully  called  upon  to  assist  the  officer  in 
putting  down  a  riot  is  indictable.  1  Carr.  & 
M.  314,  In  this  case  will  be  found  the  form 
of  an  indictment  for  this  offence. 

4.  Although  the  sheriff  is  acting  without 
authority,  yet  it  would  seem  that  any  person 
who  obeys  his  command,  unless  aware  of 
that  fact,  will  be  protected. 

Whether  an  individual  not  enjoined  by  the 
sheriff  to  lend  his  aid  would  be  protected  in 
his  interference,  seems  questionable.  In  a 
case  where  the  defendant  assisted  sheriff's 
officers  in  executing  a  writ  of  replevin  with- 
out their  solicitation,  the  court  held  him 
justified  in  so  doing.  2  Mod.  244.  See 
Bacon,  Abr.  Sherif  (N) ;  Hammond,  Nisi 
P.  63  ;  5  Whart.  Penn.  437,  440. 

POSSESSED.  This  word  is  applied  to 
Ihe  right  and  enjoyment  of  a  termor,  or  a 
person  having  a  term,  who  is  said  to  be  pos- 
sessed, and  not  seised.  Bac.  Tr.  335  ;  Poph. 
76;  Dy.  369. 

POSSESSIO  (Lat.).    In  Civil  Law. 

The  detention  of  a  thing:  divided  into— ;^7-5^, 
natural,  or  the  naked  detention  of  a  thing, 
without  intention  to   acquire  ownership ; 


second,  civil,  or  the  detention  of  a  thing  t4 
which  one  has  a  right,  or  with  intention 
of  acquiring  ownership.  Ileineccius,  Elem. 
Jur.  Civ.  ^  1288  ;  Mackeldy,  Civ.  Law,  ^'^  210, 
213. 

In  Old  English  Law.  Possession  ;  seisin. 
Law  Fr.  &  Lat.  Diet;  2  Sharswood,  Blaekst. 
Comm.  227;  Bracton,  lib.  2,  c.  17;  Cowel, 
Possession.  But  seisina  cannot  be  of  an  pstate 
less  than  freehold  ;  possessio  can.  New  Eng- 
land Sheriff,  141 ;  1  Mete.  Mass.  450 ;  6  id. 
439. 

POSSESSIO  FRATRIS  (Lat.  the 

brother's  possession).  A  technical  phrase 
applied  in  the  English  law  relating  to  de- 
scents, to  denote  the  possession  by  one  in 
such  privity  with  a  person  as  to  be  consi- 
dered the  person's  own  possession. 

2.  By  the  common  law,  the  ancestor  from 
whom  the  inheritance  was  taken  by  descent 
must  have  had  actual  seisin  of  the  lands, 
either  by  his  own  entry,  or  by  the  possession 
of  his  own  or  his  ancestor's  lessee  for  years, 
or  by  being  in  the  receipt  of  rent  from  the 
lessee  of  the  freehold.  But  there  are  quali- 
fications as  to  this  rule,  one  of  which  arises 
from  the  doctrine  of  possessio  fratris.  The 
possession  of  a  tenant  for  years,  guardian,  or 
brother,  is  equivalent  to  that  of  the  party 
himself,  and  is  termed  in  law  possessio  fra- 
tins.  Littleton,  sect.  8;  Coke,  Litt.  15  a;  3 
Wils.  516;  7  Term,  386. 

3.  In  Connecticut,  Delaware,  Georgia, 
Massachusetts,  New  Jersey,  New  York,  Ohio, 
Pennsylvania,  Rhode  Island,  South  Carolina 
Virginia,  and  probably  in  other  states,  the  real 
and  personal  estates  of  intestates  are  distri- 
buted among  the  heirs  without  any  reference 
or  regard  to  the  actual  seisin  of  the  ancestor. 
Reeve,  Desc.  377-379  ;  4  Mas.  C.  C.  467  ;  3 
Day,  Conn.  166 ;  2  Pet.  59.  In  Maryland, 
New  Hampshire,  North  Carolina,  and  Ver- 
mont, the  doctrine  of  possessio  fratris,  it 
seems,  still  exists.  2  Pet.  625 ;  Reeve, 
Desc.  377  ;  4  Kent,  Comm.  384,  385. 

POSSESSION.  The  detention  or  enjoy 
ment  of  a  thing  which  a  man  holds  or  exer 
cises  by  himself,  or  by  another  who  keeps  or 
exercises  it  in  his  name. 

By  the  possession  of  a  thing  we  always  conceive 
the  condition  in  which  not  only  one's  OAvn  dealing 
with  the  thing  is  physically  possible,  but  every 
other  person's  dealing  with  it  is  capable  of  being 
excluded.  Thus,  the  seaman  possesses  his  ship,  but 
not  the  water  in  which  it  moves,  although  he  makei 
each  subserve  his  purpose. 

Actual  possession  exists  where  the  thing  is 
in  the  immediate  occupancy  of  the  party.  3 
Dev.  No.  C.  34. 

Constructive  possession  is  that  which  exists 
in  contemplation  of  law,  without  actual  per- 
sjfmal  occupation.  11  Vt.  129.  And  see  1  Mc- 
Lean, C.  C.  214,  265;  2  Blackstone,  Comm. 
116. 

2.  In  order  to  complete  a  possession,  two 
things  are  required :  that  there  be  an  occu- 
pancy, apprehension,  or  taking ;  that  the 
taking  be  with  an  intent  to  possess  [ani* 
mvs  possidendi) :  hence  persons  who  have  no 


POSSESSION 


350 


POSSIBILITY 


legal  wills,  as  children  and  idiots,  cannot  pos- 
sess or  acquire  possession.  Pothier ;  Etienne. 
See  1  Mer.  Ch.  358  ;  Abbott,  Shipp.  9  et  seq. 
But  an  infant  of  sufficient  understanding 
may  lawfully  acquire  the  possession  of  a 
thing. 

The  failure  to  take  possession  is  considered 
a  badge  of  fraud,  in  the  transfer  of  personal 
property.    See  Sale  ;  Mortgage. 

3.  As  to  the  effects  of  the  purchaser's 
taking  possession,  see  Sugden,  Vend.  8,  9  ;  3 
P.  Will.  193;  lVes.Ch.226;  11  z^^.  404;  12 
id.  27.  See,  generally,  1  Harr.  &  J.  Md. 
18  ;  5  id.  230,  263  ;  6  id.  336  ;  1  Me.  109  ;  1 
Harr.  &  McH.  Md.  210;  2  id.  60,  254,  260  ;  3 
Bibb,  Ky.  209  :  4  id.  412  ;  6  Cow.  N.  Y.  632 ; 
9  id.  241 ;  5  Wheat.  116,  124  ;  Cowp.  217  ; 
Code  Nap.  art.  2228  ;  Code  of  the  Two  Sicilies, 
art.  2134 ;  Bavarian  Code,  b.  2,  c.  4,  n.  5  ; 
Pruss.  Code,  art.  579  ;  Domat,  Lois  Civ.  liv. 
3,  t.  7,  s.  1 ;  Viner,  Abr. ;  Wolff,  Inst.  ^  200, 
and  the  note  in  the  French  translation  ;  2 
Greenleaf,  Ev.  614,  615  ;  Coke,  Litt.  57 
a;  Croke  Eliz.  777;  5  Coke,  13;  7  Johns. 
N.  Y.  1. 

In  Louisiana.  Civil  possession  exists 
when  a  person  ceases  to  reside  in  a  house  or 
on  the  land  which  he  occupied,  or  to  detain 
the  movable  which  he  possessed,  but  without 
intending  to  abandon  the  possession.  It 
is  the  detention  of  a  thing  by  virtue  of  a 
just  title  and  under  the  conviction  of  pos- 
sessing as  owner.  La.  Civ.  Code,  art.  3392, 
3394. 

Natural  possession  is  that  by  which  a  man 
detains  a  thing  corporeal:  as,  by  occupying 
a  house,  cultivating  ground,  or  retaining  a 
movable  in  his  possession.  Natural  posses- 
sion is  also  defined  to  be  the  corporeal  deten- 
tion of  a  thing  which  we  possess  as  belong- 
ing to  us,  without  any  title  to  that  possession, 
or  with  a  title  which  is  void.  La.  Civ.  Code, 
art.  3391,  3393. 

4.  Possession  applies  properly  only  to  cor- 
poreal things,  movables  and  immovables. 
The  possession  of  incorporeal  rights,  such  as 
servitudes  and  other  rights  of  that  nature,  is 
only  a  quasi-possession,  and  is  exercised  by 
a  species  of  possession  of  which  these  rights 
are  susceptible.    Id.  art.  3395. 

Possession  may  be  enjoyed  by  the  proprie- 
tor of  the  thing  or  by  another  for  him  :  thus, 
the  proprietor  of  a  house  possesses  it  by  his 
tenant  or  farmer. 

To  acquire  possession  of  a  property,  two 
things  are  requisite :  the  intention  of  possess- 
ing as  owner  ;  the  corporeal  possession  of  the 
thing.    Id.  art.  3399. 

5.  Possession  is  lost  with  or  without  the 
consent  of  the  possessor.  It  is  lost  with  his 
consent — when  he  transfers  this  possession  to 
another  with  the  intention  to  divest  himself 
of  it;  when  he  does  some  act  which  mani- 
fests his  intention  of  abandoning  possession : 
as,  when  a  man  throws  into  the  street  furni- 
ture or  clothe8.of  which  he  no  longer  chooses 
to  make  use.  Id.  art.  3411.  A  possessor  of  an 
estate  loses  the  possession  against  his  consent 
— when  another  expels  him  from  it,  whether 


by  force  in  driving  hira  away,  or  by  usurping 
possession  during  his  absence,  and  prevent- 
ing him  from  re-entering ;  when  the  pos- 
sessor of  an  estate  allows  it  to  be  usurped 
and  held  for  a  year,  without  during  that  time 
having  done  any  act  of  possession  or  inter- 
fered with  the  usurper's  possession.  Id.  art, 
3412. 

POSSESSION  MONEY.    An  allow- 

ance  to  one  put  in  possession  of  goods  taken 
under  writ  of  Jieri  facias.    Holthouse,  Diet. 

POSSESSOR.    He  who  holds,  detains, 
or  enjoys  a  thing,  either  by  himself  or 
agent,  which  he  claims  as  his  own. 

In  general,  the  possessor  of  personal  chat- 
tels is  presumed  to  be  the  owner  ;  and  in  case 
of  real  estate  he  has  a  right  to  receive  the 
profits  until  a  title  adverse  to  his  possession 
has  been  established,  leaving  him  subject  to 
an  action  for  the  mesne  profits. 

POSSESSORY  ACTION.  In  Old 
English  Law.  A  real  action,  in  which  the 
plaintiff,  called  the  demand,ant,  sought  to  re- 
cover the  possession  of  land,  tenements,  and 
hereditaments.  On  account  of  'the  great 
nicety  required  in  its  management,  and  the 
introducti(m  of  more  expeditious  methods  of 
trying  titles  by  other  actions,  it  has  been  laid 
aside.  Finch,  Laws,  257  ;  2  Bouvier,  Inst.  n. 
2640. 

In  Louisiana.  An  action  by  which  one  ; 
claims  to  be  maintained  in  the  possession  of 
an  immovable  property,  or  of  a  right  upon  or  - 
growing  out  of  it,  when  he  has  been  dis-  ' 
turbed  ;  or  to  be  reinstated  to  that  possession, 
when  he  has  been  divested  or  evicted.  2  * 
La.  227,  254.  \ 

In  Scotch  Law.    An  action  by  which  ' 
the  possession  of  heritable  or  movable  pro- 
perty may  be  recovered  and  tried.     An  ' 
action  of  molestation  is  one  of  them.    Pater-  • 
son,  Comp.  §  1058,  n,  ; 

POSSIBILI T Y.  An  uncertain  thing  ^ 
which  may  happen,  Lilly,  Reg. ;  or  it  is  a  ! 
contingent  interest  in  real  or  personal  estate.  ] 
1  Madd.  Ch.  549.  ^ 

Possibilities  are  near,  as  when  an 
estate  is  limited  to  one  after  the  death  of 
another,  or  remote,  as  that  one  man  shall  be 
married  to  a  woman,  and  then  that  she  shall 
die  and  he  be  married  to  another.  1  Fon- 
blanque,  Eq.  212,  n.  e;  Viner,  Abr.;  2  Coke, 
51  a. 

Possibilities  are  also  divided  into— a  possi- 
bility coupled  with  an  interest.  This  may, 
of  course,  be  sold,  assigned,  transmitted,  or 
devised.  Such  a  possibility  occurs  in  execu- 
tory devises,  and  in  contingent,  springing,  op 
executory  uses. 

3*  A  hare  possibility,  or  hope  of  succes- 
sion. This  is  the  case  of  an  heir  apparent 
during  the  life  of  his  ancestor.  It  is  evident 
that  he  has  no  right  which  he  can  assign, 
devise,  or  even  release. 

A  possibility  or  mere  contingent  interest: 
as,  a  devise  to  Paul  if  he  survive  Petrr. 
Dane,  Abr.  c.  1,  a  5,  g  2,  and  the  cases  there 
cited. 


POST 


POST  (Lat.).  After.  When  two  or  more 
alienations  or  descents  have  taken  place 
between  an  original  intruder  and  the  tenant 
or  defendant  in  a  writ  of  entry,  the  writ  is 
said  to  be  in  the  post,  because  it  states 
that  the  tenant  had  not  entry  unless  after 
the  ouster  of  the  original  intruder.  3  Shars- 
wood,  Blackst.  Comm.  182.  See  Entry, 
Writ  of. 

POST-DATE.  To  date  an  instrument  a 
time  after  that  on  which  it  is  made.  See 
Date. 

POST  DIEM  (Lat.).  After  the  day:  as, 
a  plea  of  ])ayment  post  diem,  after  the  day 
when  the  money  became  due.  Comyns,  Dig. 
Pleader  (2  W  29). 

POST  DISSEISIN.   In  English  Law. 

The  name  of  a  writ  which  lies  for  him 
who,  having  recovered  lands  and  tenements 
by  force  of  a  novel  disseisin,  is  again  dis- 

teised  by  a  former  disseisor.  Jacob,  Law 
)ict. 

POST  ENTRY.    In  Maritime  Law. 

An  entry  made  by  a  merchant  upon  the 
importation  of  goods,  after  the  goods  have 
been  weighed,  measured,  or  gauged,  to  make 
up  the  deficiency  of  the  original  or  prime 
entry.  The  custom  of  making  such  entries 
has  arisen  from  the  fact  that  a  merchant  in 
''making  the  entry  at  the  time  of  importation 
is  not  or  may  not  be  able  to  calculate  exactly 
the  duties  which  he  is  liable  to  pay :  he 
therefore  makes  an  approximately  correct 
entry,  which  he  subsequently  corrects  by  the 
post  entry.    See  Chitty,  Com.  Law,  746. 

POST  FACTO  (Lat.).  After  the  fact. 
;  See  Ex  Post  Facto. 

POST  LIMINIUM  (Lat.  from  post,  after, 
and  limen,  threshold).  A  fiction  of  civil  law, 
by  which  persons  or  things  taken  by  the  enemy 
were  restored  to  their  former  state  on  com- 
ing again  under  the  power  of  the  nation  to 
which  they  formerly  belonged.  Calvinus,  Lex. ; 
1  Kent,  Comm.  108''^.  It  is  also  recognized 
by  the  law  of  nations.  But  movables  are  not 
entitled  to  the  benefit  of  this  rule,  by  strict  law 
of  nations,  unless  promptly  recaptured.  The 
rule  does  not  afi'ect  property  which  is  brought 
into  a  neutral  territory.  1  Kent,  Comm.  108. 
It  is  so  called  from  the  return  of  the  person 
or  thing  over  the  threshold  or  boundary  of 
the  country  from  which  it  was  taken. 

POST  LITEM  MOTAM  (Lat.).  After 
the  commencement  of  the  suit. 

Declarations  or  acts  of  the  parties  made 
post  litem  motam  are  presumed  to  be  made 
with  reference  to  the  suit  then  pending,  and, 
for  this  reason,  are  not  evidence  in  favor  of 
the  persons  making  them  ;  while  those  made 
before  an  action  has  been  commenced,  in  some 
cases,  as  when  a  pedigree  is  to  be  proved,  may 
be  considered  as  evidence.    4  Campb.  401. 

POST-MARK.  A  stamp  or  mark  put 
on  letters  in  the  post-office. 

Post-marks  are  evidence  of  a  letter's  hav- 
ing passed  through  the  post-office.  2  Campb. 


POSTAGE 


020;  2  Bos.  &  P.  310;  15  East,  416  ;  1  Maulc 
&  S.  201  ;  15  Conn.  200. 

POST  MORTEM  (Lat.).  After  death:  as, 
an  examination  jr>o.s'^  niorlcin  is  an  examination 
made  of  a  dead  body  to  ascertain  the  cause 
of  death ;  an  inquisition  post  mortem  is  one 
made  by  the  coroner. 

POST-NATUS  (Lat.).  Literally,  after- 
born  :  it  is  used  by  the  old  law  writers  U 
designate  the  second  son.  See  Puisne  ;  Post- 
Nati. 

POST  NOTES.  A  species  of  bank- 
notes payable  at  a  distant  period,  and  not  on 
demand.  2  Watts  &  S.  Penn.  403.  A  kind 
of  bank-notes  intended  to  be  transmitted  at 
a  distance  by  post.    See  24  Me.  36. 

POST-NUPTIAL.  Something  which 
takes  place  after  marriage  :  as,  a  post-nuptial 
settlement,  which  is  a  conveyance  made  gene- 
rally by  the  husband  for  the  benefit  of  the 
wife. 

A  post-nuptial  settlement  is  either  with  or 
without  consideration.  The  former  is  valid 
even  against  creditors,  when  in  other  respects 
it  is  untainted  with  fraud.  4  Mas.  C.  C.  443 ; 
2  Bail.  So.  C.  477.  The  latter,  or  when  made 
without  consideration,  if  bond  jide,  and  the 
hus])and  be  not  involved  at  the  time,  and  it 
be  not  disproportionate  to  his  means,  taking 
his  debts  and  situation  into  consideration,  is 
valid.  4  Mas.  C.  C.  443.  See  4  Dall.  304 ; 
Settlement  ;  Voluntary  Conveyance. 

POST  OBIT  (Lat.).  An  agreement  by 
which  the  obligor  borrows  a  certain  sum  of 
money  and  promises  to  pay  a  larger  sum,  ex- 
ceeding the  lawful  rate  of  interest,  upon  the 
death  of  a  person  from  whom  he  has  some 
expectation,  if  the  obliger  be  then  living.  7 
Mass.  119  ;  6  Madd.  Ch.  Ill ;  5  Ves.  Ch.  57  ; 
19  id,  628. 

Equity  will,  in  general,  relieve  a  party 
from  these  unequal  contracts,  as  they  are 
fraudulent  on  the  ancestor.  See  1  Story,  Eq. 
Jur.  ^  342;  2  P.  Will.  182;  2  Sim.  Ch.  183, 
192 ;  5  id.  524.  But  relief  will  be  granted 
only  on  equitable  terms;  for  he  who  seeks 
equity  must  do  equity.  1  Fonblanque,  Eq. 
b.  1,  c.  2,  I  13,  note  p ;  1  Story,  Eq.  Jur.  | 
344.  See  Catching  Bargain  ;  Macedonian 
Decree. 

POST-OFFICE.  An  office  for  the  receipt 
and  delivery  of  the  mail. 

The  constitution  has  vested  in  congress  the 
power  to  establish  post-offices  and  post-roads.  Art. 
1,  §  8,  n.  7.  By  virtue  of  this  authority,  several  acts 
have  been  passed,  the  more  important  of  which  are 
those  of  March  1825,4  U.  S.  Stat.  atLaroe.  102; 
July  2,  1836,  5  U.  S.  Stat,  at  Large.  84;  March  3, 
1851,  9  U.  S.  Stat,  at  Large,  593;  March  3,  1853, 
11  U.  S.  Stat,  at  Large,  255;  March  3,  1863.  Such 
existing  roads  as  are  adapted  for  the  purpose 
arc  selected  by  congress  as  post-roads;  and  new 
ones  are  seldom  constructed,  though  they  have 
been  made  by  express  authority.  Story,  Const.  3 
1133.  * 

POSTAGE.  The  mpney  charged  by  law 
for  carrying  letters,  packets,  and  documents 
by  mail. 


351 


POSTAGE 


352 


POSTEA 


2.  The  rates  of  postage  between  places  in 
the  United  States  are  fixed  expressly  by  law; 
the  rates  of  postage  upon  foreign  letters  are 
fixed  by  arrangements  entered  into  by  the 
postmaster-general,  in  pursuance  of  author- 
ity vested  in  him  by  congress  for  that  purpose. 

All  mailable  matter  is  divided  into  three 
classes:  letters,  embracing  all  correspond- 
ence wholly  or  partly  in  writing,  except  that 
mentioned  in  the  third  class  ;  regular  printed 
matter,  embracing  all  mailable  matter  exclu- 
sively in  print  and  regul.arly  issued  at  stated 
periods,  without  addition  by  writing,  mark,  or 
sign,  see  12  How.  284  ;  4  Opin.  Atty.-Genl. 
10  ;  miscellaneous  matter,  embracing  all  other 
matter  which  is  or  may  hereafter  be  by  law 
declared  mailable,  including  pamphlets,  oc- 
casional publications,  books,  book-manu- 
scripts, and  proof-sheets,  whether  corrected 
or  not,  maps,  prints,  engravings,  blanks, 
flexible  patterns,  samples  arid  sample  cards, 
phonographic  paper,  letter  envelopes,  postal 
envelopes  or  wrappers,  cards,  paper,  plain  or 
ornamental,  photographic  representations  of 
different  types,  seeds,  cuttings,  bulbs,  roots, 
and  scions. 

3.  The  rate  of  postage  on  all  domestic 
mailable  matter,  wholly  or  partially  in  writ- 
ing, or  so  marked  as  to  convey  any  other  or 
further  intelligence  or  information  than  is 
conveyed  in  the  original  print,  in  the  case 
of  printed  matter,  or  which  is  sent  in  viola- 
tion of  law  or  regulations  of  the  department 
touching  the  inclosure  of  matter  which  may 
be  sent  at  less  than  letter  rates,  and  on  all 
matter  introduced  into  the  mails  not  other- 
wise provided  for,  excepting  manuscript  and 
corrected  proof  passing  between  authors  and 
publishers,  and  memorandums  of  the  expira- 
tion of  subscriptions,  receipts  and  bills  for 
subscription,  inclosed  with  or  printed  on  re- 
gular publications  by  the  publishers,  is  three 
cents  for  a  half-ounce  or  less  avoirdupois, 
and  three  cents  additional  for  each  additional 
half-ounce  or  fraction. 

The  postage  on  all  letters  not  transmitted 
through  the  mails  but  delivered  through  the 
post-office  or  by  its  carriers  is  two  cents  for 
a  half-ounce  or  less,  and  an  additional  rate  for 
each  additional  half-ounce  or  fraction  thereof, 

4.  The  postage  on  all  transient  mailable 
matter  of  the  second  class,  and  on  all  miscel- 
laneous mailable  matter  of  the  third  class,  ex- 
cept circulars  and  books,  is  two  cents  for  each 
four  ounces  or  fraction  thereof  contained  in 
any  one  package  to  one  address.  Double 
these  rates  are  to  be  charged  for  books.  Un- 
sealed circulars,  three  in  number,  pass  for 
two  cents,  and  a  proportionate  rate  for  a 
greater  number,  adfding  one  rate  for  every 
three  or  fraction  thereof 

The  postage  on  all  mailable  matter  of  the  se- 
cond class  is,  upon  newspapers  and  periodicals 
issued  weekly,  five  cents  a  quarter,  if  weighing 
four  ounces  or  less,  and  five  cents  for  each 
additional  four  ounces  ;  and  an  additional  five 
cents  for  each  issue  in  a  week.  If  issued  less 
frequently  than  once  a  week,  one  cent  for 
each  paper  or  periodical  weighing  four  ounces 


or  less,  and  an  additional  rate  for  each  addi- 
tional four  ounces  or  fraction. 

5.  Authority  to  frank  mail-matter  is  con- 
ferred on  the  president  of  the  United  States, 
by  himself  or  private  secretary  ;  the  vice-pre- 
sident of  the  United  States  ;  the  chiefs  of  the 
several  executive  departments  ;  such  princi- 
pal officers,  being  heads  of  bureaus  or  chief 
clerks  of  each  executive  department,  to  be 
used  only  for  official  communications,  as  the 
postmaster-general  shall  by  regulation  de- 
signate; senators  and  Tepresentatives  in 
congress,  including  delegates  from  the  ter- 
ritories, the  secretary  of  the  senate,  and 
clerk  of  the  house  of  representatives,  to 
cover  correspondence  to  and  from  them,  all 
matter  printed  by  authority  of  congress, 
speeches,  proceedings,  and  debates  in  con- 
gress, and  all  printed  matter  sent  to  them, 
commencing  with  the  term  for  which  they 
are  elected,  and  expiring  on  the  first  Monday 
of  December  following  such  term  ;  all  official 
communications  addressed  to  either  of  the 
executive  departments  by  an  officer  responsi- 
ble to  that  department,  bearing  on  the  out- 
side the  term  "official"  and  the  signature  of  ! 
the  officer;  postmasters,  for  their  official  com-  i 
munications  to  other  postmasters ;  petitions  j 
to  either  branch  of  congress. 

POSTAGE-STAMPS.  The  act  of  con- 
gress approved  March  3,  1847,  section  11, 
and  the  act  of  congress  of  March  3,  1841, 
sections  3,  4,  provide  that,  to  facilitate  the 
transportation  of  letters  in  the  mail,  the  post- 
master-general be  authorized  to  prepare  post- 
age-stamps, which  when  attached  to  any . 
letter  or  packet  shall  be  evidence  of  the  pay-  \ 
ment  of  the  postage  chargeable  on  such  letter. 
The  same  sections  declare  that  any  person 
who  shall  falsely  or  fraudulently  make,  utter, 
or  forge  any  postage-stamp,  with  the  intent 
to  defraud  the  post-office  department,  shall 
be  deemed  guilty  of  felony,  and  be  punished 
by  a  fine  not  exceeding  five  hundred  dollars,! 
or  by  imprisonment  not  exceeding  five  years,; 
or  by  both  such  fine  and  imprisonment.  Andi 
if  any  person  shall  use  or  attempt  to  use,  in, 
prepayment  of  postage,  any  postage-stamp*, 
which  shall  have  been  used  before  for  like: 
purposes,  such  person  shall  be  subject  to  a 
penalty  of  fifty  dollars  for  every  such  offence; 
to  be  recovered,  in  the  name  of  the  United 
States,  in  any  court  of  competent  jurisdiction. 
See,  also.  Act  of  Mar.  3,  1851,  9  U.  S.  Stat, 
at  Large,  589  ;  Act  of  Aug.  31,  1852, 10  U.  S. 
Stat,  at  Large,  141,  It  is  made  penal  to  sell 
stamps  or  stamped  envelopes  for  a  larger  sum 
than  that  indicated  on  the  stamp  or  than  is 
charged  by  the  department.  Act  of  Mar.  3, 
1855,  10  U.  S.  Stat,  at  Large,  642. 

POSTEA  (Lat. afterwards).  In  Practice. 

The  indorsement,  on  the  nisi  privs  record 
purporting  to  be  the  return  of  the  judge  be- 
fore whom  a  cause  is  tried,  of  what  has  becD 
done  in  respect  of  such  record. 

2.  It  states  the  day  of  trial,  before  whal 
judge,  by  name,  the  cause  is  tried,  and  al«3 
who  is  or  was  an  associate  of  such  judge;  it 


POSTERIORES 


353 


POSTMASTER-GENERAL 


also  states  the  appearance  of  the  parties  by 
their  respective  attorneys,  or  their  defaults, 
and  the  summoning  and  choice  of  the  jury, 
whether  those  who  were  originally  summoned, 
or  those  who  were  tales,  or  taken  from  the 
8tanders-by  ;  it  then  states  the  finding  of  the 
jury  upon  oath,  and,  according  to  the  de- 
scription of  the  action,  and  the  assessment 
of  the  damages,  with  the  occasion  thereof, 
together  with  the  costs. 

3.  These  are  the  usual  matters  of  fact  con- 
tained in  the  postea;  but  it  varies  with  the  de-  j 
scription  of  the  action.   See  Lee,  Diet.  Postea ; 
2  Lilly,  Abr.  337  ;  16  Viner,  Abr.  465  ;  Bacon, 
Law  Tr.  127. 

When  the  trial  is  decisive,  and  neither 
the  law  nor  the  facts  can  afterwards  be 
controverted,  the  postea  is  delivered  by  the 
proper  officer  to  the  attorney  of  the  successful 
party,  to  sign  his  judgment;  but  it  not  un- 
frequently  happens  that  after  a  verdict  has 
been  given  there  is  just  cause  to  question  its 
validity:  in  such  case  the  postea  remains  in 
the  custody  of  the  court.  Eunomus,  Dial.  2, 
I  33,  p.  116. 

POSTERIORES  (Lat.).  This  term  was 
used  Ijy  the  Romans  to  denote  the  descendants 
in  a  direct  line  beyond  the  sixth  degree.  It 
is  still  used  in  making  genealogical  tables. 

POSTERIORITY.  Being  or  coming 
after.  It  is  a  word  of  comparison,  the  correla- 
tive of  which  is  priority:  as,  when  a  man 
holds  lands  from  two  landlords,  he  holds  from 
his  ancient  landlord  by  priority,  and  from 
the  other  by  posteriority.   Coke,  2d  Inst.  392. 

These  terms,  priority  and  posteriority,  are 
also  used  in  cases  of  Hens :  the  first  are  prior 
liens,  and  are  to  be  paid  in  the  first  place ; 
the  last  are  posterior  liens,  and  are  not  en- 
titled to  payment  until  the  former  have  been 
satisfied. 

POSTERITY.  All  the  descendants  of  a 
person  in  a  direct  line. 

POSTHUMOUS  CHILD.  One  born 
after  the  death  of  its  father;  or,  when  the 
Caesarean  operation  is  performed,  after  that 
of  the  mother. 

Posthumous  children  are  considered  as 
living  after  the  death  of  the  parent,  in  Dela- 
ware, Rev.  Code  (1852),  c.  85,  g  2;  Illinois, 
2Comp.  Stat.  (1858)  1200;  Indiana,  1  Rev. 
Stat.  c.  52,  p.  248 ;  Kentucky,  Rev.  Stat. 
(1852)  280;  Maryland,  1  Dorsey,  Laws,  747; 
Massachusetts,  Gen.  Stat.  c.  81,  §  12;  Minne- 
sota, Comp.  Stat.  (1858)  413;  New  Jersey, 
Nixon,  Dig.  (1855)  196;  Neio  York,  2  Rev. 
Stat.  160,  ^  18 ;  North  Carolina,  Rev.  Code 
(1654),  249  ;  8  Ired.  No.  C.  374;  Ohio,  Rev. 
Stat.  (1854)  c.  36,  §  19;  Pennsylvania,  Pur- 
don,  Dig.  (1857)  454;  Tennessee,  Code  (1858), 
p.  478,  §  2424 ;  Virginia,  Code  (1849),  p.  23 ; 
Wisconsin,  Rev.  Stat.  (1858)  c.  92,  I  12. 
The  provision  is  limited  to  children  of  the 
intestate,  in  Alabama,  Code  (1852),  g  1577  ; 
Arkansas,  Dig.  Stat.  (1858)  c.  56,  |  2;  Mis- 
souri, 1  Rev.  Stat.  (1855)  c.  54,  §2;  Texas, 
Oldham  &  W.  Dig.  (1858)  p.  99. 

The  issue  of  marriages  deemed  null  in 
Vol.  II.— 23 


law,  or  dissolved  by  a  court,  are  nevertheless 
declared  legitimate  in  Arkansas,  Dig.  Stat. 
(1858)  c.  56,  ^  5;  California,  Wood,  Dig. 
(1858)  424;  Missouri,  1  Rev.  Stat.  (1855) 
c.  54,  I  11;  Ohio,  Rev.  Stat.  (1854)  c.  36, 

1  16;  Virginia,  Code  (1849),  523.  See  2 
Washburn,  Real  Prop.  413,  439;  4  Kent, 
Comm.  412  ;  7  Ga.  535  ;  12  Miss.  99. 

When  a  father  makes  a  will  without  pro- 
viding for  a  posthumous  child,  the  will  is 
generally  considered  as  revoked  pro  tanto, 

2  Washburn,  Real  Prop.  699;  4  Kent, 
Comm.  412,  521,  n.,  525. 

POSTMAN.  A  senior  barrister  in  court 
of  exchequer,  who  has  precedence  in  motions  : 
so  called  from  place  where  he  sits.  2  Shars- 
wood,  Blackst.  Comm.  28 ;  Wharton,  Diet. 
A  letter-carrier.    Webster,  Diet. 

POSTMASTER.  An  officer  who  Keeps 
a  post-office,  attending  to  the  receipt,  for- 
warding, and  delivery  of  letters  and  other 
matter  passing  through  the  mail. 

Postmasters  must  reside  within  the 
delivery  for  which  they  are  appointed.  For 
those  offices  where  the  salary  or  compensation 
is  less  than  a  thousand  dollars  a  year,  the 
postmaster-general  appoints ;  where  it  is 
more,  the  president.  They  must  give  bond 
to  the  United  States  of  America,  see  19 
How.  73  ;  Gilp.  Dist.  Ct.  54;  which  remains 
in  force,  for  suit  upon  violation  during  the 
term,  1  Woodb.  &  M.  C.  C.  150,  for  two 
years  after  the  expiration  of  the  term  of 
office.    7  How.  681. 

Every  postmaster  is  required  to  keep  an 
office  in  the  place  for  which  he  may  be 
appointed ;  and  it  is  his  duty  to  receive  and 
forward  by  mail,  without  delay,  all  letters, 
papers,  and  packets  as  directed,  to  receive 
the  mails,  and  deliver,  at  all  reasonable  hours, 
all  letters,  papers,  and  packets  to  the  persona 
entitled  thereto. 

3.  Although  not  subject  to  all  the  respon- 
sibilities of  a  common  carrier,  yet  a  post- 
master is  liable  for  all  losses  and  injuries 
occasioned  by  his  own  default  in  office.  3 
Wils.  443  ;  Cowp.  754  ;  5  Burr.  2709  ;  1  Bell, 
Comm.  468 ;  2  Kent,  Comm.  474 ;  Story, 
Bailm.  §  463. 

Whether  a  postmaster  is  liable  for  the 
acts  of  his  clerks  or  servants  seems  not  to 
be  settled.  1  Bell,  Comm.  468.  In  Pennsyl- 
vania it  has  been  decided  that  he  is  not 
responsible  for  their  secret  delinquencies ; 
though  perhaps  he  is  answerable  for  want 
of  attention  to  the  official  conduct  of  his 
subordinates.    8  Watts,  Penn.  453. 

POSTMASTER-GENERAL.  The 

chief  officer  of  the  post-office  department  of 
the  executive  branch  of  the  government  of 
the  United  States. 

His  duties,  in  brief,  are,  among  othei 
things,  to  establish  post-offices  and  appoint 
postmasters,  see  Postmaster,  at  convenient 
places  upon  the  post-roads  established  by 
law ;  to  give  instructions  for  conducting  the 
business  of  the  department ;  to  provide  for 
the  carriage  of  the  mails ;  to  obtain  from 


POSTNATI 


354 


POSTULATIO 


the  postmasters  balances  due,  with  accounts 
and  vouchers  of  expenses;  to  pay  the  ex- 
penses of  the  department,  see  15  Pet.  377; 
to  prosecute  offences,  and,  generally,  to 
superintend  the  business  of  the  department 
in  all  the  duties  assigned  to  it.  He  is 
assisted  by  three  assistants  and  a  large  corps 
of  clerks, — the  three  assistants  being  ap- 
pointed by  the  president.  He  must  make  five 
several  reports  annually  to  congress,  re- 
lating chiefly  to  the  financial  management 
of  the  department,  with  estimates  of  the 
expenses  of  the  department  for  the  ensuing 
year.    He  is  a  member  of  the  cabinet. 

POSTNATI  (Lat.).  Those  born  after. 
Applied  to  American  and  British  subjects  born 
after  the  separation  of  England  and  the  United 
States  ;  also  to  the  subjects  of  Scotland  born 
after  the  union  of  England  and  Scotland. 
Those  born  after  an  event,  as  opposed  to 
antenati,  those  born  before.  2  Kent,  Comm. 
56-59;  2  Pick.  Mass.  394;  5  Day,  Conn. 
169*.    See  Antenati. 

POSTULATIO  (Lat.).  In  Roman 
Iiaw.  The  name  of  the  first  act  in  a  crimi- 
nal proceeding. 

2.  A  person  who  wished  to  accuse  another 
of  a  crime  appeared  before  the  praetor  and 
requested  his  authority  for  that  purpose, 
designating  the  person  intended.  This  act 
was  called  postulatio.  The  postulant  [calum- 
nium  jurabat)  made  oath  that  he  was  not 
influenced  by  a  spirit  of  calumny,  but  acted 
in  good  faith  with  a  view  to  the  public 
interest.  The  praetor  received  this  declara- 
tion, at  first  made  verbally,  but  afterwards 
in  writing,  and  called  a  libel.  The  postulatio 
was  posted  up  in  the  forum,  to  give  public 
notice  of  the  names  of  the  accuser  and  the 
accused.  A  second  accuser  sometimes  ap- 
peared and  went  through  the  same  formalities. 

3.  Other  persons  were  allowed  to  appear 
and  join  the  postulant  or  principal  ac- 
cuser. These  were  said  postulare  suhscrip- 
tionem,  and  were  denominated  suhscriptores. 
Cie.  in  Caecil.  Divin.  15.  But  commonly 
such  persons  acted  concurrently  with  the 
postulant,  and  inscribed  their  names  at  the 
time  he  first  appeared.  Only  one  accuser, 
however,  was  allowed  to  act ;  and  if  the  first 
inscribed  did  not  desist  in  favor  of  the 
second,  the  right  was  determined,  after 
discussion,  by  judges  appointed  for  tfie 
purpose.  Cic.  in  Yerr.  i.  6.  The  prelimi- 
nary proceeding  was  called  divinatio,  and 
is  well  explained  in  the  oration  of  Cicero 
entitled  Divinatio.  See  Aulus  Gellius,  Att. 
Noct.  lib.  ii.  cap.  4. 

4.  The  accuser  having  been  determined 
in  this  manner,  he  appeared  before  the 
praetor,  and  formally  charged  the  accused 
by  name,  specifying  the  crime.  This  was 
called  nominis  et  criminis  delaiio.  The 
magistrate  reduced  it  to  writing,  which  was 
called  inscriptio,  and  the  accuser  and  his 
adjuncts,  if  any,  signed  it,  subficribehant. 
This  proceeding  corresponds  to  the  indict- 
ment of  the  common  law. 


5.  If  the  accused  appeared,  the  accusei 
formally  charged  him  with  the  crime.  If 
the  accused  confessed  it,  or  stood  mute,  he 
was  adjudged  to  pay  the  penalty.  If  he 
denied  it,  the  inscriptio  contained  his  answer^ 
and  he  was  then  in  reatu  (indicted,  as  we 
should  say),  and  was  called  reus,  and  a  day 
was  fixed,  ordinarily  after  an  interval  of  at 
least  ten  days,  according  to  the  nature  of  the 
case,  for  the  appearance  of  the  parties.  In 
the  case  of  Verres,  Cicero  obtained  one 
hundred  and  ten  days  to  prepare  his  proofs ; 
although  he  accomplished  it  in  fifty  days, 
and  renounced,  as  he  might  do,  the  advan- 
tage of  the  remainder  of  the  time  allowed  him. 

6.  At  the  day  appointed  for  the  trial,  the 
accuser  and  his  adjuncts  or  colleagues,  the 
accused,  and  the  judges,  were  summoned  by 
the  herald  of  the  praetor.  If  the  accuser  did 
not  appear,  the  case  was  erased  from  the 
roll.  If  the  accused  made  default,  he  was 
condemned.  If  both  parties  appeared,  a 
jury  was  drawn  by  the  praetor  or  judex 
quceslionis.  The  jury  was  called  jiirati 
homines,  and  the  drawing  of  them  sortitio, 
and  they  were  taken  from  a  general  list 
made  out  for  the  year.  Either  party  had  a 
right  to  object  to  a  certain  extent  to  the 
persons  drawn  ;  and  then  there  was  a  second 
drawing,  called  subsortitio,  to  complete  the  , 
number. 

1".  In  some  trihnnals  qucestiones  (the  jury)  ' 
were  editi  (produced)  in  equal  number  by  ; 
the  accuser  and  the  accused,  and  sometimes  ] 
by  the  accuser  alone,  and  were  objected  to 
or  challenged  in  different  ways,  according  to 
the  nature  of  the  case.    The  number  of  the  , 
jury  also  varied  according  to  the  tribunal 
[qucustio) :  they  were  sworn  before  the  trial  ; 
began.    Hence  they  were  called  jiirati. 

The  accusers,  and  often  the  subscriptoreSy 
were  heard,  and  afterwards  the  accused,  ' 
either  by  himself  or  by  his  advocates,  of  • 
whom  he  commonly  had  several.  The  wit-  j 
nesses,  who  swore  by  Jupiter,  gave  their  J 
testimony  after  the  discussions  or  during  the  \ 
progress  of  the  pleadings  of  the  accuser.  < 
In  some  cases  it  was  necessary  to  plead  the  \ 
cause  on  the  third  day  following  the  first  | 
hearing,  which  was  called  camper endinaiio. 

8.  After  the  pleadings  were  concluded,  the 
praetor  or  the  judex  qucestionis  distributed 
tablets  to  the  jury,  upon  which  each  wrote, 
secretly,  either  the  letter  A  [absolvo),  or  the 
letter  C  {condemno),  or  N.  L.  {non  liquet). 
These  tablets  were  deposited  in  an  urn.  Tho 

f resident  assorted  and  counted  the  tablets, 
f  the  majority  were  for  acquitting  the 
accused,  the  magistrate  declared  it  by  the 
words  fecisse  non  videiur,  and  by  the  words 
fecisse  videtur  if  the  majority  were  for  a 
conviction.  If  the  tablets  marked  N.  L.  I 
were  so  many  as  to  prevent  an  absolute 
majority  for  a  conviction  or  acquittal,  the 
cause  was  put  off  for  more  ample  information, 
ampliaiio,  "vsdiich  the  praetor  declared  by  tlia 
word  amplics.  Such,  in  brief,  was  the  course 
of  proceedings  before  the  qucEstiones  perpetuce.  ' 
The  forms  observed  in  the  comitia  ecu- 


POSTULATIO  ACTIONIS 


355 


POWER 


tvriata  and  comitia  iribuia  were  nearly  the 
same,  except  the  composition  of  the  tribunal 
and  the  mode  of  dechirin;);  the  vote. 

POSTULATIO  ACTIONIS  (Lat.).  In 
Civil  Law.  Demand  of  an  action  {actio) 
from  the  praetor,  which  some  exphiin  to  he 
a  demand  of  a  formula,  or  form  of  the  suit; 
others,  a  demand  of  leave  to  brino;  the  cause 
before  the  judge.  Taylor,  Civ.  Law,  80; 
Calvinus,  Lex.  Actio. 

FOT-DE-VIN.  In  French  Law.  A 
sum  of  money  frequently  paid,  at  the  mo- 
ment of  entering  into  a  contract,  beyond  the 
price  agreed  upon. 

It  differs  from  arrha  in  this,  that  it  is  no  part 
of  the  price  of  the  thing  sold,  and  that  the  person 
who  has  received  it  cannot  by  returning  double 
the  amount,  or  the  other  party  by  losing  what  he 
has  paid,  rescind  the  contract.  18  TouUier,  n.  52. 
•  POTENTATE.  One  who  has  a  great 
power  over  an  extended  country  ;  a  sovereign. 

By  the  naturalization  laws  of  the  United 
States,  an  alien  is  required,  before  he  can  be 
naturalized,  to  renounce  all  allegiance  and 
fidelity  to  any  foreign  prince,  potentate,  state, 
or  sovereign  whatever. 

POTESTAS  (Lat.).  In  Civil  Law. 
Power  ;  authority  ;  domination  ;  empire.  Itn- 
perium,  or  thejurisdiction  of  magistrates.  The 
power  of  the  father  over  his  children,  patria 
potestas.  The  authority  of  masters  over 
their  slaves,  which  makes  it  nearly  synony- 
mous with  dominium.  See  Inst.  1.  9.  12; 
Dig.  2.  1.  13.  1 ;  14.  1 ;  14.  4.  1.  4. 

POUND.  A  place,  enclosed  by  public 
authority,  for  the  temporary  detention  of 
stray  animals.  4  Pick.  Mass.  258;  5  id. 
514  :  9  id.  14. 

Weights.  There  are  two  kinds  of  weights, 
namely,  the  troy  and  the  avoirdupois. 
[  The  pound  avoirdupois  is  greater  than  the 
'  troy  pound  in  the  proportion  of  seven 
thousand  to  five  thousand  seven  hundred 
and  sixty.  The  troy  pound  contains  twelve 
ounces,  that  of  avoirdupois  Sixteen  ounces. 

Money.  The  sum  of  twenty  shillings. 
Previ(ms  to  the  establishment  of  the  federal 
currency,  the  diff'erent  states  made  use  of 
the  pound  in  computing  money  :  it  was  of 
difierent  value  in  the  several  states. 

Pound  sterling  is  a  denomination  of  money 
of  Great  Britain.  It  is  of  the  value  of  a 
sovereign  (q.  v.).  In  calculating  the  rates 
of  duties,  the  pound  sterling  shall  be  con- 
sidered and  taken  as  of  the  value  of  four 
dollars  and  eighty  cents.  Act  of  March  3, 
1833. 

The  pound  sterling  of  Ireland  is  to  be 
computed,  in  calculating  said  duties,  at  four 
dollars  and  ten  cents.  Id. 

The  pound  of  the  British  provinces  of 
Nova  Scotia,  New  Brunswick,  Newfoundland, 
and  Canada  is  to  be  so  computed  at  four 
dollars.    Act  of  May  22,  1846. 

POUND-BREACH.  The  ofi'ence  of 
breaking  a  pound  in  order  to  take  out  the 
cattle  impounded.  3  Sharswood,  Blackst. 
Comm.  146     The  writ  de  parco  fi'acto,  or 


pound-breach,  lies  for  recovering  damages 
for  this  offence ;  also  case.  Id.  It  is  also 
indictable. 

POUNDAGE.     In  Practice.  The 

amount  allowed  to  the  sheriff",  or  other  officer, 
for  commissions  on  the  money  made  by 
virtue  of  an  execution.  This  allowance  varies 
in  different  states  and  to  different  officeis. 

POURPARLER.     In   French  Law. 

The  conversations  and  negotiations  which 
have  taken  place  between  the  parties  in 
order  to  make  an  agreement.  These  firm 
no  part  of  the  agreement.  Pardessus,  Dr. 
Com.  1 42. 

POURSUIVANT.  A  follower ;  a  pur- 
suer. In  the  ancient  English  law,  it  signified 
an  officer  who  attended  upon  the  king  in  his 
wars,  at  the  council-table,  exchequer,  in  his 
court,  etc.,  to  be  sent  as  a  messenger.  A 
poursuivant  was,  therefore,  a  messenger  of 
the  king. 

POWER.  The  right,  ability,  or  fjiculty 
of  doing  something. 

Technically,  an  authority  by  which  one 
person  enables  another  to  do  some  act  for 
him.    2  Lilly,  Abr.  339. 

Derivative  Powers  are  those  which  are 
received  from  another.  This  division  in- 
cludes all  the  powers  technically  so  called. 
They  are  of  the  following  classes : 

Coupled  with  an  interest,  being  a  right  or 
authority  to  do  some  act,  together  with  an 
interest  in  the  subject  on  which  the  power  is 
to  be  exercised.  Marshall,  C.  J.,  8  Wheat.  203. 

A  power  of  this  class  survives  the  person  cre- 
ating it,  and,  in  case  of  an  excess  in  execution, 
renders  the  act  valid  so  far  as  the  authority  ex- 
tends, leaving  it  void  as  to  the  remainder  only.  It 
includes  powers  of  sale  conferred  on  a  mortgagee. 

Naked,  being  a  right  of  authority  discon- 
nected from  any  interest  of  the  donee  in  ,the 
subject-matter.    3  Hill,  N.  Y.  365. 

Inherent  Powers.  Those  which  are  en- 
joyed by  the  possessors  of  natural  right, 
without  having  been  received  from  another. 
Such  are  the  powers  of  a  people  to  establish 
a  form  of  government,  of  a  father  to  control 
his  children.  Some  of  these  are  regulated 
and  restricted  in  their  exercise  by  law,  but 
are  not  technically  considered  in  the  law  as 
powers. 

The  person  bestowing  a  power  is  called  the 
donor;  the  person  on  whom  it  is  bestowed  is 
called  the  donee.  See  Contract  ;  Agent  ; 
Agency. 

Powers  under  the  Statute  of  Uses. 

An  authority  enabling  a  person,  through  the 
medium  of  the  Statute  of  Uses,  to  dispose  ot 
an  interest  in  real  property,  vested  either  in 
himself  or  another  person. ' 

Methods  of  causing  a  use,  with  its  accom- 
panying estate,  to  spring  up  at  the  will  of  a 
given  person.  Williams,  Real  Prop.  245 ; 
2  Washburn,  Real  Prop.  300. 

The  right  to  designate  the  person  who  is  to 
take  a  use.    Coke,  Litt.  271  h,  Butler's  note, 
231,  I  3,  pi.  4. 
I     A  right  to  limit  a  use.    4  Kent,  Comm  334. 


POWER 


356 


POWER 


An  authority  to  do  some  act  in  relation  to 
lands,  or  the  creation  of  estates  therein,  or 
of  charges  thereon,  which  the  owner  granting 
or  reserving  such  poM'er  might  himself  law- 
fully perform,    N.  Y.  Rev.  Stat. 

They  are  distinguished  as — 

Appendant.  Those  which  the  donee  is 
authorized  to  exercise  out  of  the  estate  limited 
to  him,  and  which  depend  for  their  validity 
upon  the  estate  which  is  in  him.  2  Wash- 
burn, Real  Prop.  304.  A  life-estate  limited 
to  a  man,  with  a  power  to  grant  leases 
in  possession,  is  an  example.  Hardr.  41G  ;  1 
Caines,  Cas.  N.  Y.  15 ;  Sugden,  Pow.  ed.  1856, 
107  ;  Burton,  Real  Prop.  §  179. 

Of  appointment.  Those  which  are  to  cre- 
ate new  estates.  Distinguished  from  powers 
of  revocation. 

Collateral.  Those  in  which  the  donee  has 
no  estate  in  the  land.  2  Washburn,  Real 
Prop.  305. 

General.  Those  by  which  the  donee  is  at 
liberty  to  appoint  to  whom  he  pleases. 

In  gross.  Those  which  give  a  donee,  who 
has  an  estate  in  the  land,  authority  to  create 
such  estates  only  as  will  not  attach  on  the 
interest  limited  to  him  or  take  effect  out  of 
his  own  interest.  2  Cow.  N.  Y.  236  ;  Tudor, 
Lead.  Cas.  293  ;  Watkins,  Con  v.  260. 

Of  revocation.  Those  which  are  to  divest 
or  abridge  an  existing  estate.  Distinguished 
from  those  of  appointment;  but  the  distinc- 
tion is  of  doubtful  exactness,  as  every  new 
appointment  must  divest  or  revoke  a  former 
use.    Sanders,  Uses,  154. 

As  to  the  effect  of  the  insertion  of  a  power  of 
revocation,  either  single  or  in  connection  with  one 
of  appointment,  see  Styles,  389  ;  2  Washburn,  Real 
Prop.  307. 

Special.  Those  in  which  the  donee  is  re- 
stricted to  an  appointment  to  or  among  par- 
ticular objects  only.  2  Washburn,  Real 
Prop.  307. 

The  person  who  receives  the  estate  by  ap- 
pointment is  called  the  appointee  ;  the  donee 
of  the  power  is  sometimes  called  the  appointor. 

2.  The  creation  of  a  power  may  be  by  deed 
or  willy  2  Washburn,  Real  Prop.  314:  by 
grant  to  a  grantee,  or  reservation  to  the 
grantor,  4  Kent,  Comm.  319  ;  and  the  reser- 
vation need  not  be  in  the  same  instrument, 
if  made  at  the  same  time,  1  Sugden,  Pow. 
ed.  1856,  158 ;  by  any  form  of  icords  indi- 
cating an  intention.  2  Washburn,  Real 
Prop.  315.  The  doubt  whether  a  power  is 
created  or  an  estate  conveyed  can,  in  general, 
exist  only  in  cases  of  wills,  2  Washburn, 
Real  Prop.  316,  and  in  any  case  is  deter- 
mined by  the  intention  of  the  grantor  or 
devisor,  as  expressed  in  or  to  be  gathered 
from  the  whole  will  or  deed.  10  Pet.  532; 
8  How.  10;  3  Cow.  N.  Y.  651 ;  7  id.  187  ;  6 
Johns.  N.  Y.  73  ;  6  Watts,  Penn.  87  ;  4  Bibb, 
Ky.  307.  It  must  be  limited  to  be  executed, 
and  must  be  executed  within  the  period  fixed 
by  the  rules  against  perpetuities.  2  Ves. 
Sen.  Ch  61,  s.  c. ;  1  Ed.  404,  s.  c;  5  Brown, 
Pari.  Cas.  592  ;  2  Ves.  Ch.  368  ;  13  Sim.  Ch. 
?93  ;  Lewis,  Perpet.  483-485. 


The  interest  of  the  donee  is  not  an  estate, 
Watkins,  Conv.  271 ;  2  Preston,  Abstr.  275  ; 
N.  Y.  Rev.  Stat.  art.  2,  g  68  ;  but  is  sufficient 
to  enable  the  donee  to  act,  if  the  intention  of 
the  donor  be  clear,  without  words  of  inherit- 
ance, 3  Ves.  Ch.467;  I  Mod.  190;  1  P.Will. 
Ch.  171;  7  Johns.  Ch.  N.  Y.  34;  see  Coke, 
Litt.  271  b,  Butler's  note,  231 ;  and  may  co- 
exist with  the  absolute  fee  in  the  donee.  10 
Ves.  Ch.  255-257  ;  4  Greenleaf,  Cruise,  Dig. 
241,  n.  A  power  to  sell  does  not  include  a 
power  to  mortgage,  3  Hill,  N.  Y".  361 ;  and 
sale  generally  means  a  cash  sale.  4  Kent, 
Comm.  331 ;  3  Hill,  N.  Y.  373. 

As  to  exercising  the  power :  if  it  be  simply 
one  in  which  no  person  is  interested  but  the 
donee,  it  is  a  matter  of  election  on  his  part 
whether  to  exercise  it  or  not,  1  Sugden, 
Pow.  ed.  1856,  158  ;  see  ^  3,  beyond ;  but 
if  coupled  with  a  trust  in  which  other  per- 
sons are  interested,  equity  will  compel  an 
execution.  Story,  Eq.  Jur.  §  1062 ;  2  Mas. 
C.  C.  244,  251. 

3.  The  execution  must  be  in  the  manner 
prescribed,  by  the  proper  person,  see  Ap- 
pointment, and  cannot  be  by  an  assignee,  2 
Washburn,  Real  Prop.  321,  unless  author- 
ized by  the  limitation,  4  Cruise,  Dig.  211,  or 
unless  an  interest  be  coupled  with  the  power, 

2  Cow.  N.  Y.  236 ;  8  Wheat.  203  ;  nor  by  a  ■ 
successor,  as  on  the  death  of  an  executor.  12 
Mete.  Mass.  220.  See  1  Bail.  Eq.  So.  C.  392;  ; 
6  Rand.  Va.  593.  As  to  whether  a  sale  by  ; 
a  donee  who  has  also  an  estate  in  the  land  ; 
is  held  to  be  an  execution  of  the  power,  see 

2  Washburn,  Real  Prop.  325 ;  Tudor,  Lead.  ^ 
Cas.  306  ;  1  Atk.  440  ;  5  Barnew.  &  C.  7i:0  ;  6  ; 
Coke,  18;  8  Watts,  Penn.  203;  16  Penn.  St.  25. 

Where  an  exact  execution  is  impossible 
under  authority  of  court,  it  may  be  executed 
as  near  as  may  be  [cy-pr^s)  to  carrying  out 
the  donor's  intention.  2  Term,  241 ;  4  Ves. 
Ch.  681 ;  5  Sim.  Ch.  632 ;  3  Wash.  C.  C.  12.  ' 

It  must  be  made  at  a  proper  time,  and,  ' 
where  several  powers  are  given  over  different  ' 
parts  of  the  same  estate,  in  proper  succes- 
sion.    1  Coke,  174;  1  W.  Blackst.  281.  ; 

Equity  will  compel  the  donee  to  execute  a 
power  where  it  is  coupled  with  a  trust  in  \ 
which  other  persons  are  interested.  Story, 
Eq.  Jur.  g  1062,  and  to  correct  a  formal  de-  ■ 
feet  in  the  manner  of  execution.     Ambl.  . 
687 ;  2  P.  Will.  489,  622;  2  Mas.  C.  C.  251: 

3  Edw.  Ch.  N.  Y.  175. 

4.  The  suspension  or  destruction  of  a  i 
power  may  sometimes  happen  by  a  release  i 
by  the  donee,  by  an  alienation  of  his  estate,  s 
by  his  death,  and  by  other  circumstances.  \ 

An  appendant  power  may  be  suspended  \ 
by  a  conveyance  of  his  interest  by  the  donee,  | 

4  Cruise,  Dig.  221;  Dougl.  477;  Croke  Car.  f 
472  ;  4  Bingh.  N.  c.  734  ;  2  Cow.  N.  Y.  237  ;  | 
and  may  be  extinguished  by  such  conveyance,  \ 
2Barnew.&  Aid.  93;  10  Ves.  Ch.  246,  or  by  a 
release.  1  Russ.  &  M.  431,  436,  n. ;  1  Coke,  f 
102  b;  2  Washburn,  Real  Prop.  308.  | 

A  power  in  gross  may  bo  released  to  one  |f 
having  the  freehold  in  possession,  reversion,  Jjt 
or  remainder,  and  not  by  any  other  act  of  ic 


POWER  OP  ATTORNEY 


357 


the  donee.  Tudor,  Lead.  Gas.  294 ;  Burton, 
Real  Prop.  §  176;  Chance,  Pow.  g  3172; 
Hardr.  41G;  1  P.  Will.  Ch.  777. 

A  collateral  power  cannot  be  suspended  or 
destroyed  by  act  of  the  donee.  F.  Moore, 
605  ;  5  Mod.  457.  And  see  1  Russ.  &  M.  Ch. 
431;  13  Mete.  Mass.  220. 

Impossibility  of  immediate  vesting  in  in- 
terest or  possession  does  not  suspend  or  ex- 
tinguish a  power.    2  Bingh.  144. 

Consult  Burton,  Labor,  Flintofi*,  Wash- 
burn, Williams,  Real  Property ;  Chance, 
Sugden,  Powers ;  Fearne,  Contingent  Re- 
mainders;  Tudor,  Leading  Cases;  Cruise, 
Digest,  Greenleaf 's  ed. ;  Gilbert,  Sugden's 
ed. ;  Sanders,  Uses;  Kent,  Commentaries; 
Watkins,  Conveyancing. 

POWER  OF  ATTORNEY.  An  instru- 
ment authorizing  a  person  to  act  as  the  agent 
or  attorney  of  the  person  granting  it. 

A  general  power  authorizes  the  agent  to 
act  generally  in  behalf  of  the  principal. 

A  special  power  is  one  limited  to  particular 
acts. 

It  may  be  parol  or  under  seal.  1  Parsons, 
Contr.  94.  The  attorney  cannot,  in  general, 
execute  a  sealed  instrument  so  as  to  bind  his 
principal,  unless  the  power  be  under  seal.  7 
Term,  259  ;  2  Bos.  &  P.  338  ;  5  Barnew.  &  C. 
355  ;  2  Me.  358.  See  7  Mees.  &  W.  Exch. 
322,  331 ;  7  Cranch,  299;  4  Wash.  C.  C.  471; 
19  Johns.  N.  Y.  60 ;  2  Pick.  Mass.  345. 

Powers  of  attorney  are  strictly  construed. 
6  Cush.  Mass.  117  ;  5  Wheat.  326;  3  Mees. 
&  W.  Exch.  402  ;  8  id.  806  ;  5  Bingh.  442. 
General  terms  used  with  reference  to  a  par- 
ticular subject-matter  are  presumed  to  be 
used  in  subordination  to  that  matter.  1 
Taunt.  349;  7  Barnew.  &  C.  278 ;  1  Younge 
&  C.  Exch.  394  ;  7  Mees.  &  W.  Exch.  595  ; 
5  Den.  N.  Y.  49 ;  7  Gray,  Mass.  287.  See,  as 
to  a  power  to  collect  a  debt,  I  Blackf.  Ind. 
252 ;  to  settle  a  claim,  5  Mees.  &  W.  Exch. 
645;  8  Blackf.  Ind.  291;  to  make  an  adjust- 
ment of  all  .claims,  8  Wend.  N.  Y.  494;  7 
Watts,  Penn.  716;  14  Cal.  399;  7  Ala.  n.  s. 
800 ;  to  accept  bills,  7  Barnew.  &  C.  278. 

PRACTICE.  The  form,  manner,  and 
order  of  conducting  and  carrying  on  suits  or 
prosecutions  in  the  courts  through  their  vari- 
ous stages,  according  to  the  principles  of  law 
and  the  rules  laid  down  by  the  respective 
courts.  In  a  popular  sense,  the  business 
which  an  attorney  or  counsellor  does :  as,  A 
B  has  a  good  practice. 

2.  The  books  on  practice  are  very  nume- 
rous :  among  the  most  popular  are  those  of 
Tidd,  Chitty,  Archbold,  Sellon,  Graham,  Dun- 
lap,  Caines,  Troubat  &  Haly,  Blake,  Impey, 
Daniell,  Benedict,  Colby,  Curtis,  Hall,  Law. 

A  settled,  uniform,  and  long-continued 
practice,  without  objection,  is  evidence  of 
what  the  law  is;  and  such  practice  is  based 
on  principles  which  are  founded  in  justice 
and  convenience.  2  Russ.  19,  570 ;  2  Jac. 
232  ;  5  Term,  380  ;  ]  Younge  &  J.  Exch.  167, 
168;  2  Crompt.  &  M.  Exch.  55;  Ram, 
Judgm.  c.  7. 


3.  With  respect  to  criminal  practice,  it  was 
forcibly  remarked  by  a  learned  judge,  in  a 
recent  case,  that  even  where  the  course  of  prac- 
tice in  criminal  law  has  been  unfavorable  to 
parties  accused,  and  entirely  contrary  to  the 
most  obvious  principles  of  justice  and  hu- 
manity, as  well  as  those  of  law,  it  has  been 
held  that  such  practice  constituted  the  law, 
and  could  not  be  altered  without  the  authority 
of  parliament.  Per  Maule,  J.,  8  Scott,  n.  c, 
599,  600. 

PRACTICE  COURT.  In  English  Law. 

A  court  attached  to  the  court  of  king's  bench, 
which  hears  and  determines  common  matters 
of  business  and  ordinary  motions  for  writs 
of  mandamus,  prohibition,  etc. 

It  was  formerly  called  the  bail  court.  It 
is  held  by  one  of  the  puisne  justices  of  the 
king's  bench. 

PRACTICES.  A  succession  of  acts  of  a 
similar  kind  or  in  a  like  employment.  Webst. 

PR^CEPTORES  (Lat.).  Heretofore 
masters  in  chancery  were  so  called,  as  having 
the  direction  of  making  out  remedial  writs. 
Fleta,  76 ;  2  Reeve,  Hist.  Eng.  Law,  251.  A 
species  of  benefice,  so  called  from  being  pos- 
sessed by  the  principal  templars  [prcBceptorea 
iempli),  whom  the  chief  master  by  his  author- 
ity created.    2  Mon.  Ang.  543. 

PR-ffiCIPE,  PRECIPE  (Lat.).  A  slip  of 
paper  upon  which  the  particulars  of  a  writ  are 
written.  It  is  lodged  in  the  office  out  of  which 
the  required  writ  is  to  issue.  Wharton,  Diet. 
2d  Lond.  ed. 

PRECIPE  QUOD  REDDAT  (Lat.). 
Command  him  to  return.  An  original  writ,  of 
which  prcecipe  is  the  first  word,  commanding 
the  person  to  whom  it  is  directed  to  do  a 
thing  or  to  show  cause  why  he  has  not  done 
it.  3  Sharswood,  Blackst.  Comm.  274 ;  Old 
Nat.  Brev.  13.  It  is  as  well  applied  to  a 
writ  of  right  as  to  other  writs  of  entry  and 
possession. 

PR^DA  BELLICA  (Lat.).  Booty. 
Property  seized  in  war. 

PRiEDIA(Lat.).  In  Civil  Law.  Lands. 

Prcedia  urbana,  those  lands  which  have 
buildings  upon  them  and  are  in  the  city. 

Prcedia  riistica,  those  lands  which  are 
without  buildings  or  in  the  country.  Yoc, 
Jur.  Utr. 

It  indicates  a  more  extensive  domain  than 
fundus.    Calvinus,  Lex. 

PRJGDIAL.  That  which  arises  imme- 
diately from  the  ground :  as,  grain  of  all 
sorts,  hay,  wood,  fruits,  herbs,  and  the  like. 

PRiEDIUM  DOMINANS  (Lat.  the 
ruling  estate).  In  Civil  Law.  The  name 
given  to  an  estate  to  which  a  servitude  is 
due :  it  is  called  the  ruling  estate. 

PR-aiDIUM  RUSTICUM  (Lat.  a  coun- 
try  estate).  In  Civil  Law.  By  this  is  un- 
derstood all  heritages  which  are  not  destined 
for  the  use  of  man's  habitation:  such,  for 
example,  as  lands,  meadows,  orchards,  gar- 
dens, woods,  even  though  they  should  be 
within  the  boundaries  of  a  city. 


PKtEDIUM  serviens 


358 


PRAYER 


PRiEDIUM  SERVIENS  (Lat).  In 
Civil  Law.  The  name  of  an  estate  which 
suffers  or  yields  a  service  to  another  estate.  \ 

PRiEDIUM  URBANUM  (Lat.).  In 
Civil  Law.  By  this  term  is  understood  build- 
ings and  edifices  intended  for  the  habitation 
and  use  of  man,  whether  they  be  built  in  cities 
or  whether  they  be  constructed  in  the  coun- 
try. 

PRiEFECTUS  VIGILIUM(Lat.).  In 
Roman  Law.  The  chief  officer  of  the  night- 
watch.  His  jurisdiction  extended  to  certain 
offences  affecting  the  public  peace,  and  even 
to  larcenies.  But  he  could  inflict  only  slight 
punishments. 

PR-SIMUNIRE  (Lat.).  In  order  to  pre- 
vent the  pope  from  assuming  the  supremacy  in 
granting  ecclesiastical  livings,  a  number  of 
statutes  were  made  in  England,  during  the 
reigns  of  Edward  I.  and  his  successors,  punish- 
ing certain  acts  of  submission  to  the  papal  au- 
thority therein  mentioned.  In  the  writ  for  the 
execution  of  these  statutes,  the  words  prcemu- 
nire  facias,  being  used  to  command  a  citation 
of  the  party,  gave  not  only  to  the  writ,  but 
to  the  offence  itself  of  maintaining  the  papal 
power,  the  name  of  prcemunire.  Coke,  Litt. 
129  ;  J acob,  Law  Diet. 

PR-fflSUMPTIO  JURIS  (Lat.).  In  Ro- 
man Law.  A  deduction  from  the  existence  of 
one  fact  as  to  the  existence  of  another  which 
admits  of  proof  to  the  contrary.  A  rebut- 
table presumption.  An  intendment  of  law 
which  holds  good  until  it  is  weakened  by 
proof  or  a  stronger  presumption.  Best, 
Presump.  29. 

PR^SUMPTIO  JURIS  ET  DE  JU- 
RE (Lat.).  In  Roman  Law.  A  deduction 
drawn,  by  reason  of  some  rule  of  law,  from  the 
existence  of  one  fact  as  to  the  existence  of  an- 
other, so  conclusively  that  no  proof  can  be 
admitted  to  the  contrary.  A  conclusive  pre- 
sumption. 

PR-SITOR.  In  Roman  Law.  A  muni- 
cipal officer  of  Rome,  so  called  because  {prce- 
iret  populo)  he  went  before  or  took  precedence 
of  the  people. 

2.  The  consuls  were  at  first  called  prsetors.  Liv. 
Hist.  iii.  55.  He  was  a  sort  of  minister  of  justice, 
invested  with  certain  legislative  powers,  especially 
in  regard  to  the  forms  or  formalities  of  legal  pro- 
ceedings. Ordinarily,  he  did  not  decide  causes  as 
a  judge,  but  prepared  the  grounds  of  decision  for 
the  judge,  and  sent  to  him  the  questions  to  be  de- 
cided between  the  parties.  The  judge  was  always 
chorsen  by  the  parties,  either  dii-ectly,  or  by  reject- 
ing, under  certain  rules  and  limitations,  the  persons 
proposed  to  them  by  the  prsetor.  Hence  the  saying 
of  Cicero  {pro  Cluentis,  43)  that  no  one  could  be 
ju  igcd  except  by  a  judge  of  his  own  choice.  There 
were  several  kinds  of  officers  called  prsBtors.  See 
Vicat,  Voc. 

3.  Before  entering  on  his  functions,  he  published 
an  edict  announcing  the  system  adopted  by  him 
for  the  application  and  interpretation  of  the  laws 
during  his  magistracy.  His  authority  extended 
over  all  jurisdictions,  and  was  summarily  expressed 
by  the  words  do,  dieo,  addico,  i.e.  do  I  give  the  ac- 
tion, dic.o  I  declare  the  law,  I  promulgate  the  edict, 
iddii  o  I  invest  the  judge  with  the  right  of  judging. 


There  were  certain  cases  which  he  was  bound  to 
decide  himself,  assisted  by  a  council  chosen  by 
himself, — perhaps  the  decemvirs.  But  the  greater 
part  of  causes  brought  before  him  he  sent 
either  to  a  judge,  an  arbitrator,  or  to  recuperators 
(recitperatorcs),  or  to  the  centumvirs,  as  before 
stated.  Under  the  empire,  the  powers  of  the 
praetor  passed  by  degrees  to  the  prefect  of  the 
pi-ietnriuni  or  the  prefect  of  the  city  :  so  that  this 
magistrate,  who  at  first  ranked  with  the  consuls, 
at  last  dwindled  into  a  director  or  manager  of  the 
public  spectacles  or  games. 

Till  lately,  there  were  officers  in  certain  cities  of 
Germany  denominated  praetors.  See  1  Kent,  Comm. 
528. 

PRAGMATIC  SANCTION.  In 
French  Law.  An  expression  used  to  de- 
signate those  ordinances  which  concern  the 
most  important  object  of  the  civil  or  ecclesi- 
astical administration.  Merlin,  Repert ;  1 
Fournel,  Hist,  des  Avocats,  24,  38,  39. 

In  Civil  Law.  The  answer  given  by  the 
emperors  on  questions  of  law,  when  consulted 
by  a  corporation  or  the  citizens  of  a  province 
or  of  a  municipality,  was  called  a  pragmatic 
sanction.  Le9ons  El.  du  Dr.  Civ.  Eom.  ^  53< 
This  differed  from  a  rescript. 

PRAYER.    In  Equity  Practice.  The 

request  in  a  bill  that  the  court  will  grant  the 
aid  which  the  petitioner  desires.  That  part 
of  the  bill  which  asks  for  relief.  The 
word  denotes,  strictly,  the  request,  but  is 
very  commonly  applied  to  that  part  of  the 
bill  which  contains  the  request.  ' 

2.  Of  Process.  That  part  of  the  bill  which 
asks  that  the  defendant  may  be  compelled  to' 
appear  and  answer  the  bill,  and  abide  the 
determination  of  the  court  upon  the  subject. 

It  must  contain  the  names  of  all  the 
parties,  1  P.Will.  593;  2  Dick.  Ch.  707; 
2  Johns.  Ch.  N.  Y.  245 ;  Cooper,  Eq.  Plead. 
16,  although  they  are  out  of  the  jurisdiction^ 

1  Beav.  KoUs,  106 ;  Smith,  Chanc.  Pract.  ] 
45;  Mitford,  Eq.  Plead.  Jeremy  ed.  164.  ' 
The  ordinary  process  asked  for  is  a  writ  of  ' 
subpoena.  Story,  Eq.  Plead.  §  44;  and  in  case  j 
a  distringas  against  a  corporation.  Cooper,  \ 
Eq.  Plead.  16,  or  an  injunction,  2  Sim.  &  S.  \ 
Ch.  219;  1  Sim.  Ch.  50,  is  sought  for,  if  \ 
should  be  included  in  the  prayer.  i 

3.  For  Relief,  is  general,  which  asks  for 
such  relief  as  the  court  may  grant ;  or 
special,  which  states  the  particular  form  of. 
relief  desired.  A  special  prayer  is  generally 
inserted,  followed  by  a  general  prayer.  4 
Madd.  Ch.  408  ;  5  Ves.  Ch.  495  ;  13  id.  119  ; 

2  Pet.  595  ;  16  id.  m ;  23  Vt.  247  ;  6  Gill, 
Md.  105  ;  25  Mo.  153  ;  10  Rich.  Eq.  53  ;  7 
Ind.  661 ;  15  Ark.  555.  Unless  the  general 
prayer  is  added,  if  the  defendant  fails  in  his 
special  prayer  he  will  not  be  entitled  to  any 
relief,  2  Atk.  Ch.  2 ;  1  Ves.  Ch.  426 ;  12  id, 
62;  3  Wooddeson,  Lect.  $5;  2  R.  L  129; 
4  id.  173;  15  Ala.  9,  except  in  case  of 
charities  and  bills  in  behalf  of  infants.  1 
Atk.  Ch.  6,  355  ;  1  Ves.  Ch.  418  ;  18  id.  325  ; 
1  Russ.  Ch.  235 ;  2  Paige,  Ch.  N.  Y.  396. 

4.  A  general  prayer  is  sufficient  for  most 
purposes  ;  and  the  special  relief  desired  may 
be  prayed  for  at  the  bar,  4  Madd.  Ch.  408; 


PREAMBLE 


359 


PRECEDENCE 


2  Atk.  Ch.  3,  141;  1  Edw.  Ch.  2G;  Story,  Eq. 
Plead.  Mi;  31  N.  II.  193;  2  Paino,  C.  C. 
]  1 :  3  Md.  Ch.  Dec.  140,  40G ;  9  How.  390 ; 

9  Mo.  201 ;  9  Gill  &  J.  Md.  80  ;  see  13  Penn. 
St.  67  ;  but  where  a  special  order  and  pro- 
visional process  are  required,  founded  on 
peculiar  circumstances,  a  special  prayer 
therefor  is  generally  inserted.  G  Madd. 
Ch.  218;  Hinde,  Chanc.  Pract.  17;  3  Ind. 
419. 

5.  Such  relief,  and  such  only,  will  be 
granted,  either  under  a  special  prayer, 
whether  at  bar,  3  Swanst.  Ch.  208 ;  2  Ves. 
Ch.  299  ;  3  id.  416  ;  4  Paige,  Ch.  N.  Y.  229  ; 
25  Me.  153 ;  30  Ala.  n.  s.  416 ;  32  id.  508, 
or  in  the  bill,  16  Tex.  399 ;  18  Ga.  492 ;  21 
Penn.  St.  131,  or  under  a  general  prayer,  as 
the  case  as  stated  will  justify,  7  Ired.  Eq. 
No.  C.  80  ;  4  Sneed,  Tenn.  623  ;  18  111.  142  ; 
5  Wise.  117,  424;  24  Mo.  31;  7  Ala.  n.  s. 
193:  16  id.  793;  13  Ark.  183;  3  Barb.  Ch. 
N.  Y.  613  ;  3  Gratt.  Va.  518 ;  9  How.  390 ; 
and  a  bill  framed  apparently  for  one  pur- 
pose will  not  be  allowed  to  accomplish 
ianother,  to  the  injury  of  the  defendant.  16 
Tex.  399 ;  21  Penn.  St.  131 ;  6  Wend.  N.  Y. 
63.    See  13  Gratt.  Va.  653. 

6.  And,  generally,  the  decree  must  conform 
to  the  allegations  and  proof.    7  Wheat.  522; 

10  id.  181;  19  Johns.  N.  Y.  496;  2  Harr. 
Ch.  Mich.  401 ;  1  Harr.  &  G.  Md.  11 ;  12 
Leigh,  Va.  69 ;  1  Ired.  Eq.  No.  C.  83  ;  5 
Ala.  243;  8  id.  211;  14  id.  470;  6  Ala. 
N.  s.  518;  4  Bibb,  Ky.  376;  5  Day,  Conn. 
223 ;  13  Conn.  146.  But  a  special  prayer 
may  be  disregarded,  as  the  allegations  war- 
rant under  the  general  prayer,  15  Ark.  555  ; 
4  Tex.  20;  2  Cal.  269;  22  Ala.  n.  s.  646; 

8  Humphr.  Tenn.  230 ;  1  Blackf.  Ind.  305, 
that  the  relief  granted  must  be  consistent 
with  the  special  prayer.  27  Ala.  507  ;  21 
Penn.  St.  131 ;  1  Jones,  Eq.  No.  C.  100 ;  2 
Ga.  413  ;  14  id.  52;  1  Edw.  Ch.  N.  Y.  654; 

9  Gill  &  J.  Md.  80;  4  Des.  Eq.  So.  C.  530; 
9  Yerg.  Tenn.  301 ;  1  Johns.  Ch.  N.  Y.  Ill ; 
15  Ala.  9. 

PREAMBLE.  An  introduction  prefixed 
to  a  statute,  reciting  the  intention  of  the 
legislature  in  framing  it,  or  the  evils  which 
led  to  its  enactment. 

A  preamble  is  said  to  be  the  key  of  a  statute,  to 
open  the  minds  of  the  makers  as  to  the  mischiefs 
which  are  to  be  remedied  and  the  objects  which 
are  to  be  accomplished  by  the  provisions  of  the 
statute.  Coke,  4th  Inst.  330,-  6  Pet.  301.  In 
modern  legislative  practice,  preambles  are  much 
less  used  than  formerly,  and  in  some  of  the  United 
States  are  rarely,  if  ever,  now  inserted  in  statutes. 
In  the  interpretation  of  a  statute,  though  resort 
may  be  had  to  the  preamble,  it  cannot  limit  or 
control  the  express  provisions  of  the  statute. 
Dwarris,  Stat.  504-508.  Nor  can  it  by  implication 
enlarge  what  is  expressly  fixed.  1  Story,  Const, 
b.  3,  c.  6;  3  M'Cord.  So.  C.  298;  15  Johns.  N.  Y. 
89;  Busb.  No.  C.  131;  Dav.  Dist.  Ct.  38. 

A  recital  inserted  in  a  contract  for  the 
purpose  of  declaring  the  intention  of  the 
parties. 

How  far  a  preamble  is  evidence  of  the 
facts  it  recites,  see  4  Maule  &  S.  532;  1 


Phillipps,  Ev.  239  ;  2  Russell,  Crimes,  720. 
And  see,  generally,  Erskine,  Inst.  1.  I.  18; 
Toullier,  1.  3,  n.  318 ;  2  Belt,  Suppl.  Ves.  Ch. 
239  ;  4  La.  55  ;  Barrington,  Stat.  353,  370. 

PREBEND.    In  Ecclesiastical  Law. 

Tire  stipciud  granted  to  an  ecclesiastic,  in 
consideration  of  officiating  in  the  church. 
It  is  in  this  distinguished  from  a  canonicate, 
which  is  a  mere  title  and  may  exist  without 
stipend.  The  prebend  may  be  a  simple 
stipend,  or  a  stipend  with  a  dignity  attached 
to  it,  in  which  case  it  has  some  jurisdiction 
belonging  to  it.  2  Burn,  Eccl.  Law,  88 ; 
Strange,  1082;  1  Term,  401;  2  id.  G30  ; 
1  Wils.  206;  Dy.  273  a;  7  Barnew.  &  C. 
113  ;  8  Bingh.  490;  5  Taunt.  2. 

PRECARIOUS   RIGHT.     The  right 

which  the  owner  of  a  thing  transfers  to 
another,  to  enjoy  the  same  until  it  shall 
please  the  owner  to  revoke  it. 

If  there  is  a  time  fixed  during  which  the 
right  may  be  used,  it  is  then  vested  for  that 
time,  and  cannot  be  revoked  until  after  its 
expiration.    Wolff,  Inst.  ^  333. 

PRECARIUM  (Lat.).  The  name  of  a  con- 
tract among  civilians,  by  which  the  owner  of  a 
thing,  at  the  request  of  another  person,  gives 
him  a  thing  to  use  as  long  as  the  owner  shall 
please.  Pothier,  n.  87.  See  Yelv.  172  ;  Croke 
Jac.  236 ;  9  Cow.  N.  Y.  687 ;  Rolle,  128  ; 
Bacon,  Abr.  Bailment  (C) ;  Erskine,  Inst.  3. 
1.  9  ;  Wolff,  Ins.  Nat.  I  333. 

A  tenancy  at  will  is  a  right  of  this  kind. 

PRECATORY  WORDS.  Expressionr 
in  a  will  praying  or  requesting  that  a  thinj^ 
shall  be  done. 

^,  Although  recommendatory  words  used 
by  a  testator,  of  themselves,  seem  to  leave 
the  devisee  to  act  as  he  may  deem  proper, 
giving  him  a  discretion,  as  when  a  testator 
gives  an  estate  to  a  devisee,  and  adds  that  he 
hopes,  recommends,  has  a  confidence,  wish, 
or  desire,  that  the  devisee  shall  do  certain 
things  for  the  benefit  of  another  person,  yet 
courts  of  equity  have  construed  such  pre- 
catory expressions  as  creating  a  trust.  8 
Ves.  Ch.  380;  18  id.  41;  Bacon,  Abr.  Lega- 
cies (B). 

3.  But  this  construction  will  not  prevail 
when  either  the  objects  to  be  benefited  are 
imperfectly  described,  or  the  amount  of 
property  to  which  the  trust  should  attach  if 
not  sufficiently  defined.  1  Brown,  Ch.  142; 
1  Sim.  Ch.  542,  556.  See  2  Story,  Eq.  Jur. 
I  1070  ;  Lewin,  Trusts,  77  ;  4  Bouvier,  Inst, 
n.  3953. 

PRECEDENCE.  The  right  of  being 
first  placed  in  a  certain  order, — the  first  rani 
being  supposed  the  most  honorable. 

In  this  country  no  precedence  is  given  bj 
law  to  men. 

Nations,  in  their  intercourse  with  each 
other,  do  not  admit  any  precedence :  hence, 
in  their  treaties,  in  one  copy  one  is  named 
first,  and  the  other  in  the  other.  In  some 
cases  of  officers  when  one  must  of  necessity 
act  as  the  chief,  the  oldest  in  commission 


PRECEDENTS 


360 


PREDECESSOR 


will  have  precedence:  as,  when  the  president 
of  a  court  is  not  present,  the  associate  who 
has  the  oldest  commission  will  have  a  pre- 
cedence;  or  if  their  commissions  bear  the 
same  date,  then  the  oldest  man. 

In  the  army  and  navy  there  is  an  order  of 
precedence  which  regulates  the  officers  in 
their  command. 

PRECEDENTS.  In  Practice.  Legal 
acts  or  instruments  which  are  deemed  worthy 
to  serve  as  rules  or  models  for  subsequent 
cases. 

3.  The  word  is  similarly  applied  in  respect  to 
political  and  legislative  action.  In  the  former  use, 
precedent  is  the  appropriate  word  to  designate  an 
adjudged  case  which  is  actually'  followed  or  sanc- 
tioned by  a  court  in  subsequent  cases.  An  ad- 
judged case  may  be  of  any  degree  of  weight,  from 
that  of  absolute  conclusiveness  down  to  the  faint- 
est presumption  ;  and  one  which  is  in  fact  disre- 
garded is  said  never  to  have  become  a  precedent. 
In  determining  whether  an  adjudication  is  to  be 
followed  as  a  precedent,  the  following  considera- 
tions are  adverted  to.  First,  the  justice  of  the 
principle  which  it  declares,  and  the  reasonableness 
of  its  application.  Hob.  270.  If  a  pret-edent  is 
to  be  followed  because  it  is  a  precedent,  even  when 
decided  against  an  established  rule  of  law,  there 
can  be  no  possible  correction  of  abuses,  because 
the  fact  of  their  existence  would  render  them 
above  the  law.  It  is  always  safe  to  rely  upon 
principles.  See  16  Viner,  Abr.  499  ;  AVeskett,  Inst. : 
2  Swanst.  Ch.  163;  2  Jac.  &  W.  Ch.  318:  3  Ves. 
Ch.  527  ;  2  Atk.  Ch.  559 ;  2  P.  Will.  Ch.  258;  2 
Brown,  Ch.  86;  1  Ves.  Ch.  11;  2  Evans,  Poth. 
377,  where  the  author  argues  against  the  policy 
of  making  precedents  binding  when  contrary  to 
reason.  See,  also,  1  Kent,  Comm.  475-477;  Liver- 
more,  Syst.  104,  105;  Gresley,  Eq.  Ev.  300;  16 
Johns.  N.  Y.  402;  20  id.  722;  Croke  Jac.  527;  33 
Hen.  VII.  41 ;  Jones,  Bailm.  46 ;  Principle;  Rea- 
son; Stare  Decisis. 

3.  According  to  Lord  Talbot,  it  is  "  much  better 
to  stick  to  the  known  general  rules  than  to  follow 
any  one  particular  precedent  which  may  be  founded 
on  reasons  unknown  to  us."  Cas.  temp.  Talb.  26. 
Blackstone,  1  Comm.  70,  says  that  a  former  decision 
is,  in  general,  to  be  followed,  unless  "  manifestly 
absurd  or  unjust;"  and  in  the  latter  case  it  is  de- 
clared, when  overruled,  not  that  the  former  sentence 
was  bad  late,  but  that  it  was  not  law.  If  an  adju- 
dication is  questioned  in  these  respects,  the  degree 
of  consideration  and  deliberation  upon  which  it 
was  made,  4  Coke,  94,  the  rnnk  of  the  court,  as  of 
inferior  or  superior  jurisdiction,  which  established 
it,  and  the  length  of  time  during  which  it  has  been 
acted  on  as  a  rule  of  property,  are  to  be  considered. 
The  length  of  time  which  a  decision  has  stood  un- 
questioned is  an  important  element;  since,  where 
a  rule  declared  to  be  law,  even  by  an  inferior  tri- 
bunal, has  been  habitually  adopted  and  acted  upon 
Dy  the  community,  and  becomes  thus  imbedded  in 
the  actual  affairs  of  men,  it  is  frequently  better  to 
enforce  it  as  it  is,  instead  of  allowing  it  to  be  re- 
examined and  unsettled.  It  is  said  that  in  order 
to  give  precerlents  binding  effect  there  must  be  a 
current  of  decisions,  Croke  Car.  528  ;  Croke  Jac. 
386;  8  Coke,  163;  and  even  then,  injustice  in  the 
rule  often  prevails  over  the  antiquity  and  frequency 
if  its  adoption,  and  induces  the  court  to  overrule 
|t.  But  this  is  to  be  very  cautiously  done  where  it 
is  a  rule  of  property,  so  that  a  departure  from  it 
would  unjustly  affect  vested  rights. 

Written  forms  of  procedure  which  have 
l>een  sanctioned  by  the  courts  or  by  long 
\  rofessionnl  usage,"  and  are  commonly  to  be 


followed,  are  designated  precedents.  Stephen, 
Plead.  392.  And  this  term,  when  used  aa 
the  title  of  a  law-book,  usually  denotes  a  col- 
lection of  such  forms. 

PRECEPT  (Lat.  precipio,  to  command). 
A  writ  directed  to  the  sheriff,  or  other  officer, 
commanding  him  to  do  something. 

PRECINCT.  The  district  for  which  a 
high  or  petty  constable  is  appointed  is,  in 
England,  called  a  precinct.  Willcox,  Const, 
xii. 

In  daytime,  all  persons  are  bound  to  re- 
cognize a  constable  acting  within  his  own 
precinct;  after  night,  the  constable  is  re- 
quired to  make  himself  known;  and  it  is, 
indeed,  proper  he  should  do  so  at  all  times. 
Id.  n.  265,  p.  93. 

PRECIPUT.  In  French  Law.  An  ob- 
ject which  is  ascertained  by  law  or  the  agree- 
ment of  the  parties,  and  which  is  first  to  bo 
taken  out  of  property  held  in  common,  by 
one  having  a  right,  before  a  partition  takes 
place. 

The  preciput  is  an  advantage  or  a  principal 
part  to  which  some  one  is  entitled  prcecipium 
jus,  which  is  the  origin  of  the  M'ord  preciput. 
Dalloz,  Diet. ;  Pothier,  Obi.  By  preciput  is 
also  understood  the  right  to  sue  out  the  pre- 
ciput. 

PRECLUDI  NON  (Lat.).    In  Plead- 
ing.   A  technical  allegation  contained  in  a  ■ 
replication  which  denies  or  confesses  and  ; 
avoids  the  plea.  ] 

It  is  usually  in  the  following  form  : — "  And  ' 
the  said  A  B,  as  to  the  plea  of  the  said  C  D, 
by  him  secondly  above  pleaded,  says  that  he,  \ 
the  said  A  B,  by  reason  of  any  thing  by  the  , 
said  C  D  in  that  plea  alleged,  ought  not  to  ' 
be  barred  from  having  and  maintaining  his  • 
aforesaid  action  thereof  against  the  said  C  D.  ' 
because  he  says  that,"  etc.  2  Wils  42  •  1  J 
Chitty,  Plead.  573.  '  1 

PRECpGNITION.    In  Scotch  Law.  j 

The  examination  of  witnesses  who  were  pre-  | 
sent  at  the  commission  of  a  criminal  act,  I 
upon  the  special  circumstances  attending  it,  \ 
in  order  to  know  whether  there  is  ground  for 
a  trial,  and  to  serve  for  direction  to  the  pro-  \ 
secutor.    But  the  persons  examined  may  in- 
sist on  having  their  declaration  cancelled  be- 
fore they  give  testimony  at  the  trial.  Erskine. 
Inst.  4.  4.  n.  49. 

PRECONTRACT.  An  engagement  en- 
tered into  by  a  person  which  renders  him 
unable  to  enter  into  another:  as,  a  promise 
or  covenant  of  marriage  to  be  had  afterwards. 
When  made  per  verba  de  presenti,  it  is  in  fact 
a  marriage,  and  in  that  case  the  party  making 
it  cannot  marry  another  person. 

PREDECESSOR.    One  who  has  pre- 
ceded another. 

This  term  is  applied  in  particular  to  corporators 
who  are  now  no  longer  such,  and  whose  rights 
have  been  vested  in  their  successor;  the  word  an- 
cestor is  more  usually  applicable  to  common  per- 
sons. The  predecessor  in  a  corporation  stands  in 
the  same  relation  to  the  successor  that  the  ancestci 
does  to  the  heir. 


PIlE-tMPTION 


3G1 


PREGNANCY 


One  who  has  ftllod.  a)  office  or  station  be- 
fore the  present  Incuinb''  it. 

P  R  E-E  M  P  r  T  O  t In  International 
Law.  The  righ  "  nr  <  niption  is  the  right 
of  a  nation  to  t  ■  )  '  le  merchandise  of 
strangers  passing  i  her  territories  or 
seas,  in  order  to         ■        her  subjects  the 

f reference  of  purcl  hitty,  Com.  Law, 

03 ;  2  Sharswood,   '  I    .      Comm.  287. 

This  right  is  ,  ti<;. -3  regulated  by 
treaty.  In  that  w.  icb.  wv,s  made  between 
the  United  States  ai  '  ("'>•■  at  Britain,  bearing 
date  the  19th  day  c  <  oer,  1794,  rati- 

fied in  1795,  it  was  a,  .  18,  after  men-, 

tioning  that  the  usua  ns  of  war,  and 

also  naval  materials,  confiscated  as 

contraband,  that  "wl  rt  ,  /  t  ie  difficulty  of 
agreeing  on  precise  ca  ts  in  wh'ch  alone  pro- 
visions and  other  artic  s  not  ;^enerally  con- 
traband may  be  regarc''  'I  s'.'ch,  renders  it 
expedient  to  provide  a/  !  -  3  inconveni- 
ences and  misundersta  hich  might 
thence  arise,  it  is  furthc.).-  .^.i^fj'  '  that  when- 
3ver  any  such  articles  r-r  being  :;ontraband 
according  to  the  existing  laws  of  nations 
shall  for  that  reason  be  seized,  'he  ^ame  shall 
not  be  confiscated,  but  the  (»wn(-  s  thereof 
shall  be  speedily  and  comp^cto\v  In'  emnified; 
and  the  captors,  or,  in  the  v  '■  An  1  the  gov- 
ernment under  whose  au  '  ley  act, 
shall  pay  to  the  masters  c  of  such 
vessel  the  full  value  of  ali  v  with  a 
reasonable  mercantile  profit  :>gether 
with  the  freight,  and  also  th  .  ■  s  inci- 
dent to  such  detention."  >ee  Maaning, 
Comm.  b.  3,  c.  8. 

PRE-EMPTION-RIGH'.  right 
given  to  settlers  upon  the  pub.  f  the 

United  States  to  purchase  theLi  at  a  Ji^  lited 
price  in  preference  to  others. 

It  gives  a  right  to  the  actui.  vho 
has  entered  and  occupied  witl  i  to 
obtain  a  title  to  a  quarter-section  i  r  ni- 
mum  price  fixed  by  law,  upon  >  :Mi\  \  he 
proper  office  and  payment,  to  th*-  exclusion 
of  all  other  persons.  It  is  an  equ  t  hi-  tiMe, 
15  Miss.  780  ;  9  Mo.  683;  15  Pet  i 
does  not  become  a  title  at  law  to  tl  ;  >  1 

entry  and  payment.    2  Sandf.  Ch.  in.  i.  75: 
11  111.  529;  15  id.  131.    It  may  be  tram 
ferred  by  deed,  9  111.  454;  15  id.  'l\ 
descends  to  the  heirs  of  an  intestate 
201 ;  12  Ala.  n.  s.  322.    See  2  Wl 
Prop.  532. 
TIEFECT.    In  French  Law.   .  ■  ! 
•'  invested  with  the  superintendt  ^ 
I'     1.1  Ministration  of  the  laws  in  ea^  ' 
parTu.t'iir.    Merlin,  Report. 

P  ^     /  E  R  E  N  C  E.    The  paying  c  ;  i  ,e  • 
or  more  of  his  creditors,  bv  au 
"^'^^  'or,  the  whole  or  a  part  of  ti  r'r 

claii  elusion  of  the  rest.  The  ri 

whici  has  acquired  over  othen 

be  pai..  :^v6i  .mi  of  the  assets  of  his  debto, 
as,  whei  a  en  ditor  has  obtained  a  judgme  ;i 
against  his  de!  tor  which  binds  the  latter's 
land,  he  has  a  p.  efc-.xnce. 

Voluntary  pre.^iroa'.es  are  forbidden  by 


the  insolvent-laws  of  some  of  the  states,  and 
are  void  when  made  in  a  general  assignment 
for  the  benefit  of  creditors.  See  Insolvent  ; 
Priority. 

PREGNANCY.  In  Medical  Juris- 
prudence. The  state  of  a  female  who  has 
within  her  ovary,  or  womb,  a  i'ecundatcd 
germ,  which  gradually  becomes  developed  in 
the  latter  receptacle.  Dunglison,  Med.  Diet. 
Pregnancy. 

2.  The  signs  of -pregnancy .  These  acquire 
a  great  importance  from  their  connection 
with  the  subject  of  concealed,  and  also  of 
pretended,  pregnancy.  The  first  may  occur 
in  order  to  avoid  disgrace,  and  to  accomplish 
in  a  secret  manner  the  destruction  of  ofi"- 
spring.  The  second  may  be  attempted  to 
gratify  the  wishes  of  a  husband  or  relations, 
to  deprive  the  legal  successor  of  his  just 
claims,  to  o;ratify  avarice  by  extorting  money, 
and  to  avoid  or  delay  execution. 

These  signs  and  indications  have  a  two- 
fold division.  First,  those  developed  through 
the  general  system,  and  hence  termed  con- 
stitutional ;  second,  those  developed  through 
the  uterine  system,  termed  local  or  sensible. 

3.  The  first,  or  constitutional,  indications 
regard— the  mental  phenomena,  or 
change  wrought  in  the  temperament  of  the 
mother,  evidenced  by  depression,  despond- 
ency, rendering  her  peevish,  irritable,  ca- 
pricious, and  wayward ;  sometimes  drowsiness 
and  occasionally  strange  appetites  and  anti- 
pathies are  present. 

Second,  the  countenance  exhibits  languor, 
and  what  the  French  writers  term  decompo- 
sition of  features, — the  nose  becoming  sharper 
and  more  elongated,  the  mouth  larger,  the 
eyes  sunk  and  surrounded  with  a  brownish 
or  livid  areola,  and  having  a  languid  ex- 
pression. 

Third,  the  vital  action  is  increased ;  a 
feverish  heat  prevails,  especially  in  those  of 
full  habit  and  sanguine  temperament.  The 
body,  except  the  breasts  and  abdomen,  some- 
times exhibits  emaciation.  There  are  fre- 
quently pains  in  the  teeth  and  face,  heart- 
burn, increased  discharge  of  saliva,  and 
costiveness. 

4.  Fourth,  the  mammary  sympathies  give 
enlargement  and  firmness  to  the  breasts  ;  but 
this  may  be  caused  by  other  disturbances  of 
the  uterine  system.  A  more  certain  in- 
dication is  found  in  the  areola,  which  is  the 
lark-colored  circular  disk  surrounding  tho 

ipple.    This,  by  its  gradual  enlargement, 
'  s  constantly  deepening  color,  its  increasing 
ganic  action  evidenced  by  its  raised  ap- 
arance,  turgescence,  and  glandular  follicles, 
justly  regarded  as  furnishing  a  very  high 
de,;  ree  of  evidence. 

''ifth,  irritability  of  stomach,  evidenced 
-ickness  at  the  stomach,  usually  in  the 
'    part  of  the  day. 

j> '.  'th,  suppression  of  the  menses,  or  monthly 
dls(  ,:a,rge  arising  from  a  secretion  from  the 
internal  surface  of  the  uterus.  Thi%  sup- 
pression, however,  may  occur  from  diseases 
or  from  a  vitiated  action  of  the  uterine  system. 


PREGNANCY 


362 


PREGNANCY 


5.  The  second^  termed  local  or  sensible  \ 
signs  and  indications,  arise  mainly  from  the 
development  of  the  uterine  system  consequent 
upon  impregnation.    This  has  reference — 

First,  to  the  change  in  the  uterus  itself. 
The  new  principle  introduced  causes  a 
determination  of  blood  to  that  organ,  which 
developes  it  first  at  its  fundus,  second  in  its 
body,  and  lastly  in  its  cervix  or  neck.  The 
latter  constantly  diminishes  until  it  has 
become  almost  wholly  absorbed  in  the  body 
of  the  uterus.  The  os  uteri  in  its  unimpreg- 
nated  state  feels  firm,  with  well-defined  lips 
or  margins.  After  impregnation  the  latter 
becomes  tumid,  softer,  and  more  elastic,  the 
orifice  feeling  circular  instead  of  transverse. 

Second,  to  the  state  of  the  umbilicus, 
which  is  first  depressed,  then  pushed  out  to 
a  level  with  the  surrounding  integuments, 
and  at  last,  towards  the  close  of  the  period, 
protruded  considerably  above  the  surface. 

Third,  to  the  enlargement  of  the  abdomen. 
This  commences  usually  by  the  end  of  the 
third  month,  and  goes  on  increasing  during 
the  period  of  pregnancy.  This,  however,  may 
result  from  morlDid  conditions  not  aifecting 
the  uterus,  such  as  disease  of  the  liver,  spleen, 
ovarian  tumor,  or  ascites. 

a.  Fourth,  to  quickening,  as  rendered 
evident  by  the  foetal  motions.  By  the  former 
we  understand  the  feeling  by  the  mother  of 
the  self-induced  motion  of  the  foetus  in  utero, 
which  occurs  about  the  middle  of  the  period 
of  pregnancy.  But  as  the  testimony  of  the 
mother  cannot  be  always  relied  upon,  her 
interest  being  sometimes  to  conceal  it,  it  is 
important  to  inquire  what  other  means  there 
may  be  of  ascertaining  it.  These  move- 
ments of  the  foetus  may  sometimes  be  ex- 
cited by  a  sudden  application  of  the  hand, 
having  been  previously  rendered  cold  by 
immersion  in  water,  on  to  the  front  of  the 
abdomen.  Another  method  is  to  apply  one 
hand  against  the  side  of  the  uterine  tumor, 
and  at  the  same  time  to  impress  the  opposite 
side  quickly  with  the  fingers  of  the  other 
hand. 

•y.  But  the  most  reliable  means  consists 
in  the  application  of  auscultation,  or  the  use 
of  the  stethoscope.  This  is  resorted  to  for 
the  purpose  of  discovering — 

First,  the  soufiie,  or  placental  sound. 

Second,  the  pulsations  of  the  foetal  heart. 
The  first  is  a  low,  murmuring  or  cooing 
sound,  accompanied  by  a  slight  rushing 
noise,  but  without  any  sensation  of  impulse. 
It  is  synchronous  with  the  pulse  of  the 
mother,  and  varies  not  in  its  situation 
during  the  course  of  the  same  pregnancy. 
Its  seat  in  the  abdomen  does  vary  in  pro- 
portion to  the  progressive  advance  of  the 
pregnancy,  and  it  is  liable  to  intermissions. 

The  second  is  quite  different  in  its 
characteristics.  It  is  marked  by  double  pul- 
sations, and  hence  very  rapid,  numbering 
from  one  hundred  and  twenty  to  one  hundred 
and  sixty  in  a  minute.  These  pulsations  are 
not  heard  until  the  end  of  the  fifth  month, 
and  become  more  distinct  as  pregnancy  ad- 


vances. Their  source  'being  the  %tal  heart, 
their  seat  will  vary  with  the  varying  position 
of  the  foetus.  Auscultation,  if  successful, 
not  only  reveals  the  fact  of  pregnancy,  but 
also  the  life  of  the  fa^tus. 

8.  There  is  still  another  indication  of 
pregnancy ;  and  tha'fc  is  a  bluish  tint  of  the 
vagina,  extending  from  the  os  externum  to 
the  OS  uteri.  It  is  a  violet  color,  like  lees  of 
wine,  and  is  caused  by  the  increased  vas- 
cularity of  the  genital  system  consequent 
upon  conception.  But  any  similar  cause 
other  than  conception  may  produce  the 
same  appearance. 

Independent  of  what  may  be  found  on  this 
subject  in  works  on.  medical  jurisprudence 
and  midwifery,  tha<:  of  Dr.  Montgomery  on 
the  Signs  and  Indications  of  Pregnancy  is 
the  fullest  and  most  reliable. 

The  laws  relating  to  pregnancy  concern' 
the  circumstances  under  and  the  manner  in 
which  the  fact  is  ascertained.  There  arc- 
two  cases  where  the  fact  whether  a  woman 
is  or  has  been  pregnant  is  important  to 
ascertain.  The  one  is  when  it  is  supposed 
she  pretends  pregnancy,  and  the  other  when 
she  is  charged  with  concealing  it. 

9.  Pretended  pregnancy  may  arise  from 
two  causes:  the  one  when  a  widow  feigns 
herself  with  child  in  order  to  produce  a 
supposititious  heir  to  the  estate.  The  pre- 
sumptive heir  may  in  such  case  have  a  writ 
de  ventre  inspiciendo,  by  which  the  sherifi"  is 
commanded  to  have  such  made,  and  the  fact 
determined  whether  pregnancy  exists  or  not, 
by  twelve  matrons,  in  the  presence  of  twelve 
knights.  If  the  result  determine  the  fact 
of  pregnancy,  then  she  is  to  be  kept  under 
proper  guard  until  she  is  delivered.  If  the 
pregnancy  be  negatived,  the  presumptive  heir 
is  admitted  to  the  inheritance.  1  Sharswood, 
Blackst.  Comm.  456;  Croke  Eliz.  566;  4 
Brown,  Ch.  90  ;  2  P.  Will.  Ch.  591 ;  Cox,  Cr* 
Cas.  297.  A  practice  quite  similar  prevailed 
in  the  civil  law. 

The  second  cause  of  pretended  pregnancy 
occurs  when  a  woman  is  under  sentence  of 
death  for  the  commission  of  a  crime.  At 
common  law,  in  case  this  plea  be  made 
before  execution,  the  court  must  direct  a 
jury  of  twelve  matrons,  or  discreet  women, 
to  ascertain  the  fact,  and  if  they  bring  in 
their  verdict  quick  with  child  (for  barely  with 
child,  unless  it  be  alive  in  the  womb,  is  no' 
sufficient),  execution  shall  be  stayed,  gene- 
rally till  the  next  session  of  the  court,  and. 
so  from  session  to  session,  till  either  she  is 
delivered  or  proves  by  the  course  of  nature 
not  to  have  been  with  child  at  all.  4  Shars- 
wood, Blackst.  Comm.  394,  395 ;  1  F  ay,  So. 
C.  487. 

10.  In  Scotland,  all  that  is  necessary  to 
be  proved,  to  have  execution  dolfi^^ed,  is  the 
fact  of  pregnancy,  no  difference  being  made 
whether  she  be  quick  with  child  or  not. 
This  is  also  the  provision  oi*  the  French 
penal  code  upon  this  subject.  In  thia 
country,  there  is  little  doubt  that  clear  proof 
that  the  woman  was  pregtiant,  though  not 


PREGNANCY  363  PREMEDITATION 


quick  with  child,  would  at  common  law  be 
sufficient  to  obtain  a  respite  of  execution 
until  after  delivery.  The  difficulty  lies  in 
making  the  proof  sufficiently  clear,  the 
signs  and  indications  being  all  somewhat 
uncertain,  some  of  them  wanting,  all  liable 
to  variation,  and  conviction  of  the  fact  only 
fastening  upon  the  mind  when  a  number  of 
them,  inexplicable  upon  any  other  hypoth- 
esis, concur  in  that  one  result. 

In  New  York  there  is  a  statute  regulation, 
Bee  3  Rev.  Stat.  ph.  37,  20-22,  of  the 
5th  edition,  by  which  the  sheriff  is  author- 
ized to  summon  a  jury  of  six  physicians 
when  a  pregnant  female  convict  is  under 
sentence  of  death,  and,  if  the  inquisition  by 
them  executed  tind  that  such  convict  is  quick 
with  child,  execution  shall  be  suspended, 
and  the  inquisition  transmitted  to  the 
governor ;  and  whenever  he  shall  become 
satisfied  that  she  is  no  longer  quick  with 
child,  he  shall  issue  his  warrant  for  her 
execution. 

11.  Pregnancy  is  seldom  concealed  except 
for  the  criminal  purpose  of  destroying  the 
life  of  the  foetus  in  utero,  or  of  the  child 
immediately  upon  its  birth.  Infant  life  is 
easily  extinguished;  while  proof  of  the  un- 
natural crime  is  hard  to  be  furnished.  This 
has  led  to  the  passage  of  laws,  both  in 
England  and  in  this  country,  calculated  to 
facilitate  the  proof  and  also  to  punish  the 
very  act  of  concealment  of  pregnancy  and 
death  of  the  child  when  if  born  alive  it 
would  have  been  illegitimate.  In  England, 
the  very  stringent  act  of  21  Jac.  I.  c.  27, 
required  that  any  mother  of  such  child  who 
had  endeavored  to  conceal  its  birth  should 
prove  by  at  least  one  witness  that  the  child 
was  actually  born  dead ;  and  for  want  of 
such  proof  it  arrived  at  the  forced  conclusion 
that  the  mother  had  murdered  it.  This  cruel 
law  was  essentially  modified,  in  1803,  by  the 
passage  of  an  act  declaring  that  women 
indicted  for  the  murder  of  bastard  children 
should  be  tried  by  the  same  rules  of  evidence 
and  presumption  as  are  allowed  to  take 
place  in  other  trials  of  murder. 

12.  The  early  legislation  of  Pennsylvania 
was  characterized  by  the  same  severity.  The 
Act  of  May  31,  1781,  made  the  concealment 
of  the  death  of  a  bastard  child  conclusive 
evidence  to  convict  the  mother  of  murder. 
jThis  was  repealed  by  the  Act  of  5th  April, 
1790,  s.  6,  which  declared  that  the  constrained 
presumption  that  the  child  whose  death  is 
concealed  was  therefore  murdered  by  the 
mother  shall  not  be  sufficient  to  convict  the 
party  indicted,  without  probable  presumptive 
proof  is  given  that  the  child  was  born  alive. 
The  law  was  further  modified  by  the  Act  of 
22d  April,  1794,  s.  18,  which  declares  that 
the  concealment  of  the  death  of  any  such 
child  shall  not  be  conclusive  evidence  to  con- 
vict the  party  indicted  for  the  murder  of  her 
child,  unless  the  circumstances  attending  it 
be  such  as  shall  satisfy  the  mind  of  the  jury 
that  she  did  wilfully  and  maliciously  destroy 
and  take  away  the  life  of  such  a  child.  The 


act  also  punishes  the  concealment  of  the 
death  of  a  bastard  child  by  fine  and  iniprisi  n- 
ment.  The  states  of  New  York,  Mansachu- 
setts,  Vermont,  Connecticut,  New  Jersey, 
New  Hampshire,  Georgia,  Illinois,  and  Michi- 
gan all  have  enactments  on  this  subject, — 
the  punishment  prescribed  being,  generally, 
fine  and  imprisonment.  For  duration  of 
pregnancy,  see  Gestation. 

PREGNANT.  See  Affirmative  Preg- 
nant ;  Negative  Pregnant. 

PREJUDICE  {Lat.  prce,  before,  judicarCy 
to  judge). 

A  forejudgment.  A  leaning  towards  one 
side  of  a  cause  for  some  reason  other  than 
its  justice. 

PRELATE.  The  name  of  an  ecclesias- 
tical officer.  There  are  two  orders  of  pre- 
lates :  the  first  is  composed  of  bishops,  and 
the  second,  of  abbots,  generals  of  orders, 
deans,  etc. 

PRELEVEMENT.    In  French  Law. 

The  portion  which  a  partner  is  entitled  to 
take  out  of  the  assets  of  a  firm  before  any 
division  shall  be  made  of  the  remainder  of 
the  assets  betv;een  the  partners. 

The  partner  who  is  entitled  to  a  prel^ve- 
ment  is  not  a  creditor  of  the  partnership:  on 
the  contrary,  he  is  a  part-owner  ;  for,  if  the 
assets  should  be  deficient,  a  creditor  has  a 
preference  over  the  partner  ;  on  the  other 
hand,  should  the  assets  yield  any  profit,  the 
partner  is  entitled  to  his  portion  of  it,  whereas 
the  creditor  is  entitled  to  no  part  of  it,  but 
he  has  a  right  to  charge  interest  when  he  is 
in  other  respects  entitled  to  it. 

PRELIMINARY.  Something  which 
precedes :  as,  pi  eliminaries  of  peace,  which 
are  the  first  sketch  of  a  treaty,  and  contain 
the  principal  articles  on  which  both  parties 
are  desirous  of  concluding,  and  which  are 
to  serve  as  the  basis  of  the  treaty. 

PRELIMINARY   PROOF.     In  In- 

surance.  Marine  policies  in  the  United 
States  generally  have  a  provision  that  a  loss 
shall  be  payable  in  a  certain  time,  usually 
sixty  days,  "  after  proof,''  meaning  "  pre- 
liminary proof,''  which  is  not  particularly 
specified.  Fire  policies  usually  specify  the 
preliminary  proof.  Life  policies,  like  marine, 
usually  make  the  loss  payable  sixty  days 
after  notice  and  proof.  2  Phillipps,  Ins.  ch. 
XX.;  11  Johns.  N.  Y.  241;  16  Barb.  N.  Y. 
171 ;  31  Me.  325  ;  4  Mass.  88  ;  6  Gray,  Mass. 
396  ;  6  Cush.  Mass.  342 ;  6Harr.  &  J.  Md.  408 ; 
3  Gill.  Md.  276;  2  Wash.  Va.  61 ;  23  Wend. 
N.  Y.  43;  1  La.  216;  11  Miss.  278  ;  Stew. 
Low.  Can.  354 ;  14  Mo.  220  ;  10  Pet.  507;  6 
111.  434;  13  id,  676;  5  Sneed,  Tenn.  139;  2 
Ohio,  452;  6  Ind.  137  ;  30  Vt.  659. 

PREMEDITATION.  A  design  formed 
to  commit  a  crime  or  to  do  some  other  thing 
before  it  is  done. 

Premeditation  differs  essentially  from  u  ill,  which 
constitutes  the  crime;  because  it  supposes,  besides 
an  nctual  will,  a  deliberation  and  a  continued  per^ 
sistence  which  indicate  more  perversity.    The  pre» 


PREMISES 


364  PREROGATIVE  COURT 


paration  of  arms  or  other  instruments  required  for 
the  execution  of  the  crime  are  indications  of  a 
premeditation,  but  are  not  absolute  proof  of  it; 
as  these  preparations  may  have  been  intended  for 
other  purposes,  and  then  suddenly  changed  to  the 
performance  of  the  criminal  act.  Murder  by  poi- 
soning must  of  necessity  be  done  with  premedi- 
tation. 

PREMISES  (Lat.  prod,  before,  mittere,  to 
put,  to  send). 

^  That  which  is  put  before.  The  introduc- 
tion. Statements  previously  made.  See  1 
East,  456. 

In  Conveyancing.  That  part  of  a  deed 
which  precedes  the  habendum,  in  which  are 
Bet  forth  the  names  of  the  parties,  with  their 
titles  and  additions,  and  in  which  are  recited 
such  deeds,  agreements,  or  matters  of  fact  as 
are  necessary  to  explain  the  reasons  upon 
which  the  contract  then  entered  into  is 
founded ;  and  it  is  here,  also,  the  considera- 
tion on  which  it  is  made  is  set  down  and  the 
certainty  of  the  thing  granted.  2  Sharswood, 
Blackst.  Comm.  298  ;  8  Mass.  174 ;  6  Conn. 
289. 

In  Equity  Pleading.  The  stating  part 
of  a  bill.  It  contains  a  narrative  of  the  facts 
and  circumstances  of  the  plaintiff's  case,  and 
the  wrongs  of  which  he  complains,  and  the 
names  of  the  persons  by  whom  done  and 
against  whom  he  seeks  redress.  Cooper,  Eq. 
Plead.  9 ;  Barton,  Suit  in  Eq.  27 ;  Mitford,  Eq. 
Plead.  Jerem.  ed.  43  ;  Story,  Eq.  Plead.  I  27. 

Every  material  fact  to  which  the  plaintiff 
intends  to  offer  evidence  must  be  stated  in 
the  premises ;  otherwise,  he  will  not  be  per- 
mitted to  offer  or  require  evidence  of  such 
fact.  1  Brown,  Ch.  94 ;  3  Swanst.  Ch.  472  ; 
3  P.  Will.  Ch.  276  ;  2  Atk.  Ch.  96 ;  1  Vern. 
Ch.  483  ;  11  Ves.  Ch.  240 ;  2  Hare,  Ch.  264 ; 
6  Johns.  N.  Y.  565  ;  9  Ga.  148. 

In  Estates.  Lands  and  tenements.  1 
East,  453  ;  3  Maule  &  S.  169. 

PREMIUM.  In  Insurance.  The  con- 
eideration  for  a  contract  of  insurance. 

A  policy  of  insurance  always  expresses  the 
consideration,  called  the  premium,  which  is 
a  certain  amount  or  a  certain  rate  upon  the 
value  at  risk,  paid  wholly  in  cash,  or  partly 
80  and  partly  by  promissory  note  or  other- 
wise. 2  Parsons,  Marit.  Law,  182.  By  the 
charters  of  mutual  fire  insurance  companies, 
the  insured  building  is  usually  subject  to  a 
lien  for  the  premium.  1  Phillips,  Ins.  ch.  vi. ; 
19  Miss.  53  ;  21  How.  35.  The  premium  may 
be  payable  by  service  rendered.    5  Ind.  96. 

In  life  insurance,  the  premium  is  usually 
payable  periodically,  18  Barb.  541 ;  and  the 
continuance  of  the  risk  is  usually  made  to 
depend  upon  the  due  payment  of  a  periodical 
premium.  2  Dutch.  N.  J.  268.  So  far  as 
the  agreed  risk  is  not  run  in  amount  or  time 
under  a  marine  policy,  the  whole  or  a  pro- 
portional stipulated  or  customary  part  of  the 
premium  is  either  not  payable,  or,  if  paid,  is 
to  be  returned  unless  otherwise  agreed.  2 
Phillips,  Ins.  c.  xxii.  ;  2  Parsons,  Marit.  Law 
185;  16  Barb.  N.  Y.  280;  7  Gray,  Mass! 


PREMIUM   NOTE.     In  Insurance. 

A  note  given  in  place  of  payment  of  the 
whole  or  a  part  of  the  premium. 

The  premium,  or  a  part  of  it,  is  not  unfre- 
quently  paid  wholly  or  in  part  by  a  promis- 
sory note,  with  a  stipulation  in  the  policy 
that  the  unpaid  amount  shall  be  set  off  and 
deducted  in  settling  for  a  loss.  1  Phillips, 
Ins.  g  51.  It  is  also  usually  collaterally  se- 
cured by  a  stipulation  in  the  policy  for  ita 
being  forfeited  by  non-payment  of  the  pre- 
mium note,  or  any  amount  due  thereon  by 
assessment  or  otherwise.  19  Barb.  N.  Y. 
440 ;  21  id.  605  ;  25  id.  109  ;  12  N.  Y.  477  • 
2  Ind.  65  ;  3  Gray,  215 ;  6  id.  288 ;  36  id.  252  \ 
19  Miss.  135 ;  35  N.  H.  328  ;  29  Vt.  23 ;  2  N. 
H.  198  ;  32  Penn.  St.  75  ;  34  Me.  451. 

PREMIUM   PUDICITIiE    (Lat.  the 

price  of  chastity).  The  consideration  of  a 
contract  by  which  a  man  promises  to  pay  to 
a  woman  with  whom  he  has  illicit  intercourse 
a  certain  sum  of  money. 

When  the  contract  is  made  as  the  payment 
of  past  cohabitation,  as  between  the  parties, 
it  is  good,  and  will  be  enforced  against  the 
obligor,  his  heirs,  executors,  and  adminis- 
trators;  but  it  cannot  be  paid,  on  a  defi- 
ciency of  assets,  until  all  creditors  are  paid, 
though  it  has  a  preference  over  the  heir, 
next  of  kin,  or  devisee.  If  the  contract  be 
for  future  cohabitation,  it  is  void.  Chitty, 
Contr.  215  ;  1  Story,  Eq.  Jur.  g  296  ;  5  Ves. 
Ch.  286  ;  7  id.  470;  11  id.  535  ;  2  P.  Will. 
432;  1  W.  Blackst.  517;  3  Burr.  1568;  1 
Fonblanque,  Eq.  b.  1,  c.  4,  §  4,  and  notes  s  and 
y ;  1  Ball  &  B.  Ir.  Ch.  360 ;  Roberts,  Fraud. 
Conv.  428;  Cas.  temp.  Talb.  153,  and  the 
cases  there  cited ;  6  Ohio,  21 ;  5  Cow.  N.  Y. 
253  ;  Harp.  So.  C.  201 ;  3  T.  B.  Monr.  Ky. 
35  ;  2  Rev.  Const.  Ct.  279  ;  11  Mass.  368  ;  2 
Nott  &  M'C.  So.  C.  251. 

PRENDER,  PRENDRE  (L.  Fr.).  To 

take.  This  word  is  used  to  signify  the  right  of  ' 
taking  a  thing  before  it  is  ofi'ered :  hence  the  , 
phrase  of  law,  it  lies  in  render,  but  not  in^ 
prender.  See  A  Prendre  ;  Gale  &  W.  Easem. ; 
Washburn,  Easem. 

PRENOMEN  (Lat.).   The  first  or  Chris-  ' 
tian  name  of  a  person.  Benjamin  is  the  pre- 
nomen  of  Benjamin  Franklin.  See  Cas.  tf,mp, 
Hardw.  286 ;  1  Tayl.  No.  C.  148. 

PREPENSE.  Aforethought.  See  1) 
Chitty,  Crim.  Law,  *784. 

PREROGATIVE.  In  Civil  Law.  The 

privilege,  pre-eminence,  or  advantage  which 
one  person  has  over  another :  thus,  a  person 
vested  with  an  office  is  entitled  to  all  tho 
rights,  privileges,  prerogatives,  etc.  whicih  bo- 
long  to  it. 

In  English  Law.  The  royal  prerogative 
is  an  arbitrary  power  vested  in  the  executive 
to  do  good  and  not  evil.  Rutherforth,  Inst. 
279  ;  Coke,  Litt.  90 ;  Chitty,  Prerog. ;  Bacon, 
Abr. 

PREROGATIVE  COURT.  In  Eng- 
lish Law.  An  ecclesiastical  court  held  in 
each  of  the  two  provinces  of  York  and 


PRESCRIBABLE  365 


PRESENTMENT 


Canterbury  before  a  judge  appointed  by  the 
archbishop  of  the  province. 

Formerly  in  this  court  testaments  were 
proved,  and  administrations  granted  where  a 
decedent  leftchattelstothevalueof  five  pounds 
{bona  notabilia)  in  two  distinct  dioceses  or 
jurisdictions  within  the  province,  and  all 
causes  relating  to  the  wills,  administrations, 
or  legacies  of  such  persons  were  originally 
cognisable.  This  jurisdiction  was  transferred 
to  "the  court  of  probate  by  20  &  21  Vict.  c. 
77,  ^  4,  and  21  &  22  Vict.  c.  95. 

An  appeal  lay  formerly  from  this  court  to 
the  king  in  chancery,  by  stat.  25  Hen.  VIII. 
c.  19,  but  lies  now  to  the  privy  council,  by 
Stat.  2  &  3  Will.  IV.  c.  92.  2  Stephen,  Comm. 
237,  238  ;  3  Sharswood,  Blackst.  Comm.  65, 
66.  ,  . 

In  American  Law.  A  court  having  a 
jurisdiction  of  probate  matters,  in  the  state 
of  New  Jersey. 

PRESCRIBABLE.  To  which  a  right 
may  be  acquired  by  prescription. 

PRESCRIPTION.  A  mode  of  acquir- 
ing title  to  incorporeal  hereditaments  by 
immemorial  or  long-continued  enjoyment. 

The  distinction  between  a  prescription  and  a 
custom  is  that  a  custom  is  a  local  usage  and  not 
annexed  to  a  person  ;  a  prescription  is  a  personal 
usage  confined  to  the  claimant  and  his  ancestors  or 
grantors.  The  theory  of  prescription  was  that  the 
right  claimed  must  have  been  enjoyed  beyond  the 
period  of  the  memory  of  man,  which  for  a  long 
time,  in  England,  went  back  to  the  time  of  Richard 
I.  To  avoid  the  necessity  of  proof  of  such  long 
duration,  a  custom  arose  of  allowing  a  presumption 
of  a  grant  on  proof  of  usage  for  a  long  term  of 
jears. 

2.  The  length  of  time  necessary  to  raise  a 
strict  prescription  was  limited  by  statute  32 
Hen.  VIII.  at  sixty  years.  8  Pick.  Mass. 
308 ;  7  Wheat.  59 ;  4  Mas.  C.  C.  402 ;  2 
Greenleaf,  Ev.  §  539.  See  9  Cush.  Mass.  171 ; 
29  Vt.  43  :  24  Ala.  n.  s.  130 ;  29  Penn.  St. 
22.  Grants  of  incorporeal  hereditaments  are 
presumed  upon  proof  of  enjoyment  of  the 
requisite  character  for  a  period  of  years 
equal  to  that  fixed  by  statute  as  the  period 
of  limitation  in  respect  of  real  actions.  3 
Kent,  Comm.  442;  12  Wend.  N.  Y.  330;  19 
id.  3G5  ;  27  Vt.  265  ;  2  Bail.  So.  C.  101 ;  4 
Md.  Ch.  Dec.  386 ;  13  N.  H.  360 ;  4  Day, 
Conn.  244 ;  10  Serg.  &  R.  Penn.  63  ;  9  Pick. 
Mass.  251.  See  14  Barb.  N.  Y.  511 ;  3  Me. 
120 ;  1  Bos.  &  P.  400  ;  5  Barnew.  &  Aid.  232. 

Prescription  properly  applies  only  to  in- 
corporeal hereditaments,  3  Barb.  N.  Y.  105  ; 
Finch,  Law,  132,  such  as  easements  of  water, 
light  and  air,  way,  etc.,  4  Mas.  C.  C.  397 ; 
'  4  Rich.  So.  C.  536 ;  20  Penn.  St.  331 ;  1 
Crompt.  M.  &  R.  Exch.  217  ;  1  Gale  &  D. 
205,  210,  n.;  Tudor,  Lead.  Cas.  114;  Wash- 
burn, Easements ;  a  class  of  franchises.  Coke, 
Litt.  114;  10  Mass.  70;  10  Serg.  &  R.  Penn. 
401.  See  Ferry.  As  to  the  character  of  the 
use  necessary  to  create  a  prescriptive  right, 
see  Adverse  Enjoyment. 

PRESENCE.    The  being  in  a  particular 
place. 


In  many  contracts  and  judicial  proceedings  it 
is  necessary  that  the  parties  should  be  present  in 
order  to  render  them  valid  :  for  example,  a  party  to 
a  deed,  when  it  is  executed  by  himself,  must  p^.r- 
sonally  acknowledge  it,  when  such  acknowledg- 
ment is  required  by  law,  to  give  it  its  full  force  and 
effect,  and  his  presence  is  indispensable,  unless, 
indeed,  another  person  represent  him  as  his  attor- 
ney, having  authority  from  him  for  that  purpose. 

Actual  presence  is  being  bodily  in  the 
precise  spot  indicated. 

Constructive  presence  is  being  so  near  to 
or  in  such  relation  with  the  parties  actually 
in  a  designated  place  as  to  be  considered  in 
law  as  being  in  the  place. 

2.  It  is  a  rule  in  the  civil  law  that  he  who 
is  incapable  of  giving  his  consent  to  an  act 
is  not  to  be  considered  present  although  he 
be  actually  in  the  place.  A  lunatic,  or  a 
man  sleeping,  would  not,  therefore,  be  con- 
sidered present.  Dig.  41.  2.  1.  3.  And  so 
if  insensible,  1  Dougl.  241 ;  4  Brown,  Pari. 
Cas.  71 ;  3  Russ.  Ch.  441 ;  or  if  the  act  were 
done  secretly  so  that  he  knew  nothing  of  it. 
1  P.  Will.  Ch.  740. 

3.  The  English  Statute  of  Frauds,  g  5, 
directs  that  all  devises  and  bequests  of  any 
lands  or  tenements  shall  be  attested  or  sub- 
scribed in  the  presence  of  said  devisor.  Under 
this  statute  it  has  been  decided  that  an  actual 
presence  is  not  indispensable,  but  that  where 
there  was  a  constructive  presence  it  was 
sufficient:  as,  where  the  testatrix  executed 
the  will  in  her  carriage  standing  in  the  street 
before  the  office  of  her  solicitor,  the  witness 
retired  into  the  office  to  attest  it,  and  it  being 
proved  that  the  carriage  was  accidentally  put 
back,  so  that  she  was  in  a  situation  to  see 
the  witness  sign  the  will,  through  the  window 
of  the  office.  Brown,  Ch.  98.  See  2  Curt. 
Eccl.  320,  331 ;  2  Salk.  688  ;  3  Russ.  Ch.  441 ; 
1  Maule  &  S.  294 ;  2  Carr.  &  P.  491. 

PRESENT.  A  gift,  or,  more  properly, 
the  thing  given.  It  is  provided  by  the  con- 
stitution of  the  United  States,  art.  1,  s.  9,  n. 
7,  that  "no  person  holding  any  office  of  profit 
or  trust  under  them  [the  United  States] 
shall,  without  the  consent  of  congress,  accept 
of  any  present,  emolument,  or  office,  or  title 
of  any  kind  whatever,  from  any  king,  prince, 
or  foreign  state.'' 

PRESENTS.  This  word  signifies  the 
writing  then  actually  made  and  spoken  of  ; 
as,  these  presents;  know  all  men  by  these 
presejits ;  to  all  to  whom  these  presents  shall 
come. 

PRESENTATION.  In  Ecclesiastical 
Law.  The  act  of  a  patron  offering  his  clerk 
to  the  bishop  of  the  diocese  to  be  instituted 
in  a  church  or  benefice. 

PRESENTEE.  In  Ecclesiastical  Law. 
A  clerk  who  has  been  presented  by  his  patron 
to  a  bishop  in  order  to  be  instituted  in  a 
church. 

PRESENTMENT.    In  Criminal  Prac 
tice.    The  written  notice  taken  by  a  grand 
jury  of  any  offence,  from  their  own  knowleage 
1  or  observation,  without  any  bill  (f  indictment 


PRESENTMENT 


366 


PRESENTMENT 


laid  before  them  at  the  suit  of  the  government. 
4  Sharswood,  Blackst.  Comm.  301. 

Upon  such  presentment,  when  proper,  the  officer 
praployed  to  prosecute  afterwards  frames  a  bill  of 
indictment,  which  is  then  sent  to  the  grand  jury, 
and  they  find  it  to  be  a  true  bill.  In  an  extended 
sense,  presentments  include  not  only  what  are  pro- 
perly so  called,  but  also  inquisitions  of  office  and 
indictments  found  by  a  grand  jury.  2  Hawkins, 
PI.  Cr.  c.  25,  s.  1. 

The  diflference  between  a  presentment  and  an  in- 
quisition is  this:  that  the  former  is  found  by  a 
grand  jury  authorized  to  inquire  of  offences  gene- 
rally, whereas  the  latter  is  an  accusation  found 
by  a  jury  specially  returned  to  inquire  concerning 
the  particular  offence.  2  Hawkins,  PI.  Cr.  c.  25,  s. 
6.  See,  generally,  Comyns,  Dig.  Indictment  (B)  j 
Bacon,  Abr.  Indictment  (A) ;  1  Chitty,  Crim.  Law, 
163;  7  East,  387;  1  Meigs,  Tenn.  112':  11  Humphr. 
Tenn.  12. 

The  writing  which  contains  the  accusation 
80  presented  bj  a  grand  jury.  1  Brock.  C.  C. 
156. 

In  Contracts.  The  production  of  a  bill 
of  exchange  or  promissory  note  to  the  party 
on  whom  the  former  is  drawn,  for  his  accept- 
ance, or  to  the  person  bound  to  pay  either, 
for  payment. 

2.  The  holder  of  a  bill  is  bound,  in  order 
to  hold  tbe  parties  to  it  responsible  to  him, 
to  present  it  in  due  time  for  acceptance,  and 
to  give  notice,  if  it  be  dishonored,  to  all  the 
parties  he  intends  to  hold  liable.  2  Pet.  170 ; 
4  Mas.  C.  C.  336;  5  id.  118;  12  Pick.  Mass. 
399 ;  7  Gray,  Mass.  217  ;  20  Wend.  N.  Y.  321 ; 
12  Vt.  401 5  13  La.  357;  7  B.  Monr.  Ky.  17; 
8  Mo.  268;  7  Blackf.  Ind.  367  ;  1  M'Cord,  So. 
C.  322;  7  Leigh,  Va.  179.  And  when  a  bill 
or  note  becomes  payable,  it  must  be  pre- 
sented for  payment. 

In  general,  the  presentment  for  payment 
should  be  made  to  the  maker  of  a  note,  or 
the  drawee  of  a  bill,  for  acceptance,  or  to  the 
acceptor,  for  payment,  2  Esp.  509  ;  but  a  pre- 
sentment made  at  a  particular  place,  when 
payable  there,  is,  in  general,  sufficient.  A  per- 
sonal demand  on  the  drawee  or  acceptor  is 
not  necessary:  a  demand  at  his  usual  place 
of  residence,  17  Ohio,  78,  of  his  wife,  or  other 
agent,  is  sufficient.  17  Ala.  n.  s.  42  ;  1  Const. 
So.  C.  367;  2  Esp.  509;  5  id.  265;  12  Mod. 
241 ;  Holt,  313. 

When  a  bill  or  note  is  made  payable  at  a 
particular  place,  a  presentment,  as  we  have 
seen,  may  be  made  there,  8  N.  Y.  260;  but 
when  the  acceptance  is  general  it  must  be 
•presented  at  the  house,  2  Taunt.  206 ;  1  Mann. 

6  G.  83;  3  B.  Monr.  Ky.  461,  or  place  of 
business,  of  the  acceptor.  3  Kent,  Comm.  64, 
65;  4  Mo.  52;  11  Gratt.  Va.  260;  2  Campb. 
596.    See  14  Mart.  La.  511. 

3.  The  presentment  for  acceptance  must 
be  made  in  reasonable  time;  and  what  this 
reasonable  time  is  depends  upon  the  circum- 
stances of  each  case.  7  Taunt.  197 ;  9  Bingh. 
416;  9  Moore,  Pari.  Cas.  66;  2  IT.  Blackst. 
565 ;  4  Mas.  C.  C.  336  ;  1  M'Cord,  So.  C.  322 ; 

7  Gray,  Mass.  217;  7  Cow.  205;  9  Mart.  La. 
326 ;  V  Blackf.  Ind.  367.  The  presentment 
of  a  note  or  bill  for  payment  ought  to  be 
made  on  the  day  it  becomes  due,  4  Term, 


148;  8  Mass.  453;  3  N.  H.  14;  12  La.  386; 
22  Conn.  213;  20  Me.  109  ;  7  Gill  &  J.  Md. 
78  ;  8  Iowa,  394;  1  Blackf.  Ind.  81 ;  10  Ohio. 
496,  and  notice  of  non-payment  given  (other- 
wise the  holder  will  lose  the  security  of  tho 
drawer  and  indorsers  of  a  bill  and  in- 
dorsers  of  a  promissory  note) ;  and  in  case  the 
note  or  bill  be  payable  at  a  particular  place, 
at  that  place,  1  Wheat.  171 ;  1  Harr.  Del.  10: 
5  Leigh,  Va.  522 ;  5  Blackf.  Ind.  215  ;  2  Jones. 
No.  C.  23 ;  13  Pick.  Mass.  465 ;  19  Johns.  N.  Y, 
391;  8  Vt.  191 ;  1  Ala.  n.  s.  375;  8  Mo.  336, 
and  the  money  lodged  there  for  its  payment, 
the  holder  would  probably  have  no  recourse 
against  the  maker  or  acceptor  if  he  did  not 
present  them  on  the  day  and  the  money 
should  be  lost.  5  Barnew.  &  Aid.  244 ;  3  Me. 
147;  27  id.  149. 

4.  The  excuses  for  not  making  a  present- 
ment are  general,  and  applicable  to  all  persons 
who  are  indorsers;  cr  they  are  special,  and 
applicable  to  the  particular  indorser  only. 

Among- the  former  are — inevitable  accident 
or  overwhelming  calamity.  Story,  Bills,  3 
308  ;  3  Wend.  N.  Y.  488;  2  Ind.  224.  The 
prevalence  of  a  malignant  disease,  by  which 
the  ordinary  operations  of  business  are  sus- 
pended. 2  Johns.  Cas.  N.  Y.  1;  3  Maule  & 
S.  267.  The  breaking  out  of  war  between, 
the  country  of  the  maker  and  that  of  the 
holder.  1  Paine,  C.  C.  156.  The  occupation- 
of  the  country  where  the  note  is  payable,  or 
where  the  parties  live,  by  a  public  enemy,; 
which  suspends  commercial  operations  and' 
intercourse.  8Cranch,  155;  15Johns.  N.  Y. 
57;  16  id.  438;  7  Pet.  586;  2  Brock.  C.  G.) 
20.  The  obstruction  of  the  ordinary  negotia-j 
tions  of  trade  by  the  vis  major.  Positive  in- 
terdictions and  public  regulations  of  tbe  state, 
which  suspend  commerce  and  intercourse.' 
The  utter  impracticability  of  finding  the 
maker  or  ascertaining  his  place  of  residence.  < 
Story,  Prom.  Notes,  205,236,  238,  241,  264;^ 
4  Serg.  &  R.  Penn.  480;  6  La.  727;  14  La.] 
Ann.  484;  3  M'Cord,  So.  C.  494;  1  Dev.  No.: 
C.  247  ;  2  Caines,  N.  Y.  121.  'i 

5.  Among  the  latter,  or  special  excuses  forj 
not  making  a  presentment,  may  be  enume-> 
rated  the  following.    The  receiving  the  note  by ' 
the  holder  from  the  payee,  or  other  antecedent 
party,  too  late  to  make  a  due  presentment: 
this  will  be  an  excuse  as  to  such  party.  16 
East,  248;  7  Mass.  483:  Story,  Prom.  Notes, 
U  201,  265  ;  2  Wheat.  373  ;  11  id.  431.  The 
note  being  an  accommodation  note  of  the  makei 
for  the  benefit  of  the  indorser.    Story,  Bills, 
§  370.    See  2  Brock.  C.  C.  20 ;  7  Harr.  &  J 
Md.  381 ;  1  Ilarr.  &  G.  Md.  468  ;  7  Mass.  452: 
1  Wash.  C.  C.  461 ;  2  id.  514;  1  Ilayw.  No'. 
C.  271;  4  Mas.  C.  C.  113;  1  Caines,  N.  Y.  ' 
157 ;  1  Stew.  Ala.  175 ;  5  Pick.  Mass.  88 ;  21  ' 
id.  327.    A  special  agreement  by  which  the 
indorser  waives  the  presentment.     8  Me. 
213;  6  Wheat.  572;  llrrf.629;  Story,  Bills, 

371,  373.  The  receiving  security  or  money 
by  an  indorser  to  secure  himself  from  loss, 
or  to  pay  the  note  at  maturity.  In  this 
case,  when  the  indemnity  or  money  is  a  full 
security  for  the  amount  of  the  note  or  bill,  m* 


PRESERVATION 


367 


PRESUMPTION 


presentment  is  requisite.  Story,  Bills,  ^  374 ; 
Story,  Prom.  Notes,  §  2H1 ;  4  Watts,  Penn.  328 ; 
9  Gill  &  J.  Md.  47  ;  7  Wend.  N.  Y.  105  ;  2  Me. 
207;  5  Mass.  170;  5  Conn.  175.  The  receiv- 
ing the  note  by  the  holder  from  the  indorscr 
as  a  collateral  security  f)r  another  debt.. 
Story,  Prom.  Notes,  §  284;  Story,  Bills,  g 
372  ;  2  How.  427,  457. 

A  want  of  presentment  may  be  waived  by 
the  party  to  be  affected,  after  a  full  knowledge 
of  the  fact.  8  Serg.  &  R.  Penn.  438.  See  6 
Wend.  N.  Y.  G58;  3  Bibb,  Ky.  102 ;  5  Johns. 
N.  Y.  385;  4  Mass.  347 ;  7  id.  452;  8  Cush. 
Mass.  157;  Wash.  C.  C.  50G;  Bacon,  Abr. 
Merchant,  etc.  (M).  See,  generally,  1  Hare  & 
W.  Sel.  Dec.  214,  224;  Story,  Prom.  Notes; 
Byles,  Bills ;  Parsons,  Bills. 

PRESERVATION.  Keeping  safe  from 
harm;  avoiding  injury.  This  term  always 
presupposes  a  real  or  existing  danger. 

A  jettison,  which  is  always  for  the  preser- 
vation of  the  remainder  of  the  cargo,  must 
therefore  be  made  only  when  there  is  a  real 
danger  existing.    See  Average;  Jettison. 

PRESIDENT.  An  officer  of  a  company 
who  is  to  direct  the  manner  in  which  busi- 
ness is  to  be  transacted.  From  the  decision 
of  the  president  there  is  an  appeal  to  the 
body  over  which  he  presides. 

PRESIDENT  OP  THE  UNITED 
STATES  OF  AMERICA.  The  title  of  the 
chief  executive  officer  of  the  United  States. 

The  constitution  directs  that  the  executive 
power  shall  be  vested  in  a  president  of  the 
United  States  of  America.    Art  2,  s.  1. 

2.  No  person  except  a  natural-born  citizen,  or  a 
citizen  of  the  United  States  at  the  time  of  the  adop- 
tion of  this  constitution,  shall  be  eligible  to  the 
office  of  president;  neither  shall  any  person  be  eli- 
gible to  that  office  who  shall  not  have  attained  the 
age  of  thirty-five  years  and  been  fourteen  years  a 
resident  within  the  United  States.  Art.  2,  s.  1,  n. 
5.  In  case  of  the  removal  of  the  president  from 
office,  or  of  his  death,  resignation,  or  inability  to  dis- 
charge the  powers  and  duties  of  the  said  office,  the 
same  shall  devolve  on  the  vice-president;  and  the 
congress  may  by  law  provide  for  the  removal,  death, 
resignation,  or  inability  both  of  the  president  and 
vice-president,  declaring  what  officer  shall  then  act 
as  president;  and  such  officer  shall  act  accordingly 
until  the  disability  be  removed  or  a  president  shall 
be  elected.    Art.  2,  s.  1,  n.  6. 

3.  He  is  chosen  by  electors  of  president  {q.  v.). 
See  U.  S.  Const,  art.  2,  s.  1,  n.  2,  3,  4;  1  Kent, 
Comm.  273;  Story,  Const.  §  1447  et  seq.  After  his 
election,  and  before  he  enters  on  the  execution  of 
his  office,  he  shall  take  the  following  oath  or  affirm- 
ation: "I  do  solemnlj'^  swear  (or  affirm)  that  I 
will  faithfully  execute  the  office  of  president  of  the 
United  States,  and  will,  to  the  best  of  my  ability, 
preserve,  protect,  and  defend  the  constitution  of  the 
United  States."    Article  2,  s.  1,  n.  8,  9. 

He  holds  his  office  for  the  term  of  four  years, 
art.  2,  s.  1,  n.  1 ;  and  is  re-eligible  for  successive 
terms;  but  no  one  has  ventured,  contrary  to 
public  opinion,  to  be  a  candidate  for  a  third  term. 

4.  The  president  shall,  at  stated  times,  receive 
for  his  services  a  compensation  which  shall  neither 
be  increased  nor  diminished  during  the  period  for 
which  he  shall  have  been  elected;  and  he  shall  not 
receive  within  that  period  any  other  emolument 
from  the  United  States,  or  any  of  them.  Art.  2, 
«•  1.  n  7     The  act  of  the  24th  September,  1789, 


ch.  19,  fixed  the  salary  of  the  president  at  twenty- 
five  thousand  dollars.    This  is  his  salary  now. 

The  powers  of  the  president  are  to  be  exercised 
by  him  alone,  or  by  him  with  the  concurrence  of 
the  senate. 

5.  The  constitution'  has  vested  in  him  nlone  the 
following  powers:  he  is  commander-in-chief  of  the 
army  and  navy  of  the  United  States,  and  of  the 
militia  of  the  several  states,  when  called  into  the 
actual  service  of  the  United  States;  he  may  require 
the  opinion,  in  writing,  of  the  principal  officers  of 
each  of  the  executive  departments,  upon  any  sub- 
ject relating  to  the  duties  of  their  respective  offices; 
and  he  shall  have  the  power  to  grant  reprieves  and 
pardons  for  offences  against  the  United  States, 
except  in  cases  of  impeachment.  Art.  2,  s.  2,  n.  2. 
He  may  appoint  all  officers  of  the  United  States, 
whose  appointments  are  not  otherwise  provided  for 
in  the  constitution,  and  which  shall  be  established 
by  law,  when  congress  shall  vest  the  appointment 
of  such  officers  in  the  president  alone.  Art.  2,  s. 
2,  n.  2.  He  shall  have  power  to  fill  up  all  vacan- 
cies that  may  happen  during  the  recess  of  the 
senate,  by  granting  commissions,  which  shall  ex- 
pire at  the  end  of  their  next  session.  Art.  2,  s. 
2,  n.  3.  He  shall  from  time  to  time  give  congres? 
information  of  the  state  of  the  Union,  and  recom- 
mend to  their  consideration  such  measures  as  he 
shall  judge  necessary  and  expedient:  he  may,  on 
extraordinary  occasions,  convene  both  houses,  or 
either  of  them,  and  in  case  of  disagreement  between 
them  with  respect  to  the  time  of  adjournment,  he 
may  adjourn  them  to  such  time  as  he  shall  think 
proper;  he  shall  receive  ambassadors  and  other 
public  ministers;  he  shall  take  care  that  the  laws 
be  faithfully  executed,  and  shall  commission  all 
officers  of  the  United  States. 

6.  His  power,  with  the  concurrence  of  the  senate, 
is  as  follows : — to  make  treaties,  provided  two-thirds 
of  the  senators  present  concur;  nominate,  and,  by 
and  with  the  advice  and  consent  of  the  senate, 
appoint,  ambassadors,  other  public  ministers  and 
consuls,  judges  of  the  supreme  court,,  and  all 
other  officers  of  the  United  States  whose  ai>point- 
ments  are  not  provided  for  in  the  constitution,  and 
which  have  been  established  by  law ;  but  the  con- 
gress may  by  law  vest  the  appointment  of  such 
inferior  officers  as  they  shall  think  proper  in  the 
president  alone,  in  the  courts  of  law,  or  in  the 
heads  of  departments.  Art.  2,  s.  2,  n.  2.  See  1 
Kent,  Comm.  Lect.  13;  Story,  Const,  b.  3,  c.  36; 
Rawle,  Const.  Index;  Serg.  Const.  L.  Index. 

PRESS.  By  a  figure,  this  word  signifies 
the  art  of  printing:  the  press  is  free. 

All  men  have  a  right  to  print  and  publish 
whatever  they  may  deem  proper,  unless  by 
doing  so  they  infringe  the  rights  of  another, 
as  in  the  case  of  copyrights  [q.  v.),  when 
they  may  be  enjoined.  For  any  injury  they 
may  commit  against  the  public  or  individuals 
they  may  be  punished,  either  by  indictment 
or  by  a  civil  action  at  the  suit  of  the  party 
injured,  when  the  injury  has  been  committed 
against  a  private  individual.  See  U.  S.  Const. 
Amendm.  art.  1 ;  Liberty  of  the  Press. 

PRESUMPTION.  An  inference  affirm- 
ative  or  disaffirraative  of  the  truth  or  false- 
hood of  any  proposition  or  fact  drawn  by  a 
process  of  probable  reasoning  in  the  absence 
of  actual  certainty  of  its  truth  or  falsehood, 
or  until  such  certainty  can  be  ascertained. 
Best,  Presump.  4. 

An  inference  affirmative  or  disaffirraative 
of  the  existence  of  a  disputed  fact,  drawn  by 
a  judicial  tribunal,  by  a  process  of  probable 


PRESUMPTION 


368 


PRESUMPTION 


reasoning,  from  some  one  or  more  matters  of 
fact,  either  admitted  in  the  cause  or  other- 
wise satisfactorily  established.  Best,  Pre- 
<iump.  12. 

Conclusive  presumptions  are  inferences 
which  the  law  makes  so  peremptorily  that  it 
will  not  allow  them  to  be  overturned  by  any 
contrary  proof,  however  strong.  Best,  Pre- 
8ump.  20.  They  are  called,  also,  absolute 
and  irreb^ittable  presumptions. 

Disputable  presumptions  are  inferences  of 
law  which  hold  good  until  they  are  inva- 
lidated by  proof  or  a  stronger  presumption. 
Best,  Presump.  29  ;  2  Harr.  &  M'H.  Md.  77  ; 
4  Johns.  Ch.  N.  Y.  287. 

Presumptions  of  fact  are  inferences  as  to 
the  existence  of  some  fact  drawn  from  the 
existence  of  some  other  fact ;  inferences  which 
common  sense  draws  from  circumstances 
usually  occurring  in  such  cases.  1  Phil- 
lipps,  Ev.  4th  Am.  ed.  599  ;  3  Barnew.  & 
Ad.  890 ;  3  Hawks,  No.  C.  122 ;  1  Wash.  C. 
C.  372. 

Presumptions  of  law  are  rules  which,  in 
certain  cases,  either  forbid  or  dispense  with 
any  ulterior  inquiry.  1  Greenleaf,  Ev.  I  14. 
Inferences  or  positions  established,  for  the 
most  part,  by  the  common,  but  occasionally 
by  the  statute,  law,  which  are  obligatory  alike 
on  judges  and  juries.  Best,  Presump.  17. 
They  are  either  conclusive  or  disputable. 

The  distinctions  between  presumptions  of  law 
and  presumptions  of  fact  are — fir8t,  that  in  regard 
to  presumptions  of  law  a  certain  inference  must 
be  made  whenever  the  facts  appear  which  furnish 
the  basis  of  the  inference;  while  in  case  of  other 
presumptions  a  discretion  more  or  less  extensive 
is  vested,  in  the  tribunal  as  to  drawing  the  infer- 
ence. See  9  Barnew.  &,  C.  643.  Second,  in  case 
of  presumptions  of  law,  the  court  may  draw  the 
inference  Avhenever  the  requisite  facts  are  de- 
veloped in  pleading,  Stephen,  Plead.  4th  ed.  382  ; 
while  all  other  presumptions  can  be  made  only  by 
the  intervention  of  a  jury.  Presumptions  of  law 
are  reduced  to  fixed  rules,  and  form  a  part  of  the 
system  of  jurisprudence  to  which  they  belong; 
presumptions  of  fact  are  derived  wholly  and  di- 
rectly from  the  circumstances  of  the  particular 
case,  by  means  of  the  common  experience  of  man- 
kind. See  2  Starkie,  Ev.  684;  6  Am.  Law  Mag. 
370;  35  Penn.  St.  440. 

S.  In  giving  effect  to  presumptions  of  fact, 
it  is  said  that  the  presumption  stands  until 
proof  is  given  of  the  contrary.  1  Crompt. 
M.  &  R.  Exch.  895  ;  2  Harr.  &*^M'n.  Md.  77  ; 
2  Dall.  Penn.  22;  4  Johns.  Ch.  N.  Y.  287. 
See  Burden  of  Proof  ;  Onus  Probandi. 
This  contrary  proof  may  be  a  conflicting 
presumption  ;  and  Mr.  Best  lays  down  the 
following  rules  for  application  in  such  cases: 
—first,  special  presumptions  take  the  place  of 
general  ones,  see  8  Barnew.  &  C.  737  ;  9  id. 
643;  5  Taunt.  32G ;  1  Marsh.  68;  secmid, 
presumptions  derived  from  the  ordinary 
course  of  nature  are  stronger  than  casual 
presumptions,  1  Carr.  &  K.  134 ;  4  Barnew. 
&  C.  71 ;  Coke,  Litt.  373  a;  third,  presump- 
tions are  favored  which  tend  to  give  validity 
to  acts,  1  Leach,  Cr.  Cas.  412;  5  Esp.  230; 
I  Mann.  &  R.  668  ;  3  Campb.  432 ;  2  Barnew. 
•t  C.  814;  7  id.  573  ;  2  Wheat.  70  ;  1  South. 


N.  J.  148  ;  3  T.  B.  Monr.  Ky.  54 ;  7  id.  344  : 

2  Gill  &  J.  Md.  114;  10  Pick.  Mass.  359;  j 
Rawle,  Penn.  386  ;  Maxims,  Omnia  prcesu- 
muntur,  etc. ;  fourth,  the  presumption  of  in- 
nocence is  favored  in  law.  4  Carr.  &  P.  116; 
Russ.  &R.  Cr.  Cas.  61 ;  10  Mees.  &  W.  Exch.  \b. 

3.  Among  conclusive  presumptions  may 
be  reckoned  estoppels  by  deed,  see  Estoppels; 
solemn  admissions  of  parties,  and  unsolemn 
admissions  which  have  been  acted  on,  1 
Campb.  139;  1  Taunt.  398;  2  Term,  275  ;  15 
Mass.  82  ;  see  Admissions  ;  1  Greenleaf,  Ev.  | 
205  ;  that  a  sheriff's  return  is  correct  as  to  facts 
stated  therein  as  between  the  parties,  15  Mass. 
82 ;  that  an  infant  under  the  age  of  seven  years 
is  incapable  of  committing  a  felony,  4  Black- 
stone,  Comm.  23  ;  that  a  boy  under  fourteen  is 
incapable  of  committing  a  rape,  7  Carr.  &  P. 
582  ;  8  id.  736;  9  id.  118  ;  that  the  issue  of  a 

with  whom  her  husband  cohabits  is  legiti- 
mate, though  her  infidelity  be  proved,  3  Carr. 

6  P.  215  ;  1  Sim.  &  S.  Ch.  153  ;  5  Clark  & 
F.  Hou.  L.  163  ;  2  All.  Mass.  453  ;  3  id.  151 ; 
that  despatches  of  an  enemy  carried  in  a  neu- 
tral vessel  between  two  hostile  ports  are  hos- 
tile, 6  C.  Rob.  Adm.  440  ;  that  all  persong 
subject  to  any  law  which  has  been  duly  pro- 
mulgated, or  which  derives  its  validity  from 
general  or  immemorial  custom,  are  acquainted 
with  its  provisions.  4  Blackstone,  Comm. 
27  ;  1  Coke,  177  ;  2  id.  3  6;  6  id.  54  a.  See, 
also.  Limitation;  Prescription. 

4.  Among  rebuttable  presumptions  may 
be  reckoned  the  presumptions  that  a  man  is 
innocent  of  the  commission  of  a  crime,  2 
Lew.  Cr.  Cas.  227 ;  see  3  Gray,  Mass.  465 ; 
19  Bost.  Law  Rep.  615 ;  3  East,  192  ;  10 
id.  211;  4  Barnew.  &  C.  247;  5  id.  758; 

2  Barnew.  &  Aid.  385;  that  the  possessor 
of  property  is  its  owner,  1  Strange,"  505  ;  9 
Cush.  Mass.  150 ;  21  Barb.  N.  Y.  333  ;  35 
Me.  139,  150  ;  that  possession  of  the  fruits  of 
crime  is  guilty  possession,  2  Carr.  &  P.  359;, 

7  id.  551 ;  Russ.  &  R.  308 ;  1  Den.  Cr.  Cas.  596 ; ' 

3  Dev.  &  B.  No.  C.  122;  7  Vt.  122;  9  Conn.; 
527;  19  Me.  398;  that  things  usually  done' 
in  the  course  of  trade  have  been  done,  1' 
Stark.  225  ;  1  Mann.  &  G.  46  ;  8  C.  B.  827  ;  \ 
7  Q.  B.  846;  7  Wend.  N.  Y.  198;  9  id.  323;' 
9  Serg.  &  R.  Penn.  385  ;  9  N.  H.  519  :  10 
Mass.  205;  19  Pick.  Mass.  112;  7  Gill,  Md. 
34 ;  45  Me.  516,  550  ;  15  Conn.  206  ;  that 
solemn  instruments  are  duly  executed,  1 
Rob.  Eccl.  10 ;  9  Carr.  &  P.  570  ;  15  Me.  470; 

1  Mete.  Mass.  349;  15  Conn.  206;  that  a 
person,  relation,  or  state  of  things  once 
shown  to  exist  continues  to  exist,  as,  life, 

2  Rolle,  461;  2  East,  313;  1  Pet.  452;  3 
McLean,  C.  C.  390;  see  2  Campb.  113;  14 
Sim.  Ch.  28,  277;  2  PhiU.  Ch.  199 ;  2  Mees. 
&  W.  Exch.  894;  19  Pick.  Mass.  112;  1 
Mete.  Mass.  204 ;  1  Ga.  538  ;  11  N.  H.  191 ; 

4  Whart.  Penn.  150,  173;  23  Penn.  St.  114; 
36  Me.  176  ;  13  Ired.  No.  C.  333  ;  7  Tex.  178; 
1  Penn.  N.  J.  167  ;  sec  Death  ;  Si partnership, 
1  Stark.  405  ;  insanitii,  3  Brown,  Ch.  443 ; 

3  Mete.  Mass.  164;  4  -id.bAb  ;  39  N.  II.  163, 

4  Wash.  C.  C.  262;  5  Johns.  N.  Y.  144;  i 
Pet.  C.  C.  163 ;  2  Va.  Cas.  132 ;  4  M'Cord, 


PRESUMPTIVE  EVIDENCE  369 


PRICE 


So.  C.  189  ;  that  official  acts  have  been  pro- 

f erly  performed.  1  J.  J.  Marsh.  Ky.  447  ; 
4  Johns.  N.  Y.  182;  19  id.  345;  3  N.  H. 
310;  3  Gill  &  J.  Md.  359;  12  Wheat.  70;  7 
Conn.  350. 

Consult  Greenleaf,  Starkie,  Phillipps,  on 
Evidence  ;  Best,  Matthews,  on  Presumptive 
Evidence  ;  Russell  on  Crimes, 

PRESUMPTIVE  EVIDENCE.  Any 
evidence  which  is  not  direct  and  positive. 
1  Starkie,  Ev.  3d  ed.  558.  The  proof  of 
facts  from  which  with  more  or  less  certainty, 
according  to  the  experience  of  mankind  of 
their  more  or  less  universal  connection,  the 
existence  of  other  facts  can  be  deduced.  2 
Saunders,  Plead.  673.  The  evidence  afforded 
by  circumstances,  from  which,  if  unexplained, 
the  jury  may  or  may  not  infer  or  pre- 
sume other  circumstances  or  facts.  1  Green- 
leaf,  Ev.  I  13.  See  Peake,  Ev.  Norris  ed. 
45  ;  Best,  Pres.  4,  |  3. 

PRESUMPTIVE  HEIR.  One  who  if 
the  ancestor  should  die  immediately  would, 
under  existing  circumstances  of  things,  be 
his  heir,  but  whose  right  of  inheritance  may 
be  defeated  by  the  contingency  of  some 
nearer  heir  being  born :  as,  a  brother,  who  is 
the  presumptive  heir,  may  be  defeated  by 
the  birth  of  a  child  to  the  ancestor.  2 
Sharswood,  Blackst.  Comm.  208. 

PRET  A  USAGE  (Fr.  loan  for  use). 
A  phrase  used  in  the  French  law  instead  of 
commodatum. 

PRETENSION.  In  French  Law. 
The  claim  made  to  a  thing  which  a  party 
believes  himself  entitled  to  demand,  but 
which  is  not  admitted  or  adjudged  to  be  his. 

The  words  rights,  actions,  and  pretensions  are 
usually* joined;  not  that  they  are  synonymous,  for 
right  is  something  positive  and  certain,  action  is 
what  is  demanded,  while  pretension  is  sometimes 
not  even  accompanied  by  a  demand. 

PRETERITION  (Lat.  prceter  and  eo,  to 
go  by).  In  Civil  Law.  The  omission  by  a 
testator  of  some  one  of  his  heirs  who  is  en- 
titled to  a  legitime  {q.  v.)  in  the  succession. 

Among  the  Romans,  the  preterition  of 
children  when  made  by  the  mother  was 
presumed  to  have  been  made  with  design ; 
the  preterition  of  sons  by  any  other  testator 
was  considered  as  a  wrong,  and  avoided  the 
will,  except  the  will  of  a  soldier  in  service, 
which  was  not  subject  to  so  much  form. 

PRETEXT  (Lat.  prcetexium,  woven  be- 
fore). The  reasons  assigned  to  justify  an 
act,  which  have  only  the  appearance  of  truth, 
and  which  are  without  foundation,  or  which, 
if  true,  are  not  the  true  reasons  for  such  act. 
Vattel,  liv.  3,  c.  3,  ^  32. 

PRETIUM  AFFECTIONIS  (Lat.). 
An  imaginary  value  put  upon  a  thing  by  the 
fancy  of  the  owner  in  his  affection  for  it  or 
for  the  person  from  whom  he  obtained  it. 
Bell,  Diet. 

2,  When  an  injury  has  been  done  to  an 
article,  it  has  been  questioned  whether  in 
estimating  the  damage  there  is  any  just 
ground,    in    any  case,   for  admitting  the 
Vol.  II.— 24 


pretium  affectionis.  It  seems  that  when  the 
injury  has  been  done  accidentally  by  cul[iabl6 
negligence,  such  an  estimation  of  damages 
would  be  unjust,  but  when  the  mischief  has 
been  intentional  it  ought  to  be  so  admitted. 
Kames,  Eq.  74,  75. 

PREVARICATION.  In  Civil  Law. 
The  acting  with  unfaithfulness  and  want  of 
probity.  The  term  is  applied  principally  to 
the  act  of  concealing  a  crime.    Dig.  47.  15.  6. 

PREVENTION  (Lat.  preveniato,  to  come 
before).  In  Civil  Law.  The  right  of  a  judge 
to  take  cognizance  of  an  action  over  which 
he  has  concurrent  jurisdiction  with  another 
judge. 

In  Pennsylvania  it  has  been  ruled  that  a 
justice  of  the  peace  cannot  take  cognizance 
of  a  cause  which  has  been  previously  decided 
by  another  justice.    2  Dall.  Penn.  77,  114. 

PRICE.  The  consideration  in  money 
given  for  the  purchase  of  a  thing. 

2.  There  are  three  requisites  to  the  quality 
of  a  price  in  order  to  make  a  sale. 

It  must  be  serious  and  such  as  may  be 
demanded :  if,  therefore,  a  person  were  to 
sell  me  an  article,  and  by  the  agreement, 
reduced  to  writing,  he  were  to  release  me 
from  the  payment,  the  transaction  would  no 
longer  be  a  sale,  but  a  gift.  Pothier,  Vente, 
n.  18. 

It  must  be  certain  and  determinate;  but 
what  may  be  rendered  certain  is  considered 
as  certain :  if,  therefore,  I  sell  a  thing  at  a 
price  to  be  fixed  by  a  third  person,  this  ia 
sufficiently  certain,  provided  the  third  person 
make  a  valuation  and  fix  the  price.  Pothier, 
Vente,  n.  23,  24 ;  2  Sumn.  C.  C.  539  ;  4  Pick. 
Mass.  179  ;  13  Me.  400 ;  2  Ired.  No.  C.  36 ; 
3  Penn.  St.  50;  2  Kent,  Comm.  477.  When 
the  parties  have  not  expressed  any  price  in 
their  contract,  the  presumption  of  law  is 
that  the  thing  is  sold  for  the  price  it  generally 
brings  at  the  time  and  place  where  the  agree- 
ment was  made.  3  T.  B.  Monr.  Ky.  133  ; 
6  Harr.  &  J.  Md.  273  ;  Coxe,  N.  J.  261 ;  10 
Bingh.  376;  4  Mann.  &  S.  217;  6  Taunt. 
108. 

3.  The  third  quality  of  a  price  is  that  it 
consists  in  money,  to  be  paid  down,  or  at  a 
future  time ;  for  if  it  be  of  any  thing  else  it 
will  no  longer  be  a  price,  nor  the  contract 
a  sale,  but  exchange  or  barter.  Pothier, 
Vente,  n.  30 ;  16  Toullier,  n.  147  ;  12  N.  II. 
390;  10  Vt.  457;  21  id.  147. 

The  true  price  of  a  thing  is  that  for  which 
things  of  a  like  nature  and  quality  are 
usually  sold  in  the  place  where  situated,  if 
real  property,  or  in  the  place  where  exposed 
to  sale,  if  personal.  Pothier,  Vente,  n.  243. 
The  first  price  or  cost  of  a  thing  does  not 
always  afford  a  sure  criterion  of  its  value.  It 
may  have  been  bought  very  dear  or  very 
cheap.  Marshall,  Ins.  620  et  seq.;  Ayliffe, 
Parerg.  447  ;  Merlin,  R6pert. ;  4  Pick.  Mass. 
179;  8  id.  252;  16  id.  227. 

In  a  declaration  in  trover  it  is  usual,  when 
the  chattel  found  is  a  living  one,  to  lay  it  an 
of  such  a  price  ;  when  dead,  of  such  a  value 


PRIMA  FACIE 


370 


PRINCIPAL 


8  Wentworth,  Plead.  372,  n. ;  2  Lilly,  Abr. 
629.    See  Bouvier,  Inst.  Index. 

PRIMA  FACIE  (Lat.).  At  first  view 
or  appearance  of  the  business:  as,  the 
holder  of  a  bill  of  exchange,  indorsed  in 
blank,  is  prima  facie  its  owner. 

Prima  facie  evidence  of  fact  is  in  law 
sufficient  to  establish  the  fact,  unless  re- 
butted. 6  Pet.  622,  632;  14  id.  ^U.  See, 
generally,  7  J.  J.  Marsh.  Ky.  425  ;  3  N.  H. 
484 ;  7  Ala.  267 ;  5  Rand.  Va.  701 ;  1  Pick. 
Mass.  332;  1  South.  N.  J.  77 ;  1  Yeates, 
Penn.  347  ;  2  Nott  &  M'C.  So.  C.  320 ;  1 
Mo.  334 ;  11  Conn.  95  ;  2  Root,  Conn.  286 ; 
16  Johns.  N.  Y.  66,  136 ;  1  Bail.  So.  C. 
174;  2  A.  K.  Marsh.  Ky.  244.  For  ex- 
ample, when  buildings  are  fired  by  sparks 
emitted  from  a  locomotive  engine  passing 
along  the  road,  it  is  prima  facie  evidence  of 
negligence  on  the  part  of  those  who  have 
the  charge  of  it.    3  C.  B.  229. 

PRIMA  TONSURA  (Lat.).  A  grant 
of  a  right  to  have  the  first  crop  of  grass. 
1  Chitty,  Pract.  181. 

PRIMAGE.  In  Mercantile  Law.  A 
duty  payable  to  the  master  and  mariners  of 
a  ship  or  vessel, — to  the  master  for  the  use  of 
his  cables  and  ropes  to  discharge  the  goods 
of  the  merchant,  to  the  mariners  for  lading 
and  unlading  in  any  port  or  haven.  Abbott, 
Shipp.  270. 

This  payment  appears  to  be  of  very 
ancient  date,  and  to  be  variously  regulated 
in  different  voyages  and  trades.  It  is  some- 
times called  the  master's  hat-money.  3 
Chitty,  Com.  Law,  431. 

PRIMARY.  That  which  is  first  or  prin- 
cipal :  as,  primary  evidence,  that  evidence 
which  is  to  be  admitted  in  the  first  instance, 
as  distinguished  from  secondary  evidence, 
which  is  alloM'ed  only  when  primary  evidence 
cannot  be  had. 

PRIMARY  EVIDENCE.  The  best 
evidence  of  which  the  case  in  its  nature  is 
susceptible.  3  Bouvier,  Inst.  n.  3053.  See 
Evidence. 

PRIMARY  OBLIGATION.  An  obli- 
gation which  is  the  principal  object  of  the  con- 
tract: for  example,  the  primary  obligation  of 
the  seller  is  to  deliver  the  thing  sold,  and  to 
transfer  the  title  to  it.  It  is  distinguished 
from  the  accessory  or  secondary  obligation 
to  pay  damages  for  not  doing  so.  I  Bouvier, 
Inst.  n.  702. 

PRIMARY  POWERS.  The  principal 
authority  given  by  a  principal  to  his  agent: 
itdiffers  from  mediate  pincers.   Story,  Ag.  §  58. 

PRIMATE.  In  Ecclesiastical  Law. 
An  archbishop  who  has  jurisdiction  over  one 
or  several  other  metropolitans. 

PRIMER  ELECTION.  A  term  used 
to  signify  first  choice. 

In  England,  when  coparcenary  lands  are 
divided,  unless  it  is  otherwise  agreed,  the 
eldest  sister  has  the  first  choice  of  the  pur- 
parts :  this  part  is  called  the  enitia  pars. 
Sometimes  the  oldest  sister  makes  the  par- 


tition ;  and  in  that  case,  to  prevent  partiality, 
she  takes  the  last  choice.  Hob.  107  ;  Lit- 
tleton, U  243,  244,245;  Bacon,  Abr.  Copar- 
ceners (U). 

PRIMER  SEISIN.  In  English  Law, 
The  right  which  the  king  had,  when  any  of 
his  tenants  died  seised  of  a  knight's  fee,  to 
receive  of  the  heir,  provided  he  were  of  full 
age,  one  whole  year's  profits  of  the  lands, 
if  they  were  in  immediate  possession ;  and 
half  a  year's  profits,  if  the  lands  were  in 
reversion,  expectant  on  an  estate  for  life.  2 
Sharswood,  Blackst.  Comm.  66. 

PRIMOGENITURE.  The  state  of  being 
first  born  ;  the  eldest. 

Formerly  primogeniture  gave  a  title  in 
cases  of  descent  to  the  oldest  son  in  preference 
to  the  other  children.  This  unjust  distinction 
has  been  generally  abolished  in  the  United 
States. 

PRIMOGENITUS  (Lat.).  The  first- 
born. 1  Ves.  290.  And  see  3  Maule  &  S. 
25;  8  Taunt.  468  ;  3  Vern.  Ch.  660. 

PRIMUM  DECRETUM  (Lat.).  In  the 

courts  of  admiralty,  this  name  is  given  to  a 
provisional  decree.  Bacon,  Abr.  The  Court 
of  Admiralty  (E).  • 

PRINCE.  In  a  general  sense,  a  sovereign ; ' 
the  ruler  of  a  nation  or  state.  The  son  of; 
a  king  or  emperor,  or  the  issue  of  a  royaL 
family:  as,  princes  of  the  blood.  The  chief ' 
of  any  body  of  men.  ' 

By  a  clause  inserted  in  policies  of  insu- 
rance, the  insurer  is  liable  for  all  losses- 
occasioned  by  "arrest  or  detainment  of  all^ 
kings,  princes,  and  people,  of  what  nation,' 
condition,  or  quality  soever.'^  1  Bouvier, 
Inst.  n.  1218.  ' 

PRINCIPAL.  Leading;  chief;  moreim-' 
portant.  • 

This  word  has  several  meanings.  It  is  used  in^ 
opposition  to  accessary,  to  show  the  degree  of  crime] 
committed  by  two  persons.  Thus,  we  say,  the  prin-! 
cipal  is  more  guilty  than  the  accessary  after  the^ 
fact.  < 

In  estates,  principal  is  used  as  opposed  to  ?nct-^ 
dent  or  accessory :  as  in  the  following  rule:  "The* 
incident  shall  pass  by  the  grant  of  the  principal, 
but  not  the  principal  by  the  grant  of  the  incident: 
accesaorium  non  illicit,  sed  sequitnr  suum  princi- 
pale."    Coke,  Litt.  152  a. 

It  is  used  in  opposition  to  agent,  and  in  this  sense 
it  signifies  that  the  principal  is  the  prime  mover. 

It  is  used  in  opposition  to  interest :  as,  the  princi- 
pal being  secured,  the  interest  will  follow. 

It  is  used  also  in  opposition  to  surety :  thus,  W« 
say,  the  principal  is  answerable  before  the  surety. 

Principal  is  used  also  to  denote  the  more  import- 
ant :  as,  the  principal  person. 

In  the  English  law,  the  chief  person  in  some  of 
the  inns  of  chancery  is  called  principal  of  the 
house.  Principal  is  also  used  to  designate  the  boat 
of  many  things:  as,  the  principal  bed,  the  princi- 
pal table,  and  the  like. 

In  Contracts.    One  who,  being  competent 
sui  juris  to  do  any  act  for  his  own  benefit  ; 
or  on  his  own  account,  confides  it  to  another 

ferson  to  do  for  him.    1  Domat,  b.  1,  tit.  15, 
ntrod.  ;  Story,  Ag.  §  3. 
52.  Every  one  of  full  age,  and  not  othe^ 


PRINCIPAL 


371 


PRINCIPAL 


w\se  disabled,  is  capable  of  being  a  principal ; 
for  it  is  a  rule  that  whenever  a  person  has 
power,  as  owner,  or  in  his  own  right,  to  do 
a  thing,  he  may  do  it  by  another.  Comyns, 
Dig.  Attorney  (C  1);  Ileineccius,  ad  Pand. 
p.  1,  1.  3,  tit."l,  §  424;  9  Coke,  75  h;  Story, 
Ag.  I  0.  Infants  are  generally  incapable  of 
appointing  an  agent;  but  under  special  cir- 
cumstances they  may  make  such  appoint- 
ments. For  instance,  an  infant  may  au- 
thorize another  to  do  any  act  which  is  bene- 
ficial to  him,  but  not  to  do  an  act  which  is 
to  his  prejudice.  2  Kent,  Comm.  233-243; 
9  Coke,  75,  76 ;  3  Burr.  1804 ;  6  Cow.  N.  Y. 
393  ;  10  Ohio,  37  ;  10  Pet.  58,  69  ;  14  Mass. 
463.  A  married  woman  cannot,  in  general, 
appoint  an  agent  or  attorney;  and  when  it  is 
requisite  that  one  should  be  appointed,  the 
husband  usually  appoints  for  both.  She  may, 
perhaps,  dispose  of  or  incumber  her  separate 
property,  through  an  agentor  attorney,  Croke 
Car.  165  ;  2  Leon.  200  ;  2  Bulstr.  13  ;  but  this 
seems  to  be  doubted.  Croke  Jac.  617;  Yelv. 
1;  1  Brownl.  134;  2  id.  248;  Adams,  Ej. 
174.  Idiots,  lunatics,  and  other  persons  not 
sui  juris  are  wholly  incapable  of  appointing 
an  agent.    Story,  Ag.  |  6. 

3.  The  rights  to  which  principals  are  en- 
titled arise  from  obligations  due  to  them  by 
their  agents  or  by  third  persons. 

The  rights  of  principals  in  relation  to  their 
agents  SLve— first,  to  call  them  to  an  account 
at  all  times  in  relation  to  the  business  of  the 
agency.  2  Bouvier,  Inst.  28.  Second,  when 
the  agent  violates  his  obligations  to  his  princi- 
pal, either  by  exceeding  his  authority,  or  by 
positive  misconduct,  or  by  mere  negligence  or 
omissions  in  the  discharge  of  the  functions  of 
his  agency,  or  in  any  other  manner,  and  any 
loss  or  damage  falls  on  his  principal,  the  latter 
will  be  entitled  to  full  indemnity.  1  Liver- 
more,  Ag.  398;  Paley,  Ag.  7,  71,  74;  Story, 
Ag.  g  217  c ;  12  Pick.  Mass.  328  ;  20  id. 
167  ;  6  Hare,  Ch.  366 ;  7  Beav.  Rolls,  176. 
But  the  loss  or  damage  must  be  actual,  and 
not  merely  probable  or  possible.  Story,  Ag.  | 
222 ;  Paley,  Ag.  7,  8,  74,  75.  But  see  id.  74, 
note  2.  Third,  where  both  the  principal  and 
agent  may  maintain  a  suit  against  a  third 
person  for  any  matter  relating  to  the  agency, 
the  principal  has  a  right  to  supersede  the  agent, 
by  suing  in  his  own  name ;  and  he  may  by 
his  own  intervention  intercept,  suspend,  or 
extinguish  the  right  of  the  agent  under  the 
contract.  Story,  Ag.  ^  403  ;  4  Campb.  194 ; 
3  Hill,  N.  Y.  72,  73  ;  6  Serg.  &  R.  Penn.  27 : 
2  Wash.  C.  C.  283  ;  7  Taunt.  237,  243  ;  1 
Maule  &  S.  576.  But,  as  we  shall  presently 
see,  an  exception  to  this  rule  arises  in  favor 
of  the  agent,  to  the  extent  of  any  lien,  or 
other  interest,  or  superior  right,  he  may 
have  in  the  property.  Story,  Ag.  §§  393,  397, 
407,  408,  424. 

4.  In  general,  the  principal,  as  against 
third  persons,  has  a  right  to  all  the  advantages 
and  benefits  of  the  acts  and  contracts  of  his 
agent,  and  is  entitled  to  the  same  remedies 
against  such  third  persons,  in  respect  to  such 
acts  and  contracts,  as  if  they  were  made  or 


done  with  him  personally.  Story,  Ag.  418, 
420 ;  Paley,  Ag.  323  ;  8  La.  296 ;  2  Stark. 
443.  But  to  this  rule  there  are  the  follow- 
ing exceptions.  First,  when  tiie  instrument  is 
under  seal,  and  it  has  been  exclusively  made 
between  the  agent  and  the  third  person,  as,  for 
example,  a  charter-party  or  bottomry  bond 
made  by  the  master  of  a  ship  in  the  course 
of  his  employment,  in  this  case  the  princi- 
pal cannot  sue  or  be  sued  on  it.  Story,  Ag. 
^  422;  Abbott,  Shipp.  pt.  3,  ch.  1,  §  2  ;  4  Wend. 
N.  Y.  285;  1  Paine,  C.  C.  252 ;  3  Wash.  C.  C. 
560.  Second,  when  an  exclusive  credit  is  given 
to  and  by  the  agent,  and  therefore  the  prin- 
cipal cannot  be  considered  in  any  manner  a 
party  to  the  contract,  although  he  may  have 
authorized  it  and  be  entitled  to  all  the  bene- 
fits arising  from  it.  The  case  of  a  foreign 
factor  buying  or  selling  goods  is  an  example 
of  this  kind  :  he  is  treated,  as  between  him- 
self and  the  other  party,  as  the  sole  contractor, 
and  the  real  principal  cannot  sue  or  be  sued  on 
the  contract.  This,  it  has  been  well  observed, 
is  a  general  rule  of  commercial  law,  founded 
upon  the  known  usage  of  trade;  and  it  is  strictly 
adhered  to,  for  the  safety  and  convenience  of 
foreign  commerce.  Story.  Ag.  §  423  ;  Smith, 
Merc.  Law.  66  ;  15  East,  62  ;  9  Barnew.  &  C. 
87 ;  4  Taunt.  574.  Third,  when  the  agent  has 
a  lien  or  claim  upon  the  property  bought  or 
sold,  or  upon  its  proceeds,  which  is  equal  to 
or  exceeds  the  amount  of  its  value,  the  prin- 
cipal cannot  sue  without  the  consent  of  the 
agent.    Story,  Ag.  II  403.  407,  408,  424. 

5.  But  contracts  are  not  unfrequently  made 
without  mentioning  the  name  of  the  prin- 
cipal: in  such  case  he  may  avail  himself  of 
the  agreement;  for  the  contract  will  be  treated 
as  that  of  the  principal  as  well  as  of  the  agent. 
If,  however,  the  person  with  whom  the  con- 
tract was  made  hoiid  Jide  dealt  with  the 
agent  as  owner,  he  will  be  entitled  to  set  off 
any  claim  he  may  have  against  the  agent,  in 
answer  to  the  demand  of  the  principal ;  and 
the  principal's  right  to  enforce  contracts  en- 
tered into  by  his  agent  is  affected  by  every 
species  of  fraud,  misrepresentation,  or  con- 
cealment of  the  agent  which  would  defeat 
it  if  proceeding  from  himself.  Story,  Ag.  §§ 
420,  421,  440;  2  Kent,  Comm.  632;  Paley, 
Ag.  324,  325 ;  3  Bos.  &  P.  490;  7  Term,  359, 
360,  note;  2  Caines,  N.  Y.  299;  24  Wend. 
N.  Y.  458 ;  3  Hill,  N.  Y.  72. 

6.  Where  the  principal  gives  notice  to  the 
debtor  not  to  pay  money  to  the  agent,  unless 
the  agent  has  a  superior  right,  from  a  lien  or 
otherwise,  the  amount  of  any  payment  after- 
wards made  to  the  agent  may  be  recovered 
by  the  principal  from  the  debtor.  Story,  Ag. 
I  429 ;  15  East,  65  ;  4  Campb.  60  ;  6  Cow. 
N.  Y.  181,  186.  Money  paid  by  an  agent  may 
also  be  recovered  by  the. principal  under  any 
of  the  following  circumstances:  ^first,  where 
the  consideration  fails  ;  second,  where  money 
is  paid  by  an  agent  through  mistake;  third, 
where  money  is  illegally  extorted  from  ac 
agent  in  the  course  of  his  emplo3^ment:ybMr^/i, 
where  the  money  of  the  principal  has  been 
fraudulently  applied  by  the  agent  to  an  il- 


PRINCIPAL 


372 


PRINCIPAL 


legal  and  prohibited  purpose.  Paley,  Ag. 
335-337.  When  goods  are  intrusted  to  an 
agent  for  a  specific  purpose,  a  delivery  by 
him  for  a  different  purpose,  or  in  a  manner 
not  authorized  by  the  commission,  passes  no 
property  in  them,  and  they  may,  therefore,  be 
reclaimed  by  the  owner.  Paley,  Ag.  340, 
341 ;  3  Pick.  Mass.  495.  Third  persons  are 
also  liable  to  the  principal  for  any  tort  or  in- 
jury done  to  his  property  or  rights  in  the 
course  of  the  agency.  If  both  the  agent  and 
third  person  have  been  parties  to  the  tort  or 
injury,  they  are  jointly  as  well  as  severally 
liable  to  the  principal,  and  he  may  maintain 
an  action  against  both  or  either  of  them. 
Story,  Ag.  H36 ;  3  Maule  &  S.  562. 

7.  The  liabilities  of  the  principal  are 
either  to  his  agent  or  to  third  persons.  The 
liabilities  of  the  principal  to  his  agent  are — 
to  reimburse  him  all  his  advances,  expenses, 
and  disbursements  lawfully  incurred  about 
the  agency,  and  also  to  pay  him  interest  upon 
such  advances  and  disbursements  whenever 
interest  may  fairly  be  presumed  to  have  been 
stipulated  for  or  to  be  due  to  the  agent. 
Story,  Ag.  U  335,  336,  338 ;  Story,  Bailm. 
196,  197;  Paley,  Ag.  107,  108;  second,  to 
pay  him  his  commissions  as  agreed  upon,  or 
according  to  the  usage  of  trade,  except  in 
cases  of  gratuitous  agency,  Story,  Ag.  |  324; 
Paley,  Ag.  100-107  ;  third,  to  indemnify  the 
agent  when,  without  his  own  default,  he  has 
sustained  damages  in  following  the  direc- 
tions of  his  principal :  for  example,  when 
the  agent  has  innocently  sold  the  goods  of  a 
third  person,  under  the  direction  or  authority 
of  his  principal,  and  a  third  person  recovers 
damages  against  the  agent,  the  latter  will  be 
entitled  to  reimbursement  from  the  princi- 
pal.   Story,  Ag.  g  339  ;  9  Mete.  Mass.  212. 

8.  The  principal  is  bound  to  fulfil  all  the 
engagements  made  by  the  agent  for  or  in  the 
name  of  the  principal,  and  which  come  within 
the  scope  of  his  usual  employment,  although 
the  agent  in  the  particular  instance  has  in 
fact  exceeded  or  violated  his  private  instruc- 
tions. Story,  Ag.  443 ;  Smith,  Merc.  Law, 
56-59;  4  Watts,  Penn.  222;  21  Vt.  129;  26 
Me.  84  ;  1  Wash.  C.  C.  174.  And  where  an 
exclusive  credit  is  not  given  to  the  agent,  the 
principal  is  liable  to  third  persons  upon  con- 
tracts made  by  his  agent  within  the  scope  of 
his  authority,  although  the  agent  contracts 
in  his  own  name  and  does  not  disclose  his 
agency.  Story,  Ag.  |  446.  But  if  the  prin- 
cipal and  agent  are  both  known,  and  exclu- 
sive credit  be  given  to  the  latter,  the  princi- 
pal will  not  be  liable  though  the  agent  should 
subsequently  become  insolvent.  Story,  Ag. 
^  447.  Where  money  is  paid  by  a  third  per- 
son to  the  agent,  by  mistake  or  upon  a  con- 
sideration that  has  failed,  the  principal  will 
be  liable  to  repay  it  although  he  may  never 
have  received  it  from  his  agent.  Story,  Ag. 
g  451  ;  Paley,  Ag.  293  ;  2  Esp.  509. 

9.  The  principal  is  not,  in  general,  liable 
to  a  criminal  prosecution  for  the  acts  or  mis- 
deeds of  his  agent,  unless  he  has  authorized 
or  co-operated  in   such  acts  or  misdeeds. 


Story,  Ag.  ^  452 ;  Paley,  Ag.  303  ;  1  Mood 
&  M.  433.  He  is,  however,  civilly  liable  to 
third  persons  for  the  misfeasance,  negligence, 
or  omission  of  duty  of  his  agent  in  the  course 
of  the  agency,  although  he  did  not  authorize 
or  know  of  such  misconduct,  or  even  although 
he  forbade  it,  Story,  Ag.  §  452;  Paley,  Ag. 
294-307  ;  Smith,  Merc.  Law,  70,  71 ;  26  Vt. 
112,  123  ;  6  Gill  &  J.  Md.  291 ;  20  Barb.  N. 
Y.  507  ;  7  Cuah.  Mass.  385  ;  and  he  is  liable 
for  the  injuries  and  wrongs  of  sub-agents 
who  are  retained  by  his  direction,  either  ex- 
press or  implied.  Story,  Ag.  ^  454  ;  Paley, 
Ag.  296 ;  1  Bos.  &  P.  409.  But  the  respon- 
sibility of  the  principal  for  the  negligence  or 
unlawful  acts  of  his  agent  is  limited  to  cases 
properly  within  the  scope  of  the  agency. 
Nor  is  he  liable  for  the  wilful  acts  of  his 
agent  whereby  damage  is  occasioned  to  an- 
other, unless  he  originally  commanded  or 
subsequently  assented  to  the  act.  Paley,  Ag. 
298,  299  ;  Story,  Ag.  §456  :  9  Wend.  N.  Y. 
268  ;  23  Pick.  Mass.  25  ;  20  Conn.  284. 

In  Criminal  Law.    The  actor  in  the  com' 
mission  of  a  crime. 

10.  Principals  are  of  two  kinds,  namely, 
principals  in  the  first  degree,  and  principals 
in  the  second  degree. 

A  principal  in  thejirst  degree  is  one  who  is  ' 
the  actual  perpetrator  of  the  fact.  1  Hale,  PI. 
Cr.  233,  615  ;  15  Ga.  346.    But  to  constitute  \ 
him  such  it  is  not  necessary  that  he  should  ; 
be  actually  present  when  the  offence  is  con*  ! 
summated.    3  Den.  N.  Y.  190.    For  if  one 
lay  poison  purposely  for  another,  who  takes  \ 
it  and  is  killed,  the  offender,  though  absent  '. 
when  it  was  taken,  is  a  principal  in  the  first  ' 
degree.    Post.  349  ;  1  Hawkins,  PI.  Cr.  c.  31, 
1 7 ;  4  Sharswood,  Blackst.  Comm.  34 ;  1  Chitty,  ; 
Crim.  Law,  257.  And  the  offence  may  be  com- 
mitted in  his  absence,  through  the  medium  of 
an  innocent  agent :  as,  if  a  person  incites  a 
child  under  the  age  of  discretion,  or  any  ( 
other  instrument  excused  from  the  responsi-  \ 
bility  of  his  actions  by  defect  of  understand*  '• 
ing,  ignorance  of  the  fact,  or  other  cause,  to  'i, 
the  commission  of  crime,  the  inciter,  though  ' 
absent  when  the  fact  was  committed,  is  ex  \ 
necessitate  liable  for  the  act  of  his  agent  and 
a  principal  in  the  first  degree.    1  Hale,  PI. 
Cr.  514 ;  2  Leach,  Cr.  Cas.  978.    But  if  the 
instrument  be  aware  of  the  consequences  of 
his  act,  he  is  a  principal  in  the  first  degree : 
the  employer,  in  such  case,  if  present  when 
the  fact  is  committed,  is  a  principal  in  the 
second  degree,  and,  if  absent,  an  accessary 
before  the  fact.    Russ.  &  R.  163;  1  Carr.  & 
K.  589  ;  1  Archbold,  Crim.  Law,  Waterman's 
7th  Am.  ed.  58-00. 

11.  Principals  in  the  second  degree  are  those 
who  are  present  aiding  and  abetting  the  com- 
mission of  the  fact.  2  Va.  Cas.  356.  They  are 
generally  termed  aiders  and  abettors,  and 
sometimes,  improperly,  accomplices ;  for  the 
latter  term  includes  all  the  particeps  criminist 
whether  principals  in  the  first  or  second  de- 
gree or  mere- accessaries.  A  person  to  be  a 
principal  in  the  second  degree  need  not  be 
actually  present  an  ear-  or  eye-witness  of  the 


PRINCIPAL 


373 


PRIORITY 


t'••^^s•:•ction.  The  presence  may  be  construct- 
ive. He  is,  in  construction  of  law,  present 
aiding  and  abetting  if,  with  the  intention  of 
giving  assistance,  he  be  near  enough  to  afford 
it  should  the  occasion  arise.  If,  for  instance, 
he  be  outside  the  house  watching  to  prevent 
surprise,  or  the  like,  whilst  his  companions  are 
in  the  house  committing  a  felony,  such  con- 
structive presence  is  sufficient  to  make  him 
a  principal  in  the  second  degree.  Foster, 
Crim.  Law,  347,  350 ;  1  Russell,  Crim.  Law, 
27  ;  1  Hale,  555  ;  Wright,  Ohio,  75  ;  9  Pick. 
Mass.  496;  9  Carr.  &  P.  437;  15  111.  511. 
There  must,  however,  be  a  participation  in 
the  act;  for  although  a  person  be  present 
when  a  felony  is  committed,  yet  if  he  does 
not  consent  to  the  felonious  purpose  or  con- 
tribute to  its  execution  he  will  not  be  a 
principal  in  the  second  degree  merely  be- 
cause he  does  not  endeavor  to  prevent  the 
felony  or  apprehend  the  felon.  1  Russell, 
Crimes,  27;  1  Hale,  PI.  Cr.  439;  Foster, 
Crim.  Law,  350;  9  Ired.  No.  C.  440;  3  Wash. 
C.  C.  223  ;  I  Wise.  159  ;  1  Archbold,  Crim. 
Law,  7th  Am.  ed.  61,  62. 

12.  The  law  recognizes  no  difference  be- 
tween the  offence  of  principals  in  the  first 
and  principals  in  the  second  degree.  And 
so  immaterial  is  the  distinction  considered  in 
practice  that,  if  a  man  be  indicted  as  princi- 
pal in  the  first  degree,  proof  that  he  was  pre- 
sent aiding  and  abetting  another  in  commit- 
ting the  off'ence,  although  his  was  not  the 
hand  which  actually  did  it,  will  support  the 
indictment ;  and  if  he  be  indicted  as  princi- 
pal in  the  second  degree,  proof  that  he  was 
not  only  present,  but  committed  the  offence 
with  his  own  hand,  will  support  the  indict- 
ment. So,  when  an  off'ence  is  punishable  by 
a  statute  which  makes  no  mention  of  princi- 
pals in  the  second  degree,  such  principals  are 
within  the  meaning  of  the  statute  as  much 
as  the  parties  who  actually  commit  the  off'ence. 
1  Archbold,  Crim.  Law,  Waterman's  7th  Am. 
ed.  66,  67. 

In  treason,  and  in  off'ences  below  felony, 
and  in  all  felonies  in  which  the  punishment 
of  principals  in  the  first  degree  and  of  prin- 
cipals in  the  second  degree  is  the  same,  the 
indictment  may  charge  all  who  are  present 
and  abet  the  fact  as  principals  in  the  first 
degree,  provided  the  offence  permits  of  a  par- 
ticipation, or  specially  as  aiders  and  abet- 
tors. Archbold,  Crim.  Plead.  14th  ed.  7  ;  11 
Cush.  Mass.  422;  1  Carr.  &  M.  187.  But 
where  by  particular  statutes  the  punishment 
is  different,  then  principals  in  the  second  de- 
gree must  be  indicted  specially  as  aiders 
and  abettors.  Archbold,  Crim.  Plead.  14th 
ed.  7.  If  indicted  as  aiders  and  abettors,  an 
indictment  charging  that  A  gave  the  mortal 
blow,  and  that  B,  C,  and  D  were  present  aid- 
ing and  abetting,  will  be  sustained  by  evi- 
dence that  B  gave  the  blow,  and  that  A,  C, 
and  D  were  present  aiding  and  abetting;  and 
even  if  it  appears  that  the  act  was  committed 
oy  a  person  not  named  in  the  indictment, 
the  aiders  and  abettors  may,  nevertheless,  be 
convicted.    Dougl.  207  ;  I  East,  PI.  Cr.  350. 


And  the  same  though  the  jury  say  that  they 
are  not  satisfied  which  gave  the  blow,  if  they 
are  satisfied  that  one  of  them  did,  and  that 
the  others  were  present  aiding  and  abetting. 
1  Den.  Cr.  Cas.  52 ;  2  Carr.  &  K.  382. 

PRINCIPAL  CONTRACT.  One  en- 
tered into  by  both  parties  on  their  ov?n  ac- 
counts or  in  the  several  qualities  they  assume. 

PRINCIPAL  OBLIGATION.  That 
obligation  which  arises  from  the  principal 
object  of  the  engagement  which  has  been 
contracted  between  the  parties.  It  differs 
from  an  accessory  obligation.  For  example, 
in  the  sale  of  a  horse,  the  principal  obliga- 
tion of  the  seller  is  to  deliver  the  horse ;  the 
obligation  to  take  care  of  him  till  delivered 
is  an  accessory  engagement.  Pothier,  Obi. 
n.  182.  By  principal  obligation  is  also  un- 
derstood the  engagement  of  one  who  becomes 
bound  for  himself,  and  not  for  the  benefit  of 
another.    Pothier,  Obi.  n.  186. 

PRINCIPLES.  By  this  term  is  undei 
stood  truths  or  propositions  so  clear  that  thej 
cannot  be  proved  nor  contradicted  unless  by 
propositions  which  are  still  clearer. 

That  which  constitutes  the  essence  of  a 
body  or  its  constituent  parts.  8  Term,  107. 
See  Patents. 

2.  They  are  of  two  kinds :  one  when  the  princi- 
ple is  universal,  and  these  are  known  as  axioms  or 
maxims:  as,  no  one  can  transmit  rights  ivhich  he 
has  not;  the  accessory  folloios  the  principal,  etc. 
The  other  class  are  simply  called  first  principles. 
These  principles  have  known  marks,  by  which  they 
may  always  be  recognized.  These  SiXQ— first,  that  they 
are  so  clear  that  they  cannot  be  proved  by  anterior 
and  more  manifest  truths ;  second,  that  they  are 
almost  universally  received;  third,  that  they  are  so 
strongly  impressed  on  our  minds  that  we  conform 
ourselves  to  them  whatever  may  be  our  avowed 
opinions. 

First  principles  have  their  source  in  the  senti- 
ment of  our  own  existence,  and  that  which  is  in 
the  nature  of  things.  A  principle  of  law  is  a  rule 
or  axiom  which  is  founded  in  the  nature  of  the 
subject,  and  it  exists  before  it  is  expressed  in  the 
form  of  a  rule.  Domat,  Lois  Civiles,  liv.  prel,  t. 
1,  s.  2  ;  Toullier,  tit.  prel.  n.  17.  The  right  to  de- 
fend one's  self  continues  as  long  as  an  unjust  attack, 
was  a  principle  before  it  was  ever  decided  by  a 
court:  so  that  a  court  does  not  establish  but  recog- 
nizes principles  of  law. 

PRINTING.  The  art  of  impressing  let- 
ters ;  the  art  of  making  books  or  papers  by 
impressing  legible  characters. 

The  right  to  print  is  guaranteed  by  law, 
and  the  abuse  of  the  right  renders  the  guilty 
person  liable  to  punishment.  See  Libel  ; 
Liberty  of  the  Press  ;  Press. 

PRIORITY.   Precedence  ;  going  before. 

2.  He  who  has  the  precedency  in  time  has 
the  advantage  in  right,  is  the  maxim  of  the 
law ;  not  that  time,  considered  barely  in 
itself,  can  make  any  such  difference,  but  be- 
cause, the  whole  power  over  a  thing  being 
secured  to  one  person,  this  bars  all  others 
from  obtaining  a  title  to  it  afterwards.  1 
Fonblanque,  Eq.  320. 

In  the  payment  of  debts,  the  United  Slates 
is  entitled  to  priority  when  the  debtor  is 
insolvent  or  dies  and  leaves  an  insolvent 


pmsoN 


374  PRIVEMENT  ENCEINTE 


3state.  The  priority  was  declared  to  extend  [ 
to  cases  in  which  the  insolvent  debtor  had  | 
made  a  voluntary  assignment  of  all  his  pro- 
perty, or  in  which  his  effects  had  been  at- 
tached as  an  absconding  or  absent  debtor,  on 
which  an  act  of  legal  bankruptcy  had  been 
committed.  1  Kent,  Comm.  243 ;  1  Phil. 
Law  Int.  219,  251,  and  the  cases  there  cited. 

3.  Among  common  creditors,  he  who  has 
the  oldest  lien  has  the  preference, — it  being 
a  maxim  both  of  law  and  equity,  qui  prior  est 
tempore,  potior  est  jure.  2  Johns.  Ch.  N.  Y. 
608.    See  Insolvency. 

But  in  respect  to  privileged  debts  existing 
against  a  ship  or  vessel  under  the  general 
admiralty  law,  the  order  of  priority  is  most 
generally  that  of  the  inverse  order  of  their 
creation, — thus  reversing  the  order  of  priority 
generally  adopted  in  the  courts  of  common 
law.  See  Maritime  Liens;  Marshalling 
Assets.  16  Bost.  Law  Rep.  1,  264 ;  17  id. 
421. 

PRISON.  A  public  building  for  con- 
fining persons,  either  to  insure  their  produc- 
tion in  court,  as  accused  persons  and  wit- 
nesses, or  to  punish,  as  criminals. 

The  root  is  French,  as  is  shown  by  the  Norman 
prisons,  prisoners,  Kelham,  Norm.  Fr.  Diet.,  and 
Fr.  prisons,  prisons.  Britton,  c.  11,  de  Prisons. 
Originally  it  was  distinguished  from  gaol,  which 
was  a  place  for  confinement,  not  for  punishment. 
See  Jacob,  Diet.  Gaol.  But  at  present  there  is  no 
such  distinction. 

PRISON-BREAKING.     The  act  by 

which  a  prisoner,  by  force  and  violence, 
escapes  from  a  place  where  he  is  lawfully  in 
custody.    This  is  an  offence  at  common  law. 

To  constitute  this  offence,  there  must  be — a 
lawful  commitment  of  the  prisoner  on  crimi- 
nal process,  Coke,  2d  Inst.  589 ;  1  Carr  &  M. 
295;  2  Ashm.  Penn.  61;  1  Ld.  Raym.424; 
an  actual  breach  with  force  and  violence  of 
the  prison,  by  the  prisoner  himself,  or  by 
others  with  his  privity  and  procurement, 
Russ.  &  R.  458;  1  Russell,  Crimes,  380; 
the  prisoner  must  escape.  2  Hawkins,  PI. 
Cr.  c.  18,  s.  12.  See  1  Hale,  PI.  Cr.  607  ;  4 
Sharswood,  Blackst.  Comm.  130 :  Coke,  2d 
Inst.  500;  1  Gabbett,  Crim.  Law,  305; 
Alison,  Scotch  Law,  555 ;  Dalloz,  Diet. 
JiJ fraction;  3  Johns.  N.  Y.  449;  5  Mete. 
Mass.  559. 

PRISONER.  One  held  in  confinement 
against  his  will. 

2.  Lawful  prisoners  are  either  prisoners 
charged  with  crimes  or  for  a  civil  liability. 
Those  charged  with  crimes  are  either  persons 
accused  and  not  tried  ;  and  these  are  con- 
sidered innocent,  and  are  therefore  entitled 
to  be  treated  with  as  little  severity  as 
]>08sible,  consistently  with  the  certain  deten- 
tion of  their  persons ;  they  are  entitled  to  their 
discharge  on  bail,  except  in  capital  cases, 
when  the  proof  is  great ;  or  those  who  have 
been  convicted  of  crimes,  whose  imprison- 
ment, and  the  mode  of  treatment  they 
experience,  is  intended  as  a  punishment: 
these  are  to  be  treated  agreeably  to  the 
requisitions  of  the  law,  and,  in  the  United 


States,  always  with  humanity.  See  PenI' 
TENTiARY.  Prisoners  in  civil  cases  are  per- 
sons arrested  on  original  or  mesne  process, 
and  these  may  generally  be  discharged  on 
bail ;  and  prisoners  in  execution,  who  cannot 
be  discharged  except  under  the  insolvent 
laws. 

3.  Persons  unlawfully  confined  are  those 
who  are  not  detained  by  virtue  of  some  law- 
ful, judicial,  legislative,  or  other  proceeding. 
They  are  entitled  to  their  immediate  dis- 
charge on  habeas  corpus.  For  the  effect  of 
a  contract  entered  into  by  a  prisoner,  see  1 
Salk.  402,  n. ;  6  Toullier,  82. 

Prisoners  charged  with  the  commission  of 
crimes  under  the  United  States  laws  are  to 
be  confined  in  the  prisons  of  the  states,  or  in 
proper  places  of  confinement  provided  by 
the  marshals.    9  Cranch,  80. 

PRISONER  OF  WAR.  One  who  has 
been  captured  while  fighting  under  the 
banner  of  some  state.  He  is  a  prisoner 
although  never  confined  in  a  prison. 

In  modern  times,  prisoners  are  treated 
with  more  humanity  than  formerly :  the 
individual  captor  has  now  no  personal  right 
to  his  prisoner.  Prisoners  are  under  the 
superintendence  of  the  government,  and  they 
are  now  frequently  exchanged.  See  1  Kent, 
Comm.  14. 

It  is  a  general  rule  that  a  prisoner  is  out 
of  the  protection  of  the  laws  of  the  state  so 
far  that  he  can  have  no  civil  remedy  under 
them,  and  he  can,  therefore,  maintain  no 
action.  '  But  his  person  is  protected  against 
all  unlawful  acts.  Bacon,  Abr.  Abatement 
(B  3),  Aliens  (D). 

PRIVATE.  Affecting  or  belonging  to 
individuals,  as  distinct  from  the  public 
generally.    Not  clothed  with  office. 

PRIVATE  ACT.  An  act  operating 
only  upon  particular  persons  and  private 
concerns,  and  rather  an  exception  than  a 
rule.  Opposed  to  public  act.  1  Sharswood, 
Blackst.  Comm.  86;  1  Term,  125;  Plowd. 
28;  Dy.  75,  119;  4  Coke,  Rep.  76.  Private 
acts  ought  not  to  be  noticed  by  courts  unless 
pleaded. 

PRIVATEER.  A  vessel  owned  by  one 
or  more  private  individuals,  armed  and 
equipped  at  his  or  their  expense,  for  the 
purpose  of  carrying  on  a  maritime  war,  by 
the  authority  of  one  of  the  belligerent 
parties. 

For  the  purpose  of  encouraging  the  owners 
of  private  armed  vessels,  they  are  usually 
allowed  to  appropriate  to  themselves  the 
property  they  capture,  or,  at  least,  a  large 
proportion  of  it.  1  Kent,  Comm.  96  ;  Pothier, 
du  Dr.  de  Propr.  n.  90  et  seq.  See  2  Dall. 
Penn.  36  ;  3  id.  334  ;  4  Cranch,  2  ;  1  Wheat. 
46;  3  id.  546  ;  5  id.  338  ;  2  Gall.  C.  C.  19,  56, 
526;  1  Mas.  C.  C.  365  ;  3  Wash.  C.  C.  209. 
Most  of  the  groat  maritime  powers  have 
agreed  that  privateers  shall  not  be  allowed 
in  war. 

PRIVEMENT  ENCEINTE  (L.  Fr.). 

A  term  used  to  signify  that  a  wmiau  ia 


PRIVIES 


375      PRIVILEGED  COMMUNICATIONS 


pregnant,  but  not  quick  with  child.  See 
Wood,  Inst.  6G2;  Enceinte;  Fcetus;  Preg- 

NiNCY. 

PRIVIES.  Persons  who  are  partakers 
or  have  an  interest  in  any  action  or  thin<2;,  or 
any  relation  to  another.  Wood,  Inst.  b.  2, 
c.  3,  p.  255;  Coke,  Litt.  271  a. 

There  are  several  kinds  of  privies :  namely, 

'  privies  in  blood,  as  the  heir  is  to  the  ancestor; 

'  privies  in  representation,  as  is  the  executor 
or  administrator  to  the  deceased  ;  privies  in 
estate,  as  the  relation  betvk^een  the  donor  and 
donee,  lessor  and  lessee  ;  privies  in  respect 
to  contracts ;  and  privies  on  account  of 
estate  and  contract  together.  Preston,  Conv. 
327-345.  Privies  have  also  been  divided 
into  privies  in  fact  and  privies  in  lavr.  8 
Coke,  42  b.  See  Viner,  Abr.  Privity;  5 
Comyns,  Dig,  347 ;  Hammond,  Part.  131  ; 
Woodfall,  Landl.  &  Ten.  279  ;  1  Dane,  Abr.  c. 
1,  art.  6. 

PRIVIGNUS(Lat.).  InCivilLaw.  Son 

of  a  husband  or  v^afe  by  a  former  marriage  ;  a 
stepson.    Calvinus,  Lex.;  Vicat,  Voc.  Jur. 

PRIVILEGE.  In  Civil  Law.  A  right 
which  the  nature  of  a  debt  gives  to  a  creditor, 
and  which  entitles  him  to  be  preferred  before 
other  creditors.  La.  Code,  art.  3153  ;  Dalloz, 
Diet.  Privilege;  Domat,  Lois  Civ.  liv.  2,  t.  1, 
8.  4,  n.  1. 

2.  Creditors  of  the  same  rank  of  privi- 
leges are  paid  in  concurrence,  that  is,  on  an 
equal  footing.  Privileges  may  exist  either  in 
movables  or  immovables,  or  in  both  at  once. 
They  are  general  or  special,  on  certain  mova- 
bles. The  debts  which  are  privileged  on 
all  the  movables  in  general  are  the  following, 
which  are  paid  in  this  order.  Funeral 
charges.  Law  charges,  which  are  such  as 
are  occasioned  by  the  prosecution  of  a  suit 
before  the  courts.  But  this  name  applies 
more  particularly  to  costs,  which  the  party 
cast  has  to  pay  to  the  party  gaining  the 
cause.  It  is  in  favor  of  these  only  that  the 
law  grants  the  privilege.  Charges,  of  what- 
ever nature,  occasioned  by  the  last  sickness. 
concurrently  among  those  to  whom  they  are 
due.  See  Last  Sickness.  The  wages  of  ser- 
vants for  the  year  past,  and  so  much  as  is 
due  for  the  current  year.  Supplies  of  pro- 
visions made  to  the  debtor  or  his  family 
during  the  last  six  months  by  retail  dealers, 
such  as  bakers,  butchers,  grocers,  and  during 
the  last  year  by  keepers  of  boarding-houses 
and  taverns.  The  salaries  of  clerks,  secreta- 
rieSy  and  other  persons  of  that  kind.  Dotal 
rights,  due  to  wives  by  their  husbands. 

3.  The  debts  which  are  privileged  ou 
particular  movables  are — the  debt  of  a  work- 
man or  artisan,  for  the  price  of  his  labor, 
on  the  movable  which  he  has  repaired  or 
made,  if  the  thing  continues  still  in  his 
possession  ;  that  debt  on  the  pledge  which  is 
in  the  creditor's  possession  ;  the  carrier's 
charges  and  accessory  expenses  on  the  thing 
carried  ;  the  price  due  on  movable  effects, 
if  they  are  yet  in  the  possession  of  the  pur- 
chaser ;  and  the  like.    See  Lien. 


Creditors  have  a  privilege  on  immovables 
or  real  estate  in  some  cases,  of  which  the 
following  are  instances:  —  the  vendor,  on  tlie 
estate  by  liim  sold,  for  the  payment  of  the 
price,  or  so  much  of  it  as  is  due,  whetlier  it 
be  sold  on  or  without  a  credit ;  architects 
and  contractors,  'bricklayers,  and  oti)er 
workmen,  employed  in  constructing,  rebuild- 
ing, or  repairing  houses,  buildings,  or  mak- 
ing other  works  on  such  houses,  buildings, 
or  works  by  them  constructed,  rebuilt,  or 
repaired ;  tliose  who  have  supplied  the  owner 
with  materials  for  the  construction  or  repair 
of  an  edifice  or  other  work,  which  he  lias 
erected  or  repaired  out  of  tliese  materials,  on 
the  edifice  or  otlier  work  constructed  or  re- 
paired.   La.  Code,  art.  3216. 

See,  generally,  as  to  i)rivilege,  La.  Code 
tit.  21;  Code  Civ.  th.  18;  Dalloz,  Diet. 
Privilege;  Lien;  Last  Sickness;  Prefer- 
ence. 

In  Maritime  Law.  An  allowance  to  the 
master  of  a  ship  of  the  general  nature  willi 
primage,  being  compensation,  or  rallier  a 
gratuity,  customary  in  certain  trades,  and 
which  the  law  assumes  to  be  a  fair  and  equi- 
table allowance,  because  the  contract  on  both 
sides  is  made  under  the  knowledge  of  such 
usage  by  the  parties. 

PRIVILEGE  FROM  ARREST.  Privi- 

lege  frpm  arrest  on  civil  process. 

It  is  either  permanent,  as  in  case  of 
ambassadors,  public  ministers  and  their 
servants,  the  royal  family  and  servants,  peers 
and  peeresses,  etc.,  or  temporary,  as  in  case 
of  members  of  congress,  who  are  privileged 
eundo,  manendo,  et  redeundo,  1  Kent,  Comm. 
243  ;  practising  barristers,  while  actually 
engaged  in  the  business  of  the  court,  2 
Dowl.  51 ;  5  iof.  86  ;  1  H.  Blackst.  636 :  1 
Mees.  &  W.  Exch.  488 ;  6  Ad.  &  E.  623  :  a 
clergyman  whilst  going  to  church,  perform- 
ing service,  and  returning,  7  Bingh.  320 ; 
witnesses  and  parties  to  a  suit  and  bail, 
eundo,  manendo,  et  redeundo,  5  Barnew.  & 
Ad.  1078:  6  Dowl.  632;  1  Stark.  470;  1 
Maule  &  S.  638 ;  1  Mees.  &  W.  Exch.  488  ; 
6  Ad.  &  E.  623  ;  and  other  persons  who  are 
privileged  by  law.    See  Arrest. 

PRIVILEGED  COMMUNICA- 
TIONS. A  communication  made  bond  fde 
upon  any  subject-matter  in  which  the  party 
communicating  has  an  interest,  or  in  reference 
to  which  he  has  a  duty,  if  made  to  a  person 
having  a  corresponding  interest  or  duty, 
although  it  contain  criminatory  matter  which 
without  this  privilege  would  be  slanderous 
and  actionable. 

2.  Duty,  in  this  canon,  cannot  be  confined 
to  legal  duties,  which  may  be  enforced  by 
indictment,  action,  rr  mandamus,  but  must 
include  moral  and  social  duties  of  imperfect 
obligation.  5  Ell.  &  B.  347.  The  proper 
meaning  of  a  privileged  communication, 
said  Mr  Baron  Parke,  is  only  this  :  that  the 
occasion  on  which  the  communication  was 
made  rebuts  the  inference  prima  facie 
arising  from  a  statement  prejudicial  to  the 


PRIVILEGED  COPYHOLDS  376 


PRIZE 


character  of  the  plaintiff,  and  puts  it  upon 
him  to  prove  that  there  was  malice  in  fact, — 
that  the  defendent  was  actuated  by  motives 
of  personal  spite  or  ill  will,  independent 
of  the  occasion  on  which  the  communica- 
tion was  made.  2  Crompt.  M.  &  R.  Exch. 
573. 

3.  The  law  recognizes  two  classes  of  cases 
in  which  the  occasion  either  supplies  an 
absolute  defence,  or  a  defence  subject  to  the 
condition  that  the  party  acted  bond  Jide 
without  malice.  The  distinction  turns  en- 
tirely on  the  question  of  malice.  The  com- 
munications last  mentioned  lose  their  privi- 
lege on  proof  of  express  malice.  The 
former  depend  in  no  respect  for  their  pro- 
tection upon  the  hondjides  of  the  defendant. 
The  occasion  is  an  absolute  privilege,  and 
the  only  questions  are  whether  the  occasion 
existed,  and  whether  the  matter  complained 
of  was  pertinent  to  the  occasion.  Heard, 
Libel  &  S.  I  89. 

4.  As  to  communications  which  are  thus 
absolutely  privileged,  it  may  be  stated  as 
the  result  of  the  authorities  that  no  person 
is  liable,  either  civilly  or  criminally,  in 
respect  of  any  thing  published  by  him  as  a 
member  of  a  legislative  body,  in  the  course 
of  his  legislative  dut}^  nor  in  respect  of 
any  thing  published  by  him  in  the  course  of 
his  duty  in  any  judicial  proceeding.  This 
privilege  extends  not  only  to  parties,  counsel, 
witnesses,  jurors,  and  judges  in  a  judicial 
proceeding,  but  also  to  proceedings  in  legis- 
lative bodies,  and  to  all  who,  in  the  discharge 
of  public  duty  or  the  honest  pursuit  of  private 
right,  are  compelled  to  take  part  in  the 
administration  of  justice  or  in  legislation. 
A  fair  report  of  any  judicial  proceeding  or 
inquiry  is  also  privileged.  Heard,  Libel  & 
S.  U  90,  103,  110. 

PRIVILEGED  COPYHOLDS.  Those 
copyholds  which  are  held  according  to  the 
custom  of  the  manor,  and  not  according  to  the 
will  of  the  lord.  They  include  ancient  de- 
mesne and  customary  freehold.  See  Custom- 
ary Copyhold.  2  Wooddeson,  Lect.  33-49; 
Lee,  Real  Prop.  63  ;  1  Crabb,  Real  Prop.  709, 
919 ;  2  Sharswood,  Blackst.  Comm.  100. 

PRIVILEGED  DEED.  In  Scotch 
Law.  An  instrument,  for  example,  a  testa- 
ment, in  the  execution  of  which  certain  statu- 
tory formalities  usually  required  are  dis- 
pensed with,  either  from  necessity  or  expe- 
diency.   Erskine,  Inst.  3.  2.  22 ;  Bell,  Diet. 

PRIVILEGIUM  [priva  lex,  i.e.  de  uno 
homlne).  In  Civil  Law.  A  private  law  in- 
flicting a  punishment  or  conferring  a  reward. 
Calvinus,  Lex.;  Cicero,  de  Lege,  3,  19,  pro 
Domo,  17 ;  Vicat,  Voc.  Jur.  Every  peculiar 
right  by  which  one  creditor  or  class  of  credit- 
ors is  preferred  to  another  in  personal  actions. 
Vicat,  Voc.  Jur.  Every  privilege  granted  by 
law  in  derogation  of  common  right.  Mackeldy, 

188, 189.  A  claim  or  lien  on  a  thing,  which 
once  attaching  continued  till  waiver  or  satis- 
faction, and  which  existed  apart  from  posses- 
sion.  So  at  the  present  day  in  maritime  law: 


j  e.g.  the  lien  of  seamen  on  ship  for  wages.  2 
Parsons,  Marit.  Law,  561-563. 

PRIVILEGIUM  CLERICALE  (Lat.). 
The  same  as  benefit  of  clergy. 

PRIVITY.  The  mutual  or  successive 
relationship  to  the  same  rights  of  property, 
1  Greenleaf,  Ev.  ^89;  6  How.  60. 

PRIVITY  OF  CONTRACT.  The  re- 
lation which  subsists  between  two  contracting 
parties. 

From  the  nature  of  the  covenant  entered 
into  by  him,  a  lessee  has  both  privity  of  con- 
tract and  of  estate;  and  though  by  an  assign- 
ment of  his  lease  he  may  destroy  his  privity 
of  estate,  still  the  privity  of  contract  remains, 
and  he  is  liable  on  his  covenant  notwithstand- 
ing the  assignment.  Dougl.  458,  764 ;  Viner, 
Abr. ;  6  How.  60. 

PRIVITY  OF  ESTATE.  Identity  of 
title  to  an  estate. 

The  relation  which  subsists  between  a 
landlord  and  his  tenant. 

2.  It  is  a  general  rule  that  a  termor  cannot 
transfer  the  tenancy  or  privity  of  estate  be- 
tween himself  and  his  landlord  without  the 
latter's  consent:  an  assignee  who  comes  in 
only  in  privity  of  estate  is  liable  only  while 
he  continues  to  be  legal  assignee ;  that  is, 
while  in  possession  under  the  assignment. 
Bacon,  Abr.  Covenant  (14);  Woodfall,  Landl. 
&  T.  279 ;  Viner,  Abr. ;  Washburn,  Real  Prop. 

PRIVY.  One  who  is  a  partaker  or  has 
any  part  or  interest  in  any  action,  matter,  or 
thing. 

PRIVY  COUNCIL.  The  chief  council 
of  the  sovereign,  called,  by  pre-eminence,  "the 
Council,''  composed  of  those  whom  the  king 
appoints.  1  Sharswood,  Blackst.  Comm.  229 
-232. 

By  statute  of  Charles  XL,  in  1679  the  number  was 
limited  to  thirty, — fifteen  the  chief  ofiicers  of  the 
state  ex  virtute  officii,  the  other  fifteen  at  the  king's 
pleasure;  but  the  number  is  now  indefinite.  A 
committee  of  the  privy  council  is  a  court  of  ulti- 
mate appeal  in  admiralty  causes  and  causes  of 
lunacy  and  idiocy,  .S  P.  Will.  Ch.  108,  -and  from 
all  dominions  of  the  crown  except  Great  Britain  and 
Ireland.  1  Wooddeson,  Lect.  167  b;  2  Stephen, 
Comm.  479  ;  3  id.  425,  432. 

PRIVY  SEAL.    In  English  Law.  A 

seal  which  the  king  uses  to  such  grants  or 
things  as  pass  the  great  seal.  Coke,  2d  Inst, 
554. 

PRIVY  SIGNET.  The  seal  which  is 
first  used  in  making  grants,  etc.  of  the  crown. 
It  is  always  in  custody  of  the  secretary  of 
state.  2  Sharswood,  Blackst.  Comm.  347  ;  1 
Wooddeson,  Lect.  250;  1  Stephen,  Comm.  571. 

PRIVY  VERDICT.  One  which  is  de- 
livered privily  to  a  judge  out  of  court. 

PRIZE.  In  Maritime  Law.  The  ap- 
prehension and  detention  at  sea  of  a  ship  or 
other  vessel,  by  authority  of  a  belligerent 
power,  either  with  the  design  of  appropri- 
ating it,  with  the  goods  and  effects  it  contams, 
or  with  that  of  becoming  master  of  the  whole 
or  a  part  of  its  cargo.    I  C.  Rjb.  Adm.  228. 


PRIZE  COURT 


377 


PRO  CONFESSO 


The  vessel  or  goods  thus  taken. 

Goods  taken  on  land  from  a  public  enemy 
are  called  booty;  and  the  distinction  between 
a  prize  and  booty  consists  in  this,  that  the 
former  is  taken  at  sea  and  the  latier  on  land. 

2.  In  order  to  vest  the  title  of  the  prize 
in  the  captors,  it  must  ordinarily  be  brought 
with  due  care  into  some  convenient  port  for 
adjudication  by  a  competent  court.  But  cir- 
cumstances may  render  such  a  step  improper; 
and  of  these  the  captor  must  be  the  judge. 
In  making  up  his  decision,  good  faith  and 
reasonable  discretion  are  required.  18  How. 
110;  1  Kent,  Comm.  101.  The  condemnation 
must  be  pronounced  by  a  prize  court  of  the 
government  of  the  captor  sitting  in  the 
country  of  the  captor  or  his  ally :  the  prize 
court  of  an  ally  cannot  condemn. 

3.  Strictly  speaking,  as  between  the  belli- 
gerent parties  the  title  passes,  and  is  vested 
when  the  capture  is  complete;  and  that  was 
formerly  held  to  be  complete  and  perfect 
when  the  battle  was  over  and  the  spes  recu- 
perandi  was  gone.  But  by  the  modern  usage 
of  nations  this  is  not  sufficient  to  change  the 
property.  A  judicial  tribunal  must  pass 
upon  the  case ;  and  the  property  is  not  charged 
in  favor  of  a  neutral  vendee  or  recaptor,  so 
as  to  bar  the  original  owner,  until  a  regular 
sentence  of  condemnation.  1  Kent,  Comm. 
102.  See  Phillimore,  Int.  Law,  Index,  Prize; 
I  Kent,  Comm.  101;  Abbott,  Shipp. ;  13  Viner, 
Abr.  51;  2  Brown,  Civ.  Law,  444;  Merlin, 
R6pert. ;  Bouvier,  Inst.  Index;  Infra  Pr^- 

SIDIA. 

In  Contracts,  A  reward  w^hich  is  offered 
to  one  of  several  persons  who  shall  accomplish 
a  certain  condition :  as,  if  an  editor  should 
offer  a  silver  cup  to  the  individual  who  shall 
write  the  best  essay  in  favor  of  peace. 

In  this  case  there  is  a  contract  subsisting  between 
the  editor  and  each  person  who  may  write  such 
essay  that  he  will  pay  the  prize  to  the  writer  of  the 
best  essay.    WolflF,  Dr.  de  la  Nat.  ^  675. 

A  thing  which  is  won  by  putting  into  a 
lottery. 

PRIZE   COURT.     In  English  Law. 

That  branch  of  admiralty  which  adjudicates 
upon  cases  of  maritime  captures  made  in  time 
of  war.  A  special  commission  issues  in  Eng- 
land, in  time  of  war,  to  the  judge  of  the  ad- 
miralty court,  to  enable  him  to  hold  such 
court.    See  Admiralty. 

Some  question  has  been  raised  whether  the  prize 
court  is  or  is  not  a  separate  court  from  the  admi- 
ralty court.  Inasmuch  as  the  commission  is  always 
issued  to  the  judge  of  that  court,  and  the  forms  of 
proceeding  are  substantially  those  of  admiralty, 
while  the  law  applicable  is  derived  from  the  same 
sources,  the  fact  that  the  commission  of  prize  is 
only  issued  occasionally  would  hardly  seem  to 
render  the  distinction  a  valid  one. 

In  the  United  States,  the  admiralty  courts  dis- 
charge the  duties  both  of  a  prize  and  an  instance 
court. 

PRO  (Lat.).  For.  This  preposition  is  of 
frequent  use  in  composition. 

PRO  AMITA  (Lat.).  A  great-grand- 
father's sister ;  a  great-aunt.  Ainsworth,  Diet. 


PRO  CONFESSO  (Lat.  as  confessed). 

In  Equity  Practice.  A  decree  taken 
where  the  defendant  has  either  never  ap- 
peared in  the  suit,  or,  alter  having  appeared, 
has  neglected  to  answer.  1  Daniell,  Chanc. 
Pract.  479 ;  Adams,  Eq.  327,  374 ;  1  Smith, 
Chanc.  Pract.  254. 

PRO  EO  QUOD  (Lat.).   In  Pleading. 

For  this  that.  This  is  a  phrase  of  affirmation, 
and  is  sufficiently  direct  and  positive  for  intro- 
ducing a  material  averment.  1  Saund.  117, 
n.  4 ;  2  Chitty,  Plead.  360-393  ;  Gould,  Plead, 
c.  3,  I  34. 

PRO  INDIVISO  (Lat.).  For  an  undi- 
vided part.  The  possession  or  occupation  of 
lands  or  tenements  belonging  to  two  or  more 
persons,  and  where,  consequently,  neither 
knows  his  several  portion  till  divided.  Bract. 
1.  5. 

PRO  INTERESSE  SUO  (Lat.).  Ac- 
cording to  his  interest. 

PRO  QUERENTE  (Lat.).  For  the  plain- 
tiff: usually  abbreviated  ^ro  g'Mcr. 

PRO  RATA  (Lat).  According  to  the  rate, 
proportion,  or  allowance.  A  creditor  of  an 
insolvent  estate  is  to  be  paid  pro  rata  with 
creditors  of  the  same  class. 

PRO  RE  NATA  (Lat.).  For  the  occasion 
as  it  may  arise. 

PRO  TANTO  (Lat).  For  so  much.  See 
17  Serg.  &  R.  Penn.  400. 

PROAVIA  (Lat.).  A  great-grandmother. 
Ainsworth,  Diet. 

PROAVUNCULUS  (Lat).  A  great- 
grandmother's  brother.    Ainsworth,  Diet. 

PROAVUS  (Lat).  Great-grandfather. 
This  term  is  employed  in  making  genea- 
logical tables. 

PROBABILITY.  Likelihood ;  conso- 
nance to  reason :  for  example,  there  is  a 
strong  probability  that  a  man  of  good  moral 
character,  and  who  has  heretofore  been  re- 
markable for  truth,  will,  when  examined  as 
a  witness  under  oath,  tell  the  truth  ;  and,  on 
the  contrary,  that  a  man  who  has  been  guilty 
of  perjury  will  not,  under  the  same  circum- 
stances, tell  the  truth :  the  former  will,  there- 
fore, be  entitled  to  credit,  while  the  latter  will 
not. 

PROBABLE.  Having  the  appearance  of 
truth  ;  appearing  to  be  founded  in  reason. 

PROBABLE  CAUSE.  Such  a  state  of 
facts  as  to  make  it  a  reasonable  presumption 
that  their  supposed  existence  was  the  cause 
of  action. 

2.  When  there  are  grounds  for  suspicion 
that  a  person  has  committed  a  crime  or  mis- 
demeanor, and  public  justice  and  the  good 
of  the  community  require  that  the  matter 
should  be  examined,  there  is  said  to  be  a 
probable  cause  for  making  a  charge  against 
the  accused,  however  malicious  the  intention 
of  the  accuser  may  have  been.  Croke  Eliz. 
70;  2  Term.  231 ;  1  Wend.  N.  Y.  140,  345; 
5  Humphr.  Tenn.  357 ;  3  B.  Monr.  Kv.  4. 
See  1  Penn.  St  234  j  6  Watts  &  S.  Penn.  236 ; 


PROBATE  OF  A  WILL  378 


1  Meigs,  Tenn.  84;  3  Brev.  No.  C.  94.  And 
probable  cause  will  be  presumed  till  the  con- 
trary appears. 

3*  In  an  action,  then,  for  a  malicious  pro- 
secution, the  plaintiff  is  bound  to  show  total 
absence  of  probable  cause,  whether  the  ori- 
ginal proceedings  were  civil  or  criminal.  5 
Taunt.  580 ;  1  Campb.  199  ;  2  Wils.  307 ;  1 
Chitty,  Pract.  48;  Hammond,  Nisi  P.  273. 
See  Malicious  Prosecution  ;  7  Cranch,  339; 
1  Mas.  C.  C.  24 ;  Stew.  Adm.  115  ;  11  Ad.  & 
E.483;  1  Pick.  Mass.  524 ;  24  ic^.  81 ;  8  Watts, 
Penn.  240 ;  3  Wash.  C.  C.  31 ;  6  Watts  &  S. 
Penn.  336  ;  2  Wend.  N.  Y.  424 ;  1  Hill,  So. 
C.  82 ;  3  Gill  &  J.  Md.  377 ;  9  Conn.  309 ;  3 
Blackf.  Ind.  445  ;  Bouvier,  Inst.  Index. 

In  cases  of  municipal  seizure  for  the  breach 
of  revenue,  navigation,  and  other  laws,  if  the 
property  seized  is  not  condemned,  the  party 
seizing  is  exempted  from  liability  for  such 
seizure  if  the  court  before  which  the  cause  is 
tried  grants  a  certificate  that  there  was  pro- 
bable cause  for  the  seizure.  If  the  seizure 
was  without  probable  cause,  the  party  injured 
has  his  remedy  at  common  law.  See  7  Cranch, 
339  ;  2  Wheat.  118  ;  9  id.  362  ;  16  Pet.  342; 
3  How.  197  ;  4  id.  251 ;  13  id.  498. 

PROBATE  OF  A  WILL.  The  proof 
before  an  officer  authorized  by  law  that  an 
instrument  offered  to  be  proved  or  recorded 
is  the  last  will  and  testament  of  the  deceased 
person  whose  testamentary  act  it  is  alleged 
to  be. 

2.  Jurisdiction.  In  England,  the  ecclesi- 
astical courts  were  the  only  tribunals  in 
which,  except  by  special  prescription,  the 
validity  of  wills  of  personal  estate  could  be 
established  or  disputed.  Hence,  in  all  courts, 
the  seal  of  the  ecclesiastical  court  is  conclu- 
sive evidence  of  the  factum  of  a  will  of  per- 
sonalty ;  from  which  it  follows  that  an  exe- 
cutor cannot  assert  or  rely  on  his  authority 
in  any  other  court,  without  showing  that  he 
has  previously  established  it  in  the  spiritual 
court, — the  usual  proof  of  which  is  the  pro- 
duction of  a  copy  of  the  will  by  which  he  is 
appointed,  certified  under  the  seal  of  the  or- 
dinary.   This  is  usually  called  the  probate. 

The  ecclesiastical  courts  have  no  jurisdic- 
tion of  devises  of  lands;  and  in  a  trial  at 
common  law  or  in  equity  the  probate  of  a 
will  is  not  admissible  as  evidence,  but  the 
original  will  must  be  produced,  and  proved 
the  same  as  any  other  disputed  instrument. 
This  rule  has  been  modified  by  statute  in 
some  of  the  United  States.  In  New  York, 
the  record,  when  the  will  is  proved  by  the 
subscribing  witnesses,  is  prima  facie  evi- 
dence, and  provision  is  made  for  perpetuating 
the  evidence.  See  12  Johns.  N.  Y.  192 ;  14 
id.  407.  In  Massachusetts,  Connecticut, 
North  Carolina,  and  Michigan,  the  probate  is 
conclusive  of  its  validity,  and  a  will  cannot 
be  used  in  evidence  till  proved.  1  Pick. 
Mass.  114;  1  Gall.  C.  C.  622;  1  Mich.  Rev. 
Stat.  275.  In  Pennsylvania,  the  probate  is 
not  conclusive  as  to  lands,  and,  although 
not  allowed  by  the  register's  court,  it  may 
be  read  in  evidence.    5  Rawle,  Penn.  80. 


PROBATORY  TERM 


In  North  Carolina,  the  will  must  be  proved 
de  novo  in  the  court  of  common  pleas,  though 
allowed  by  the  ordinary.  1  Nott  &  M'C.  So. 
C.  326.  In  New  Jersey,  probate  is  necessary, 
but  it  is  not  conclusive.  1  Penn.  N.  J.  42. 
See  Letters  Testamentary. 

3.  The  effect  of  the  probate  in  this  coun- 
try, and  the  rules  in  regard  to  jurisdiction, 
are  generally  the  same  as  in  England  ;  but, 
as  no  ecclesiastical  courts  exist  in  the  United 
States,  probate  is  granted  by  some  judicial 
officer,  who  performs  the  part  of  the  ordinary 
in  England,  but  generally  with  more  ample 
powers  in  relation  to  the  administration  of 
the  estate.  See  Surrogate  ;  Letters  Testa- 
mentary. 

The  proof  of  the  will  is  a  judicial  proceed- 
ing, and  the  probate  a  judicial  act.  The 
party  propounding  the  instrument  is  termed 
the  proponent,  and  the  party  disputing,  the 
contestant.  In  England,  proof  ex  parte  was 
called  probate  in  common  form,  and  proof  on 
notice  to  the  next  of  kin,  proof  in  solemn 
form.  In  the  United  States,  generally  speak- 
ing, proofs  are  not  taken  until  citation  or 
notice  has  been  issued  by  the  judge  to  all  the 
parties  interested  to  attend.  On  the  return 
of  the  citation,  the  witnesses  are  examined, 
and  the  trial  proceeds  before  the  court.  If 
the  judge,  when  both  parties  have  been  . 
heard,  decides  in  favor  of  the  will,  he  admits 
it  to  probate ;  if  against  the  will,  he  rejects  • 
it,  and  pronounces  sentence  of  intestacy.  ^ 

4.  More  than  one  instrument  may  be  . 
proved ;  and  where  the  contents  of  two  or 
more  instruments  are  not  wholly  inconsistent , 
with  each  other,  they  may  all  be  admitted  j 
as  together  constituting  the  last  will  and  tes*  ; 
tament  of  the  deceased.  Williams,  Exec.  281. 

On  the  probate  the  alleged  will  may  be  ; 
contested  on  any  ground  tending  to  impeach 
its  validity :  as,  that  it  was  not  executed  in 
due   form  of  law  and  according  to  the  ' 
requisite  statutory  solemnities ;  that  it  was 
forged,  or  was  revoked,  or  was  procured  by  \ 
force,   fraud,  misrepresentation,  or  undue 
influence  over  a  weak  mind,  or  that  the  \ 
testator  was  incompetent  by  reason  of  idiocy  , 
or  lunacy.  ; 

PROBATION.  The  evidence  which 
proves  a  thing.  It  is  either  by  record, 
writing,  the  party's  own  oath,  or  the  testi- 
mony of  witnesses.  Proof.  It  also  signifies 
the  time  of  a  novitiate  ;  a  trial.    Nov.  5. 

PROBATOR.  In  Old  English  Law. 
Strictly,  an  accomplice  in  lelony  who  to 
save  himself  confessed  the  fact,  and  charged 
or  accused  any  other  as  principal  or  acces- 
sary, against  whom  he  was  bound  to  make 
good  his  charge.  It  also  signified  an  ap- 
prover, or  one  who  undertakes  to  prove  a 
crime  charged  upon  another.  Jacob,  Law 
Diet. 

PROBATORY  TERM.    In  the  British 

courts  of  admiralty,  after  the  issue  is  formed 
between  the  parties,  a  time  for  taking  the 
testimony  is  assigned.  This  is  called  a  pro- 
batory term. 


PROBI  ET  LEGALES  HOMINES  379 


PROCESS 


This  term  is  common  to  both  parties,  and 
either  party  may  examine  his  witnesses. 
When  good  cause  is  shown,  the  term  will  be 
enlarged.  2  Brown,  Civ.  Law,  418  ;  Dunlop, 
Adm.  Pract.  217. 

PROBI  ET  LEGALES  HOMINES 
(Lat.).  Good  and  lawful  men  ;  persons  com- 
petent in  point  of  law  to  serve  on  juries. 
Croke  Eliz.  054,  751  ;  Croke  Jac.  G35  ;  Mart. 
&  Y.  Tenn.  147  ;  Hard.  Ky.  03  ;  Bacon,  Abr. 
Juries  (A). 

PROBITY.  Justice;  honesty.  A  man 
jf  probity  is  one  who  loves  justice  and 
honesty,  and  who  dislikes  the  contrary. 
Wolff,  Dr.  de  la  Nat.  g  772. 

PROCEDENDO  (Lat.).  In  Practice.  A 
writ  which  issues  where  an  action  is  removed 
from  an  inferior  to  a  superior  jurisdiction  by 
habeas  corpus,  certiorari,  or  writ  of  privilege, 
and  it  does  not  appear  to  such  superior  court 
that  the  suggestion  upon  which  the  cause  has 
been  removed  is  sufficiently  proved ;  in 
which  case  the  superior  court  by  this  writ 
remits  the  cause  to  the  court  from  whence  it 
came,  commanding  the  inferior  court  to 
proceed  to  the  final  hearing  and  determina- 
tion of  the  same.  See  1  C bitty.  Bail,  575  ; 
2  W.  Blackst.  1060;  1  Strange,  527;  0 
Term,  365  ;  4  Barnew.  &  Aid.  535  ;  10  East, 
387. 

PROCEEDING.  In  its  general  accept- 
ation, this  word  means  the  form  in  which 
actions  are  to  be  brought  and  defended,  the 
manner  of  intervening  in  suits,  of  conduct- 
ing them,  the  mode  of  deciding  them,  of 
opposing  judgments,  and  of  executing. 

Ordinary  proceedings  intends  the  regular 
and  usual  mode  of  carrying  on  a  suit  by 
due  course  at  common  law. 

Summary  proceedings  are  those  where  the 
matter  in  dispute  is  decided  without  the 
intervention  of  a  jury  :  these  must  be  author- 
ized by  the  legislature,  except  perhaps  in 
cases  of  contempt,  for  such  proceedings  are 
unknown  to  the  common  law. 

In  Louisiana  there  is  a  third  kind  of 
proceeding,  known  by  the  name  of  executory 
proceeding,  which  is  resorted  to  in  the 
following  cases :  When  the  creditor's  right 
arises  from  an  act  importing  a^confession  of 
judgment,  and  which  contains  a  privilege  or 
mortgage  in  his  favor ;  or  when  the  cre- 
ditor demands  the  execution  of  a  judgment 
which  has  been  rendered  by  a  tribunal 
different  from  that  within  whose  jurisdiction 
the  execution  is  sought.    La.  Code,  art.  732. 

In  New  York  the  code  of  practice  divides 
remedies  into  actions  and  special  proceedings. 
An  action  is  a  regular  judicial  proceeding,  in 
which  one  party  prosecutes  another  party  for 
the  enforcement  or  protection  of  a  right,  the 
redriss  or  prevention  of  a  wrong,  or  the 
punishment  of  a  public  offence.  Every  other 
remedy  is  a  special  proceeding.    N.  Y.  Code, 

PROCEEDS.  Money  or  articles  of  value 
arising  or  obtained  from  the  sale  of  property. 
*ioods  purchased  with  money  arising  from 


the  sale  of  other  goods,  or  obtained  on  their 
credit,  are  proceeds  of  such  goods.  2  I*ar- 
sons,  Marit.  Law,  1:01, 202.  The  sum,  amount, 
or  value  of  goods  sold,  or  converted  into 
money.    Wharton,  Diet.  2d  Lond.  ed. 

PROCERES  (Lat.).  The  name  by  which 
the  chief  magistrates  in  cities  were  formerly 
known.    St.  Armand,  Hist.  Eq.  88. 

PROCES-VERBAL.   In  French  Law. 

A  true  relation  in  writing,  in  due  form  of  law, 
of  what  has  been  done  and  said  verbally  in 
the  presence  of  a  public  officer,  and  what  he 
himself  does  upon  the  occasion.  It  is  a  spe- 
cies of  inquisition  of  office. 

The  proc^s-verbal  should  be  dated,  contain 
the  name,  qualities,  and  residence  of  the  public 
functionary  who  makes  it,  the  cause  of  com- 
plaint, the  existence  of  the  crime,  that  which 
serves  to  substantiate  the  charge,  point  out 
its  nature,  the  time,  the  place,  the  circum- 
stances, state  the  proofs  and  presumptions, 
describe  the  place, — in  a  word,  every  thing 
calculated  to  ascertain  the  truth.  It  must  be 
signed  by  the  officer.    Dalloz,  Diet. 

PROCESS.  In  Practice.  The  means 
of  compelling  a  defendant  to  appear  in  court, 
after  suing  out  the  original  writ,  in  civil,  and 
after  indictment,  in  criminal,  cases. 

The  method  taken  by  law  to  compel  a  com- 
pliance with  the  original  writ  or  command! 
of  the  court. 

In  civil  causes,  in  all  real  actions  and  for  injuries 
not  committed  against  the  peace,  the  first  step  was 
a  summons,  which  was  served  in  personal  actions 
by  two  persons  called  summoners,  in  real  actions 
by  erecting  a  white  stick  or  wand  on  the  defendant's 
grounds.  If  this  summons  was  disregarded,  the 
next  step  was  an  attachment  of  the  goods  of 
the  defendant,  and  in  case  of  trespasses  the  attach- 
ment issued  at  once  without  a  summons.  If  the 
attachment  failed,  a  distringas  issued,  which  was 
continued  till  he  appeared.  Here  process  ended 
in  injuries  not  committed  with  force.  In  case  of 
such  injuries,  an  arrest  of  the  person  was  provided 
for.  See  Arrest.  In  modern  practice  some  of 
these  steps  are  omitted;  but  the  practice  of  the 
different  states  is  too  various  to  admit  tracing  here 
the  differences  which  have  resulted  from  retaining 
different  steps  of  the  process. 

In  the  English  law,  process  in  civil  causes 
is  called  original  process,  when  it  is  founded 
upon  the  original  writ ;  and  also  to  distin- 
guish it  from  mesne  or  intermediate  process, 
which  issues  pending  the  suit,  upon  some 
collateral  interlocutory  matter,  as,  to  summon 
juries,  witnesses,  and  the  like  ;  7nesne  process 
is  also  sometimes  put  in  contradistinction  to 
final  process,  or  process  of  execution  ;  and 
then  it  signifies  all  process  which  intervenes 
between  the  beginning  and  end  of  a  suit. 
3  Sharswood,  Blackst.  Comm.  279. 

In  Patent  Law.  The  art  or  method  by 
which  any  particular  result  is  produced. 

A  process,  eo  nomine,  is  not  made  the  sub- 
ject of  a  patent  in  our  act  of  congress.  It 
is  included  under  the  general  term  "  useful 
art.''  Where  a  result  or  effect  is  produced  hy 
chemical  action,  by  the  operation  or  appli- 
cation of  some  element  or  power  of  nature, 
or  of  one  substance  to  another,  such  modes^ 


PROCESS  OF  GARNISHMENT  380 


PROCURATION 


« 


methods,  or  operations  are  called  processes. 
A  new  process  is  usually  the  result  of  dis- 
covery; a  machine,  of  invention.  The  arts 
of  tanning,dyeiug,  making  water-proof  cloth, 
vulcanizing  india-rubber,  smelting  ores,  and 
numerous  others,  are  usually  carried  on  by 
processes,  as  distinguished  from  machines. 
But  the  term  process  is  often  employed  more 
vaguely  in  a  secondary  sense,  in  which  it 
cannot  be  the  subject  of  a  patent.  Thus,  we 
say  that  a  board  is  undergoing  the  process 
of  being  planed,  grain  of  being  ground,  iron 
of  being  hammered  or  rolled.  Here  the  term 
is  used  subjectively  or  passively,  as  applied 
to  the  material  operated  on,  and  not  to  the 
method  or  mode  of  producing  that  operation, 
which  is  by  mechanical  means,  or  the  use  of 
a  machine  as  distinguished  from  a  process. 
In  this  use  of  the  term  it  represents  the 
function  of  a  machine,  or  the  effect  produced 
by  it  on  the  material  subjected  to  the  action 
of  the  machine,  and  does  not  constitute  a 
patentable  subject-matter,  because  there  can- 
not be  a  valid  patent  for  the  function  or 
abstract  effect  of  a  machine,  but  only  for  the 
machine  which  produces  it.  15  How.  267, 
268.    See  2  Barnew.  &  Aid.  349. 

PROCESS  OF  GARNISHMENT. 

See  Garnishment. 

PROCESS  OF  INTERPLEADER. 

A  means  of  determining  the  right  to  property 
claimed  by  each  of  two  or  more  persons, 
which  is  in  the  possession  of  a  third. 

Formerly,  when  two  parties  concurred  in 
bailment  to  a  third  person  of  things  which 
were  to  be  delivered  to  one  of  them  on  the 
performance  of  a  covenant  or  other  thing, 
and  the  parties  brought  several  actions  of 
detinue  against  the  bailee,  the  latter  might 
plead  the  facts  of  the  case  and  pray  that  the 
plaintiffs  in  the  several  actions  might  inter- 
plead with  each  other :  this  was  called  pro- 
cess of  interpleader.  3  Reeve,  Hist.  Eng. 
Law,  ch.  23  ;  Mitford,  Eq.  Plead.  Jeremy  ed. 
141 ;  2  Story,  Eq.  Jur.  ^  802. 

PROCESS  OF  LAW.  See  Due  Pro- 
cess OF  Law. 

PROCESSIONING.     In  Tennessee. 

A  term  used  to  denote  the  manner  of  ascer- 
taining the  boundaries  of  land,  as  provided 
for  by  the  laws  of  that  state.  Tenn.  Comp. 
Stat.  348.  The  term  is  also  used  in  North 
Carolina.  3  Murph.  No.  C.  504 ;  3  Dev.  No. 
C.  268. 

PROCHEIN  (L.  Fr.).  Next.  A  term 
somewhat  used  in  modern  law,  and  more 
frequently  in  the  old  law:  as,  prochein  ami, 
prochein  cousin.    Coke,  Litt.  10. 

PROCHEIN  AMI  (L.  Fr. ;  spelled,  also, 
procliein  amy  and  prochai7i  amy).  Next  friend, 
lie  who,  without  being  appointed  guardian, 
sues  in  the  name  of  an  infant  for  the  recovery 
of  the  rights  of  the  latter,  or  does  such  other 
acts  as  are  authorized  by  law :  as,  in  Penn- 
sylvania, to  bind  the  infant  apprentice.  3 
Serg.  &R.  Penn.  172;  1  Ashm.  Penn.  27.  For 
Bome  of  the  rules  with  respect  to  the  liability 


or  protection  of  a  prochein  ami,  see  3  Madd, 
Ch.  468;  4  id.  461;  2  Strange,  709;  1  Dick. 
Ch.  346;  1  Atk.  Ch.  570;  Mosel.  47,  85;  1 
Ves.  Ch.  409;  7  id.  425;  10  id.  184;  Edwards, 
Parties,  182-204. 

PROCLAMATION.  The  act  of  causing 
some  state  matters  to  be  published  or  made 
generally  known.  A  written  or  printed  docu- 
ment in  which  are  contained  such  matters, 
issued  by  proper  authority :  as,  the  president's 
proclamation,  the  governor's,  the  mayor's 
proclamation.  The  word  proclamation  is  also 
used  to  express  the  public  nomination  made 
of  any  one  to  a  high  office :  as,  such  a  prince 
was  proclaimed  emperor. 

2.  The  president's  proclamation  may  give 
force  to  a  law,  when  authorized  by  congress: 
as,  if  congress  were  to  pass  an  act,  which  should 
take  effect  upon  the  happening  of  a  contingent 
event,  which  was  to  be  declared  by  the  presi- 
dent by  proclamation  to  have  happened,  in 
this  case  the  proclamation  would  give  the 
act  the  force  of  law,  which  till  then  it 
wanted.  How  far  a  proclamation  is  evidence 
of  facts,  see  Bacon,  Abr.  Evidence  (F); 
Dougl.  594,  n. ;  Buller,  Nisi  P.  226 ;  12  Mod. 
216  ;  8  State  Tr.  212;  4  Maule  &  S.  546;  2 
Campb.  44;  Dane,  Abr.  ch.  96,  a.  2,  3,  4: 
6  111.  577  ;  Brooke,  Abr. 

In  Practice.  The  declaration  made  by 
the  cryer,  by  authority  of  the  court,  that 
something  is  about  to  be  done. 

3.  It  usually  commences  with  the  French 
word  Oyez,  do  you  hear,  in  order  to  attract 
attention :  it  is  particularly  used  on  the 
meeting  or  opening  of  the  court,  and  at  ita 
adjournment;  it  is  also  frequently  employed 
to  discharge  persons  who  have  been  accused 
of  crimes  or  misdemeanors. 

PROCLAMATION  OF  EXIGENTS. 

In  Old  English  Practice.    On  awarding  an 
exigent,  in  order  to  outlawry,  a  writ  of  pro- 
clamation issued  to  the  sheriff  of  the  county 
where  the  party  dwelt,  to  make  three  procla- 
mations for  the  defendant  to  yield  himself  or  i 
be  outlawed.  i 
PROCLAMATION  OF  REBELLION.  \ 
In  Old  English  Practice.    When  a  party 
neglected  to  appear  upon  a  subpoena,  or  an 
attachment  ifi  the  chancery,  a  writ  bearing 
this  name  issued ;  and,  if  he  did  not  surrender 
himself  by  the  day  assigned,  he  was  reputed 
and  declared  a  rebel. 

PROCREATION.  The  generation  of 
children :  it  is  an  act  authorized  by  the  law 
of  nature.  One  of  the  principal  ends  of 
marriage  is  the  procreation  of  children. 
Inst.  tit.  2,  in  pr. 

PROCTOR.  One  appointed  to  represent 
in  judgment  the  party  who  empowers  him, 
by  writing  under  his  hand,  called  a  proxy. 
The  term  is  used  chiefly  in  the  courts  of  civil 
and  ecclesiastical  law.  The  proctor  is  some- 
what similar  to  the  attorney.  Ayliffe,  Parerg. 
421. 

PROCURATION.   In  Civil  Law.  The 

act  by  which  one  person  gives  power  to  another 


PROCURATIONS 


381 


PROFERT  IIS  CURIA 


to  act  in  his  place,  as  he  could  do  himself. 
A  letter  of  attorney. 

An  express  procuration  is  one  made  by  the 
express  consent  of  the  parties.  An  implied 
lor  tacit  procuration  takes  place  when  an  in- 
idividual  sees  another  managing  his  affairs 
and  does  not  interfere  to  prevent  it.  Dig.  17. 
1.  6.  2;  50.  17.  60;  Code,  7.  32.  2.^ 
I  Procurations  are  also  divided  into  those 
which  contain  absolute  power,  or  a  general 
authority,  and  those  which  give  only  a  limited 
power.  Dig.  3.  3.  58;  17.  1.  GO.  4.  Pro- 
curations are  ended  in  three  ways:  first,  by 
the  revocation  of  the  authority ;  second,  by 
'  the  death  of  one  of  the  parties ;  third,  by  the 
renunciation  of  the  mandatory,  when  it  is 
made  in  proper  time  and  place  and  it  can  be 
done  without  injury  to  the  person  who  gave 
it.  Inst.  3.  27;  Dig.  17.  1;  Code,  4.  35.  See 
Authority;  Letter  of  Attorney;  Mandate. 

PROCURATIONS.  In  Ecclesiastical 
Law.  Certain  sums  of  money  which  parish 
priests  pay  yearly  to  the  bishops  or  archdea- 
cons ratione  visitationis.  Dig.  3.  39.  25 ; 
Ayliffe,  Parerg.  429 ;  17  Viner,  Abr.  544. 

PROCURATOR.  In  Civil  Law.  A 
proctor;  a  person  who  acts  for  another  by 
virtue  of  a  procuration.  Procurator  est,  qui 
aliena  negotia  mandata  Domini  administrat. 
Dig.  3.  3.  1.    See  Attorney;  Authority. 

PROCURATOR,  FISCAL.  In  Scotch 
Law.    A  public  prosecutor.    Bell,  Diet. 

PROCURATOR  LITIS  (Lat.).  In  Civil 
Law.  One  who  by  command  of  another  in- 
stitutes and  carries  on  for  him  a  suit.  Vicat, 
Voc.  Jur.  Procurator  is  properly  used  of  the 
attorney  of  actor  (the  plaintiff),  defensor  of 
the  attorney  of  reus  (the  defendant).  It  is 
distinguished  from  advocatus,  who  was  one 
who  undertook  the  defence  of  persons,  not 
things,  and  who  was  generally  the  patron  of 
the  person  whose  defence  he  prepared,  the 
person  himself  speaking  it.  It  is  also  distin- 
guished from  cognitor,  who  conducted  the 
cause  in  the  presence  of  his  principal,  and 
generally  in  cases  of  citizenship;  whereas  the 
procurator  conducted  the  cause  in  the  absence 
of  his  principal.    Calvinus,  Lex. 

PROCURATOR  IN  REM  SUAM. 
In  Scotch  Law.  A  term  which  imports 
that  one  is  acting  as  attorney  as  to  his  own 
property.  When  an  assignment  of  a  thing 
18  made,  as  a  debt,  and  a  procuration  or 
power  of  attorney  is  given  to  the  assignee  to 
receive  the  same,  he  is  in  such  case  procu- 
rator in  rem  suam,  3  Stair,  Inst.  1.  2.  3, 
etc.;  3  Erskine,  Inst.  3.  5.  2;  1  Bell,  Diet.  b. 
5,  c.  2,  s.  1,  ^  2. 

PROCURATORIUM(Lat.).  The  proxy 
or  instrument  by  which  a  proctor  is  con- 
stituted and  appointed. 

PRODIGAL.  In  Civil  Law.  A  person 
who,  though  of  full  age,  is  incapable  of 
managing  his  aflFairs,  and  of  the  obligations 
which  attend  them,  in  consequence  of  his  bad 
conduct,  and  for  whom  a  curator  is  therefore 
appointed. 


PRODITORIE(Lat.).  Treasonably.  This 
is  a  technical  word  formerly  used  in  indict- 
ments for  treason,  when  they  were  written 
in  Latin. 

PRODUCENT.  In  Ecclesiastical 
Law.  lie  who  produces  a  witness  to  be  ex- 
amined. 

PRODUCTION  OF  SUIT  [productio 
sectm).  The  concluding  clause  of  all  declara- 
tions is,  "and  thereupon  he  brings  his  suit." 
In  old  pleading  this  referred  to  the  produc- 
tion by  the  plaintiff  of  his  secia  or  suit,  i.e. 
persons  prepared  to  confirm  what  he  had 
stated  in  the  declaration. 

The  phrase  has  remained ;  but  the  practice 
from  which  it  arose  is  obsolete.  3  Shars- 
wood,  Blackst.  Comm.  295  ;  Stephen,  Plead. 
428. 

PROFANE.  That  which  has  not  been 
consecrated.  By  a  profane  place  is  under- 
stood one  which  is  neither  sacred,  nor  sancti- 
fied, nor  religious.    Dig.  11.  7.  2.  4. 

PROFANELY.  In  a  profane  manner. 
In  an  indictment,  under  the  act  of  assembly 
of  Pennsylvania,  against  profanity,  it  is  re- 
quisite that  the  words  should  be  laid  to  have 
been  spoken  profanely.  11  Serg.  &  R.  Penn. 
394. 

PROFANENESS,  PROFANITY.  In 
Criminal  Law.  A  disrespect  to  the  name 
of  God  or  his  divine  providence.  This  is 
variously  punished  by  statute  in  the  several 
states. 

PROFECTITUS  (Lat.).  In  Civil  Law. 

That  which  descends  to  us  from  our  ascend- 
ants.   Dig.  23.  3.  5. 

PROFERT  IN  CURIA  (Lat.  he  pro- 
duces in  court :  sometimes  written  profert  in 
curiam  with  the  same  meaning).  In  Plead- 
ing. A  declaration  on  the  record  that  a  party 
produces  the  deed  under  which  he  makes  title 
in  court.  In  ancient  practice,  the  deed  itself 
was  actually  produced  ;  in  modern  times,  the 
allegation  only  is  made  in  the  declaration, 
and  the  deed  is  then  constructively  in  pos- 
session of  the  court.  3  Salk.  119 ;  6  Mann. 
&  G.  277-,  11  Md.  322. 

Profert  is,  in  general,  necessary  when 
either  party  pleads  a  deed  and  claims  rights 
under  it,  whether  plaintiff,  2  Dutch.  N.  J. 
293,  or  defendant,  17  Ark.  279,  to  enable  the 
court  to  inspect  and  construe  the  instrument 
pleaded,  and  to  entitle  the  adverse  party  to  oyer 
thereof,  10  Coke,  92  h;  1  Chitty,  Plead,  414; 
1  Archbold,  Pract.  164,  and  is  not  necessary 
when  the  party  pleads  it  without  making  title 
under  it.  Gould,  Plead,  c.  7,  p.  2,  I  47.  But 
a  party  who  is  actually  or  presumptively  un- 
able to  produce  a  deed  may  plead  it  without 
profert,  as  in  suit  by  a  stranger,  Comyns, 
Dig.  Pleader,  0  8 ;  Croke  Jac.  217 ;  Croke 
Car.  441 ;  Carth.  316,  or  one  claiming  title 
by  operation  of  law,  Coke,  Litt.  225 ;  Bacon, 
Abr.  Pleas  (I  12) ;  5  Coke,  75  ;  or  where  the 
deed  is  in  the  possession  of  the  adverse  party 
or  is  lost.  In  all  these  cases  the  special 
facts  must  be  shown,  to  excuse  the  want  of 
profert.    See  Gould,  Plead,  c.  8,  p.  2  ;  Lawes. 


i 


PROFESSION 


382 


PROFITS 


Plead.  96 ;  1  Saund.  9  a,  note.  Profert  and 
oyer  are  abolished  in  England  by  the  Com- 
mon Law  Procedure  Act,  15  &  IG  Vict.  c.  76  ; 
and  a  provision  exists,  14  &  15  Vict.  c.  99, 
for  allowing  inspection  of  all  documents  in 
the  possession  or  under  the  control  of  the 
partv  a2;ainst  whom  the  inspection  is  asked. 
See  25  Eng.  L.  &  Eq.  304.  In  many  of  the 
states  of  the  United  States  profert  has  been 
abolished,  and  in  some  instances  the  instru- 
ment must  be  set  forth  in  the  pleading  of  the 
party  relying  upon  it.  The  operation  of 
profert  and  oyer,  where  allowed,  is  to  make 
the  deed  a  part  of  the  pleadings  of  the 
party  nroaucing:  it.  11  Md.  322;  3  Cranch, 
234,    See  7  Cranch,  176. 

PROFESSION.  A  public  declaration 
respecting  something.  Code,  10.  41.  6.  A 
state,  art,  or  mystery:  as,  the  legal  profession. 
Dig.  1.  18.  6.  4 ;  Domat,  Dr.  Pub.  1.  1,  t.  9,  s. 
I,  n.  7. 

In  Ecclesiastical  Law.  The  act  of  en- 
tering into  a  religious  order.  See  17  Viner, 
Abr.  545. 

PROFITS.  The  advance  in  the  price  of 
goods  sold  beyond  the  cost  of  purchase. 

The  gain  made  by  the  sale  of  produce  or 
manufactures,  after  deducting  the  value  of 
the  labor,  materials,  rents,  and  all  expenses, 
together  with  the  interest  of  the  capital  em- 
ployed. 

An  excess  of  the  value  of  returns  over  the 
value  of  advances. 

2.  This  is  a  word  of  very  extended  signification. 
In  comme7-ce,  it  means  the  advance  in  the  price  of 
goods  sold  beyond  the  cost  of  purchase.  In  dis- 
tinction from  the  wages  of  labor,  it  is  well  under- 
stood to  imply  the  net  return  to  the  capital  or 
stock  employed,  after  deducting  all  the  expenses, 
including  not  only  the  wages  of  those  employed 
by  the  capitalist,  but  the  wages  of  the  capitalist 
himself  for  superintending  the  employment  of  his 
capital  or  stock.  Adam  Smith,  Wealth  of  Nat.  b. 
i.  c.  6,  and  M"Culloch's  Notes ;  Mill,  Polit.  Econ.  c. 
15.  After  indemnifying  the  capitalist  for  his  out- 
lay, there  commonly  remains  a  surplus,  which  is 
his  profit,  the  net  income  from  his  capital.  1  Mill, 
Polit.  Econ.  c.  15.  The  word  profit  is  generally 
used  by  writers  on  political  economy  to  denote  the 
difference  between  the  value  of  advances  and  the 
value  of  returns  made  by  their  employment. 

3.  The  profit  of  the  farmer  and  the  manufac- 
turer is  the  gain  made  by  the  sale  of  produce  or 
manufactures,  after  deducting  the  value  of  the 
labor,  materials,  rents,  and  all  expenses,  together 
with  the  interest  of  the  capital  employed, — whether 
land,  buildings,  machinery,  instruments,  or  money. 
The  rents  and  profits  of  an  estate,  the  income  or 
the  net  income  of  it,  are  all  equivalent  expressions. 
The  income  or  the  net  income  of  an  estate  means 
only  the  profit  it  will  yield  after  deducting  the 
charges  of  management.  5  Me.  202,  203  j  35  id. 
420,  421. 

Under  the  term  profit  is  comprehended  the  pro- 
duce of  the  soil,  whether  it  arise  above  or  below 
the  surface :  as,  herbage,  wood,  turf,  coals,  mine- 
rals, stones;  also  fish  in  a  pond  or  running  water. 
Profits  are  divided  into  profiin  d  prendre,  or  those 
taken  and  enjoyed  by  the  mere  act  of  the  proprie- 
tor himself,  and  proJitH  d  vendre,  namely,  such  as 
(ire  received  at  the  hands  of  and  rendered  by  an- 
other.   Hammond,  Nisi  P.  172. 

4.  Profits  are  divided  by  writers  on  political 


economy  into  gross  and  net, — gross  profits  being 
the  whole  difference  between  the  value  of  advaricea 
and  the  value  of  returns  made  by  their  employ, 
ment,  and  net  profits  being  so  much  of  that  difi"er- 
ence  as  is  attributable  solely  to  the  capital  employed. 
The  remainder  of  the  difference,  or,  in  other  words, 
the  gross  profits  minus  the  net  profits,  has  no  par- 
ticular name;  but  it  represents  the  profits  attribu- 
table to  industry,  skill,  and  enterprise.  See  Malthua, 
Def.  in  Polit.  Econ. ;  M'Culloch,  Polit.  Econ.  4th  ed. 
563.  But  the  word  profit  is  generally  used  in  a  less 
extensive  signification,  and  presupposes  an  excesf 
of  the  value  of  returns  over  the  value  of  advancei 

5.  Using  profit  in  this  more  limited  and 
popular  sense,  persons  who  share  profits  do 
not  necessarily  share  losses ;  for  they  may 
stipulate  for  a  division  of  gain,  if  any,  and 
yet  some  one  or  more  of  them  may,  by  agree- 
ment, be  entitled  to  be  indemnified  against 
losses  by  the  others:  so  that  whilst  all  share 
profits  some  only  bear  losses.  Persons  who 
share  gross  returns  share  profits  in  the  sense 
of  gain ;  but  they  do  not  by  sharing  the  re- 
turns share  losses,  for  these  fall  entirely 
on  those  making  the  advances.  Moreover, 
although  a  division  of  gross  returns  is  a  divi- 
sion of  profits  if  there  are  any,  it  is  so  only 
incidentally,  and  because  such  profits  are  in- 
cluded in  what  is  divided:  it  is  not  a  division 
of  profits  as  such ;  and  under  an  agreement 
for  a  division  of  gross  returns,  whatever  is 
returned  must  be  divided,  whether  there  be 
profit  or  loss,  or  neither.  1  Lindley,  Partn. 
Engl.  ed.  10.  These  considerations  have  led 
to  the  distinction  between  agreements  to 
share  profits  and  agreements  to  share  gross 
returns,  and  to  the  doctrine  that,  whilst  an » 
agreement  to  share  profits  creates  a  partner-! 
ship,  an  agreement  to  share  gross  returns  = 
does  not.  1  Lindley,  Partn.  Engl.  ed.  11, 
See  10  Vt.  170  ;  12  Conn.  69  ;  1  Campb.  329; , 
2  Curt.  C.  C.  609 ;  38  N.  H.  287,  304. 

6.  Commissions  may  be  considered  as  pro- 
fits, for  some  purposes.    A  participation  .  in  ' 
commissions  has  been  held  such  a  participa-v 
tion  in  profits  as  to  constitute  the  participants! 
partners.    2  H.  Blackst.  235  ;  4  Barnew.  &{ 
Aid.  663.  So,  commissions  received  from  the< 
sales  of  a  pirated  map  are  profits  which'; 
must  be  accounted  for  by  the  commission? 
merchant  on  a  bill  by  the  proprietor  of  the 
copyright.    2  Curt.  C.  C.  608.    As  between 
partners,  all  gains  which  equitably  belong  to 
the  firm,  but  which  are  clandestinely  re- 
ceived by  one  partner,  are  accounted  profits 
of  the  firm.    Story,  Partn.  ^74;  2  Curt.  C. 
C.  608,  609. 

7.  A  direction  or  power  given  in  a  will  to 
raise  money  out  of  the  rents  and  profits  of  an 
estate  for  the  payment  of  debts  and  legacies, 
or  to  raise  a  portion  within  a  definite  period, 
within  which  it  could  not  be  raised  out  of 
the  annual  rents  and  profits,  authorizes  a 
sale.  2  Ch.  Cas.  205;  1  Vern.  Ch.  104;  2 
id.  26,  310,  420,  424;  1  Ves.  Sen.  Ch.  491;  1 
Atk.  Ch.  550.  And  judges  in  latter  times, 
looking  to  the  inconvenience  of  raising  a 
large  sum  of  money  in  this  manner,  have  in- 
clined much  to  treat  a  trust  to  apply  the 
rents  and  profits  in  raising  a  portion,  even 


PROFITS 


383 


PROFITS 


at  an  indefinite  period,  as  authorizing  a  sale 
or  mortgage.  2  Jarman,  Wills,  4th  Am.  ed. 
382,  383  ;  1  Ves.  Ch.  234;  1  Atk.  Ch.  505;  1 
Ves.  Sen.  Ch.  42.  But,  as  a  general  rule,  the 
question  whether  the  money  is  to  be  raised 
oy  a  sale  or  mortgage  or  out  of  the  annual  rents 
ftnd  profits  will  depend  upon  the  nature  of 
the  purpose  for  which  the  money  is  to  be 
raised,  and  the  general  tenor  of  the  will. 
2  Jarman,  Wills,  4th  Am.  ed.  383,  384 ;  3 
Brown,  Pari.  Cas.  66 ;  3  Younge  &  J.  Exch.  360 ; 

1  Atk.  Ch.  550;  1  Russ.  &  M.  Ch.  590 ;  3  id. 
97 ;  2  P.  Will.  Ch.  63.  The  circumstances  that 
have  chiefly  influenced  the  decisions  are — the 
appointment  of  a  time  within  which  the 
charge  cannot  be  raised  by  annual  profits ; 
the  situation  of  the  estate,  where  a  sale  or 
mortgage  would  be  very  prejudicial,  as  in  the 
case  of  a  reversion,  especially  if  it  would  oc- 
casion any  danger  that  the  charge  would  not 
be  answered  in  its  full  extent ;  the  nature  of 
the  charge,  as  where  it  is  for  debts  or  portions, 
and,  in  the  latter  instance,  the  age  or  death  of 
the  child.  2  Ves.  Ch.  480,  n.  1 ;  1  Chanc. 
Cas.  170  ;  2  id.  205  ;  1  Vern.  Ch.  256;  2  id. 
26,  72,  420;  2  P.  Will.  Ch.  13,  650;  1  Fon- 
blanque,  Eq.  440,  n.  (o) ;  1  Atk.  Ch.  506,  550; 

2  id.  358.  But  in  no  case  where  there  are 
subsequent  restraining  words  has  the  word 
profit  been  extended.  Prec.  Ch.  586,  note, 
and  the  cases  cited  there ;  1  Atk.  Ch.  506 ; 
2  id.  105. 

8.  A  devise  of  the  rents  and  profits  of  land 
is  equivalent  to  a  devise  of  the  land  itself,  and 
will  carry  the  legal  as  well  as  the  beneficial 
interest  therein.  1  Ves.  Sen.  Ch.  171 ;  2 
Barnew.  &  Aid.  42 ;  Plowd.  540 ;  9  Mass.  372 ;  1 
Cush.  Mass.  93 ;  1  Ashm.  Penn.  131 ;  1  Spenc. 
N.  J.  142 ;  17  Wend.  N.  Y.  393  ;  5  Me.  119  ; 
85  id.  414;  1  Atk.  Ch.  506 ;  2  id.  358 ;  1  Brown, 
Ch.  310.  A  direction  by  the  testator  that  a 
certain  person  shall  receive  for  his  support  the 
net  profits  of  the  land  is  a  devise  of  the  land 
Itself,  for  such  period  of  time  as  the  profits 
were  devised.    35  Me.  419. 

An  assignment  of  the  profits  of  an  estate 
amounts  to  an  equitable  lien,  and  would  en- 
title the  assignee  in  equity  to  insist  upon  a 
mortgage.  Thus,  if  a  tenant  for  life  of  the 
real  estate  should,  by  covenant,  agree  to  set 
apart  and  pay  the  whole  or  a  portion  of 
the  annual  profits  of  that  estate  to  trustees 
for  certain  objects,  it  would  create  a  lien  in 
the  nature  of  a  trust  on  those  profits  against 
him  and  all  persons  claiming  as  volunteers 
or  with  notice  under  him.  2  Cox,  Ch.  253 : 
8.  c,  1  Ves.  Ch.  477;  3  Brown,  Ch!  531,  538. 

9.  Profits  expected  to  arise  from  merchan- 
dise employed  in  maritime  commerce  are  a 
proper  subject  of  insurance  in  England  and 
in  the  United  States.  1  Arnould,  Ins.  204; 
Marshall,  Ins.  b.  1,  ch.  3,^8;  3  Kent,  Comm. 
271 ;  16  Pick.  Mass.  399;  5  Mete.  Mass.  391; 
1  Sumn.  C.  C.  451.  So  in  Italy,  Targa,  cap. 
xliii.  no.  5;  Portugal,  Santerna,  part  iii.  no. 
40:  and  the  Han se  Towns.  2  Magnus,  213  ; 
Benecke,  Ass.  chap.  1,  sect.  10,  vol.  1,  p. 
170.  But  in  France,  Code  de  Comm.  art. 
347,  Holland,  Bynkershoeck,  Quasst.  Priv. 


Jur.  lib.  iv.  c.  5,  and  in  Spain,  except  to 
certain  distant  parts,  Ordinanzas  de  Bilboa, 
ch.  xxii.  art.  7,  8,  11,  it  is  illegal  to  insure 
expected  profits.  Such  insurance  is  required 
by  the  course  and  interest  of  trade,  and 
has  been  found  to  be  greatly  conducive  to 
its  prosperity.  3  Kent,  Comm.  2Z1 ;  Law- 
rence, J.,  2  East.  544;  1  Arnould,  Ins.  204, 
205.  Sotnetimes  the  profits  are  included  in 
a  valuation  of  the  goods  from  which  they  are 
expected  to  arise ;  sometimes  they  are  insured 
as  profits.  1  Johns.  N.  Y.  433  ;  3  Pet.  222 ; 
1  Sumn.  C.  C.  451 ;  6  Ell.  &  B.  312 ;  2  East, 
544  ;  6  id.  316.  They  may  be  insured  equally 
by  valued  and  by  open  policies.  1  Arnould, 
Ins.  205;  3  Campb.  267.  But  it  is  more  ju- 
dicious to  nuike  the  valuation.  1  J(>hns.  N.  Y. 
433;  3  Kent,  Comm.  273.  The  insured  must 
have  a  real  interest  in  the  goods  from  which 
the  profits  are  expected,  3  Kent,  Comm.  271; 
but  he  need  not  have  the  absolute  property 
in  them.  16  Pick.  Mass.  397,  400;  13  Mass. 
61. 

10.  A  trustee,  executor,  or  guardian,  or 
other  person  standing  in  a  like  relation  to 
another,  may  be  made  to  account  for  and 
pay  all  the  profits  made  by  him  in  any  of 
the  concerns  of  his  trust,  as  by  embarking 
the  trust  funds  in  trade.  1  Story,  Eq.  Jur.  g 
465;  2  Mylne  &  K.  Ch.  66,  672,  note;  1  Ves. 
Ch.  32,  41,  42,  43,  in  note  ;  11  id.  61 ;  2  Ves. 
&  B.  Ch.  315;  1  Jac.  &  W.  Ch.  122,  131 ;  1 
Turn.  &  R.  Ch.  379;  2  Williams,  Exec.  1311; 

I  Serg.  &  R.  Penn.  245;  1  Term,  295;  1 
Maule  &  S.  412;  2  Brown,  Ch.  400  ;  10  Pick. 
Mass.  77. 

The  expected  profits  of  a  special  contract 
may  be  reckoned  as  a  part  of  the  damages 
for  a  failure  to  fulfil  it,  where  it  appears 
that  such  profits  would  have  accrued  from 
the  contract  itself  as  the  direct  and  imme- 
diate consequence  of  its  fulfilment.  13  How. 
307,  344;  7  Cush.  Mass.  516,  522,  523;  8 
Exch.  401 ;  16  N.  Y.  489 ;  7  Hill,  N.  Y.  61 ; 
Maine,  Damages,  15, 16 ;  2  C.  B.  n.  s.  592.  But 
where  the  profits  are  such  only  as  were  ex- 
pected to  result  from  other  independent  bar- 
gains actually  entered  into  on  the  faith  of 
such  special  contract,  or  for  the  purposes  of 
fulfilling  it,  or  are  contingent  upon  future 
bargains  or  speculations  or  states  of  the 
market,  they  are  too  remote  and  uncertain  to 
be  relied  upon  as  a  proper  basis  of  damages, 
13  How.  307,  344;  38  Me.  361 ;  7  Cush.  Mass. 
516,  522,  523;  7  Hill,  N.  Y.  61;  13  C.  B. 
353;  Chitty,  Contr.  ed.  1860,  980,  981,  notes. 
See,  also,  21  Pick.  Mass.  378,  381  ;  3  Cush. 
Mass.  201,  205  ;  1  Pet.  C.  C.  85,  94 ;  3  Wasli. 
C.  C.  184;  1  Pet.  172;  1  Yeates,  Penn.  36; 

II  Serg.  &  R.  Penn.  445. 

11.  A  purchaser  is  entitled  to  the  profits 
of  the  estate  from  the  time  fixed  upon  for 

I  completing  the  contract,  whether  he  does  or 
I  does  not  take  possession  of  the  estate.  2 
Sugden,  Vend.  7th  Am.  ed.  ch.  16,  sect.  1, 
art.  1;  6  Dan.  Ky.  298  :  3  Gill.  Md.  82.  See 
6  Ves.  Ch.  143, 352 ;  12  Mees.  &  W.  Exch.  761. 

Under  what  circumstances  a  participation  or 
sharing  in  profits  will  make  one  a  partner  in 


PROGRESSION 


384  PROMISE  OF  MARRIAGE 


a  trade  or  adventure,  see  Partners;  Part-  \ 

NERSHIP. 

PROGRESSION  (Lat.  progressio;  from 
pro  and  gredior,  to  go  forward).  That  state  of  j 
a  business  which  is  neither  the  commencement 
nor  the  end.  Some  act  done  after  the  matter 
has  commenced  and  before  it  is  completed. 
Piowd.  343.   See  Consummation;  Inception. 

PROHIBITION  {Lat.  prohibition ;  from  i 
j9ro  and  habeo,  to  hold  back).  In  Practice.  ' 
The  name  of  a  writ  issued  by  a  superior  court, 
directed  to  the  judge  and  parties  of  a  suit  in  an 
inferior  court,  commanding  them  to  cease  from 
the  prosecution  of  the  same,  upon  a  sugges- 
tion that  the  cause  originally,  or  some  collate- 
ral matter  arising  therein,  does  not  belong  to 
that  jurisdiction,  but  to  the  cognizance  of  some 
^ther  court.  3  Sharswood,  Blackst.  Comm. 
112;  Comyns,  Dig.;  Bacon,  Abr. ;  Saund. 
Index;  Viner,  Abr.;  2  Sellon,  Pract.  308; 
Ayliffe,  Parerg.  434;  2  II.  Blackst.  533. 

The  writ  of  prohibition  may  also  be  issued 
when,  having  jurisdiction,  the  court  has  at- 
tempted to  proceed  by  rules  differing  from 
those  which  ought  to  be  observed,  Buller, 
Nisi  P.  219,  or  when,  by  the  exercise  of  its 
jurisdiction,  the  inferior  court  would  defeat 
a  legal  right.    2  Chitty,  Pract.  355. 

PROHIBITIVE  IMPEDIMENTS. 
Those  impediments  to  a  marriage  which  are 
only  followed  by  a  punishment,  but  do  not 
render  the  marriage  null.  Bowyer,  Mod. 
Civ.  Law,  44. 

PROJET.  In  International  Law. 
The  draft  of  a  proposed  treaty  or  convention. 

PROLES  (Lat.).  Progeny;  such  issue  as 
proceeds  from  a  lawful  marriage ;  and,  in  its 
enlarged  sense,  it  signifies  any  children. 

PROLETARIUS.  In  Civil  Law.  One 
who  had  no  property  to  be  taxed,  and  paid 
a  tax  only  on  account  of  his  children  {proles) ; 
a  person  of  mean  or  common  extraction. 
The  word  has  become  Frenchified,  proUtaire 
signifying  one  of  the  common  people. 

PROLICIDE  (Lat.  proles,  offspring, 
cedere,  to  kill).  In  Medical  Jurispru- 
dence. A  word  used  to  designate  the 
destruction  of  the  human  offspring.  Jurists 
divide  the  subject  into  foeticide,  or  the  de- 
struction of  the  foetus  in  utero,  and  infanti- 
cide, or  the  destruction  of  the  new-born  in- 
fant.   Ryan,  Med.  Jur.  137. 

PROLIXITY.  The  unnecessary  and  su- 
perfluous statement  of  facts  in  pleading  or 
in  evidence.  This  will  be  rejected  as  imper- 
tinent.   7  Price,  Exch.  278,  n. 

PROLOCUTOR  (Lat.  pro  and  loquor,  to 
speak  before).  In  Ecclesiastical  Law. 
The  president  or  chairman  of  a  convocation. 

PROLONGATION.  Time  added  to  the 
duration  of  something. 

When  the  time  is  lengthened  during  which 
a  party  is  to  perform  a  contract,  the  sureties 
of  such  a  party  are,  in  general,  discharged, 
unless  the  sureties  consent  to  such  prolon- 
l2;ation.    See  Giving  Time. 


In  the  civil  law  the  prolongation  of  time 
to  the  principal  did  not  discharge  the  surety. 
Dig.  2.  14.  27  ;  12.  1.  40. 

PROLYTiE  (Lat.).    In  Roman  Law. 

The  term  used  to  denominate  students  of  law 
during  the  fifth  and  last  year  of  their  studies. 
They  were  left  during  this  year  very  much 
to  their  own  direction,  and  took  the  name 
{TTpoAvToi)  prolytae  omnino  soluti.  They 
studied  chiefly  the  Code  and  the  imperial 
constitutions.  See  Dig.  Pref.  Prim.  Const. 
2 ;  Calvinus,  Lex. 

PROMATERTERA  (Lat.).  Great  ma- 
ternal  aunt ;  the  sister  of  one's  grandmother. 
Inst.  3.  6.  3  ;  Dig.  38.  10.  10.  14  et  seq, 

PROMISE  ( Lat.  promitto,  to  put  forward) 
An  engagement  by  which  the  promisor  con- 
tracts towards  another  to  perform  or  do  some- 
thing to  the  advantage  of  the  latter. 

When  a  promise  is  made,  all  that  is  said 
at  the  time  in  relation  to  it  must  be  considered : 
if,  therefore,  a  man  promises  to  pay  all  he 
owes,  accompanied  by  a  denial  that  he  owes 
any  thing,  no  action  will  lie  to  enforce  such 
a  promise.    15  Wend.  N.  Y.  187. 

And  when  the  promise  is  conditional,  the 
condition  must  be  performed  before  it  becomes 
of  binding  force.  7  Johns,  N.  Y.  36.  See 
Condition  ;  Contracts  ;  5  East,  17 ;  2  Leon. 
224 ;  4  Barnew.  &  Aid.  595. 

PROMISE  OF  MARRIAGE.    A  con. 

tract  mutually  entered  into  by  a  man  and  . 
a  woman  that  they  will  marry  each  other. 
Every  marriage  is  necessarily  preceded  by  ^ 
an  express  or  implied  contract  of  this  de«  ; 
scription,  as  a  wedding  cannot  be  agreed  upon  i 
and  celebrated  at  one  and  the  same  instant. 
Addison,  Contr.  4th  ed.  676.  ; 

2.  A  promise  of  marriage  is  not  to  be 
likened  to  an  actual  marriage.    The  latter,  \ 
as  has  been  seen  in  the  article  on  marriage,  ' 
is  not  a  contract,  but  a  legal  relation ;  while 
the  former  is  an  executory  contract  in  the  i 
strict  sense  of  the  term,  and  governed  in  gene-  | 
ral  by  the  ordinary  law  of  contracts,  though  ■ 
it  has  certain  peculiarities  of  its  own.  As  ia  , 
other  contracts,  the  parties  must  be  snijiiris,  \ 
If,  therefore,  the  man  or  the  woman  be  an 
infant,  or  labor  under  any  other  legal  dis- 
ability, he  or  she  will  not  be  bound  by  a 
promise  of  marriage ;  but  if  one  of  the 
parties  be  an  infant  and  the  other  an  adult, 
the  promise  will  be  binding  upon  the  latter. 
Strange,  937  ;  5  Cow.  N.  Y.  475  ;  7  id.  22; 
5  Sneed,  Tenn.  659  ;  1  D.  Chipm.  Vt.  252. 
Neither  does  it  follow,  as  we  shall  see  pre- 
sently, that  a  promise  of  marriage  is  not 
binding  because  the  parties  to  the  promise 
cannot  form  a  valid  marriage:  they  may  be 
competent  to  contract,  though  not  competent 
to  marry. 

3*  There  must  be  a  legal  and  valid  consi- 
deration ;  but  as  there  are  always  mutual 
promises,  they  are  a  sufficient  consideration 
for  each  other.  There  must  be  a  meeting  of 
the  minds  of  the  parties,  i.e.  a  request  ot 
proposition  on  the  one  side,  and  an  assent  oe 


PROMISE  OF  MARRIAGE 


385 


PROMISE  OF  MARRIAGE 


the  other.  If  the  communications  between 
the  parties  are  verbal,  the  only  questions 
which  usually  arise  relate  to  evidence  and 
proof.  The  very  words  or  time  or  manner 
of  the  promise  need  not  be  proved,  but  it 
may  be  inferred  from  the  conduct  of  the 
parties,  and  from  the  circumstances  which 
usually  attend  an  ertgagement  to  marry :  as, 
visiting,  the  understanding  of  friends  and 
lelations,  preparations  for  marriage,  and  the 
reception  of  the  man  by  the  woman's  family 
as  a  guitor.  3  Salk.  16  ;  15  Mass.  1 ;  2  Dow 
&  0.  282;  2  Penn.  St.  80;  13  id.  331;  1 
Ohio  St.  26 ;  2  Carr.  &  P.  553  ;  1  Stark.  82  ; 
6  Cow.  N.  Y.  254 ;  26  Conn.  398 ;  4  Zabr. 
N.  J.  291;  1  Parsons,  Contr.  4th  ed.  545. 
When  the  parties  are  at  a  distance  from  each 
other,  and  the  offer  is  made  by  letter,  it 
will  be  presumed  to  continue  for  a  reasonable- 
time  for  the  consideration  of  the  party  ad- 
dressed ;  and  if  accepted  within  a  reasonable 
time,  and  before  it  is  expressly  revoked,  the 
contract  is  then  complete.  1  Parsons,  Contr. 
b.  2,  c.  2. 

4.  A  promise  of  marriage  is  not  within 
the  third  clause  of  the  fourth  section  of  the 
Statute  of  Frauds,  relating  to  agreements 
made  upon  consideration  of  marriage ;  but 
if  not  to  be  performed  within  a  year,  it  is 
within  the  fifth  clause,  and  must,  therefore, 
be  in  writing  in  order  to  be  binding.  1 
Strange,  34;  1  Ld.  Raym.  387  ;  2  N.  H.  515. 

If  no  time  be  fixed  and  agreed  upon  for 
the  performance  of  the  contract,  it  is,  in  con- 
templation of  law,  a  contract  to  marry  within 
a  reasonable  period  after  request,  and  either 
party  may  call  upon  the  other  to  fulfil  the  en- 
gagement, and  in  case  of  default  may  bring  an 
action  for  damages.  If  both  parties  lie  by  for 
an  unreasonable  period,  and  do  not  treat  the 
contract  as  continuing,  it  will  be  deemed  to 
be  abandoned  by  mutual  consent.  If  the 
parties  are  somewhat  advanced  in  years,  and 
the  marriage  is  appointed  to  take  place  at  a 
remote  period  of  time,  the  contract  would  be 
voidable  at  the  option  of  either  party,  as  in 
restraint  of  marriage.  Addison,  Contr.  4th 
ed.  678. 

5.  The  defences  which  may  be  made  to 
an  action  for  a  breach  of  promise  of  marriage 
are,  of  course,  various  ;  but  it  is  only  neces- 
sary to  notice  in  this  place  such  as  are  in 
some  degree  peculiar.  Thus,  if  either  party 
has  been  convicted  of  an  infamous  crime,  or 
has  sustained  a  bad  character  generally,  and 
the  other  was  ignorant  of  it  at  the  time  of 
the  engagement,  or  if  the  woman  has  com- 
mitted fornication,  and  this  was  unknown  at 
the  time  to  the  man  who  promised  to  marry  her, 
or  if  the  woman  is  deeply  involved  in  debt 
at  the  time  of  the  engagement,  and  the  fact 
is  kept  secret  from  her  intended  husband, 
Addison,  Contr.  4th  ed.  680;  but  see  1  Ell, 
B.  <fe  E.  7,  96,  or  if  false  representations  are 
made  by  the  woman,  or  by  her  friends  in  col- 
lusion with  her,  as  to  her  circumstances  and 
situation  in  life  and  the  amount  of  her  for- 
tune and  marriage  portion,  either  of  these 
will  constitute  a  good  defence.    1  Carr.  &  P. 

Vol.  IL— 25 


350,  529;  3  Esp.  236;  44  Me.  164;  1  Carr 
&  K.  463  ;  3  Bingh.  n.  c.  54 ;  Holt,  Nisi  P. 
151 ;  5  La.  Ann.  316  ;  18  111.  44.    But  it  haa 

been  held  not  to  be  a  defence  that  the  plain- 
tiff at  the  time  of  the  engagement  was 
under  an  engagement  to  marry  another  per- 
son, unless  the  prior  engagfimont  was  fraudu- 
lently concealed.  1  Ell.  B.  &  E.  796.  But 
see  1  Parsons,  Contr.  550. 

6.  If  after  the  engagement  either  party 
is  guilty  of  gross  misconduct,  inconsistent 
with  the  char/acter  which  he  or  she  was  fairly 
presumed  to  possess,  the  other  party  will  Vje 
released.  4  Esp.  256.  If  the  engagement 
is  made  without  any  agreement  respecting 
the  woman's  property,  and  she  afterwards 
disposes  of  any  considerable  portion  of  it 
without  her  intended  husband's  knowledge 
and  consent,  or  if  she  insists  upon  having 
her  property  settled  to  her  own  separate  use, 
it  is  said  that  this  will  justify  him  in  break- 
ing off  the  engagement.  Addison,  Contr. 
4th  ed.  680.  So,  if  the  situation  and  posi- 
tion of  either  of  the  parties  as  regards  his 
or  her  fitness  for  the  marriage  relation  is 
materially  and  permanently  altered  for  the 
worse  (whether  with  or  without  the  fault  of 
such  party)  after  the  engagement,  this  will 
release  the  other  party.  Thus,  if  one  of  the 
parties  is  attacked  by  blindness,  or  by  an 
incurable  disease,  or  any  malady  calculated 
permanently  to  impair  and  weaken  the  con- 
stitution, this  will  dispense  with  the  perform- 
ance of  the  contract  on  the  part  of  the  other 
party.  Addison,  Contr.  4th  ed.  681 ;  Pothier, 
Tr.  du  Mar.  no.  1,  60,  61,  63.  Whether  it 
will  also  constitute  a  defence  for  the  party 
afflicted,  is  a  question  of  much  difficulty.  In 
a  recent  English  case,  where  it  appeared  that 
the  defendant  since  the  engagement  had 
become  afflicted  with  consumption,  whereby 
he  was  rendered  incapable  of  marriage  with- 
out great  danger  of  his  life,  it  was  held,  by 
six  judges  against  five,  that  this  constituted 
no  defence;  though  it  seemed  to  be  agreed 
that  it  would  have  been  a  good  defence  for  the 
other  party.    1  Ell.  B.  &  E.  746,  765. 

T^.  The  common  opinion  that  an  agreement 
to  marry  between  persons  incapable  of  form- 
ing a  valid  marriage  is  necessarily  void,  is 
erroneous.  If  the  disability  pertains  only  to 
one  of  the  parties,  and  the  other  party  was 
ignorant  of  it  at  the  time  of  the  engagement, 
it  will  constitute  no  defence  for  the  former. 
Thus,  if  a  man  who  already  has  a  wife  living 
makes  a  promise  of  marriage  to  another 
woman  who  is  ignorant  of  the  former  mar- 
riage, he  will  be  liable  in  damages  for  a 
breach  of  his  promise,  although  a  perform- 
ance is  impossible.  2  Carr.  &  P.  553  ;  7  C. 
B.  999  ;  5  Exch.  775  ;  29  Barb.  N.  Y.  22. 

In  an  action  for  breach  of  promise  of  mar 
riage,  the  court  will  not  interfere  with  the 
discretion  of  the  jury  as  to  the  amount  of 
damages,  unless  there  has  been  some  obvious 
error  or  misconception  on  their  part,  or  it  is 
made  apparent  that  they  have  been  actuated 
by  improper  motives.  1  C.  B.  n.  s.  660 ;  1 
Younge  &  J.  Exch.  477 ;  26  Conn.  398.  And 


PROMISEE 


386 


PROMUTUUM 


if  the  defendant  has  undertaken  to  rest  his 
defence,  in  whole  or  in  part,  on  the  general 
bad  character  or  the  criminal  conduct  of  the 
plaintiff,  and  fails  altogether  in  the  proof,  the 
jury  may  take  this  into  consideration  as  en- 
hancing the  damages.  6  Cow.  N.  Y.  254; 
27  Mo.  600.  Where  such  an  action  is  brought 
by  a  woman,  it  seems  that  she  may  prove,  in 
aggravation  of  damages,  that  the  defendant, 
under  color  of  a  promise  of  marriage,  has 
seduced  her.  8  Barb.  N.  Y.  323  ;  2  Ind.  402  ; 
3  Mass.  73.  But  see,  contra,  2  Penn.  St.  80, 
commented  on  in  11  id.  316  ;  1  R.  I.  493. 

PROMISEE.  A  person  to  whom  a  pro- 
mise has  been  made. 

In  general,  a  promisee  can  maintain  an 
action  on  a  promise  made  to  him  ;  but  when 
the  consideration  moves  not  from  the  pro- 
misee, but  some  other  person,  the  latter, 
and  not  the  promisee,  has  a  cause  of  action, 
because  he  is  the  person  for  whose  use  the 
contract  was  made.  Latch,  272;  Popli.  81 ; 
Croke  Jac.77;  lT.Raym.271,  368;4Barnew. 
&  Ad.  435  ;  1  Nev.  &  M.  303  ;  Cowp.  437  ; 
Dougl.  142.  But  see  Garth.  5  ;  2  Ventr.  307 ; 
9  Mees.  &  W.  Exch.  92,  96. 

PROMISES.  When  a  defendant  has 
been  arrested,  he  is  frequently  induced  to 
make  confessions  in  consequence  of  promises 
made  to  him  that  if  he  will  tell  the  truth 
he  will  be  either  discharged  or  favored :  in 
such  a  case,  evidence  of  the  confession  cannot 
be  received,  because,  being  obtained  by  the 
flattery  of  hope,  it  comes  in  so  questionable 
a  shape,  when  it  is  to  be  considered  evidence 
of  guilt,  that  no  credit  ought  to  be  given  to 
it.  1  Leach,  Cr.  Cas.  263.  This  is  the  prin- 
ciple ;  but  what  amounts  to  a  promise  is  not 
BO  easily  defined.    See  Confession. 

PROMISOR.  One  who  makes  a  pro- 
mise. 

The  promisor  is  bound  to  fulfil  his  pro- 
mise, unless  when  it  is  contrary  to  law,  as  a 
promise  to  steal  or  to  commit  an  assault  and 
battery ;  when  the  fulfilment  is  prevented  by 
the  act  of  God,  as  where  one  has  agreed  to 
teach  another  drawing  and  he  loses  his  sight, 
so  that  he  cannot  teach  it ;  when  the  pro- 
misee prevents  the  promisor  from  doing  what 
he  agreed  to  do ;  when  the  promisor  has 
been  discharged  from  his  promise  by  the  pro- 
misee ;  when  the  promise  has  been  made 
without  a  sufficient  consideration  ;  and  per- 
haps in  some  other  cases. 

PROMISSORY  NOTE.  A  written 
promise  to  pay  a  certain  sum  of  money,  at  a 
future  time,  unconditionally.  7  Watts  &  S. 
Penn.  264  ;  2  Ilumphr.  Tenn.  143;  10  Wend. 
N.  y.  075;  1  Ala.  263  ;  7  Mo.  42  ;  2  Cow.  N. 
Y.  536  ;  6  N.  II.  364;  7  Vern.  Ch.  22. 

^8.  A  promissory  note  difi'ers  from  a  mere 
acknowledgment  of  debt  without  any  promise 
to  pay,  as  when  the  debtor  gives  his  creditor 
an  I  0  U.  See  2  Yerg.  Tenn.  50;  15  Mees. 
&  W.  Exch.  23.  But  see  2  Ilumphr.  Tenn. 
143  ;  6  Ala.  n.  s.  373.  In  its  form  it  usually 
contains  a  promise  to  pay,  at  a  time  therein 
expreswed,  a  sum  of  money  to  a  certain  per- 


son tlierein  named,  or  to  his  order,  for  value 
received.  It  is  dated  and  signed  by  the 
maker.    It  is  never  under  seal. 

He  who  makes  this  promise  is  called  the 
maker,  and  he  to  whom  it  is  made  is  the 
payee.    Bayley,  Bills,  1  ;  3  Kent,  Comm.  46. 

3.  Although  a  promissory  note,  in  its  ori- 
ginal shape,  bears  no  resemblance  to  a  bill 
of  exchange,  yet  when  indorsed  it  is  exactly 
similar  to  one ;  for  then  it  is  an  order  by  the 
indorser  of  the  note  upon  tlie  maker  t  -  pay 
the  indorsee.  The  indorser  is  as  it  were 
the  drawer ;  the  maker,  the  acceptor ;  and 
the  indorsee,  the  payee.  4  Burr.  669;  4 
Term,  148 ;  3  Burr.  1224. 

Most  of  the  rules  applicable  to  bills  of  ex- 
change equally  afi'ect  promissory  notes.  No 
particular  form  is  requisite  to  these  instru- 
ments :  a  promise  to  deliver  the  money,  or  to 
be  accountable  for  it,  or  that  the  payee  shall 
have  it,  is  sufficient.    Chitty,  Bills,  53,  54. 

4.  There  are  two  principal  qualities  essen- 
tial to  the  validity  of  a  note :  Jirst,  that  it  be 
payable  at  all  events,  not  dependent  on  any 
contingency,  20  Pick.  Mass.  132 ;  22  id.  132, 
nor  payable  out  of  any  particular  fund.  3  J. 
J.  Marsh.  Ky.  170,  542  ;  5  Ark.  441 ;  2Blackf. 
Ind.  48;  1  Bibb,  Ky.  503;  9  Miss.  393;  3 
Pick.  Mass.  541 ;  4  Hawks,  No.  C.  102 ;'  5 
How.  382.  Second,  it  is  required  that  it 
be  for  the  payment  of  money  only,  10  Serg . 
&  R.  Penn.  94;  4  Watts,  Penn.  400  ;  11  Vt. 
268,  and  not  in  bank-notes;  though  it  has 
been  held  difi'erently  in  the  state  of  New 
York.    9  Johns.  N.  Y.  120 ;  19  id.  144. 

5.  A  promissory  note  payable  to  order  or  ' 
bearer  passes  by  indorsement,  and,  although 
a  chose  in  action,  the  holder  may  bring  suit 
on  it  in  his  own  name.    Although  a  simple 
contract,  a  sufficient  consideration  is  implied  ' 
from  the  nature  of  the  instrument.    See  5  . 
Comyns,  Dig.  133,  n.,  151,  472;  Smith,  Merc.  - 
Law,  b.  3,  c.  1 ;  4  Barnew.  &  C.  235  ;  1  Carr.  ] 
&  M.  16.    See  Bill  of  Exchange  ;  Indorse-  \ 
MENT  ;  Notice.  \ 

PROMOTERS.  In  English  Law.  \ 
Those  who,  in  popular  or  penal  actions,  prose-  f 
cute  in  their  own  names  and  the  king's,  \. 
having  part  of  the  fines  and  penalties. 

PROMULGATION.  The  order  given 
to  cause  a  law  to  be  executed,  and  to  make 
it  public:  it  difiers  from  publication.  1 
Sharswood,  Blackst.  Comm.  45  ;  Stat.  6  Hen, 
VI.  c.  4. 

With  regard  to  trade,  unless  previous  notice 
can  be  brought  home  to  the  party  charged 
with  violating  their  provisions,  laws  are  to 
be  considered  as  beginning  to  operate  in  the 
respective  collection  districts  only  from  the 
time  they  are  received  from  the  proper  depart* 
ment  bv  the  collector.  Paine,  C.  C.  32.  See 
Paine,  C.  C.  23. 

PROMUTUUM  (Lat.).   In  Civil  Law. 

A  quasi  contract,  by  which  he  who  re- 
ceives a  certain  sum  of  money,  or  a  certain 
quantity  of  fungi-ble  things,  which  have  been 
paid  to  him  through  mistake,  contracts  to- 
wards the  payer  the  obligation  of  returning 


PRONEPOS 


387 


PROPERTY 


him  as  much.  Pothier,  de  I'Usure,  pt.  3,  s. 
1,  a.  1. 

This  contract  is  called  jjromutKum,  because  it 
has  much  resemblance  to  that  of  mntnuni.  This 
resemblance  consists  in  this  :  Jiiat,  that  in  both  a 
sum  of  money  or  some  fungible  things  are  requin  d  ; 
ttecond,  that  in  both  there  must  be  a  transfer  of  the 
property  in  the  thing  ;  third,  that  in  both  there 
must  be  returned  the  same  amount  or  quantity  of 
the  thing  rc'-eived.  But,  though  there  is  this  gene- 
ral resemblance  between  the  two,  the  mutuunt  differs 
essentially  from  t\i(>  promutuum.  The  former  is  the 
actual  contract  of  the  parties,  made  expressly,  but 
the  latter  is  a  quasi  contract,  which  is  the  effect  of 
%n  error  or  mistake.    1  Bouvier,  Inst.  n.  1125, 1126. 

PRONEPOS  (Lat.).  Great-grandson. 

PRONEPTIS  (Lat.).  A  niece's  daughter. 
A  great-granddaughter.    Ainsworth,  Diet. 

PRONURUS  (Lat.).  The  wife  of  a  great- 
grandson. 

PROOF.  In  Practice.  The  conviction 
or  persuasion  of  the  mind  of  a  judge  or  jury, 
by  the  exhibition  of  evidence,  of  the  reality 
of  a  fact  alleged.  Thus,  to  prove  is  to  deter- 
mine or  persuade  that  a  thing  does  or  does 
not  exist.  8  Toullier,  n.  2 ;  Ayliff'e,  Parerg. 
442 ;  2  Phillipps,  Ev.  44,  n.  a.  Proof  is  the 
perfection  of  evidence;  for  without  evidence 
there  is  no  proof,  although  there  may  be  evi- 
dence which  does  not  amount  to  proof :  for 
example,  if  a  man  is  found  murdered  at  a  spot 
where  another  has  been  seen  walking  but  a 
short  time  before,  this  fact  will  be  evidence 
to  show  that  the  latter  was  the  murderer,  but, 
standing  alone,  will  be  very  far  from  proof 
of  it. 

Ayliffe  defines  judicial  proof  to  be  a  clear 
and  evident  declaration  or  demonstration  of 
a  matter  which  was  before  doubtful,  conveyed 
in  a  judicial  manner  by  fit  and  proper  ar- 
guments, and  likewise  by  all  other  legal 
methods :  first,  by  proper  arguments,  such  as 
conjectures,  presumptions,  indicia,  and  other 
adminicular  ways  and  means ;  secondly, 
by  legal  methods,  or  methods  according  \o 
law,  such  as  witnesses,  public  instruments, 
and  the  like.  Aylifi'e,  Parerg.  442;  Aso  & 
M.  Inst.  b.  3,  t.  7. 

PROPER.  That  which  is  essential,  suit- 
able, adapted,  and  correct. 

Congress  is  authorized,  by  art.  1,  s.  8,  of 
the  constitution  of  the  United  States,  "  to 
make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  fore- 
going powers,  and  all  other  powers  vested  by 
this  constitution  of  the  United  States,  in  any 
department  or  officer  thereof." 

PROPERTY.  The  right  and  interest 
which  a  man  has  in  lands  and  chattels  to  the 
exclusion  of  others.  6  Binn.  Penn.  98 ;  4 
Pet.  511 ;  17  Johns.  N.  Y.  283  ;  11  East,  290, 
618;  14?d.  370. 

2.  All  things  are  not  the  subject  of  pro- 
perty: the  sea,  the  air,  and  the  like  cannot 
be  appropriated  ;  every  one  may  enjoy  them, 
but  he  has  no  exclusive  right  in  them.  When 
things  are  fully  our  own,"  or  when  all  others 
are  excluded  from  meddling  with  them  or 
from  interfering  about  them,  it  is  plain  that 


no  person  besides  the  proprietor,  who  haa 
this  exclusive  right,  can  have  any  claim 
either  to  use  them,  or  to  hinder  him  from  dis- 
posing of  them  as  he  pleases  :  so  that  property, 
considered  as  an  exclusive  right  to  things, 
contains  n(jt  only  a  right  to  use  those  things, 
but  a  right  to  dispose  of  them,  eitlier  by  ex- 
changing them  for  other  things,  or  by  giving 
them  away  to  any  other  person  without  any 
consideration,  or  even  throwing  them  away. 
Rutherforth,  Inst.  20  ;  Domat,  liv.  prel.  tit.  3  ; 
Pothier,  des  Choses;  18  Viner,  Abr.  03; 
Comyns,  Dig.  Bieiis.  See,  also,  2  Barnew.  & 
C.  281  ;  9  id.  396  ;  3  Dowl.  &  R.  394 ;  1  Carr. 
&  M.  39  ;  4  Call,  Va.  472  ;  18  Ves.  Ch.  193  ; 
6  Bingh.  630. 

3.  Property  is  said  to  be  real  and  personal 
property.    See  those  titles. 

It  is  also  said  to  be,  when  it  relates  to  goods 
and  chattels,  absohde  or  qualified.  Absolute 
property  is  that  which  is  our  own  without 
any  qualification  whatever:  as,  when  a  man 
is  the  owner  of  a  watch,  a  book,  or  other 
inanimate  thing,  or  of  a  horse,  a  sheep,  or 
other  animal  which  never  had  its  natural 
liberty  in  a  wild  state. 

Qualified  property  consists  in  the  right 
which  men  have  over  wild  animals  which 
they  have  reduced  to  their  own  possession, 
and  which  are  kept  subject  to  their  power: 
as,  a  deer,' a  buffalo,  and  the  like,  which  are 
his  own  while  he  has  possession  of  them,  but 
as  soon  as  his  possession  is  lost  his  property 
is  gone,  unless  the  animals  go  animo  revev' 
tendi.  2  Sharswood,  Blackst.  Comm.  396 ; 
3  Binn.  Penn.  546. 

4.  But  property  in  personal  goods  may 
be  absolute  or  qualified  without  any  relation 
to  the  nature  of  the  subject-matter,  but  sim- 
ply because  more  persons  than  one  have  an 
interest  in  it,  or  because  the  right  of  property 
is  separated  from  the  possession.  A  bailee 
of  goods,  though  not  the  owner,  has  a  quali- 
fied property  in  them  ;  while  the  owner  has 
the  absolute  property.  See  Bailee  ;  Bail- 
ment. 

Personal  property  is  further  divided  into 
property  in  possession,  and  property  or  choses 
in  action.    See  Chose  in  Action. 

Property  is  again  divided  into  corporeal 
and  incorporeal.  The  former  comprehends 
such  property  as  is  perceptible  to  the  senses, 
as  lands,  houses,  goods,  merchandise,  and 
the  like ;  the  latter  consists  in  legal  rights, 
as  choses  in  action,  easements,  and  the  like. 

5.  Property  is  lost  by  the  act  of  man  by — 
first,  alienation  ;  but  in  order  to  do  this  the 
owner  must  have  a  legal  capacit}'^  to  make  a 
contract ;  second,  by  the  voluntary  abandon- 
ment of  the  thing;  but  unless  the  abandon- 
ment be  purely  voluntary  the  title  to  the 
property  is  not  lost :  as,  if  things  be  thrown 
into  the  sea  to  save  the  ship,  the  right  is  not 
lost.  Pothier,  n.  270;  3  Toullier,  n.  346. 
But  even  a  voluntary  abandonment  does  not 
deprive  the  former  owner  from  taking  posses- 
sion of  the  thing  abandoned  at  any  time 
before  another  takes  possession  of  ir. 

It  is  lost  by  operation  of  law— first,  by  the 


PROPINQUITY 


388       PROROGATED  JURISDICTION 


forced  sale,  under  a  lawful  process,  of  the 
property  of  a  debtor  to  satisfy  a  judgment, 
sentence,  or  decree  rendered  against  him,  to 
compel  him  to  fulfil  his  obligations ;  second, 
by  confiscation,  or  sentence  of  a  criminal 
court ;  third,  by  prescription  ;  fourth,  by  civil 
death  ;  fifth,  by  capture  of  a  public  enemy. 
It  is  lost  hxj  the  act  of  God,  as  in  the  case  of 
the  death  of  slaves  or  animals,  or  in  the  total 
destruction  of  a  thing:  for  example,  if  a  house 
be  swallowed  up  by  an  opening  in  the  earth 
during  an  earthquake. 

6.  It  is  proper  to  observe  that,  in  some 
cases,  the  moment  that  the  owner  loses  his 
possession  he  also  loses  his  property  or  right 
in  the  thing :  animals  fierce  naturce,  as  men- 
tioned above,  belong  to  the  owner  only  while 
he  retains  the  possession  of  them,  feut,  in 
general,  the  loss  of  possession  does  not  im- 
pair the  right  of  property,  for  the  owner  may 
recover  it  within  a  certain  time  allowed  by 
law.    See,  generally,  Bouvier,  Inst.  Index. 

PROPINQUITY  (Lat.).  Kindred; 
parentage.  See  Affinity  ;  Consanguinity  ; 
Next  of  Kin. 

PROPIOR  SOBRINA,  PROPIOR 
SOBRINO  (Lat.).  The  son  or  daughter  of 
a  great-uncle  or  great-aunt  on  the  father's  or 
mother's  side.    Calvinus,  Lex. 

PROPIOS,  PROPRIOS.  In  Spanish 
Law.  Certain  portions  of  ground  laid  off 
and  reserved  when  a  town  was  founded  in 
Spanish  America,  as  the  unalienable  property 
of  the  town,  for  the  purpose  of  erecting  public 
buildings,  markets,  etc.,  or  to  be  used  in  any 
other  way,  under  the  direction  of  the  munici- 
pality, for  the  advancement  of  the  revenues  or 
the  prosperity  of  the  place.  12  Pet.  442,  note. 

PROPONENT.  In  Ecclesiastical  Law. 
One  who  propounds  a  thing:  as,  "the  party 
proponent  doth  allege  and  propound.''  6 
Eccl.  356,  n. 

PROPOSAL.  An  offer.  A  formal  offer 
to  perform  some  undertaking,  stating  the 
time  and  manner  of  performance  and  price 
demanded,  or  one  or  more  of  these  particulars, 
either  directly  or  by  implied  or  direct  refer- 
ence to  some  announcement  requesting  such 
an  offer.  See  35  Ala.  n.  s.  33.  A  proposal 
of  this  character  is  not  to  be  considered  as 
subject  to  different  rules  from  any  other  offer. 
Pierce,  Am.  Railw.  Law,  364.    See  Offer. 

PROPOSITION.  An  offer  to  do  some- 
thing. Until  it  has  been  accepted,  a  propo- 
sition may  be  withdrawn  by  the  party  who 
makes  it ;  and  to  be  binding,  the  acceptance 
must  be  in  the  same  terms,  without  any 
variation.  See  Acceptance;  Offer;  1  La. 
190;  4  id.  80. 

PROPOSITUS  (Lat.).  The  person  pro- 
posed. Jn  making  genealogical  tables,  the 
person  wliose  relations  it  is  desired  to  find 
out  is  called  the  propositus. 

PROPOUND.  To  offer;  to  propose  :  as, 
the  oniifi  probandi  in  every  case  lies  upon  the 
party  avIio  propounds  a  will.  1  Curt.  Eccl. 
H37  ;  G  Eccl.  417.  I 


PROPRES.     In  French  Law.  Th«' 

term  propres  or  hiens  propres  is  used  to  de- 
note that  property  which  has  come  to  an  in- 
dividual from  his  relations,  either  in  a  direct 
line,  ascending  or  descending,  or  from  a  col- 
lateral line,  whether  the  same  have  come  by 
operation  of  law  or  by  devise.  Propres  is 
used  in  opposition  to  acquits.  Pothier,  Deg 
Propres  ;  2  Burge,  Confl.  of  Laws,  61. 

PROPRIA  PERSONA  (Lat.  in  his 
own  person).  It  is  a  rule  in  pleading  that 
pleas  to  the  jurisdiction  of  the  court  must  be 
pleaded  in  propria  persona,  because  if  pleaded 
by  attorney  they  admit  the  jurisdiction,  as 
an  attorney  is  an  oflBcer  of  the  court,  and  he 
is  presumed  to  plead  after  having  obtained 
leave,  which  admits  the  jurisdiction.  Lawes, 
Plead.  91. 

An  appearance  may  be  in  propria  persond, 
and  need  not  be  by  attorney. 

PROPRIETARY.  In  its  strict  sense, 
this  word  signifies  one  who  is  master  of  his 
actions,  and  who  has  the  free  disposition  of 
his  property.  During  the  colonial  govern- 
ment of  Pennsylvania,  William  Penn  was 
called  the  proprietary. 

The  domain  which  William  Penn  and  his 
family  had  in  the  state  was,  during  the 
revolutionary  war,  divested  by  the  act  of 
June  28,  1779,  from  that  family,  and  vested 
in  the  commonwealth  for  the  sum  which  the 
latter  paid  to  them  of  one  hundred  and  thirty 
thousand  pounds  sterling. 

PROPRIETATE  PROBANDA.  The 

name  of  a  writ.  See  De  Proprietate  Pro- 
banda. 

PROPRIETOR.    The  owner. 

PROPRIO  VIGORE  (Lat.).  By  its  own 
force  or  vigor:  an  expression  frequently  used 
in  construction.  A  phrase  is  said  to  have  a 
certain  meaning  proprio  vigore. 

PROPTER  AFFECTUM  (Lat.).  For 

or  on  account  of  some  affection  or  prejudice. 
A  juryman  may  be  challenged  propter  affeo- 
turn :  as,  because  he  is  related  to  the  party, 
has  eaten  at  his  expense,  and  the  like.  See 
Challenge. 

PROPTER  DEFECTUM  (Lat.).  On 
account  of  or  for  some  defect.  This  phrase 
is  frequently  used  in  relation  to  challenges. 
A  juryman  may  be  challenged  propter  de- 
fiectum:  as,  that  he  is  a  minor,  an  alien,  and 
the  like.    See  Challenge. 

PROPTER  DELICTUM  (Lat.).  For  or 
on  account  of  crime.  A  juror  may  be  chal- 
lenged propter  delictum  when  he  has  been 
convicted  of  an  infamous  crime.  See  Chal 
lenge. 

PROROGATED  JURISDICTION. 
In  Scotch  Law.  That  jurisdiction  which, 
by  the  consent  of  the  parties,  is  conferred 
upon  a  judge  who,  without  such  consent, 
would  be  incompetent.  Erksine,  Inst.  1.  2. 15 

At  common  law,  when  a  party  is  entitled 
to  some  privilege  or  exem|:tion  from  jurisdic- 


PROROGATION 


389 


PROTEST 


tion,  he  may  waive  it,  and  then  the  jurisdic- 
t'on  is  complete  ;  but  the  cohsent  cannot  give 
jurisdiction. 

PROROGATION  (Lat.).  Puttting  off 
to  another  time.  It  is  generally  applied  to 
the  English  parliament,  and  means  the  con- 
tinuance of  it  from  one  day  to  another:  it 
differs  from  adjournment,  which  is  a  continu- 
ftnce  of  it  from  one  day  to  another  in  the  same 
session.     1  Sharswood,  Blackst.  Comm.  18G. 

In  Civil  Law.  The  giving  time  to  do  a 
thing  beyond  the  term  prefixed.  Dig.  2.  14. 
27.  1.   See  Prolongation. 

PROSCRIBED  {Lat.  proscribo,  to  write 
before).  In  Civil  Law.  Among  the  Romans, 
a  man  was  said  to  be  proscribed  when  a  re- 
ward was  offered  for  his  head;  but  the  term 
was  more  usually  applied  to  those  who  were 
sentenced  to  some  punishment  which  carried 
with  it  the  consequences  of  civil  death.  Code, 
9.  49. 

PROSECUTION  (Lat.  prosequor,  to  fol- 
low after).  In  Criminal  Law.  The  means 
adopted  to  bring  a  supposed  offender  to  justice 
and  punishment  by  due  course  of  law. 

Prosecutions  are  carried  on  in  the  name  of 
the  government,  and  have  for  their  principal 
object  the  security  and  happiness  of  the  peo- 
ple in  general.  Hawkins,  PI.  Cr.  b.  2,  c. 
25,  s.  3  ;  Bacon,  Abr.  Indictment  (A3). 

In  England,  the  modes  most  usually  em- 
ployed to  carry  them  on  are — by  indictment, 
1  Chitty,  Crim.  Law,  132 ;  presentment  of  a 
grand  jury,  id.  133;  coroner's  inquest,  id. 
134;  and  by  an  information.  In  this  country, 
the  modes  are — by  indictment,  by  present- 
ment, by  information,  and  by  complaint. 

PROSECUTOR.  In  Practice.  He 
who  prosecutes  another  for  a  crime  in  the 
name  of  the  government. 

The  public  prosecutor  is  an  officer  appointed 
by  the  government  to  prosecute  all  offences: 
he  is  the  attorney-general  or  his  deputy. 

A  private  prosecutor  is  one  who  prefers  an 
accusation  against  a  party  whom  he  suspects 
to  be  guilty. 

2.  Everyman  may  become  a  prosecutor ;  but 
no  man  is  bound,  except  in  some  few  of  the  more 
enormous  offences,  as  treason,  to  be  one ;  but  if 
the  prosecutor  should  compound  a  felony  he 
will  be  guilty  of  a  crime.  The  prosecutor  has 
an  inducement  to  prosecute,  because  he  cannot, 
in  many  cases,  have  any  civil  remedy  until  he 
has  done  his  duty  to  society  by  an  endeavor  to 
bring  the  offender  to  justice.  If  a  prosecutor 
act  from  proper  motives,  he  will  not  be  re- 
sponsible to  the  party  in  damages  though  he 
was  mistaken  in  his  suspicions  ;  but  if,  from  a 
motive  of  revenge,  he  institute  a  criminal  prose- 
cution without  any  reasonable  foundation,  he 
may  be  punished  by  being  mulcted  in  dam- 
ages, in  an  action  for  a  malicious  prosecution. 

3.  In  Pennsylvania,  a  defendant  is  not 
bound  to  plead  to  an  indictment,  where  there 
is  a  private  prosecutor,  until  his  name  shall 
have  been  indorsed  on  the  indictment  as  such, 
and  on  acquittal  of  the  defendant,  in  all 
cases  except  where  the  charge  is  for  a  felony, 


the  jury  may  direct  that  he  shall  pay  the 
costs.  See  1  Chitty,  Crim.  Law,  1-iO;  I 
Phillipps,  Ev.;  2  Va.  Cas.  3,  20;  1  Dall.  Penn. 
5;  2  Bibb,  Ky.  210;  G  Call,  Va.  245  ;  5  Rand. 
Va.  069;  Informer. 

PROSOCER  (Lat.).  A  father-in-law'g 
father ;  grandfather  of  wife.  Vicat,  Voc.  Jur, 

PROSOCERUS  (Lat.).  A  wife's  grand- 
mother. 

PROSPECTIVE  [hat.  prospicio,  to  look 
forward).  That  which  is  applicable  to  the 
future :  it  is  used  in  opposition  to  retrospect- 
ive. To  be  just,  a  law  ought  always  to  be 
prospeiitive.    1  Bouvier,  Inst.  n.  110. 

PROSTITUTION.  The  common  lewd- 
ness of  a  woman  for  gain.  The  act  of  per- 
mitting a  common  and  indiscriminate  sexual 
intercourse  for  hire.    12  Mete.  Mass.  97. 

In  all  well-regulated  communities  this  has  been 
considered  a  heinous  offence,  for  which  the  woman 
may  be  punished;  and  the  keeper  of  a  house  of 
prostitution  may  be  indicted  for  keeping  a  common 
nuisance. 

So  much  does  the  law  abhor  this  offence  that  a 
landlord  cannot  recover  for  the  use  and  occupation 
of  a  house  let  for  the  purpose  of  prostitution.  1 
Esp.  Cas.  13;  1  Bos.  &  P.  340,  n. 

In  a  figurative  sense,  it  signifies  the  bad 
use  which  a  corrupt  judge  makes  of  the 
law,  by  making  it  subservient  to  his  interest: 
as,  the  prostitution  of  the  law,  the  prostitu- 
tion of  justice. 

PROTECTION.  In  Mercantile  Law. 
The  name  of  a  document  generally  given  by 
notaries  public  to  sailors  and  other  persons 
going  abroad,  in  which  is  certified  that  the 
bearer  therein  named  is  a  citizen  of  the 
United  States. 

In  Governmental  Law.  That  benefit  or 
safety  which  the  government  afibrds  to  the 
citizens. 

In  English  Law.  A  privilege  granted 
by  the  king  to  a  party  to  an  action,  by  which 
he  is  protected  from  a  judgment  which  would 
otherwise  be  rendered  against  him.  Of  these 
protections  there  are  several  kinds.  Fitzher- 
bert,  Nat.  Brev.  65. 

PROTEST.  In  Contracts.  A  notarial 
act,  made  for  want  of  payment  of  a  pro- 
missory note,  or  for  want  of  acceptance  or  pay- 
ment of  a  bill  of  exchange,  by  a  notary  pub- 
lic, in  which  it  is  declared  that  all  parties  to 
such  instruments  will  be  held  responsible  to 
the  holder  for  all  damages,  exchanges,  re- 
exchange,  etc. 

2.  There  are  two  kinds  of  protest,  namely, 
protest  for  non-acceptance,  and  protest  for 
non-payment.  There  is  also  a  species  of  pro- 
test common  in  England,  which  is  called  pro- 
test for  better  security.  Protest  for  non- 
acceptance  or  non-payment,  when  duly  made 
and  accompanied  by  notice  to  all  the  parties 
to  the  bill  or  note,  has  the  efiect  of  making 
all  of  them  responsible  to  the  holder  for  the 
amount  of  the  bill  or  note,  together  with 
damages,  etc.  3  Kent,  Comm.  03  ;  Chitty, 
Bills,  278;  3  Pardessus,  nn.  418-441;  Merlin, 
R6pert. ;  Comyns,  Dig.  Merchant  (F  8,  9, 


PROTESTANDO 


390    PROUT  PATET  PER  RECORDUM 


10) ;  Bacon,  Abr.  Merchant,  etc.  [Ml).  Pro- 
test for  better  security  may  be  made  AA^ien 
the  acceptor  of  a  bill  fails,  becomes  insolvent, 
or  in  any  other  way  gives  the  holder  just 
reason  to  suppose  it  will  not  be  paid.  It 
seems  to  be  of  doubtful  utility,  except  that 
it  gives  the  drawer  of  a  bill  on  a  foreign 
country  an  opportunity  of  availing  himself 
of  any  attachment  law  there  in  force.  1  Ld. 
Raym.  745. 

3.  The  protest  is  a  formal  paper  wherein 
the  notary  certifies  that  on  the  day  of  its 
date  he  presented  the  original  bill  attached 
thereunto,  or  a  copy  of  which  is  above  writ- 
ten, to  the  acceptor,  or  the  original  note  to  the 
maker,  thereof,  and  demanded  payment,  or 
acceptance,  which  was  refused,  and  that  there- 
upon he  protests  against  the  drawer  and  in- 
dorsers  thereof,  for  exchange,  re-exchange, 
damages,  costs,  and  interest.  It  is  usual,  also, 
for  the  notary  to  serve  notices  of  the  protest 
on  all  the  parties  to  the  bill.  The  notice 
contains  a  description  of  the  bill,  including 
its  date  and  amount,  the  fact  of  demand  and 
refusal,  and  that  the  holder  looks  to  the  per- 
son notified  for  payment.  Protest  of  foreign 
bills  is  proof  of  demand  and  refusal  to  pay 
or  accept,  2  Harr.  &  J.  Md.  399 ;  4  id.  54 ;  8 
Wheat.  333  ;  2  Pet.  179,  688.  Protest  is  said 
to  be  part  of  the  constitution  of  a  foreign 
bill;  and  the  form  is  governed  by  the  lex  loci 
contractus.  2  Hill,  N.  Y.  227  ;  11  La.  14;  2 
Pet.  179,  180;  Story,  Bills,  176.  See  Ac- 
ceptance ;  Bills  of  Exchange. 

In  Legislation.  A  declaration  made  by 
one  or  more  members  of  a  legislative  body 
that  they  do  not  agree  with  some  act  or  reso- 
lution of  the  body:  it  is  usual  to  add  the 
reasons  which  the  protestants  have  for  such 
a  dissent. 

In  Maritime  Law.  A  writing,  attested 
by  a  justice  of  the  peace,  a  notary  public,  or 
a  consul,  made  and  verified  by  the  master  of 
a  vessel,  stating  the  severity  of  a  voyage  by 
which  a  ship  has  sufiered,  and  showing  that 
it  was  not  ow'ng  to  the  neglect  or  misconduct 
of  the  master.  See  Marshall,  Ins.  715,  716; 
1  Wash.  C.  C.  145,  238,  408,  n. ;  1  Pet.  C.  C. 
119  ;  1  Dall,  Penn.  6,  10,  317  ;  2  id.  195  ;  3 
Watts  &  S.  Penn.  144. 

The  protest  is  not,  in  general,  evidence  for 
the  master  of  the  vessel  or  his  owners  in  the 
English  or  American  courts :  yet  it  is  often 
proper  evidence  against  them.  Abbott, 
Shipp.  465,  466 ;  Flanders,  Shipp.  ^  285. 

PROTESTANDO.    See  Protestation. 

PROTESTATION.  In  Pleading.  The 

indirect  affirmation  or  denial,  by  means  of 
the  word  protesting  (in  the  Latin  form  of 
pleadings,  protestando),  of  the  truth  of  some 
matter  which  cannot  with  propriety  or  safety 
be  positively  affirmed,  denied,  or  entirely 
passed  over.  See  3  Sharswood,  Blackst. 
Comm.  311 

The  exclusion  of  a  C(mclusion.  Coke,  Litt. 
124. 

*2.  Its  object  was  to  secure  to  the  party 
making  it  the  benefit  of  a  positive  affirmation 


or  denial  in  case  of  success  in  the  action,  sc 
far  as  to  prevent  the  conclusion  that  the  fact 
was  admitted  to  be  true  as  stated  by  the  op- 
posite party,  and  at  the  same  time  to  avoid 
the  objection  of  duplicity  to  which  a  direct 
affirmation  or  denial  would  expose  the  plead- 
ing. 19  Johns.  N.  Y.  96 ;  2  Saund.  103  ; 
Comyns,  Dig.  Pleader  (N) ;  Plowd.  276; 
Lawes,  Plead.  171.  Matter  which  is  the 
ground  of  the  suit  upon  which  issue  could 
be  taken  could  not  be  protested.  Plowd. 
276  ;  3  Wils.  109  ;  2  Johns.  N.  Y.  227.  But 
see  2  AVms.  Saund.  103,  n.  Protestations  aro 
no  longer  allowed,  3  Sharswood,  Blackst. 
Comm.  312,  and  were  generally  an  unneces- 
sary form.    3  Lev.  125. 

3.  The  common  form  of  making  protest- 
ations is  as  follows:  "because  protesting 
that,"  etc.,  excluding  such  matters  of  the  ad- 
versary's pleading  as  are  intended  to  be  ex- 
cluded in  the  protestando,  if  it  be  matter  of 
fact ;  or,  if  it  be  against  the  legal  sufficiency 
of  his  pleading,  "  because  protesting  that  the 
plea  by  him  above  pleaded  in  bar"  (or  by 
way  of  reply,  or  rejoinder,  etc.,  as  the  case 
may  be)  "is  wholly  insufficient  in  law." 
See,  generally,  1  Chitty,  Plead.  534 ;  Arch- 
bold,  Civ.  Plead.  245  ;  Comyns,  Dig.  Pleader 
(N) ;  Stephen,  Plead.  235. 

In  Practice.    An  asseveration  made  by 
taking  God  to  witness.     A  protestation  is  a  ' 
form  of  asseveration  which  approaches  very  ! 
nearly  to  an  oath.    Wolffius,  Inst,  g  375.  . 

PROTHONOTARY.     The  title  given 
to  an  officer  who  officiates  as  principal  clerk  \ 
of  some  courts.    Viuer,  Abr. 

In  the  ecclesiastical  law,  the  name  of  pro-  ', 
thonotary  is  given  to  an  officer  of  the  court 
of  Rome.    He  is  so  called  because  he  is  the  ; 
Jirst  notary, — the  Greek  word  Trpurog  signify-  . 
ing  primus,  or  first.     These  notaries  have 
pre-eminence  over  the  other  notaries,  and  are 
put  in  the  rank  of  prelates.  There  are  twelve  ' 
of  them.    Dalloz,  Diet,  de  Jur.  \ 

PROTOCOL.  A  record  or  register.'; 
Among  the  Romans,  protocollum  was  a  writ-  ^ 
ing  at  the  head  of  the  first  page  of  the  p^per  j 
used  by  the  notaries  or  tabellions.    Nov.  44. ' 

In  France  the  minutes  of  notarial  acts  were 
formerly  transcribed  on  registers,  which  were 
called  protocols.  Toullier,  Dr.  Civ.  Fr.  liv. 
3,  t.  3,  c.  6,  s.  1,  n.  413. 

By  the  German  law  it  signifies  the  minutes 
of  any  transaction.  Encyc.  Amer.  Protocol, 
In  the  latter  sense  the  word  has  of  late  been 
received  into  international  law.  Id. 

PROTUTOR  (Lat.).  In  Civil  Law. 
He  who,  not  being  the  tutor  of  a  pupil  or 
minor,  has  administered  his  property  or  af- 
fairs as  if  he  had  been,  whether  he  thought 
himself  legally  invested  with  the  authority 
of  a  tutor  or  not. 

He  who  marries  a  woman  who  is  tutrix 
becomes,  by  the  marriage,  a  protutor.  The 
protutor  is  equally  responsible  as  the  tutor. 

PROUT  PATET  PER  RECORDUM 
(Lat.).  As  appears  by  the  record.  This 
phrase  is  frequently  used  in  pleading:  as. 


PROVER 


391 


PROVOST 


for  example,  in  debt  on  a  judgment  or  other 
matter  of  record,  unless  when  it  is  stated  as 
an  inducement,  it  is  requisite,  after  showing 
the  matter  of  record,  to  refer  to  it  by  the 
prout  patet  j)er  recordum.  1  Chitty,  Plead. 
»^350  ;  10  Me.  127. 

PROVER.   In  Old  English  Law.  One 

who  undertakes  to  prove  a  crime  against  an- 
otlier.  28  Edw.  I. ;  5  lien.  IV.  One  who,  being 
indicted  and  arraigned  for  treason  or  felony, 
confesses  before  plea  pleaded,  and  accuses  his 
a«3omplices  to  obtain  pardon ;  state's  evidence. 
4  Sharswood,  Blackst.  Comm.  329,  330^".  To 
prove.    Law  Fr.  &  Lat.  Diet. ;  Britton,  c.  22. 

PROVINCE.  Sometimes  this  signifies 
the  district  into  which  a  country  has  been 
divided :  as,  the  province  of  Canterbury,  in 
England ;  the  province  of  Languedoc,  in 
France.  Sometimes  it  means  a  dependency 
or  colony:  as,  the  province  of  New  Bruns- 
wick. It  is  sometimes  used  figuratively  to 
signify  power  or  authority :  as,  it  is  the  pro- 
vince "of  the  court  to  judge  of  the  law,  that 
of  the  jury  to  decide  on  the  facts. 

PROVISION.  In  Common  Law.  The 

property  which  a  drawer  of  a  bill  of  exchange 
places  in  the  hands  of  a  drawee :  as,  for  ex- 
ample, by  remittances,  or  when  the  drawee 
is  indebted  to  the  drav/er  when  the  bill  be- 
comes due,  provision  is  said  to  have  been 
made.  Acceptance  always  presumes  a  pro- 
vision.   See  Code  de  Comm.  art.  115-117. 

In  French  Law.  An  allowance  granted 
by  a  judge  to  a  party  for  his  support, — which 
is  to  be  paid  before  there  is  a  definitive  judg- 
ment. In  a  civil  case,  for  example,  it  is  an 
allowance  made  to  a  wife  who  is  separated 
from  her  husband.    Dalloz,  Diet. 

PROVISIONAL  SEIZURE.  In 

Louisiana.  A  term  which  signifies  nearly 
the  same  as  attachment  of  property. 

It  is  regulated  by  the  Code  of  Practice  as 
follows,  namely  : 

The  plaintiff  may,  in  certain  cases,  here- 
after provided,  obtain  the  provisional  seizure 
of  the  property  which  he  holds  in  pledge,  or 
on  which  he  has  a  privilege,  in  order  to  secure 
a  payment  of  his  claim.    La.  Code,  art.  284. 

Provisional  seizure  may  be  ordered  in  the 
following  cases :  first,  in  executory  proceed- 
ings, when  the  plaintiff  sues  on  a  title  im- 
porting confession  of  judgment ;  second, 
when  a  lessor  prays  for  the  seizure  of  furni- 
ture or  property  used  in  the  house,  or  attached 
to  the  real  estate  which  he  has  leased ;  third, 
"when  a  seaman,  or  other  person,  employed 
on  board  of  a  ship  or  water  craft,  navigating 
within  the  state,  or  person  having  furnished 
materials  for  or  made  repairs  to  such  ship  or 
water  craft,  prays  that  the  same  may  be 
seized,  and  prevented  from  departing,  until 
he  has  been  paid  the  amount  of  his  claim ; 
fourth,  when  the  proceedings  are  in  rem,  that 
18  to  say,  against  the  thing  itself  which  stands 
pledged  for  the  debt,  when  the  property  is 
abandoned,  or  in  cases  where  the  owner  of 
the  *iiing  is  unknown  or  absent.    La.  Code, 


art.  285.  See  G  Mart.  La.  n.  s.  168  ;  7  id.  153 , 
8  id.  320  ;  1  Mart.  La.  1G8 ;  12  id.  32. 

PROVISIONS.  Food  for  man ;  victuals. 

As  good  provisions  contribute  so  much  to 
the  health  and  comfort  of  man,  the  law  re- 
quires that  they  shall  be  wholesome :  he  who 
sells  unwholesome  provisions  may,  therefore, 
be  punished  for  a  misdemeanor.  2  East,  PI. 
Cr.  822 ;  G  East,  133-141 ;  3  Maule  &  S.  10; 
4  id.  214 ;  4  Campb.  10. 

And  in  the  sale  of  provisions  the  rule  is 
that  the  seller  impliedly  M'arrants  that  they 
are  wholesome.  3  Shar8wo*)d,  Blackst.  Comm. 
166. 

PROVISO.  The  name  of  a  clause  in- 
serted in  an  act  of  the  legislature,  a  deed,  a 
written  agreement,  or  other  instrument,  which 
generally  contains  a  condition  that  a  certain 
thing  shall  or  shall  nut  be  done,  in  order 
that  an  agreement  contained  in  another  clause 
shall  take  effect. 

It  always  implies  a  condition,  unless  subsequent 
words  change  it  to  a  covenant;  but  when  a  proviso 
contains  the  mutual  words  of  the  parties  to  a  deed, 
it  amounts  to  a  covenant.  2  Coke,  72 ;  Croke  Eliz. 
242;  Moore,  707. 

A  proviso  diflfers  from  an  exception.  1  Barnew. 
&,  Aid.  99.  An  exception  exempts,  absolutely,  from 
the  opei-ation  of  an  engagement  or  an  enactment; 
a  proviso  defeats  their  operation,  conditionatli/.  An 
exception  takes  out  of  an  engagement  or  enactment 
something  which  would  otherwise  be  part  of  the 
subject-matter  of  it;  a  proviso  avoids  them  by  way 
of  defeasance  or  excuse.  8  Am.  Jur.  242  ;  Plowd. 
361;  Carth.  99;  1  Saund.  234  a,  note;  Lilly,  Reg., 
and  the  cases  there  cited.  See,  generally,  Am.  Jur. 
no.  16,  art.  1 ;  Bacort,  Abr.  Conditions  (A) ;  Comyns, 
Dig.  Condition  (A  1),  (A  2);  Dwarris,  Stat.  660. 

PROVISOR.  He  that  hath  the  care  of 
providing  things  necessary  ;  but  more  espe- 
cially one  who  sued  to  the  court  of  Rome  for 
a  provision.  Jacobs ;  25  Edw.  III.  One  nomi- 
nated by  the  pope  to  a  benefice  before  it  be- 
came void,  in  prejudice  of  right  of  true  patron. 
4  Sharswood,  Blackst.  Comm.  lll'^. 

PROVOCATION  (Lat.  provocc,  to  call 
out).  The  act  of  inciting  another  to  do  some- 
thing. 

2.  Provocation  simply,  unaccompanied  by 
a  crime  or  misdemeanor,  does  not  justify  the 
person  provoked  to  commit  an  assault  and 
battery.  In  cases  of  homicide  it  may  reduce 
the  offence  from  murder  to  manslaughter. 
But  when  the  provocation  is  given  for  the 
purpose  of  justifying  or  excusing  an  intended 
murder,  and  the  party  provoked  is  killed,  it 
is  no  justification.  2  Gilbert,  Ev.  by  Lofft,  753. 

3.  The  unjust  provocation  by  a  wife  of 
her  husband,  in  consequence  of  which  she 
suffers  from  his  ill  usage,  will  not  entitle  her 
to  a  divorce  on  the  ground  of  cruelty :  her 
remedy,  in  such  cases,  is  to  change  her 
manners.  2  Lee,  172;  1  Hagg.  Cons.  155. 
See  Cruelty  ;  Persuade  ;  1  Russell,  Crim. 
434,  486 ;  1  East,  PI.  Cr.  232-241. 

PROVOST.  ^  A  title  given  to  the  chief 
of  some  corporations  or  societies.  In  France, 
this  title  was  formerly  given  to  some  pre- 
siding judges.  The  word  is  derived  from  t^lio 
Latin  proepositus. 


PI10XENET.E 


392 


PUBLICATION 


PROXENETiE  (Lat.).    In  Civil  Law. 

Among  the  Romans,  these  were  persons  whose 
functions  somewhat  resembled  those  of  the 
brokers  of  modern  commercial  nations.  Dig. 
50.  14.  3  ;  Domat,  1.  1,  t.  17,  ^  1,  art.  1. 

PROXIMITY  (Lat.).  Kindred  between 
two  persons.    Dig.  38.  16.  8. 

PROXY.  A  person  appointed  in  the 
place  of  another,  to  represent  him. 

The  instrument  by  which  a  person  is  ap- 
pointed so  to  act. 

The  right  of  voting  at  an  election  of  an 
incorporated  company  by  proxy  is  not  a 
general  right,  and  the  party  claiming  it  must 
show  a  special  authority  for  that  purpose. 
Angell,  Corp.  67-69  ;  1  Paige,  Ch.  N.  Y.590; 
6  Day,  Conn.  329  ;  5  Cow.  N.  Y.  426. 

In  Ecclesiastical  Law.  A  judicial  proc- 
tor, or  one  who  is  appointed  to  manage  an- 
other man's  law  concerns,  is  called  a  proxy. 
AylifFe,  Parerg. 

An  annual  payment  made  by  the  parochial 
clergy  to  the  bishop,  etc.,  on  visitations. 
Tomlin,  Law  Diet.  See  Rutherforth,  Inst. 
253  ;  Hall,  Pract.  14. 

PUBERTY.  In  Civil  Law.  The  age 
in  boys  of  fourteen,  and  in  girls  of  twelve 
years.  Ayliffe,  Pand.  63  ;  Hall,  Pract.  14 ; 
TouUier,  Dr.  Civ.  Fr.  tom.  5,  p.  100 ;  Inst. 
1.  22;  Dig.  1.  7.  40.  1;  Code,  5.  60.  3 ;  1 
Sharswood,  Blackst.  Comm.  436. 

PUBLIC.  The  whole  body  politic,  or  all 
the  citizens  of  the  state.  The  inhabitants  of 
a  particular  place :  as,  the  New  York  public. 

This  term  is  sometimes  joined  to  other 
terms,  to  designate  those  things  which  have 
a  relation  to  the  public :  as,  a  public  officer,  a 
public  road,  apulalic  passage,  a  public  house. 

A  distinction  has  been  made  between  the  terms 
public  and  general:  they  are  sometimes  used  as 
synonymous.  The  former  term  is  applied  strictly 
to  that  which  concerns  all  the  citizens  and  every 
member  of  the  state;  while  the  latter  includes  a 
lesser,  though  still  a  large,  portion  of  the  oom- 
munity.    Greenleaf,  Ev.  §  128. 

When  the  public  interests  and  its  rights 
conflict  with  those  of  an  individual,  the  latter 
must  yield.  Coke,  Litt.  181.  If,  for  ex- 
ample, a  road  is  required  for  public  conveni- 
ence, and  in  its  course  it  passes  on  the  ground 
occupied  by  a  house,  the  latter  must  be  torn 
dow^n,  however  valuable  it  may  be  to  the  owner. 
In  such  a  case  both  law  and  justice  require 
that  the  owner  shall  be  fully  indemnified, 
See  Eminent  Domain. 

PUBLIC  DEBT.  That  which  is  due  or 
Owing  by  the  government. 

The  constitution  of  the  United  States  provides, 
art.  6,  8.  1,  that  "all  debts  contracted  or  engage- 
ments entered  into  before  the  adoption  of  this  con- 
Btitution  shall  be  as  valid  against  the  United  States 
under  this  constitution  as  under  the  confederation." 
It  has  invariably  been  the  policy,  since  the  Revolu- 
tion, to  do  justice  to  the  creditors  of  the  govern- 
ment. The  i)ublic  debt  h{i,s  sometimes  been  swelled 
to  a  large  amount,  and  at  other  times  it  has  been 
reluced  to  almost  nothing. 

PUBLIC  ENEMY.  This  word,  used  in 
the  singular  number,  designates  a  nation  at 


war  with  the  United  States,  and  includes 
every  member  of  such  nation.  Vattel,  b.  3, 
c.  5,  §  70. 

To  make  a  public  enemy,  the  government 
of  the  foreign  country  must  be  at  war  with 
the  United  States ;  for  a  mob,  how  numerous 
soever  it  may  be,  or  robbers,  whoever  they 
may  be,  are  never  considered  as  a  public 
enemy.  2  Marshall,  Ins.  508  ;  3  Esp.  131, 132. 

A  common  carrier  is  exempt  from  respon- 
sibility whenever  a  loss  has  been  occasioned 
to  the  goods  in  his  charge  by  the  act  of  a 
public  enemy ;  but  the  burden  of  proof  lies 
on  him  to  show  that  the  loss  was  so  occasioned. 
3  Munf.  Va.  239  ;  4  Binn.  Penn.  127  ;  2  Bail. 
So.  C.  157.    See  Common  Carrier. 

PUBLIC  PASSAGE.  A  right  to  pass 
over  a  body  of  w^ater.  This  term  is  synony- 
mous with  public  highway,  with  this  differ- 
ence :  by  the  latter  is  understood  a  right  to 
pass  over  the  land  of  another  ;  by  the  former 
is  meant  the  right  of  going  over  the  water 
which  is  on  another's  land.  Carth.  193 ; 
Hammond,  Nisi  P.  195.    See  Passage. 

PUBLICAN.  In  Civil  Law.  A  farmer 
of  the  public  revenue  ;  one  who  held  a  lease 
of  some  property  from  the  public  treasury. 
Dig.  39.  4.  1.  1 ;  39.  4.  12.  3 ;  39.  4.  13. 

PUBLICATION.  The  act  by  which  a  ' 
thing  is  made  public.  ; 

It  differs  from  promulgation,  which  see;  and  see,  ; 
also,  Toullier,  Dr.  Civ.  Fr,  titre  Prelim  inaire,  n.  " 
59,  for  the  difference  in  the  meaning  of  these  two  ' 
words. 

2.  Publication  has  different  meanings.  ] 
When  applied  to  a  law,  it  signifies  the  ren^  ' 
dering  public  the  existence  of  the  law  ;  when  ■ 
it  relates  to  the  opening  the  depositions  taken  [ 
in  a  case  in  chancery,  it  means  that  liberty  ' 
is  given  to  the  officer  in  whose  custody  the  ■ 
depositions  of  witnesses  in  a  cause  are  lodged,  ; 
either  by  consent  of  parties,  or  by  the  rules  j 
or  orders  of  the  court,  to  show  the  depositions  - 
openly,  and  to  give  out  copies  of  them.  1 
Pract.  Reg.  297  ;  Blake,  Chanc.  Pract.  143.  i 
And  when  spoken  of  a  will,  it  signifies  that  j 
the  testator  has  done  some  act  from  which  it  ' 
can  be  concluded  that  he  intended  the  instru-  ^ 
ment  to  operate  as  his  will.  Cruise,  Dig.  tit. 
38,  c.  5,  8.  47  ;  3  Atk.  Ch.  161 ;  4  Me.  220; 

3  Rawle,  Penn.  15  ;  Comyns,  Dig.  Estates  by 
Devise  (E  2).  See  Comyns,  Dig.  Chancery 
(Q).  As  to  the  publication  of  an  award,  see 
6  N.  II.  36. 

3.  A  libel  may  be  published  either  hj 
speaking  or  singing,  as  where  it  is  mali- 
ciously repeated  or  sung  in  the  presence  of 
others,  or  by  delivery,  as  when  a  libel,  or  a  copy 
of  it,  is  delivered  to  another.  A  libel  may  also 
be  published  by  pictures  or  signs,  as  by 
painting  another  in  an  ignominious  manner, 
or  making  the  sign  of  a  gallows,  or  other 
reproachful  and  ignominious  sign,  upon  his 
door  or  before  his  house.  If  the  libel  19 
contained  in  a  letter  addressed  to  the  plain- 
tiff", this  is  not  evidence  of  a  publication 
sufficient  to  support  a  civil  action  ;  although 
it  would  be  otherwise  in  an  indictment  for 


PUBLICIANA 


393 


PUERILITY 


libwl.  But  if  the  letter,  though  addressed  to 
the  plaintitF,  was  forwarded  during  his  known 
absence,  and  with  intent  that  it  should  be 
opened  and  read  by  his  family,  clerks,  or 
confidential  agents,  and  it  is  read  by  them, 
it  is  a  sufficient  publication.  If  it  was  not 
opened  by  others,  even  though  it  were  not 
sealed,  it  is  no  publication.  Heard,  Lib.  & 
Sland.  2G4,  265.  In  a  recent  case  the  publi- 
cation relied  on  was  a  sale  of  a  copy  of  a 
newspaper  to  a  person  sent  by  the  plaintiff  to 
procure  it,  who,  on  receiving  it,  carried  it  to 
the  plaintiff.  It  was  held  that  this  was  a  suffi- 
cient publication  to  the  agent  to  sustain  an 
action.  14  Q.  B.  185.  A  sealed  letter  or  other 
communication  delivered  to  the  wife  of  the 
plaintiff  is  a  publication  within  the  meaning 
of  the  law.  13  C.  B.  836  ;  Spenc.  N.  J.  209. 
If  the  libel  be  published  in  a  newspaper,  proof 
that  copies  were  distributed,  and  that  the  clerk 
of  the  printer  received  payment  for  them,  is 
evidence  of  publication.  3  Yeates,  Penn. 
128.  In  criminal  cases,  the  publication  must 
be  proved  to  have  been  made  within  the 
county  where  the  trial  is  had.  If  it  Mas 
contained  in  a  newspaper  printed  in  another 
state,  yet  it  will  be  sufficient  to  prove  that  it 
was  circulated  and  read  within  the  county. 
3  Pick.  Mass.  304.  If  it  was  written  in  one 
county  and  sent  by  post  to  a  person  in  an- 
other, or  if  its  publication  in  another  county 
be  otherwise  consented  to,  this  is  evidence  of 
a  publication  in  the  latter  county.  7  East, 
65;  12  How.  St.  Tr.  331,  332.  If  a  libel  is 
written  in  one  county  with  intent  to  publish 
it  in  another,  and  it  is  accordingly  so  pub- 
lished, this  is  evidence  sufficient  to  charge 
the  party  in  the  county  in  which  it  was 
written.    4  Barnew.  &  Aid.  95. 

4.  Uttering  slanderous  vrords  in  the  pre- 
sence of  the  person  slandered  only  is  not  a 
publication.  It  is  immaterial  that  the  words 
were  spoken  in  a  public  place.  The  question 
for  the  jury  is  whether  they  were  so  spoken 
as  to  have  been  heard  by  third  persons.  13 
Gray,  Mass.  304.  It  must  also  be  shown 
that  the  words  were  spoken  in  the  presence 
of  some  one  who  understood  them.  Words 
in  a  foreign  language,  whether  spoken  or 
written,  must  be  proved  to  have  been  under- 
stood by  those  who  heard  or  read  them ;  other- 
wise there  is  no  publication  which  is  prejudi- 
cial to  the  plaintiff.  Heard,  Lib.  &  Sland.  § 
263. 

PUBLICIANA  (Lat.).    In  CivU  Law. 

The  name  of  an  action  introduced  by  the 
praetor  Publicius,  the  object  of  which  was  to 
recover  a  thing  which  had  been  lost.  Inst. 
4.  6.  4 ;  Dig.  6.  2.  1.  16  et  17.  Its  effects  were 
similar  to  those  of  our  action  of  trover. 

PUBLICITY.  The  doing  )f  a  thing  in 
the  view  of  all  persons  who  jhoose  to  be 
present. 

The  law  requires  that  couits  should  be 
open  to  the  public:  there  can  therefore  be  no 
secret  tribunal,  except  the  grand  jury  [q.  v.) ; 
and  all  judgments  are  required  to  be  given 
in  public. 


Publicity  must  be  given  to  the  acts  of  th« 
legislature  before  they  can  be  in  force;  but  in 
general  their  being  recorded  in  a  certain 
public  office  is  evidence  of  their  publicity. 

PUBLISHER.  One  who  by  himself  or 
his  agent  makes  a  thing  publicly  known ; 
one  engaged  in  the  circulation  of  books, 
pamphlets,  and  other  papers. 

"2,  The  publisher  of  a  libel  is  responsible 
as  if  he  were  the  author  of  it,  and  it  is  im- 
material whether  he  has  any  knowledge  of 
its  contents  or  not,  9  Coke,  59 ;  Hawkins, 
PI.  Cr.  c.  73,  ^0 ;  4  Mas.  C.  C.  115  ;  and  it 
is  no  justification  to  him  that  the  name  of 
the  author  accompanies  the  libel.  10  Johns. 
N.  Y.  447 ;  2  Mood.  &  R.  312. 

3.  When  the  publication  ismade  by  writing 
or  printing,  if  the  matter  be  libellous,  the 
publisher  may  be  indicted  for  a  misdemeanor, 
provided  it  was  made  by  his  direction  or  con- 
sent ;  but  if  he  was  the  owner  of  a  news- 
paper merely,  and  the  publication  was  made 
by  his  servants  or  agents,  without  any  con- 
sent or  knowledge  on  his  part,  he  will  not  be 
liable  to  a  criminal  prosecution.  In  either 
case  he  will  be  liable  to  an  action  for  dam- 
ages sustained  by  the  party  aggrieved.  7 
Johns.  N.  Y.  260.  But  see  11  Mete.  Mass.  367. 

4.  In  order  to  render  the  publisher  amena- 
ble to  the  law,  the  publication  must  be  ma- 
liciously made;  but  malice  will  be  presumed 
if  the  matter  be  libellous.  This  presumption, 
however,  will  be  rebutted  if  the  publication 
be  made  for  some  lawful  purpose,  as,  drawing 
up  a  bill  of  indictment,  in  which  the  libellous 
words  are  embodied  for  the  purpose  of  prose- 
cuting the  libeller ;  or  if  it  evidently  appear 
that  the  publisher  did  not,  at  the  time  of  pub- 
lication, know  that  the  matter  was  libellous: 
as,  when  a  person  reads  a  libel  alone  in  the 
presence  of  others,  without  beforehand  know- 
ing it  to  be  such.  9  Coke,  59.  See  Libel; 
Libeller  ;  Publication. 

PUDICITY.  Chastity ;  the  abstaining 
from  all  unlawful  carnal  commerce  or  con- 
nection. A  married  woman  or  a  widow  may 
defend  her  pudicity  as  a  maid  may  her  vir- 
ginity.   See  Chastity  ;  Rape. 

PUDZELD.   In  Old  English  Law.  To 

be  free  from  the  payment  of  money  for  taking 
of  wood  in  any  forest.  Coke,  Litt.  233  a. 
The  same  as  Woodgeld. 

PUER  (Lat.  a  boy;  a  child).  In  its  en- 
larged sense  this  word  signifies  a  child  of 
either  sex  ;  though  in  its  restrained  meaning 
it  is  applied  to  a  boy  only. 

A  case  once  arose  which  turned  upon  thia 
question,  whether  a  daughter  could  take 
lands  under  the  description  of  puer ;  and  it 
was  decided  by  two  judges  against  one  that 
she  was  entitled.  Dy.  337  h.  In  another 
case,  it  was  ruled  the  other  way.    Hob.  33. 

PUERILITY.  In  Civil  Law.  A  con- 
dition which  coramenced  at  the  age  of  seven 
years,  the  end  jf  the  age  of  infancy,  and 
lasted  till  the  age  of  puberty, — that  is,  in 
females  till  the  accomplishment  of  twelve 


PUERITIA 


394 


PUR  ALTRE  VIE 


years,  and  in  males  till  the  age  of  fourteen 
years  fully  accomplished.    Ayliffe,  Pand.  63. 

The  ancient  Roman  lawyers  divided  pue- 
rility into  j?roa;iVm5  infantice,  as  it  approached 
infancy,  and  mto  proximus  pubertati,  as  it  be- 
came nearer  to  puberty.    6  Toullier,.n.  100. 

PUERITIA  (Lat.).  In  Civil  Law.  Age 
from  seven  to  fourteen.  4Sharswood,Blackst. 
Comm.  22  ;  Wharton,  Diet.  2d  Lond.  ed.  The 
age  from  birth  to  fourteen  years  in  the  male, 
or  twelve  in  the  female.  Calvinus,  Lex.  The 
age  from  birth  to  seventeen.   Vicat,Voc.  Jur. 

PUFFER.  A  person  employed  by  the 
owner  of  property  which  is  sold  at  auction 
to  bid  it  up,  who  does  so  accordingly,  for  the 
purpose  of  raising  the  price  upon  bond  Jide 
bidders. 

This  is  a  fraud,  which,  at  the  choice  of  the 
purchaser,  invalidates  the  sale.  3  Madd.  Ch. 
112;  5  id.  37,  440;  12  Ves.  Ch.  483;  1  Fon- 
blanque,  Eq.  227,  n. ;  2  Kent,  Comm.  423  ; 
Cowp.  395;  3  Ves.  Ch.  628;  3  Term, 
93;  6  id.  642;  2  Brown,  Ch.  326;  1  P.  A. 
Browne,  Penn.  346  ;  11  Serg.  &  R.  Penn. 
89;  2  Hayw.  No.  C.  328;  4  Harr.  &  McII. 
Md.  282  ;  2  Dev.  No.  C.  126  ;  2  Const.  So.  C. 
821.    See  Auction;  Bidder  ;  By  Bidder. 

PUIS  DARREIN  CONTINUANCE 
(L.  Fr.  since  last  continuance).  In  Plead- 
ing. A  plea  which  is  put  in  after  issue  joined, 
for  the  purpose  of  introducing  new  matter, 
or  matter  which  has  come  to  the  knowledge 
of  the  party  pleading  it  subsequently  to  such 
joinder.    See  Continuance  ;  Plea. 

PUISNE  (L.  Fr.).  Younger ;  junior.  As- 
sociate. 

PULSATION.  Beating  without  pain,  as 
distinguished  from  verberation,  or  beating 
with  pain.  3  Sharswood  Blackst.  Comm. 
120*;  Calvinus,  Lex.  PuJsare. 

PUNCTUATION.  The  division  of  a 
written  or  printed  instrument  by  means  of 
points,  such  as  the  comma,  semicolon,  and 
the  like. 

Punctuation  is  not  to  be  regarded  in  the 
construction  of  an  instrument. 

PUNISHMENT.    In  Criminal  Law. 

Some  pain  or  penalty  warranted  by  law,  in- 
flicted on  a  person  for  the  commission  of  a 
crime  or  misdemeanor,  or  for  the  omission  of 
the  performance  of  an  act  required  by  law, 
by  the  judgment  and  command  of  some  law- 
ful court. 

The  right  of  society  to  punish  is  derived,  by 
Beccaria,  Mably,  and  some  others,  from  a  supposed 
agreement  which  the  persons  who  composed  the 
primitive  societies  entered  into,  in  order  to  keep 
order,  and,  indeed,  the  very  existence  of  the  state. 
According  to  others,  it  is  the  interest  and  duty  of 
man  to  live  in  society:  to  defend  this  right,  society 
may  exert  this  principle,  in  order  to  support  itself; 
and  this  it  may  do  whenever  the  acts  punishable 
would  endanger  the  safety  of  the  whole.  And 
Bentham  is  of  opinion  that  the  foundation  of  this 
right  is  laid  in  public  utility  or  necessity.  Delin- 
quents are  public  enemies,  and  they  must  be  dis- 
armed and  prevented  from  doing  evil,  or  society 
would  be  destroyed.  But,  if  the  social  compact  has 
ever  existed,  says  Livingston,  its  end  must  have 


been  the  preservatit)n  of  the  natural  rights  of  thei 
members;  and  therefore  the  effects  of  this  fiction 
are  the  same  with  those  of  the  theory  which  takes 
abstract  justice  as  the  foundation  of  the  right  to 
puni.-^h;  for  this  justice,  if  well  considered,  is  that 
which  assures  ti)  each  member  of  the  state  the  free 
exercise  of  his  rights.  And  if  it  should  Is  found 
that  utility,  the  last  source  from  which  the  right  to 
punish  is  derived,  is  so  intimately  united  to  justice 
that  it  is  inseparable  from  it  in  the  practice  of  law, 
it  will  follow  that  every  system  founded  on  one  of 
these  principles  must  be  supported  by  the  others. 

2.  To  attain  their  social  end,  punishments 
should  be  exemplar}/,  or  capable  of  intimi- 
dating tliose  who  might  be  tempted  to  imitato 
the  guilty ;  reformatory,  or  such  as  should 
improve  the  condition  of  the  convicts;  per- 
sonal,  or  such  as  are  at  least  calculated  to 
wound  the  feelings  or  affect  the  rights  of  the 
relations  of  the  guilty ;  divisible,  or  capable 
of  being  graduated  and  proportioned  to  the 
offence  and  the  circumstances  of  each  case; 
reparable,  on  account  of  the  fallibility  of  hu- 
man justice. 

3.  Punishments  are  either  corporal  or  not 
corporal.  The  former  are — death,  which  is 
usually  denominated  capital  punishment; 
imprisonment,  which  is  either  with  or  with- 
out labor,  see  Penitentiary;  whipping,  in 
some  states;  and  banishment. 

The  punishments  which  are  not  corporal 
are — fines;  forfeitures;  suspension  or  depriva- 
tion of  some  political  or  civil  right;  depriva- 
tion of  office,  and  being  rendered  incapable  to 
hold  office;  compulsion  to  remove  nuisances. 

4.  The  object  of  punishment  is  to  reform 
the  offender,  to  deter  him  and  others  from 
committing  like  offences,  and  to  protect  so-  , 
ciety.    See  4  Sharswood,  Blackst.  Comm.  7; 
Rutherforth,  Inst.  b.  1,  c.  18. 

The    constitution  of  the  United   States,  • 
Amendments,  art.  8,  forbids  the  infliction  of 
cruel  and  unusual  punishments.    See  In-  \ 
FAMOUS  Punishments  ;  Pardon.  • 

PUPIL.  In  Civil  liaw.  One  who  is  in  i 
his  or  her  minority.  See  Dig.  1.  7  ;  26.  7. 1.  2;  i 
50.  16.  239  ;  Code,  6.  30.  18.  One  who  is  in  I 
ward  or  guardianship.  \ 

PUPILLARIS  SUBSTITUTIO  (Lat.).  ; 
In  Civil  Law.    The  nomination  of  another  * 
besides  his  son  pupil  to  succeed,  if  the  son 
should  not  be  able  or  inclined  to  accept  the 
inheritance,  or  should  die  before  he  came  of 
age  to  make  a  testament. 

If  the  child  survived  the  age  of  puberty, 
though  he  made  no  testament,  the  substitute 
had  no  right  of  succession.  See  Bell,  Diet. 
StibstituUon ;  Dig.  28.  6. 

PUPILLARITY.  In  Civil  Law.  That 
age  of  a  person's  life  which  included  infancy 
and  puerility. 

PUR.  A  corruption  of  the  French  word 
par,  by  or  for.  It  is  frequently  used  in  old 
French  law  phrases :  as,  pur  autre  vie.  It  it 
also  used  in  the  composition  of  words:  as. 
purparty,  purlieu,  purview. 

PUR  AUTRE  VIE  (old  French, /or  an  j 
other's  life).  An  estate  is  said  to  be  pui  \ 
autre  vie  when  a  lease  is  made  of  lands  oi  j 


PURCHASE 


395 


PURPRESTURE 


tenements  to  a  man  to  hold  for  the  life  of  an- 
otlwr  person.    2  Sharswood,  Bhickst.  Comm. 
259  :  10  Viner,  Abr.  296  ;  2  Belt,  Suppl.  Ves. 
I  Jr.  41. 

'      PURCHASE.    A  term  including  every 

I  mode  of  acquisition  of  estate  known  to  the 
law,  except  that  by  which  an  heir  on  the 
death  of  his  ancestor  becomes  substituted  in 
his  place  as  owner  by  operation  of  law.  2 

,  Washburn,  Real  Prop.  401. 

i  There  are  six  ways  of  acquiring  a  title  by 
purchase,  namely .  by  deed  ;  by  devise ;  by 
execution  ;  by  prescription  ;  by  possession  or 
occupancy ;  by  escheat.  In  its  more  limited 
sense,  purchase  is  applied  only  to  such  accjui- 
Bitions  of  lands  as  are  obtained  by  way  of 
bargain  and  sale  for  money  or  some  other 
Taluable  consideration.  Cruise,  Dig.  tit.  30, 
g§  1-4;  1  Dall.  Penn.  20.  In  common  par- 
lance, purchase  signifies  the  buying  of  real 
estate  and  of  goods  and  chattels. 

PURCHASER.  A  buyer ;  a  vendee. 
See  Sale  ;  Parties  ;  Contracts. 

PURCHASE-MONEY.  The  considera- 
tion which  is  agreed  to  be  paid  by  the  pur- 
chaser of  a  thing  in  money. 

It  is  the  duty  of  the  purchaser  to  pay  the 
purchase-money  as  agreed  upon  in  making  the 
contract;  and  in  case  of  the  conveyance  of  an 
estate  before  it  is-paid,  the  vendor  is  entitled, 
according  to  the  laws  of  England,  which 
have  been  adopted  in  several  of  the  states, 
to  a  lien  on  the  estate  sold  for  the  purchase- 

j  money  so  remaining  unpaid.  This  is  called 
an  equitable  lien.  This  doctrine  is  derived 
from  the  civil  law.  Dig.  18.  1.  19.  The 
case  of  Chapman  vs.  Tanner,  1  Vern.  Ch.  267, 
decided  in  1684,  is  the  first  where  this  doc- 

,  trine  was  adopted.  7  Serg.  &  R.  Penn.  73. 
It  was  strongly  opposed,  but  is  now  firmly 
established  in  England  and  in  the  United 
States.  6  Yerg.  Tenn.  50  ;  1  Johns.  Ch.  N. 
Y.  308  ;  7  AVheat.  46,  50 ;  5  Monr.  287  ;  1 
Harr.  &  J.  Md.  106  ;  4  id.  522 ;  1  Call,  Va. 

!  414  ;  5  Munf.  Va.  342  ;  1  Dev.  Eq.  No.  C.  163  ; 
4  Hawks,  No.  C.  256 ;  5  Conn.  468  ;  2  J.  J. 
Marsh.  Ky.  330;  1  Bibb,  Ky.  590;  4  id. 
239. 

But  the  lien  of  the  seller  exists  only  be- 
tween the  parties  and  those  having  notice 
that  the  purchase-money  has  not  been  paid. 
3  J.  J.  Marsh.  Ky.  557  ;  3  Gill  &  J.  Md.  425. 
See  Lien. 

PURE  DEBT.    In  Scotch  Law.  A 

I  debt  actually  due,  in  contradistinction  to  one 
I    which  is  to  become  due  at  a  future  day  certain, 

which  is  called  a  future  debt,  and  one  due 
!,    provisionally,  in  a  certain  event,  which  is 

called  a  contingent  debt.  1  Bell,  Comm.  5th 

ed.  315. 

PURE  OBLIGATION.  One  which  is 
iiot  suspended  by  any  condition,  whether  it 
has  been  contracted  without  any  condition, 
or,  when  thus  contracted,  the  condition  has 
been  performed.    Pothier,  Obi.  n.  176. 

PURE  PLEA.    In  Equity  Pleading. 

One  which  relies  wholly  on  some  matter  de- 


hors the  bill :  as,  for  example,  a  plea  of  a 
release  on  a  settled  account. 

Pleas  not  pure  are  so  called  in  contradis- 
tinction to  pure  pleas:  they  are  sometimea 
also  denominated  negative  pleas.  4  Bouvier, 
Inst.  n.  4275. 

PURGATION  {hat.  pvrgo ;  from  purum 
and  ago,  to  make  clean).  The  clearing  one's 
self  of  an  offence  charged,  by  denying  the 
guilt  on  oath  or  affirmation. 

Canonical  purgation  was  the  act  of  justi- 
fying one's  self,  v/hen  accused  of  some  ofience, 
in  the  presence  of  a  number  of  persons 
worthy  of  credit,  generally  twelve,  w^ho  would 
swear  they  believed  the  accused.  See  Com- 
purgator ;  Law  of  Wager. 

Vulgar  purgation  consisted  in  superstitious 
trials  by  hot  and  cold  water,  by  fire,  by  hot 
irons,  by  batell,  by  corsned,  etc. 

In  modern  times  a  man  may  purge  him- 
self of  an  offence  in  some  cases  where  the 
facts  are  within  his  own  knowledge:  for  ex- 
ample, w^hen  a  man  is  charged  with  a  con- 
tempt of  court,  he  may  purge  himself  of  such 
contempt  by  swearing  that  in  doing  the  act 
charged  he  did  not  intend  to  commit  a  con- 
tempt. 

PURGED  OF  PARTIAL  COUNSEL. 

In  Scotland,  every  witness,  before  making 
oath  or  affirmation,  is  purged  of  partial  coun* 
sel,  i.e.  cleared  by  examination  on  oath  of 
having  instigated  the  plea,  of  having  been 
present  with  the  party  for  whom  he  testifies 
at  consultations  of  lawyers,  where  it  might 
be  shown  what  was  necessary  to  be  proved, 
or  of  having  acted  as  his  agent  in  any  of  the 
proceedings.  So,  in  a  criminal  case,  he  who 
is  agent  of  prosecutor  or  who  tampers  with 
the  panel  cannot  be  heard  to  testify,  because 
of  partial  counsel.  Stair,  Inst.  p.  768,  §  9; 
Bell,  Diet.  Partial  Counsel. 

PURLIEU.  'In  English  Law.  A  space 
of  land  near  a  forest,  known  by  certain 
boundaries,  which  was  formerly  part  of  a 
forest,  but  which  has  been  separated  from  it. 

The  history  of  purlieus  is  this.  Henry  II.,  on 
taking  possession  of  the  throne,  manifested  so 
great  a  taste  for  forests  that  he  enlarged  the  old 
ones  wherever  he  could,  and  by  this  means  enclosed 
many  estates  which  had  no  outlet  to  the  public 
roads;  and  things  increased  in  this  way  until  the 
reign  of  king  John,  when  the  public  reclamations 
were  so  great  that  muc  h  of  this  land  was  disforested, 
— that  is,  no  longer  had  the  privileges  of  the 
forests ;  and  the  land  thus  separated  bore  the  name 
of  purlieu. 

PURPARTY.  That  part  of  an  estate 
which,  having  been  held  in  common  by  par- 
ceners, is  by  partition  allotted  to  any  of 
them.  To  make  purparty  is  to  divide  and 
sever  the  lands  which  fall  to  parceners.  Old 
Nat.  Brev.  11. 

PURPORT.  In  Pleading.  The  sub- 
stance of  a  writing  as  it  appears  on  the  face 
of  it  to  the  eye  that  reads  it.  It  differs  from 
tenor.    2  Russell,  Crimes,  365  ;  1  East,  179. 

PURPRESTURE.  An  enclosure  by  a 
private  individual  of  a  part  of  a  common  or 
public  domain. 


1 


PURSE 


396 


PUTTING  IN  FEAR 


According  to  Lord  Coke,  purpresture  is  a  close 
©r  enclosure,  that  is,  when  one  encroaches  or  makes 
several  to  himself  that  which  ought  to  be  in  com- 
mon to  many :  as,  if  an  individual  were  to  build 
between  high  and  low  water  mark  on  the  side  of  a 
public  river.  In  England  this  is  a  nuisance,  and 
in  cases  of  this  kind  an  injunction  will  be  granted, 
on  ex-pa rte  affidavits,  to  restrain  such  a  purpres- 
ture and  nuisance.  2  Bouvier,  Inst.  n.  2382  j  4  id. 
n.  3798;  Coke,  2d  Inst.  28.  And  see  Skene,  Puur- 
preaiure ;  Glanville,  lib.  9,  ch.  11,  p.  239,  note; 
iSpelman,  Gloss.  Purpresture  ;  Hale,  de  Port.  Mar.; 
Hargrave,  Law  Tracts,  84;  2  Anstr.  606;  Callis, 
Sew.  174. 

PURSE.  In  Turkey,  the  sum  of  five 
hundred  dollars.    Merch.  Diet. 

PURSER.  The  person  appointed  by  the 
master  of  a  ship  or  vessel,  whose  duty  it  is  to 
take  care  of  the  ship's  books,  in  which  every 
thing  on  board  is  inserted,  as  well  the  names 
of  mariners  as  the  articles  of  merchandise 
shipped.    Roccius,  Ins.  note. 

2.  The  act  of  congress  concerning  the  naval 
establishment,  passed  March  30,  1812,  provides,  ^ 
6,  that  the  pursers  in  the  navy  of  the  United  States 
shall  be  appointed  by  the  president  of  the  United 
States,  by  and  with  the  advice  and  consent  of  the 
senate ;  and  that  from  and  after  the  first  day  of 
May  next  no  person  shall  act  in  the  character  of 
purser  who  shall  not  have  been  thus  first  nomi- 
nated and  appointed,  excepting  pursers  on  distant 
service,  who  shall  not  remain  in  service  after  the 
first  day  of  July  next,  unless  nominated  and  ap- 
pointed as  aforesaid.  And  every  purser,  before 
entering  upon  the  duties  of  his  office,  shall  give 
bond,  with  two  or  more  sufficient  sureties,  in  the 
penalty  of  ten  thousand  dollars,  conditioned  faith- 
fully to  perform  all  the  duties  of  purser  in  the 
navy  of  the  United  States. 

3.  And  by  the  supplementary  act  to  this  act 
concerning  the  naval  establishment,  passed  March 
1,  1817,  it  is  enacted,  §  1,  that  every  purser  now  in 
service,  or  who  may  hereafter  be  appointed,  shall, 
instead  of  the  bond  required  by  the  act  to  which 
this  is  a  supplement,  enter  into  bond,  with  two  or 
more  sufficient  sureties,  in  the  penalty  of  twenty- 
five  thousand  dollars,  conditioned  for  the  faithful 
discharge  of  all  his  duties  as  purser  in  the  navy 
of  the  United  States,  which  said  sureties  shall  be 
approved  by  the  judge  or  attorney  of  the  United 
States  for  the  district  in  which  such  purser  shall 
reside.  By  act  of  congress  June  22,  1860,  pursers 
are  to  be  called  henceforth />oj/??ia«^er«. 

PURSUER.  The  name  by  which  the 
complainant  or  plaintiff  is  known  in  the 
ecclesiastical  courts.    3  Eccl.  350. 

PURVEYOR.  One  employed  in  pro- 
curing provisions.    See  Code,  1.  34. 

PURVIEW.    That  part  of  an  act  of  the 

legislature  M^hich  begins  with  the  words,  "Be 
it  enacted,"  etc.,  and  ends  before  the  repeal- 
ing clause.  Cooke,  Tenn.  330 ;  3  Bibb,  Ky. 
181.  According  to  Cowel,  this  word  also 
signifies  a  conditional  gift  or  grant.  It  is 
said  to  be  derived  from  the  French  pourvu, 

frovided.  It  always  implies  a  condition, 
nterpreter. 

PUT.  In  Pleading.  To  select;  to  de- 
mand :  as,  "  the  said  C  D  puts  himself  upon 
the  country that  is,  he  selects  the  trial  by 
jury  as  the  mode  of  settling  the  matter  in 
dispute,  and  does  not  rely  upon  an  issue  in 
law.    Gould,  Plead,  c.  C,  part  1,  2  19. 


PUTATIVE.  Reputed  to  be  that  whici 
is  not.  The  word  is  frequently  used:  as,  puta/- 
tive  father,  putative  marriage,  putative  wife, 
afid  the  like.  And  Toullier,  tome  7,  n.  29,  usea 
the  words  putative  owner,  propriitaire putatif. 
Lord  Kames  uses  the  same  expression.  Prino. 
of  Eq.  391. 

PUTATIVE  FATHER.    The  reputed 
father. 

This  term  is  most  usually  applied  to  the 
father  of  a  bastard  child. 

The  putative  father  is  bound  to  support 
his  children,  and  is  entitled  to  the  guardian- 
ship and  care  of  them  in  preference  to  all 
persons  but  the  mother.  1  Ashm.  Penn.  55. 
And  see  7  East,  11 ;  5  Esp.  131 ;  1  Barnew. 
&  Aid.  491 ;  Bott,  Poor  Law,  499  ;  1  Carr.  & 
P.  268  ;  3  id.  36 ;  1  Ball  &  B.  Ch.  Ir.  1 ;  3 
Moore,  211. 

PUTATIVE  MARRIAGE.  A  mar- 
riage which  is  forbidden  but  which  has  been 
contracted  in  good  faith  and  ignorance  of 
the  impediment  on  the  part  of  at  least  one 
of  the  contracting  parties. 

2.  Three  circumstances  must  concur  to 
constitute  this  species  of  marriage.  There 
must  he  a  bond  Jides.  One  of  the  parties  at 
least  must  have  been  ignorant  of  the  impedi- 
ment, not  only  at  the  time  of  the  marriage, 
but  must  also  have  continued  ignorant  of  it 
during  his  or  her  life,  because  if  he  became 
aware  of  it  he  was  bound  to  separate  himself 
from  his  wife.  The  marriage  must  he  duly 
solemnized.  The  marriage  must  have  been 
considered  lawful  in  the  estimation  of  the 
parties  or  of  that  party  who  alleges  the  bond 
jides. 

3.  A  marriage  in  which  these  three  cir- 
cumstances concur,  although  null  and  void, 
will  have  the  effect  of  entitling  the  wife,  if 
she  be  in  good  faith,  to  enforce  the  rights  of 
property  which  would  have  been  competent 
to  her  if  the  marriage  had  been  valid,  and  ( 
of  rendering  the  children  of  such  marriage  j 
legitimate.  i 

This  species  of  marriage  was  not  recognized  < 
by  the  civil  law :  it  was  introduced  by  the 
canon  law.  It  is  unknown  to  the  law  of  the 
United  States,  and  in  England  and  Ireland. 
In  France  it  has  been  adopted  by  the  Code 
Civil,  art.  201,  202.  In  Scotland  the  ques- 
tion  has  not  been  settled.  Burge,  Confl.  of 
Laws,  151,  152. 

PUTTING  IN  FEAR.  These  words  are 
used  in  the  definition  of  a  robbery  from  the 
person :  the  offence  must  have  been  com- 
mitted by  putting  in  fear  the  person  robbed. 
Coke,  3d  Inst.  68;  4  Sharswood,  Blackst, 
Comm.  243. 

2.  This  is  the  circumstance  which  dis- 
tinguishes robbery  from  all  other  larcenies. 
But  what  force  must  be  used  or  what  kind  of 
fears  excited  are  questions  very  proper  for 
discussion.  The  goods  must  be  taken  against 
the  will  of  the  possessor. 

3.  There  must  either  be  a  putting  in  fear 
or  actual  violence,  though  both  need  not  be 
positively  shown,  for  the  former  will  be  iD" 


PUTTING  IN  FEAR  397 


QU^STIO 


ferred  from  the  latter,  and  the  latter  is  suf- 
ficiently implied  in  the  former.  For  example, 
when  a  man  is  suddenly  knocked  down,  and 
robbed  while  he  is  senseless,  there  is  no  fear, 
yet,  in  consequence  of  the  violen^^e,  it  is  pre- 
Sumed.    2  East,  PI.  Cr.  711 ;  4  Binn.  Penn. 


379 ;  3  Wash.  C.  C.  209 ;  2  Chitty,  Crim.  Law 
803. 

In  an  indictment  for  robbery,  at  common 
law,  it  is  not  necessary  to  allege  a  putting  in 
fear  in  addition  to  the  allegation  of  force  and 
violence.    7  Mass.  242 ;  8  Cush.  Mass.  217. 


Q. 


QUACK.  One  who,  without  sufficient 
knowledge,  study,  or  previous  preparation, 
undertakes  to  practise  medicine  or  surgery, 
under  the  pretence  that  he  possesses  secrets 
in  those  arts. 

The  origin  of  the  word  quack  is  not  clearly  as- 
certained.   Johnson  derives  it  from  the  word  to 
quack,  or  gabble  like  a  goose.    Butler  uses  this 
rerb  as  descriptive  of  the  encomiums  empirics  heap 
upon  their  nostrums.    Thus,  in  Hudibras, 
"  Believe  mechanic  virtuosi 
Can  raise  them  mountains  in  Potosi, 
Seek  out  lor  plants  with  signatures 
To  quack  of  universal  cures." 
The  Egyptian  hieroglyphic  for  a  doctor  was  a 
duck;  and  it  has  been  a  question  whether  this  may 
not  form  a  clue  to  the  derivation  of  the  word  quack. 
The  English  quack— or  quacksalber,  as  it  was  origin- 
ally written — is  from  the  German  quacksalber,  or 
rather  the  Dutch  kwakaalver,  which  Bilderdyk  states 
should  be  more  properly  kwabsalver,  from  kwah,  a 
wen,  and  zulver,  to  salve  or  anoint.    6  Notes  & 
Queries. 

To  call  a  regular  physician  a  quack  is 
actionable.  A  quack  is  criminally  ansvrer- 
able  for  his  unskilful  practice,  and  also  civilly 
to  his  patient  in  certain  cases.  See  Mal- 
practice; Physician. 

QUADRANS  (Lat.).  In  Civil  Law.  The 
fourth  part  of  the  whole.  Hence  the  heir  ex 
quadranie ;  that  is  to  say,  of  the  fourth  part 
of  the  whole. 

QUADRANT.  In  angular  measures,  a 
quadrant  is  equal  to  ninety  degrees.  See 
Measure. 

QUADRIENNIUM  UTILE  (Lat.).  In 
Scotch  Law.  The  four  years  of  a  minor 
between  his  age  of  twenty-one  and  twenty- 
five  years  are  so  called. 

During  this  period  he  is  permitted  to  im- 
peach contracts  made  against  his  interest 
previous  to  his  arriving  at  the  age  of  twenty- 
one  years.  Erskine,  Inst.  1. 7. 19.  35 ;  1  Bell, 
Comm.  135,  5th  ed. 

QUADRIPARTITE  (Lat.).  Having  four 
parts,  or  divided  into  four  parts:  as,  this  in- 
denture quadripartite,  made  between  AB,  of 
the  one  part,  C  D,  of  the  second  part,  E  F,  of 
the  third  part,  and  G  H,  of  the  fourth  part. 

QUADROON.  A  person  who  is  de- 
scended from  a  white  person  and  another 
person  who  has  an  equal  mixture  of  the 
European  and  African  blood.  2  Bail.  So.  C. 
558.    See  Mulatto 


QUADRUPLICATION.   In  Pleading 

Formerly  this  word  was  used  instead  of  sur- 
rebutter.   1  Brown,  Civ.  Law,  469,  n. 

QUiE  EST  EADEM  (Lat.  which  is 
the  same).  In  Pleading.  A  clause  con- 
taining a  statement  that  the  trespass,  or  other 
fact  mentioned  in  the  plea,  is  the  same  as  that 
laid  in  the  declaration,  where  from  the  cir- 
cumstances there  is  an  apparent  difi'erence 
between  the  two.  1  Chitty,  Plead.  473, 
Gould,  Plead,  c.  3,     79,  80;  29  Vt.  455. 

The  form  is  as  follows:  "which  are  the 
same  assaulting,  beating,  and  ill-treating,  the 
said  John,  in  the  said  declaration  mentioned, 
and  whereof  the  said  John  hath  above 
thereof  complained  against  the  said  James." 
See  1  Saund.  14,  208,  n.  2;  2  id.  5  a,  n.  3 ; 
Archbold,  Civ.  Plead.  217;  Comyns,  Dig. 
Pleader  (E  31);  Croke  Jac.  372;  1  Chitty, 
Plead.  473. 

QUiERE  (Lat.).  In  Practice.  A  word 
frequently  used  to  denote  that  an  inquiry 
ought  to  be  made  of  a  doubtful  thing.  2  Lilly, 
Abr.  406. 

QUiERENS  NON  INVENIT  PLE- 
GIUM  (Lat.).  In  Practice.  The  plaintiff 
has  not  found  pledge.  The  return  made  by 
the  sheriff  to  a  writ  directed  to  him  with  this 
clause,  namely,  si  A  facerit  B  securum  de 
clamore  sno  prosequando,  when  the  plaintiff 
has  neglected  to  find  sufficient  security.  Fitz- 
herbert,  Nat.  Brev.  38. 

QUiESTIO  (Lat.).  In  Roman  Law.  A 
sort  of  commission  {ad  qucerendvm)  to  inquire 
into  some  criminal  matter  given  to  a  magis- 
trate or  citizen,  who  was  called  qnctsitor  or 
qucestor,  who  made  report  thereon  to  the  senate 
or  the  people,  as  the  one  or  the  other  appointed 
him.  In  progress  of  time  he  was  empowered 
(with  the  assistance  of  a  counsel)  to  adjudge 
the  case;  and  the  tribunal  thus  constituted 
was  called  qucesiio. 

2.  This  special  tribunal  continued  in  use  until 
the  end  of  the  Koman  republic,  although  it  was 
resorted  to,  during  the  last  times  of  the  republic, 
only  in  extraordinary  cases. 

The  manner  in  which  they  were  constituted  was 
this.  If  the  matter  to  be  inquired  of  was  within 
the  jurisdiction  of  the  comitia,  the  senate,  on  the 
demand  of  the  consul,  or  of  a  tribune,  or  of  one  of 
its  members,  declared  by  a  decree  that  there  was 
cause  to  prosecute  a  citizen.  Then  the  consul  ex 
I  auctoritate  aenatus  asked  the  people  in  comitia 


QU.ESTOR 


393 


QUANDO  ACCIDERINT 


(rogabnt  royatio)  to  enact  this  decree  into  a  law. 
The  comitia  adopted  it,  either  simply  or  with 
amendment,  or  they  rejected  it. 

3.  The  increise  of  population  and  of  crimes 
rendered  this  method,  which  was  tardy  at  best,  j 
onerous,  and  even  impracticable.  In  the  year 
A.u.c.  604,  or  149  B.C.,  under  the  consulship  of 
Censorinus  and  Manilius,  the  tribune  Calpurnius 
Piso  procured  the  passage  of  a  law  establishing  a 
questid perjietua,  to  take  cognizance  of  the  crime  of 
extortion  committed  by  Roman  magistrates  against 
etrangers  de  pecuniia  repettindis.  Cicero,  Brut.  27} 
de  Off.  li.  21 ;  in  Verr.  iv.  25. 

4.  Many  such  tribunals  were  afterwards  esta- 
blished, such  as  Qusestioues  de  majestate,  de  am- 
bitu,  de  peculatu,  de  vi,  de  sodalitiis,  etc.  Each 
was  composed  of  a  certain  number  of  judges  taken 
from  the  senators,  and  presided  over  by  a  prgetor, 
although  he  might  delegate  his  authority  to  a 
public  officer,  who  was  called  judex  qiicestionis. 
These  tribunals  continued  a  year  only;  for  the 
meaning  of  the  word  2)eipetuus  is  {non  interrupt  as), 
not  interrupted  during  the  term  of  its  appointed 
duration. 

5.  The  establishment  of  these  qumtioneH  de- 
prived the  comitia  of  their  criminal  jurisdiction, 
except  the  crime  of  treason :  they  were,  in  fact,  the 
depositories  of  the  judicial  power  during  the  sixth 
and  seventh  centuries  of  the  Roman  republic,  the 
last  of  which  was  remarkable  for  civil  dissensions 
and  replete  with  great  public  transactions.  With- 
out some  knowledge  of  the  constitution  of  the 
Qnsestio  perpetua,  it  is  impossible  to  understand  the 
forensic  speeches  of  Cicero,  or  even  the  political 
history  of  that  age.  But  when  Julius  Cajsar.  as 
dictator,  sat  for  the  trial  of  Ligarius,  the  ancient 
constitution  of  the  republic  was,  in  fact,  destroyed, 
and  the  criminal  tribunals,  which  had  existed  in 
more  or  less  vigor  and  purity  until  then,  existed 
no  longer  but  in  name.  Under  Augustus,  the  con- 
centration of  the  triple  power  of  the  consuls,  pro- 
consuls, and  tribunes  in  his  person  transferred  to 
nim,  as  of  course,  all  judicial  powers  and  authori- 
ties. 

QUiESTOR  (Lat.).  The  name  of  a 
magistrate  of  ancient  Rome. 

QUAKERS.    A  sect  of  Christians. 

Formerly  they  were  much  persecuted  on 
account  of  their  peaceable  principles,  which 
forbade  them  to  bear  arms,  and  they  were 
denied  many  rights  because  they  refused  to 
make  corporal  oath.  They  are  relieved  in  a 
great  degree  in  the  states  of  the  United  States 
from  the  penalties  for  refusing  to  bear  arms; 
and  their  affirmations  are  everywhere  in  the 
United  States,  it  is  believed,  taken  instead  of 
their  oaths. 

QUALIFICATION.  Having  the  requi- 
site qualities  for  a  thing:  as,  to  be  president 
of  the  United  States,  the  candidate  must  pos- 
sess certain  qualifications. 

QUALIFIED  FEE.  One  which  has  a 
qualification  subjoined  to  it,  and  which  must 
be  determined  whenever  the  qualification  an- 
nexed to  it  is  at  an  end.  A  limitation  to  a 
man  and  his  heirs  on  the  pari  of  his  father 
affords  an  exatnplc  of  this  species  of  estate. 
Littleton,  ^  254;  2  Bouvicr,  Inst.  n.  1695. 

QUALIFIED  INDORSEMENT.  A 
transfer  of  a  bill  of  exchange  or  promissory 
note  to  an  indorsee,  without  any  liability  to 
the  indorser:  the  words  usually  employed  lor 
this  purpose  are  sans  recours,  without  re- 
course.   1  Bouvier,  Inst.  n.  1138. 


QUALIFIED  PROPERTY.  Proper 
not  in  its  nature  permanent,  but  which  ma^ 
sometimes  subsist  and  at  other  times  not  sub- 
sist. A  defeasible  and  precarious  ownership, 
which  lasts  as  long  as  the  thing  is  in  actual 
use  and  occupation  :  e.g.,  frst,  property  iu 
animals  yeroe  naturce,  or  in  light,  or  air,  where 
the  qualified  property  arises  from  the  nature 
of  the  thing  ;  second,  property  in  a  thing 
held  by  any  one  as  a  bailee,  where  the  quali- 
fied property  arises  not  from  the  nature  of 
the  thing,  but  from  the  peculiar  circumstanc^es 
under  which  it  is  held.  2  Sharswood,  Blackst. 
Comm.  391,  395*;  2  Kent,  Comm.  347;  2 
Wooddeson,  Lect.  385. 

Any  ownership  not  absolute. 

QUALITY.  Persons.  The  state  or  con- 
dition of  a  person. 

Two  contrary  qualities  cannot  be  in  the 
same  person  at  the  same  time.  Dig.  41.  10. 
4.  Every  one  is  presumed  to  know  the  quality 
of  the  person  with  whom  he  is  contracting. 
In  the  United  States  the  people  happily  are 
all  upon  an  equality  in  their  civil  rights. 

In  Pleading.  That  which  distinguishes 
one  thing  from  another  of  the  same  kind. 

2.  It  is,  in  general,  necessary,  when  the  de- 
claration alleges  an  injury  to  the  goods  and 
chattels,  or  any  contract  relating  to  them, 
that  the  quality  should  be  stated ;  and  it  is> 
also  essential,  in  an  action  for  the  recovery 
of  real  estate,  that  its  quality  should  be  shown: 
as,  whether  it  consists  of  houses,  lands,  or 
other  hereditaments,  whether  the  lands  are 
meadow,  pasture,  or  arable,  etc.  The  same 
rule  requires  that,  in  an  action  for  an  injury  ^ 
to  real  property,  the  quality  should  be  shown. 
Stephen,  Plead.  214,  215.  See,  as  to  the  vari- 
ous qualities,  Ayliife,  Pand.  [60]. 

3.  It  is  often  allowable  to  omit  from  the 
indictment,  and  it  is  seldom  necessary  to 
prove  with  precision,  allegations  of  quality, 
or,  in  other  words,  those  allegations  which 
describe  the  mode  in  which  certain  acts  have  j 
been  done.     Thus,  if  the  charge  is  of  a  { 
felonious  assault  with  a  staff,  and  the  proof  ^ 
is  of  such  an  assault  with  a  stone,  or  if  a ; 
wound,  alleged  to  have  been  given  with  a  \ 
sword,  is  proved  to  have  been  inflicted  by  an 
axe,  or  if  a  pistol  is  stated  to  have  been 
loaded  with  a  bullet,  and  it  turns  out  to  have 
been  loaded  with  some  other  destructive  mate- 
rial, the  charge  is  substantially  proved,  and 
no  variance  occurs.    1  East,  PI.  Cr.  341  ;  5 
Carr.  &  P.  128 ;  9  id.  525,  548. 

QUAMDIU  SE  BENE  GESSERIT 
(Lat.  as  long  as  he  shall  behave  himself  well). 
A  clause  inserted  in  commissions,  when  such 
instruments  were  written  in  Latin,  to  signify 
the  tenure  by  which  the  officer  held  his  office. 

QUANDO  ACCIDERINT  (Lat.  when 
thev  fall  in). 

In  Practice.  When  a  defendant,  execu- 
tor or  administrator,  pleads  plcne  adminis' 
travit,  the  plaintiff  may  pray  to  have  jud|f» 
ment  of  assets  quando  accideriiii.  Bullor, 
Nisi  P.  1G9 ;  Bacon,  Abr.  Executor  (M). 

By  taking  a  judgment  in  this  form  thf 


QUANTI  MINORIS  3'J9  QUARE 


plaiutiff  admits  that  the  defendant  has  fully 
,  administered  to  that  time.  1  Pet.  C.  C.  442, 
n.  See  11  Viner,  Abr.  379 ;  Comyns,  Dig. 
Pleader  (2  D  9). 

!    QUANTI  MINORIS  (Lat.).   The  name 

1  of  a  particular  action  in  Louisiana.  An  ac- 
tion quanii  minoris  is  one  brought  for  the  re- 
duction of  the  price  of  a  thing  sold,  in  conse- 
quence of  defects  in  the  thing  which  is  the 
object  of  the  sale. 

Such  action  must  be  commenced  within 
twelve  months  from  the  date  of  the  sale,  or 
from  the  time  within  which  the  defect  became 
known  to  the  purchaser.  3  Mart.  La.  n.  s. 
287;  11  Mart.  La.  11. 

QUANTITY.  In  Pleading.  That 
which  is  susceptible  of  measure. 

It  is  a  general  rule  that,  when  the  declara- 
tion alleges  an  injury  to  goods  and  chattels, 
or  any  contract  relating  to  them,  their  quan- 
tity should  be  stated.  Gould,  Plead,  c.  4,  g 
35.  And  in  actions  for  the  recovery  of  real 
estate  the  quantity  of  the  land  should  be 
specified.  Bracton,  431  a;  11  Coke,  25  6, 
55  a  ;  Doctrina  Plac.  85,  86 ;  1  East,  441 ;  8  id. 
357;  Vd  id.  102;  Stephen,  Plead.  314,  315. 

QUANTUM  DAMNIFICATUS  (Lat.). 
In  Equity  Practice.  An  issue  directed  by  a 
court  of  equity  to  be  tried  in  a  court  of  law, 
to  ascertain  by  a  trial  before  a  jury  the 
amount  of  damages  suffered  by  the  non-per- 
formance of  some  collateral  undertaking 
which  a  penalty  has  been  given  to  secure. 
When  such  damages  have  thus  been  ascer- 
tained, the  court  will  grant  relief  upon  their 
payment.    4  Bouvier,  Inst.  n.  3913. 

QUANTUM  MERUIT  (Lat.).  In 
Pleading.    As  much  as  he  has  deserved. 

2.  When  a  person  employs  another  to  do 
work  for  him,  without  any  agreement  as  to  his 
compen,sation,  the  law  implies  a  promise  from 
the  employer  to  the  workman  that  he  will  pay 
him  for  his  services  as  much  as  he  may  deserve 
or  merit.  In  such  case  the  plaintiff  may  sug- 
gest in  his  declaration  that  the  defendant  pro- 
mised to  pay  him  as  much  as  he  reasonably 
deserved,  and  then  aver  that  his  trouble  was 
worth  such  a  sum  of  money,  which  the  de- 
fendant has  omitted  to  pay.  This  is  called 
an  assumpsit  on  a  quantum  meruit.  2  Black- 
stone,  Comm.  162,  163  ;  1  Viner,  Abr.  346  ; 

2  Phillipps,  Ev.  82. 

3.  When  there  is  an  express  contract  for  a 
stipulated  amount  and  mode  of  compensation 
for  services,  the  plaintiff  cannot  abandon  the 
contract  and  resort  to  an  action  for  a  quan- 
tum meruit  on  an  implied  assumpsit.  14 
Johns.  N.  Y.  326 ;  18  id.  169  ;  10  Serg.  &  R. 
Penn.  236.  But  see  7  Cranch,  299 ;  Stark. 
277  ;  Holt,  Nisi  P.  236;  10  Johns.  36 ;  12  id. 
374 ;  13  id.  56,  94,  359  ;  14  id.  326  ;  5  Mees.  & 
W.  Exch.  114 ;  4  Carr.  &  P.  93  ;  4  Scott,  n.  s. 
374 ;  4  Taunt.  475  1  Ad.  &  E.  333  ;  Addison, 
Contr.  214. 

QUANTUM  VALEBAT  (Lat.  as  much 
as  it  was  worth).  In  Pleading.  When  goods 
are  sold  without  specifying  any  price,  the  law 


implies  a  promise  from  the  buyer  to  the  seller 
that  he  will  pay  him  for  them  as  much  as 
they  were  worth. 

The  plaintiff  may,  in  such  case,  suggest 
in  this  declaration  that  the  defendani  pro- 
mised to  pay  him  as  much  as  the  said  goods 
were  worth,  and  then  aver  that  they  were 
worth  so  much,  which  the  defendant  has 
refused  to  pay.  See  the  authorities  cited 
under  the  article  Quantum  Meruit. 

QUARANTINE.    In  Maritime  Law. 

The  space  of  forty  days,  or  less,  dui-ing  which 
the  crew  of  a  ship  or  vessel  coming  from  a 
port  or  place  infected  or  supposed  to  be  in- 
fected with  disease  are  required  to  remain 
on  board  after  their  arrival,  before  they  can 
be  permitted  to  land. 

Si.  The  object  of  the  quarantine  is  to  ascer- 
tain whether  the  crew  are  infected  or  not. 

To  break  the  quarantine  without  legal  au- 
thority is  a  misdemeanor.  1  Russell,  Crimes, 
133. 

In  cases  of  insurance  of  ships,  the  insurei 
is  responsible  when  the  insurance  extends  to 
her  being  moored  in  port  twenty-four  hours 
in  safety,  although  she  may  have  arrived,  if 
before  the  twenty-four  hours  are  expired  she 
is  ordered  to  perform  quarantine,  if  any  acci- 
dent contemplated  by  the  policy  occur.  1 
Marshall,  Ins.  264. 

In  Real  Property.  The  space  of  forty 
days  during  which  a  widow  has  a  right  to 
remain  in  her  late  husband's  principal  man- 
sion immediately  after  his  death.  The  right 
of  the  widow  is  also  called  her  quarantine. 

3.  In  some,  perhaps  all,  of  the  states  of  the 
United  States,  provision  has  been  expressly 
made  by  statute  securing  to  the  widow  this 
right  for  a  greater  or  lesser  space  of  time.  In 
Massachusetts,  Mass.  Gen.  Stat.  c.  90,  1 18, 
and  New  York,  4  Kent,  Comm.  62,  the  widow 
is  entitled  to  the  mansion-house  for  forty  days; 
in  Ohio  and  North  Carolina,  for  one  year. 
Walker,  Am.  Law,  231,  324.  In  Alabama, 
Indiana,  Illinois,  Kentucky,  Missouri,  New 
Jersey,  Rhode  Island,  and  Virginia,  she  may 
occupy  till  dower  is  assigned  ;  in  Indiana, 
Illinois,  Kentucky,  Missouri,  New  Jersey,  and 
Virginia,  she  may  also  occupy  the  plantation 
or  messuage.  In  Pennsylvania  the  statute  of 
9  Hen.  HI.  c.  7,  is  in  force,  Rob.  Dig.  176, 
by  which  it  is  declared  that  "  a  widow  shall 
tarry  in  the  chief  house  of  her  husband  forty 
days  after  his  death,  within  which  her  dower 
shall  be  assigned  her.''  In  Massachusetts 
the  widow  is  entitled  to  support  and  supplies 
for  the  house  for  forty  days  ;  in  North  Carc>- 
lina,  for  one  year. 

4.  Quarantine  is  a  personal  right,  for- 
feited, by  implication  of  law,  by  a  second 
marriage.  Coke,  Litt.  32.  See  Ind.  Rev.  L. 
209  ;  1  Ya.  Rev.  Code,  170  ;  Ala.  Laws,  260  , 
Mo.  St.  229  ;  111.  Rev.  Laws,  237  ;  N.  J. 
Rev.  Code,  397 ;  1  Ky.  Rev.  Laws,  573.  See 
Bacon,  Abr.  Dower  (B) ;  Coke,  Litt.  32  6, 
34  6;  Coke,  2d  Inst.  16,  17. 

QUARE  (Lat.).  In  Pleading.  AYhere- 
fore. 


QUARE  CLAUSUM  FREGIT 


400 


QUASH 


This  word  is  sotoetimes  used  in  the  writ  in  cer- 
tain actions,  but  is  inadmissible  in  a  material  aver- 
ment in  the  pleadings,  for  it  is  merely  interrogatory  ; 
and,  therefore,  when  a  declaration  began  with  com- 
plaining of  the  defendant,  "  wherefore  with  force, 
etc.  he  broke  and  entered"  the  plaintiff's  close,  it 
was  considered  ill.  Bacon,  Abr.  Pleas  (B  5,  4); 
aould,  Plead,  c.  3,  ?  34. 

QUARE  CLAUSUM  FREGIT.  See 

Trespass. 

QUARE  EJECIT  INFRA  TERMI- 
NUM.    See  Ejectment. 

QUARE  IMPEDIT  (Lat.  why  he  hin- 
ders). In  English  Law.  A  real  possessory 
action  which  can  be  brought  only  in  the  court 
of  common  pleas,  and  lies  to  recover  a  pre- 
sentation when  the  patron's  right  is  disturbed, 
or  to  try  a  disputed  title  to  an  advowson.  See 
Disturbance  ;  Mirehouse,  Advow.  265 ;  2 
Saund.  336  a. 

QUARE   OBSTRUXIT  (Lat.  why  he 

obstructs).  The  name  of  a  writ  formerly  used 
in  favor  of  one  who,  having  a  right  to  pass 
through  his  neighbor's  grounds,  was  pre- 
vented enjoying  such  right,  because  the  owner 
of  the  grounds  had  obstructed  the  way. 

QUARREL.  A  dispute ;  a  difference. 
In  law,  particularly  in  releases,  which  are 
taken  most  strongly  against  the  releasor, 
when  a  man  releases  all  quarrel  he  is  said 
to  release  all  actions,  real  and  personal.  8 
Coke,  153. 

QUARRY.  A  place  whence  stones  are 
dug  for  the  purpose  of  being  employed  in 
building,  making  roads,  and  the  like. 

When  a  farm  is  let  with  an  open  quarry, 
the  tenant  may,  when  not  restrained  by  his 
contract,  take  out  the  stone ;  but  he  has  no 
right  to  open  new  quarries.  See  Mines  ; 
Waste. 

QUART.  A  liquid  measure,  containing 
one-fourth  part  of  a  gallon. 

QUARTER.  A  measure  of  length,  equal 
to  four  inches.    See  Measure. 

QUARTER-DAYS.  The  four  days  of 
the  year  on  which  rent  payable  quarterly 
becomes  due. 

QUARTER-DOLLAR.  A  silver  coin 
of  the  United  States,  of  the  value  of  twenty- 
five  cents. 

Previous  to  the  act  of  Feb.  21,  1853,  c.  79,  10  U. 
S.  Stat,  at  Large,  160,  the  weight  of  the  quarter-dol- 
lar was  one  hundred  and  three  and  one-eighth 
grains;  but  the  coins  struck  since  the  passage  of 
that  a»t  are  of  the  weight  of  ninety-six  grains. 
The  fineness  was  not  altered  by  the  act  cited :  of 
one  thousand  parts,  nine  hundred  are  pure  silver 
and  one  hundred  alloy.  Quarter-dollars  issued 
before  February,  1853,  are  a  legal  tender  to  any 
amount ;  those  coined  since  that  period  are  a  legal 
tender  in  payment  of  debts  for  sums  not  exceeding 
Ave  dollars. 

See  IlAt-F-DoLLAn,— in  which  the  change  in  the 
weight  of  silver  coins  is  more  fully  noticed. 

QUARTER-EAGLE.  A  gold  coin  of 
the  United  States,  of  the  value  of  two  and  a 
half  dolhirs.    See  Money  ;  Coin. 

QUARTER-SALES.    In  New  York,  a 


certain  fraction  of  the  purchase-money  is  often 
conditioned  to  be  paid  back  on  alienation  of 
the  estate ;  and  this  fine  on  alienation  is  ex* 
pressed  as  a  tenth-sales,  a  quarter-sales,  etc.  7 
Cow.  N.  Y.  285 ;  7  Hill,  N.  Y.  253 ;  7  N.  Y.  490. 

QUARTER  SEAL.  In  Scotch  Law. 
The  seal  kept  by  the  director  of  the  chancery 
in  Scotland  is  so  called.  It  is  in  the  shapd 
and  impression  of  the  fourth  part  of  th# 
great  seal.    Bell,  Diet. 

QUARTER  SESSIONS.  A  court  bear- 
ing  this  name,  mostly  invested  with  the  trial 
of  criminals.  It  takes  its  name  from  sitting 
quarterly,  or  once  in  three  months. 

The  English  courts  of  quarter  sessions 
were  erected  during  the  reign  of  Edward  III. 
See  Stat.  36  Edw.  III.;  Crabb,  Eng.  Law, 
278. 

QUARTER-YEAR.  In  the  computa* 
tion  of  time,  a  quarter-year  consists  of  ninety* 
one  days.  Coke,  Litt.  135  b;  2  Rolle.  Abr, 
521, 1. 40  ;  N.  Y.  Rev.  Stat.  pt.  1,  c.  19, 1. 1,  ^  3. 

QUARTERING.  A  barbarous  punish- 
ment formerly  inflicted  on  criminals  by  tear- 
ing them  to  pieces  by  means  of  four  horses, 
one  attached  to  each  limb. 

QUARTERING  OF  SOLDIERS.  Fur- 
nishing soldiers  with  board  or  lodging  or 
both.  The  constitution  of  the  United  States, 
Amendm.  art.  3,  provides  that  "  no  soldier 
shall,  in  time  of  peace,  be  quartered  in  any 
house  without  the  consent  of  the  owner,  nor  in 
time  of  war  but  in  a  manner  to  be  prescribed 
by  law." 

QUARTEROON.  One  who  has  had  one, 
of  his  grandparents  of  the  black  or  African; 
race. 

QUARTO  DIE  POST  (Lat.  fourth  day 
after).  Appearance-day,  which  is  the  fourth 
day  inclusive  from  the  return  of  the  writ; 
and  if  the  person  summoned  appears  on  that' 
day,  it  is  sufficient.  On  this  day,  also,  thd' 
court  begins  to  sit  for  despatch  of  business.; 
These  three  days  were  originally  given  as  att' 
indulgence.  3  Sharswood,  Blackst.  Comm*) 
278*  ;  Tidd,  New  Pract.  134.  But  this  prac* 
tice  is  now  altered.    15  &  16  Vict.  c.  76.  ? 

QUASH.  In  Practice.  To  overthrow 
or  annul. 

2.  AVhen  proceedings  are  clearly  irregulat 
and  void,  the  courts  will  quash  them,  both  in 
civil  and  criminal  cases :  for  example,  when 
the  array  is  clearly  irregular,  as,  if  the  jurors 
have  been  selected  by  persons  not  authorized 
by  law,  it  will  be  quashed.  3  Bouvier,  Inst, 
n.  3342. 

In  criminal  cases,  when  an  indictment  id 
so  defective  that  no  judgment  can  be  given 
upon  it,  should  the  defendant  be  convicted, 
the  court,  upon  application,  will,  in  general, 
quash  it:  as,  if  it  have  no  jurisdiction  of  the 
offence  charged,  or  when  the  matter  charged 
is  not  indictable.  1  Burr.  516,  543  ;  Andr. 
226.  It  is  in  the  discretion  of  the  court  to 
quash  an  indictment  or  to  leave  the  defend- 
ant to  a  motion  in  arrest  of  judgment.  1 
Cash.  Mass.  189.    When  the  application  to 


QUASI 


401 


QUASI-CORPORATIONS 


quash  is  made  on  the  part  of  the  defendant, 
in  English  practice,  the  court  generally  re- 
fuses to  quash  the  indictment  when  it  appears 
Bonie  enormous  crime  has  been  committed, 
Comyns,  Dig.  Indictment  (II);  Wils.  325;  1 
Salk.  372  ;  3  Term,  G21 ;  5  Mod.  13 ;  G  id.  42  ; 
3  Burr.  1841;  Bacon,  Abr.  Lidictment  (K). 

3.  When  the  application  is  made  on  the 
pirt  of  the  prosecution,  the  indictment  will 
bo  quashed  whenever  it  is  defective  so  that 
the  defendant  cannot  be  convicted,  and  the 
prosecution  appears  to  be  bond  Jide.  If  the 
prosecution  be  instituted  by  the  attorney- 
general,  he  may,  in  some  states,  enter  a  nolle 
prosequi,  which  has  the  same  effect.  1  Dougl. 
239,  240.    The  application  should  be  made 

,  before  plea  pleaded,  Leach,  11;  4  State  Tr. 
232  ;  1  Hale,  35  ;  Fost'.  231,  and  before  the 
defendant's  recognizance  has  been  forfeited. 

,  1  Salk.  380.    See  Cassetur  Breve. 

QUASI  (Lat.  as  if,  almost).  A  term 
used  to  mark  a  resemblance,  and  which 
supposes  a  little  difference  between  two  ob- 
jects.   Dig.  11.  7.  1.  8.  1.    Civilians  use  the 

.  expressions  quasi-contr actus,  quasi-delictum, 
quasi-possessio,  quasi-tradiiio,  etc. 

QUASI-AFFINITY.  In  Civil  Law. 
The  affinity  which  exists  between  two  per- 
sons,  one  of  whom  has  been  betrothed  to  the 
kindred  of  the  other,  but  who  have  never  been 

■  married. 

I     For  example  :  my  brother  is  betrothed  to  Maria, 
I  and  afterwards,  before  marriage,  he  dies,  there 
;  then  exists  between  Maria  and  me  a  quasi-affinity. 
The  history  of  England  furnishes  an  example  of 
this  kind,    Catherine  of  Arragon  was  betrothed  to 
the  brother  of  Henry  VIII.    Afterwards,  Henry 
i  married  her,  and  under  the  pretence  of  this  quasi- 
:  affinity  he  repudiated  her,  because  the  marriage 
was  incestuous. 

QUASI-CONTRACTUS  (Lat.).  In 
Civil  Law.  The  act  of  a  person,  permitted 
by  law,  by  which  he  obligates  himself  towards 
another,  or  by  which  another  binds  himself 
to  him,  without  any  agreement  between 
them. 

By  article  2272  of  the  Civil  Code  of  Louisiana, 
which  is  translated  from  article  1371  of  the  Code 
Civil,  quasi-contracts  are  defined  to  be  "the  lawful 
and  purely  voluntary  acts  of  a  man,  from  which 
there  results  any  obligation  whatever  to  a  third 
person,  and  sometimes  a  reciprocal  obligation  be- 
tween the  parties."  In  contracts,  it  is  the  consent 
of  the  contracting  parties  which  produces  the  obli- 
gation ;  in  quasi-contracts  no  consent  is  required, 
and  the  obligation  arises  from  the  law  or  natural 
equity,  on  the  facts  of  the  case.  These  acts  are 
eiiUed  quasi-contracts  because,  without  being  con- 
tracts, they  bind  the  parties  as  contracts  do. 

There  is  no  term  in  the  common  law  which  an- 
swers to  that  of  quasi-contract;  many  quasi-con- 
tracts may  doubtless  be  classed  among  implied  con- 
tracts :  there  is,  however,  a  difference  to  be  noticed. 
For  example  :  in  case  money  should  be  paid  by  mis- 
take to  a  minor,  it  may  be  recovered  from  him  by 
the  civil  law,  because  his  consent  is  not  necessary  to 
a  quasi-contract,-  but  by  the  common  law,  if  it  can 
be  recovered,  it  must  be  upon  an  agreement  to  which 
the  law  presumes  he  has  consented,  and  it  is  doubt- 
ful, upon  principle,  whether  such  recovery  could 
be  bad. 

2.  Quasi-contracts  may  be  multiplied  al- 
VoL.  II.— 26 


most  to  infinity.  They  are,  however,  divided 
into  five  classes :  such  as  relate  to  the  volun 
tary  and  spontaneous  management  of  the 
affairs  of  another,  without  authority  [ncgO' 
tiorwn  gestio)  ;  the  administiation  oi  tutor- 
ship; the  management  of  c(>nim(jn  j)roperiy 
{communio  bonornm)  ;  the  acquisititm  of  an 
inheritance;  and  the  paynient  of  a  sum  of 
money  or  other  thing  by  mistake,  when 
nothing  was  due  [indcbiii  solulio). 

Each  of  these  qua8i-C(jntracts  has  an  affinity 
with  some  contract:  thus,  the  management 
of  the  afi'airs  of  another  without  authority, 
and  tutorship,  are  compared  to  a  mandate ; 
the  community  of  property,  to  a  partnership ; 
the  acquisition  of  an  inheritance,  to  a  stipu- 
lation ;  and  the  payment  of  a  thing  which  is 
not  due,  to  a  loan. 

3.  All  persons,  even  infants  and  persona 
destitute  of  reason,  who  are  consequently  in- 
capable of  consent,  may  be  obliged  by  the 
quasi-contract  which  results  from  the  act  of 
another,  and  may  also  oblige  others  in  their 
favor  ;  for  it  is  not  consent  which  forms  these 
obligations :  they  are  contracted  by  the  act 
of  another,  without  any  act  on  our  part. 
The  use  of  reason  is  indeed  required  in  the 
person  whose  act  forms  the  quasi-contract, 
but  it  is  not  required  in  the  person  by  whom 
or  in  whose  favor  the  obligations  which  result 
from  it  are  contracted.  For  instance,  if  a 
person  undertakes  the  business  of  an  infant 
or  a  lunatic,  this  is  a  quasi-contract,  which 
obliges  the  infant  or  the  lunatic  to  the  person 
undertaking  his  affairs,  for  what  he  has  bene- 
ficially expended,  and  reciprocally  obliges  the 
person  to  give  an  account  of  his  administra- 
tion or  management. 

See,  generally,  Justinian,  Inst.  3.  28  ;  Dig. 
3.  5  ;  Ayliffe,  Pand.  b.  4,  tit.  31  ;  1  Brown, 
Civil  Law,  380:  Erskine,  Inst.  3.  3.  IG ; 
Pardessus,  Dr.  Com.  n.  192  et  seq.;  Pothier, 
Obi.  n.  113  et  seq.;  Merlin,  Repert.  Qvasi- 
Contract;  Menestrier,  Lemons  Elem.  du  Droit 
Civil  Romain,  liv.  3,  tit.  28  ;  La.  Civ.  Code, 
b.  3,  tit.  5  ;  Code  Civil,  liv.  3,  tit.  4,  c.  I. 

QUASI-CORPORATIONS.  A  term 
applied  to  those  bodies  or  municipal  societies 
which,  though  not  vested  with  the  general 
powers  of  corporations,  are  yet  recognized,  by 
statutes  or  immemorial  usage,  as  persons  or 
aggregate  corporations,  with  precise  duties 
which  may  be  enforced,  and  privileges  which 
may  be  maintained,  by  suits  at  law.  They 
may  be  considered  ^r/asi-corporations,  with 
limited  powers,  coextensive  with  the  duties 
imposed  upon  them  by  statute  or  usage,  but 
restrained  from  a  general  use  of  the  author- 
ity which  belongs  to  those  metaphysical  per- 
sons by  the  common  law. 

Among  ^i/asi-corporations  may  be  ranked 
towns,  townships,  parishes,  hundreds,  and 
other  political  divisions  of  counties,  which 
are  established  without  an  express  charter  of 
incorporation ;  commissioners  of  a  county, 
supervisors  of  highways,  overseers  of  the 
poor,  loan  officers  of  a  county,  and  the  like, 
who  are  invested  with  corporate  powers  suh 
modo  and  for  a  few  specified  purposes  only  , 


QUASI-DELICT 


402       QUERELA  INOFFICIOSI,  ETC. 


i 


but  not  such  a  body  as  the  general  assembly 
of  the  Presbyterian  church,  which  has  not 
the  capacity  to  sue  and  be  sued.  4  Whart. 
Penn.  531.    See  2  Kent,  Comm.  224 ;  Angell 

6  A.  Corp.  16  ;  18  Johns.  N.  Y.  422  ;  1  Cow. 
N.  Y.  258,  and  nC^e,  680;  2  Wend.  N.  Y.  109  ; 
2  Johns.  Ch.  N.  Y.  325  ;  2  Pick.  Mass.  352; 

7  Mass.  187  ;  9  id.  250 ;  13  id.  192 ;  1  Me. 
;^63. 

QUASI-DELICT.    In  Civil  Law.  An 

act  whereby  a  person,  without  malice,  but  by 
fault,  negligence,  or  imprudence  not  legally 
excusable,  causes  injury  to  another. 

A  quasi-delict  may  be  public  or  private: 
the  neglect  of  the  affairs  of  a  community, 
when  it  is  our  duty  to  attend  to  them,  may 
be  a  crime ;  the  neglect  of  a  private  matter, 
under  similar  circumstances,  may  be  the 
ground  of  a  civil  action.  Bowyer,  Mod.  Civ. 
Law,  c.  43,  p.  265. 

QUASI-DEPOSIT.  A  kind  of  involun- 
tary bailment,  which  takes  place  where  a 
person  acquires  possession  of  property  law- 
fully, by  Huding.    Story,  Bailm.  §  85. 

QUASI-OFFENCES.  Offences  for 
which  some  person  other  than  the  actual  per- 
petrator is  responsible,  the  perpetrator  being 
presumed  to  act  by  command  of  the  respon- 
sible party. 

Injuries  which  have  been  unintentionally 
caused.    See  Master  and  Servant. 

QUASI-PARTNERS.  Partners  of 
lands,  goods,  or  chattels,  who  are  not  actual 
partners,  are  sometimes  so  called.  Pothler, 
de  Societe,  App.  n.  184.   See  Part-Owners. 

QUASI-POSTHUMOUS  CHILD. 
In  Civil  Law.  One  who,  born  during  the 
life  of  his  grandfather  or  other  male  ascend- 
ant, was  not  his  heir  at  the  time  he  made 
his  testament,  but  who  by  the  death  of  his 
father  became  his  heir  in  his  lifetime.  Inst. 
2.  13.  2;  Dig.  28.  3.  13. 

QUA  SI-PURCHASE.  This  term  is 
used  in  the  civil  law  to  denote  that  a  thing  is 
to  be  considered  as  purchased  from  the  pre- 
sumed consent  of  the  owner  of  a  thing :  as, 
if  a  man  should  consume  a  cheese,  which  is 
in  his  possession  and  belonging  to  another, 
with  an  intent  to  pay  the  price  of  it  to  the 
owner,  the  consent  of  the  latter  will  be  pre- 
sumed, as  the  cheese  would  have  been  spoiled 
by  keeping  it  longer.  Wolff,  Dr.  de  la  Nat. 
g691. 

QUASI-TRADITIO  (Lat.).  In  Civil 
Xiaw.  A  term  used  to  designate  that  a  person 
is  in  the  use  of  the  property  of  another,  which 
the  latter  suffers  and  does  not  oppose.  Le<j. 
Elem.  ^  396.  It  also  signifies  the  act  by 
which  the  right  of  property  is  ceded  in  a 
thing  to  a  person  who  is  in  possession  of  it : 
as,  if  I  loan  a  boat  to  Paul,  and  deliver  it  to 
him,  and  afterwards  I  sell  him  the  boat,  it  is 
not  requisite  that  he  should  deliver  the  boat 
to  me  to  be  again  delivered  to  him :  there  is 
a  quasi  tradition  or  delivery. 

QUATUORVIRI  (Lat.  four  men).  In 


Roman  Law.     Magistrates  who  had  tl 
care  and  inspection  of  roads.    Dig.  1.  2. 
30. 

QUAY.      A  wharf  at  which  to  load  or 
land  goods.    (Sometimes  spelled  key.) 

In  its  enlarged  sense  the  word  quay  means 
the  whole  space  between  the  first  row  of 
houses  of  a  city,  and  the  sea  or  river.  5  La. 
152,  215.  So  much  of  the  quay  as  is  requisite 
for  the  public  use  of  loading  and  unloading 
vessels  is  public  property,  and  cannot  be 
appropriated  to  private  use,  but  the  rest  may 
be  private  property. 

QUE  EST  MESME  (L.  Fr.).  Which  is 
the  same.    See  Qu^  est  Eadem. 

QUE  ESTATE  [quern  statum,  or  which 
estate).  A  plea  by  which  a  man  prescribes 
in  himself  and  those  whose  estate  he  holds. 
2  Sharswood,  Blackst.  Comm.  270  ;  18  Viner, 
Abr.  133-140;  Coke,  Litt.  121  a;  Hardr. 
459  ;  2  Bouvier,  Inst.  n.  499. 

QUEAN.  A  worthless  woman  ;  a  strum- 
pet. The  meaning  of  this  word,  which  is 
now  seldom  used,  is  said  not  to  be  well  ascer- 
tained. 2  RoUe,  Abr.  296 ;  Bacon,  Abr. 
Slander  (U  3). 

QUEEN.    A  female  sovereign. 

QUEEN  ANNE'S  BOUNTY.  By  stat. , 
2  Anne,  c.  11,  all  the  revenue  of  first  fruit 
and  tenths  was  vested  in  trustees  forever,  to  • 
form  a  perpetual  fund  for  the  augmentation 
of  poor  livings.  1  Sharswood,  Blackst.  \ 
Comm.  286 ;  2  Burn,  Eccl.  Law,  260-268.  ' 

QUEEN  CONSORT.     The  wife  of 
reigning  king.  1  Sharswood,  Blackst.  Comm.  i 
218.     She  is  looked  upon  by  the  law  as  a 
feme  sole,  as  to  her  power  of  contracting, 
suing,  etc.  Id. 

QUEEN  DOWAGER.  The  widow  of  - 
the  king.  She  has  most  of  the  privileges; 
belonging  to  a  queen  consort.  1  Sharswood,, 
Blackst.  Comm.  229. 

QUEEN-GOLD.  A  royal  revenue  be-i 
longing  to  every  queen  consort  during  her* 
marriage  with  the  king,  and  due  from  every.- 
person  who  has  made  a  voluntary  fine  opj 
offer  to  the  king  of  ten  marks  or  upwards,  in 
consideration  of  any  grant  or  privilege  coni^ 
ferred  by  the  crown.  It  is  due  of  record  on 
the  recording  of  the  fine.  It  was  last  exacted 
in  the  reign  of  Charles  I.  It  is  now  quite 
obsolete.  1  Sharswood,  Blackst.  Comm.  220- 
222 ;  Fortescue,  de  Laud.  398 ;  Jacob,  liaw 
Diet. 

QUEEN  REGNANT.     She  who  holds 

the  crown  in  her  own  right.  She  has  the 
same  duties  and  prerogatives,  etc.  as  a  king, 
Stat.  1  Mar.  I.  st.  3,  c.  1 ;  1  Sharswood, 
Blackst.  Comm.  218;  1  Wooddeson,  Lect.  94. 

QUERELA  (Lat.).  An  action  preferred 
in  any  court  of  justice.  The  plaintiff  was 
called  querens,  or  complainant,  and  his  brief, 
complaint,  or  declaration  was  called  querela, 
Jacob,  Law  Diet. 

QUERELA  INOFFICIOSI  TESTAr 
MENTI  (Lat.  complaint  of  an  undutiful  or 


QUESTION 


403 


QUICKENING 


unkind  will).  In  Civil  Law.  A  species 
of  action  allowed  to  a  child  who  had  been 
unjustly  disinherited,  to  set  aside  the  will, 
founded  on  the  presumption  of  law,  in  such 
cases,  that  the  parent  was  not  in  liis  rip;ht 
mind.  Calvinus,  Lex.;  2  Kent,  Coram.  327; 
Bell,  Diet. 

QUESTION.    In  Criminal  Law.  A 

moans  sometimes  employed,  in  some  coun- 
tries, by  torture,  to  compel  supposed  great 
criminals  to  disclose  their  accomplices  or  to 
acknowledge  their  crimes. 

This  torture  is  called  qnestton  because,  as  the 
unfortunate  person  accused  is  made  to  sulfer  pain, 
he  is  anked  quentiona  as  to  his  supposed  crime  or 
accomplices.  This  is  unknown  in  the  United  States. 
See  Pothier,  Procedure  Criminelle,  sect.  5,  art.  2, 

In  Evidence.  An  interrogation  put  to  a 
witness,  requesting  him  to  declare  the  truth 
of  certain  facts  as  far  as  he  knows  them. 

Questions  are  either  general  or  leading.  By  a 
general  question  is  meant  such  a  one  as  requires 
the  witness  to  state  all  he  knows,  without  any  sug- 
gestion being  made  to  him  :  as,  Who  gave  the  blow? 

A  leading  question  is  one  which  leads  the  mind 
of  the  witness  to  the  answer,  or  suggests  it  to  him : 
as,  Did  A  B  give  the  hlowf 

The  Romans  called  a  question  by  which  the  fact 
or  supposed  fact  which  the  interrogator  expected 
or  wished  to  find  asserted  in  and  by  the  answer 
was  made  known  to  the  proposed  respondent,  a 
Buggefittve  interrogation  :  as,  /«  not  your  name  A  B  f 
See  Leading  Question. 

In  Practice.  A  point  on  which  the  par- 
ties are  not  agreed,  and  which  is  submitted 
to  the  decision  of  a  judge  and  jury. 

When  the  doubt  or  difference  arises  as  to  what 
the  law  is  on  a  certain  state  of  facts,  this  is  said 
to  be  a  legal  question  ;  and  when  the  party  demurs, 
this  is  to  be  decided  by  the  court;  when  it  arises 
as  to  the  truth  or  falsehood  of  facts,  this  is  a  ques- 
tion of  fact,  and  is  to  be  decided  by  the  jury. 

QU^STORES  CLASSICI  (Lat.).  In 
Roman  Law.  Officers  intrusted  with  the 
care  of  the  public  money. 

Their  duties  consisted  in  making  the  ne- 
cessary payments  from  the  cerarium,  and  re- 
ceiving the  public  revenues.  Of  both  they 
had  to  keep  correct  accounts  in  their  tahulce 
ublicce.  Demands  which  any  one  might 
ave  on  the  aerarium,  and  outstanding  debts, 
were  likewise  registered  by  them.  Fines  to 
be  paid  to  the  public  treasury  were  registered 
and  exacted  by  them.  They  were  likewise 
to  provide  proper  accommodations  for  foreign 
ambassadors  and  such  persons  as  were  con- 
nected with  the  republic  by  ties  of  public 
hospitality.  Lastly,  they  were  charged  with 
the  care  of  the  burials  and  monuments  of  dis- 
tinguished men,  the  expenses  for  which  had 
been  decreed  by  the  senate  to  be  paid  by  the 
treasury.  Their  number  at  first  was  confined 
to  two ;  but  this  was  afterwards  increased  as 
the  empire  became  extended.  There  were 
questors  of  cities  and  of  provinces,  and  ques- 
tors  of  the  army:  the  latter  were  in  fact  pay- 
masters. 

QUiESTORES  PARRICIDII(Lat.).  In 
Roman  Law.    Public  accusers,  two  in  num- 


ber, who  conducted  the  accusation  of  persons 
guilty  of  murder  or  any  other  capital  ofi'ence, 
and  carried  the  sentence  into  execution. 
Th(iy  ceased  to  be  appointed  at  an  early  pe- 
riod.   Smith,  Diet.  Gr.  &  Uom.  Antiq. 

QUI  TAM  (Lat.  who  as  well).  An  action 
under  a  statute  which  imposes  a  penalty  for 
the  doing  or  not  doing  an  act,  and  gives  that 
penalty  in  part  to  whosoever  will  sue  for  the 
same,  and  .  the  other  part  to  the  common- 
wealth, or  some  charitable,  literary,  or  (,ther 
institution,  and  makes  it  recoverable  by  ac- 
tion. IMie  plaintiff  describes  himself  as  suing 
as  well  for  the  commonwealth,  for  example, 
as  for  himself.  Espinasse,  Pen.  Act.  5,  0  ;  1 
Viner,  Abr.  197  ;  1  Salk.  J29,  n. ;  Bacon,  Abr. 

QUIA  (Lat.).  In  Pleading.  Because. 
This  word  is  considered  a  term  ol  affirmation. 
It  is  sufficiently  direct  and  positive  for  intro- 
ducing a  material  averment.  1  Saund.  117, 
n.  4;  Oomyns,  Dig.  Pleader  (C  77). 

QUIA  EMPTORES  (Lat.).  A  name 
sometimes  given  to  the  English  Statute  of 
Westminsters,  13  Edw.  I.  c.  1,  from  its  initial 
words.    2  Sharswood,  Blackst.  Comm.  91. 

QUIA  TIMET  (Lat.  because  he  fears). 
A  term  applied  to  preventive  or  anticipatory 
remedies.  According  to  Lord  Coke,  "  there 
be  six  writs  of  law  that  may  be  maintained 
quia  timet,  before  any  molestation,  distress,  or 
impleading:  as,  First,  a  man  may  have  his 
writ  or  mesne  before  he  be  distrained.  Se- 
cond, a  ivarrantia  charloi,  before  he  be  im- 
pleaded. Third,  a  monstraverunt,  before 
any  distress  or  vexation.  F(mrth,  an  audita 
querela,  before  any  execution  sued.  Fifth, 
a  curia  claudenda,  before  any  default  of  en- 
closure. Sixth,  a  lie  iiijuste  vexes,  before 
any  distress  or  molestation.  And  these  are 
called  brevia  anticipantia,  writs  of  preven- 
tion." Coke,  Litt.  100.  And  see  7  Brown, 
Pari.  Cas.  125. 

2.  These  writs  are  generally  obsolete.  In 
chancery,  when  it  is  contemplated  to  prevent 
an  expected  injury,  a  bill  quia  timet  is  filed. 
See  Bill  Quia  Timet. 

QUIBBLE.  A  slight  difficulty  raised 
without  necessity  or  propriety  ;  a  cavil. 

No  justly  eminent  member  of  the  bar  will  resort 
to  a  quibble  in  his  argument.  It  is  contrary  to  his 
oath,  which  is  to  be  true  to  the  court  as  well  as  to 
the  client;  and  bad  policy,  because  by  resorting 
to  it  he  will  lose  his  character  as  a  man  of  probity. 

QUICKENING.  In  Medical  Juris- 
prudence. The  sensation  a  mother  has  of 
the  motion  of  the  child  she  has  conceived. 

2.  The  period  when  quickening  is  first 
experienced  varies  from  the  tenth  to  the 
twenty-fifth,  but  is  usually  about  the  six- 
teenth, week  from  conception.  Denman,  Midw. 
p.  129. 

It  was  formerly  supposed  that  either  the 
child  was  not  alive  until  the  time  of  quicken- 
ing, or  that  it  had  acquired  some  new  kind 
of  existence  that  it  did  not  possess  before : 
hence  the  presumption  of  law  that  dates  the 
life  of  the  child  from  that  time. 

The  child  is,  in  truth,  alive  from  the  first 


QUID  PRO  QUO 


404 


QUO  MINUS 


moment  of  conception,  and,  according  to  its 
age  and  state  of  development,  has  different 
modes  of  manifesting  its  life,  and,  during  a 
portion  of  the  period  of  gestation,  by  its  mo- 
tion. By  the  growth  of  the  embryo,  the 
womb  is  enlarged  until  it  becomes  of  too 
great  a  size  to  be  contained  in  the  pelvis;  it 
then  rises  into  the  abdomen,  when  the  motion 
of  the  foetus  is  for  the  first  time  felt. 

3.  Quickening,  as  indicating  a  distinct  point 
in  the  existence  of  the  foetus,  has  no  founda- 
tion in  physiology  ;  for  it  arises  merely  from 
the  relation  which  the  organs  of  gestation 
bear  to  the  parts  that  surround  them  :  it  may 
take  place  early  or  late,  according  to  the  con- 
dition of  these  different  parts,  but  not  from 
any  inherent  vitality  for  the  first  time  mani- 
fested by  the  foetus. 

As  life,  by  law,  is  said  to  commence  when 
a  woman  first  becomes  quick  with  child,  so 
procuring  an  abortion  after  that  period  is  a 
misdemeanor.  Before  this  time,  formerly 
the  law  did  not  interfere  to  prevent  a  preg- 
nant woman  convicted  of  a  capital  offence 
from  being  executed.  2  Hale,  PI.  Cr.  413. 
If,  however,  the  humanity  of  the  law  of  the 
present  day  would  not  allow  a  woman  to  be 
executed  who  is,  as  Blackstone  terms  it, 
priv^ment  enceinte.  Comm.  129,  i.e.  pregnant, 
although  not  quick,  it  would  be  but  carrying 
out  the  same  desire  to  interfere  with  long- 
established  rules,  to  hold  that  the  penalty  for 
procuring  abortion  should  also  extend  to  the 
whole  period  of  pregnancy. 

QUID  PRO  QUO  (Lat.  what  for  what). 
A  term  denoting  the  consideration  of  a  con- 
tract. See  Coke,  Litt.  47  h;  7  Mann.  &  G. 
998. 

QUIDAM  (Lat.  some  one;  somebody). 
In  French  Law.  A  term  used  to  express 
an  unknown  person,  or  one  who  cannot  be 
named. 

A  quidam  is  usually  described  by  the  fea- 
tures of  his  face,  the  color  of  his  hair,  his 
height,  his  clothing,  and  the  like,  in  any  pro- 
cess which  may  be  issued  against  him. 
Merlin,  Rupert.;  Encyclopedic. 

QUIET  ENJOYMENT.  The  name  of 
a  covenant  in  a  lease,  by  which  the  lessor 
agrees  that  the  lessee  shall  peaceably  enjoy 
the  premises  leased.  This  covenant  goes  to 
the  possession,  and  not  to  the  title.  3  Johns. 
N ,  5f .  47]  ;  5  id.  120 ;  2  Dev.  No.  C.  388 ;  3  id. 
2U0.  A  covenant  for  quiet  enjoyment  does 
not  extend  as  far  as  a  covenant  of  warranty. 
1  Aik.  Vt.  233. 

The  covenant  for  quiet  enjoyment  is  broken 
only  by  an  entry,  or  lawful  expulsion  from, 
or  some  actual  disturbance  in,  the  possession. 
3  Johns.  N.  Y.  471 ;  8  id.  198  ;  15  id.  483;  7 
Wend.  N.  Y.  281 ;  2  Hill,  N.  Y.  105  ;  9  Mete. 
Mass.  03  ;  4  Whart.  Penn.  80 ;  4  Cow.  N.  Y. 
340.  But  the  tortious  entry  of  the  cy^enantor, 
without  title,  is  a  breach  of  the  covenant  for 
(}uiet  enjoyment.    7  Johns.  N.  Y.  370. 

QUIETUS  (Lat.  freed  or  acquitted). 
In  English  Law.  A  discharge;  an  acquit- 
tance 


An  instrument  by  the  clerk  of  the  pi 
and  auditors  in  the  exchequer,  as  proof 
their  acquittance  or  discharge  of  accou 
ants.  Cowel. 

Discharge  of  a  judge  or  attorney-general 
3  Mod.  99*. 

In  American  Law.  The  discharge  of  an 
executor  by  the  probate  court.  4  Mas.  C.  C. 
131. 

QUINTAL.    A  weight  of  one  hundred 
pounds.  ^ 

QUIiyyO  EX  ACTUS  (Lat.).  In  Old 
English  Law.  The  fifth  call  or  last  requisi- 
tion of  a  defendant  sued  to  outlawry. 

QUIT-CLAIM.    In  Conveyancing.  A 

form  of  deed  of  the  nature  of  a  release, 
containing  words  of  grant  as  well  as  release 
2  Washburn,  Real  Prop.  000. 

The  term  is  in  constant  and  general  use 
in  American  law  to  denote  a  deed  substan- 
tially the  same  as  a  release  in  English  law. 
It  presupposes  a  previous  or  precedent  con- 
veyance or  a  subsisting  estate  and  possession. 
Thornton,  Conv.  44.  It' is  a  conveyance  at 
common  law,  but  differs  from  a  release  in 
that  it  is  regarded  as  an  original  conveyance 
in  American  law,  at  least  in  some  states. 
0  Pick.  Mass.  499 ;  14  id.  374 ;  3  Conn.  398; 
9  Ohio,  90;  5  111.  117;  Me.  Rev.  Stat.  c.  73,  | 
14;  Miss.  Code  1857,  p.  309,  art.  17.  The 
operative  words  are  remise,  release,  and  for- 
ever quit-claim.  Thornton,  Conv.  44.  Cove- 
nants of  warranty  against  incumbrances  by 
the  grantor  are  usually  added. 

QUIT-RENT.    A  rent  paid  by  the  tenant 

of  the  freehold,  by  which  he  goes  quit  and 
free, — that  is,  discharged  from  any  other  rent. 
2  Sharswood,  Blackst.  Comm.  42. 

In  England,  quit-rents  were  rents  reserved 
to  the  king  or  a  proprietor,  on  an  absolute 
grant  of  waste  land,  for  which  a  price  in  ■ 
gross  was  at  first  paid,  and  a  mere  nominal 
rent  reserved  as  a  feudal  acknowledgment 
of  tenure.  Inasmuch  as  no  rent  of  this  de- '} 
scription  can  exist  in  the  United  States,  when 
a  quit-rent  is  spoken  of  some  other  interest 
must  be  intended.  5  Call,  Va.  304.  A  per- 
petual rent  reserved  on  a  conveyance  in  fee- 
simple  is  sometimes  known  by  the  name  of 
quit-rent  in  Massachusetts.  See  Grounb- 
Rent  ;  Rent. 

QUO  ANIMO  (Lat.  with  what  intention). 
The  intent ;  the  mind  "with  t\'hich  a  thing  has 
been  done:  as,  the  quo  anmo  with  which  the 
words  were  spoken  may  be  shown  by  the 
proof  of  conversations  of  the  defendant  re- 
lating to  the  original  defamation.  19  Wend. 
N.  Y.  290. 

QUO  JURE,  WRIT  OF.  In  English 
Law.  The  name  of  a  writ  commanding  the 
defendant  to  show7>?/  what  right  he  deniandi 
common  of  pasture  in  the  land  of  the  com- 
plainant who  claims  to  have  a  fee  in  the  same. 
Fitzherbert,  Nat.  Brev.  299. 

QUO  MINUS  (Lat.).  The  name  of  a 
writ.  In  England,  when  the  king's  debtor 
is  sued  in  the  court  of  the  exchequer,  he  ma^ 


QUO  WARRANTO 


405 


QUO  WARRANTO 


6ue  out  a  writ  of  q^iio  minus,  in  which  he  sug- 
gests that  he  is  the  king's  debtor,  and  that  the 
defendant  has  done  him  the  injury  or  damage 
compl.ained  of,  qua  iriinus  sufficiens  existit, 
by  which  he  is  less  aide  to  pay  the  king's  debt. 
This  was  originally  requisite  in  order  to  give 
jurisdiction  to  the  court  of  exchequer ;  but 
now  tliis  suggestion  is  a  mere  form.  3  Shars- 
wood,  Bhickst.  Comm.  46. 

QUO  WARRANTO  (Lat.  by  what  au- 
thority). In  Practice.  The  name  of  a  writ 
(and  also  of  the  whole  pleading)  by  which 
the  government  commences  an  action  to  re- 
cover an  office  or  franchise  from  the  person 
or  corporation  in  possession  of  it. 

The  writ  commands  the  sheriff  to  summon  the 
iefendant  to  appear  before  the  court  to  which  it 
is  returnable,  to  show  {quo  warrauto)  by  what  au- 
thon'ti/  he  claims  the  office  or  franchise.  It  was  a 
writ  of  right,  a  civil  remedy  to  try  the  mere  right 
to  the  franchise  or  office,  where  the  person  in  pos- 
session never  had  a  right  to  it  or  has  forfeited  it 
bv  neglect  or  abuse.  3  Sharswood,  Blackst.  Comm. 
262,  263. 

The  action  of  qtio  warranto  was  prescribed  by 
the  Statute  of  Gloster,  6  Edw.  I.,  and  is  a  limitation 
upon  the  royal  prerogative.  Before  this  statute, 
the  king,  by  virtue  of  his  prerogative,  sent  com- 
missions over  the  kingdom  to  inquire  into  the  right 
lo  all  franchises,  quo  jure  et  quore  nomine  illi  reti- 
nent,  etc. ;  and,  as  they  were  grants  from  the  crown, 
if  those  in  possession  of  them  could  not  show  a 
charter,  the  franchises  were  seized  into  the  king's 
hands  without  any  judicial  proceeding.  Like  all 
other  original  civil  writs,  the  writ  of  quo  warranto 
issued  out  of  chancery,  andVas  returnable  alterna- 
tively before  the  king's  bench  or  justices  in  eyre. 
Coke,  2d  Inst.  277-283,  494-499  ;  2  Term,  549.  See 
4  Term,  381  ;  2  Strange,  819,  1196. 

The  writ  of  quo  warranto  has  given  place  to  an 
information  in  the  nature  of  quo  warranto.  This, 
though  in  form  a  criminal,  is  in  substance  a  civil, 
proceeding,  to  try  the  mere  right  to  the  franchise  or 
office.  3  Sharswood,  Blackst.  Comm.  263 ;  1  Serg.  & 
E.  Penn.  382 ;  Angell  &  A.  Corp.  469 ;  2  Kent,  Comm. 
312;  3  Term,  199;  23  Wend.  N.  Y.  537,  591-594. 

"Z*  Pleadings  in  quo  warranto  are  anomalous. 
In  ordinary  legal  proceedings,  the  plaintiff, 
whether  he  be  the  state  or  a  person,  is  bound 
to  show  a  case  against  the  defendant.  But 
in  an  information  of  quo  warranto,  as  well  as 
in  the  writ  for  which  it  is  substituted,  the 
order  is  reversed.    The  state  is  not  bound  to 

i  show  any  thing,  but  the  defendant  is  bound 
to  show  that  he  has  a  right  to  the  franchise 
or  office  in  question ;  and  if  he  fail  to  show 
authority,  judgment  must  be  given  against 
him.  4  Burr.  2146,  2147  ;  Angell  &  A.  Corp. 
636.  To  the  writ  of  quo  warranto  the  de- 
fendant simply  pleaded  his  charter,  which 
was  a  full  answer  to  the  writ ;  just  as  before 
the  statute  of  Edward  I.  the  production  of 
the  charter  to  the  king's  commissioners  was 
full  authority  for  the  possession  of  the  fran- 
chise or  office.   But  to  an  information  of  quo 

'  warranto  the  plea  of  the  defendant  consists 
of  his  charter,  with  an  absque  hoc  denying 
that  he  usurped  the  franchise,  and  concludes 
with  a  verification.  The  plea  is  in  form  a 
special  traverse,  but  in  substance  it  is  not 
such.  The  information  was  originally  a 
criminal  proceeding,  to  punish  the  usurpa- 
tion of  the  franchise  by  a  fine,  as  well  as  to 


seize  the  franchise-  therefore  the  informa- 
tion charged  usurpation,  and  the  defendant 
was  compelled  to  deny  the  usurpation,  as  well 
as  to  show  his  charter,  which  he  did  in  the 
form  of  an  absque  hoc  to  his  plea.  But  when 
the  proceeding  ceased  to  be  criminal,  and, 
like  the  writ  of  quo  warranto,  was  applied  to 
the  mere  purpose  of  trying  the  civil  right 
to  the  franchise,  the  absque  hoc  denying  the 
usurpation  became  immaterial,  though  it  is 
still  retained  in  the  forms.  5  Jacob,  Law 
Diet.  374 ;  4  Cow.  N.  Y.  106,  note.  In  Coke's 
Entries,  351,  there  is  a  plea  to  an  informa- 
tion of  quo  warranto  without  the  absque  hoc. 
The  absque  hoc,  being  immaterial,  should  not 
be  answered  by  the  replication,  as  it  must 
alM'ays  be  in  a  special  traverse;  but  the 
charter,  the  first  part  of  the  plea,  though 
occupying  the  place  of  an  inducement,  must 
be  denied  by  the  replication,  its  existence 
and  character  being  the  sole  question  in  con- 
troversy upon  which  the  legality  of  the  acta 
of  the  corporation  turns.  Gilbert,  Ev.  6-8, 
145-160;  10  Mod.  Ill,  112,  296-300. 

3.  Until  the  statute  32  Geo.  III.  c.  58, 
the  defendant  could  not  plead  double  in  an 
information  of  quo  warranto  to  forfeit  an 
office  or  franchise.  1  P.  Will.  Ch.  220-222; 
4  Burr.  2146,  note;  1  Chitty,  Plead.  479; 
Tidd,  Pract.  610:  8  Term,  467;  5  Bacon, 
Abr.  449;  Willes,  533;  4  Cow.  N.  Y.  113, 
note  ;  2  Dutch.  N.  J.  215  ;  Angell  &  A.  Corp. 
637. 

In  informations  of  quo  warranto  there  are 
two  forms  of  judgment.  When  it  is  against 
an  officer  or  against  individuals,  the  judgment 
is  oiLster ;  but  when  it  is  against  a  corpora- 
tion by  its  corporate  name,  the  judgment  is 
ouster  and  seizure.  In  the  first  case,  there 
being  no  franchise  forfeited,  there  is  none  to 
seize;  in  the  last  case,  there  is;  consequently 
the  franchise  is  seized.  2  Kent,  Comm.  312, 
and  note;  2  Term,  521,  522,  550,  551.  By 
such  judgment  of  ouster  and  seizure  the 
franchises  are  not  destroyed,  but  exist  in  the 
hands  of  the  state ;  but  the  corporation  is 
destroyed,  and  ceases  to  be  the  owner  or  pos- 
sessor of  lands  or  goods,  or  rights  or  credits. 
The  lands  revert  to  the  grantor  and  his  heirs, 
and  the  goods  escheat  to  the  state.  The 
judgment  must  be  confined  to  seizure  of  the 
franchises:  if  it  be  extended  to  seizure  of  the 
property,  so  far  it  is  erroneous.  1  Blackf. 
Ind.  267.  See  Scire  Facias  ;  30  Barb.  N.  Y. 
588. 

4.  The  principle  of  forfeiture  is  that  the 
franchise  is  a  trust;  and  all  the  terms  of  the 
charter  are  conditions  of  the  trust ;  and  if  any 
one  of  the  conditions  of  the  trust  be  violated 
it  will  work  a  forfeiture  of  the  charter.  And 
the  corporate  powers  must  be  construed 
strictly,  and  must  be  exercised  in  the  manner 
and  in  the  forms  and  by  the  agents  prescribed 
in  the  charter.    2  Kent,  Comm.  298,  299; 

1  Sharswood,  Blackst.  Coram.  485  ;  13  Viner, 
Abr.  511  ;  13  Pet.  587  ;  5  Wend.  N.  Y.  211 ; 

2  Term,  546  ;  3  id.  220-223  ;  8  Mod.  129  ;  1L» 
id.  271 ;  4  Gill  &  J.  Md.  121;  3  Hargrave. 
State  Tr.  546,  630. 


406  QUOD  HECtFPERET 


''  quoad  hoc 


Cases  of  forfeiture  may  be  divided  into 
two  great  classes.  Cases  of  perversion:  as, 
where  a  corporation  does  an  act  inconsistent 
\vith  the  nature  and  destructive  of  the  ends 
and  purposes  of  the  grant.  In  such  cases, 
unless  the  perversion  is  such  as  to  amount  to 
an  injury  to  the  public  who  are  interested  in 
the  franchise,  34  Penn.  St.  283,  it  will  not 
work  a  forfeiture.  Cases  of  usurpation :  as, 
where  a  corporation  exercises  a  power  which 
it  has  no  right  to  exercise.  In  such  cases  the 
cause  of  forfeiture  is  not  determined  by  any 
question  of  injurij  to  the  public,  but  the  abuse 
which  will  work  a  forfeiture  need  not  be  of 
any  particular  measure  or  extent.  3  Term, 
216,  246  ;  23  Wend.  N.  Y.  242,  243  ;  34  Miss. 
688 ;  21  III.  65.  See  30  Ala.  n.  s.  66.  In 
ease  of  usurpation  of  an  office  Or  franchise 
bv  an  individual,  it  must  be  of  a  public  nature 
to  be  reached  by  this  writ.  21  111.65;  28 
Vt.  594,  714;  9  Cush.  Mass.  596. 

5.  In  England,  corporations  are  the  creatures 
of  the  crown,  and  on  dissolution  their  fran- 
chises revert  to  the  crown ;  and  they  may  be 
re-granted  by  the  crown  either  to  the  old,  or  to 
new,  or  to  the  old  and  new,  corporators  ;  and 
such  grant  restores  the  old  rights,  even  to  sue 
on  a  bond  given  to  the  old  corporation,  and 
the  corporation  is  in  of  its  ancient  liberties; 
and  if  it  were  a  corporation  by  prescription  it 
would  still  be  so.  2  Term,  524,  543  ;  3  id. 
241-249.  In  the  United  States,  corporations 
are  the  creatures  of  the  legislature,  and  on 
dissolution  their  franchises  revert  to  the  state ; 
and  the  legislature  can  exercise  the  same 
powers  by  legislation  over  the  franchises,  and 
with  the  same  effects,  as  the  crown  can  in 
England.    Angell  &  A.  Corp.  652-654. 

By  the  statute  of  Anne^  c.  20,  an  informa- 
tion in  the  nature  of  quo  warranto  may  by 
leave  of  court  be  applied  to  disputes  between 
party  and  party  about  the  right  to  a  corporate 
office  or  franchise.  4  Zabr.  N.  J.  529;  1 
Dutch.  N.  J.  354  ;  32  Penn.  St.  478  ;  33  Miss. 
508  ;  7  Cal.  393,  432.  And  the  person  at  whose 
instance  the  proceeding  is  instituted  is  called 
the  7'elator.  3  Sharswood,  Blackst.  Comm. 
264.    The  suit  must  be  at  the  instance  of  the 

fovernment,  see  12  N.  Y.  433  ;  1  Wise.  317; 
id.  420,  567  ;  and  the  consent  of  the  parties 
cannot  give  jurisdiction  in  such  a  case.  5 
Wheat.  291 ;  '5  R.  I.  1 ;  1  Iowa,  70  ;  2  id.  96. 
See  25  Mo.  555.  The  court  will  not  give  leave 
to  private  informers  to  nse  the  king's  name 
and  suit  to  call  in  question  the  validity  of  a 
franchise,  when  such  pet-suns  apply  under 
very  unfavorable  circumstances.  4  Burr. 
2123,  2124.  As  to  where  the  burden  falls  of 
showing  the  lawful  or  unlawful  character  of 
a  franchise  or  right,  see  28  Penn.  St.  383  ; 
5  Mich.  146.  The  information,  it  is  said, 
may  be  filed  after  the  expiration  of  the  term 
of  office.  2  Jones,  No.  C.  124.   See  19  Ga. 559. 

QUOAD  HOC  (Lat.  as  to  this;  with  re- 
spect to  this).  A  term  frequently  used  to 
signify,  as  to  the  thing  named,  the  law  is  so 
and  so. 

QUOD  COMPUTET  (Lat.  that  he  ac-  . 


count).    The  name  of  an  interlocutory  judjH 
ment  in  an  action  of  account-render;  als^| 
the  name  of  a  decree  in  the  case  of  creditorB 
bills  against   executors  or  administratorsP 
Such  a  decree  directs  the  master  to  take  the 
accounts  between  the  deceased  and  all  his 
creditors,  to  cause  the  creditors,  upon  duq 
and  public  notice,  to  come  before  him  to 
prove  their  debts,  at  a  certain  place  and 
within  a  limited  period,  and  also  directs  the 
master  to  take  an  account  of  all  personal 
estate  of  the  deceased  in  the  hands  of  the 
executor  or  administrator.    Stoi'y,  Eq.  Jur. 
I  548.    See  Judgment  Quod  Computet  ;  Aoj 

COUNT. 

QUOD  CUM  (Lat.).  In  Pleading.  For 

that  whereas.  A  form  of  introducing  n)attep 
of  inducement  in  those  actions  in  which  in- 
troductory matter  is  allowed  to  explain  the 
nature  of  the  claim :  as,  assumpsit  and  case, 
Ilardr.  1  ;  2  Show.  180. 

This  form  is  not  allowable  to  introduce  the 
matter  which  constitutes  the  gravamen  of  the 
charge,  as  such  matter  must  be  stated  by 
positive  averment,  while  quod  dim  introduced 
the  matter  which  depends  upon  it  by  way  of^ 
recital  merely.  Ilence,  in  those  actions,  as 
trespass  vi  et  armis,  in  which  the  complaint  is 
stated  without  matter  of  inducement,  quod  cum 
cannot  be  properly  used.  2  Bulstr.  214.  But 
its  improper  use  is  cured  by  verdict.  1  Browne,  ; 
Penn.  68;  Comyns,  Dig.  Pleader  (C  86). 

QUOD  EI  DEFORCEAT  (Lat.).  Ip  ; 
English  Law.  The  name  of  a  writ  given  by  ' 
Stat.  Westm.  2, 13  Edw.  I.  c.4,  to  the  ownersfof 
a  particular  estate,  as  for  life,  in  dower,  by  | 
the  curtesy,  or  in  fee-tail,  who  are  barred  of  , 
the  right  of  possession  by  a  recovery  had  ■ 
against  them  through  their  default  or  non-  , 
appearance  in  a  possessory  action  ;  by  which 
the  right  was  restored  to  him  who  had  beeA  ' 
thus  unwarily  deforced  by  his  own  default*  ! 
3  Sharswood,  Blackst.  Comm.  193. 

QVOB  PERMITTAT  (T  at.).  In  Engl  | 
lish  Law.  That  he  permit.  The  name  of  a  i 
writ  which  lies  for  the  heir  of  him  who  is  ■ 
disseised  of  his  common  of  pasture,  against  % 
the  heir  of  the  disseisor,  |ie  being  dead;  \ 
Termes  de  la  Ley. 

QUOD  PERMITTAT  PROSTEilr 
NERE  (Lat.  that  he  give  leave  to  demolishji 
In  English  Law.  The  name  of  a  writ 
which  commands  the  defendant  to  permii 
the  plaintiff  to  abate  the  nuisance  of  whicl^ 
complaint  is  made,  or  otherwise  to  appear 
in  court  and  to  show  cause  why  he  will  not^ 
On  proof  of  the  facts,  the  plaintiff  is  entitled 
to  have  judgment  to  abate  the  nuisance  and 
to  recover  damages.  This  proceeding,  on  ac- 
count of  its  tediousness  and  expense,  has 
given  way  to  a  special  action  on  the  case. 

QUOD  PROSTRAyiT(Lat.).  The  name 
of  a  judgment  upon  an  indictment  for  a  nui- 
sance, that  the  defendant  abate  such  nuisance. 
.  QUOD  RECUPERET  (Lat.  that  he  re- 
cover). The  form  of  a  judgment  that  the 
plaintiff  do  recover.  See  Judgment  Quod 
Kecuperet. 


QUORUM 


407 


RAILWAY 


QUORUM.  Used  substantively,  quorum 
eiguitios  the  number  of  persons  belonging  to 
a  legislative  assembly,  a  corporation,  society, 
or  other  body,  required  to  transact  business. 
There  is  a  difference  between  an  act  done  by 
a  definite  number  of  persons,  and  one  per- 
formed by  an  indefinite  number:  in  the  first 
case  a  majority  is  required  to  constitute  a 
quorum,  unless  the  law  expressly  directs  that 
another  number  may  make  one  ;  in  the  latter 
case  any  number  who  may  be  present  may 
act,  the  majority  of  those  present  having,  as 
in  other  cases,  the  right  to  act.  7  Cow.  N.  Y. 
402 ;  9  Barnew.  &  C.  648  ;  Angell  &  A.  Corp. 
281. 

Sometimes  the  law  requires  a  greater  num- 
ber than  a  bare  majority  to  form  a  quorum: 
in  such  case  no  quorum  is  present  until  such 
a  number  convene. 

When  an  authority  is  confided  to  several 
persons  for  a  private  purpose,  all  must  join 
in  the  act,  unless  otherwise  authorized.  6 
Johns.  N.  Y.  38.  See  Authority  ;  Majority  ; 
Plurality. 

QUOT.  In  Scotch  Law.  The  twentieth 
part  of  the  movables,  computed  without  com- 
putation of  debts,  was  so  called. 

Formerly  the  bishop  was  entitled,  in  all 
confirmations,  to  the  quot  of  the  testament. 
Erskine,  Inst.  3.  9.  11. 

QUOTA.  That  part  which  each  one  is 
to  bear  of  some  expense :  as,  his  quota  of  this 
debt ;  that  is,  his  proportion  of  such  debt. 

QUOTATION.  In  Practice.  The  alle- 
gation of  some  authority  or  case,  or  passage 
of  some  law,  in  support  of  a  position  which 
it  is  desired  to  establish. 


Quotations,  when  properly  made,  assist  the  reader, 
but  when  misplaced  they  are  inconvenient.  As  to 
the  manner  ol"  quoting  or  citing  authorities,  see 

CrrATION  OF  AUTHOUITIES. 

The  transcript  of  a  part  of  a  book  or  writ- 
ing from  a  book  or  paper  into  another, 

U,  If  the  quotation  is  fair,  and  not  so  ex- 
tensive as  to  extract  the  whole  value  or  the 
most  valuable  part  of  an  author,  it  will  not 
be  a  violation  of  the  copyright.  It  is  mostly 
difficult  to  define  what  is  a  fair  quotation. 
When  the  quotation  is  unfair,  an  injunction 
will  lie  to  restrain  the  publication.  See  17 
Ves.  Ch.  424;  1  Bell,  Comm.  5th  ed.  121. 

3.  "That  part  of  a  work  of  one  author 
found  in  another,"  observed  Lord  Ellen- 
borough,  is  not  of  itself  piracy,  or  sufficient 
to  support  an  action  ;  a  man  may  adopt  part 
of  the  work  of  another ;  he  may  so  make  use 
of  another's  labors  for  the  promotion  of 
science  and  the  benefit  of  the  public."  5 
Esp.  170;  1  Campb.  94.  See  Curtis,  Copyr. 
242;  3  Mylne  &  C.  Ch.  737,  738;  17  Yes. 
Ch.  422;  1  Campb.  94;  2  Stor.  C.  C.  100; 
2  Beav.  Rolls,  ti,  7 ;  Abridgment  ;  Copy- 
right. 

QUOUSQUE.  A  Latin  adverb,  which 
signifies  how  long,  how  far,  until. 

In  old  conveyances  it  is  used  as  a  word  of 
limitation.    lU  Coke,  41. 

In  practice,  it  is  the  name  of  an  execution 
which  is  to  have  force  until  the  defendant 
shall  do  a  certain  thing.  Of  this  kind  is  the 
capias  ad  satisfaciendum,  by  virtue  of  which 
the  body  of  the  defendant  is  taken  into  exe- 
cution, and  he  is  imprisoned  until  he  shall 
satisfy  the  execution.  3  Bouvier,  Inst.  n. 
3371. 


R. 


RACHBTUM  (Fr.  racheter,  to  redeem). 
In  Scotcli  Law.  Ransom :  corresponding 
to  Saxon  weregild,  a  pecuniary  composition 
for  an  ofi'ence.    Skene ;  Jacob,  Law  Diet. 

RACK.  An  engine  with  which  to  torture 
a  supposed  criminal,  in  order  to  extort  a  con- 
fession of  his  supposed  crime  and  the  names 
of  his  supposed  accomplices. 

It  is  unknown  in  the  United  States,  but,  known 
by  the  nickname  of  the  Duke  of  Exeter's  daugh- 
ter, was  in  use  in  England.  Barrington,  Stat.  366  ; 
12  Serg.  &  R.  Penn.  227. 

RACK  RENT.   In  English  Law.  The 

full  extended  value  of  land  left  by  lease, 

imyable  by  a  tenant  for  life  or  years.  Wood, 
inst.  192. 

RADOUR.  In  French  Law.  A  term 
including  the  repairs  made  to  a  ship,  and  a 
fresh  supply  of  furniture  and  victuals,  muni- 


tions, and  other  provisions  required  for  the 
voyage.    Pardessus,  n.  602. 

RAILWAY.  A  road  graded  and  having 
rails  of  iron  or  other  material  for  the  wheels 
of  carriages  to  run  upon. 

Railways  in  their  present  form  first  began 
to  be  extensively  constructed  after  the  success- 
ful experiments  in  the  use  of  locomotives  in 
1829.  They  had  been  in  use  in  a  rude  form  as 
early  as  1676.  These  earlier  railways  were  of 
limited  extent,  built  by  private  persons  on  theii 
own  land  or  upon  the  land  of  others,  by  special 
license,  called  way-leave.  In  their  modern  form, 
railways  are  usually  (though  not  necessarily)  owned 
by  a  corporation,  which  is  authorized  to  exercise 
some  important  privileges,  such  as  a  right  of  emi- 
nent domain,  etc.  "Within  a  few  years,  another 
class  of  railways,  namely,  those  laid  in  the  streets 
of  towns  and  cities,  have  become  very  numerous, 
and  many  very  interesting  questions  have  arisen 
and  are  still  arising  in  regard  to  them,  most  of 
which  remain  unsettled  at  the  date  of  writing.  See 


RAILWAY 


408 


RAILWAY 


14  Gray,  Mass.  69 ;  4  Cush.  Mass.  63 ;  9  Ind.  433, 
467  ;  7  Port.  Ind.  38,  469 ;  23  N.  H.  83 ;  26  id. 
266  ;  25  Vt.  49 ;  2  R.  1.  154 ;  18  Penn.  St.  187  ; 
27  ?rf.339;  21  Conn.  294;  2  Stockt.  Ch.  N.  J.  352; 
20  Bost.  Law  Rep.  449.  It  is  proper  to  say  that 
most  of  the  authorities  cited  above  are  cases  of 
steam  railroads,  between  which  and  the  common 
street  railroads  important  differences  exist. 

2.  The  charter  of  a  public  railway  requires 
the  grant  of  the  supreme  legislative  authority 
of  the  state.  3  Engl.  Railw.  Cas.  65;  2 
Railw.  Cas.  177  ;  3  N.  Y.  430.  It  is  usually 
conferred  upon  a  private  corporation,  but 
sometimes  upon  a  public  one,  where  the 
stock  is  owned  and  the  company  controlled 
by  the  state.  Redfield,  Railw.  §  17 ;  1 
Ohio  St.  G57 ;  21  Conn.  304 ;  10  Leigh,  Va. 
454;  4  Wheat.  G68 ;  9  id.  904 ;  1  Greene,  Iowa, 
553;  8  Watts,  Penn.  316.  Such  charter, 
when  conferred  upon  a  private  company  or 
a  natural  person,  as  it  may  be,  is  irrevocable, 
and  only  subject  to  general  legislative  con- 
trol, the  same  as  other  persons  natural  or 
artificial.  4  Wheat.  668;  2  Kent,  Comm. 
275,  and  notes;  Redfield,  Railw.  §  231;  27 
Vt.  140 ;  11  La.  Ann.  253  ;  2  Gray,  Mass.  1; 
3  Sneed,  Tenn.  609 ;  26  Penn.  St.  287  ;  32 
N.  H.  215.    See  I  11. 

The  right  of  way  is  generally  obtained  by 
tne  exercise  of  the  right  of  eminent  domain. 
This  can  only  be  done  in  strict  conformity  to 
the  charter  or  grant.  4  Engl.  Railw.  Cas. 
235,  513,  524 ;  6  Gill,  Md.  363.  The  com- 
pany may  enter  upon  lands  for  the  purpose 
of  making  preliminary  surveys,  by  legisla- 
tive permission,  without  becoming  trespassers, 
and  without  compensation.  34  Me.  247  ;  9 
Barb.  N.  Y.  449  ;  Wright,  Ohio,  132,  and 
cases  cited. 

3.  The  company  acquire  only  a  right  of 
way,  the  fee  remaining  in  the  former  owner. 
The  company  can  take  nothing  from  the  soil, 
except  for  the  purpose  of  construction.  2 
Hill,  N.  Y.  342;  6  Mass.  90;  7  Mete.  Mass. 
297 ;  2  Gray,  Mass.  574 ;  2  Iowa,  288 ;  25 
Vt.  151 ;  2  Dev.  &  B.  No.  C.  457  ;  20  Barb. 
N.  Y.  644 ;  34  N.  H.  282 ;  16  111.  198 ;  1 
Sumn.  C.  C.  21.  See  26  Penn.  St.  287;  11 
N.  Y.  308. 

The  mode  of  estimating  compensation  to 
the  land-owners  varies  in  difierent  states. 
The  more  general  mode  is  to  award  such  a 
sum  as  will  fairly  compensate  the  actual 
loss,  i.e.  to  give  a  sum  of  money  which  being 
added  to  the  land  remaining  will  make  it 
as  valuable  as  the  whole  would  have  been 
if  none  of  it  had  been  taken.  13  Barb. 
N.  Y.  171 ;  Redfield,  Railw.  ^  71,  and  cases 
cited. 

The  company  may  lay  their  road  across  a 
highway,  but  not  without  making  compensa- 
tion to  the  owner  of  the  fee  for  the  additional 
servitude  thus  imposed  upon  the  land.  3  Hill, 
N.  Y.  567  ;  25  Wend.  N.  Y.  462 ;  1  Exch. 
723  ;  16  N.  Y.  97;  21  Mo.  580  ;  27  Penn.  St. 
339;  9  Cush.  Mass.  1;  29  Lond.  Law  Times, 
7  ;  Redfield,  Railw.  §  76. 

4.  The  construction  of  the  road  must  be 
within  the  prescribed  limits  of  the  charter. 
The  right  of  devi  ition  sef  ired  by  the  char- 


ter or  general  laws  is  lost  when  the  road  ii 
once  located.  1  Mylne  &  K.  Ch.  154  ;  2  Ohio' 
St.  235  ;  Redfield,  Railw.  g  105.  See  2  Rich. 
So.  C.  434;  1  Clark  &  F.  Hou.  L.  252;  10 
Conn.  157  ;  12  id.  364 ;  2  Swan,  Tenn.  282 ; 
9  La.  Ann.  284 ;  1  Gray,  Mass.  340.  Dis- 
tance, having  reference  either  to  the  length 
of  the  line  or  to  deviation,  is  to  be  measured 
in  a  straight  line  through  a  horizontal  plane. 
Redfield,  Railw.  |  106 ;  9  Q.  B.  76;  27  Vt. 
766 ;  36  Eng.  L.  &  Eq.  114.  In  crossing 
highways,  public  safety  undoubtedly  requires 
that  it  should  not  be  at  grade,  or,  if  so,  that 
the  crossing  should  be  protected  by  gates, 

20  Law  Jour.  428. 

5.  Injuries  to  domestic  animals.  The  com- 
pany are  not  liable  for  any  injury  to  domestic 
animals  straying  upon  their  track,  or  while 
crossing  it,  in  the  highway,  unless  they  have 
been  guilty  of  some  neglect  in  building 
fences  or  in  the  management  of  their  trains. 

21  N.  H.  363 ;  29  Me.  307 ;  6  Penn.  St.  472; 
6  Ind.  141;  8icZ.402;  4  Ohio  St.  424;  4  Exch. 
580;  33  Eng.  L.  &  Eq.  193  ;  25  Vt.  150. 

Liahility  for  the  acts  of  contractors,  sub- 
contractors, and  agents.  The  company  are 
not  liable  for  the  act  of  the  contractor  or 
sub-contractor,  or  their  agents,  except  in 
doing  precisely  what  is  contemplated  in  the 
contract.  5  Barnew.  &  C.  547  ;  6  Mees.  & 
W.  Exch.  499 ;  12  Ad.  &  E.  737 ;  5  Exch. 
721:  24  Barb.  N.  Y.  355;  4  Den.  N.Y.  311; 
3  Gray,  Mass.  349 ;  Redfield,  Railw.  I  168. 
Railway  companies  are  liable  for  the  acts  of 
their  agents  and  sub-agents  within  the  range 
of  their  employment;  and  it  has  been  the 
purpose  of  the  courts  to  give  such  agents  a 
large  discretion,  and  hold  the  companies 
liable  for  all  acts  of  their  agents  within  the 
most  extensive  range  of  their  charter-powers. 
14  How.  483  ;  27  Vt.  110;  7  Cush.  Mass.  385. 
But  the  company  are  not  liable  for  the  wilful 
acts  of  their  agents,  out  of  the  range  of  their 
employment,  unless  directed  by  the  company 
or  subsequently  adopted  by  them.  2  Harr. 
N.  J.  514;  1  Fla.  136.  See  this  subject  fur- 
ther discussed  in  Redfield,  Railw.  §  169,  and 
notes.  The  company  are  not  liable  for  inju- 
ries to  servants  through  the  neglect  of  their 
fellow-servants  or  defects  in  machinery,  un- 
less they  were  themselves  in  fault  in  employ- 
ing incompetent  servants  or  purchasing  im- 
perfect machinery  for  the  road.  3  Mees.  & 
W.  Exch.  1 ;  4  Mete.  Mass.  49  ;  6  Hill,  N.  Y. 
592;  9  N.  Y.  175. 

6.  Railway  companies  are  liable  for  any 
injury  accruing  to  the  person  or  property  of 
another  through  any  want  of  reasonable  care, 
and  prudence  on  the  part  of  their  agents  or 
employees.  This  occurs  from  the  omission 
of  the  requisite  signals  at  road-crossings, 
and  from  want  of  care  in  other  respects  in 
crossing  highways.  2  Cush.  Mass.  539  ;  10 
id.  562.  See,  also,  28  Vt.  185  ;  18  Ga.  679  ; 
8  Gray,  Mass.  The  conduct  of  railway  trains 
is  so  far  matter  of  science  and  skill  that  it 
is  proper  to  receive  the  testimony  of  experts 
in  regard  to  it.  23  Vt.  394,  395  ;  17  111.  509, 
580.    Railway  companies,  like  othei  corpo* 


RAILWAY 


409 


RAIN-WATER 


ratioui  cannot  be  bound  by  any  contract  of 
their  agents  beyond  their  charter-power,  or, 
as  it  is  called,  ultra  vires,  although  assumed 
by  their  express  direction  or  consent.  7  Eng. 
L.  &  Eq.  505  ;  IG  id.  180 ;  30  id.  120. 

7.  Railway  investments.  The  large  amount 
of  capital  invested  in  railway  stock  and  bonds, 
or  notes  and  mortgages,  in  this  country,  ren- 
ders this  subject  one  of  very  considerable  im- 
portance. The  forms  of  such  investments  are — 
stock,  preferred  stock,  and  notes  with  coupons 
attached  for  the  payment  of  the  interest  at 
stated  times  (generally  once  in  six  months), 
these  being  secured  by  mortgage  of  the  road 
and  all  its  appurtenances.  The  practice 
adopted  by  some  of  the  railways  in  this 
country  of  issuing  preferred  stock,  or  prefer- 
ence stock,  as  it  is  called  in  England,  and  of 
issuing  stock  at  reduced  prices  after  all  has 
been  sold  at  par  which  can  be  disposed  of  in 
the  market,  or  of  mortgaging  the  entire  road 
two  or  three  times  over,  giving  successive 
priorities,  has  generally  been  regarded  as 
impolitic,  if  not  positively  fraudulent.  27 
Vt.  673,  692 ;  Redfield,  Railw.  563,  §  234,  and 
cases  cited  in  notes. 

The  rights  and  remedies  of  bondholders 
and  mortgagees,  as  well  as  the  holders  of 
preferred  stock,  depend  very  much  upon 
the  forms  of  the  contracts  and  the  powers 
granted  by  the  legislature  to  the  company. 
The  holders  of  preferred  stock  may,  in  a  court 
of  equity,  compel  the  company  to  apply  all 
their  net  earnings  first  to  the  payment  of 
the  stipulated  dividend  upon  such  stock.  30 
Lond.  Law  Times,  141.  See,  also,  2  Stockt. 
Ch.  N.  J.  171.  And  it  is  the  familiar  prac- 
tice of  the  courts  of  equity  in  this  country 
to  allow  the  successive  mortgagees  fore- 
closures upon  all  rights  posterior  to  their 
own.  How  the  property  is  to  be  controlled 
and  managed  thereafter  is  not  yet  well 
defined.  The  subject  is  a  good  deal  dis- 
cussed in  an  important  case  recently  deter- 
mined by  the  supreme  court  of  Vermont. 
31  Vt. 

8.  It  has  been  held  that  a  trustee  of  money 
is  not  justified  in  investing  the  same  in  rail- 
way securities,  it  being  of  too  precarious  a 
character.  10  Eng.  L.  &  Eq.  123  ;  21  N.  H. 
352.  In  Ellis  vs.  Eden,  30  Lond.  Law  Times, 
601,  it  was  held  that  "stock  in  the  foreign 
funds"  included  the  American  state  stocks 
of  V^irginia,  Massachusetts,  etc.,  but  not  Bos- 
ton water-scrip  or  bonds  of  the  Pennsylvania 
Railway. 

Railway  bonds,  with  coupons  attached 
made  payable  to  bearer,  pass  by  delivery, 
the  same  as  bills  of  exchange  or'bank-bills, 
and  have  thus  become  a  quasi-currency.  1 
Stockt.  Ch.  N.  J.  667  ;  13  N.  Y.  599.  See, 
also,  11  Paige,  Ch.  N.  Y.  634 ;  2  Hill,  N.  Y. 
159;  3  Barnew.  &  C.  45;  4  Barnew.  &  Aid. 
1;  7  Bingh.  284;  27  Penn.  St.  413:  Red- 
field,  Railw.  §  239. 

Constitutional  questions.  These  liave  refer- 
ence chiefly  to  the  inviolability  of  charter 
rights  under  the  United  States  constitution, 
and  rest  mainlj  upon  the  doctrines  and  prin- 


ciples of  the  leading  case  of  Dartmouth  Col- 
lege vs.  Woodward,  4  Wheat.  518.  The 
provision  in  the  United  States  constitution 
referred  to  is  that  prohibiting  the  several 
states  from  passing  "any  law  impairing  the 
obligation  of  contracts." 

A  corporate  charter  is  regarded  as  a  legis- 
lative grant  of  certain  franchises  and  im- 
munities involving  pecuniary  value,  and,  con- 
sequently, not  revocable,  or  subject  to  legisla- 
tive control  in  any  other  sense  than  as  all 
rights  of  property  are  liable  to  be  affected 
by  general  legislation.  4  Wheat.  518 ;  27 
Vt.  140 ;  Redfield,  Railw.  ^231. 

The  essential  franchise  of  a  private  cor- 
poration, being  private  property,  cannot  be 
taken  for  public  use  without  adequate  com- 
pensation. 15  Vt.  745;  16  id.  476;  27  id. 
140  ;  6  How.  507. 

9.  But  to  be  thus  inviolable  it  is  essential 
that  the  franchises  in  question  shall  be  such 
as  are  indispensable  to  the  existence  and 
just  operation  of  the  corporation,  or  else  that 
they  be  expressly  secured  to  the  corporation 
in  its  charter.    U  Pet.  420. 

These  exclusive  grants  are  to  be  strictly 
construed  in  favor  of  the  corporation,  and 
liberally  expounded  in  favor  of  public  rights 
and  interests.  Opinion  of  Taney,  Ch.  J., 
in  11  Pet.  420  ;  13  How.  71 ;  1  La.  Ann. 
253. 

It  makes  no  difierence  in  regard  to  the 
rights  of  the  corporation  that  it  may  have 
received  large  grants  of  land  or  other  property 
from  the  state  or  sovereignty  conferring  the 
charter.  Unless  the  stock  is  owned  by  the 
state,  or  the  appointment  and  control  of  the 
principal  officers  are  retained  by  the  state,  so 
as  to  create  it  a  *public  corporation,  its  essen- 
tial franchises  are  inviolable  to  the  same  ex- 
tent as  other  private  rights  of  a  pecuniary 
character,  and  its  functions  are  equally  inde- 
pendent of  legislative  control  as  are  those 
of  any  natural  person.  14  Miss.  599 ;  6 
Penn.  St.  86  ;  13  id.  133  ;  13  Ired.  No.  C.  75  ; 
9  Mo.  507  ;  27  Miss.  517 ;  13  B.  Monr.  Ky.  1 ; 
9  Wend.  N.  Y.  351 ;  4  Barb.  N.  Y.  64.  See, 
also,  the  late  cases,  in  the  United  States  su- 
preme court,  maintaining  the  same  principle. 
18  How.  331,  380,  384;  Redfield,  Railw.  § 
232. 

RAIN-WATER.  Thewater  which  natu- 
rally falls  from  the  clouds. 

2.  No  one  has  a  right  to  build  his  house 
so  as  to  cause  the  rain-water  to  fall  over  his 
neighbor's  land,  1  Rolle,  Abr.  107 ;  2  id, 
565;  2  Leon.  94;  1  Strange,  643  ;  Fortescue, 
212;  Bacon,  Abr.  Action  on  the  Case  (F);  5 
Coke,  101 ;  1  Comyns,  Dig.  Action  on  the 
Case  for  a  ISuisance  (A),  unless  he  has  ac- 
quired a  right  by  a  grant  or  prescription. 

3.  When  the  land  remains  in  a  stat(;  of 
nature,  says  a  learned  writer,  and  by  the 
natural  descent  the  rain-water  would  de- 
scend from  the  superior  estate  over  the  lower, 
the  latter  is  necessarily  subject  to  receive 
such  water.  1  Lois  des  Batimens,  15,  16. 
See  2  Rolle,  140;  Dig.  39.  3;  2  Bouvier, 
Inst.  n.  1608. 


RAISE 


410 


RAPE 


RAISE.  To  create.  A  use  may  be  raised ; 
I.e.  a  use  may  be  created.  1  Spence,  Eq. 
Jur.  440*. 

RANGE.  This  word  is  used  in  the  land- 
laws  of  tlie  United  States  to  designate  the 
order  of  the,  location  of  such  lands,  and  in 
patents  from  the  United  States  to  individuals 
they  are  described  as  being  within  a  certain 
range. 

RANGER.  A  sworn  officer  of  the  forest 
to  inquire  of  trespasses,  and  to  drive  the 
beasts  of  the  forest  out  of  the  deforested 
ground  into  the  forest.    Jacob,  Law  Diet. 

RANK.  The  order  or  place  in  which 
certain  officers  are  placed  in  the  army  and 
navy,  in  relation  to  others. 

It  is  a  maxim  that  officers  of  an  inferior 
rank  are  bound  to  obey  all  the  lawful  com- 
mands of  their  superiors,  and  are  justified 
for  such  obedience. 

RANKING.  In  Scotch  Law.  Deter- 
mining the  order  in  which  the  debts  of  a 
bankrupt  ought  to  be  paid. 

RANSOM  BILL.  A  contract  for  pay- 
ment of  ransom  of  a  captured  vessel,  with 
stipulations  of  safe-conduct  if  she  pursue  a 
certain  course  and  arrive  in  a  certain  time. 
If  found  out  of  time  or  course,  the  safe-con- 
duct is  void.  Wheaton,  Int.  Law,  107*.  The 
payment  cannot  be  enforced  in  England, 
during  the  war,  by  an  action  on  the  contract, 
but  can  in  this  country.  1  Kent,  Comm.  104, 
105  ;  4  Wash.  C.  C.  141 ;  2  Gall.  C.  C.  325. 

RAPE  (Lat.  rapere,  to  snatch,  to  seize  with 
violence).  In  Criminal  Law.  The  carnal 
knowledge  of  a  woman  by  a  man  forcibly 
and  unlawfully  ogainst  her  ^ill. 

The  statute  of  Westminster  2,  c.  34,  defines 
the  crime  to  be  where  "  a  man  do  ravish  a  wo- 
man, married,  maid,  or  other,  where  she  did  not 
consent  neither  before  nor  after."  And  this 
statute  definition  has  been  adopted  in  several 
very  recent  cases.  Addenda  to  1  Den.  Cr. 
Oas.;  1  Bell,  Cr.  Cas.  63,  71. 

2.  Much  difficulty  has  arisen  in  defining 
the  meaning  of  carnal  knowledge,  and  dift'er- 
ent  opinions  have  been  entertained, — some 
judges  having  supposed  that  penetration 
alone  is  sufficient,  while  others  deemed  emis- 
sion an  essential  ingredient  in  the  crime. 
Hawkins,  PI.  Cr.  b.  1,  c.  41,  s.  3  ;  12  Coke, 
37  ;  1  Hale,  PI.  Cr.  628  ;  2  Chitty,  Crim.  Law, 
810.  But  in  modern  times  the  better  opinion 
seems  to  be  that  both  penetration  and  emis- 
sion are  not  necessary.  1  East,  PI.  Cr.  439  ; 
3  Greenleaf,  Ev.  §  410;  2  Bishop,  Crim.  Law, 
§  942.  It  is  to  be  remarked,  also,  that  very 
Blight  evidence  may  be  sufficient  to  induce  a 
jury  to  believe  there  was  emission.  Add. 
Penn.  143  :  2  Const.  So.  C.  351 ;  1  Beck,  Med. 
Jur.  140 ;  4  Chitty,  Blackst.  Comm.  213,  note 
8.  In  Scotland,  emission  is  not  requisite. 
Alison,  Scotch  Law,  209,  210.  See  Emis- 
sion; Penetration. 

3.  By  the  term  man  in  this  definition  is 
meant  a  male  of  the  human  species,  of  the 
age  of  fourteen  years  and  upwards ;  for  an 


infant  under  fourteen  years  is  supposed  b 
law  incapable  of  committing  this  ofi'ence. 
Hale,  PI.  Cr.  631 ;  8  Carr.  &  P.  738.  But 
not  only  can  an  infant  under  fourteen  years, 
if  of  sufficient  mischievous  discretion,  but 
even  a  woman  may  be  guilty  as  principal  in 
the  second  degree.  And  the  husband  of  a 
woman  may  be  a  principal  in  the  second  de- 
gree of  a  rape  committed  upon  his  wife :  as, 
where  he  held  her  while  his  servant  com- 
mitted the  rape.    1  Hargrave,  St.  Tr.  388. 

4.  The  knowledge  of  the  woman's  person 
must  be /om6Z?/  and  against  her  will;  and 
if  her  consent  has  not  been  voluntarily  and 
freely  given  (when  she  has  the  power  to  con- 
sent), the  ofi'ence  will  be  complete,  nor  will 
any  subsequent  acquiescence  on  her  part  do 
away  the  guilt  of  the  ravisher.  A  consent 
obtained  from  a  woman  by  actual  violence, 
by  duress  or  threats  of  murder,  or  by  the 
administration  of  stupefying  drugs,  is  not 
such  a  consent  as  will  shield  the  offender  or 
turn  his  crime  into  adultery  or  fornication  : 
and  if  the  connection  took  place  when  she 
vras  in  a  state  of  insensibility  from  liquor, 
having  been  made  drunk  by  the  prisoner, 
though  the  liquor  was  given  only  for  the  pur- 
pose of  exciting  her,  it  is  a  rape.  1  Den.  Or. 
Cas.  89 ;  1  Carr.  &  K.  746.  Having  carnal 
knowledge  of  a  woman  by  a  fraud  which  in- 
duces her  to  suppose  it  is  her  husband,  does 
not  amount  to  a  rape.  Russ.  &  R.  487  ;  6 
Cox,  Cr.  Cas.  412;  Dearsl.  Cr.  Cas.  397;  8 
Carr.  &  P.  265,  286 ;  1  Carr.  &  K.  415.  But 
there  can  be  no  doubt  that  the  party  is  liable 
in  such  case  to  be  indicted  for  an  assault. 

5.  The  matrimonial  consent  of  the  wife 
cannot  be  retracted ;  and,  therefore,  her  hus- 
band cannot  be  guilty  of  a  rape  on  her,  as 
his  act  is  not  unlawful.  But,  as  already 
observed,  he  may  be  guilty  as  principal  in 
the  second  degree. 

As  a  child  under  ten  years  of  age  is  in- 
capable in  law  to  give  her  consent,  it  follows 
that  the  ofi'ence  may  be  committed  on  such  a 
child  whether  she  consent  or  not.  See  stat, 
18  Eliz.  c.  7,  s.  4. 

It  has  been  questioned  whether  rape  was 
a  felony  at  common  law,  or  was  made  one 
by  a  statute  in  the  reign  of  Edward  I.  The 
benefit  of  clergy  was  first  taken  away  by  a 
statute  of  Elizabeth.  By  a  statute  of  Vic- 
toria, the  ofi'ence  is  no  longer  punishable  with 
death,  but,  at  most,  with  transportation  for 
life  ;  previous  to  that  statute,  the  capital  pun- 
ishment wjis  almost  invariably  enforced. 

See,  as  to  the  possibility  of  committing  a 
rape,  and  as  to  the  signs  which  indicate  it, 
1  Beck,  Med.  Jur.  c.  12;  Merlin,  Repert. 
Viol.;  1  Briand,  M6d.  Leg.  Ihre  partie,  c.  1, 
p.  66  ;  Biessy,  Manuel  M6dico-L6gal,  etc., 
p.  149  ;  Parent  Duchatellet,  De  la  Prostitu- 
tion dans  la  Ville  de  Paris,  c.  3,  §  5  ;  Barring- 
ton,  Stat.  123  ;  9  Carr.  &  P.  752 ;  2  Pick. 
Mass.  380 ;  12  Serg.  &  R.  Penn.  G9 ;  7  Conn. 
54;  1  Const.  So.  C.  354;  2  Va.  Cas.  235. 

In  English  Law.  A  division  of  a  county 
similar  to  a  hundred,  but  oftentimes  contaia* 
ing  in  it  more  hundreds  than  one. 


RAPINE 


411  RATIONALIBUS  DIVISIS,  WltlT  DE 


RAPINE.     In  Criminal  Law.  The 

felonious  taking  of  another  man's  personal 
property,  openly  and  by  violence,  aj^ainst  his  ! 
will.  The  civilians  define  rapine  to  be  the 
taking  with  violence  the  moval>le  property 
of  another,  with  the  fraudulent  intent  to  ap- 
propriate it  to  one's  own  use.  Le9.  El.  Dr. 
Rom.  n071. 

RAPPORT  A  SUCCESSION  (Fr. ; 
^'  similar  to  hotchpot).  In  Louisiana.  The 
reunion  to  the  mass  of  the  succession  of  the 
things  given  by  the  deceased  ancestor  to  his 
heir,  in  order  that  the  whole  may  be  divided 
among  the  co-heirs. 

The  obligation  to  make  the  rapport  has  a 
triple  foundation.  First,  it  is  to  be  pre- 
sumed that  the  deceased  intended,  in  making 
an  advancement,  to  give  only  a  portion  of 
the  inheritance.  Second,  it  establishes  the 
equality  of  a  division,  at  least,  with  regard 
to  the  children  of  the  same  parent,  who  all 
have  an  equal  right  to  the  succession.  Third, 
it  preserves  in  families  that  harmony  which 
is  always  disturbed  by  unjust  favors  to  one 
who  has  only  an  equal  right.  Dalloz,  Diet. 
See  Advancement;  Collation;  Hotchpot. 

RASCAL.  An  opprobrious  term,  applied 
to  persons  of  bad  character.  The  law  does 
not  presume  that  a  damage  has  arisen  be- 
cause the  defendant  has  been  called  a  rascal, 
and  therefore  no  general  damages  can  be 
recovered  for  it:  if  the  party  has  received 
special  damages  in  consequence  of  being  so 
called,  he  can  recover  a  recompense  to  indem- 
nify him  for  his  loss. 

RASURE.  The  scratching  or  scraping 
a  writing,  so  as  to  prevent  some  part  of  it 
from  being  read.  The  word  writing  here  is 
intended  to  include  printing. 

RATE.  A  public  valuation  or  assessment 
of  every  man's  estate;  or  the  ascertaining 
how  much  tax  every  one  shall  pay.  See 
Powell,  Mortg.  Index  ;  1  Hopk.  Ch.  N.  Y.  37. 

RATE  OP  EXCHANGE.  In  Com- 
mercial Law.  The  price  at  which  a  bill 
drawn  in  one  country  upon  another  may  be 
sold  in  the  former. 

RATIFICATION.  An  agreement  to 
adopt  an  act  performed  by  another  for  us. 

Express  ratifications  are  those  made  in  ex- 
press and  direct  terms  of  assent.  Implied 
ratifications  are  such  as  the  law  presumes 
from  the  acts  of  the  principal:  as,  if  Peter 
buy  goods  for  James,  and  the  latter,  knowing 
the  fact,  receive  them  and  apply  them  to  his 
own  use. 

2.  By  ratifying  a  contract  a  man  adopts 
the  agency  altogether,  as  well  what  is  detri- 
mental as  that  which  is  for  his  benefit.  2 
Strange,  859  ;  1  Atk.  Ch.  128;  4  Term,  211 ; 
7  East,  164;  16  Mart.  La.  105;  1  Ves.  Ch. 
509  ;  Smith,  Merc.  Law,  60;  Story,  Ag.  ^250; 
9  Barnew.  &  C.  59. 

^  As  a  general  rule,  the  principal  has  the 
right  to  elect  whether  he  will  adopt  the  un- 
authorized act  or  not.  But  having  once  rati- 
fied the  act,  upon  a  full  knowledge  of  all  the 


material  circumstances,  the  ratification  cannot 
be  revoked  or  recalled,  and  tiie  printtipal  be- 
comes l}ound  as  if  he  had  originally  author- 
ized the  act.  Story,  Ag.  ^  250;  Pahiy,  Ag. 
Lloyd  ed.  171  ;  3  Chitty,  Com.  Law,  197. 

3.  The  ratification  of  a  lawful  contract 
has  a  retrospective  effect,  and  binds  the  prin- 
cipal from  its  date,  and  not  only  from  the 
time  of  the  ratification,  for  the  ratification  is 
equivalent  to  an  original  authority,  according 
to  the  maxim  that  omnis  ratihahilio  mandate 
CEquiparatur.  Pothier,  Obi.  n.  75  ;  2  Ld.  Uaym. 
930  ;  Comb.  450  ;  5  Burr.  2727  ;  2  II.  Bhickst. 
623;  1  Bos.  &  P.  316;  13  Johns.  N.  Y.  367, 
2  Johns.  Cas.  N.  Y.  424  ;  2  Mass.  106. 

Such  ratification  will,  in  general,  relieve 
the  agent  from  all  responsibility  on  the 
ccmtract,  M'-hen  he  would  otherwise  have 
been  liable.  2  Brod.  &  B.  452.  See  16 
Mass.  461 ;  8  Wend.  N.  Y.  494;  10  id.  399 ; 
Story,  Ag.  ^  251.  See  Assent;  Ayliffe, 
Pand.  ^386;  18  Viner,  Abr.  156;  1  Liver- 
more,  Ag.  c.  2,  I  4,  pp.  44,  47  ;  Story,  Ag.  | 
239  ;  3  Ohitty,  Com.  Law,  197  ;  Paley,  Ag. 
Lloyd  ed.  324;  Smith,  Merc.  Law,  47,  60;  2 
Johns.  Cas.  N.  Y.  424;  13  Mass.  178,  391, 
379;  6  Pick.  Mass.  198;  1  Brown,  Ch.  101, 
note ;  1  Pet.  C.  C.  72 ;  Bouvier,  Inst.  Index. 

4.  An  infant  is  not,  in  general,  liable  on 
his  contracts  ;  but  if,  after  coming  of  age,  he 
ratify  the  contract  by  an  actual  or  express 
declaration,  he  will  be  bound  to  perform  it, 
as  if  it  had  been  made  after  he  attained  full 
age.  The  ratification  must  be  voluntary, 
deliberate,  and  intelligent,  and  the  party 
must  know  that  without  it  he  would  not  be 
bound.  11  Serg.  &  R.  Penn.  305,  311;  3 
Penn.  St.  428.  See  12  Conn.  551,  556;  10 
Mass.  137,  140  ;  14  id.  457  ;  4  AVend.  N.  Y. 
403,  405.  But  a  confirmation  or  ratification 
of  a  contract  may  be  implied  from  acts  of 
the  infant  after  he  becomes  of  age,  as,  by 
enjoying  or  claiming  a  benefit  under  a  con- 
tract he  might  have  wholly  rescinded,  1 
Pick.  Mass.  221,  223  ;  and  an  infant  partner 
will  be  liable  for  the  contracts  of  the  firm,  or 
at  least  such  as  were  known  to  him,  if  he, 
after  becoming  of  age,  confirm  the  contract 
of  partnership  by  transacting  business  of  the 
firm,  receiving  profits,  and  the  like.  2  Hill. 
So.  C.  479;  1  J.  B.  Moore,  289. 

RATIFICATION    OF  TREATIES. 

See  Treaty. 

RATIHABITION.  Confirmation;  ap- 
probation  of  a  contract ;  ratification. 

RATIO  (Lat.).  A  reason;  a  cause;  a 
reckoning  of  an  account. 

RATIONALIBUS  DIVISIS,  WRIT 

DE.  The  name  of  a  writ  which  lies  properly 
when  two  men  have  lands  in  several  towns 
or  hamlets,  so  that  the  one  is  seised  of  the 
land  in  one  town  or  hamlet,  and  the  other 
of  the  other  town  or  hamlet  by  himself,  and 
they  do  not  know  the  bounds  of  the  town  or 
hamlet,  nor  of  their  respective  lands.  Thi» 
writ  lies  by  one  against  the  other,  and  the 
object  of  it  is  to  fix  the  boundaries.  Fitzher- 
I  bert,  Nat.  Brev. 


RAVISHED 


412  REAL  COVENANT 


RAVISHED.  In  Pleading.  A  tech- 
nical word  necessary  in  an  indictment  for 
rape. 

No  other  word  or  circumlocution  will 
answer.  The  defendant  should  be  charged 
with  having  ^^feloniously  ravished''  the  prose- 
cutrix, or  woman  mentioned  in  the  indict- 
ment. Bacon,  Abr.  Indictment  (G  1) ; 
Comyns,  Dig.  Indictment  (G  6) ;  Hawkins, 
PI.  Cr.  2,  c.  25,  s.  56  ;  Croke  Gas.  37  ;  1  Hale, 
Pi.  Cr.  628;  2  id.  184;  Coke,  Litt.  184,  n.  p; 
Coke,  2d  Inst.  180;  1  East,  PI.  Cr.  447.  The 
words  "  feloniously  did  ravish  and  carnally 
know"  imply  that  the  act  was  done  forcibly 
and  against  the  will  of  the  woman.  12  Serg. 
&  R.  Penn.  70.  See  3  Chitty,  Grim.  Law, 
812. 

RAVISHMENT.     In  Criminal  Law. 

An  unlawful  taking  of  a  woman,  or  of  an 
heir  in  ward.  Rape. 

RAVISHMENT  OP  WARD.  In 
English  Law.  The  marriage  of  an  infant 
ward  without  the  consent  of  the  guardian. 
It  is  punishable  by  statute  Westminster  2, 
c.  35. 

READING.  The  act  of  pronouncing 
aloud,  or  of  acquiring  by  actual  inspection  a 
knowledge  of,  the  contents  of  a  writing  or  of 
a  printed  document. 

In  order  to  enable  a  party  to  a  contract,  or 
a  devisor,  to  know  what  a  paper  contains,  it 
must  be  read,  either  by  the  party  himself  or 
by  some  other  person  to  him.  When  a  per- 
son signs  or  executes  a  paper,  it  will  be  pre- 
sumed that  it  has  been  read  to  him;  but  this 
presumption  may  be  rebutted. 

In  the  case  of  a  blind  testator,  if  it  can  be 
proved  that  the  will  was  not  read  to  him,  it 
cannot  be  sustained.  3  Wash.  C.  C.  580. 
See  2  Bouvier,  Inst.  n.  2012. 

REAL.  At  Common  Law.  A  term 
which  is  applied  to  land  in  its  most  enlarged 
signification.  Real  security,  therefore,  means 
the  security  of  mortgages  or  other  incum- 
brances afi'ecting  lands.  2  Atk.  Ch.  806 : 
s.  c,  2  Ves.  Sen.  Ch.  547. 

In  Civil  Law.  That  which  relates  to  a 
thing,  whether  it  be  movable  or  immovable, 
lands  or  goods:  thus,  a  real  injury  is  one 
which  is  done  to  a  thing,  as  a  trespass  to 
property,  whether  it  be  real  or  personal  in 
the  common-law  sense.  A  real  statute  is  one 
which  relates  to  a  thing,  in  contradistinction 
to  such  as  relate  to  a  person. 

REAL  ACTION.  In  Practice.  In  the 

Civil  Law.  Gne  by  which  a  person  seeks 
to  recover  his  property  which  is  in  the  posses- 
sion of  another.  Dig.  50.  16.  16.  It  is  to  be 
brought  against  the  person  who  has  posses- 
sion. 

At  the  Common  Law.  One  brought  for 
the  specific  recovery  of  lands,  tenements,  or 
hereditaments.    Stephen,  Plead.  3. 

They  are  droitural  when  they  are  based 
upon  the  right  of  property,  and  posses'sory 
when  based  upon  the  right  of  possession. 
Real  A ct.  84.   They  are  either  writs  of  right ; 


writs  of  entry,  which  lie  in  the  per,  the  pei 
et  cui,  or  the  post,  upon  disseisin,  intrusion, 
or  alienation ;  writs  ancestral  possessory,  as 
mort  d'ancestor,  aiel,  besaiel,  cosinage,  or 
nuper  obiit.    Comyns,  Dig.  Actions  (D  2). 

These  actions  were  always  local,  and  were 
to  be  brought  in  the  county  where  the  land 
lay.  Bracton,  189,  414.  They  are  now  pretty 
generally  laid  aside  in  practice,  upon  account 
of  the  great  nicety  required  in  their  manage- 
ment, and  the  inconvenient  length  of  their 
process, — a  much  more  expeditious  method  of 
trying  titles  being  since  introduced  by  other 
actions,  personal  and  mixed.  See  Stearns, 
Real  Act. ;  Booth,  Real  Act.  ;  Bacon,  Abr. 
Actions;  Comyns,  Dig.  Actions;  3  Shars- 
wood,  Blackst.  Comm.  118. 

REAL  CONTRACT.  At  Common 
Law.  A  contract  respecting  real  property. 
3  Rawle,  Penn.  225. 

In  Civil  Law.  Those  contracts  which 
require  the  interposition  of  a  thing  {rei)  aa 
the  subject  of  them:  for  instance,  the  loan 
for  goods  to  be  specifically  returned. 

Contracts  are  divided  into  those  which  are 
formed  by  the  mere  consent  of^^the  parties, 
and  therefore  are  called  consensual,  such  as 
sale,  hiring  and  mandate ;  and  those  in  which 
it  is  necessary  that  there  should  be  something 
more  than  mere  consent,  such  as  the  loan  of 
money,  deposit  or  pledge,  which,  from  their 
nature,  require  the  delivery  of  the  thing; 
whence  they  are  called  real.  Pothier,  Gbl. 
p.  1,  c.  1,  s.  1,  art.  2. 

REAL  COVENANT.  A  covenant  con- 
nected with  a  conveyance  of  realty,  whereby 
an  obligation  to  pass  something  real  is  created, 
or  which  is  so  connected  with  the  realty  that 
he  who  has  the  latter  is  entitled  to  the  bene- 
fit of,  or  is  bound  to  perform,  the  former. 
Fitzherbert,  Nat.  Brev.  145 ;  Sheppard, 
Touchst.  161. 

A  covenant  which  is  so  connected  with  the 
realty  as  to  apply  to  the  owner  thereof,  either 
in  reference  to  benefit  or  obligation,  whether  i 
he  be  a  party  to  the  instrument  creating  the  i 
covenant  or  not. 

A  covenant  by  which  the  obligor  under^  f 
takes  to  pass  something  real.     Coke,  Litt. 
384  h;  Stearns,  Real  Act.  134.    See  4  Kent, 
Comm.  472. 

A  covenant  by  which  the  covenantor  binds 
his  heirs.  2  Sharswood,  Blackst.  Comm 
304. 

Very  considerable  confusion  exists  among  the 
authorities  in  the  use  of  the  term  real  covenants. 
The  definition  of  Blackstone,  which  determines  tha 
character  of  covenants  from  the  insertion  or  non- 
insertion  of  the  word  '*  heir"  by  the  covenantor,  is 
pretty  generally  rejected.  See  Piatt,  Gov.  61 ;  2 
Sharswood,  Blackst.  Comm.  304,  n.,  305,  n.  Of  the 
other  definitions,  that  which  makes  a  real  cove- 
nant an  obligation  to  pass  realty  is  the  most  an- 
cient. Upon  such  a  covenant  the  remedy  was  by 
voucher  or  warrantia  chartse,  and  not  by  the  action 
of  covenant. 

Together  with  the  disuse  of  real  actions,  those 
covenants  gave  place  to  the  more  modern  covenania 
which  furnish  the  basis  of  a  personal  action  for 
damages,  and  the  term  real  covenants  lost  its  anciunt 


REAL  LAW 


413  REAL  PROPERTY 


Bignification  and  acquired  its  modern  one,  as  given 
in  the  latter  part  of  the  first  and  in  the  second 
definition.  The  covenant  to  stand  seised  ap- 
proaches perhaps  more  nearly  than  any  covenant 
still  in  use  to  the  ancient  real  covenant. 

Covenants  are  real  only  when  they  have 
entered  into  the  consideration  for  which  land, 
or  some  interest  therein  to  which  the  cove- 
nant is  annexed,  passed  between  the  cove- 
nantor and  covenantee.  See  Covenant,  13; 
2  Washburn,  Real  Prop.  GG2,  G63. 

In  England,  all  covenants  for  title  are  held 
*o  be  real  covenants ;  in  the  United  States, 
those  only  which  are  future  in  their  operation 
come  under  this  description.    10  Ga.  311. 

The  object  of  these  covenants  is,  usually, 
either  to  preserve  the  inheritance,  as  to  keep 
in  repair,  3  Lev.  92 ;  9  Barnew.  &  C.  505  ; 
8  Cow.  N.  Y.  206;  17  Wend.  N.  Y.  148;  1 
Dall.  C.  C.  210;  6  Yerg.  Tenn.  512;  6  Vt. 
276;  25  Penn.  St.  257  ;  38  Eng.  L.  &  Eq. 
462 ;  to  keep  buildings  insured,  and  reinstate 
them  if  burned,  Piatt,  Cov.  185  ;  5  Barnew. 
&  Ad.  1 ;  6  Gill  &  J.  Md.  372  ;  to  conthme 
the  relation  of  landlord  and  tenant,  as  to  pay 
rent,  5  East,  575  ;  1  Dougl.  183  ;  1  Wash.  C. 
C.  375  ;  do  suit  to  the  lessor's  mill,  5  Coke, 
18  ;  1  Barnew.  &  C.  410;  grind  the  tenant's 
corn,  2  Yeates,  So.  C.  74 ;  9  Vt.  91 ;  for  the 
renewal  of  leases,  12  East,  469  ;  or  to  protect 
the  tenant  in  his  enjoyment  of  the  premises,  as 
to  warrant  and  defend,  Sheppard,  Touchst. 
161;  2  Mass.  433;  5  Cow.  N.  Y.  137;  1 
Paige,  Ch.  N.  Y.  455  ;  to  make  further  assu- 
rance, Croke  Car.  503  ;  for  quiet  enjoyment, 
Croke  Eliz.  373  ;  3  Barnew.  &  Aid.  392 ;  1 
C.  B.  402 ;  1  Dev.  &  B.  No.  C.  94 ;  23  Me.  383 ; 
never  to  claim  or  assert  title,  7  Me.  97  ;  3 
Mete.  Mass.  121 ;  to  remove  incumbrances, 
17  Mass.  586 ;  to  release  suit  and  service. 
Coke,  Litt.  384  h;  to  produce  title-deeds  in 
defence  of  the  grantee's  title,  4  Greenleaf, 
Cruise,  Dig.  393  ;  10  Law  Mag.  353-357  ;  1 
Sim.  &  S.  Ch.  449 ;  to  supply  water  to  the 
premises,  4  Barnew.  &  Aid.  266 ;  to  draw 
water  off  from  a  mill-pond,  19  Pick.  Mass. 
449 ;  not  to  establish  another  mill  on  the 
same  stream,  17  Wend.  N.  Y.  136 ;  not  to 
erect  buildings  on  adjacent  land,  4  PJHge, 
Ch.  N.  Y.  510 ;  to  use  the  land  in  a  specmed 
manner,  13  Sim.  Ch.  228  ;  generally  to  create 
or  preserve  easements  for  the  benefit  of  the 
land  granted.  4  E.  D.  Smith,  N.  Y.  122  ;  1 
Bradf.  N.  Y.  40.  See  2  Greenleaf,  Ev.  g  240; 
2  Washburn,  Real  Prop.  648.  See  Cove- 
nant ;  Real. 

REAL  LAW.  At  Common  Law.  A 
popular  term  used  to  denote  such  parts  of 
Hie  system  of  common  law  as  concern  or  re- 
late to  real  property. 

In  Civil  Law.  A  law  which  relates  to 
specific  property,  whether  movable  or  im- 
movable. 

If  real  law  in  any  given  case  relate  to 
immovable  property,  it  is  limited  in  its  ope- 
ration to  the  territory  within  which  that  is 
situate,  real  estate  being,  both  by  the  com- 
mon and  continental  laws,  subject  exclu- 
sively to  the  laws  of  the  government  within 


whose  territory  it  is  situate.  Story,  Confl 
Laws,  426,  428.    See  Rei  Sit^. 

REAL  PROPERTY.  Something  which 
may  be  held  by  tenure,  or  will  pass  to  the 
heir  of  the  possessor  at  his  death,  instead  of 
his  executor,  including  lands,  tenements,  and 
hereditaments,  whether  the  latter  be  cor- 
poreal or  incorporeal.    1  Atkinson,  Con  v. 

In  respect  to  property,  real  and  pernonnl  corre- 
spond very  nearly  with  immovables  and  imnxiblea  of 
the  civil  law.  liy  the  latter,  "  biens"  is  a  general 
terra  for  property;  and  these  are  classified  into 
movable  and  imraovable,  and  the  latter  are  sub- 
divided into  corporeal  and  incorporeal.  Guyot,  Re- 
pert.  Biena. 

By  immovables  the  civil  law  intended  property 
which  could  not  be  removed  at  all,  or  not  without 
destroying  the  same,  together  with  such  movables 
as  are  fixed  to  tlie  freehold,  or  have  been  so  fixed 
and  are  intended  to  be  again  united  with  it,  al- 
though at  the  time  severed  therefrom.  Taylor, 
Civ.  Law,  475. 

The  same  distinction  and  rules  of  law  as  to  the 
nature  and  divisions  of  property  are  adopted  in 
Scotland,  where,  as  by  the  Roman  law,  another 
epithet  is  applied  to  immovables.  They  are  called 
heritable,  and  go  to  the  heir,  as  distinguished  from 
movables,  which  go  to  executors  or  administrators. 
So  rights  connected  with  or  affecting  heritable 
property,  such  as  tithes,  servitudes,  and  the  like, 
are  themselves  heritable;  and  in  this  it  coincidea 
with  the  common  law.    Erskine,  Inst.  192. 

In  another  respect  the  Scotch  coincides  with  the 
common  law,  in  declaring  growing  crops  of  annual 
planting  and  culture  not  to  be  heritable,  but  to  go  to 
executors,  etc.,  although  so  far  a  part  of  the  real 
estate  that  they  would  pass  by  a  conveyance  of  the 
land.    Erskine,  Inst.  193;  Williams,  Exec.  600. 

Though  the  term  real,  as  applied  to  property,  in 
distinction  from  personal,  is  now  so  familiar,  it 
is  one  of  a  somewhat  recent  introduction.  While 
the  feudal  law  prevailed,  the  terms  in  use  in  its  stead 
were  lands,  tenements,  or  hereditaments;  and  these 
acquired  the  epithet  of  real  from  the  nature  of  the 
remedy  applied  by  law  for  the  recovery  of  them, 
as  distinguished  from  that  provided  in  case  of  in- 
juries, contracts-broken,  and  the  like.  In  the  one 
case  the  claimant  or  demandant  recovered  the  real 
thinfj  sued  for, — the  land  itself, — while,  ordinarily, 
in  the  other  he  could  only  recover  recompense  in 
the  form  of  pecuniary  damages. 

The  terra,  it  is  said,  as  a  means  of  designation, 
did  not  come  into  general  use  until  after  the  feudal 
system  had  lost  its  hold,  nor  till  even  as  late  as 
the  commencement  of  the  seventeenth  century.  One 
of  the  earliest  cases  in  which  the  courts  applied 
the  distinctive  terms  of  real  and  personal  to  estates, 
without  any  words  of  explanation,  is  said  to  have 
been  that  of  Wind  vs.  Jekyl  et.  al.  A.D.  1719,  1  P. 
Will.  Ch.  575 ;  Williams,  Real  Prop.  6,  7. 

2.  Upon  the  question  what  is  embraced 
under  the  term  real  property  or  estate,  so  as 
to  have  heritability  and  other  incidents  of 
lands,  tenements,  or  hereditaments,  it  may  bo 
stated,  in  general  terms,  that  it  includes  land 
and  whatever  is  erected  or  growing  upon  the 
same,  with  whatever  is  beneath  or  above  the 
surface :  "  usque  ad  orcum"  as  well  as  "  usque 
ad  coelum."  2  Blackstone,  Comm.  17-19;  1 
Am.  Law  Mag.  271;  Coke,  Litt.  4  a. 

This  would,  of  course,  include  houses 
standing  and  trees  growing  upon  the  land, 
and  would  not  embrace  chattels  like  stock 
upon  a  farm  or  furniture  in  a  house.  But 
not  only  may  houses  or  gr^^v^ing  trees  ao 


REAL  PROPERTY  414 


REAL  RIGHT 


quire  the  character  of  personal,  but  various 
chattels,  originally  personal  movables,  may 
acquire  that  of  rea/,  property. 

Thus,  if  one  erect  a  dwelling-house  upon 
the  land  of  another  by  his  assent,  it  is  the 
personal  estate  of  the  builder.  6  N.  H.  555  ; 
5  Me.  452 ;  8  Pick.  Mass.  404.  So,  if  a  nursery- 
man plant  trees,  for  the  purpose  of  growing 
them  for  the  market,  upon  land  hired  by 
tiim,  they  would  be  personal  estate.  1  Mete. 
Mass.  27;  4  Taunt.  316. 

3.  So  crops,  while  growing,  planted  by  the 
owner  of  the  land,  are  a  part  of  the  real  estate ; 
but  if  sold  by  him  when  tit  for  harvesting, 
they  become  personal,  5  Barnew.  &  C.  829; 
and  a  sale  of  such  crops,  though  not  fit  for 
harvest,  as  personal,  has  been  held  good.  4 
Mees.  &  W.  Exch.  343;  2  Dan.  Ky.  206;  2 
Rawle,  Penn.  161. 

So  trees  growing,  though  not  in  a  nursery, 
may  be  changed  into  the  category  of  personal 
estate,  if  sold  to  be  cut  without  any  right  to 
have  them  stand  to  occupy  the  land.  4  Mete. 
Mass.  584  ;  9  Barnew.  &  C.  561 ;  7  N.  H.  523. 
But  if  the  owner  of  land  in  fee  grant  the 
trees  growing  thereon  to  another  and  his 
heirs,  to  be  cut  at  his  pleasure,  the  property 
in  the  trees  would  be  real.  4  Mass.  266.  The 
same  rule  would  apply  to  property  in  fee  in 
a  dwelling-house,  though  the  owner  only 
have  a  right  to  have  it  stand  upon  the  land  of 
another.  And  one  may  own  a  chamber  in  a 
house  as  his  separate  real  estate.  1  Term, 
701 ;  1  Mete.  Mass.  541 ;  10  Conn.  318. 

4.  So  a  large  classofarticles  originally  wholly 
movable,  and  which  may  be  at  the  time  even 
disconnected  with  the  land,  may  be  regarded 
as  real  property,  from  having  been  fitted  for 
and  actually  applied  to  use  in  connection  with 
real  estate,  such  as  keys  to  locks  fastened 
upon  doors,  mill-stones  and  irons,  though 
taken  out  of  the  mill  for  repairing,  window- 
blinds,  though  temporarily  removed  from  the 
house,  and  fragments  of  a  dwelling-house  de- 
stroyed by  a  tempest.  Williams,  Exec.  613-615; 
llCoke,50;  10 Paige, Ch.  N.Y.  162;  30 Penn. 
St.  185.  And  a  conveyance  of  a  saw-mill" 
with  the  land  was  held  to  pass  iron  bars  and 
chains  then  in  it  which  had  been  fitted  for 
and  used  in  operating  it.    6  Me.  154. 

In  case  of  corporations,  the  same  property 
may  assume  the  character  both  of  real  and 
personal.  Thus,  if  the  corporation  hold  real 
estate,  such  as  a  mill  or  banking-house,  it 
would  be  in  the  hands  of  the  body  corporate 
real  estate,  but  as  constituting  a  part  of  the 
property  owned  and  represented  in  the  form  of 
stock  by  the  members  constituting  the  body  of 
the  corporation,  it  is  personal.  3  Mces.  &  W. 
Exch.  422;  Angell&  A.Corp.  |557.  But  the 
shares  in  corporate  property  may  be  real  estate 
when  declared  to  be  so  by  the  charter  creating 
it,  or  when  the  corporation  is  merely  consti- 
tuted to  hold  and  manage  lands,  like  proprie- 
tors of  common  lands  in  the  New  England 
states.  2  P.  Will.  127 ;  2  Conn.  567;  10  Mass. 
150. 

5.  Manure  made  upon  a  farm  in  the  usual 
manner,  by  consumption  of  its  products. 


would  be  a  part  of  the  real  estate ;  while  if 
made  from  products  purchased  and  brought 
on  to  the  land  by  the  tenant,  as  in  case  of  a 
livery-stable,  it  would  be  personal,  21  Pick. 
Mass.  371 ;  3  N.  H.  503  ;  6  Me.  222  :  2  N. 
Chipm.  Vt.  115;  11  Conn.  525;  though  in 
England  the  way-going  tenant  may  claim 
compensation  for  manure  left  upon  the  farm 
under  such  circumstances.  1  Crompt.  &  M, 
Exch.  809. 

There  is  a  large  class  of  articles  known  to 
the  law  asjixtures,  which  are  real  or  personal 
according  to  circumstances.  Whatever  is 
fitted  for  and  actually  applied  to  real  estate, 
if  of  a  permanent  nature,  is  real  estate,  and 
passes  from  the  vendor  to  the  vendee  as  such. 
20  Wend.  N.  Y.  368 ;  2  Smith,  Lead.  Cas.  Am. 
ed.  168.  And  the  same  rule  applies  between 
mortgagor  and  mortgagee.  19  Barb.  N.  Y. 
317  ;  4  Mete.  Mass.  311 ;  3  Edw.  Ch.  N.  Y. 
246.  The  same  is  the  rule  as  between  heir 
and  executor  upon  the  death  of  the  ancestor, 
and  between  debtor  and  creditor  upon  a  levy 
made  by  the  latter  upon  the  land  of  the 
former.  10  Paige,  Ch.  N.  Y.  163  ;  7  Mass. 
432.  Whereas  such  fixtures  as  between  a 
tenant  and  a  landlord  are  personal  estate, 
and  may  be  removed  as  such,  unless  left  at- 
tached to  the  realty  by  the  tenant  at  the  close 
of  his  term,  in  which  case  they  become  a 
part  of  the  realty.  2  Pet.  143 ;  7  Cow.  N.  Y.  = 
319  ;  1  Wheat.  91  ;  17  Pick.  Mass.  192.  See  ■ 
Fixtures.  ; 

Heirlooms.    See  Heirlooms.  ' 

6.  Fews  in  churches  are  sometimes  real 
and  sometimes  personal  estate,  depending,  ; 
generally,  upon  local  statutes;  though  in  the 
absence  of  statute  law  it  would  seem  they  : 
were  clearly  interests  in  real  estate,  and  par-  ! 
take  of  the  character  of  such  estate.  1  Pick.  ' 
Mass.  104 ;  16  Wend.  N.  Y.  28 ;  5  Mete.  Mass.  ^ 
132.    See  Pews.  : 

Even  money  often  has  the  character  of  t 
realty  attached  to  it,  so  far  as  being  heritable,  ] 
and  the  like,  by  equity,  where  it  is  the  pro-  | 
ceeds  of  real  estate  wrongfully  converted  into  < 
money,  or  which  ought  to  be  converted  into  " 
real  estate.  3  Wheat.  577  ;  1  Brown,  Ch.  6, 
497  ;  13  Pick.  Mass.  154. 

Slaves,  in  some  of  the  states,  are  so  far 
regarded  as  real  estate  as  to  descend  to  heirs, 
instead  of  passing  to  personal  representatives. 
2  Dan.  Ky.  43. 

Mortgages.    See  Mortgage. 

There  is  one  class  of  interests  in  lands, 
etc.  which,  from  relating  to  lands  which 
are  real,  and  from  being  governed  as  to  suc- 
cession by  the  rules  which  apply  to  personal 
property,  or,  as  that  is  called,  chattels,  takes 
the  name  of  chattels  real.  Of  this  class  are 
terms  for  years  in  lands.  Upon  the  death 
of  the  tenant  of  such  a  term  it  goes  to  his  per- 
sonal representatives,  and  not  to  his  heirs. 
2  Blackstono,  Comm.  386. 

REAL  RIGHT.  In  Scotch  Law.  That 
which  entitles  him  who  is  vested  with  it  to 
possess  the  subject  as  his  own,  and  if,  in  the 
possession  of  another,  to  demand  trom  him 
its  actual  possession. 


REALM 


415  REBUTTING  EVIDENCE 


r  It  is  distinguished  from  a  personal  right,  which  ! 
U  that  of  action  against  a  debtor,  but  without  any 
right  in  the  subject  which  the  debtor  is  obliged  to 
transfer  to  him.  Jieal  rights  affect  the  subject  it- 
self J  personal  are  founded  in  obligation.  Erskiiie, 
Int.  479. 

By  analogy,  the  right  which  a  clain)ant 
in  an  action  of  replevin  seeks  to  enforce  at 
common  law  would  be  a  real  one,  while  the 
compensation  which  a  plaintiff  seeks  in  an 
action  of  assumpsit  or  of  trover,  being  a 
pecuniary  one,  would  XiQ  personal. 

REALM.  A  kingdom;  a  country.  1 
Taunt.  270;  4  Campb.  289 ;  Rose,  Bank.  387. 

REALTY.  A  term  sometimes  used  as  a 
collective  noun  for  real  property  or  estate, — 
more  generally  to  imply  that  that  of  which  it 
is  spoken  is  of  the  nature  or  character  of  real 
property  or  estate. 

REASON.  That  power  by  which  we 
distinguish  truth  from  falsehood  and  right 
from  wrong,  and  by  which  we  are  enabled  to 
combine  means  for  the  attainment  of  particu- 
lar ends.  Encyclopedic  ;  Shelford,  Lun.  In- 
trod.  XX vi.  Ratio  injure  cequitas  Integra. 

A  man  deprived  of  reason  is  not,  in  many 
cases,  criminally  responsible  for  his  acts,  nor 
can  he  enter  into  any  contract. 

Reason  is  called  the  soul  of  the  law;  for 
when  the  reason  ceases  the  law  itself  ceases. 
(Joke,  Litt.  97,  183  ;  I  Blackstone,  Comm.  70; 
7  Toullier,  n.  560 ;  Maxims,  Cessante  ra- 
tione,  etc. 

REASONABLE.  Conformable  or  agree- 
able to  reason  ;  just;  rational. 

An  award  must  be  reasonable;  for  if  it  be 
of  things  nugatory  in  themselves,  and  offer- 
ing no  advantage  to  either  of  the  parties,  it 
cannot  be  enforced.  3  Bouvier,  Inst.  n.  2096. 
See  Award. 

REASONABLE  ACT.  This  term  sig- 
nifies such  an  act  as  the  law  requires.  When 
an  act  is  unnecessary,  a  party  will  not  be  re- 
quired to  perform  it  as  a  reasonable  act.  9 
Price,  Exch.  43;  Yelv.44;  Piatt,  Gov.  342, 157. 

REASONABLE  TIME.  The  English 
law,  which  in  this  respect  has  been  adopted 
by  us,  frequently  requires  things  to  be  done 
within  a  reasonable  time ;  but  what  a  rea- 
sonable time  is,  it  does  not  define :  quam 
longum  debet  esse  rationabile  tempus,  non  de- 
jinitur  in  lege,  sed  pendet  ex  discretione  jus- 
ticiariorum.    Coke,  Litt.  50. 

The  question  of  reasonable  time  is  left  to 
be  fixed  by  circumstances  and  the  usages  of 
business.  A  bill  of  exchange  must  be  pre- 
sented within  a  reasonable  time.  Chitty, 
Bills,  197-202.  An  abandonment  must  be 
made  within  a  reasonable  time  after  advice 
received  of  the  loss.    Marshall,  Ins.  589. 

The  commercial  code  of  France  fixes  a 
time  in  both  these  cases,  which  varies  in  pro- 
portion to  the  distance.  See  Code  de  Com. 
1.  1,  t.  8,  s.  1,  I  10,  art.  160 ;  id.  1.  5,  t.  10,  s. 
3,  art.  373.  See  Notice  of  Dishonor  ;  Pro- 
test. 

REASSURANCE.  When  an  insurer 
ih  desire  us  of  lessening  his  liability,  he  may 


procure  some  other  insurer  to  insure  him  from 
loss,  for  the  insurance  he  has  made:  this  is 
called  reassurance. 

REBATE.  In  Mercantile  Law.  Dis- 
count; the  abatement  of  interest  in  conse- 
quence of  prompt  payment. 

REBEL.  A  citizen  or  subject  who  un- 
justly and  unlawfully  takes  up  arms  against 
the  constituted  authorities  of  the  nation,  t/j 
deprive  them  of  the  supreme  power,  either 
by  resisting  their  lawful  and  constitutional 
orders  in  some  particular  matter,  or  to  im- 
pose on  them  conditions.  Vattel,  Droit  dea 
Gens,  liv.  3,  §  328.  In  another  sense,  it  sig- 
nifies a  refusal  to  obey  a  superior  or  the  com- 
mands of  a  court. 

REBELLION.  In  Criminal  Law.  The 
taking  up  arms  traitorously  against  the  gov- 
ernment. The  forcible  opposition  and  resist- 
ance to  the  laws  and  process  lawfully  issued. 

If  the  rebellion  amount  to  treason,  it  is 
punished  by  the  laws  of  the  United  States 
with  death.  If  it  be  a  mere  resistance  of 
process,  it  is  generally  punished  by  fine  and 
imprisonment.  See  Dalloz,  Diet. ;  Code  Penal, 
209. 

REBELLION,    COMMISSION  OF. 

In  Old  English  Practice.  A  writ  issuing 
out  of  chancery  to  compel  the  defendant  to 
appear. 

REBOUTER.  To  repel  or  bar.  The 
action  of  the  heir  by  the  warranty  of  his  an- 
cestor is  called  to  rebut  or  repel. 

REBUT.  To  contradict;  to  do  away. 
Thus,  every  homicide  is  presumed  to  be  mur- 
der, unless  the  contrary  appears  from  evi- 
dence which  proves  the  death  ;  and  this  pre- 
sumption it  lies  on  the  defendant  to  rebut, 
by  showing  that  it  was  justifiable  or  excusa- 
ble.   Alison,  Scotch  Law,  48. 

REBUTTER.  In  Pleading.  The  name 
of  the  defendant's  answer  to  the  plaintifi"'s 
surrejoinder.  It  is  governed  by  the  same 
rules  as  the  rejoinder.  Comyns,  Dig.  Pleader 
(K).    See  Pleadings. 

REBUTTING  EVIDENCE.  That  evi- 
dence which  is  given  by  a  party  in  the  cause 
to  explain,  repel,  counteract,  or  disprove  facts 
given  in  evidence  on  the  other  side.  The 
term  rebutting  evidence  is  more  particularly 
applied  to  that  evidence  given  by  the  plain- 
tifi'  to  explain  or  repel  the  evidence  given  by 
the  defendant. 

2.  It  is  a  general  rule  that  anything  maybe 
given  as  rebutting  evidence  which  is  a  direct 
reply  to  that  produced  on  the  other  side,  2 
M'Cord,  So.  C.  161;  and  the  proof  of  circum- 
stances may  be  ofiered  to  rebut  the  most  po- 
sitive testimony.    1  Pet.  C.  C.  235. 

But  there  are  several  rules  which  exclude 
all  rebutting  evidence.  A  party  cannot  im- 
peach his  own  witness,  though  he  may  dis- 
prove, by  other  witnesses,  matters  to  which 
he  has  testified,  3  Litt.  Ky.  465  ;  nor  can  he 
rebut  or  contradict  what  a  witness  has  sworn 
to  which  is  immaterial  to  the  issue.  16  Pick. 
Mass.  153  ;  2  Bail.  So.  C.  118. 


RECALL 


416 


RECEIPT 


3.  Parties  and  privies  are  estopped  from 
contradicting  a  written  instrument  by  parol 
proof ;  but  this  rule  does  not  apply  to  strangers. 
10  Johns.  N.  Y.  229.  But  the  parties  may 
prove  that  before  breach  the  agreement  was 
abandoned,  or  annulled  by  a  subsequent 
agreement  not  in  writing.  4  N.  H.  19o. 
And  when  the  writing  was  made  by  another, 
as  where  the  log-book  stated  a  desertion,  the 
party  affected  by  it  may  prove  that  the  entry 
was  false  or  made  by  mistake.  4  Mas.  C.  C. 
541.    See  Estoppel. 

RECALL.   In  International  Law.  To 

deprive  a  minister  of  his  functions  ;  to  super- 
sede him. 

RECALL  A  JUDGMENT.  To  reverse 
a  Judgment  on  a  matter  of  fact.  The  judg- 
ment is  then  said  to  be  recalled  or  revoked  ; 
and  when  it  is  reversed  for  an  error  of  law 
it  is  said  simply  to  be  reversed,  quod  judicium 
reverseiur. 

RECAPTION.  The  act  of  a  person  who 
has  been  deprived  of  the  custody  of  another, 
to  which  he  is  legally  entitled,  by  which  he 
regains  the  peaceable  custody  of  such  person ; 
or  of  the  owner  of  personal  or  real  property 
who  has  been  deprived  of  his  possession,  by 
which  he  retakes  possession  peaceably. 

2.  In  each  of  these  cases  the  law  allows 
the  recaption  of  the  person  or  of  the  property, 
provided  he  can  do  so  without  occasioning  a 
breach  of  the  peace  or  an  injury  to  a  third 
person  who  has  not  been  a  party  to  the  wrong. 
Coke,  3d  Inst.  134;  2  Rolle,  55,  208 ;  2  RoUe, 
Abr.  5G5 ;  3  Blackstone,  Comm.  5 ;  3  Bouvier, 
Inst.  n.  2440  et  seq. 

The  right  of  recaption  of  a  person  is  con- 
fined to  a  husband,  in  retaking  his  wife ;  a 
parent,  his  child,  of  whom  he  has  the  cus- 
tody; a  master,  his  apprentice;  and,  accord- 
ing to  Blackstone,  a  master,  his  servant, — but 
this  must  be  limited  to  a  servant  who  assents 
to  the  recaption:  in  these  cases,  the  party 
injured  may  peaceably  enter  the. house  of  the 
wrong-doer,  without  a  demand  being  first 
made,  the  outer  door  being  open,  and  take 
and  carry  away  the  person  wrongfully  de- 
tained. He  may  also  enter  peaceably  into 
the  house  of  a  person  harboring,  who  was 
not  concerned  in  the  original  abduction.  8 
Bingh.  186. 

3.  The  same  principles  extend  to  the  right 
of  recaption  of  personal  property.  In  this 
sort  of  recaption  too  much  care  cannot  be 
observed  to  avoid  any  personal  injury  or 
t)roach  of  the  peace. 

In  the  recaption  of  real  estate,  the  owner 
may,  in  the  absence  of  the  occupier,  break 
open  the  outer-door  of  a  house  and  take  pos- 
session ;  but  if  in  regaining  his  possession 
the  party  be  guilty  of  a  forcible  entry  and 
breach  of  the  peace,  he  may  be  indicted ;  but 
the  wrong  doer,  or  person  who  had  no  right 
to  the  possession,  cannot  sustain  any  action 
tor  such  forcible  regaining  possession  merely. 
1  Chitty,  Pract.  G4G. 

RECAPTURE.    The  recovery  from  the 


enemy,  by  a  friendly  force,  of  a  prize  by  him 
captured. 

It  seems  incumbent  on  fellow-citizens,  and 
it  is  of  course  equally  the  duty  of  allies,  to 
rescue  each  other  from  the  enemy  when  there 
is  a  reasonable  prospect  of  success.  3  C. 
Rob.  Adm.  224. 

The  recaptors  are  not  entitled  to  the  pro- 
perty captured,  as  if  it  were  a  new  prize:  the 
owner  is  entitled  to  it  by  the  right  of  post- 
liminium.   Dalloz,  Diet.  Prises  Maritiw.es. 

RECEIPT  (Lat.  receptum,  received; 
through  Yr.receit).  A  written  acknowledgment 
of  payment  of  money  or  delivery  of  chattels. 

2.  It  is  executed  by  the  person  to  whom 
the  delivery  or  payment  is  made,  and  may  be 
used  as  evidence  against  him,  on  the  general 
principle  which  allows  the  admission  or  de- 
claration of  a  party  to  be  given  in  evidence 
against  himself.  As  an  instrument  of  evi- 
dence, the  receipt  of  one  person  is,  in  general, 
inoperative  against  another,  although  often 
useful  as  a  voucher  in  the  private  settlement 
of  accounts ;  and  the  statutes  of  some  states 
make  receipts  for  small  payments  made  by 
executors,  etc.  evidence  of  the  payment  on  a 
settlement  of  their  accounts.  And  receipts 
of  public  officers  are  sometimes  admissible 
per  se.  1  111.  45.  It  is  essential  to  a  receipt 
that  it  acknowledge  the  payment  or  de- 
livery referred  to.    Russ.  &R.  Cr.  Cas.  227: 

7  Carr.  &  P.  549.  And  under  the  stamp 
laws  a  delivery  or  payment  must  be  stated. 
1  Esp.  426 ;  1  Campb.  499.  Also  the  receipt 
must,  from  the  nature  of  the  case,  be  in  writ- 
ing, and  must  be  delivered  to  the  debtor ;  for 
a  memorandum  of  payment  made  by  the  cre- 
ditor in  his  own  books  is  no  receipt.  3  Dowl. 
&  R.  332  ;  2  Barnew.  &  Aid.  501,  n. :  11  Lond. 
Jur.  806 ;  1  East,  460 ;  1  Speers,  So.  C.  53. 

3.  Receipts,  effect  of.    The  mere  acknow- 
ledgmentof  paymentmadeisnot  treated  inlaw 
as  binding  or  conclusive  in  any  high  degree. 
So  far  as  a  simple  acknowledgment  of  pay-' 
ment  or  delivery  is  concerned,  it  is  presumpt-; 
ive  evidence  only,  1  Pet.  C.  C.  182;  1  Rich.^' 
So.C.32;  lHarr.Del.5;  3ic?.317;  4id206;7; 
Cow.  N.  Y.  334;  16  Wend.  N.Y.  460;  16  Me. 
475;  5  Ark.  61 ;  11  Mass.  27,  363  ;  3  McLean, 
C.  C.265  ;  6  B.  Monr.  Ky.  199  ;  2  Johns.  Cas. 
N.  Y.  438  ;  1  Perr.  &  D.  437  ;  3  Barnew.  &  C. 
421 ;  8  Gill,  Md.  179  ;  3  Jones,  No.  C.  501, 
and  is,  in  general,  open  to  explanation,  2 
eJohns.  N.  Y.  378;  9  id.  310;  6  Ala.  811; 

8  Ala.  N.  s.  59;  4  Vt.  308;  21  id.  222;  3 
McLean,  C.  C.  387 ;  4  Barb.  N.  Y.  265 ;  5 
Du.  N.  Y.  294 ;  5  J.  J.  Marsh.  Ky.  79  ;  5  Micb. 
171;  being  an  exception  to  the  general  rule 
that  parol  evidence  cannot  be  admitted  Ho 
contradict  or  vary  a  written  instrument.  5 
Johns.  N.  Y.  68  ;  '2  Mete.  Mass.  283.  Thus, 
a  party  may  always  show,  in  explanation  of 
a  receipt  limited  to  such  acknowledgment, 
the  actual  circumstances  under  which  it  was 
made,  8  Johns.  N.  Y.  389 :  e.g.  that  it  wiW 
obtained  by  fraud,  Wright,  Ohio,  764;  4 
Ilarr.  &  M'll.  Md.  219,  or  given  under  a  niiah 
take,  6  Barb.  N.  Y.  58 ;  3  Dan.  Ky.  427,  oi 
that,  in  point  of  fact,  no  money  was  actuallf 


RECEIPT 


417 


RECEIPT 


paid  as  stated  in  it.  2  Strobh.  So.  C.  300 ;  3 
N.  Y.  168 ;  10  Vt.  96.  But  see  1  J.  J.  Marsh. 
Ky.  583. 

4.  Receipts  "in  full."  When,  however, 
we  find  a  receipt  acknowledginfi;  payment 
"in  full"  of  a  specified  debt,  or  "  in  full  of 
all  accounts"  or  of  "  all  demands,"  the  in- 
strument is  of  a  much  hi^^her  and  more  con- 
clusive character.  It  does  not,  indeed,  like  a 
release,  operate  upon  the  demand  itself,  ex- 
tinguishing it  by  any  force  or  virtue  in  the 
receipt,  but  it  is  evidence  of  a  compromise 
and  mutual  settlement  of  the  rights  of  the 
parties.  The  law  infers  from  such  acknow- 
ledgment an  adjustment  of  the  amount  due, 
after  consideration  of  the  claims  of  each 
party,  and  a  payment  of  the  specified  sum  as 
a  final  satisfaction.  10  Vt.  491  :  2  Dev. 
No.  C.  247  ;  Wright,  Ohio,  764  ;  21  N.  H.  85. 
This  compromise  thus  shown  by  the  receipt 
will  often  operate  to  extinguish  a  demand, 
although  the  creditor  may  be  able  to  show 
he  did  not  receive  all  that  he  justly  ought. 
See  Accord  and  Satisfaction.  If  the  rights 
of  a  party  are  doubtful,  are  honestly  contested, 
and  time  is  given  to  allow  him  to  satisfy  himself, 
a  receipt  in  full,  though  given  for  less  than 
his  just  rights,  will  not  be  set  aside.  Thus, 
in  general,  a  receipt  in  full  is  conclusive 
when  given  with  a  knowledge  of  the  circum- 
stances, and  when  the  party  giving  it  cannot 
complain  of  any  misapprehension  as  to  the 
compromise  he  was  making,  or  of  any  fraud. 
5  Vt.  520 ;  1  Esp.  173  :  1  Campb.  392 ;  2 
Strobh.  So.  C.  203.  But  receipts  of  this  cha- 
racter are  not  wholly  exempt  from  explana- 
tion :  fraud  or  misrepresentation  may  be 
proved,  and  so  may  such  mistake  as  enters 
into  and  vitiates  the  compromise  of  the  de- 
mand admitted.  Bravt.  Vt.  75  ;  1  Campb. 
394;  Coxe.  N.  J.  48;  "2  Brev.  No.  C.  223  ;  4 
Harr.  &  M'lL  Md.  219  ;  4  Barb.  N.  Y.  265  ; 

1  Edw.  Ch.  N.  Y.  101,  427  ;  2  Harr.  Del.  392 ; 

2  Carr.  &  P.  44.  The  evidence  in  explanation 
must  be  clear  and  full,  and  addressed  to  the 
point  that  there  was  not  in  fact  an  intended 
and  valid  compromise  of  the  demand.  For 
if  the  compromise  was  not  binding  the  re- 
ceipt in  full  will  not  aid  it.  The  receipt  only 
operates  as  evidence  of  a  compromise  which 
extinguished  the  claim.  26  Me.  88  ;  4  Den. 
N.  Y.  166;  2  M'Cord,  So.  C.  320;  4  Wash. 
C.  C.  562. 

5,  Receipts  in  deeds.  The  eff'ect  to  be 
given  to  a  receipt  for  the  consideration-money, 
eo  frequen  tly  inserted  in  a  deed  of  real  property, 
1  iis  been  the  subject  of  numerous  and  con- 
flicting adjudications.  The  general  principle 
eettled  by  weight  of  authority  is  that  for  the 
purpose  of  sustaining  the  conveyance  as 
against  the  vendor  and  his  privies  the  receipt 
is  conclusive :  they  are  estopped  to  deny  that 
a  consideration  was  paid  sufficient  to  sustain 
the  convevance.  hBinn.  Penn.  502;  26  Mo. 
56  ;  4  mil,  N.  Y.  643.  But  in  a  subsequent 
action  for  the  purchase-money  or  upon  any 
collateral  demand,  e.g.  in  an  action  to  re- 
cover a  debt  which  was  in  fact  paid  by  the 
conveyance,  or  in  an  action  for  damages  for 

\0h.  II.— 27 


breach  of  a  covenant  in  the  ieed,  and  the 
like,  the  grantor  may  show  that  the  consi- 
deration was  not  in  fact  paid, — that  an  addi- 
tional consideration  to  that  mentioned  wan 
agreed  for,  etc.  16  Wend.  N.  Y.  460;  4 
Johns.  N.  Y.  23:  14  id.  210;  2  Hill,  N.  Y. 
554  ;  10  Vt.  96  ;  12  id.  443 ;  3  N.  II.  170 ;  4  id. 
229,  397 ;  1  M'Cord,  So.  C.  514  ;  7  Pick.  Mass. 
533;  1  Rand.  Va.  219;  4  Dev.  No.  C.  355  ;  3 
Hawks,  No.  C.  82 ;  6  Me.  364 ;  5  Barnew.  & 
Aid.  606  ;  5  Ala.  224  ;  5  Lond.  Jur.  693  ;  2 
Harr.  Del.  354;  13  Miss.  238;  5  Conn.  113  ; 
1  Ilarr.  (feG.  Md.  139 ;  2  llumphr.  Tenn.  584; 
IGill,  Md.84;  1  J.  J.  Marsh.  Ky.  387;  3  Md. 
Ch.  Dec.  411;  3Ind.212;  15111.230;  1  Stockt. 
Ch.  N.  J.  492.  But  there  are  many  contrary 
cases.  See  1  Me.  2;  5  id.  232;  7  Johns. 
N.  Y.  341 ;  3  M'Cord,  So.  C.  552  ;  1  Johns.  Ch. 
N.  Y.  390  ;  1  Harr.  &  J.  Md.  252  ;  1  Hawks, 
No.  C.  64;  4  Hen.  &  M.  Va.  113;  2  Ohio, 
182;  1  Barnew.  &  C.  704. 

6.  And  when  the  deed  is  attacked  for 
fraud,  or  is  impeached  by  creditors  as  volun- 
tary and  therefore  void,  or  when  the  object 
is  to  show  the  conveyance  illegal,  the  receipt 
may  be  explained  or  contradicted.  3  Zabr. 
N.  J.  465  ;  3  Md.  Ch.  Dec.  461  ;  21  Penn.  St. 
480  ;  20  Pick.  Mass.  247  ;  12  N.  H.  248.  See 
Assumpsit  Deed. 

With  this  exception  of  receipts  inserted  in 
a  sealed  instrument  having  some  other  pur- 
pose, to  which  the  receipt  is  collateral,  a  re- 
ceipt under  seal  works  an  absolute  estoppel, 
on  the  same  principles  and  to  the  same  gene- 
ral extent  as  other  specialties.  Ware,  Dist. 
Ct.  496;  4  Hawks,  Tenn.  22.  Thus,  where 
an  assignment  of  seamen's  wages  bore  a  sealed 
receipt  for  the  consideration-money,  even 
though  the  attesting  witness  testified  that  no 
money  was  paid  at  the  execution  of  the 
papers,  and  defendant  ofi'ered  no  evidence  of 
any  payment  ever  having  been  made,  and 
refused  to  produce  his  account  with  the  plain- 
tifl"  (the  assignor),  on  the  trial,  it  was  held 
that  the  receipt  was  conclusive.  2  Taunt. 
141.    See  Seal  ;  Specialty. 

K,  Receipt  embodying  contract.  A  receipt 
may  embody  a  contract ;  and  in  this  case  it- 
is  not  open  to  the  explanation  or  contradiction 
permitted  in  the  case  of  a  simple  receipt..  4 
Gray,  Mass.  186.  The  fact  that  it  embodies 
an  agreement  brings  it  within  the  rule  that 
all  matters  resting  in  parol  are  merged  in  the 
writing.  See  Evidence.  Thus,  a  receipt 
which  contains  a  clause  amounting  to  an 
agreement  as  to  the  application  to  be  made 
of  the  money  paid — as  when  it  is  advanced 
on  account  of  future  transactions — is  not 
open  to  parol  evidence  inconsistent  with  it. 
5  Ind.  109;  14  Wend.  N.  Y.  116;  12  Pick. 
Mass.  40,  562 ;  15  id.  437.  A  bill  of  parcels 
with  prices  affixed,  rendered  by  a  seller  of 
goods  to  a  purchaser,  with  a  receipt  of  pay- 
ment executed  at  the  foot,  was  held  in  one 
case  to  amount  to  a  contract  of  sale  of  the 
goods,  and  therefore  not  open  to  parol  ex- 
planation ;  while  in  another  case  a  similar 
bill  was  held  merely  a  receipt,  the  bill  at  the 
head  being  deemed  only  a  memorandum  to 


RECEIPT 


418 


RECEIPTOR 


show  to  what  the  receipt  applied.  3  Cranch, 
311;  1  Bibb,  Ky.  271.  A  bill  of  lading, 
which  usually  contains  words  of  receipt 
stating  the  character,  quantity,  and  condition 
of  the  goods  as  delivered  to  the  carrier,  is  the 
subject  of  a  somewhat  peculiar  rule.  It  is 
held  that  so  far  as  the  receipt  is  concerned 
it  may  be  explained  by  parol.  6  Mass.  422 ; 
7  id.  297  ;  3  N.  Y.  321 ;  10  id.  529  ;  25  Barb. 
N.  Y.  10 ;  5  Du.  N.  Y.  538  ;  1  Abb.  Adm. 
209,  397.   But  see  1  Bail.  So.  C.  174. 

S.  But  as  respects  the  agreement  to  carry 
and  deliver,  the  bill  is  a  contract,  to  be  con- 
strued, like  all  other  contracts,  according  to 
the  legal  import  of  its  terms,  and  cannot  be 
varied  by  parol.  25  Barb.  N.  Y.  16  ;  3  Sandf. 
N.  Y.  7.  In  this  connection  may  also  be 
mentioned  the  receipt  customarily  given  in 
the  New  England  states,  more  particularly 
for  goods  on  which  an  attachment  has  been 
levied.  The  officer  taking  the  goods  often, 
instead  of  retaining  them  in  his  own  manual 
control,  delivers  them  to  some  third  person, 
termed  the  "  receiptor,"  who  gives  his  receipt 
for  them,  undertaking  to  redeliver  upon  de- 
mand. This  receipt  has  in  some  respects  a 
peculiar  force.  The  receiptor  having  ac- 
knowledged that  the  goods  have  been  attached 
cannot  afterwards  object  that  no  attachment 
was  actually  made,  or  that  i-t  was  insufficient 
or  illegal,  ll  Mass.  219,  317  ;  24  Pick.  Mass. 
19G.  Nor  can  he  deny  that  the  property  was 
that  of  the  debtor,  except  in  mitigation  of 
damages  or  after  re-delivery.  12  Pick.  Mass. 
562 ;  13  id.  139  ;  15  id.  40.  And,  in  the  ab- 
sence of  fraud,  the  value  of  the  chattels 
stated  in  the  receipt  is  conclusive  upon  the 
receiptor.    12  Pick.  Mass.  362. 

9.  Where  the  payment  is  made  in  some 
particular  currency  or  medium,  as  doubtful 
bank-bills,  a  promissory  note  of  another  per- 
son, etc.,  clauses  are  often  inserted  in  the 
receipts  specifj'-ing  the  condition  in  which 
such  mode  of  payment  is  accepted.  The  rule 
of  law  in  most  of  our  states  is  that  negotiable 
paper  given  in  payment  is  presumed  to  have 
been  accepted  on  the  condition  that  it  shall 
not  work  a  discharge  of  the  demand  unless 
the  paper  shall  ultimately  produce  satisfac- 
tion; and  if  an  intent  to  accept  it  absolutely 
does  not  affirmatively  appear,  the  creditor  is 
entitled,  in  case  the  paper  turned  out  to  him 
is  dishonored,  to  return  it  and  claim  to  be 
paid  anew.  See  Payment.  If  the  receipt  is 
silent  on  that  subject,  it  is  open  to  explanation, 
and  the  creditor  may  rebut  it  by  proof  that 
the  payment  admitted  was  in  fact  made  by  a 
note,  bill,  check,  bank-notes  afterwards  ascer- 
tained to  be  counterfeit,  or  notes  of  a  bank  in 
fact  insolvent  though  not  known  to  be  so  to 
the  parties,  etc.  1  Wash.  C.  C.  338  ;  1  Watts 
&  S.  Penn.  521  ;  2  Johns.  Cas.  N.  Y.  438  ;  2 
Johns.  N.  Y.  455  ;  13  AVend.  N.  Y.  101 ;  3 
McLean,  C.  C.  265;  5  J.  J.  Marsh.  Ky.  78. 
But  see  3  Caines,  Cas.  N.  Y.  14;  1  Munf. 
Va.  460  ;  1  Mete.  Mass.  156.  But  if  the 
agreement  of  the  parties  is  specified  in  the 
receipt,  the  clause  which  contains  it  will  bind 
the  parties  as  being  in  the  nature  of  a  con- 


tract. 4  Vt.  555;  1  Rich.  So.  C.  Ill; 
Johns.  N.  Y.  277 ;  23  Wend.  N.  Y.  345 
Gill  &  J.  Md.  403 ;  3  B.  Monr.  Ky.  353.  A 
receipt  for  a  note  taken  in  payment  of  an  ac- 
count will  not,  in  general,  constitute  a  defence 
to  an  action  on  the  account,  unless  it  appears 
by  proof  that  the  creditor  agreed  to  receive 
the  note  as  payment  and  take  the  risk  of  its 
being  paid.    10  Md.  27. 

10.  Receipts,  uses  of.  A  receipt  is  often 
useful  as  evidence  of  facts  collateral  to  those 
stated  in  it.  It  proves  the  payment  ;  and 
whatever  inference  may  be  legally  drawn 
from  the  fact  of  the  payment  described  rs\\\ 
be  supported  by  the  receipt.  Thus,  recei  pts  for 
rent  for  a  given  term  have  been  held  primA 
facie  evidence  of  the  payment  of  all  rent 
previously  accrued.  15  Johns.  N.  Y.  479; 
1  Pick.  Mass.  332;  2  E.  D.  Smith,  N.  Y.  58. 
And  they  have  been  admitted  on  trial  of  a 
writ  of  right,  as  showing  acts  of  ownership 
on  the  part  of  him  who  gave  them.  7  C.  B. 
21.  A  receipt  given  by  A  to  B  for  the  price 
of  a  horse,  afterwards  levied  on  as  property 
of  A  but  claimed  by  B,  was  once  admitted 
as  evidence  of  ownership  against  the  attech- 
ing  creditor.  2  Harr.  N.  J.  78.  A  receipt 
"  in  full  of  all  accounts,"  the  amount  being 
less  than  that  called  for  by  the  accounts 
of  the  party  giving  it,  was  held  in  his  favor 
evidence  of  a  mutual  settlement  of  accounts 
on  both  sides,  and  of  payment  of  the  balance 
ascertained  to  be  due  after  setting  ofi'  one 
account  against  the  other.  9  AVend.  N.  Y. 
332.  A  receipt  given  by  an  attorney  for 
securities  he  was  to  collect  and  account  for 
has  been  held  presumptive  evidence  of  the 
genuineness  and  justness  of  the  securities. 
14  Ala.  500.  And  when  a  general  receipt  is 
given  by  an  attorney  for  an  evidence  of  debt 
then  due,  it  will  be  presumed  he  received  it 
in  his  capacity  as  attorney  for  collection ;  and 
it  is  incumbent  on  him  to  show  he  receivea  it 
for  some  other  purpose,  if  he  would  avoid  tin 
action  for  neglect  in  not  collecting.  3  Johns. 
N.  Y.  185. 

11.  Receipts,  larceny  and  forgery  <f.  A 
receipt  may  be  the  subject  of  larceny,  2  Abb. 
Pract.  N.  Y.  211;  or  of  forgery,  Russ.  &  R. 
227  ;  7  Carr.  &  P.  459.  And  it'is  a  sufficient 
"uttering"  of  a  forged  receipt  tu  place  it  in 
the  hands  of  a  person  for  inspection  with  in- 
tent fraudulently  to  induce  him  to  make  an 
advance  on  the  faith  of  the  payment  men- 
tioned in  the  spurious  receipt  has  been  made. 
14  Eng.  L.  &  Eq.  556.    See  Forgery. 

RECEIPTOR.    In  Massachusetts  A 

name  given  to  the  person  who,  on  a  trustee 
process  being  issued  and  goods  attached,  be- 
comes surety  to  the  sheriff  to  have  them  forth- 
coming on  demand,  or  in  time  to  respond  the 
judgment,  when  the  execution  shall  be  is- 
sued. Upon  which  the  goods  are  bailed  to 
him.    Story,  Bailm.  I  124.  Attachment. 

RECEIVER.     In  Practice.    One  who 

receives  money  to  the  use  of  another  to  ren- 
der an  account.  Story,  Eq.  Jur.  I  446.  They 
werj  at  common  law  liable  to  the  action  of 


RECEIVER 


419 


RECEIVER,  ETC. 


account-render  for  failure  in  the  latter  portion 
of  their  duties. 

In  Equity. 

A  person  appointed  by  a  court  possessing 
cLancery  jurisdiction,  to  receive  the  rents  and 
profits  of  land,  or  the  profits  or  produce  of 
other  property  in  dispute. 

lie  is  a  ministerial  officer  of  the  court 
itself,  1  Ball  &  B.  Ch.  Ir.  74 ;  2  55  ;  2  Sim.  & 
S.  Ch.  1)8  ;  1  Cox,  Ch.  422  ;  9  Ves.  Ch.  335  ;  11 
Ga.  413,  with  no  powers  but  those  conferred 
by  his  order  of  appointment  and  the  prac- 
tice of  the  court,  G  Barb.  N.  Y.  589 ;  2  jPaige, 
Ch.  N.  Y.  452,  and  which  do  not  extend  be- 
yond the  jurisdiction  of  the  court  which  ap- 
points him,  17  How.  322 ;  appointed  on  be- 
half of  all  parties  who  may  establish  rights 
in  the  cause,  1  Hog.  Ir.  234;  3  Atk.  Ch. 
5G4;  2  Md.  Ch.  Dec.  278;  4  Madd.  Ch.  80; 
10  Paige,  Ch.  N.  Y.  43  ;  4  Sandf.  Ch.  N.  Y. 
417  ;  and  after  his  appointment  neither  the 
owner  nor  any  other  party  can  exercise  any 
acts  of  ownership  over  the  property.  2  Sim. 
&  S.  Ch.  96. 

A  receiver  is  appointed  only  in  those  cases 
where  in  the  exercise  of  a  sound  discretion 
it  appears  necessary  that  some  indifferent 
person  should  have  charge  of  the  property, 

1  Johns.  Ch.  N.  Y.  57  ;  25  Ala.  n.  s.  81 ;  1 
Hi.pk.  Ch.  N.  Y.  435 ;  3  Abb.  Pract.  N.  Y. 
235  ;  (mly  during  the  pendency  of  a  suit,  1 
Atk.  Ch.  578 ;  2  Du.  N.  Y.  G32 ;  except  in 
extreme  cases,  2  Atk.  Ch.  315 ;  Shelford, 
Lun.  147;  2  Dick.  Ch.  580,  and  ex  parte,  14 
Beav.  Rolls,  423  ;  8  Paige,  Ch.  N.  Y.  373, 
or  before  answer,  13  Ves.  Ch.  266  ;  16  id.  59  ; 

4  Price,  Exch.  346  ;  4  Paige,  Ch.  N.  Y.  574; 

2  Swanst.  Ch.  146,  in  special  cases  only ; 
and,  generally,  not  till  all  the  parties  are  be- 
fore the  court.  2  Russ.  Ch.  145  ;  1  Hog.  Ir. 
93  ;  14  Bost,  Law  Jour.  79. 

3.  One  will  not  be  appointed,  except  under 
special  circumstances  making  a  strong  case, 
where  a  party  is  already  in  possession  of  the 
properti/  under  a  legal  title,  19  Ves.  Ch.  59  ; 

1  Ambl.  Ch.  311;  "2  Younge  &  C.  Ch.  351, 
as  a  trustee,  2  Brown,  Ch.  158 ;  1  Ves.  &  B. 
Ch.  Ir.  183;  1  Mylne  &  C.  Ch.  163;  16  Ga. 
406;  2  Jac.  &  W.  Ch.  294;  an  executor,  13 
Ves.  Ch.  266  ;  tenant  in  common,  2  Dick.  Ch. 
800  ;  4  Brown,  Ch.  414 ;  2  Sim.  &  S.  Ch.  142 ; 
a  mortgagee,  4  Abb.  Pract.  N.  Y.  235 ;  13  V es. 
Ch.  377  ;  16  id.  469 ;  1  Jac.  &  W.  Ch.  176, 
627  ;  2  /(/.  553  ;  1  Hog.  Ir.  179  ;  or  of  mort- 
gagor when  the  debt  is  not  wholly  due,  5 
Paige,  Ch.  N.  Y.  38 ;  a  director  of  a  corpo- 
ration in  a  suit  by  a  stockholder,  2  Halst.  Ch. 
N.  J.  374 ;  tohere  the  property  is  or  should  be 
already  in  the  possessioji  of  some  court,  as 
during  the  contestation  of  a  will  in  the 
proper  court,  2  Atk.  Ch.  378  ;  6  Ves.  Ch.  172  ; 

2  Ves.  &  B.  Ch.  Ir.  85,  95  ;  7  Sim.  Ch.  512 ;  1 
Mylne  &  C.  97 ;  2  id.  454 ;  but  see  3  Md.  Ch. 
Dec.  278 ;  when  admiralty  is  the  proper  forum, 

5  Barb.  N.  Y.  209.  or  where  there  is  already 
tt  receiver,  1  Hog.  Ir.  199 ;  10  Paige,  Ch.  N. 
Y.43;  :ired.Eq.No.C.210;  11/^.607:  nor, 
on  somewhat  similar  grounds,  where  salaries 


of  public  officers  are  in  question,  1  Swanst. Ch. 
1 :  2  Sim.  Ch.  560  ;  4  id.  566  ;  10  Beav.  Rolls^ 
002;  2  Paige,  Ch.  N.  Y.  3;^":!,  or  where  a  j-)ub- 
lic  office  is  in  litigation,  9  J*aige,  Ch.  Js.  Y. 
507  ;  where  the  equitable  title  oj  the  party  ask- 
iiKj  a  receiver  is  incomplete  as  7ii.ude  oat,  is 
■\vliere  he  has  dehiyed  asking  for  one,  1  Hog. 
Ir.  118  ;  1  Donn.  Min.  Cas.  71  ;  or  where  the 
necessity  is  is  not  very  apparent,  as  on  account 
merely  of  the  poverty  of  an  executor,  12  Ves. 
Ch.  4;  1  xMadd.  Ch.  142;  18  Beav,  Rolls, 
161 ;  see  4  Price,  Exch.  346  ;  pending  re- 
moval of  a  trustee,  16  Ga.  406;  where  a 
trustee  mixes  trust-money  with  his  own.  1 
Ilopk.  Ch.  N.  Y.  429. 

4.  Generally,  any  stranger  to  the  suit  may 
be  appointed  receiver. 

The  court  will  not  appoint  attorneys  and 
solicitors,  6  Ves.  Ch.  137  ;  1  Turn.  &  R.  Ch. 
460;  see  1  Hog.  Ir.  322;  masters  in  cliancery, 
6  Ves.  Ch.  4li  ;  an  officer  of  the  corporation, 
1  Paige,  Ch.  N.  Y.  517  ;  see  8  Paige,  Ch.  N. 
Y.  385  :  a  mortgagee,  2  Term,  238  ;  9  Ves. 
Ch.  271;  10  id.  405;  see  1  Vern.  Ch.  316  ;  2 
Atk.  Ch.  120;  2  Schoales  &  L.  Ir.  Ch.  301 ; 
a  trustee,  3  Ves.  Ch.  516;  8  id.  72;  11  id. 
363 ;  see  3  Mer.  Ch.  695  ;  a  party  in  the 
cause.  2  Swanst.  Ch.  118 ;  2  Jac.  &  W.  Ch. 
255.    See  6  Ilarr.  Ch.  620. 

He  is  responsible  for  good  faith  and  reason- 
able diligence.  When  the  property  is  lost  or 
injured  by  any  negligence  or  dishonest  ex- 
ecution of  the  trust,  he  is  liable  in  damages ; 
but  he  is  not  as  of  course  responsible  be- 
cause there  has  been  an  embezzlement  or 
theft.  He  is  bound  to  such  ordinary  dili- 
gence as  belongs  to  a  prudent  and  honest  dis- 
charge of  his  duties,  and  such  as  is  required 
of  all  persons  who  receive  compensation  for 
their  services.  Story,  Bailm.  620,  621. 
See,  generally,  Edwards,  Receivers,  and  Bou- 
vier,  Inst.  Index. 

RECEIVER  OF  STOLEN  GOODS 
In  Criminal  Law.  By  statutory  provision, 
the  receiver  of  stolen  goods,  knowing  them 
to  have  been  stolen,  may  be  puunished  as 
the  principal,  in  perhaps  all  the  United 
States. 

2.  To  make  this  offence  complete,  the 
goods  received  must  have  been  stolen,  they 
must  have  been  received  by  the  defendant, 
and  the  receiver  must  know  that  they  had 
been  stolen. 

The  goods  received  must  have  been  stolen. 
A  boy  stole  a  chattel  from  his  master,  and 
after  it  had  been  taken  from  him  in  his  mas- 
ter's presence  it  was,  with  the  master's  con- 
sent, restored  to  him  again,  in  order  that  he 
might  sell  it  to  the  defendant,  to  whom  he 
had  been  in  the  habit  of  selling  similar 
stolen  articles.  He  accordmgly  sold  it  to  the 
defendant,  who,  being  indicted  for  feloniously 
receiving  it  of  an  evil-disposed  person,  know- 
ing it  to  be  stolen,  was  convicted,  and,  not- 
withstanding objection  made,  sentenced. 
Carr.  &  M.  217.  But  this  case  has  since  been 
held  not  to  be  law,  and  a  defendant  not  to  be 
liable  to  conviction  under  such  circumstances, 
inasmuch  as  at  the  time  of  the  receipt  the 


RECEIVER  OV  STOLEN  GOODS      420     RECENT  POSSESSION  OF,  ETC. 


goods  are  not  stolen  goods.  Dfearsl.  Cr.  Cas. 
4G3. 

3*  The  goods  stolen  must  have  been  re- 
ceived by  the  defendant.  Prima  facie,  if 
stolen  goods  are  found  in  a  man's  house,  he, 
not  being  the  thief,  is  a  receiver.  Per  Cole- 
ridge, J.,  1  Den.  Cr.  Cas.  GOl.  And  though 
there  is  proof  of  a  criminal  intent  to  receive, 
and  a  knowledge  that  the  goods  were  stolen, 
if  the  exclusive  possession  still  remains  in  the 
thief,  a  conviction  for  receiving  cannot  be 
sustained.  2  Den.  Cr.  Cas.  37.  So  a  prin- 
cipal in  the  first  degree,  particepg  criminis, 
pannot  at  the  same  time  be  treated  as  a  re- 
3eiver.  2  Den.  Cr.  Cas.  459.  Where  a  prisoner 
is  charged  in  two  counts  with  stealing  and 
receiving,  the  jury  may  return  a  verdict  of 
guilty  on  the  latter  count,  if  warranted  by 
the  evidence,  although  the  evidence  is  also 
consistent  with  the  prisoner  having  been  a 
principal  in  the  second  degree  in  the  stealing. 
Bell,  Cr.  Cas.  20.  But  a  person  having  a 
Joint  possession  with  the  thief  may  be  con- 
victed as  a  receiver.  Dearsl.  Cr.  Cas.  494. 
The  actual  manual  possession  or  touch  of  the 
goods  by  the  defendant,  however,  is  not  neces- 
sary to  the  completion  of  the  offence  of  re- 
ceiving: it  is  sufficient  if  they  are  in  the 
actual  possession  of  a  person  over  whom  the 
defendant  has  a  control,  so  that  they  would 
be  forthcoming  if  he  ordered  it.  Dearsl.  Cr. 
Cas.  494.  Husband  and  wife  were  indicted 
jointly  for  receiving.  The  jury  found  both 
guilty,  and  found,  also,  that  the  wife  received 
the  goods  without  the  control  or  knowledge 
of  the  husband,  and  apart  from  him,  and 
that  "he  afterwards  adopted  his  wife's  re- 
ceipt." It  was  held  that  this  finding  did  not 
warrant  the  conviction  of  the  husband. 
Dearsl.  &  B.  Cr.  Cas.  329. 

4.  It  is  almost  always  difficult  to  prove 
guilty  knowledge  ;  and  that  must,  in  general, 
be  collected  from  circumstances.  If  such  cir- 
cumstances are  proved  which  to  a  person  of 
common  understanding  and  prudence,  and 
situated  as  the  prisoner  was,  must  have  satis- 
fied him  that  they  were  stolen,  this  is  suf- 
ficient. For  example,  the  receipt  of  watches, 
jewelry,  large  quantities  of  money,  bundles 
of  clothes  of  various  kinds,  or  personal  pro- 
perty of  any  sort,  to  a  considerable  value, 
from  boys  or  persons  destitute  of  property 
and  without  any  lawful  means  of  acquiring 
them,  and  specially  if  bought  at  untimely 
hours,  the  mind  can  arrive  at  no  other  con- 
elusion  than  that  they  were  stolen.  This  is 
furtht^r  confirmed  if  they  have  been  bought 
at  an  undcr-value,  concealed,  the  marks  de- 
faced, and  falsehood  resorted  to  in  accounting 
for  the  possession  of  them.  Alison,  Crim. 
Law,  330 ;  2  Russell,  Crimes,  253  ;  2  Chittv, 
Crii  1.  Law,  951  ;  1  Fost  &  F.  Cr.  Cas.  51  -^2 
Den.  Cr.  Cas.  2G4. 

5.  At  common  law,  receiving  stolen  goods, 
knowing  them  to  have  been  stolen,  is  a  mis- 
d(!mcanor.  2  Russell,  Crimes,  253.  But  in 
Massachusetts  it  has  been  held  to  partake  so 
far  of  the  nature  of  felony  that  if  a  constable 
or  other  peace-officer  has  reasonable  grounds 


to  suspect  one  of  the  crime  of  receiving 
aiding  in  the  concealment  of  stolen  good 
knowing  them  to  be  stolen,  he  may  withou 
warrant  arrest  the  supposed  offender,  and 
detain  him  for  a  reasonable  time,  for  the  pv 
pose  of  securing  him  to  answer  a  complaint 
for  such  offence.    5  Cush.  Mass.  281. 

RECENT  POSSESSION  OP 
STOLEN  PROPERTY.  In  Criminal 
Law.  Possession  of  the  fruits  of  crime 
recently  after  its  commission  is  prima  facie 
evidence  of  guilty  possession ;  and  if  unex- 
plained, either  by  direct  evidence,  or  by  the 
attending  circumstances,  or  by  the  character 
and  habits  of  life  of  the  possessor,  or  other- 
wise, it  is  usually  regarded  by  the  jury  as  con- 
clusive. 1  Taylor,  Ev.  I  122.  See  1  Green- 
leaf,  Ev.  j  34. 

12.  It  is  manifest  that  the  force  of  this  rule 
of  presumption  depends  upon  the  recenci/  of 
the  possession  as  related  to  the  crime,  and 
upon  the  excluHveness  of  such  possession. 

If  the  interval  of  time  between  the  loss  and 
the  finding  be  considerable,  the  presumption, 
as  it  afiects  the  party  in  possession  of  the 
stolen  property,  is  much  weakened,  and  the 
more  especially  so  if  the  goods  are  of  such 
a  nature  as,  in  the  ordinary  course  of  things, 
frequently  to  change  hands.  From  the 
nature  of  the  case,  it  is  not  possible  to  fix  any 
precise  period  within  which  the  effect  of  this 
rule  of  presumption  can  be  limited:  it  must 
depend  not  only  upon  the  mere  lapse  of  time, 
but  upon  the  nature  of  the  property  and  the 
concomitant  circumstances  of  each  particular 
ease.  Thus,  where  two  ends  of  woollen  cloth 
in  an  unfinished  state,  consisting  of  about 
twenty  yards  each,  were  found  in  the  posses- 
sion of  the  prisoner  two  months  after  they 
had  been  stolen,  Mr.  Justice  Patteson  held 
that  the  prisoner  should  explain  how  he  came 
by  the  property.  7  Carr.  &  P.  551.  But  where 
the  only  evidence  against  a  prisoner  was 
that  certain  tools  had  been  traced  to  his  pos- 
session three  months  after  their  loss,  Mr. 
Justice  Parke  directed  an  acquittal.  3  Carr, 
&  P.  GOO.  And  Mr.  Justice  Maule  pursued 
a  similar  course  on  an  indictment  for  horse- 
stealing, where  it  appeared  that  the  horse 
was  not  discovered  in  the  custody  of  the 
accused  until  after  six  months  from  the  date 
of  the  robbery.  3  Carr.  &  K.  318.  So  where 
goods  lost  sixteen  months  before  were  found 
in  the  prisoner's  house,  and  no  other  evidence 
was  adduced  against  him,  he  was  not  called 
upon  for  his  defence.    2  Carr.  &  P.  459. 

3.  It  is  obviously  essential  to  the  just  ap- 
plication of  this  rule  of  presumption  that 
the  house  or  other  place  in  which  the  stolen 
property  is  found  be  in  the  exclusive  posses- 
sion of  the  prisoner.  Where  they  are  found 
in  the  apartments  of  a  lodger,  for  instance, 
the  presumption  may  be  stronger. or  weaker 
according  as  the  evidence  does  or  does  not 
show  an  exclusive  possession.  Indeed,  the 
finding  of  stolen  property  in  the  house  of 
the  accused,  provided  there  were  other  in- 
mates capable  of  committing  the  larceny, 
will  of  itself  be  insufliciont  to  prove  his  p)8- 


RECENT  POSSESSION  OF,  ETC.  421 


RECESSION 


session,  however  recently  the  theft  may  have 
been  ciFected,  though,  if  coupled  with  proof 
of  other  suspicious  circumstances,  it  may 
fully  warrant  the  prisoner's  conviction  even 
though  the  property  is  not  found  in  his  house 
until  after  his  apprehension.  1  Taylor,  Ev. 
g  122 ;  3  D.)wl.  &  R.  572 ;  2  Stark.  139. 

4.  The  force  of  this  presumption  is  greatly 
increased  if  the  fruits  of  a  plurality  or  of  a 
series  of  thefts  be  found  in  the  prisoner's  pos- 
eession,  or  if  the  property  stolen  consist  of  a 
multiplicity  of  miscellaneous  articles,  or  be 
of  an  uncommon  kind,  or,  from  its  value  or 
other  circumstances,  be  inconsistent  with  or 
unsuited  to  the  station  of  the  party. 

The  possession  of  stolen  goods  recently 
after  their  loss  may  be  indicative  not  of  the 
offence  of  larceny  simply,  but  of  any  more 
aggravated  crime  which  has  been  connected 
with  theft.  Upon  an  indictment  for  arson, 
proof  that  property  which  was  in  the  house 
at  the  time  it  was  burnt  was  soon  afterwards 
found  in  the  possession  of  the  prisoner  was 
held  to  raise  a  probable  presumption  that  he 
was  present  and  concerned  in  the  offence. 
2  East,  PI.  Cr.  1035.  A  like  inference  has 
been  raised  in  the  case  of  murder  accom- 
panied by  robbery.  Wills,  Circ.  Ev.  72,  241 ; 
in  the  cases  of  burglary  and  shopbreaking, 
4  Barnew.  &  Aid.  122,  per  Best,  J. ;  9  Carr. 
&  P.  3G4 ;  1  Mass.  106 ;  and  in  the  case  of 
the  possession  of  a  quantity  of  counterfeit 
money.  Russ.  &  R.  Cr.  Cas.  308 ;  Dearsl. 
Cr.  Cas.  552. 

5.  Upon  the  principle  of  this  presumption, 
a  sudden  and  otherwise  inexplicable  tran- 
sition from  a  state  of  indigence,  and  a  con- 
sequent change  of  habits,  is  sometimes  a  cir- 
cumstance extremely  unfavorable  to  the  sup- 
position of  innocence.  II  Mete.  Mass.  534. 
See  1  Gray,  Mass.  101,  102. 

But  this  rule  of  presumption  must  be  ap- 
lied  with  caution  and  discrimination ;  for  the 
are  possession  of  stolen  property,  though 
recent,  uncorroborated  by  other  evidence,  is 
sometimes  fallacious  and  dangerous  as  a  cri- 
terion of  guilt.  Sir  Matthew  Hale  lays  it 
down  that  "if  a  horse  be  stolen  from  A, 
and  the  same  day  B  be  found  upon  him,  it 
is  a  strong  presumption  that  B  stole  him: 
yet,"  adds  that  excellent  lawyer,  "  I  do  re- 
niember  before  a  learned  and  very  wary  judge, 
in  such  an  instance,  B  was  condemned  and 
executed  at  Oxford  assizes,  and  yet,  within 
two  assizes  after,  C,  being  apprehended  for 
another  robbery,  and  convicted,  upon  his 
judgment  and  execution  confessed  he  was 
the  man  that  stole  the  horse,  and,  being  closely 
pursued,  desired  B,  a  stranger,  to  walk  his 
horse  for  him  while  he  turned  aside  upon  a 
necessary  occasion,  and  escaped  ;  and  B  was 
apprehended  with  the  horse,  and  died  in- 
nocently."   2  Hale,  PI.  Cr.  289. 

6.  The  rule  under  discussion  is  occasionally 
attended  with  uncertainty  in  its  a)>plication, 
from  the  difficulty  attendant  upon  the  positive 
identification  of  articles  of  property  alleged 
to  have  been  stolen  ;  and  it  clearly  ought 
never  t)  be  applied  where  there  is  reason- 


able ground  to  conclude  that  the  witnesses 
may  be  mistaken,  or  where,  from  any  other 
cause,  identity  is  not  satisfactorily  established. 
But  the  rule  is  nevertheless  fairly  and  pro 
perly  applied  in  peculiar  circumstances, 
where,  though  positive  identification  is  im- 
possible, the  possession  of  the  property  can- 
not without  violence  to  every  reasonable  hy- 
pothesis but  be  considered  of  a  guilty  cha- 
racter: as  in  the  case  of  persons  employed  in 
carrying  sugar  and  other  articles  fron)  ships 
and  wharves.  Cases  have  frrquently  oc- 
curred of  convictions  of  larceny,  in  such  cir- 
cumstances, upon  evidence  that  the  parties 
were  detected  with  property  of  the  same  kind 
upon  them  recently  after  coming  from  such 
places,  although  the  identity  of  the  property 
as  belonging  to  any  particular  person  could 
not  otherwise  be  proved. 

7.  It  is  seldom,  however,  that  juries  are 
required  to  determine  upon  the  effect  of  evi- 
dence of  the  mere  recent  possession  of  stolen 
property :  from  the  very  nature  of  the  case, 
the  fact  is  generally  accompanied  by  other 
corroborative  or  explanatory  circumstances 
of  presumption.  If  the  party  have  secreted 
the  property ;  if  he  deny  it  is  in  his  posses- 
sion, and  such  denial  is  discovered  to  be  false  ; 
if  he  cannot  show  how  he  became  possessed  of 
it ;  if  he  give  false,  incredible,  or  inconsistent 
accounts  of  the  manner  in  which  he  acquired 
it,  as  that  he  had  found  it,  or  that  it  had  been 
given  or  sold  to  him  by  a  stranger  or  left  at 
his  house  ;  if  he  has  disposed  of  or  attempted 
to  dispose  of  it  at  an  unreasonably  low  price  ; 
if  he  has  absconded  or  endeavored  to  escape 
from  justice ;  if  other  stolen  property,  or 
picklock  keys,  or  other  instruments  of  crime, 
be  found  in  his  possession  ;  if  he  were 
seen  near  the  spot  at  or  about  the  time  when 
the  act  was  committed,  or  if  any  article  be- 
longing to  him  be  found  at  the  place  or  in 
the  locality  where  the  theft  was  committed, 
at  or  about  the  time  of  the  commission  of 
the  offence ;  if  the  impression  of  his  shoes 
or  other  articles  of  apparel  correspond  with 
marks  left  by  the  thieves  ;  if  he  has  attempt- 
ed to  obliterate  from  the  articles  in  question 
marks  of  identity,  or  to  tamper  with  the 
parties  or  the  officers  of  justice;  these  and 
all  like  circumstances  are  justly  considered 
as  throwing  light  upon  and  explaining  the 
fact  of  possession,  and  render  it  morally  cer- 
tain that  such  possession  can  be  referrible 
only  to  a  criminal  origin,  and  cannot  other- 
wise be  rationally  accounted  for.  1  Bennett 
&  H.  Lead.  Crim.  Cas.  371,  372,  where  tbit? 
subject  is  fully  considered. 

RECEPTUS  (Lat.).  In  Civil  Law.  The 

name  sometimes  given  to  an  arbitrator,  be 
cause  he  had  been  received  or  chosen  to  settle 
the  differences  between  the  parties.  Dig.  4. 
8  ;  Code,  2.  56. 

RECESSION.  A  re-grant;  the  act  of 
returning  the  title  of  a  country  to  a  govern- 
ment which  formerly  held  it,  by  one  which 
has  it  at  the  time:  as,  the  recession  of  Louisi- 
ana, which  took  place  by  the  treaty  between 


RECIDIVE 


422 


RECilAL 


France  lind  Spain,  of  October  1,  1800.  See 
2  White,  Coll.  516. 

RECIDIVE.     In  French  Law.  The 

state  of  an  individual  who  commits  a  crime 
or  misdemeanor,  after  having  once  been 
condemned  for  a  crime  or  misdemeanor;  a 
relapse. 

Many  statutes  provide  that  for  a  second  offence 
punisbmeut  shall  be  increased :  in  those  cases  the 
indictment  should  set  forth  the  crime  or  misde- 
meanor as  a  second  offence. 

The  second  offence  must  have  been  committed 
after  the  conviction  for  the  first:  a  defendant  could 
not  be  convicted-  of  a  second  offence,  as  such,  until 
after  he  had  suffered  a  punishment  for  the  first. 
Dalloz,  Diet. 

RECIPROCAL  CONTRACT.  In 
Civil  Law.  One  by  which  the  parties  enter 
into  mutual  engagements. 

They  are  divided  into  perfect  and  imper- 
fect. When  they  are  perfectly  reciprocal, 
the  obligation  of  each  of  the  parties  is  equally 
a  principal  part  of  the  contract,  such  as  sale, 
partnership,  etc.  Contracts  imperfectly  re- 
ciprocal are  those  in  which  the  obligation  of 
one  of  the  parties  only  is  a  principal  obliga- 
tion of  the  contract;  as,  mandate,  deposit, 
loan  for  use,  and  the  like.  In  all  reciprocal 
contracts  the  consent  of  the  parties  must  be 
expressed.  Pothier,  Obi.  n.  9  ;  La.  Civ.  Code, 
art.  1758,  1759. 

RECIPROCITY.  Mutuality;  state, 
quality,  or  character  of  that  which  is  reci- 
procal. 

The  states  of  the  Union  are  bound  to  many 
acts  of  reciprocity.  The  constitution  requires 
that  they  shall  deliver  to  each  other  fugitives 
from  justice;  that  the  records  of  one  state, 
properly  authenticated,  shall  have  full  credit 
in  the  other  states;  that  the  citizens  of  one 
state  shall  be  citizens  of  any  state  into  which 
they  may  remove.  In  some  of  the  states,  as  in 
Pennsylvania,  the  rules  with  regard  to  the  effect 
of  a  discharge  under  the  insolvent  laws  of  an- 
other state  are  reciprocated ;  the  discharges  of 
those  courts  which  respect  the  discharges  of 
the  courts  of  Pennsylvania  are  respected  in 
that  state. 

RECITAL.  The  repetition  of  some  former 
writing,  or  the  statement  of  something  which 
has  been  done.  It  is  useful  to  explain 
matters  of  fact  which  are  necessary  to  make 
the  transaction  intelligible.  2  Blackstoue, 
Comm.  298. 

2.  In  Contracts.  The  party  who  exe- 
cutes a  deed  is  bound  by  the  recitals  of  essen- 
tial facts  contained  therein.  Comyns,  Dig. 
Estoppel  (A  2)  ;  Mete.  Yelv.  227,  n.;  2  Coke, 
33;  8  Mod.  311. 

The  amount  of  consideration  received  is 
held  an  essential  averment,  under  this  rule, 
in  England,  Willes,  9,  25;  2  Taunt.  141; 
5  Barnew.  &  x\ld.  606;  1  Barnew.  &  C.  704; 
2  Barnew.  &  Ad.  544  ;  otherwise  in  the  United 
States.  17  Mass.  249 ;  20  Pick.  Mass.  247  ; 
5  Cush.  Mass.  431;  G  Me.  364;  7  id.  175; 
13  id.  233  ;  15  id.  118  ;  10  Vt.  96  ;  4  N.  II. 
229,  397  ;  8  Conn.  304  ;  14  Johns.  N.  Y.  210 ; 
20  /*/.  388  ;  16  Wend.  N.  Y.  460;  7  Serg.  & 


R.  311  ;  3  Watts,  Penn.  151  ;  1  Harr.  &  G. 
Md.  139;  1  Bland,  Ch.  Md.  236;  4  Hen.  & 
M.  Va.  113  ;  1  Rand.  Va.  219  :  2  Hill,  So.  C 
404;  1  M'Cord,  So.  C.  514;  15  Ala.  498;  10 
Yerg.  Tenn.  160;  7  Monr.  Ky.  291;  1  J.  J. 
Marsh.  Ky.  389.  But  see  1  Hawks,  No.  C. 
64 ;  4  id.  22 ;  1  D^v.  &  B.  No.  C.  452 ;  11  La. 
416  ;  2  Ohio,  350  ;  3  Mas.  C.  C.  347. 

The  recitals  in  a  deed  of  a  conveyance 
bind  parties  and  privies  thereto,  whether  in 
blood,  estate,  or  law.  1  Greenleaf,  Ev.  |  23. 
And  see  3  Ad.  &  E.  265  ;  7  Dowl.  &  R.  141 ; 
4  Pet.  1 ;  6  id.  611.  See  Estoppel.  A  deed 
of  defeasance  which  professes  to  recite  the 
principal  deed  must  do  so  truly.  Cruise,  Dig 
tit.  32,  c.  7,  §  28.  See  3  Penn.  324;  3  Chanc. 
Cas.  101 ;  Coke,  Litt.  352;  Comyns,  J)\g.Faii 
(E  1). 

In  Pleading.    In  Equity. 

3.  The  decree  formerly  contained  a  recital 
of  the  pleadings.  This  usage  is  now  abolished. 
4  Bouvier,  Inst.  n.  4443. 

At  Law. 

Recitals  of  deeds  or  specialties  bind  the 
parties  to  prove  them  as  recited.  Comyns, 
Dig.  Pleader  (2  W  18) ;  4  East,  585  ;  3  Den. 
N.  Y.  356 ;  9  Penn.  St.  407  ;  1  Hempst.  Ark. 
294;  13  Md.  117  ;  see  6  Gratt.  Va.  130;  and 
a  variance  in  an  essential  matter  will  be  fatal, 
18  Conn.  395,  even  though  the  variance  be 
trivial.  1  Hempst.  Ark.  294  ;  1  Chitty,  Plead. 
424.  The  rule  applies  to  all  written  instru- 
ments, 7  Penn.  St.  401 ;  11  Ala.  n.  s.  529  ;  1 
Ind.  209 ;  32  Me.  283 :  6  Cush.  Mass.  508 ; 
4  Zabr.  N.  J.  218  ;  16  111.  495  ;  36  N.  H.  252: 
not,  it  seems,  where  it  is  merely  brought  for- 
ward as  evidence,  and  is  not  made  the  ground 
of  action  in  any  way.  11  111.  40 ;  13  id.  669. 
And  see  31  Me.  290. 

Recitals  of  public  statutes  need  not  be  made 
in  an  indictment  or  information,  Dv.  155  a, 
346  h;  6  Mod.  140;  Croke  Eliz.  187;  Hob. 
310  ;  2  Hale,  PI.  Cr.  172  ;  1  Wms.  Saund.  135, 
n.  3 ;  1  Chitty,  Plead.  218,  nor  in  a  civil 
action,  6  Ala.  n.  s.  289  ;  4  Blackf.  Ind.  234 ; 
16  Me.  69;  18  id.  58;  3  N.  Y.  188;  but,  if 
made,  a  variance  in  a  material  point  will  be 
fatal.  Plowd.  79:  1  Strange,  214;  Dougl. 
94  ;  4  Coke,  48  ;  Croke  Car.  135  ;  W.  Jones, 
194;  2  Brev.  No.  C.  2;  5  Blackf.  Ind.  548; 
Bacon,  Abr.  Indictment  IX.  See  1  Chitty, 
Crim.  Law,  276. 

4.  Recitals  of  private  statutes  must  be 
made,  10  Wend.  N.  Y.  75 ;  1  Mo.  593,  and 
the  statutes  proved  by  an  exemplified  copy 
unless  admitted  by  the  opposite  party,  Ste- 
phen, Plead.  347  ;  10  Mass.  91 ;  but  not  if 
a  clause  be  inserted  that  it  shall  be  taken 
notice  of  as  a  public  act.  10  Bingh.  404 ;  1 
Crompt.  M.  &  R.  Exch.  44,  47;  5  Blackf. 
Ind.  170:  contra,  1  Mood.  &  M.  421.  ricad- 
ing  a  statute  is  merely  stating  the  facts  which 
bring  a  case  within  it,  without  making  any 
mention  or  taking  any  notice  of  the  statute 
itself.  6  Ired.  No.  C.  352;  7  Blackf.  Ind. 
359.  Counting  upon  a  statute  consists  in 
making  express  reference  to  it,  as  by  the 
words  "  against  the  form  of  the  statute  [o' 


KECLAIM 


423 


RECOGNIZANCE 


by  force  of  the  statute"]  in  such  case  made 
an  l  provided."  Reciting  a  statute  is  quoting 
or  statiiiji;  its  contents.  Stephen,  Plead.  347  ; 
Gould,  Plead.  4th  ed.  4G,  n.  3. 

Recital  of  a  record  on  which  the  action  is 
})ased  must  be  correct,  and  a  variance  in  a 
material  point  will  be  fatal,  9  Mo.  742  ;  12 
id.  484 ;  2  Paine,  C.  C.  209  ;  29  Ala.  n.  s.  112; 
30  Miss.  126  ;  17  Ark.  371 ;  19  111.  037 ;  other- 
wise where  it  is  offered  in  evidence  merely. 
12  Ark.  700,  700,  708. 

RECLAIM.  To  demand  again ;  to  insist 
upon  a  right:  as,  when  a  defendant  for  a  con- 
sideration received  from  the  plaintiff  has 
Covenanted  to  do  an  act,  and  fails  to  do  it, 
the  plaintiff  may  bring  covenant  for  the 
breach,  or  assumpsit  to  reclaim  the  considera- 
tion.   1  Caines,  N.  Y.  47. 

RECLAIMING  BILL.  In  Scotch 
Law,  A  petition  for  review  of  an  interlo- 
cutor, pronounced  in  a  sheriff's  or  other 
inferior  court.  It  recites  verbatim  the  inter- 
locutor, and,  after  a  written  argument,  ends 
with  a  prayer  for  the  recall  or  alteration  of 
the  interlocutor,  in  whole  or  in  part.  Bell, 
Diet.  Reclaiming  Petition  ;  Shaw,  Dig.  394. 

RECOGNITION.  An  acknowledgment 
that  some  thing  which  has  been  done  by  one 
man  in  the  name  of  another  was  done  by 
authority  of  the  latter. 

A  recognition  by  the  principal  of  the 
agency  of  another  in  the  particular  instance, 
or  in  similar  instances,  is  evidence  of  the 
authority  of  the  agent,  so  that  the  recognition 
may  be  either  express  or  implied.  As  an 
instance  of  an  implied  recognition  may  be 
mentioned  the  case  of  one  who  subscribes 
policies  in  the  name  of  another,  and,  upon 
a  loss  happening,  the  latter  pays  the  amount. 
1  Campb.  43,  n.  a ;  4  id.  88  ;  1  Esp.  Cas.  61. 

RECOGNITORS.  In  English  Law. 
The  name  by  which  the  jurors  impanelled 
on  an  assize  are  known.  17  Serg.  &  R. 
Penn.  174. 

RECOGNIZANCE.  An  obligation  of 
record,  entered  into  before  a  court  or  officer 
duly  authorized  for  that  purpose,  with  a  con- 
dition to  do  some  act  required  by  law,  which  is 
therein  specified.    2  Blackstone,  Comm.  341. 

The  liability  of  bail  above  in  civil  cases,  and  of 
the  bail  in  all  cases  in  criminal  matters,  must  be 
evi  lencod  by  a  recognizance,  as  the  sheriff  has  no 
power  to  discharge  upon  a  bail-bond  being  given 
to  him  in  these  cases.  See  4  Sharswood,  Blackst. 
Cumm.  297. 

The  bail-bond  may  be  considered  as  furnishing 
the  sheriff  with  an  excuse  for  not  complying  strictly 
with  the  requirements  of  the  writ ;  its  work  is  per- 
formed in  securing  the  appearance  at  court  of  the 
defendant.  The  object  of  a  recognizance  is  to 
secure  rlie  presence  of  the  defendant  to  perform  or 
suffer  the  judgment  of  the  court.  In  some  of  the 
United  States,  however,  this  distinction  is  not  ob- 
served, but  bail  in  the  form  of  a  bail-bond  is  filed 
with  the  officer,  which  is  at  once  bail  below  and 
above,  being  conditioned  that  the  party  shall  ap- 
pear and  answer  to  the  plaintiff  in  the  suit,  and 
abide  the  judgment  of  the  court. 

^,  In  civil  cases  they  are  entered  into  by 
bail,  conditioned  that  they  will  pay  the  debt, 


interest,  and  costs  recovered  by  the  plaintiflF 
under  certain  contingencies,  and  for  other 
purposes  under  statutes. 

In  criminal  cases  they  are  either  that  the 
party  shall  appear  Ijefore  the  proper  ccmrt  to 
answer  to  such  charges  as  are  or  shall  be 
made  against  him,  that  he  shall  keep  the 
peace  or  be  of  good  behavior.  The  presence 
of  witnesses  may  also  be  secured  in  the  same 
manner.  '  0  Hill,  N.  Y.  500. 

Who  may  take.  In  civil  cases  recognizances 
are  generally  taken  by  the  court,  1  N.  Chipm. 
Vt.  224;  15  "Vt.  9;  7  Blackf.  Ind.  221,  or  bv 
some  judge  of  the  court  in  chambers,  thougn 
other  magistrates  may  be  authorized  therefor 
by  statute,  and  are  in  many  of  the  states. 

0  Wheat.  Penn.  359  ;  4  Ilumphr.  Tenn.  213. 
See  2  Dev.  No.  C.  555 ;  3  Gratt.  Va.  82. 

3.  In  criminal  cases  the  judges  of  the  vari- 
ous courts  of  criminal  jurisdiction,  justices 
of  the  peace  may  take  recognizances,  0  Ohio, 
251 ;  15  id.  579;  10  Mass.  423  ;  19  Pick.  Mass. 
127  ;  14  Conn.  200  ;  0  Blackf.  Ind.  284,  315 ; 
18  Miss.  020  ;  26  Ala.  n.  s.  81  ;  3  Mich.  42 ; 
see  2  Curt.  C.  C.  41 ;  the  sheriff,  in  some  cases, 
5  Ark.  265  ;  11  Ala.  076 ;  but  in  case  of  capi- 
tal crimes  the  power  is  restricted  usually  to 
the  court  of  supreme  jurisdiction.    See  Bail, 

In  cases  where  a  magistrate  has  the  power 
to  take  recognizances  it  is  his  duty  to  do  so, 
exercising  a  judicial  discretion,  however.  7 
Blackf.  Ind.  Oil.  In  form  it  is  a  short  me- 
morandum on  the  record,  made  by  the  court, 
judge,  or  magistrate  having  authority,  which 
need  not  be  signed  by  the  party  to  be  found. 

1  Chitty,  Crim.  Law,  90 ;  2  Binn.  Penn.  431; 
5  Serg.  &  R.  Penn.  147  ;  9  Mass.  520  ;  4  Vt. 
488  ;  7  id.  529  :  10  id.  240  ;  1  Dan.  Ky.  523 ; 

2  A.  K.  Marsh.  Ky.  131 ;  0  Ala.  405  ;  2  Wash. 
C.  C.  422  ;  0  Yerg.'Tenn.  354.  See  5  Mo.  557. 
It  is  to  be  returned  to  the  court  having  juris- 
diction of  the  offence  charged,  in  all  cases. 
7  Leigh,  Va.  371 ;  9  Conn.  350 ;  4  Wend.  N. 
Y.  387  ;  14  Vt.  04.    See  27  Me.  179. 

4.  Discharge  and  excuse  under.  A  sur- 
render of  the  defendant  at  any  time  anterior 
to  a  fixed  period  after  the  sheriff's  return  of 
non  est  to  a  ca  sa.,  or  taking  the  defendant  on 
a  ca  sa.,  1  Hawks,  No.  C.  51 ;  0  Johns.  N.  Y. 
97,  discharges  the  bail,  see  Fixing  Bail,  as 
does  the  death  of  the  defendant  before  the 
return  of  7ion  est,  1  Nott  &  M'C.  So.  C.  251 ; 

3  Conn.  84,  or  a  loss  of  custody  and  control 
by  act  of  government  or  of  law  without  fault 
of  the  bail  prior  to  being  fixed,  3  Dev.  No.  C. 
157  ;  18  Johns.  N.  Y.  335  ;  5  Mete.  Mass.  380; 
2  Ga.  33;  14  Gratt.  Va.  098;  see  8  Mass. 
204 ;  0  Cow.  N.  Y.  599  ;  5  Sneed,  Tenn.  023  ; 
2  W^ash.  C.  C.  404,  including  impeachment, 
but  not  voluntary  enlistment,  11  Mass.  146, 
234;  13  id.  93,  or  long  delay  in  proceeding 
against  bail,  2  Mass.  485 ;  8  id.  490 ;  1  Root, 
Conn.  428 ;  see  4  Johns.  N.  Y.  478,  or  a 
discharge  of  the  principal  under  the  bank- 
rupt or  insolvent  laws  of  the  state,  2  Bail. 
So.  C.  492;  1  Harr.  &  J.  Md.  101,  150;  2 
Johns.  Cas.  N.  Y.  403;  21  Wend.  N.  Y. 
070;  1  Mass.  292;  2  id.  m-,  1  Ilarr.  Del. 


RECOGNIZE 


424 


RECORD 


367,  460  :  5  id.  160  ;  1  McLean,  C.  C.  226  ;  1 
Gill,  Md.  259;  and  see,  also,  2  Penn.  St.  492, 
and,  of  course,  performance  of  the  conditions 
of  the  recognizance  by  the  defendant,  dis- 
charge the  bail.  And  see  Bail-Bond  ;  Fixing 
Bail. 

5.  The  formal  mode  of  noting  a  discharge 
is  bv  entering  an  exoneration.  5  Binn. 
Penn.  332;  1  Johns.  Oas.  N.  Y.  329;  2  id. 
101,  220  ;  7  Conn.  439  ;  1  Gill,  Md.  259 ;  2 
Ga.  331. 

The  remedy  upon  a  recognizance  is  by 
means  of  a  scire  facias  against  the  bail,  1 
Ilarr.  &  G.  Md.  154;  1  Ala.  34;  4  id.  331  ; 
16  id.  156;  7  T.  B.  Monr.  Ky.  130;  7  J.  J. 
Marsh.  Ky.  506  ;  6  id.  91  ;  4  Bibb,  Ky.  181 ; 
7  Leigh,  Va.  371 ;  4  Iowa,  289  ;  3  Blackf.  Ind. 
344 ;  6  Halst.  N.  J.  124;  19  Pick.  Mass.  127; 
2  Harr.  N.  J.  446  ;  or  by  suit,  in  some  cases. 
13  Wend.  N.  Y.  33  ;  17  id.  316 ;  1  Den.  N.  Y. 
632 ;  5  Ark.  691 ;  4  Blackf.  Ind.  511:4  Day, 
Conn.  98  ;  14  Conn.  329  ;  12  Mass.  1 ;  2  111. 
487. 

RECOGNIZE.  To  try;  to  examine  in 
order  to  determine  the  truth  of  a  matter.  3 
Sharswood,  Blackst.  Comm.  App.  No.  III.  I 
4;  Bracton,  179, 

To  enter  into  a  recognizance. 

RECOGNIZEE.  He  for  whose  use  a 
recognizance  has  been  taken. 

RECOGNIZOR.  lie  who  enters  into  a 
recognizance. 

RECOLEMENT.    In  French  Law. 

The  reading  and  re-examination  by  a  witness 
of  a  deposition,  and  his  persistence  in  the 
same,  or  his  making  such  alteration  as  his 
better  recollection  may  enable  him  to  do  after 
having  read  his  deposition.  Without  such 
re-examination  the  deposition  is  void.  Po- 
thier,  Proc6d.  Cr.  s.  4,  art.  4. 

RECOMMENDATION.  The  giving  to 
a  person  a  favorable  character  of  another. 

2.  When  the  party  giving  the  character 
has  acted  in  good  faith,  he  is  not  responsible 
for  the  injury  which  a  third  person,  to  whom 
such  recommendation  was  given,  may  have 
sustained  in  consequence  of  it,  although  he 
was  mistaken. 

But  when  the  recommendation  is  know- 
ingly untrue,  and  an  injury  is  sustained,  the 
party  recommending  is  civilly  responsible 
for  damages,  3  Term,  51  ;  7  Cranch,  69;  7 
Wend.  N.  Y.  1 ;  14  id.  126  ;  6  Penn.  St.  310; 
whether  it  was  done  merely  for  the  purpose 
of  benefiting  the  party  recommended  or  the 
party  who  gives  th3  recommendation. 

3.  And  in  case  the  party  recommended 
was  a  debtor  to  the  one  recommending,  and 
•t  was  agreed,  prior  to  the  transaction,  that 
the  former  should,  out  of  the  property  to  be 
obtained  by  the  recommendation,  be  paid, 
or  in  case  of  any  other  species  of  collusion  to 
cheat  the  person  to  whom  the  credit  is  given, 
ihey  may  both  be  criminally  prosecuted  for 
the  conspiracv.  See  Character  ;  Fell,  Guar, 
c.  8  ;  6  Johns";  N.  Y.  181 ;  13  id.  224;  1  Day, 
Conn,  22    5  Mart.  La.  n.  s.  443. 


RECOMPENSATION.     In  Scotc: 
Law.    An  allegation  by  the  plaintiff  o: 
compensation  on  his  part  made  in  answer  to 
a  compensation  or  set-olBF  pleaded  by  the  de- 
fendant in  answer  to  the  plaintiff's  demand. 

RECOMPENSE.  A  reward  for  ser- 
vices ;  remuneration  for  goods  or  other  pro- 
perty. 

In  maritime  law  there  is  a  distinction  betw&ea 

reconqjenae  and  restitution.  When  goods  have  been 
lost  by  jettison,  if  at  any  subsequent  period  of  the 
voyage  the  remainder  of  the  cargo  be  lost,  the 
owner  of  the  goods  lost  by  jettison  cannot  claim 
restitution  from  the  owners  of  the  other  goods ;  but 
in  the  case  of  expenses  incurred  with  a  viuw  to  the 
general  benefit,  it  is  clear  that  they  ought  to  be 
made  good  to  the  party,  whether  he  be  an  agent 
employed  by  the  master  in  a  foreign  port,  or  the 
ship-owner  himself. 

RECOMPENSE  OF  RECOVERY  IN 
VALUE.  A  phrase  applied  to  the  matter 
recovered  in  a  common  recovery,  after  the 
vouchee  has  disappeared  and  judgment  is 
given  for  the  demandant.  2  Bouvier,  Inst, 
n.  2093. 

RECONCILIATION.  The  act  of  bring- 
ing persons  to  agree  together,  who  before 
had  had  some  difference. 

A  renewal  of  cohabitation  between  husband 
and  wife  is  proof  of  reconciliation  ;  and  such 
reconciliation  destroys  the  effect  of  a  deed  of 
separation.    4  Eccl.  238. 

RECONDUCTION.    In   Civil  Law. 

A  renewing  of  a  former  lease ;  relocation. 
Dig.  19.  2.  13. 11 ;  Code  Nap.  art.  1737-1740. 

RECONVENTION.     In  Civil  Law. 

An  action  brought  by  a  party  who  is  defend- 
ant against  the  plaintiff,  before  the  same 
judge.  4  Mart.  La.  n.  s.  439.  To  entitle  the 
defendant  to  institute  a  demand  in  reconven- 
tion, it  is  requisite  that  such  demand,  though 
different  from  the  main  action,  be  neverthe- 
less necessarily  connected  with  it  and  inci- 
dental to  the  same.  La.  Code  of  Pr.  art.  375 ; 
11  La.  309 ;  7  Mart.  La.  n.  s.  282 ;  8  id.  516. 
The  reconvention  of  the  civil  law  was  a  spe- 
cies of  cross-bill.  Story,  Eq.  Plead,  g  402. 
See  CoNVENTio. 

RECORD.  A  written  memorial  made  by 
a  public  officer  authorized  by  law  to  perform 
that  function,  and  intended  to  serve  as  evi- 
dence of  something  written,  said,  or  done.  6 
Call,  Va.  78 ;  1  Dan.  Ky.  595. 

2.  Records  may  be  either  of  legislative  or 
judicial  acts.  Memorials  of  other  acts  are 
sometimes  made  by  statutory  provisions. 

Legislative  acts.  The  acts  of  congress  and 
of  the  several  legislatures  are  the  highest 
kind  of  records.  The  printed  journals  of 
congress  have  been  so  considered.  1  Wha^  ton, 
Dig.  Evidence,  pi.  112.  And  see  Dougl.  593: 
Cowp.  17. 

3.  The  proceedings  of  the  courts  of  com- 
mon law  are  records.  But  every  minute 
made  by  a  clerk  of  a  court  for  his  own  future 
guidance  in  making  up  his  record  is  not  a 
record.  4  Wash.  C.  C.  698.  See  10  Penn.  St. 
157  ;  2  Pick.  Mass.  448 ;  4  N.  H.  450 ;  6  id. 


RECORD  OF  NISI  PRIUS 


425 


RECOUPEMENT 


5G7  :  5  Ohio  St.  545  ;  8  Wend.  N.  Y.  207  ;  2 
Vt.  573  ;  6  id.  580  ;  5  Day,  Conn.  363  ;  3  T. 
B.  Monr.  Ky.  63. 

Proccedin;j;s  in  courts  of  chancery  are  said 
not  to  be,  strictly  speakin*^,  records  ;  but  they 
are  so  considered.  Gresley,  Ev.  101.  And 
see  8  Mart.  La.  n.  s.  303  ;  1  Rawle,  Penn. 
381  :  8  Yerg.  Tenn.  142;  1  Pet.  C.  C.  352. 

The  legislatures  of  the  several  states  have 
made  the  enrolment  of  certain  deeds  and 
other  documents  necessary  in  order  to  perpe- 
tuate the  memory  of  the  fticts  they  contain, 
and  declared  that  the  copies  thus  made  should 
have  the  effect  of  records. 

4.  The  ftict  of  an  instrument  being  re- 
corded is  held  to  operate  as  a  constructive 
notice  upon  all  subsequent  purchasers  of  any 
estate,  legal  or  equitable,  in  the  same  pro- 
perty.   1  Johns.  Ch.  N.  Y.  394. 

But  all  conveyances  and  deeds  which  may 
be  de  facto  recorded  are  not  to  be  considered 
as  giving  notice:  in  order  to  have  this  effect, 
the  instruments  must  be  such  as  are  author- 
ized to  be  recorded,  and  the  registry  must 
have  been  made  in  compliance  with  the  law, 
otherwise  the  registry  is  to  be  treated  as  a 
mere  nullity,  and  it  will  not  affect  a  subse- 
quent purchaser  or  incumbrancer  unless  he 
has  such  actual  notice  as  would  amount  to  a 
fraud.  1  Schoales  &  L.  157;  2  id.  68;  4 
Wheat.  466  ;  1  Binn.  Penn.  40  ;  1  Johns.  Ch. 
N.  Y.  300 ;  1  Story,  Eq.  Jur.  H  403,  404 ;  5  Me. 
272. 

5.  By  the  constitution  of  the  United  States, 
art.  4,  s.  1,  it  is  declared  that  "full  faith  and 
credit  shall  be  given  in  each  state  to  the 
public  acts,  records,  and  judicial  proceedings 
of  every  other  state ;  and  the  congress  may, 
by  general  laws,  prescribe  the  manner  in 
which  such  acts,  records,  and  proceedings 
shall  be  proved,  and  the  effect  thereof."  In 
pursuance  of  this  power,  congress  have  passed 
several  acts  directing  the  manner  of  authen- 
ticating public  records.  See  Act  of  Congr. 
May  26,  1790,  §1,  1  U.  S.  Stat,  at  Large,  122; 
Mar.  27,  1804,  2  U.  S.  Stat,  at  Large,  298  ; 
Mar.  2,  1849,  9  U.  S.  Stat,  at  Large,  350.  See 
Foreign  Laws;  Foreign  Judgments;  Con- 
flict OF  Laws  ;  Authentication. 

RECORD  OF  NISI  PRIUS.  In  Eng- 
lish Law.  A  transcript  from  the  issue- roll: 
it  contains  a  copy  of  the  pleadings  and  issue. 
Stephen.  Plead.  105. 

RECORDARI  FACIAS  LOQUELAM 
(Lat.).  In  English  Practice.  A  writ 
commanding  the  sheriff  that  he  cause  the 
plaint  to  be  recorded  which  is  in  his  county, 
without  writ,  between  the  parties  there 
named,  of  the  cattle,  goods,  and  chattels  of 
the  complainant  taken  and  unjustly  dis- 
trained as  it  is  said,  and  that  he  have  the 
said  record  before  the  court  on  a  day  therein 
named,  and  that  he  prefix  the  same  day  to 
the  parties,  that  then  they  may  be  there  ready 
to  proceed  in  the  same  plaint.  2  Sellon,  Pract. 
166. 

RECORD ATUR  (Lat.).  An  order  or 
allowance  that  the  verdict  returned  on  the 


nisi  prius  roll  be  recorded.  Bacon,  Abi. 
Arlrilratiou,  etc.,  D. 

RECORDER.  A  judicial  officer  of  some 
cities,  possessing  generally  the  powers  and 
authority  of  a  judge.  3  Yeates,  Penn.  300; 
4  Dall.  Penn.  299.    But  see  1  Const.  So.  C.  45. 

Anciently,  recorder  signified  to  recite  or 
testify  on  recollection,  as  occasion  might  re- 
quire, what  had  previously  passed  in  court; 
and  this  was  the  duty  of  the  judges,  thence 
called  recordcurs.    Stephen,  Plead,  note  11. 

An  officer  appointed  to  make  record  or  en- 
rolment of  deeds  and  other  legal  instruments 
authorized  by  law  to  be  recorded. 

RECOUPEMENT  (Fr.  recouper,  to  cut 
again).  In  Practice.  That  right  of  the 
defendant,  in  the  same  action,  to  claim 
damages  from  the  plaintiff,  either  because  he 
has  not  complied  with  some  cross-obligation 
of  the  contract  upon  which  he  sues,  or  be- 
cause he  has  violated  some  duty  which  the 
law  imposed  upon  him  in  the  making  or  per- 
formance of  that  contract.  4  Wend.  N.  Y. 
483  :  8  id.  109  ;  10  Barb.  N.  Y.  55  ;  13  N. 
Y.  151  ;  3  Ind.  72,  265  ;  4  id.  533  ;  7  id.  200  ; 

9  id.  470 ;  7  Ala.  n.  s.  753  ;  13  id.  587  ;  16 
id.  221  ;  27  id.  574 ;  12  Ark.  699;  16  id.  97 ; 
17  id.  270;  6  B.  Monr.  Ky.  528;  13  id.  239; 
15  id.  454;  3  Mich.  281 ;  4  id.  619  ;  39  Me. 
382;  16  111.495;  11  Mo.  415  ;  18  icZ.  368 ; 
25  id.  430. 

This  is  not  a  new  title  in  the  law,  although  it 
seeins  recently  to  have  assumed  a  new  signification. 
Originally  it  implied  a  mere  deduction  from  the 
claim  of  the  plaintiff",  on  account  of  payment  in 
whole  or  in  part,  or  a  former  recovery,  or  some 
analogous  fact.  3  Colie,  65  ;  4  id.  94 ;  5  id.  2,  31 ; 
11  id.  51,  52.  See  note  to  Icily  vs.  Grew,  6  Nev.  & 
M.  467;  Viner,  Abr.  Discount,  pi.  3,  4,  9,  10:  28 
Vt.  413.  This  meaning  has  been  retained  in  many 
modern  cases,  but  under  the  name  of  deduction  or 
reduction  of  damages.  11  East,  232;  1  Maule  & 
S.  318,  323;  5  id.  6,  10;  4  Burr.  2133;  2  Mann. 
&  G.  241  ;  7  Mees.  &  W,  Exch.  314;  12  id.  772  ;  2 
Taunt.  170 ;  2  Term,  97  ;  1  Stark.  343 ;  20  Conn. 
204  ;  2  Den.  N.  Y.  609  ;  21  AVend.  N.  Y.  610  ;  20 
id.  267;  24  id.  304;  3  Djin.  Ky.  489 ;  6  Mass.  20  ; 
14  Pick.  Mass.  356;  18  id.  283;  3  Mete.  Mass.  9; 
13  id.  269.  The  word  recoupement  has  also  been 
applied  to  cases  very  similar  to  the  above.  4  Den. 
N.  Y.'227;  20  Wend.  N.  Y.  267. 

Recoupement  as  now  understood  seems  to  cor- 
respond with  the  Reconvention  of  the  civil  law.  some- 
times termed  demnndes  incidentes  by  the  French 
writers,  in  which  the  reus,  or  defendant,  was  per- 
mitted to  exhibit  his  claim  against  the  plain- 
tiff" for  allowance,  provided  it  arose  out  of,  or  waa 
incidental  to,  the  plaintiff"s  cause  of  action.  (Euvreg 
de  Pothier,  9  vol.  p.  39;  1  AVhite,  New  Reeopilacion, 
285 ;  Voet,  tit.  dc  Judiciis,  n.  78  ;  La.  Code  Pr.  art. 
375;  4  Mart.  La.  N.  s.  439:  6  id.  671;  7  id.  517: 

10  La.  185;  14  id.  385;  12  La.  Ann.  114,  170;  6 
Tex.  406  ;  2  Ilennen,  Dig.  Recoupement,  pi.  8,  h. 

2.  In  England,  as  well  as  in  some  of  the 
United  States,  the  principles  of  recoupement 
as  defined  by  us  have  been  recognized  only 
in  a  restricted  form.  Under  the  name  of  re- 
duction of  damages,  the  defendant  is  allowed 
to  show  all  such  violations  of  his  contract  bv 
the  plaintiff  as  go  to  render  the  consideration 
less  valuable,  but  he  is  compelled  to  resort  tc 
an  independent  action  for  any  immediate  oi 


KECOUPEMENT 


426 


KECOUPEMENT 


consequential  damages  affecting  him  in  other 
respects.  8  Mees.  &  W.  Exch.  858  ;  1  Stark. 
107,  274;  3  Campb.  450;  1  Carr.  &  P.  384 
2  id.  113;  6  Barb.  N.  Y.  387;  6  B.  Monr. 
Ky.  528  ;  1  Burn.  Ky.  33  ;  12  Conn.  129  ;  11 
Johns.  N.  Y.  547  ;  14  ?U  377  ;  12  Pick.  Mas.s. 
330;  22  ic^.  512;  8  Ilumphr.  Tenn.  678 ;  9 
How.  231.  But  these  restrictions  are  all 
graduall}^  disappearing,  and  the  law  is  as- 
suming the  form  expressed  in  the  cases  cited 
under  the  definition  of  modern  recoupement, 
the  main  reason  upon  which  the  doctrine  now 
rests  being  the  avoidance  of  circuity  of  action. 

3.  There  are  some  limitations  and  qualifi- 
cations to  tlie  law  of  recoupement,  as  thus 
established.  Thus,  it  has  been  held  that  the 
defendant  is  not  entitled  to  any  judgment  for 
the  excess  his  damages  in  recoupement  may 
have  over  the  plaintifi''s  claim,  nor  shall  he 
be  allowed  to  bring  an  independent  action 
for  that  excess.  6  N.  H.  481 ;  14  111.  424 ;  3 
Mich.  281 ;  12  Ala.  n.  s.  643  ;  3  Hill,  N.  Y. 
171 ;  17  Ark.  270.  If  recoupement  is  put 
upon  the  ground  of  a  cross-action,  and  not  a 
mere  defence  for  the  reduction  of  damages, 
there  is  no  reason  why  he  should  not  have 
judgment  to  the  extent  of  his  injury.  Such 
seems  to  be  the  practice  in  Louisiana,  under 
the  name  of  reconvention,  12  La.  Ann.  170 ; 
and  such  will  probably  be  the  practice  under 
those  systems  of  pleading  which  authorize 
the  court,  in  any  action  which  requires  it,  to 
grant  the  defendant  affirmative  relief.  2  E. 
D.  Smith,  N.  Y.  317.  See,  also.  Mo.  Rev.  Stat. 
(1855)  1278 ;  3  Watts  &  S.  Penn.  472;  17  Serg. 
&  R.  Penn.  385  ;  12  How.  Pract.  N.  Y.  310. 

4.  The  damages  recouped  must  be  for  a 
breach  of  the  same  contract  upon  which  suit 
is  brought.  3  Hill,  N.  Y.  171 ;  2  Wend.  N. 
Y.  240;  4  Sandf.  N.  Y.  147;  10  Ind.  329. 
They  may  be  for  a  tort ;  but  it  seems  that  the 
tort  must  be  a  violation  of  the  contract,  and 
they  are  to  be  measured  by  the  extent  of  this 
violation,  and  no  allowance  taken  of  malice. 
10  Barb.  N.  Y.  55  ;  17  111.  38  ;  4  Serg.  &  R. 
Penn.  249  ;  5  id.  122;  1  Yeates,  Penn.  571  ; 
2  Dall.  Penn.  237  ;  3  Binn.  Penn.  169.  The 
language  of  some  cases  would  seem  to  imply 
that  recoupement  may  be  had  for  damages 
connected  with  the  subject-matter  or  transac- 
tion upon  which  the  suit  is  brought,  but  which 
do  not  constitute  a  violation  of  any  obligation 
imposed  by  the  contract,  or  of  any  duty  im- 
posed by  the  law  in  the  making  or  perform- 
ance of  the  contract.  14  111.  424 ;  17  id.  38. 
But  these  cases  will  be  found  to  be  decided 
with  reference  to  statutes  of  counter-claim. 
And  even  in  the  construction  of  such  statutes 
it  has  been  doubted  whether  it  is  not  better 
to  confine  the  damages  to  violations  of  the 
contract.    8  Ind.  399  ;  2  Sandf.  N.  Y.  120. 

5.  It  is  well  established,  in  the  absence  of 
statutory  provisions,  that  it  is  optional  with 
the  defendant  whether  he  shall  plead  his  cross- 
claim  by  way  of  recoupement,  or  resort  to  an 
independent  action.  14  Johns.  N.  Y.  379; 
13  Wend.  N.  Y.  277  ;  3  Sandf.  N.  Y.  743  ; 
12  Ala.  N.  s.  643  ;  3  Ind.  59  ;  4  id.  585  ;  21 
Mo.  415.   Nor  does  the  fact  of  a  suit  pending 


for  the  same  damages  estop  him  from  plead 
ing  them  in  recoupement,  although  he  may  be 
compelled  to  choose  upon  which  action  he 
shall  proceed.  3  E.  D.  Smith,  N.  Y.  135  ;  1 
Watts  &  S.  Penn.  58;  5  Watts,  Penn.  116. 
Payment  after  action  brought,  although  never 
pleadable  in  answer  to  the  action,  was  usually 
admitted  in  reduction  of  damages.  4  N.  H. 
557  ;  6  Ind.  26  ;  2  Bingh.  n.  c.  88 ;  7  Carr. 
&  P.  1 ;  1  Mees.  &  W.  Exch.  463.  But  the 
defendant  can  never  recoup  for  damages  ac- 
cruing since  action  brought.  20  Eng.  L.  & 
Eq.  277  ;  4  Barb.  N.  Y.  256;  2  Binn.  Penn. 
287. 

6.  It  has  been  maintained  by  some  courts 
that  the  law  of  recoupement  is  not  applicable 
to  real  estate.  Accordingly,  they  have  denied 
the  defendant  the  right,  when  sued  for  the 
purchase-money,  to  recoup  for  a  partial  fail- 
ure of  title,     il  Johns.  N.  Y.  50 ;  2  Wheat. 
13  ;  12  Ark.  709  ;  17  id.  254.    But  the  most 
of  these  cases  will  be  found  denying  him  that 
right  only  before  eviction.     A  confusion  has 
been  introduced  by  regarding  failure  of  title 
and  failure  of  consideration  as  convertible 
terms.    The  consideration  of  a  deed  without 
covenants  is  the  mere  delivery  of  the  instru- 
ment.    Rawle,  Cov.  489,  1st  ed.     A  fail- 
ure of  title  in  such  case  is  not  a  failure  of 
consideration,  and  it  therefore  afibrds  no  , 
ground  for  recoupement.    The  consideration 
of  a  deed  with  covenants  does  not  fail  till  the  • 
covenantee  has  suffered  damages  on  the  cove-  ; 
nants,  which  in  most  cases  does  not  happen  i 
till  eviction,  either  actual  or  constructive. 
After  this  has  happened,  his  right  to  recoup  ^ 
is  now  pretty  generally  admitted.    This  ia  , 
nothing  more  than  allowing  him  to  recoup  aa 
soon  as  he  can  sue  upon  the  covenants.  21 
Wend.  N.  Y.  131  :  25  id.  107  ;  19  Johns.  N.  . 
Y.  77  ;  13  N.  Y.  151 ;  8  Barb.  N.  Y.  11 ;  3  ■ 
Pick.  Mass.  459 ;  14  id.  293  ;  6  Graft.  Va. 
305  ;  Dart,  Vend.  381 ;  Rawle,  Cov.  516.  ' 

It  has  been  more  generally  admitted  that  i 
where  there  is  a  failure  of  the  consideration  i 
as  to  the  quantity  or  quality  of  the  land,  the  > 
purchaser  may  recoup  upon  his  covenants.  ' 
12  Ark.  699 ;  17  id.  254  ;  2  Kent,  Coram.  ' 
Lect.  39,  470;  18  Mo.  368  ;  20  id.  443.  j 

7.  Under  the  common-law  system  of  plead- 
ing, the  evidence  of  a  recoupement,  if  going 
to  a  total  failure  of  consideration,  might  be 
given  under  the  general  issue  without  notice, 
but  if  it  went  only  to  a  partial  failure,  notice 
was  required  to  prevent  surprise.  0  Barb. 
N.  Y.  386  ;  5  Hill,  N.  Y.  71,  76  ;  7  id.  53  ;  2 
N.  Y.  157  ;  6  N.  II.  497  ;  3  Ind.  265  ;  6  id. 
489.  This  is  the  only  way  it  could  be  ad- 
mitted, for  it  could  not  be  pleaded,  a  partial 
defence  constituting  neithei*  a  plea  in  bar  nor 
in  abatement.  Under  a  notice  it  was  admitted 
to  aid  in  sustaining  the  general  denial. 

But  under  the  new  systems  of  practice 
fashioned  more  or  less  after  the  New  York 
Code,  there  being  no  general  issue  to  Vv'hich 
the  notice  was  subsidiary,  the  defendant  is 
required  to  plead  his  defence  whether  it  is  in 
answer  of  the  whole  demand  or  only  in  re* 
duction  of  damages.     6  How.  Pract.  N.  Y  • 


RECOVERER 


427 


RECTOR! 


i33:  8  id.  441;  11  N.  Y.  352;  IG  id.  297; 
18  Mo.  308. 

S.  The  effect  to  be  given  to  the  hiw  of  re- 
ooupeinent  will  depend,  in  many  of  the  statOiS, 
upon  the  statutes  of  counter-chiim  and  offset 
in  force.  In  Missouri,  for  instance,  the  lan- 
guage seems  rather  broad.  It  may  be  for 
any  "cause  of  action  arising  out  of  the  con- 
tract or  transaction  set  Ibrth  in  the  petition 
as  the  foundation  of  the  plaintiff's  claim  or 
connected  with  the  subject  of  the  action." 
Mo.  Rev.  Stat.  1855,  1233.  This  probably 
contemplates  a  recoupement  in  actions  cx  de- 
licto as  well  as  ex  coniraciu.  In  the  former 
class,  difficulty  will  sometimes  be  encountered 
in  determining  when  the  claim  is  so  connecied 
with  the  subject  of  the  action  as  to  constitute 
a  legal  ground  of  recoupement.  In  the  latter 
class,  perhaps  it  would  be  safer  not  to  allow 
any  thing  by  way  of  recoupement  unless  it 
worked  a  violation  of  some  obligation  im- 
posed by  the  contract,  or  some  duty  imposed 
by  the  law  in  the  making  or  performance  of 
it.    2  Sandf.  N.  Y.  120 ;  8  Ind.  399. 

See,  generally,  2  Smith,  Lead.  Cases,  Cutter 
vs.  Powell ;  Barbour,  Offset;  Sedgwick,  Meas. 
Dam.  427  ;  Rawle,  Cov.  516. 

RECOVERER.  The  demandant  in  a  com- 
mon recovery,  alter  judgment  has  been  given 
in  his  favor,  assumes  the  name  of  recoverer. 

RECOVERY.  The  restoration  of  a  for- 
mer ri^ht,  by  the  solemn  judgment  of  a  court 
of  justice.    3  Murph.  No.  C.  169. 

A  comvion  recoveri/  is  a  judgment  obtained 
in  a  fictitious  suit,  brought  against  the  tenant 
of  the  freehold,  in  consequence  of  a  default 
made  by  the  person  who  is  last  vouched  to 
warranty  in  such  suit.    Bacon,  Tracts,  148. 

A  trtie  recovery,  usually  known  by  the  name 
of  recovery  simply,  is  the  procuring  a  for- 
mer right  by  the  judgment  of  a  court  of  com- 
petent jurisdiction:  as,  for  example,  when 
judgment  is  given  in  favor  of  the  plaintiff 
when  he  seeks  to  recover  a  thing  or  a  right. 

2.  Common  recoveries  are  considered  as  mere 
forms  of  conveyance  or  common  assurances:  al- 
though a  common  recovery  is  a  fictitious  suit,  yet 
the  same  mode  of  proceeding  must  be  pursued,  and 
all  the  forms  strictly  adhered  to,  which  are  neces- 
sary to  be  observed  in  an  adversary  suit.  The  first 
thing,  therefore,  necessary  to  be  done  in  sufi'ering  a 
common  recovery  is  tliat  the  person  who  is  to  be 
the  demandant,  and  to  whom  the  lands  are  to  be 
adjudged,  would  sue  out  a  writ  or  prsecipe  against 
the  tenant  of  the  freehold;  whence  such  tenant  is 
usually  called  the  tenant  to  the  prwcipe.  In  obe- 
dience to  this  writ  the  tenant  appears  in  court, 
either  in  person  or  by  his  attorney;  but,  instead  of 
defending  the  title  to  the  land  himself,  he  calls  on 
some  other  person,  who  upon  the  original  purchase 
is  supposed  to  have  warranted  the  title,  and  prays 
that  the  person  may  be  called  in  to  defend  the  title 
which  he  warranted,  or  otherwise  to  give  the  tenant 
lands  of  equal  value  to  those  he  shall  lose  by  the 
defect  of  his  warranty.  This  is  called  the  voucher 
vocalin,  or  calling  to  warranty.  The  person  thus 
called  to  warrant,  who  is  usually  called  the  vouchee, 
appears  in  court,  is  impleaded,  and  enters  into  the 
warranty,  by  which  means  he  takes  upon  himself 
the  defence  of  the  land.  The  defendant  then  desires 
)eave  of  the  court  to  imparl,  or  confer  with  the 
vouchee  in  private,  which  is  granted  of  course. 


Soon  after  the  demandant  returns  into  court,  but 
the  vouchee  di.sapj)ears  or  makes  default,  in  con- 
sequi  nco  of  which  it  is  presumed  by  tlie  court  that 
he  has  no  title  to  the  land.s  demanded  in  the  writ, 
and  therefore  cannot  defend  them  ;  wher(  uixm  judg- 
ment is  given  for  the  demandiint,  now  called  the 
recoverer,  to  recover  the  lands  in  question  against 
the  tenant,  and  for  the  tenant  to  recover  against 
the  vouchee  lands  of  equal  value  in  recompense 
for  those  so  warranted  by  him,  and  now  b-st  by  liis 
default.  This  is  called  the  recompense  oi'  recovery 
in  value  ;  but  as  it  is  custoiuary  for  the  crier  of  the 
court  to  act,  who  is  hence  called  the  common  vouchee, 
the  tenant  can  only  have  a  nominal  and  not  a  real 
recompense  for  the  land  thus  recovered  against  him 
by  the  demandant.  A  writ  of  habere  fadun  is  then 
sued  out,  directed  to  the  sheriff  of  the  county  in 
which  the  lands  thus  recovered  are  situated  ;  and 
on  the  execution  and  return  of  the  writ  the  re- 
covery is  comi)leted.  The  recovery  here  described 
is  with  single  voucher;  but  a  recovery  may  be,  and 
is  freciuently,  suffered  with  double,  treble,  or  further 
voucher,  as  the  exigency  of  the  case  may  require, 
in  which  case  there  are  several  judgments  against 
the  several  vouchees. 

3.  Common  recoveries  were  invented  by  the  ec- 
clesiastics in  order  to  evade  the  statute  of  mort- 
main, by  which  they  were  prohibited  from  pur- 
chasing, or  receiving  under  the  pretence  of  a  free 
gift,  any  land  or  tenements  whatever.  They  have 
been  used  in  some  states  for  the  purpose  of  break- 
ing the  entail  of  estates.  See,  generally,  Cruise, 
Digest,  tit.  36  ;  2  Wms.  Saund.  42,  n.  7 ;  4  Kent, 
Comm.  487:  Pigot,  Comm.  Rec.  passim. 

All  the  learning  in  relation  to  common  recoveries 
is  nearly  obsolete,  as  they  are  out  of  use.  Rey,  a 
French  writer,  in  his  work  Des  Institutions  Judi- 
ciaires  de  I'Angleterres,  tom.  ii.  p.  221,  points  out 
what  appears  to  him  the  absurdity  of  a  common 
recovery.  As  to  common  recoveries,  see  3  Serg.  & 
R.  Penn.  435  ;  9  id.  330  :  1  Yeates,  Penn.  244 ;  4 
id.  413;  1  Whart.  Penn.  139,  151 ;  2  Rawle,  Penn 
168;  6  Penn.  St.  45;  2  Halst.  N.  J.  47  ;  5  Mass. 
438;  6  id.  328;  8  id.  34;  3  Harr.  &  J.  Md.  292. 

RECREANT.    A  coward;  a  poltroon. 
3  Blackstone,  Comm.  340. 
RECRIMINATION.  In  Criminal  Law. 

An  accusation  made  by  a  person  accused 
against  his  accuser,  either  of  having  commitr 
ted  the  same  offence  or  another. 

In  general,  recrimination  does  not  excuse 
the  person  accused  nor  diminish  his  punish- 
ment, because  the  guilt  of  another  can  never 
excuse  him.  But  in  applications  for  divorce 
on  the  ground  of  adultery,  if  the  party  de- 
fendant can  prove  that  the  plaintiff  or  com- 
plainant has  been  guilty  of  the  same  offence, 
the  divorce  will  not  be  granted.  1  Hagg. 
Cons.  144 ;  4  Eccl.  360.  The  laws  of  Penn- 
sylvania contain  a  provision  to  the  same 
effect.  See  1  Hagg.  Eccl.  790  ;  3  id.  77  ;  3 
Hagg.  Cons.  147  ;  2  id.  297  ;  Shelford,  Marr. 
&  Div.  440;  Dig.  24.  3.  39;  48.  3.  13.  5  ;  1 
Add.  Eccl.  411;  Compensation;  Condona- 
tion ;  Divorce. 

RECRUIT.    A  newly-made  soldier. 
RECTO  (Lat.).    Right.    Breve  de  recto, 
writ  of  right. 

RECTOR.     In    Ecclesiastical  Law^. 

One  who  rules  or  governs:  a  name  given  to 
certain  officers  of  the  Roman  church.  Diet 
Canonique. 

RECTORY.    In  English  Law.  Corpo- 


RECTUS  IN  CURIA 


428 


REDITUS  NIGRI 


real  real  property,  consisting  of  a  church, 
glebe-lands,  and  tithes.   1  Chitty,  Pract.  163. 

RECTUS  IN  CURIA  (Lat.  right  in 
court).  The  condition  of  one  who  stands  at  the 
bar,  against  whom  no  one  objects  any  offence 
or  prefers  any  charge. 

When  a  person  outlawed  has  reversed  his 
outlawry,  so  that  he  can  have  the  benefit  of 
the  law,  he  is  said  to  be  rectus  in  curia.  Ja- 
cob, Law  Diet. 

RECUPERATORES  (Lat.).  In  Ro- 
man Law.  A  species  of  judges  originally 
established,  it  is  supposed,  to  decide  contro- 
versies between  Roman  citizens  and  strangers 
concerning  the  right  to  the  possession  of  pro- 
perty requiring  speedy  remedy,  but  gradu- 
ally extended  to  questions  which  might  be 
brought  before  ordinary  judges. 

After  the  enlargement  of  their  powers,  the  dif- 
ference between  them  and  judges,  it  is  supposed, 
was  simply  this : — if  the  prsetor  named  three 
judges,  he  called  them  refiw^^e/  a/o/  esy  if  one,  he  called 
him  judex.  But  opinions  on  this  subject  are  very 
various.  Colman,  De  Romano  jndicio  recujjerato- 
rio.  Cicero's  oration  pro  Coecin.  1,  3,  was  addressed 
to  recuperators. 

RECUSANT.    In  English  Law.  A 

person  who  refuses  to  make  the  declarations 
against  popery,  and  promotes,  encourages,  or 
professes  the  popish  religion. 

RECUSATION.    In   Civil   Law.  A 

plea  or  exception  by  which  the  defendant  re- 
quires that  the  judge  having  jurisdiction  of 
the  cause  should  abstain  from  deciding,  upon 
the  ground  of  interest,  or  for  a  legal  objection 
to  his  prejudice. 

A  recusation  is  not  a  plea  to  the  jurisdiction  of 
the  court,  but  simply  to  the  person  of  the  judge. 
It  may,  however,  extend  to  all  the  judges,  as  when 
the  party  has  a  suit  against  the  whole  court.  Po- 
thier,  Proced.  Civ.  lere  part.  ch.  2,  s.  5.  It  is  a 
personal  challenge  of  the  judge  for  cause.  See  2 
La.  390;  6  id.  134. 

The  challenge  of  jurors.  La.  Code  Pract. 
art.  499,  500.  An  act,  of  what  nature  soever 
it  may  be,  by  which  a  strange  heir,  by  deeds 
or  words,  declares  he  will  not  be  heir.  Dig. 
29.  2.  95.  See,  generally,  1  Hopk.  Ch.  N.  Y. 
I ;  5  Mart.  La.  292. 

RED  BOOK  OF  THE  EXCHEQUER. 

An  ancient  record,  wherein  are  registered  the 
holders  of  lands  per  haroniam  in  the  time  of 
Henry  III.,  the  number  of  hides  of  land  in 
certain  counties  before  the  conquest,  and  the 
ceremonies  on  the  coronation  of  Eleanor,  wife 
of  Henry  III. :  compiled  by  Alexander  de 
Swenftjrd,  archdeacon  of  Salop  and  treasurer 
of  St.  Paul's,  who  died  in  1246.  31  Hen.  III.; 
Jacob,  Law  Diet. ;  Cowel. 

REDDENDO  SINGULA  SINGULIS 

(Lat.).  Referring  particular  things  to  par- 
ticular persons.  For  example :  when  two 
descriptions  of  property  are  given  together 
in  one  mass,  both  the  next  of  kin  and  the 
heir  cannot  take,  unless  in  cases  where  a  con- 
struction can  be  made  reddendo  singula  sin- 
gulis, that  the  next  of  kin  shall  take  the  per- 
B>nal  estate,  and  the  heir-at-law  the  real  es- 


5 


tate.    14  Ves.  Ch.  490.   See  11  East,  513,  n.; 
Bacon,  Abr.  Conditions  (L). 

REDDENDUM  (Lat.).  That  clause  in  a 
deed  by  which  the  grantor  reserves  something 
new  to  himself  out  of  that  which  he  granted 
before.  It  usually  fellows  the  tenendum,  and 
is  generally  in  these  words,  "yielding  and 
paying."  In  every  good  reddendum  or  re- 
servation these  things  must  concur  :  namely, 
it  must  be  in  apt  words;  it  must  be  of  some 
other  thing  issuing  or  coming  out  of  the  thing 
granted,  and  not  a  part  of  the  thing  itself  nor 
of  something  issuing  out  of  another  thing  ;  it 
must  be  of  a  thing  on  which  the  grantor  may 
resort  to  distrain ;  it  must  be  made  to  one  of 
the  grantors,  and  not  to  a  stranger  to  the  deed. 
See  2  Blackstone,  Comm.  299  ;  Coke,  Litt.  47  ; 
Sheppard,  Touchst.  80 ;  Cruise,  Dig.  tit.  32, 
c.  24,  s.  1 ;  Dane,  Abr.  Index. 

REDDIDIT  SE  (Lat.).  In  English 
Practice.  An  indorsement  made  on  the 
bail-piece  when  a  certificate  has  been  made 
by  the  proper  officer  that  the  defendant  is  in 
custody.    Comyns,  Dig.  Bail  (Q.  4). 

REDEMPTION  (Lat.  re,  red,  back, 
emptio,  a  purchase). 

A  purchase  back  by  the  seller  from  the 
buyer.    It  is  applied  to  denote  the  perform- 
ance of  the  conditions  upon  performance  of  ' 
which  a  conditional  sale  is  to  become  inef-  ^ 
fective  as  a  transfer  of  title,  or,  more  strictly, 
a  right  to  demand  a  reconveyance  becomes 
vested  in  the  seller.    In  the  case  of  mort- 
gages, this  right  is  a  legal  right  until  a  breach 
of  conditions,  when  it  becomes  an  equitable 
right  and  is  called  the  equity  of  redemption, ' 
See  Mortgage  ;  Equity  of  Redemption. 

REDEMPTIONES  ( Lat. ) .  Heavy  fines. 
Distinguished  from  Misericordia,  which  see. 

REDHIBITION.    In  Civil  Law.  The 

avoidance  of  a  sale  on  account  of  some  vice 
or  defect  in  the  thing  sold,  which  renders  its 
use  impossible  or  so  inconvenient  and  imper- 
fect that  it  must  be  supposed  that  the  buyer 
would  not  have  purchased  it  had  he  known 
of  the  vice.    La.  Civ.  Code,  art.  2496. 

This  is  essentially  a  civil-law  right.  The 
effect  of  the  rule  expressed  by  the  maxim 
caveat  emptor  is  to  prevent  any  such  right  at 
common  law,  except  in  cases  of  express  wa* 
ranty.  2  Kent,  Comm.  374  ;  Sugden,  Vend. 
222. 

REDHIBITORY  ACTION.  In  Civil 
Law.  An  action  instituted  to  avoid  a  sale 
on  account  of  some  vice  or  defect  in  the  thing 
sold  which  renders  its  use  impossible  or  so 
inconvenient  and  imperfect  that  it  must  bo 
supposed  the  buyer  would  not  have  purchased 
it  had  he  known  of  the  vice.  La.  Civ.  Code, 
2496. 

REDITUS  ALBI  (Lat.).  A  rent  pay- 
able in  money:  sometimes  called  white  rent, 
or  blanche  farm.    See  Alba  Firma. 

REDITUS  NIGRI  (  Lat. ) .  A  rent  payable 
in  grain,  work,  and  the  like  :  it  was  also  called 
black  mail.    This  name  was  given  to  it  to 


REDOBATORES 


429 


distinguish  it  from  reditvs  a/Oi,  which  was 
payable  in  money. 

REDOBATORES  (L.  Lat.).  Those  that 
buy  istolcn  cloth  and  turn  it  into  some  other 
color  or  fashion,  that  it  may  not  be  recog- 
nized. Redubbers.  Barrington,  Stat.  2d  ed. 
87,  n.;  Coke,  3d  Inst.  134;  Britton,  c.  29. 

REDRAFT.    In  Commercial  Law.  A 

bill  of  exchange  drawn  at  the  place  where 
another  bill  was  made  payable  and  where  it 
■was  protested,  upon  the  place  where  the  first 
bill  was  drawn,  or,  when  there  is  no  regular 
commercial  intercourse  rendering  that  prac- 
ticable, then  in  the  next  best  or  most  direct 
practicable  course.  1  Bell,  Comm.  5th  cd. 
406.    See  Re-Exchange. 

REDRESS.  The  act  of  receiving  satis- 
faction for  an  injury  sustained.  For  the  mode 
of  obtaining  redress,  see  Remedies  ;  1  Chitty, 
Pract.  Anal.  Table. 

REDUBBERS.  In  Criminal  Law. 
Those  who  bought  stolen  cloth  and  dyed  it 
of  another  color  to  prevent  its  being  identi- 
fied were  anciently  so  called.  Coke,  3d  Inst. 
134. 

REDUNDANCY.  Matter  introduced  in 
an  answer  or  pleading  which  is  foreign  to  the 
bill  or  articles. 

2.  The  respondent  is  not  to  insert  in  his 
answer  any  matter  foreign  to  the  articles  he 
is  called  upon  to  answer,  although  such  mat- 
ter may  be  admissible  in  a  plea;  but  he  may, 
in  his  answer,  plead  matter  by  Avay  of  ex- 
planation pertinent  to  the  articles,  even  if 
such  matter  shall  be  solely  in  his  own  know- 
ledge, and  to  such  extent  incapable  of  proof; 
or  he  may  state  matter  which  can  be  sub- 
stantiated by  witnesses ;  but  in  this  latter 
instance,  if  such  matter  be  introduced  into 
the  answer,  and  not  afterwards  put  in  the 
plea,  or  proved,  the  court  will  give  no  weight 
or  credence  to  such  part  of  the  answer.  Per 
Lushington,  3  Curt.  Eccl.  543. 

3.  A  material  distinction  is  to  be  observed 
between  redundancy  in  the  allegation  and 
redundancy  in  the  proof.  In  the  former  case, 
a  variance  between  the  allegation  and  the 
proof  will  be  fatal,  if  the  redundant  allega- 
tions are  descriptive  of  that  which  is  essen- 
tial. But  in  the  latter  case,  redundancy  can- 
not vitiate  because  more  is  proved  than  is 
alleged,  unless  the  matter  superfluously  proved 
goes  to  contradict  some  essential  part  of  the 
allegation.  1  Greenleaf,  Ev.  ^  67 ;  1  Starkie, 
£v.  401. 

RE-ENTRY.  The  act  of  resuming  the 
possession  of  lands  or  tenements  in  pursuance 
of  a  right  which  the  party  exercising  it  re- 
served to  himself  when  he  quit  his  former 
possession. 

2.  Conveyances  in  fee  reserving  a  ground- 
rent,  and  leases  for  a  term  of  years,  usually 
contain  a  clause  authorizing  the  proprietor 
to  re-enter  in  case  of  the  non-payment  of 
rent,  or  of  the  breach  of  some  covenant  in 
the  lease,  which  forfeits  the  estate.  Without 
srch  reservation  he  would  have  no  right  to 


re-enter  for  the  mere  ])reach  of  a  covenant, 
although  he  may  do  ho  upon  the  breach  of  » 
condition  which,  by  its  terms,  is  to  defeat 
the  estate  granted.  3  Wils.  127;  2  Bingh. 
13 ;  1  Mann.  &  R.  694  ;  Taylor,  Landl.  &  T. 
290. 

When  a  landlord  is  about  to  enforce  his 
right  to  re-(!nter  for  the  non-paym(!nt  of  rent, 
he  must  make  a  specific  demand  of  payment, 
and  be  relused,  before  the  forfeiture  is  com- 
plete, unless  such  demand  has  been  dis- 
pensed with  by  an  express  agreement  of  the 
parties.  18  Johns.  N.  Y.  451  ;  8  Watts,  Penn 
51;  6  Serg.  &  R.  Penn.  151 ;  13  Wend.  N.  Y, 
524  ;  6  Ilalst.  N.  J.  270  ;  7  Term,  117  ;  5  Coke, 
41.  In  the  latter  case,  a  mere  failure  to  pay, 
without  any  demand,  constitutes  a  sufficient 
breach,  up(m  which  an  entry  may  at  any  time 
subsequently  be  made.  2  N.  Y.  147 ;  2  N.  11. 
164  ;  2  Dougl.  477 ;  2  Barnew.  &  C.  490.  ^ 

3,  The  requisites  of  a  demand  upon  which 
to  predicate  a  forfeiture  for  the  non-payment 
of  rent,  at  common  law,  are  very  strict.  It 
must  be  for  the  payment  of  the  precise  sum 
due  upon  the  day  when,  by  the  terms  of  the 
lease,  it  becomes  payable;  if  any  days  of 
grace  are  allowed  for  payment,  then  upon 
the  last  day  of  grace.  Coke,  Litt.  203 ;  7  Term, 
117;  Comyns,Dig.i?ew^{D7);  2N.Y.147;  at 
a  convenient  time  before  sunset,  while  there 
is  light  enough  to  see  to  count  the  money,  17 
Johns.  N.  Y.  66  ;  1  Saund.  287  ;  at  the  placo 
appointed  for  payment,  or,  if  no  particular 
place  has  been  specified  in  the  lease,  then  at 
the  most  public  place  on  the  land,  which,  if 
there  be  a  dwelling-house,  is  the  front  door, 
4  Wend.  N.  Y.  313  ;  18  Johns.  N.  Y.  450  ;  1 
How.  211;  Coke,  Litt.  202  a,  notwithstand- 
ing there  be  no  person  on  the  land  to  pay  it, 
Bacon,  Abr.  Rent  (I);  and  if  the  re-entry 
clause  is  coupled  with  the  condition  that  no 
sufficient  distress  he  found  upon  the  premises^ 
the  landlord  must  search  the  premises  to  see 
that  no  such  distress  can  be  found.  15  East, 
286  ;  6  Serg.  &  R.  Penn.  151 ;  8  Watts,  Penn. 
51. 

But  the  statutes  of  most  of  the  states,  fol- 
lowing the  English  statute  of  4  Geo.  II.  c.  28, 
now  dispense  with  the  formalities  of  a  com- 
mon-law demand,  by  providing  that  an  action 
of  ejectment  may  be  brought  as  a  substitute 
for  such  a  demand  in  all  cases  where  no  suf- 
ficient distress  can  be  found  upon  the  pre- 
mises. And  this  latter  restriction  disappears 
entirely  from  the  statutes  of  such  of  the  states 
as  have  abolished  distress  for  rent. 

4.  The  clause  of  re-entry  for  non-payment 
of  rent  operates  only  as  a  security  for  rent; 
for  at  any  time  before  judgment  is  entered 
in  the  action  to  recover  possession  the  tenant 
may  either  tender  to  the  landlord,  or  bring 
into  the  court  where  the  action  is  pending, 
all  the  rent  in  arrear  at  the  time  of  such 
payment,  and  all  costs  and  charges  incurred 
by  the  landlord,  and  in  such  case  all  further 
proceedings  will  cease.  And  in  some  states, 
even  after  the  landlord  has  recovered  pos 
session  the  tenant  may  in  certain  cases  be 
reinstated  upon  the  terms  of  the  original 


REEVE 


430 


REFORM 


lease,  by  paving  up  all  arrearages  and  costs. 
Taylor,  Landl.  &  T.  §  302. 

But  the  courts  will  not  relieve  against  a 
forfeiture  whic'h  has  been  wilfully  incurred 
by  a  tenant  who  assigns  his  lease,  or  neglects 
to  repair  or  to  insure,  contrary  to  his  express 
agreement,  or  if  he  exercises  a  forbidden 
trade,  or  cultivates  the  land  in  a  manner 
prohibited  by  the  lease;  for  in  all  such  cases 
the  landlord,  if  he  has  reserved  a  right  to 
re-enter,  may  at  once  resume  his  former  pos- 
session and  avoid  the  lease  entirely.  2  Price, 
Exch.  20G,  n. :  2  Mer.  Ch.  459  ;  9  Carr.  &  P. 
706  ;  1  Dall.  Penn.  210  ;  9  Mod.  112  ;  3  Ves. 
&  B.  Ch.  Ir.  29  ;  12  Ves.  Ch.  291. 

REEVE.  An  ancient  English  officer  of 
justice,  inferior  in  rank  to  an  alderman. 

He  was  a  ministerial  officer  appointed  to 
execute  process,  keep  the  king's  peace,  and 
put  the  laws  in  execution.  He  witnessed  all 
contracts  and  bargains,  brought  offenders  to 
justice  and  delivered  them  to  punishment, 
took  bail  for  such  as  were  to  appear  at  the 
county  court,  and  presided  at  the  court  or 
folcmote.    He  was  also  called  gerefa. 

There  were  several  kinds  of  reeves  :  as,  the 
sliire-gerefa,  shire-reeve  or  sheriff;  the  heh- 
gerefa,  or  high-sheriff,  tithing-reeve,  burgh- 
or  borough-reeve. 

RE-EXAMINATION.  A  second  ex- 
amination of  a  thing.  A  Avitness  may  be 
re-examined,  in  a  trial  at  law,  in  the  discretion 
of  the  court;  and  this  is  seldom  refused.  In 
equity,  it  is  a  general  rule  that  there  can  be 
no  re-examination  of  a  w^itness  after  he  hanS 
once  signed  his  name  to  the  deposition  and 
turned  his  back  upon  the  commissioner  or 
examiner.  The  reason  of  this  is  that  he  may 
be  tampered  with,  or  induced  to  retract  or 
qualify  what  he  has  sworn  to.  1  Mer.  Ch. 
130. 

RE-EXCHANGE.  The  expense  incurred 
by  a 'bill's  being  dishonored  in  a  foreign 
country  wdiere  it  is  made  payable  and  re- 
turned to  that  country  in  wdiich  it  was  made 
or  indorsed  and  there  taken  up.  11  East, 
265  ;  2  Campb.  65. 

2.  The  amount  of  this  depends  upon  the 
course  of  exchange  betw^een  the  two  countries 
through  which  the  bill  has  been  negotiated. 
Thus,  re-exchange  is  the  difference  between 
the  draft  and  re-draft. 

The  drawer  of  a  bill  is  liable  for  the  whole 
amount  of  re-exchange  occasioned  by  the 
circuitous  mode  of  returning  the  bill  through 
the  various  countries  in  which  it  has  been 
negotiated,  as  much  as  for  that  occasioned  by 
a  direct  return.  1  Parsons,  Notes  &  B.  650 ; 
2  II.  Blackst.  378;  11  East,  265:  3  Bos.  & 


formity,  if  it  does  not  create  injustice,  mu^ 
be  admitted  to  be  a  serious  evil.    See  2  Ai 
Jur.  79  ;  23  Penn.  St.  137  ;  4  Johns.  N, 
119  ;  12  (d.  17  ;  4  Cal.  395  ;  3  Ind.  53  ;  9  id. 
233  ;  8  Ohio,  £92;  Measure  of  Damages. 


And  see  10  La.  56^2 ;  24  Mo.  65  ;  8 


Watts,  Penn.  545  ;  10  Mete.  Mass.  375  ;  7 
Cranch,  500;  4  Wash.  C.  C.  310;  2  How. 
711,764;  9  Exch.  25;  6  Moore,  Pari.  Cas. 
314. 

3.  In  some  states  legislative  enactments 
have  been  made  which  regulate  damages  on 
re-exchange.  These  damages  are  different 
ill  the  sieveral  states;  and  this  want  of  uni- 


j  REFALO.  A  word  composed  of  the  three 
1  initial  syllables  re.  fa.  lo.,  for  recordari  facias 
j  loquelam.  2  Sellon,  Pract.  160 ;  8  Dowl, 
j  514. 

j     REFECTION  (Lat.  re,  again,  facia,  to 
1  make).    In  Civil  Law.    Reparation;  re- 
establishment  of  a  building.    Dig.  19,  1.  6.  1. 

REFEREE.  A  person  to  whom  has  been 
referred  a  matter  in  dispute,  in  order  that  he 
may  settle  it.  His  judgment  is  called  an 
award.    See  Arbitrator  ;  Reference. 

REFERENCE.  In  Contracts.  An 
!  agreement  to  submit  to  certain  arbitrators 
:  matters  in  dispute  between  two  or  more  par- 
j  ties,  for  their  decision  and  judgment.  The 
j  persons  to  whom  such  matters  are  referred 
I  are  sometimes  called  referees. 

In  Mercantile  Law.  A  direction  or  re- 
quest by  a  party  who  asks  a  credit  to  the 
person  from  whom  he  expects  it,  to  call  on 
some  other  person  named,  in  order  to  ascer- 
tain the  character  or  mercantile  standing  of 
the  former. 

In  Practice.  The  act  of  sending  any 
matter  by  a  court  of  chancery,  or  one  ex- 
ercising equitable  powers,  to  a  master  or 
other  officer,  in  order  that  he  may  ascertain 
facts  and  report  to  the  court.  That  part  of 
an  instrument  of  writing  where  it  points  to 
another  for  the  matters  therein  contained. 
For  the  effect  of  such  reference,  see  1  Pick. 
Mass.  27  ;  15  id.  66  ;  17  Mass.  443  ;  7  Ilalst. 
N.  J.  25  ;  14  Wend.  N.  Y.  619  ;  10  Conn. 
422;  3  Me,  393  ;  4  id.  14,  471.  The  thing 
referred  to  is  also  called  a  reference. 

REFERENDARIUS  (Lat).  An  officer 
by  whom  the  order  of  causes  was  laid  before 
the  Roman  emperor,  the  desires  of  petitioners 
made  known,  and  answers  returned  to  them. 
Vicat,  Voc,  Jur. ;  Calvinus,  Lex. 

REFERENDUM  (Lat,),  In  Interna- 
tional Law.  A  note  addressed  by  an  am- 
bassador to  his  government,  submitting  to  ita 
c(msideration  propositions  made  to  him  touch 
ing  an  object  over  which  he  has  no  sufficient 
power  and  is  without  instructions.  AVhen 
such  a  proposition  is  made  to  an  ambassador, 
he  accepts  it  ad  referendum;  that  is,  under  the 
condition  that  it  shall  be  acted  upon  by  his 
government,  to  whicli  it  is  referred. 

REFORM.  To  reorganize;  to  rearrange. 
Thus,  the  jury  "shall  be  reformed  by  puttingto 
and  taking  out  of  the  persons  so  impanelled." 
Stat,  3  Hen.  YIII.  c.  12;  Bacon,  Abr. 
Juries  (A), 

To  reforrn  an  instrument  in  equity  is  to 
make  a  decree  that  a  deed  or  other  agreement 
shall  be  made  or  construed  as  it  was  origin- 
ally intended  by  the  parties,  when  an  error 
or  mistake  as  to  a  fact  has  been  committed. 
A  contract  has  been  reformed  although  the 
party  applying  to  the  court  was  in  the  lega' 


REFRESH  THE  MEMORY  431 


REGISTER 


profession  and  he  himself  drew  the  contract, 
it  appearing  clear  that  it  w«as  framed  so  as  to 
admit  of  a  construction  inconsistent  with  the 
true  af];reement  of  the  parties.  1  Sim,  &  S. 
C^i.  210;  3  Russ.  424.  But  a  contract  will 
not  be  reformed  in  consequence  of  an  error 
of  law.  1  Russ.  &  M.  418 ,  1  Chitty,  Pract. 
124. 

REFRESH  THE  MEMORY.  To  re- 
vive the  knowledge  of  a  subject  by  having  a 
reference  to  something  connected  with  it. 

A  witness  has  a  right  to  examine  a  memo- 
randum or  paper  which  he  made  in  relation 
to  certain  facts  when  the  same  occurred,  in 
order  to  refresh  his  memory  ;  but  the  paper  or 
memorandum  itself  is  not  evidence.  5  Wend. 
N.  Y.  301 ;  12  Serg.  &  R.  Penn.  328  ;  6  Pick. 
Mass.  222  ;  1  A.  K.  Marsh.  Ky.  188 ;  2  Conn. 
213 ;  1  Const.  So.  C.  330,  373. 

REFUND.  To  pay  back  by  the  party 
who  has  received  it,  to  the  party  who  has 
paid  it,  money  which  ought  not  to  have  been 
paid. 

On  a  deficiency  of  assets,  executors  and 
administrators  cum  testamento  aniiexo  are 
entitled  to  have  refunded  to  them  legacies 
which  they  may  have  paid,  or  so  much  as 
may  be  necessary  to  pay  the  debts  of  the  tes- 
tator ;  and  in  order  to  insure  this  they  are 
generally  authorized  to  require  a  refunding 
bond.    See  Bacon,  Abr.  Legacies  (II). 

REFUSAL.  The  act  of  declining  to  re- 
ceive or  to  do  something. 

A  grantee  may  refuse  a  title,  see  Assent  ; 
one  appointed  executor  may  refuse  to  act  as 
such.  In  some  cases,  a  neglect  to  perform  a 
duty  which  the  party  is  required  by  law  or 
his  agreement  to  do  will  amount  to  a  refusal. 

REGARDANT  (French,  regardant,  see- 
ing or  vigilant).  A  villein  regardant  was 
one  who  had  the  charge  to  do  all  base  ser- 
vices within  the  manor,  and  to  see  the  same 
freed  of  annoyances.  Coke,  Litt.  120 ;  2 
Sharswood,  Blackst.  Comm.  93*. 

REGENCY.  The  authority  of  the  per- 
son in  monarchical  countries  invested  with 
the  right  of  governing  the  state,  in  the  name 
of  the  monarch,  during  his  minority,  absence, 
sickness,  or  other  inability. 

REGENT.  A  ruler  ;  a  governor.  The 
term  is  usually  applied  to  one  who  governs  a 
regency,  or  rules  in  the  place  of  another. 

In  the  canon  law,  it  signifies  a  master  or 
professor  of  a  college.    Diet,  du  Dr.  Can. 

It  sometimes  means  simply  a  ruler,  di- 
rector, or  superintendent:  as  in  New  York, 
«vhere  the  board  who  have  the  superintend- 
ence of  all  the  colleges,  academies,  and  schools 
are  called  the  regents  of  the  University  of  the 
state  of  New  York. 

REGIAM  MAJESTATEM  (Lat.).  An 
ancient  book  purporting  to  contain  the  law  of 
Scotland,  and  said  to  have  been  compiled  by 
king  David,  who  reigned  1124-1153.  It  is 
not  part  of  the  law  of  Scotland,  though  it  M^as 
ordered  to  be  revised  with  other  ancient  laws 
uf  Scotland  by  parlianrents  of  1405  and  1407. 


Stair,  Inst.  p.  12,  |  IG,  p.  508,  §  27.  So  Craig, 
Inst.  1.  8.  11;  Scott,  Border  Antiq.  prose 
works,  7,  30 ;  but  Erskine,  Inst.  b.  1,  tit.  1, 
^  32,  and  Ross,  Lect.  11,  p.  GO  el  seq.,  main- 
ta'"^  its  authenticity.  It  is  cited  in  some 
modern  Scotch  cases.  2  Swint.  409 ;  3  Bell, 
llou.  L.  It  is,  according  to  Dr.  Robertson, 
a  servile  copy  of  (ilanville.  Robertson,  Hist. 
Charles  V.,  vol.  1.  uote  25,  p.  2G2;  Erskin«, 
Inst.  1.  1.  3. 

REGICTDE  (Lat.  rex,  king,  cedere,  to 
kill,  slay).  The  killing  of  a  king,  and,  hj 
extension,  of  a  queen.  Theorie  des  Lois 
Criminellcs,  vol.  1,  p  300. 

REGIDOR.   In  Spanish  Law.   One  of 

a  body,  never  exceeding  twelve,  who  formed 
a  ptirt  of  the  aj/untamiento,  or  municipal  coun- 
cil, in  every  capital  of  a  jurisdiction  in  the 
colonies  of  the  Indies.  The  office  of  regidor 
was  held  for  life  ;  that  is  to  say,  during  the 
pleasure  of  the  supreme  authority.  In  most 
places  the  office  was  purchased ;  in  some 
cities,  however,  they  were  elected  by  persons 
of  the  district,  called  capitulares.  12  Pet. 
442,  note. 

REGIMIENTO.    In  Spanish  Law. 

The  body  of  regidores,  who  never  exceeded 
twelve,  forming  a  part  of  the  municipal  coun 
cil,  or  aijuntamiento,  in  every  capital  of  a 
jurisdiction.    12  Pet.  442,  note. 

REGISTER.  In  Evidence.  A  book 
containing  a  record  of  facts  as  they  occur, 
kept  by  public  authority ;  a  register  of  births, 
marriages,  and  burials. 

Although  not  originally  intended  for  the 
purposes  of  evidence,  public  registers  are  in 
general  admissible  to  prove  the  facts  to  which 
they  relate.  In  Peimsylvania,  the  registry 
of  births,  etc.  made  by  any  religious  society 
in  the  state  is  evidence,  by  act  of  asseniMy, 
but  it  must  be  proved  as  at  common  law.  G 
Binn.  Penn.  41G.  A  copy  of  the  register  of 
births  and  deaths  of  the  Society  of  Friends 
in  England,  proved  before  the  lord  mayor  of 
London  by  an  ex-parte  affidavit,  was  allowed 
to  be  given  in  evidence  to  prove  the  death  of 
a  person,  1  Dall.  2 ;  and  a  copy  of  a  parish 
register  in  Barbadoes,  certified  to  be  a  true 
copy  by  the  rector,  proved  by  the  oath  of  a 
witness,  taken  before  the  deputy  secretary 
of  the  island  and  notary  public,  under  hi? 
hand  and  seal,  was  held  admissible  to  prove 
pedigree,  the  handwriting  and  office  Df  tho 
secretary  being  proved.  10  Serg.  &  R.  Penn. 
383. 

In  North  Carolina,  a  parish  register  of 
births,  marriages,  and  deaths,  kept  pursuant 
to  the  statute  of  that  state,  is  evidence  of 
pedigree.  2  Murph.  No.  C.  47.  In  Connea- 
ticut,  a  parish  re^-ister  has  been  received  in 
evidence.  2  Root,  Conn.  99.  See  15  Johns. 
N.  Y.  226.  See  1  Phillipps,  Ev.  305  ;  1  Curt. 
755  ;  6  Eccl.  452. 

In  Common  Law.  The  certificate  of 
registry  granted  to  the  person  or  persons 
entitled  thereto,  by  the  collector  of  the  dis- 
trict, comprehending  the  port  to  which  acv 


% 


REGISTER,  REGISTRAR 


432 


REI  INTERVENTUS 


Bhip  or  vessel  shall  belong ;  more  properly, 
the  registry  itself.  For  the  form,  requisites, 
etc.  of  eertiticate  of  registry,  see  Acts  of  Cong. 
Dec.  31,  1792,  1  U.  S.  Stat,  at  Large,  287,  ^ 
9,  May  6,  1864,  13  U.  S.  Stat,  at  Large,  69,  § 
4 ;  3  Kent,  Comm.  4th  ed.  141.  See  1  Cranch, 
158  ;  3  id.  338  ;  9  Pet.  682 ;  19  How.  76 ;  3 
Wheat.  601 ;  9  id.  421 ;  1  Newb.  Adm.  309  ; 
1  Wash.  C.  C.  125;  1  Mas.  C.  C.  306;  1 
Blatchf.  &  II.  Adm.  52. 

REGISTER,  REGISTRAR.  An  officer 
authorized  by  law  to  keep  a  record  called  a 
register  or  registry :  as,  the  register  for  the 
probate  of  wills. 

REGISTER'S  COURT.  In  American 
Law.  A  court  in  the  state  of  Pennsylvania 
which  has  jurisdiction  in  matters  of  probate. 
See  Pennsylvania. 

REGISTER  OF  WRITS.  A  book  pre- 
served in  the  English  court  of  chancery,  in 
which  were  entered,  from  time  to  time,  all 
forms  of  writs  once  issued.  Stat.  Westm.  2, 
c.  25. 

It  is  spoken  of  as  one  of  the  most  ancient 
books  of  the  common  law.  Coke,  Litt.  159; 
Coke,  4th  Inst.  150 ;  8  Coke,  Pref. ;  3  Shars- 
wood,  Blackst.  Comm.  183"^.  It  was  first 
printed  and  published  in  the  reign  of  Hen. 
VIII.  This  book  is  still  in  authority,  as  con- 
taining, in  general,  an  accurate  transcript  of 
the  forms  of  all  Merits  as  then  framed,  and 
as  they  ought  still  to  be  framed  in  modern 
practice. 

But  many  of  the  writs  now  in  use  are  not 
contained  in  it.  And  a  variation  from  the 
register  is  not  conclusive  against  the  pro- 
priety of  a  form,  if  other  sufficient  authority 
can  be  adduced  to  prove  its  correctness. 
Stephen,  Plead.  7,  8. 

REGISTRARIUS  (Lat.).  An  ancient 
name  given  to  a  notary.  In  England  this 
name  is  confined  to  designate  the  officer  of 
some  court  the  records  or  archives  of  which 
are  in  his  custody. 

REGISTRUM  BREVIUM  (Lat.).  The 
name  of  an  ancient  book  which  was  a  collec- 
tion of  writs.    See  Register  of  Writs. 

REGISTRY.  A  book,  authorized  by  law, 
in  which  writings  are  registered  or  recorded. 

REGNANT.  One  having  authority  as 
a  king ;  one  in  the  exercise  of  royal  au- 
thority. 

REGRATING.    In  Criminal  Law. 

Every  practice  or  device,  by  act,  conspiracy, 
words,  or  news,  to  enhance  the  price  of  vic- 
tuals or  other  merchandise,  is  so  denominated. 
Coke,  3d  Inst.  196 ;  1  Russell,  Crimes,  109. 

In  the  Roman  law,  persons  who  monopo- 
lized grain,  and  other  produce  of  the  earth, 
were  called  dardarun  ii,  and  were  variously 
punisliod.    Dig.  47.  11.  6. 

REGRESS.  Returning;  going  back: 
opposed  to  iwjress. 

REGULAR  CLERGY.  Monks  who 
lived  according  to  the  rules  of  their  respective 
houses  or  societies,  in  contradistinction  to  the 


1 

TUS  ■ 

leir  duties  *Hi 


parochial  clergy,  who  did  their  duties 
seculo,"  and  hence  were  called  secular  clergy. 
1  Sharswood,  Blackst.  Comm.  387,  n. 

REGULAR  DEPOSIT.  One  where  the 
thing  deposited  must  be  returned.  It  is  dis- 
tinguished from  an  irregular  deposit. 

REGULAR  PROCESS.  Regular  pro- 
cess is  that  which  has  been  lawfully  issued 
by  a  court  or  magistrate  having  competent 
jurisdiction. 

2.  When  the  process  is  regular,  and  the 
defendant  has  been  damnified,  as  in  the  case 
of  a  malicious  arrest,  his  remedy  is  by  an 
action  on  the  case,  and  not  trespass  ;  when  it 
is  irregular,  the  remedy  is  by  action  of  tres- 
pass. 

If  the  process  be  wholly  illegal  or  misap" 
plied  as  to  the  person  intended  to  be  arrested, 
without  regard  to  any  ques:ion  of  fact,  or 
whether  innocent  or  guilty,  or  the  existence 
of  any  debt,  then  the  party  imprisoned  may 
legally  resist  the  arrest  and  imprisonment, 
and  may  escape,  be  rescued,  or  even  break 
prison  ;  but  if  the  process  and  imprisonment 
were  in  form  legal,  each  of  these  acts  would 
be  punishable,  however  innocent  the  defend- 
ant might  be,  fur  he  ought  to  submit  to  legal 
process  and  obtain  his  release  by  due  course 
of  law.  1  Chitty,  Pract.  637  ;  5  East,  304,  ' 
308  ;  1  Smith,  555  ;  6  Term,  234 ;  2  Wils.  47; 
1  East,  PI.  Cr.  310 ;  Hawkins,  PI.  Cr.  b.  2,  c.  19, 
ss.  1,  2.    See  Escape  ;  Arrest  ;  Assault. 

3.  When  a  party  has  been  arrested  on  pro-  ; 
cess  which  has  afterwards  been  set  aside  for 
irregularity,  he  may  bring  an  action  of  tres« 
pass,  and  recover  damages  as  well  against  the  ' 
attorney  who  issued  it  as  the  party ;  though  • 
such  process  will  justify  the  officer  who  exe- 
cuted it.    8  Ad.  &  E.  449  ;  15  East,  615,  note  ■ 
c ;  1  Strange,  509 ;  2  W.  Blackst.  845 ;  2  Conn.  . 
700  ;  9  id.  141;  11  Mass.  500 ;  6  Me.  421 ;  3 
Gill  &  J.  Md.  377  ;  1  Bail.  So.  C.  441 ;  2  Litt.  ' 
Ky.  234  ;  3  Serg.  &  R.  Penn  139  ;  12  Johns,  v 
N.  Y.  257  ;  3  Wils.  376.    And  see  Malicious  I 
Prosecution.  \ 

REHABERE  FACIAS  SEISINAM  ' 

(Lat.  do  you  cause  to  regain  seibin).  When 
a  sheriff  in  the  "  habere  facias  seisinam"  had 
delivered  seisin  of  more  than  he  ought,  this 
judicial  writ  lay  to  make  him  restore  seisin 
of  the  excess.    Reg.  Jud.  13,  51,  54. 

REHABILITATION.  The  act  by  which 
a  man  is  restored  to  his  former  ability,  of 
which  he  had  been  deprived  by  a  conviction, 
sentence,  or  j  udgnient  of  a  competent  tribunal. 

REHEARING.  A  second  consideration 
which  the  court  gives  to  a  cause  on  a  second 
argument. 

A  rehearing  takes  place  principally  when 
the  court  has  doubts  on  the  suljjcct  to  be  de- 
cided ;  but  it  cannot  be  granted  by  the  su- 
preme court  after  the  cause  has  been  remitted 
to  the  court  below  to  carry  into  effect  the  de- 
cree of  the  supreme  court.    7  Wheat.  58. 

REI  INTERVENTUS  ( Lat. ) .  When  ft 
party  is  imperfectly  bound  in  an  obligation,  he 
may,  in  general,  annul  such  imperfect  obliga- 


t 


KEIISSURANCE 


433 


RELATOR 


tion  ;  but  when  he  has  permitted  the  opposite 
party  to  act  as  if  his  obligation  or  ap;rcemont 
were  complete,  such  things  have  intervened  as 
to  deprive  him  of  the  right  to  rescind  such 
obligation :  these  circumstances  are  the  rei 
inierventus.  1  Bell,  Comm.  328,  329,  5th  ed. ; 
Burton,  Man.  128. 

REINSURANCE.  Insurance  effected 
by  an  underwriter  upon  a  subject  against 
certain  risks  with  another  underwriter,  on 
the  same  subject,  against  all  or  a  part  of  the 
eame  risks,  not  exceeding  the  same  amount. 
In  the  original  insurance,  he  is  the  insurer; 
in  the  second,  the  assured.  His  object  in  re- 
insurance is  to  protect  himself  against  the 
risks  which  he  had  assumed.  There  is  no 
privity  of  contract  between  the  original  as- 
sured and  the  reinsurer,  and  the  reinsurer  is 
under  no  liability  to  ::uch  original  assured. 
3  Kent,  Comm.  227;  1  Phillips,  Ins.  I  78  a, 
404;  20  Barb.  N.  Y.  468  ;  23  Penn.  St.  250; 
9Ind.  443;  13  La.  Ann.  246. 

REISSUABLE  NOTES.  Bank-notes 
which,  after  having  been  once  paid,  may 
ugain  be  put  into  circulation. 

They  cannot  properly  be  called  valuable 
securities  while  in  the  hands  of  the  maker, 
but,  in  an  indictment,  may  properly  be  called 
goods  and  chattels.  Rv.  &  M.  Cr.  Cas.  218. 
See  5  Mas.  C.  C.  537  ;  2''Russell,  Crimes,  147. 
And  such  notes  would  fall  within  the  descrip- 
tion of  promissory  notes.  2  Leach,  Cr.  Cas. 
1090,  1093  ;  Russ  &  R.  232. 

REJOINDER.  In  Pleading.  The  de- 
fendant's answer  to  the  plaintiff's  replica- 
tion. 

It  must  conform  to  the  plea,  16  Mass.  1 ;  2 
Mod.  343,  be  triable,  certain,  direct,  and  posi- 
tive, and  not  by  way  of  recital,  or  argumenta- 
tive, 1  Ilarr.  &  M'H.  Md.  159 ;  must  answer 
every  material  averment  of  the  declaration. 
23  N.  H.  198.  It  must  not  be  double, 
6  Blackf.  421 ;  3  McLean,  C.  C.  163  ;  and 
there  may  not  be  several  rejoinders  to  the 
same  replication,  1  IIovs^  Miss.  139 ;  1  Wms. 
Saund.  337,  n.,  nor  repugnant  or  insensible. 
See  Coke,  Litt.  304 ;  Archbold,  Civ.  Plead. 
278;  Comyns,  Dig.  Pleader  (H). 

REJOINING  GRATIS.  Rejoining 
within  four  days  from  the  delivery  of  the  re- 
plication, without  a  notice  to  rejoin  or  demand 
ff  rejoinder.  Wharton,  Lex.  Rejoinder;  1 
Archbold,  Pract.  280,  317  ;  10  Mees  &  W. 
Exch.  12.  But  judgment  cannot  be  signed 
-without  demanding  rejoinder.    3  Dowl.  537. 

RELATION  (Lat.  re,  back,  fero.  tc  bear). 
In  Civil  Law.  The  report  which  the  judges 
made  of  the  proceedings  in  certain  suits  to 
the  prince  were  so  called. 

These  relations  took  place  when  the  judge  had 
no  law  to  direct  him,  or  when  the  laws  were  sus- 
ceptible of  difficulties  :  it  was  then  referred  to  the 
prince,  who  was  the  author  of  the  law,  to  give  the 
interpretation.  They  were  made  in  writing,  and 
contained  the  pleadings  of  the  parties  and  all  the 
proceedings,  together  with  the  judge's  opinion,  and 
prayed  the  emperor  to  order  what  should  be  done. 
This  ordinance  of  the  prince  thus  required  was 

Vol.  IL— 28 


called  a  rescript.    Their  use  was  abolished  by  Jus- 
tinian, Nov.  12;'). 

In  Contracts.  When  an  act  is  done  at 
one  time,  and  it  operates  upon  the  thing  as 
if  dfme  at  another  time,  it  is  said  to  do  so  by 
relation :  as,  if  a  man  deliver  a  dee<l  as  an 
escrow,  to  be  delivered,  Ijy  the  party  holding 
it,  to  the  grantor,  on  the  periorniance  of  some 
act,  the  delivery  to  the  latter  will  have  rela- 
tion back  to  the  first  delivery.  Termes  de 
la  Ley.  Again,  if  a  partner  be  adjudged  a 
bankrupt,  the  partnership  is  dissolved,  and 
such  dissolution  relates  back  to  the  time  when 
the  commission  issued.  3  Kent,  Comm.  33. 
See  Litt.  Ky.  402-4 OG  ;  2  Johns.  N.  Y.  510, 
4  id.  230  ;  15  id.  309  ;.  2  llarr.  &  J.  Md.  151 ; 
Fiction. 

RELATIONS.  A  term  including  all  the 
kindred  of  the  person  spoken  of.  Those  per- 
sons who  are  entitled  as  next  of  kin  under 
the  statute  of  distribution, 

52.  A  legacy  to  "relations"  generally,  or 
to  "  relations  by  blood  or  marriage,''  without 
enumerating  any  of  them,  will,  therefore, 
entitle  to  a  share  such  of  the  testator's  rela- 
tives as  would  be  entitled  under  the  statute 
of  distributions  in  the  event  of  intestacy.  1 
Madd.  Ch.  45  ;  1  Brown,  Ch.  33.  See  Con- 
struction, Relations, 

3.  Relations  to  either  of  the  parties,  even  . 
beyond  the  ninth  degree,  have  been  holden 
incapable  to  serve  on  juries.  3  Chitty,  Pract. 
795,  note  c.  Relationship  or  affinity  is  no 
objection  to  a  witness,  unless  in  the  case  of 
husband  and  wife.    See  Witness. 

RELATIVE.  One  connected  with  an- 
other by  blood  or  affinity ;  a  relation ;  a  kiLs« 
man  or  kinswoman.  In  an  adjective  sense, 
having  relation  or  connection  with  some  other 
person  or  thing :  as,  relative  rights,  relative 
powers. 

RELATIVE  POWERS.  Those  which 
relate  to  land:  so  called  to  distinguish  them 
from  those  which  are  collateral  to  it. 

These  powers  are  appendant :  as,  where  a 
tenant  for  life  has  a  power  of  making  leases 
in  possession.  They  are  in  gross  when  a 
person  has  an  estate  in  the  land,  with  a 
power  of  appointment,  the  execution  of  which 
falls  out  of  the  compass  of  his  estate,  but, 
notwithstanding,  is  annexed  in  privity  to  it, 
and  takes  effect  in  the  appointee  out  of  an 
interest  appointed  in  the  appointer.  2  Bou- 
vier,  Inst.  n.  1930. 

RELATIVE  RIGHTS.  Those  to  which 
a  person  is  entitled  in  consequence  of  his  re- 
lation with  others:  such  as  the  rights  of  a 
husband  in  relation  to  his  wife ;  of  a  father 
as  to  his  children  ;  of  a  master  as  to  his  ser- 
vant ;  of  a  guardian  as  to  his  ward. 

In  general,  the  superior  may  maintain  an 
action  for  an  injury  committed  against  his 
relative  rights.  See  2  Bouvier,  Inst.  nn. 
2277-2296;  3  id.  n.  3491;  4  id.  nn.  3G15- 
3618 ;  Action. 
I  RELATOR.  A  rehearser  or  teller;  one 
who,  by  leave  of  court,  brings  an  information 
in  the  nature  of  a  quo  warranto. 


RELEASE 


434 


RELEGATIO 


At  common  law,  strictly  speaking,  no  such 
person  as  a  relator  to  an  information  is  known, 
he  being  a  creature  of  the  statute  of  Anne, 
c.  20.  In  this  country,  even  wnere  no  sta- 
tute similar  to  that  of  Anne  prevails,  in- 
formations are  allowed  to  be  filed  by  private 
persons  desirous  to  try  their  rights,  in  the 
name  of  the  attorney-general,  and  these  are 
commonly  called  relators ;  though  no  judg- 
ment for  costs  can  be  rendered  for  or  against 
them.  2  Dall.  Penn.  112;  5  Mass.  231;  3 
Serg.  &  R.  Penn.  52;  15  id.  127 ;  Angell,  Corp. 
470.  In  chancery,  the  relator  is  responsible 
for  costs.    4  Bouvier,  Inst.  n.  4022. 

RELEASE.  The  giving  up  or  abandon- 
ing a  claim  or  right  to  the  person  against 
whom  the  claim  exists  or  the  right  is  to 
be  exercised  or  enforced. 

Releases  may  either  give  up,  discharge,  or  aban- 
don a  right  of  action,  or  convey  a  man's  interest  or 
fight  to  another  who  has  possession  of  it  or  some 
estate  in  the  same.  Sheppard,  Touchst.  320  ;  Little- 
ton, 444;  Nelson,  Abr.;  Bacon,  Abr. ;  Viner,  Abr.  ; 
Rolle.  Abr.  In  the  former  class  a  mere  right  is 
surrendered  ;  in  the  other  not  only  a  right  is  given 
up,  but  an  intei-est  in  the  estate  is  conveyed  and 
becomes  vested  in  the  releasee. 

An  express  release  is  one  directly  made  in 
terms  by  deed  or  other  suitable  means. 

An  implied  release  is  one  which  arises  from 
acts  of  the  creditor  or  owner,  without  any  ex- 
press agreement.  See  Pothier,  Obi.  nn.  608, 
609. 

A  release  hy  operation  of  law  is  one  which, 
though  not  expressly  made,  the  law  presumes 
in  consequence  of  some  act  of  the  releasor : 
for  instance,  when  one  of  several  joint  oblig- 
ors is  expressly  released,  the  others  are  also 
released  bv  operation  of  law.  3  Salk.  298 ; 
Hob.  10,  66 ;  4  Mod.  380 ;  7  Johns.  N.  Y. 
207. 

2.  Releases  of  claims  which  constitute  a 
cause  of  action  acquit  the  releasee,  and  re- 
move incompetency  as  a  witness  resulting 
from  interest. 

Littleton  says  a  release  of  all  demands  is 
the  best  and  strongest  release.  Sect.  508. 
Lord  Coke,  on  the  contrary,  says  claims  is  a 
stronger  word.    Coke,  Litt.  291  h. 

In  general,  the  words  of  a  release  will 
be  restrained  by  the  particular  occasion  of 
giving  it.  1  Lev.  235  ;  3  id.  273 ;  1  Show. 
151 ;  2  id.  47  ;  2  Mod.  108,  n.;  3  id.  277  ;  T. 
Raym.  399  ;  Palm.  218. 

3.  The  reader  is  referred  to  the  following 
cases  where  a  construction  has  been  given 
to  the  expressions  mentioned.  A  release  of 
"all  actions,  suits,  and  demands,"  3  Mod. 
277 ;  "  all  actions,  debts,  duties,  and  de- 
mands," id.  1,  64;  8  Coke,  150  b;  2  Saund. 
0  a;  "all  demands,"  5  Coke,  70  6;  2  Mod. 
281 ;  3  id.  185,  278  ;  12  id.  465  ;  1  Lev.  99  ; 
Salk.  578;  2  Rolle,  20;  2  Conn.  120;  "all 
actions,  quarrels,  trespasses,"  Dy.  2171,  pi.  2  ; 
Croke  Jac.  487;  "all  errors,  and  all  actions, 
Buits,  and  writs  of  error  whatsoever,"  T. 
Kaym.  399  ;  "  all  suits,"  8  Coke,  150 ;  "  of 
covenants."    5  Coke,  70  h. 

4*  A  release  by  a  witness  where  he  has 


an  interest  in  the  matter  which  is  the  subject 
of  the  suit,  or  release  by  the  party  on  whose 
side  he  is  interested,  renders  him  competent. 

1  Phillipps,  Ev.'  102,  and  the  cases  cited  in 
n.  a.  See  Chitty,  Bail.  329 ;  1  Dowl.  &  R. 
361. 

As  to  the  party  who  can  make  a  release 
which  shall  restore  competency  to  a  witness, 
see  1  Bos,  &  P.  630 ;  4  Carr.  &  P.  383  ;  9  id. 
199  ;  10  Johns.  N.  Y.  132  ;  14  id.  387  ;  18  id. 
459  ;  3  N.  H.  115  ;  5  id.  196 ;  5  Blackf.  Ind. 
486 ;  3  Me.  243 ;  6  id.  57 ;  4  Vt.  523 ;  20 
Pick.  Mass.  441. 

In  Estates.  The  conveyance  of  a  man's 
interest  or  right  which  he  hath  unto  a  thing, 
to  another  that  hath  the  possession  thereof 
or  some  estate  therein.  Sheppard,  Touchst. 
320.  The  relinquishment  of  some  right  or 
benefit  to  a  person  w^ho  has  already  some  inte- 
rest in  the  tenement,  and  such  interest  as  quali- 
fies him  for  receiving  or  availing  himself  of 
the  right  or  benefit  so  relinquished.  Burton, 
Real  Prop.  15*. 

5.  The  words  generally  used  in  such  con- 
veyance are  "  remised,  relea-^ed,  and  forever 
quit-claimed."    Littleton,  ^  445. 

Releases  of  land  are,  in  respect  of  their 
operation,  divided  into  five  sorts :  releases 
that  enure  by  way  of  passing  tho  estate,  or 
mitter  I'estaie  {q.  v.),  e.g.  a  release  by  joint- 
tenant  to  co-joint-tenant,  which  conveyance 
will  pass  a  fee  without  words  of  limitation. 
Releases  that  enure  by  way  of  passing  the 
right,  or  mitter  le  droit :  e.g.  by  disseisee  to 
disseisor.  Releases  that  enure  by  enlarge* 
ment  of  the  estate. 

Here  there  must  be  an  actual  privity  of 
estate  at  the  time  between  releasor  and  re- 
leasee, who  must  have  an  estate  actually 
vested  in  him  capable  of  enlargement. 

Releases  that  enure  by  way  of  extinguish- 
ment: e.g.  a  lord  releasing  his  seignorial 
rights  to  his  tenant. 

Releases  that  enure  by  way  of  feofi'ment 
and  entry :  e.g.  if  there  are  two  disseisors,  a 
release  to  one  will  give  him  a  sole  estate,  as 
if  the  disseisee  had  regained  seisin  by  entry 
and  enfeofi'ed  him.  2  Sharswood,  Blackst. 
Comm.  325*.  See  4  Cruise,  Dig.  71 ;  Gilbert, 
Ten.  82  ;  Coke,  Litt.  264  ;  3  Brock.  C.  C.  185; 

2  Sumn.  C.  C.  487  ;  8  Pick.  Mass.  143  ;  10 
id.  195  ;  7  Mass.  381 ;  5  Harr.  &  J.  Md.  158 ; 
2  N.  H.  402 ;  5  Paige,  Ch.  N.  Y.  299 ;  10 
Johns.  N.  Y.  456. 

The  technicalities  of  English  law  as  to 
releases  are  not  generally  applicable  in  tho 
United  States.  The  corresponding  convey 
ance  is  a  quit-claim  deed.  2  Bouvier,  Inst 
416  ;  21  Ala.  n.  s.  125. 

RELEASEE.  A  person  to  whom  a  re 
lease  is  made. 

RELEASOR.    He  who  makes  a  release 

RELEGATIO  (Lat.).  A  kind  of  banish- 
ment known  to  the  civil  law,  which  did  not  take 
away  the  rights  of  citizenship,  which  depor 
tatio  did. 

Some  say  that  relegatio  was  temporary,  deportado 
perpetual;  that  relegatio  did  not  take  away  the  pro 


RELEVANCY 


435    RExMANENT  PRO  DEFECTU,  ETC. 


perty  of  the  exile,  and  that  deportatio  did  ;  but  these 
distinctions  do  not  seem  always  to  exist.  There 
was  one  sort  of  rcUtyntio  for  slaves,  viz.  in  (Kjrds  ; 
another  for  frueinen,  viz.  in  provinciaa.  Jiele(/atio 
only  exiled  from  certain  limits;  deportatio  con- 
fined to  a  particular  place  {loom  poense).  Calvinus, 
Lex. 

RELEVANCY.  Applicability  to  the 
issue  joined.  Tliat  quality  of  evidence  which 
renders  it  properly  applicable  in  determining 
the  truth  and  falsity  of  the  matters  in  issue 
between  the  parties  to  a  suit.  See  1  Green- 
leaf,  Ev.  ^  49. 

RELICT.  A  widow:  as,  A  B  relict  of 
C  B,  A  B  widow  of  C  B. 

RELICTAVERIFICATIONE(Lat.his 
pleading;  being  abandoned). 

In  Pleading.  A  confession  of  judgment 
made  after  plea  pleaded :  viz.  a  cognovit  acti- 
ow.m  accompanied  by  a  withdrawal  of  the 
plea. 

RELICTION  (Lat.  relinqno,  to  leave  be- 
hind). An  increase  of  the  land  by  the  retreat 
or  recession  of  the  sea  or  a  river. 

Lands  left  dry  by  the  sudden  and  sensible 
recession  of  the  sea,  or  of  a  river  which  flows 
and  re-flows  with  the  tide,  belong  to  the 
sovereign  or  state,  unless  the  property  in  the 
land  so  relicted  has  been  granted  to  indi- 
viduals. In  other  words,  the  right  of  pro- 
perty in  the  soil  is  not  changed  by  such 
change  of  the  water.  But  where  the  reces- 
sion is  gradual  and  insensible,  or  where  it 
iakes  place  in  fresh-water  rivers,  the  soil  of 
which  belongs  to  the  riparian  proprietors, 
the  lands  so  relicted  belong  to  the  proprietors 
of  the  estates  which  are  thereby  increased. 
Woolrych,  Wat.  29-36 ;  Schultes,  Aqu.  Rights, 
138;  Ang.  Tide- Wat.  2d  ed.  264-267;  3 
Barnew.  &  C.  91 ;  9  Conn.  41 ;  2  Md.  Ch. 
Dec.  485  ;  13  N.  Y.  296;  5  Bingh.  163.  But 
this  reliction  must  be  from  the  sea  in  its 
usual  state ;  for  if  it  should  inundate  the 
land  and  then  recede,  this  would  be  no  relic- 
tion. Angell,  Tide- Wat.  lib.  sup. ;  Ilargrave, 
Tracts,  15  ;  16  Viner,  Abr.  574.    See  River. 

In  this  country  it  has  been  decided  that 
if  a  navigable  lake  recede  gradually  and 
insensibly,  the  derelict  land  belongs  to  the 
adjacent  riparian  proprietors  ;  but  if  the  re- 
cession be  sudden  and  sensible,  such  land 
belongs  to  the  state.    1  Hawks,  No.  C.  56 ; 

1  Gill  &  J.  Md.  249.  See  Avulsion  ;  Allu- 
vion. 

RELIEF.  A  sum  payable  by  the  new 
tenant,  the  duty  being  incident  to  every  feudal 
tenure,  by  way  of  line  or  composition  with 
the  lord  for  taking  up  the  estate  which  was 
lapsed  or  fallen  in  by  the  death  of  the  last 
tenant.  At  one  time  the  amount  was  arbi- 
trary; but  afterwards  the  relief  of  a  knight's 
fee  became  fixed  at  one  hundred  shillings. 

2  Blackstone,  Comm.  65. 
RELIGION  (Lat.  re,  back,  Ugo,  to  bind). 

Real  piety  in  practice,  consisting  in  the  per- 
formance of  all  known  duties  io  God  and  our 
fellow-men.  See  Charitiej;  Charitable 
Uses.  > 


RELIGIOUS  MEN  (L.  Lat.  religio.n). 
Such  as  entered  into  some  monastery  or  con- 
vent. In  old  English  deeds,  the  vendee  was 
often  restrained  from  aliening  to  "Jews  or 
religious  men,"  lest  the  lands  should  fall 
I  into  mortmain.  Religious  men  were  civilly 
dead.  Blount. 

RELIGIOUS  TEST.    The  constitution 
of  the  United  States,  art.  6,  s.  3,  declares 
that  "  no  religious  test  shall  ever  be  required 
!  as  a  qualification  to  any  office  or  public  trust 
j  under  the  United  States." 

This  clause  was  introduced  for  the  doul)le 
purpose  of  satisfying  the  scruples  of  many 
respectable  persons  who  feel  an  invincible 
repugnance  to  any  religious  test  or  affirma- 
tion, and  to  cut  oft'  forever  every  pretence  of 
any  alliance  between  church  and  state  in  the 
national  government.    Story,  Const.  §  1841. 

RELINQUISHMENT.    In  Practice. 

A  forsaking,  abandoning,  or  giving  over  a 
right:  for  example,  a  plaintiff"  may  relinquish 
a  bad  count  in  a  declaration,  and  proceed  on 
a  good  ;  a  man  may  relinquish  a  part  of  his 
claim  in  order  to  give  a  court  jurisdiction. 

RELOCATIO  (Lat.).  In  Civil  Law.  A 

renewal  of  a  lease  on  its  determination  on  like' 
terms  as  before.  It  may  be  either  express  or 
tacit :  the  latter  is  when  the  tenant  holds 
over  with  the  knowledge  and  without  objec- 
tion of  the  landlord.  Mackeldy,  Civ.  Law, 
1  379. 

REMAINDER.  The  remnant  of  an 
estate  in  lands  or  tenements  expectant  on  a 
particular  estate  created  together  with  the 
same  at  one  time. 

A  contingent  remainder  is  one  which  is 
limited  to  take  effect  on  an  event  or  condition 
which  may  never  happen  or  be  performed,  or 
which  may  not  happen  or  be  performed  till 
after  the  determination  of  the  preceding  par- 
ticular estate.  A  vested  remainder  is  one  by 
which  a  present  interest  passes  to  the  party, 
though  to  be  enjoyed  in  future,  and  by  which 
the  (Estate  is  invariably  fixed  to  remain  to  a 
determinate  person  after  the  particular  es- 
tate has  been  spent.  See  2  Johns.  N.  Y.  288 ; 
1  Yeates,  Penn.  340;  Contingent  Remain- 
der; Cross-Remainder;  Executory  Dcvise; 
Limitation;  Reversion. 

REMAINDER-MAN.  One  who  is  en- 
titled to  the  remainder  of  the  estate  after  a 
particular  estate  carved  out  of  it  has  expired. 

REMAND  (Lat.  re,  back,  mando,  to  com- 
mand). When  a  prisoner  is  brought  before 
a  judge  on  a  habeas  corpus,  for  the  purpose 
of  obtaining  his  liberty,  the  judge  hears  the 
case,  and  either  discharges  him  or  not :  when 
there  is  cause  for  his  detention,  he  remands 
him. 

REMANDING  A  CAUSE.  In  Prac- 
tice. The  sending  it  back  to  the  same  court 
out  of  which  it  came,  for  the  purpose  of 
having  some  action  on  it  there.    March,  100. 

REMANENT  PRO  DEFECTU  EMP- 
TORUM  (Lat.  remanent,  they  remain,  pro 


KEMANET 


436      REMiFTITUR  DAMNUM,  ETC. 


defeciu^  through  lack,  emptorum,  of  buyers). 
In  Practice.  The  return  made  by  the  she- 
riff to  a  writ  of  execution  when  he  has  not  | 
been  able  to  sell  the  property  seized,  that  the 
same  remains  unsold  for  toanf  of  buyers  ;  in 
that  case  the  plaintiff  is  entitled  to  a  vendi- 
iioni  exponas.  Comyns,  Dig.  Execution  (C  8). 

REMANET  (Lat.).  In  Practice.  The 
causes  which  are  entered  for  trial,  and  which 
cannot  be  tried  during  the  term,  are  rernanets. 
Lee,  Diet.  Trial;  1  Selion,  Pract.  434;  1 
Philllpps,  Ev.  4. 

REMEDIAL.  That  which  affords  a  re- 
medy :  as,  a  remedial  statute,  or  one  which 
is  made  to  supply  some  defects  or  abridge 
some  superfluities  of  the  common  law.  1 
Blackstone,  Comm.  86.  The  term  remedial 
statute  is  also  applied  to  those  acts  which 
give  a  new  remedy.    Espinasse,  Pen.  Act.  1. 

REMEDY.  The  means  employed  to  en- 
force a  right  or  redress  an  injury. 

2.  Remedies  for  non-Julfilm.ent  of  contracts 
are  generally  by  action,  see  Action  ;  As- 
sumpsit; Covenant;  Debt;  Detinue;  or  in 
equity,  in  some  cases,  by  bill  for  specific  per- 
formance. Remedies  for  the  redress  of  inju- 
ries are  either  public,  by  indictment,  when 
the  injury  to  the  individual  or  to  his  property 
affects  the  public,  or  private,  when  the  tort 
is  only  injurious  to  the  individual.  See  In- 
dictment ;  Felony;  Merger  ;  Torts  ;  Civil 
Remedy. 

3.  Remedies  are  preventive  which  seek 
compeiisation,  or  which  have  for  their  object 
punishment.  The  preventive,  or  removing,  or 
abating  remedies  may  be  by  acts  of  the  party 
aggrieved  or  by  the  intervention  of  legal  pro- 
ceedings :  as  in  the  case  of  injuries  to  the 
person  or  to  personal  or  real  property,  de- 
fonce,  resistance,  recaption,  abatement  of  nui- 
sance, and  surety  of  the  peace,  or  injunction  in 
equity,  and  perhaps  some  others.  Remedies 
for  compensation  may  be  either  by  the  acts 
of  the  party  aggrieved,  or  summarily  before 
justices,  or  by  arbitration,  or  action,  or  suit 
at  law  or  in  equity.  Remedies  which  have 
for  their  object  punishments  or  compensation 
and  punishments  are  either  summary  pro- 
ceedings before  magistrates,  or  indictment, 
etc. 

4.  Remedies  are  specific  and  cumulative: 
the  former  are  those  which  can  alone  be 
applied  to  restore  a  right  or  punish  a  crime: 
for  example,  where  a  statute  makes  unlawful 
what  was  lawful  before,  and  gives  a  particu- 
lar remedy,  that  is  specific,  and  must  be  pur- 
sued, and  no  other.  Croke  Jac.  644  ;  1  Salk. 
45;  2  Burr.  803.  But  when  an  offence  was 
antocedently  punishable  by  a  common-law 
proceeding,  as  by  indictment,  and  a  statute 
j-rescribes  a  particular  remedy,  there  such 
particular  remedy  is  cumulative,  and  pro- 
ceedings may  be  had  at  common  law  or  under 
the  statute.    1  Saund.  134,  n.  4. 

REMEMBRANCERS.  In  English 
Law.  Officers  of  the  exchequer,  whose  duty 
it  is  to  remind  the  lord-treasurer  and  the  jus- 
tices of  that  court  of  such  things  as  are  to  be 


called  and  attended  to  for  the  benefit  of  tlu 
crown. 

REMISE,  RELEASE,  AND  QUIT- 
CLAIM.  The  ordinary  effective  words  in 
release.  These  words  are,  in  this  country, 
sufficient  to  pass  the  estate  in  a  primary  con- 
veyance. 7  Conn.  250;  24  N.  H.  460;  21 
Ala.  N.  s.  125 ;  7  N.  Y.  422.  Remise  is  a 
French  word  synonymous  with  release.  See 
Quit-Claim. 

REMISSION  (Lat.  7^e,  back,  mitto,  to 
send). 

In  Civil  Law.    A  release  of  a  debt. 

It  is  conventional  when  it  is  expressly  granted  to 
the  debtor  by  a  creditor  having  a  capacity  to  alien- 
ate; or  tacit,  when  the  creditor  voluntarily  surren- 
ders to  his  debtor  the  original  title,  under  private 
signature,  constituting  the  obligation.  La.  Civ. 
Code,  art.  2195. 

Forgiveness  or  pardon  of  an  offence. 

It  has  the  effect  of  putting  back  the  offender  int« 
the  same  situation  he  was  before  the  commission  of 
the'oflTence.  Remission  is  generally  granted  in 
cases  where  the  offence  was  involuntary  or  com- 
mitted in  self-defence.  Pothier,  Pr.  Civ.  sect.  7 
art.  2,  §  2. 

At  Common  Law.  The  act  by  which  a 
forfeiture  or  penalty  is  forgiven.  10  Wheat. 
246. 

REMIT.    To  annul  a  fine  or  forfeiture. 

This  is  generally  done  by  the  courts  where 
they  have  a  discretion  by  law :  as,  for  ex- 
ample, when  a  juror  is  fined  for  non-attend- 
ance in  court,  after  being  duly  summoned, 
and,  on  appearing,  he  produces  evidence  to 
the  court  that  he  was  sick  and  unable  to  at^ 
tend,  the  fine  will  be  remitted  by  the  court. 

In  Commercial  Law.  To  send  money, 
bills,  or  something  which  will  answer  the 
purpose  of  money. 

REMITTANCE.  In  Commercial  Law. 

Money  sent  by  one  merchant  to  another, 
either  in  specie,  bill  of  exchange,  draft,  or 
otherwise. 

REMITTEE.  A  person  to  whom  a  re- 
mittance is  made.    Story,  Bailm.  §  75. 

REMITTER.  To  be  placed  back  in  pos- 
session. 

When  one  having  a  right  to  lands  is  out 
of  possession,  and  afterwards  the  freehold  is 
cast  upon  him  by  some  defective  title,  and  he 
enters  by  virtue  of  that  title,  the  law  remits 
him  to  his  ancient  and  more  certain  right, 
and,  by  an  equitable  fiction,  supposes  him  to 
have  gained  possession  under  it.  3  Shars- 
wood,  Blackst.  Comm.  190;  Comyns,  Dig, 
Remitter. 

REMITTIT  DAMNA  (Lat.  he  releases 
damages).  An  entry  on  the  record,  by  which 
the  plaintiff  declares  that  he  remits  the  da- 
mages or  a  part  of  the  damages  which  have 
been  awarded  him  by  the  jury,  is  so  called. 

In  some  cases  a  misjoinder  of  actions  may 
be  cured  by  'he  entry  of  a  remittit  damna. 
1  Chitty,  Plead.  '^207. 

REMITTITUR  DAMNUM  or  DAM- 
NA.   In  Practice.    The  act  of  the  plain- 


REMITTITUR  OF  RECORD  437 


tiff  upon  the  record,  whereby  he  abates  or 
remits  the  excess  of  damages  found  by  the 
jury  beyond  tlie  sum  laid  in  the  declaration. 
See  1  Saund.  285,  n.  6 ;  4  Conn.  109  ;  Bouvier, 
Inst.  Index. 

REMITTITUR  OF  RECORD.  After 
a  record  has  been  removed  to  the  supreme 
court,  and  a  judgment  has  been  rendered,  it 
is  to  be  remitted  or  sent  back  to  the  court  be- 
'low,  for  the  purpose  of  re-trying  the  cause, 
when  the  judgment  has  been  reversed,  or  of 
issuing  an  execution  when  it  has  been  affirmed. 
The  act  of  so  returning  the  record,  and  the 
writ  issued  for  that  purpose,  bear  the  name 
of  remittitur. 

REMITTOR.  A  person  who  makes  a  re- 
mittance to  another. 

REMONSTRANCE.  A  petition  to  a 
court  or  deliberative  or  legislative  body,  in 
which  those  who  have  signed  it  request  that 
something  wliich  if  is  in  contemplation- to 
perform  shall  not  be  done. 

REMOTE.  At  a  distance  ;  afar  oif.  See 
Causa  Proxima  ;  Measure  of  Damages. 

REMOVAL  FROM  OFFICE.  A  de- 
privation of  office  by  the  act  t>f  a  competent 
officer  or  of  the  legislature.    It  may  be  ex- 

{)ress,  that  is,  by  a  notification  that  the  officer 
las  been  removed,  or  implied,  by  the  apoint- 
ment  of  another  person  to  the  same  office. 
Ayall.Jr.C.C.118.  See  13  Pet.  130  ;  1  Cranch, 
137. 

REMOVER.  In  Practice.  A  transfer  of 
a  suit  or  cause  out  of  one  court  into  another, 
which  is  effected  by  writ  of  error,  certiorari, 
and  the  like.    11  Coke,  41. 

REMUNERATION.  Reward;  recom- 
pense ;  salary.    Dig.  17.  1.  7. 

RENDER.  To  yield  ;  to  return  ;  to  give 
again:  it  is  the  reverse  of  prender. 

RENDEZVOUS.  A  place  appointed  for 
meeting.  Especially  used  of  places  appoint- 
ed for  the  meeting  of  ships  and  their  convoy, 
and  for  the  meeting  of  soldiers. 

RENEWAL.  A  change  of  something 
.old  for  something  new :  as,  the  renewal  of  a 
note  ;  the  renewal  of  a  lease.  See  Novation  ; 
1  Bouvier,  Inst.  n.  800. 

RENOUNCE.  To  give  up  a  right :  for 
tCsample,  an  executor  may  renounce  the  right 
,of  administering  the  estate  of  the  testator ; 
a  widow,  the  right  to  administer  to  her  intes- 
tate husband's  estate. 

RENOUNCING  PROBATE.  Giving 
up  the  right  to  be  executor  of  a  will,  wherein 
he  has  been  appointed  to  that  office,  by  re- 
fusing to  take  out  probate  of  such  will.  Tol- 
ler, Exec.  42  ;  1  Williams,  Exec.  230,  231 ; 
20  &  21  Vict.  c.  77,  ^  79 ;  21  &  22  Vict.  c. 
94,  §  IC. 

RENT.  A  return  or  compensation  for 
the  possession  of  some  corporeal  inheritance, 
and  is  a  certain  profit,  either  in  money,  pro- 
visions, or  labor,  issuing  out  of  lands  and 
tenemei  ts,  in  return  for  their  use. 


RENT 


Some  of  its  common-law  properties  are  that  it 
must  be  a  profit  to  the  proprietor,  certain  in  ita 
character,  or  capable  of  being  reduced  to  a  cer- 
tainty, issuing  yearly,  that  is,  periodically,  out  of 
the  thing  granted,  and  not  be  part  of  the  land  or 
thing  itself.  Coke,  Litt.  47;  2  Sharswood,  Blackst. 
Comm.  41. 

At  common  law  there  were  three  species  of  rent: 
rent  service,  having  some  corporeal  service  at- 
tached to  the  tenure  of  the  land,  to  which  the  right 
of  distress  was  necessarily  incident;  rent  ehanje, 
which  was  a  reservation  of  rent,  witli  a  clause  author- 
izing its  collection  by  distress  ;  and  rent  hccL-,  where 
there  was  no  such  clause,  but  the  rent  could  only 
be  collected  by  an  ordinary  action  at  law.  These 
distinctions,  however,  for  all  practical  purposes, 
have  become  obsolete,  in  consequence  of  various 
statutes  both  in  England*  and  in  this  country, 
allowing  every  kind  of  rent  to  be  distrained  for 
without  distinction.    See  Taylor,  Landl.  &  T.  ^  370. 

2.  The  payment  of  rent  is  incident  to  every 
tenancy  where  the  relation  of  landlord  and 
tenant  subsists,  except  as  to  mere  tenancies 
at  will  or  by  sufferance,  where  this  relation 
cannot  be  said  to  exist.  And  no  tenant  can 
resist  a  demand  for  rent  unless  he  shows 
that  he  has  been  evicted  or  become  otherwise 
entitled  to  quit  the  premises,  and  has  actually 
done  so,  before  the  rent  in  question  became 
due.  By  the  strictness  of  the  common  law, 
when  a  tenant  has  once  made  an  agreement 
to  pay  rent,  nothing  will  excuse  him  from 
continuing  to  pay,  although  the  premises 
should  be  reduced  to  a  ruinous  condition  by 
some  unavoidable  accident  of  fire,  flood,  or 
tempest.  6  Mass.  63  ;  4  Harr.  &  J.  Md.  564 ; 
3  Johns.  N.  Y.  44;  4  Paige,  Ch.  N.  Y.  355  ; 
3  Du.  N.  Y.  464  ;  5  Barb.  N.  Y.  601 ;  1  Term, 
310 ;  Al.  26 ;  2  Ld.  Raym.  1477 ;  9  Price, 
Exch.  294. 

3.  But  this  severity  of  the  ancient  law 
has  been  somewhat  abated  in  this  country, 
and  in  this  respect  conforms  to  the  more 
reasonable  provisions  of  the  Code  Napoleon, 
art.  1722,  which  declares  that  if  the  thing 
hired  is  destroyed  by  fortuitous  events,  during 
the  continuance  of  the  lease,  the  contract  of 
hiring  is  rescinded,  but  if  it  be  only  destroyed 
in  part,  the  lessee  may,  according  to  circum- 
stances, demand  either  a  diminution  of  the 
rent  or  a  recision  of  the  contract  itself.  The 
same  provision  is  to  be  found  substantially  in 
the  Code  of  Louisiana,  art.  2667,  and  in  the 
act  of  the  legislature  of  New  York  of  1800. 
In  South  Carolina  and  Pennsylvania  it  was 
decided  that  a  tenant  who  had  been  dis- 
possessed by  a  public  enemy  ought  not  to  pay 
rent  for  the  time  the  possession  was  withheld 
from  him  ;  and  in  Maryland  it  has  been  held 
that  where  a  hurricane  rendered  a  house  un- 
tenantable it  Avas  a  good  defence  to  an  action 
for  rent.  But  these  cases  are  evidently  ex- 
ceptions to  the  general  rule  of  law  above 
stated.  1  Bay.  So.  C.  499 ;  5  Watts,  Penn. 
517;  4M'Cord,  So.  C.  447. 

4.  The  quiet  enjo^^ment  of  the  premises, 
unmolested  by  the  landlord,  is  an  implied 
condition  to  the  payment  of  rent.  If,  there- 
fore, he  ousts  the  tenant  from  anv'  consider- 
able portion  of  the  premises,  or  erects  a 
nuisance  of  any  description  upon  or  so  near 


RENT 


438 


RENUNCIATION 


to  them  as  to  oblige  the  tenant  to  remove,  or 
if  the  possession  of  the  land  should  be  re- 
covered by  a  third  person,  by  a  title  superior 
to  that  of  the  landlord,  the  dispossession  in 
cither  ease  amounts  to  an  eviction,  and  dis- 
charges the  obligation  to  pay  rent.  2  Ired. 
No.  C.  350 ;  8  Cow.  N.  Y.  727  ;  3  Ilarr.  N. 
J.  364;  4  R  iwle,  Penn.  339  ;  4  Wend.  N.  Y. 
432  ;  4  Lei  ;h,  Va.  484  ;  24  Barb.  N.  Y.  178  ; 
4  N.  Y.  217  ;  1  Ld.  Raym.  77  ;  1  Term, 
6/1 ;  2  Brod.  &  B.  680 ;  1  Mees.  &  W.  Exch. 
717. 

As  rent  isssues  out  of  the  land,  it  is  said 
to  be  incident  to  the  reversion,  and  the  right 
to  demand  it  necessarily  attaches  itself  to 
the  ownership,  and  follows  a  transfer  of  the 
premises,  and  the  several  parts  thereof,  with- 
out the  consent  of  the  occupant.  Every  oc- 
cupant is  chargeable  with  rent  by  virtue  of 
his  occupation,  whether  he  be  the  tenant  or 
an  assignee  of  the  tenant.  The  original  ten- 
ant cannot  avoid  his  liability  by  transferring 
his  lease  to  another,  but  his  assignee  is  only 
liable  so  long  as  he  remains  in  possession, 
and  may  discharge  himself  by  the  simple  act 
of  assigning  over  to  some  one  else.  14  Wend. 
N.  Y.  63 ;  5  Hill,  N.  Y.  481 ;  1  Nott.  & 
M'C.  So.  C.  104;  12  Pick.  Mass.  4G0 ;  4 
Leigh,  Va.  69  ;  2  Ohio,  221 ;  1  Wash.  C.  C. 
375  ;  1  Rawle,  Penn.  155 ;  3  Barnew.  &  Aid. 
396;  8  East,  316;  8  Taunt.  715;  11  Ad.  & 
E.  403;  Croke  Eliz.  256;  Coke,  Litt.  46  b; 
Croke  Jac.  309,  521;  2  Atk.  Ch.  546;  3 
Campb.  394.  When  rent  will  be  apportioned, 
see  Apportionment  ;  Landlord  and  Ten- 
ant. 

5.  The  day  of  payment  depends,  in  the 
first  instance,  upon  the  contract:  if  this  is 
silent  in  that  respect,  rent  is  payable  quar- 
terly or  half-yearly,  according  to  the  custom 
of  the  country;  but  if  there  be  no  usage  gov- 
erning the  case,  it  is  not  due  until  the  end  of 
the  term.  Formerly  it  was  payable  before  sun- 
set of  the  day  whereon  it  was  to  be  paid,  on 
the  reasonable  ground  that  sufficient  light 
should  remain  to  enable  the  parties  to  count 
the  money  ;  but  now  it  is  not  considered  due 
until  midnight  or  the  last  minute  of  the  natu- 
ral day  on  which  it  is  made  payable.  This 
rule,  however,  may  be  varied  by  the  custom 
of  different  places.  Coke.  Litt.  202  a;  1 
Saund.  287  ;  15  Pick.  Mass.  147  ;  5  Serg.  & 
R.  Penn.  432  ;  3  Kent,  Comm.  374  ;  2  Madd. 
Ch.  268.    And  see  Forfeiture  ;  Re-Entry. 

When  rent  is  payable  in  money,  it  must 
Btrictly  be  made  in  the  gold  and  silver  coin 
made  current  by  the  laws  of  congress.  Such 
coin  as  is  issued  from  the  mint  may  be  counted, 
and  the  creditor  must  take  it  at  its  nominal 
value ;  but  with  respect  to  foreign  coin  he 
may  decline  to  receive  it  except  by  its  true 
weight  and  value.  Bank-notes  constitute 
part  of  the  currency  of  the  country,  and 
ordinarily  pass  as  money,  and  are  a  good  ten- 
der, unless  specially  objected  to  by  the  cre- 
ditor at  the  time  of  the  offer.  10  Wheat. 
347.  If  the  contract  specifies  a  place  of  pay- 
ment, a  tender  of  rent,  whether  in  money  or 
iu  kind,  must  be  made  at  that  place;  but,  if 


no  place  is  specified,  a  tender  of  either  on  the 
land  will  be  sufficient  to  prevent  a  forfeiture. 
16  Term,  222  ;  6  Cow.  728  ;  4  Wend.  313  ;  IG  : 
N.  Y.  80  ;  4  Taunt.  555.     See,  generally,  j 
Bacon,  Abr. ;  Bouvier,  Ii^t.  Index  ;  Wa^h 
burn.  Real  Prop.;  Distress;  Re-Extry. 

RENT  CHARGE.  A  rent  reserved  with 
a  power  of  enforcing  its  payment  by  distress. 

RENT-ROLL.  A  list  of  rents  payable  , 
to  a  particular  person  or  public  body.  i 

RENT  SECK.  A  rent  collectable  only  i 
by  action  at  law  in  case  of  non-payment.  j 

RENT  SERVICE.     A  rent  embracing 
some  corporal  service  attendant  upon  the  ' 
tenure  of  the  land.    Distress  was  necessarily 
incident  to  such  a  rent. 

RENT,  ISSUES,  AND  PROFITS. 
The  profits  arising  from  property  generally, 
Mass.  Gen.  Stat.  1860,  p.  537  ;  N.  Y.  Rev. 
Stat.,  Stat,  of  1849  for  better  protection  of 
property  of  married  women. 

This  phrase  in  the  Vermont  statute  has 
been  held  not  to  cover  "  yearly  profits."  26 
Vt.  741.  See  Construction,  and  the  separate 
titles. 

RENTAL.'  A  roll  or  list  of  the  rents  of 
an  estate,  containing  the  description  of  the 
lands  let,  the  names  of  the  tenants,  and  other  , 
particulars  connected  with  such  estate.  This  ■ 
is  the  same  as  rent-roll,  from  which  it  is  said  • 
to  be  corrupted.  ' 

RENTE.    In  French  Law.    A  word 
nearly  synonymous  with  our  word  annuity.  . 

RENTE  FONCIERE.    In  French  \ 
Law.    A  rent  which  issues  out  of  land ;  and 
it  is  of  its  essence  that  it  be  perpetual,  for  if  ; 
it  be  made  but  for  a  limited  time  it  is  a  lease. 
It  may,  however,  be  extinguished.    La.  Civ. 
Code,  art.  2750,  2759  ;  Pothier.  See  Ground-  ' 
Rent.  i 

RENTE  VIAGERE.  In  French  Law.  j 
An  annuity  for  life.  La.  Civ.  Code,  art.  \ 
2764;  Pothier,  Rente,  n.  215.  \ 

RENUNCIATION.  The  act  of  giving  ; 
up  a  right.  ' 

2.  It  is  a  rule  of  law  that  any  one  may 
renounce  a  right  which  the  lawhas  established 
in  his  favor.  To  this  maxim  there  are  many 
limitations.  A  party  may  always  renounce 
an  acquired  right:  as,  for  example,  to  take 
lands  by  descent;  but  one  cannot  always 
give  up  a  future  right  before  it  has  accrued, 
nor  to  the  benefit  conferred  by  law,  although 
such  advantage  may  be  introduced  only  for 
the  benefit  of  individuals. 

3.  For  example,  the  power  of  making  a 
will,  the  right  of  annulling  a  future  con- 
tract on  the  ground  of  fraud,  and  the  right  of 
pleading  the  act  of  limitations,  cannot  be 
renounced.  The  first,  because  the  party  musi 
be  left  free  to  make  a  will  or  not ;  and  the 
latter  two,  because  the  right  has  not  yet 
accrued. 

4.  This  term  is  usually  employed  to  sig 
nify  the  abdication  or  giving  up  of  one's 
country  at  the  time  of  choosing  another.  The 


REPAIRS 


439 


REPETITION 


act  of  congress  requires  from  a  foreigner  who 
applies  to  become  naturalized  a  renunciation 
of  all  allegiance  and  fidelity  to  any  foreign 
prince,  potentate,  state,  or  sovereignty  whereof 
such  alien  may  at  the  time  be  a  citizen  or 
subject.     See  Citizen  ;  Expatriation  ;  Na- 

TrRALIZATION. 

REPAIRS.  That  work  which  is  done  to 
an  estate  to  keep  it  in  good  order. 

2.  What  a  party  is  bound  to  do,  when  the 
law  imposes  upon  him  the  duty  to  make  neces- 
sary repairs,  does  not  appear  to  be  very  ac- 
curately defined.  Natural  and  unavoidable 
decay  in  the  buildings  must  always  be  allowed 
for,  when  there  is  no  express  covenant  to  the 
contrary  ;  and  it  seems  the  lessee  will  satisfy 
the  obligation  the  law  imposes  on  him  by 
delivering  the  premises  at  the  expiration  of 
his  tenancy  in  a  habitable  state.  Questions 
in  relation  to  repairs  most  frequently  arise 
between  the  landlord  and  tenant. 

3.  When  there  is  no  express  agreement 
between  the  parties,  the  tenant  is  always 
required  to  do  the  necessary  repairs.  Wood- 
fall,  Landl.  &  T.  244 ;  6  Cow.  N.  Y.  475.  He 
is,  therefore,  bound  to  put  in  windows  or 
doors  that  have  been  broken  by  him,  so  as  to 
prevent  any  decay  of  the  pre/nises;  but  he  is 
not  required  to  put  a  new  roof  on  an  old  worn- 
out  house.    2  Esp.  590. 

4.  An  express  covenant  on  the  part  of  the 
lessee  to  keep  a  house  in  repair,  and  leave  it 
in  as  good  a  plight  as  it  was  when  the  lease 
was  made,  does  not  bind  him  to  repair  the 
ordinary  and  natural  decay.  Woodfall,  Landl. 
&  T.  256.  See  7  Gray,  Mass.  550.  And  it  has 
been  held  that  such  a  covenant  does  not  bind 
him  to  rebuild  a  house  which  had  been  de- 
stroyed bv  a  public  enemy.  1  Dall.  Penn.  210. 
See  1  Dy";  33  a. 

5.  As  to  the  time  when  the  repairs  are  to 
be  made,  it  would  seem  reasonable  that  when 
the  lessor  is  bound  to  make  them  he  should 
have  the  right  to  enter  and  make  them,  when 
a  delay  until  after  the  expiration  of  the  lease 
would  be  injurious  to  the  estate  ;  but  when 
no  such  damage  exists,  the  landlord  should 
have  no  right  to  enter  without  the  consent  of 
the  tenant.  See  18  Toullier,  n.  297.  When 
a  house  has  been  destroyed  by  accidental 
fire,  neither  the  tenant  m  r  the  landlord  is 
bound  to  rebuild,  unless  obliged  by  some 
agreement  so  to  do.  4  Paige,  Ch.  N.  Y.  355  ; 
1  Term,  708;  Fonblanque,  b.  1,  c.  5,  s.  8. 
See  6  Term,  650;  4  Campb.  275;  Com. 
627;  2  Show.  401;  3Ves.Ch.34;  Coke,  Litt. 
27  a,  note  1 ;  3  Johns.  N.  Y.  44  ;  6  Mass.  63  ; 
Piatt,  Gov.  266  ;  Comyns,  Dig.  Condition 
(L  12)  ;  La.  Civ.  Code,  2070 ;  1  Saund.  322, 
n.  1,  323,  n.  7  ;  2  id.  158  6.  u.  7  &  30 ;  Bou- 
vier,  Inst.  Index. 

REPARATION.  The  redress  of  an 
injury;  amends  for  a  tort  inflicted.  See 
Remedy. 

REPARATIONE  FACIENDA, 
WRIT  DE  (Lat.).  The  name  of  an  ancient 
writ,  which  lies  by  one  or  more  joint  tenants 
against  the  other  joint  tenants,  or  by  a  per- 


son owning  a  house  or  building  against  tha 
owner  of  the  adjoining  building,  to  com 
pel  the  reparation  of  such  joint  property. 
Fitzhcrbert,  Nat.  Brev.  295. 

REPEAL.  The  abrogation  or  destruction 
of  a  law  by  a  legislative  act. 

A  repeal  is  express,  as,  when  it  is 
literally  declared  by  a  subsequent  law,  or 
implied,  when  the  new  law  contains  p>ro- 
visions  contrary  to  or  irreconcilable  with 
those  of  the  former  law. 

A  law  may  be  repealed  by  implication,  by 
an  affirmative  as  well  as  by  a  negative  sta 
tute,  if  the  substance  is  inconsistent  with  the 
old  statute.  1  Ohio,  10;  2  Bibb,  Ky.  96; 
Harp.  So.  C.  101 ;  4  Wash.  C.  C.  691. 

3.  It  is  a  general  rule  that  when  a  penal 
statute  punishes  an  ofi"ence  by  a  certain  pen- 
alty, and  a  new  statute  is  passed  imposing 
a  greater  or  a  lesser  penalty  for  the  same 
offence,  the  former  statute  is  repealed  by 
implication.  5  Pick.  Mass.  168  ;  21  id.  373  ; 
3  Halst.  48 ;  1  Stew.  506  ;  3  A.  K.  Marsh. 
70.  See  1  Binn.  Penn.  601;  Bacon,  Abr. 
Statute  (D) ;  7  Mass.  140. 

By  the  common  law,  when  a  statute  repeals 
another,  and  afterwards  the  repealing  statute 
is  itself  repealed,  the  first  is  revived.  2  Blackf. 
Ind.  32.  In  some  states  this  rule  has  been 
changed,  as  in  Ohio  and  Louisiana.  La.  Civ. 
Code,  art.  23. 

4.  When  a  law  is  repealed,  it  leaves  all 
the  civil  rights  of  the  parties  acquired  under 
the  law  unaffected.  3  La.  337 ;  4  id.  191 ;  2 
South.  N.  J.  689 ;  Breese,  111.  App.  29 ;  2 
Stew.  Ala.  160. 

When  a  penal  statute  is  repealed  or  so  mo- 
dified as  to  exempt  a  class  from  its  operation^ 
violations  committed  before  the  repeal  are 
also  exempted,  unless  specifically  reserved, 
or  unless  there  have  been  some  private  right 
vested  by  it.  2  Dan.  Ky.  330;  4  Yeates, 
Penn.  392 ;  5  Rand.  Va.  657  ;  1  Wash.  C.  C. 
84 ;  2  Va.  Cas.  382. 

REPERTORY.    In  French  Law.  A 

word  used  to  denote  the  inventory  or  minutes 
which  notaries  are  required  to  make  of  ail 
contracts  which  take  place  before  them.  Dal- 
loz,  Diet. 

REPETITION.    In  Civil  Law.  The 

act  by  which  a  person  demands  and  seeks  to 
recover  what  he  has  paid  by  mistake  or  de^ 
livered  on  a  condition  which  has  not  been 
performed.    Dig.  12.  4.  5. 

The  name  of  an  action  which  lies  to  re- 
cover the  payment  which  has  been  made  by 
mistake,  when  nothing  was  due. 

Repetition  is  never  admitted  in  relation  to 
natural  obligations  which  have  been  volun- 
tarily acquitted,  if  the  debtor  had  capacity 
to  give  his  consent.    6  Toullier,  386. 

In  order  to  entitle  the  payer  to  recover 
back  money  paid  by  mistake,  it  must  have 
been  paid  by  him  to  a  person  to  whom  he  did 
not  owe  it,  for  otherwise  he  cannot  recover  it 
back, — the  creditor  having,  in  such  case,  the 
just  right  to  retain  the  money,  hepeiitio 
nidla  est  ah  eo  qui  suum  recepii. 


REPLEADER 


440 


REPLEVIN 


How  far  money  paid  under  a  mistake  of 
law  is  liable  to  repetition  has  been  discussed 
hy  civilians;  and  opinions  on  this  subject  are 
divided.  2  Pothier,  Obi.  Evans  ed.  369,  408- 
437;  1  Story,  Eq.  Plead.  ^111,  note  2. 

In  Scotch  Law.  The  act  of  reading 
over  a  witness's  deposition,  in  order  that  he 
may  adhere  to  it  or  correct  it,  at  his  choice. 
The  same  as  7'ecoJement  {q.  v.)  in  the  French 
law.  2  Bentham,  Ev.  b.  3,  c.  12,  p.  239.  See 
Legacy. 

REPLEADER.  In  Pleading.  Making 
a  new  series  of  pleadings. 

Judgment  of  repleader  differs  from  a  judgment  noji- 
obstante  veredicto  in  this:  that  it  is  allowed  by  the 
court  to  do  justice  between  the  parties  where  the 
defect  is  in  the  form  or  manner  of  stating  the  right, 
and  the  issue  joined  is  on  an  immaterial  point,  so 
that  it  cannot  tell  for  whom  to  give  judgment,  7 
Mass.  312;  3  Pick.  Mass.  124;  19  id.  419;  while 
judgment  nan  obstante  is  given  only  where  it  is 
clearly  apparent  to  the  court  that  the  party  who 
has  succeeded  has,  upon  his  own  showing,  no  me- 
rits, and  cannot  have  by  any  manner  of  statement. 
1  Chitty,  Plead.  568.    See  15  Ark.  194. 

2.  It  may  be  ordered  by  the  court  for  the 
purpose  of  obtaining  a  better  issue,  if  it  will 
effect  substantial  justice  where  issue  has  been 
reached  on  an  immaterial  point.  3  Bos.  &  P. 
353 ;  2  Johns.  N.  Y.  388;  6  id.  1 ;  16  id.  230 ; 
8  Hen.  &  M.  Va.  118,  161.  As  a  plea  of  pay- 
ment on  a  given  day  to  an  action  on  a  bond 
conditioned  to  pay  on  or  before  that  day.  2 
Strange,  994.  It  is  not  to  be  allowed  till 
after  trial  for  a  defect  which  is  aided  by  ver- 
dict. 2  Salk.  579;  2  Saund.  319  b;  Bacon, 
Abr.  Pleas.  If  granted  or  denied  where  it 
should  not  be,  it  is  error.  2  Salk.  579.  See 
'9  Ala.  N.  s.  198. 

The  judgment  is  general,  and  the  parties 
must  begin  at  the  first  fault  which  occasioned 
the  immaterial  issue,  1  Ld.  Raym.  169  ;  en- 
tirely anew,  if  the  declaration  is  imperfect,  1 
Chitty,  Plead.  568 ;  that  the  action  must  be 
dismissed  in  such  case,  1  Wash.  Va.  135,  with 
the  replication,  if  that  be  faulty  and  the  bar 
be  good.  3  Kebl.664;  1  Wash.Va.  155.  No 
costs  are  allowed  to  either  side.  2  Ventr. 
196 ;  6  Term,  131 ;  2  Bos.  &  P.  376. 

3.  It  cannot  be  awarded  after  a  default  at 
nisi  prius,  1  Chitty,  Plea.d.  568,  nor  M'here 
the  court  can  give  judgment  on  the  whole  re- 
cord, Willes,  532,  nor  after  demurrer,  2  Mass. 
81  ;  8  id.  488,  unless,  perhaps,  where  the 
bar  and  replication  are  bad,  Croke  Eliz. 
318;  1  And.  167;  7  Me.  302,  nor  after  writ 
of  error,  without  the  consent  of  the  parties, 
3  Salk.  306,  nor  at  any  time  in  favor  of  the 
person  who  made  the  first  fault,  1  Ld.  Raym. 
170;  Dougl.  396  ;  1  llempst.  268:  1  Ilumphr. 
Tenn.  85  ;  6  Blackf.  Ind.  375  ;  see  3  Hen.  & 
M.  Va.  388,  nor  after  judgment,  1  Tyl.  Vt. 
146.  The  same  end  is  secured  in  many  of 
the  states  by  statutes  allowing  amendments. 
See,  generally,  Tidd,  Pract.  813,  814;  Co- 
myns.  Dig.  Pleader  (R  18);  Bacon,  Abr. 
Pleas  (Ml. 

REPLEGIARE  (Lat.).  To  replevy;  to 
redeem  a  thing  detained  or  taken  by  another, 
by  putting  in  legal  sureties. 


REPLEGIARE  DE  AVERIIS  (Lat  , 
A  writ  brought  by  one  whose  cattle  are  im- 
pounded or  distrained,  upon  security  given 
to  the  sheriff  to  pursue  or  answer  the  action 
at  law.  7  Hen.  VIII.  c.  4;  Fitzherbert,  Nat. 
Brev.  68;  New  Book  of  Entries,  Eeplevin; 
Dy.  173 ;  Reg.  Orig.  81. 

REPLEGIARE  FACIAS  (Lat.).  Awrit 

of  replevin,  which  issued  out  of  chancery, 
commanding  the  sheriff  to  deliver  the  distress 
to  the  owner,  and  afterwards  to  do  justice  in 
regard  to  the  matter  in  his  own  county  court. 
It  was  abolished  by  statute  of  Marlbridge, 
which  provided  a  shorter  process.  3  Shars- 
wood,  Blackst.  Comm.  147*. 

REPLEVIN.  In  Practice.  A  form  of 
action  which  lies  to  regain  the  possession  of 
personal  chattels  which  have  been  taken  from 
the  plaintiff  unlawfully. 

The  action  originally  lay  for  the  purpose  of  reco- 
vering chattels  taken  as  a  distress,  but  has  acquired 
a  much  more  extended  use.  In  England  and  most 
of  the  states  of  the  United  States  it  extends  to  all  cases 
of  illegal  taking,  and  in  some  of  the  states  it  may  be 
brought  wherever  a  person  wishes  to  recover  spe- 
cific good  s  to  which  he  alleges  title.  See,  beyond,  ^  4. 

By  virtue  of  the  writ,  the  sheriff  proceeds  at  once 
to  take  possession  of  the  property  therein  described 
and  transfer  it  to  the  plaintiff,  upon  his  giving 
pledges  which  are  satisfactory  to  the  sheriff  to 
prove  his  title,  or  return  the  chattels  taken  if  he 
fail  so  to  do.  It  is  said  to  have  laid  formerly  in 
the  dethmit,  which  is  the  only  form  now  found  at 
common  law,  and  also  in  the  detinet,  where  the  de- 
fendant retained  possession,  and  the  sheriff  pro- 
ceeded to  take  possession  and  deliver  the  property 
to  the  plaintiff  after  a  trial  and  proof  of  title.  Eul- 
ler,  Nisi  P.  62;  Chitty,  Plead.  145;  3  Sharswood, 
Blackst.  Comm.  146;  Detinet;  Detinuit. 

It  differs  from  detinue  in  this :  that  it  requires 
an  unlawful  taking  as  the  foundation  of  the  action  ; 
and  from  all  other  personal  actions  in  that  it  is 
brought  to  recover  the  possession  of  the  specific 
property  claimed  to  have  been  unlawfully  taken. 

2.  The  action  lies  to  recover  personal  pro- 
perty, 19  Penn.  St.  71 ;  including  parish  re- 
cords, 11  Pick.  Mass.  492  ;  21  id.  148  ;  trees 
after  they  have  been  cut  down,  3  Den.  N.  Y. 
79  ;  2  Barb.  N.  Y.  613  ;  9  Mo.  259  ;  13  111. 
192 ;  records  of  a  corporation,  5  Ind.  165 ; 
articles  which  might  be  fixtures  under  some 
circumstances,  4  N.  J.  287  ;  which  can  be  spe- 
cijically  distinguished  from  all  other  chattels 
of  the  same  kind  by  indicia  or  ear-marks,  18 
111.  286 ;  including  money  tied  up  in  a  bag 
and  taken  in  that  state,  2  Mod.  61 ;  trees  cut 
into  boards,  30^  Me.^  370 ;  13  111.  192 ;  but 
does  not  lie  for  injuries  to  things  annexed  to 
the  realty,  4  Term,  504 :  2  M'Cord,  329 ;  17 
Johns.  N.  Y.  116;  10  B.  Monr.  Ky.  72  ;  nor 
to  recover  such  things,  if  dissevered  and  re- 
moved as  part  of  the  same  act,  2  Watts,  Penn, 
126  ;  3  Serg.  &  R.  Penn.  509  ;  6  id.  476  ;  10 
id.  114;  6  Me.  427  ;  8  Cow.  N.  Y.  220;  nor  for 
writings  concerning  the  realty.  1  Brownl.  168. 

A  general  property  with  the  right  to  im- 
mediate possession  gives  the  plaintiff  sufficient 
title  to  maintain  it,  1  Harr.  &  J.  Md.  469; 
3  Wend.  N.  Y.  280 ;  1  Hill,  N.  Y.  473 ;  2 
Blackf.  Ind.  172;  15  Pick.  Mass.  63;  9  Gill 
&  J.  Md.  220;  2  Ark.  315;  11  id.  475;  4 


REPLEVIN 


441 


REPLICATION 


Blackf.  Lid.  304;  8  Dan.  Ky.  2G8  ;  27  Miss. 
108;  2  Swan,  Tenn.  358  ;  see  9  Pick.  Mass. 
441 :  24  id.  42 ;  2  Murph.  No.  C.  357  ;  as  do 
a  special  propei-ty  and  actual  possession.  2 
Watts,  Penn.  110  ;  2  Ark.  315  ;  4  Blackf.  Ind. 
304;  10  Mo.  277  ;  9  llumphr.  Tenn.  739  ;  2 
Ohio  St.  82.    See  15  Penn.  St.  507. 

3.  It  will  not  lie  for  the  defendant  in 
another  action  to  recover  goods  belonging  to 
him  and  taken  on  attachment,  5  Coke,  99  ;  20 
Johns.  N.  Y.  470;  12  Am.  Jur.  104;  2  N. 
H.  412  ;  2  B.  Monr.  Ky.  18  ;  4  id.  92  ;  3  Md. 
64;  nor,  generally,  for  goods  properly  in  the 
custody  of  the  law.  2  Nott  &  M'C.  So.  C. 
45G;  7  Ilarr.  &  J.  Md.  55;  3  Md.  54;  7 
Watts,  Penn.  173  ;  4  Ark.  525  ;  8  Ired.  No.  C. 
887;  16  How.  022;  3  Mich.  163  ;  1  Ilempst. 
C.  C.  10  ;  2  Wise.  92  ;  1  Sneed,  Tenn.  390 ; 
but  this  rule  does  not  prevent  a  third  person, 
whose  goods  have  been  improperly  attached 
in  such  suit,  from  bringing  this  action.  5 
Mass.  280  ;  4  Pick.  Mass.  167  ;  9  Cow.  N.  Y. 
259  ;  14  Johns.  N.  Y.  84  ;  20  id.  465  ;  6  Ilalst. 
N.  J.  370;  2  Blackf.  Ind.  172;  7  Ohio,  133; 
10  id.  431 ;  19  Me.  255;  9  Gill  &  J.  Md.  220; 
24  yt.  371. 

As  to  the  rights  of  co-tenants  to  bring  this 
action  as  against  each  other,  see  1  Ilarr.  &  G. 
Md.  308;  12  Conn.  331  ;  15  Pick.  Mass.  71 ; 
as  against  strangers,  see  4  Mas.  C.  C.  515  ; 
12  Wend.  N.  Y.  131 ;  15  Me.  245  ;  2  N.  J. 
552;  27  N.  H.  220;  6  Ind.  414. 

4.  The  action  lies,  in  England  and  most 
of  the  United  States,  wherever  there  has  been 
an  illegal  taking,  18  Eng.  L.  &  Eq.  230 ;  7 
Johns.  N.  Y.  140 ;  14  id.  87  ;  5  Mass.  283 ; 

1  Dall.  Penn.  157  ;  6  Binn,  Penn.  2 ;  3  Serg. 
&  R.  Penn.  562  ;  1  Mas.  C.  C.  319  ;  11  Me. 
28  ;  27  id.  453  ;  2  Blackf.  Ind.  415  ;  1  Const. 
So.  C.  401  ;  3  N.  H.  36 ;  10  Johns.  N.  Y. 
369  ;  6  Halst.  N.  J.  370 ;  1  111.  130  ;  1  Mo. 
345  ;  6  T.  B.  Monr.  Ky.  421 ;  6  Ark.  18 ;  4 
Harr.  Del.  327  ;  see  1  Ala.  277  ;  and  in  some 
states  wherever  a  person  claims  title  to  spe- 
cific chattels  in  another's  possession,  2  Harr. 
&  J.  Md.  429 ;  4  Me.  306  ;  15  Mass.  359  ;  16 
id.  147  ;  17  id.  666 ;  1  Dall.  Penn.  156  ;  1 
Penn.  St.  238:  Wright,  Ohio,  159;  11  Me. 
216  ;  4  Harr.  N.  J.  160  ;  4  Mo.  93  ;  8  Blackf. 
Ind.  244 ;  11  Ark.  249  ;  1  Hempst.  C.  C.  10 ; 
4  R.  I.  539  ;  while  in  others  it  is  restricted  to 
a  few  cases  of  illegal  seizure.  9  Conn.  140 ; 
3  Rand.  Va.  448 ;  16  Miss.  279  ;  8  Rich.  So.  C. 
106  ;  4  Mich.  295.  The  object  of  the  action 
is  to  recover  possession ;  and  it  will  not  lie 
where  the  property  has  been  restored.  And 
when  brought  in  the  detinet  the  destruction 
of  the  articles  by  the  defendant  is  no  answer  to 
the  action.  3  Sharswood,  Blackst.  Comm.  147. 

5.  The  declaration  must  describe  the  place 
of  taking.  Great  accuracy  was  formerly  re- 
quired in  this  respect,  2  Wms.  Saund.  74  b; 

2  Chitty,  Plead.  411;  10  Johns.  N.  Y.  53; 
but  now  a  statement  of  the  county  in  which 
it  occurred  is  said  to  be  sufficient.  1  P.  A. 
Browne,  Penn.  60. 

The  chattels  must  be  accurately  described 
in  the  writ.  6  Halst.  N.  J.  179 ;  1  Harr.  & 
G.  Md.  252;  4  Blackf.  Ind.  70;  1  Mich.  92. 


The  j>/ea  of  non  cepit  puts  in  issue  the 
taking,  and  not  the  plaintiff's  title.  6  Ired. 
No.  C.  38;  25  Me.  464;  3  N.  Y.  50C ;  2 
Fla.  42;  12  111.  378;  and  the  picas  not 
guilty,  9  Mo.  256,  cepit  in  alio  loco,  and  pro- 
perty in  another  are  also  of  frequent  occur- 
rence. 

An  avowry,  cognizance,  or  justification  are 
often  used  in  defence.    See  those  titles. 

The  judgment  when  the  action  is  in  the  de- 
tinuit,  if  lor  the  plaintiff,  confirms  his  title, 
and  is  also  for  damages  assessed  by  the  jury 
for  the  injurious  taking  and  detention.  1 
Watts  &  S.  Penn.  513  ;  20  Wend.  N.  Y.  172; 
15  Me.  20  ;  1  Ark.  557 ;  5  Ired.  No.  C.  192. 
See  Judgment,  §  15. 

REPLEVY.  To  re-deliver  goods  which 
have  been  distrained  to  the  original  possessor 
of  them,  on  his  giving  pledges  in  an  action 
of  replevin.  It  signifies  also  the  bailing  or 
liberating  a  man  from  prison,  on  his  finding 
bail  to  answer.    See  Rei'levin. 

REPLIANT.  One  who  makes  a  replica- 
tion. 

REPLICATION  (Lat.  replicare,  to  fold 
backj. 

In  Pleading.  The  plaintiff's  answer  to 
the  defendant's  plea  or  answer. 

In  Equity.  The  plaintiff's  avoidance  or 
denial  of  the  answer  or  defence.  Story,  Eq. 
PI.  g  877. 

A  general  replication  is  a  general  denial  of 
the  truth  of  the  defendant's  plea  or  answer, 
and  of  the  sufficiency  of  the  matter  alleged 
in  it  to  bar  the  plaintiff's  suit,  and  an  asser- 
tion of  the  truth  and  sufficiency  of  the  bill. 
Cooper,  Eq.  PI.  329,  330. 

A  special  replication  was  one  which  intro- 
duced new  matter  to  avoid  the  defendant's 
answer.  It  might  be  followed  by  rejoinder, 
surrejoinder,  and  rebutter.  Special  replica- 
tions have  been  superseded  by  the  practice 
of  amending  bills.  1  Hoav.  Intr.  55  ;  17  Pet. 
App.  68.  A  replication  must  be  made  use 
of  ^  where  the  plaintiff  intends  to  introduce 
evidence,  and  a  subpoena  to  the  defendant  to 
rejoin  must  be  added,  unless  he  will  appear 
gratis.    Story,  Eq.  PI.  ^  879. 

A  replication  may  be  filed  nunc  pro  tunc 
after  witnesses  have  been  examined  under 
leave  of  court.  Story,  Eq.  PI.  §  881 ;  Mit- 
ford,  Eq.  Plead,  by  Jeremy,  323. 

At  Law.  The  plaintiff's  reply  to  the 
defendant's  plea.  It  contains  a  statement 
of  matter,  consistent  with  the  declaration, 
which  avoids  the  effect  of  the  defendant's 
plea  or  constitutes  a  joinder  in  issue  thereon. 

2.  It  is,  in  general,  governed  by  the  plea, 
whether  dilatory  or  in  bar,  and  most  fre- 
quently denies  it.  When  the  plea  concludes 
to  the  country,  the  plaintiff  must  generally 
reply  by  a  similiter.  SeeSuiiLiTER;  1  Hempst. 
C.  C.  67.  When  it  concludes  with  a  verifi- 
cation, the  plaintiff  may  either  conclude  the 
defendant  by  matter  of  estoppel,  deny  the 
truth  of  the  plea  in  whole  or  in  part,  confess 
and  avoid  the  plea,  or  new  assign  the  cause 
of  action  in  case  of  an  evasive  plea.  It? 


REPLICATION 


442 


REPORTS 


character  varies  with  the  form  of  action  and 
the  facts  of  the  case.  See  1  Chitty,  Plead. 
519. 

As  to  the  form  of  the  replication: 

The  title  contains  the  name  of  the  court, 
and  the  term  of  which  it  is  pleaded,  and 
in  the  margin  the  names  of  the  plaintiif  and 
defendant.    2  Chitty,  Plead.  641. 

llie  commencement  is  that  part  which  im- 
mediately follows  the  title,  and  contains  a 
general  denial  of  the  effect  of  the  defendant's 
plea.  When  the  plea  is  to  the  jurisdiction, 
it  contains  a  statement  that  the  writ  ought  not 
to  be  quashed,  or  that  the  court  ought  not  to 
be  ousted  of  their  jurisdiction.  Rastell,  Entr. 
101.  When  misnomer  is  pleaded,  no  such 
allegation  is  required.    1  Bos.  &  P.  61. 

When  matter  in  estoppel  is  replied,  it  is, 
in  general,  in  the  words  "  and  the  said  plain- 
tiff saith  that  the  said  defendant." 

When  the  replication  denies  or  confesses 
and  avoids  the  plea,  it  contains  aprecludi  non, 
which  see. 

3.  TAe  bodi/  should  contain — 

Matter  of  estoppel,  which  should  be  set  forth 
in  the  replication  if  it  does  not  appear  from 
the  previous  pleadings:  as,  if  the  matter  has 
been  tried  upon  a  particular  issue  in  trespass 
and  found  by  the  jury,  3  East,  346 ;  4  Mass. 
443  ;  4  Dan.  Ky.  73  ;  denial  of  the  truth  of 
the  plea,  either  of  the  whole  plea,  which  may 
be  by  a  denial  of  the  fact  or  facts  constituting 
a  single  point  in  express  words,  12  Barb. 
N.  Y.  573  ;  36  N.  H.  232 ;  28  Vt.  279  ;  I 
Humphr.  Tenn.  524 ;  or  by  the  general  repli- 
cation and  injuria,  etc.,  according  to  the 
form  of  action,  1  Chitty,  Plead.  525  ;  8  Coke, 
67  ;  1  Bos.  &  P.  79  ;  13  111.  80  ;  19  Vt.  329  ; 
or  of  a  part  of  the  plea,  which  may  be  of  any 
material  fact,  20  Johns.  N.  Y.  406  ;  13  T.  B. 
Monr.  Ky.  288,  and  of  such  onlv,  20  N.  H.  323 ; 
21  id.  425  ;  37  Eng.  L.  &  Eq.  479  ;  9  Gill,  Md. 
310 ;  3  Pet.  31 ;  or  of  matter  of  right  result- 
ing from  facts,  2  W.  Blackst.  776  ;  1  Saund. 
23  a,  n.  5  ;  10  Ark.  147  ;  see  2  Iowa,  120 ; 
and  see  Traverse  ;  a  confession  and  avoid- 
ance, 23  N.  H.  535  ;  2  Den.  N.  Y.  97 ;  10 
Mass.  226  ;  see  Confession  and  Avoidance  ; 
a  new  assignment,  which  see. 

4.  The  conclusion  should  be  to  the  country 
when  the  replication  denies  the  whole  of  the 
defendant's  plea  containing  matter  of  fact,  2 
McLean,  C.  C.  92 ;  7  Pick.  Mass.  1 17 ;  1  Johns. 
N.  Y.  516,  as  well  where  the  plea  is  to  the 
jurisdiction,  Clifton,  Entr.  17  ;  1  Chitty,  Plead. 
385,  as  in  bar,  1  Chitty,  Plead.  554;  but 
with  a  verification  when  new  matter  is  intro- 
duced. 1  Saund.  103,  n. ;  17  Pick.  Mass.  87  ; 
1  Brev.  No.  C.  11;  11  Johns.  N.  Y.  56.  See 
6  Ind.  264.  The  conclusions  in  particular 
cases  are  stated  in  1  Chitty,  Plead.  615  et  seq.; 
Comyns,  Dig.  Pleader  (F  5).  See  1  Saund. 
103,  n.;  2  Caines,  N.  Y.  60;  1  Johns.  N.  Y. 
516  ;  2  id.  428  ;  Arch])old,  Civ.  Plead.  258  ; 
19  Viner,  Abr.  20 ;  Bacon,  Abr.  Trespass 
(I  4);  Doctrina  Plac.  428;  Beames,  Eq. 
Plead.  247,  325,  326. 

As  to  the  qualities  of  a  replication.  It 
must  be  responsive  to  the  defendant's  plea, 


17  Ark.  365  ;  4  McLean,  C.  C.  521 ;  answer 
ing  all  which  it  professes  to  answer,  12  Ark. 
183  ;  8  Ala.  n.  s.  375  ;  and  if  bad  in  part  is 
bad  altogether,  1  Saund.  338  ;  7  Cranch,  156; 
32  Ala.  N.  s.  506 ;  directly,  10  East,  205  ;  see 
7  Blackf.  Ind.  481 ;  without  departing  from 
the  allegations  of  the  declaration  in  any 
material  matter,  2  Watts,  Penn.  306  ;  4  Munf. 
205 ;  2  Root,  Conn.  388 ;  Hill  &  D.  N.  Y.  340; 
22  N.  H.  303  ;  5  Blackf.  Ind.  306  ;  4  M'Cord, 
So.  C.  93  ;  1  111.  26  ;  sea  Departure  ;  with 
certainty,  6  Fla.  25  ;  see  Certainty  ;  and 
without  duplicity.  4  111.  423  ;  2  Ilalst.  N.  J. 
77;  Dav.  Dist.  Ct.  236;  14  N.  II.  373;  1 
Hempst.  C.  C.  238 ;  26  Vt.  397  ;  4  Wend, 
N.  Y.  211.  See  Duplicity,  See,  generally, 
Bouvier,  Inst.  Index. 

REPORTS.  A  printed  or  M^ritten  collec- 
tion of  accounts  or  relations  of  cases  judi- 
cially argued  and  determined. 

2.  In  the  jurisprudence  of  nearly  every  civilized 
country,  the  force  of  adjudicated  precedents  is  to  a 
greater  or  less  degree  acknowledged.  But  in  no  coun- 
tries are  they  so  deferentially  listened  to  and,  indeed, 
so  implicitly  obeyed  as  in  England  and  in  those 
countries  which,  like  our  own,  derive  their  systems 
of  judicial  government  from  her.    The  European 
systems  are  composed,  much  more  than  either  oura 
or  the  English,  of  Codes  ;  and  their  courts  rely  far 
more  than  ours  upon  the  opinions  of  eminent  text- 
writers.    With  us  we  pay  no  implicit  respect  to  any  ' 
thing  but  a  "  case  in  point and,  supposing  the  case 
to  be  by  an  authoritative  court,  when  that  is  cited 
it  is  generally  taken  as  conclusive  on  the  question 
in  issue.    Hence  both  the  English  and  American  ] 
jurisprudence  is  filled  with  books  of  Reports  ;  that  ' 
is  to  say,  with  accounts  of  cases  which  have  arisen, 
and  of  the  mode  in  which  they  have  been  argued 
and  decided.    These  books,  which  until  the  last  ' 
half-century  were  not  numerous,  have  now  become,  ■ 
as  will  be  seen  in  the  list  appended,  or  are  becom- 
ing, almost  infinite  in  niimber, — so  much  so  that  ■ 
the  profession  has  taken  refuge  in  the  system  of 
Leading  Gases ;    which,  in  the  forms  of  Smith's 
Leading  Cases,  The  American  Leadina;  Cases,  and  , 
White  &,  Tudor's  Leading  Cases  in  Equity,  with 
one  or  two  others,  have  now  obtained  a  place  in  ' 
most  good  libraries.  I 

3.  Of  these  late  years,  in  the  United  States  at  least, } 
it  is  usual  for  the  courts  to  torite  out  their  opinions  ' 
and  to  deliver  them  to  the  reporter :  so  that  usually  ■ 
the  opinion  of  the  court  is  correctly  given.    At  the  \ 
same  time,  the  volumes  of  different  reporters,  even  ' 
of  quite  modern  times,  are  very  different  in  cha- 
racter,— the  accounts  of  what  the  cases  were  being 
often  so  badly  presented  as  to  render  the  opinion 
of  the  courts,  even  when  the  opinions  themselves 
are  good,  comparatively  worthless.    In  addition  to 
this,  an  immense  proportion  of  the  reports — espe- 
cially of  the  American — are  by  courts  of  no  great 
eminence  or  ability,  while  in  England,  with  their 
system  of  rival  reporters,  we  have  at  times  been  borne 
down  with  such  a  multitude  of  "Reports"  that  the 
cases  are  fairly  buried  in  their  own  masses. 

4.  We  are  speaking  here  of  the  business  of  report- 
ing as  practised  say  since  the  year  1800.    Prior  to 
this  date  there  were  only  one  or  two  American  Re- 
ports.   In  England,  however,  there  were  even  then 
very  many,  and  among  the  English  Reports  prior  : 
to  the  date  of  which  we  speak  are  many  of  the  | 
highest  authority,  and  which  are  constantly  cited  ; 
at  this  day  both  in  England  and  America.    There  j 
are,  however,  many  also  of  very  bad  authority,  and,  i 
indeed,  of  no  authority  at  all :  and  against  those  the  | 
lawyer  must  be  upon  his  guard.     They  are  all 
called  "  Reports"  alike,  and  in  many  cases  have 


REPORTS 


443 


REPORTS 


the  name  of  some  eminent  person  attached  to  thcni, 
when,  in  fact,  they  are  mere  forgeries  so  far  as  tliat 
person  is  conocrnod.  Not/iiiuj  can  be  no  rariouH,  as 
rcMpectd  tln  ir  tjrade  of  merit,  an  the  En<ilish  licportn 
prior  to  about  the  year  IIUS  \  and  the  lawyer  should 
never  rely  on  any  one  of  them  without  knowing 
the  character  of  the  volume  whicli  he  cites.  They 
are  often  mere  note-hooka  of  lawyers  or  of  students, 
or  ccpies  hastily  and  very  inaccurately  made  from 
genuine  manuscripts.  In  some  instances  one  part 
of  a  book  is  (joi)d,  when  another  is  perfectly  worth- 
less. This  is  specially  true  of  the  early  Chancery 
Reports,  which  were  generally  printed  as  book- 
sellers' ''jobs." 

5.  Great  judicial  mistakes  have  arisen,  even  with 
the  most  able  court--,  from  want  of  attention  to  the 
different  characters  of  the  old  reporters.  One  illus- 
tration of  this — not  more  striking,  perhaps,  than 

I  others — occurred  lately  in  the  supreme  court  of  our 
own  country.  **It  is  well  known,"  says  Mr.  J.  W. 
Wallace,  in  his  work  entitled  "  The  Reporters," 
"that,  in  a  leading  case,  Chief-Justice  Marshall, 
some  years  since,  gave  an  opinion  which  had  the 
effect  of  almost  totally  subverting,  in  two  states  of 
our  Union,  the  entire  law  of  charitable  uses.  And 
though  some  other  states  did  not  adopt  the  conclu- 
sions of  the  chief-justice,  his  venerated  name  was 
seized  in  all  quarters  of  the  country  to  originate 
litigation  and  uncertainty,  and  deeply  to  wound 
the  whole  body  of  trusts  for  religious,  charitable, 
and  literary  purposes.  For  a  quarter  of  a  century 
the  influences  of  his  opinion  were  yet  active  in  evil, 
— when,  in  1844,  an  endeavor  to  subvert  a  large 
foundation  brought  the  subject  again  before  the 
court,  in  the  Girard  College  case,  and  caused  a  more 
careful  examination  into  it.  The  opinion  of  Chief- 
Justice  Marshall  was  in  review,  and  was  overruled. 
Mr.  Binney  showed  at  the  bar  that  as  to  the  prin- 
cipal authority  cited  by  the  chief-justice,  from 
one  of  the  old  books,  there  were  no  less  than  four 
different  reports  of  it,  all  variant  from  each  other; 
that,  as  to  one  of  the  reporters,  the  case  had  been 
decided  thirty  years  before  the  time  of  his  report; 
that  he  was  not  likely  to  know  any  thing  personally 
about  it ;  that  '  he  certainly  knew  nothing  about 
it  accurately  that  another  reporter  gave  two  ver- 
sions of  the  case  'entirely  difl'erent,' not  only  from 
I  that  of  his  co-reporter,  but  likewise  from  another 
i  of  his  own  ;  that  a  fourth  account,  by  a  yet  distinct 
'  reporter,  was  '  different  from  all  the  rest ;'  that 
'nothing  is  to  be  obtained  from  any  of  these  re- 
ports, except  perhaps  the  last,  that  is  worthy  of 
any  reliance  as  a  true  history  of  the  case and  that 
even  this,  the  best  of  them,  had  been  rejected  in 
modern  times,  as  '  being  contrary  to  all  principle.' 
After  such  evidence  that  these  judicial  historians, 
like  others  of  the  title,  were  full  of  nothing  so  much 
as  of  '  most  excellent  differences.'  the  counsel  might 
very  well  observe  that  it  is  *  essentially  necessary 
to  guard  against  the  indiscriminate  reception  of  the 
old  reporters,  especially  the  Chancery  Reporters,  as 
authority ;'  and  certainly  a  knowledge  less  than 
that  which  Chief- Justice  Marshall  possessed  in  some 
other  branches  of  the  law  would  have  reminded 
him  that  most  of  his  authorities  enjoyed  a  reputa- 
tion but  dubiously  good,  while  the  character  of  one 
of  them  was  notoriously  bad." 

6.  Among  the  English  Reporters  the  following 
possess  little  authority:  Noy,  Godbolt,  Owen,  Pop- 
ham,  AVinch,  March,  Hutton,  Ley,  Lane,  Hetley, 
Carter,  J.  Bridgman,  Keble,  Siderfin,  Latch,  several 
volumes  of  the  "  Modern"  Reports,  3d  Salkeld, 
Gilbert's  Cases  in  Law  and  Equity,  the  1st  and  2d 
parts  of  "  Reports  in  Chancery,"  Chancery  Cases, 
Reports  temp.  Finch,  "Gilbert's  Reports,"  8th 
Taunton,  Peake's  Nisi  Prius  Reports.  But  even 
in  books  of  the  worst  authority  there  are  occasion- 
ally cases  well  reported.  The  fullest  account  which 
Vas  yet  been  given  of  the  Reporters — their  chrono- 


logical order,  their  respective  merits,  the  history, 
public  and  private,  of  the  volumes,  with  biographi- 
cal sketches  of  the  authors — is  presented  in  an 
American  work,  "The  Reporters  Chrcmologically 
Arranged;  with  Occasional  Remarks  on  their  Re- 
spective Merits."  The  author  (Mr.  Wallace)  spent 
a  coiisiderable  time  at  Lincoln's  Inn,  and  at  the 
Temple,  London,  from  the  libraries  of  which  he 
collected  much  history  hitherto  not  generally 
known.  In  the  case  of  Farrell  vs.  Jlilditeh,  94. 
English  Common  Law,  p.  885,  the  work  received 
from  the  judges  of  the  court  of  common  pleas, 
sitting  in  banc  at  Westminster,  the  characterization 
of  "highly  valuable  and  interesting,"  and  one  to 
which  "  they  could  not  refrain  from  referring"  on 
a  question  involving  the  reputation  of  one  of  the 
early  English  reporters. 

1.  The  following  list  of  reports  and  reporters  is 
from  the  pen  of  the  Hon.  Theodore  W.  Dwight, 
LL.D.,  Professor  of  Law  in  Columbia  College,  New 
York.  It  is.  without  doubt,  the  most  learned,  full, 
and  exact  list  which  has  ever  been  prepared  either 
in  England  or  the  United  States, — the  result  of  im- 
mense labor  and  of  most  accurate  knowledge  and 
research.  As  such  it  deserves  the  highest  praise, 
and,  we  are  sure,  will  be  properly  valued  by  all 
American  lawyers. 

Abbott  (Austin  A.).  District  Court  of  the  United 
States,  Southern  District  of  New  York,  1847- 
1850.    I  vol. 

Abbott  (Brothers,  Austin  A.  &  Benjamin  V.). 
Practice  Reports  in  the  Courts  of  the  State 
of  New  York,  1854-1865.    18  vols. 

Abbreviatio  Placitouum.  King's  Bench,  1  Edw. 
I.-20  Edw.  XL  1272-1,327. 

Acta  Cancellari^,.    See  Monro. 

Acton  (Thomas  H.).  Prize  Cases  argued  and  de- 
termined on  Appeal  before  the  Lords  Com- 
missioners and  in  Council,  1809,  1810.  1 
vol.  and  part  of  2d. 

Adams  (John  M.).    See  Maine. 

Adams  (Nathaniel).    See  New  Hampshire. 

Addams  (J.).  Ecclesiastical  Courts  at  Doctors' 
Commons  and  High  Court  of  Delegates, 
1822-1826.    2  vols,  and  part  of  3d. 

Addison  (Alexander).  Pennsylvania  County  Courts 
of  the  Fifth  Circuit,  and  Court  of  Errors, 
1791-1799.    1  voL 

Adolphus  (J.  L.)  <fe  Ellis  (T.  F.).  King's  Bench, 
1834-1840.    12  vols. 

Adolphus  (J.  L.)  &  Ellis  (T.  F.).  New  Series. 
See  Queen's  Bench. 

AiKENS  (Asa).  Vermont  Supreme  Court,  1826, 
1827.    2  vols. 

Alabama.    Reports  of  the  Supreme  Court  of  Ala- 
bama, 1820-1839.    18  vols. 
Vol.1,       1820-1826.    Henry  Minor. 

2-4,   1827-1831.    George  N.  Stewart. 
6-9,   1831-1834.    George   N.   Stewart  & 
Benjamin  F.  Porter. 
10-18,  1834-1839.    Benjamin  F.  Porter. 

Alabama.    New  Series,  1840-1860,    35  vols. 
Vol.  1-11,  1840-1847.    The  Judges. 

12-15,  1847-1849.    J.  J.  Demond- 

16-18,  1849-1851.    N.  W.  Cocke. 

19-21,  1851,  1852.    J.  W.  Sheperd. 

22,  23,  1853.  The  Judges. 

24-35,  1853-1860.    J.  W.  Sheperd. 
Alcock  (John  C).    Registration  Cases  in  Ireland. 

3  Will.  IV.-5  Vict. 
Alcock  (John  C.)  &  Napier  (Joseph).  King's 

Bench  and  Exchequer  in  Ireland,  1831-1S33. 

1  vol. 


KEPORTS 


444 


REPORTS 


A1.DEN  (T.  J.  F.).  Index  to  Decisions  of  United 
States  Supreme  Court,  from  Dallas  to  14 
Howard.  3  vols.  This  is  not  properly  classed 
with  reports,  though  sometimes  quoted  as 
such. 

Aleyn  (John).  King's  Bench,  22-24.  Car.  I.  1 
vol.  These  are  reports  of  cases  in  the  time 
of  the  civil  wars  of  Charles  I.,  and  do  not 
possess  much  authority,  though  containing 
reports  of  RoUe's  decisions.  Wallace,  Rep. 
200. 

A.LLEN  (Charles).  Massachusetts  Supreme  Court, 
1S61-18G4.    8  vols. 

Allen  (John  C).  Cases  in  the  Supreme  Court  of 
New  Urunswick,  11-13  Vict.    1  vol. 

Ambler  (Charles).  Cases  argued  and  determined 
in  the  High  Court  of  Chancery,  1737-1783. 
Second  edition,  by  J.  E.  Blunt.  2  vols.  As 
originally  published,  of  very  little  authority, 
and  much  improved  by  Mr.  Blunt,  whose 
edition  was  published  in  1828. 

American  Law  Journal.    1848-1852.    4  vols. 

American  Law  Register.    1851-   9  vols. 

American  Law  Register.    New  Series,  1861. 

American  Leading  Cases.  See  Hare  &  Wallace. 

American  Railway  Cases.    See  Smith  &  Bates. 

Ames  (Samuel).    See  Rhode  Island. 

Andersox.    See  Deas  &  Anderson. 

Anderson  (Edw.).  Common  Pleas  and  Court  of 
Wards,  25  Hen.  VIII.-45  Eliz.  1  vol. 
Among  the  best  of  the  old  reporters.  See 
Wallace,  Report.  93,  where  a  biography  of 
Chief  Justice  Anderson  the  author  may  be 
found. 

Andrews  (George).    King's  Bench,  11  &  12  Geo. 

IL    1  vol. 
Angell  (J.  K.).    See  Rhode  Island. 
Annaly.    See  Cases  temp.  Hardwicke. 
Anstruther  (Alex.).    Exchequer,  32-37  Geo.  III. 

3  vols. 

Anthon  (John).    Nisi  Prius  Cases  in  the  Supreme 

Court  of  New  York,  1808-1851.    1  voL 
Appleton  (John).    See  Maine. 
Archer  (J  as.  T.).    See  Florida. 
Arkansas.    Reports  of  Decisions  in  the  Supreme 

Court,  1837-1859.    20  vols. 

Vol.      1-5,  1837-1844.    Albert  Pike. 
6-13,  1845-1853.    E.  H.  English 
14-20,  1853-1859.    L.  E.  Barber. 
Arkley  (Patrick).    Cases  before  the  High  Court 

and  Circuit  Court  of  Justiciary  in  Scotland, 

1846-1848.    1  vol. 
Armstrong    (Richard),  Macartney   (John),  & 

Ogle  (John  C).    Cases  at  Nisi  Prius  and 

the  Commission  in  Dublin,  1840-1842.   1  vol. 

Arnold  (Thomas  James).     Common  Pleas  and 

Exchequer  Chamber,  HiL  T.  1  Vict.-Hil. 

T.  2  Vict.,  1838,  1839.    1  vol. 
Arnold  (Thomas  J.)  &  Hodges.    Bail  Court  and 

Practice  Cases,  4  Vict. 
AsHMEAD  (John  W.).     Common  Pleas,  Quarter 

Sessions,  Oyer  and  Terminer,  and  Orphans' 

Court,  in  the  First  District  of  Pennsylvania, 

1808-1841.    2  vols. 
Assessed  Taxes,  Exchequer  Cases,  4  Geo.  IV.-ll 

Vict. 

Atkyns  (John  T.).    High  Court  of  Chancery  <em/). 
Hardwicke,  1736-1754.    3  vols. 

Bagley  (David  T.).    See  California. 
Bail  Court  Cases.    See  Saunders  <fc  Cole. 


Bailey  (Henry).  Cases  at  Law  in  the  Court  of  A^B 
peals  of  Sctuth  Carolina,  1828-1832.    2  v^l 

Bailey  (Henry).    Cases  in  Equity  in  the  Court 

Appeals  of  South  Carolina,  1830,  1831.  ■ 
vol.  ■ 

Baldwin  (Henry).  United  States  Circuit  Cou^H 
Third  Circuit,  1829-1833.    1  vol.  ■ 

Ball  (Thomas)  &  Beatty  (Francis).  CbanceH 
in  Ireland,  48  Geo.  III.-54  Geo.  III.   2  voM 

Barber  (L.  E.).    See  Arkansas.  M 

Barbour  (Oliver  L.).  Court  of  Chancery  in  Nefl 
York,  1845-1848.    3  vols.  ^ 

Barbour  (Oliver  L.).  Supreme  Court  of  New 
York,  1847-1865.    43  vols. 

Barnardiston  (Thomas).  High  Court  of  Chan- 
cery, 13  &  14  Geo.  IL,  1740,  1741.    1  vol. 

Barnardiston  (Thomas).    King's  Bench,  Trin.  T. 

12  Geo.  I.-Trin.  T.  7  Geo.  II.  2  vols.  A 
book  which  for  many  years  was  very  little 
esteemed,  the  author  having  been  reputed  a 
careless  fellow  who  let  the  wags  scribble 
what  they  liked  in  his  note-book  while  he 
was  asleep.  However,  where  his  accuracy 
has  been  tested,  as  it  has  been  of  later  times, 
it  has  come  out  pretty  fairly  ;  and  now  both 
the  King's  Bench  and  Chancery  reports  of 
Barnardiston  are  reasonably  respected.  See 
Wallace,  Report.  261,  322. 

Barnes  (Henry).  Cases  on  Points  of  Practice  in 
the  Common  Pleas  at  Westminster,  6-34 
Geo.  IL,  1732-1756.    1  voL 

Barnet  (James  D.).  See  Central  Criminal 
Court. 

Barnewall   (Richard  Vaughan)   &  Adolphus 

(John  Leyccster).    King's  Bench,  Trin.  T. 

2  Geo.  IV.-Hil.  T.  3  &  4  Will.  IV.    5  vols. 
Barnewall  (R.  V.)  &  Alderson  (Edw.  Hall). 

King's  Bench,  58  Geo.  III.-3  Geo.  IV.  6 

vols. 

Barnewall  (R.  V.)  &  Cresswell  (Cresswell). 
King's  Bench,  Mich.  T.  3  Geo.  IV.-East.  T. 
11  Geo.  IV.    10  vols. 

Barr  (Robert  M.).    See  Pennsylvania  State. 

Barradell.  Manuscript  Reports  of  Cases  in  Vir- 
ginia. 

Barron  &  Arnold.    Election  Cases,  7-9  Vict. 
Barron  &  Austin.    Election  Cases,  5  &  6  Vict. 
Barry.    Case  of  Tenures,  in  Molyneaux's  Cases, 

13  Car.  I. 

Batty  (Espeine).    King's  Bench  in  Ireland,  Mich. 

T.  1825-Mich.  T.  1826.    1  vol. 
Bay  (Elihu  Hull).    Superior  Courts  of  Law  in 

South  Carolina,  1783-1804.    2  vols. 
Bay  (S.  M.).    See  Missouri. 
Beasley  (Mercer).    Chancery  and  Court  of  Errors 

for  New  Jersey,  1858-1861.    2  vols. 
Beatty  (Francis).    Chancery  in  Ireland,  1814- 

1830.    1  vol, 
Beavan  (Charles).    Cases  argued  and  determined 

in  Rolls  Court  and  the  Chancellor's  Courts, 

1-27  Vict.  1838-1863.    33  vols. 
Beavan  (Edw.).    See  Railway  &  Canal  C  vses. 
Bee  (Thomas).    Crown  Cases  Reserved,  with  a 

few  in  Queen's  Bench  and  Courts  of  Error, 

1858-1860.    1  vol. 

Bell  (Sydney  S.)  Cases  in  the  House  of  Lords 
on  Appeal  from  Scotland,  4-12  Vict.,  1842- 
1850.    7  vols. 

Bell  (Thomas).  Admiralty  Cases  in  the  United 
States  District  Court  for  South  Carolina,  and 
some  Cases  in  other  Districts,  1792-1805.  1 
vol. 


REPORTS 


445 


REPORTS 


Bkllewe.  Kinj^'s  Bench  and  Common  Pleas,  1- 
23  Rich.  II.  The  book  sometimes  cited  as 
Bellewe's  Cases  is  the  same  as  Brooke's  New 
Cases,  which  see. 

Belt  (Robert).    Supplement  to  Reports  in  con- 

itinuation  of  Vesey  Senior,  1846-1855.  1 
vol. 

Bexdloes  (Gulielme).  All  the  Courts,  1  Hen.  VIII. 
-3  Car.  I.  1  vol.  Properly  cited  as  New 
Benloe,  but  sometimes  as  Old  Benloe. 

Bbnloe  (Gulielme)  &  Dalison  (Gulielme).  Com- 
mon Pleas,  Hen.  VII.-21  Eliz.,  1486-1580. 
There  is  very  great  confusion  in  the  cita- 
tions of  the  reports  of  Benloe  and  Dalison. 
Some  cases  of  Benloe's  are  given  at  the  end 
of  Keilwey's  Reports  and  of  Ashe's  Tables. 
It  is  supposed  that  the  title  New  Benloe 
was  given  to  the  volume  here  given  as 
Bendloes  to  distinguish  it  from  the  cases 
in  Keilwey  and  Ashe.  The  volume  given 
as  Benloe  &  Dalison  consists  in  reality 
of  two  separate  series  of  reports,  paged 
independently,  although  bound  together,  and 
the  modes  of  reference  are  very  various, 
being  sometimes  to  Dalison  when  Benloe  is 
intended,  and  vice  versa.  A  full  account  is 
given  in  Wallace's  Reporters,  pp.  80-85,  93, 
of  these  reports,  and  of  the  various  mistakes 
made  in  citation. 

Bennett  (E.  H.)  &  Heard  (F.  F.).  A  Selection  of 
Leading  Criminal  Cases,  with  Notes.  2  vols. 

Bennett  (Nathaniel).    See  California. 

Bennett  (Samuel  A.).    See  Missouri. 

Bentlev.    Irish  Chancery,  1  Will.  IV. 

Berton  (George  F.  S.).  Supreme  Court  of  New 
Brunswick,  5-7  Will.  IV.    1  vol. 

Best  (William  M.)  &  Smith  (George  J.  P.). 
Queen's  Bench  and  Exchequer  Chamber, 

1861,  1862.    5  vols. 

Bibb  (George  M.).  Court  of  Appeals  in  Kentucky, 
1808-1817.    4  vols. 

Bingham  (P.).  New  Cases,  Common  Pleas  and 
Other  Courts,  Trin.  T.  4  Will.  IV.-Mich.  T. 
4  Vict.,  1834-1840.    6  vols. 

Bingham  (Peregrine).  Common  Pleas  and  Other 
Courts,  Trin.  T.  3  Geo.  IV.-East.  T.  4  Will. 
IV.,  1822-1834,    10  vols. 

Binney  (Horace).  Supreme  Court  of  Pennsyl- 
vania, 1799-1814.    6  vols. 

Black  (J.  S.).   United  States  Supreme  Court,  1861, 

1862.  2  vols. 

Blackford  (Isaac).  Supreme  Court  of  Indiana, 
1817-1847.    8  vols. 

Blackiiam  (John),  Dundas  (William  J.),  &  Os- 
borne (Robert  W.).  Practice  and  Nisi 
Prius  Cases  in  the  Superior  Courts  in  Ire- 
land, 1846-1848.  1vol. 

Blacikstone  (Henry).  Common  Pleas  and  Ex- 
chequer Chamber,  28-30  Geo.  III.    2  vols. 

Blickstone  (William).  King's  Bench,  Common 
Pleas,  and  Exchequer  Chamber,  Hil.  T.  20 
Geo.  II.-Mich.  T.  20  Geo.  III.  2  vols. 
These  reports  were  said  by  Lord  Mansfield, 
Dougl.  92,  n.,  not  to  be  very  accurate  ;  but  of 
late  they  have  been  well  edited  and  are  more 
esteemed. 

Blind  (Theodoric").     High  Court  of  Chancery  in 

Maryland,  1811-1832.    3  vols. 
Blatchford  (Samuel).      United  States  Circuit 

Court,  Second  Circuit,  1845-1856.    3  vols. 
Blatchford   (Samuel)  &   Howlanp  (Francis). 

United  States  District  Court,  New  York 

District  (Betts'  Decisions),  1827-1837.   1  vol. 


Bligh  (R.).  New  Series,  Cases  in  Parliament 
1827-1837.    11  vols. 

Bligh  (Richard).    Cases  in  Parliament,  1819-1821 

3  vols. 

Bloomfield.    Negro  Cases,  New  Jersey. 

Booraem  (H.  Toler).    See  California. 

BosANQUET  (J.  B.)  &  Puller  (Christopher).  Com- 
mon Pleas,  Exchequer  Chamber,  and  House 
of  Lords,  36-44  Geo.  III.    3  vols. 

BosANQUET  (J.  B.)  &  Puller  (C).  New  Re 
PORTS,  Common  Pleas,  Exchequer  Chamber, 
jind  House  of  Lords,  44-47  Geo.  III.  2  vols. 
The  volumes  of  Bosanquet  &  Puller  are  gene- 
rally cited  from  1  to  5  in  American  books. 
In  English  books  the  latter  series  is  frequent 
ly  cited  as  New  Reports. 

Bosworth  (Joseph  S.).  Superior  Court  of  New 
York  City,  1856-1862.    10  vols. 

BoTT.    Settlement  Cases,  1  Geo.  IIL-7  Geo.  IV. 

Bradford  (Alexander  W.).  Surrogate  Reports  in 
New  York,  1849-1857.    4  vols. 

Branch  (Joseph).    See  Florida. 

Brayton  (William).  Supreme  Court  of  Vermont, 
1815-1819.    1  voL 

Breese  (Sydney).    See  Illinois. 

Brevard  (Joseph).  Superior  Cr^urts  of  Law  in 
South  Carolina,  1793-1816.    3  vols. 

Brewer  (Nicholas,  Junior).    See  Maryland. 

Bridgman  (John).  Reports  of  Cases  decided  by 
Sir  John  Bridgman,  Chief  Juitice  of  Chester, 
11-19  Jac.  I.,  1613-1621.  Not  often  re- 
ferred to  nor  particularly  ep*.eemed.  Wal 
lace,  Report.  179. 

Bridgman  (Orlando).  Common  Pleas,  1660-1667. 
Published  first  of  late  years,  and  therefore 
not  coming  down  to  us  with  the  fame  which, 
had  it  appeared  at  all  contemporaneously 
with  the  decisions,  the  book  would  certainly 
have  possessed.  The  decisions  are  by  a 
great  judge,  and  are  well  reported  by  him 
self.    Wallace,  Report.  203.. 

Brightly  (Frederic  C).  Nisi  Prius  Decisions  in 
Common  Pleas  and  Supreme  Court  of  Penn- 
sylvania, 1809-1851.    1  vol. 

Brockenbrough  (John  W.).  United  States  Circuit 
Court,  Fourth  Circuit,  1802-1832.    2  vols. 

Brockenbrough  (William).   See  Virginia  Cases. 

Brockenbrough  (William)  &  Holmes  (Hugh^. 
See  Virginia  Cases. 

Broderip  (William  John)  &  Bingham  (Peregrine^ 
Common  Pleas  and  Other  Courts,  East.  T 
59  Geo.  III.-East.  T.  3  Geo.  IV.    3  vols. 

Brooke.  New  Cases.  Called  also  Petit  Brook* 
and  Little  Brooke :  a  selection  of  cases  in 
the  King's  Bench,  Common  Pleas,  and  Ex 
chequer  (6  Hen.  VIII.-5  Mary),  from 
Brooke's  Abridgment,  frequently  cited  a9 
reports,  but  not  strictly  such. 

Brown  (Archibald).  High  Court  and  Circuit  Court 
of  Justiciary  in  Scotland,  1842-1845.  2 
vols. 

Brown  (Josiah).  Cases  in  Parliament,  1716-1800 
8  vols. 

Brown  (William).  High  Court  of  Chancery  tem- 
pore  Thurlow  and  Loughborough,  1778-1794. 

4  vols. 

Browne  (Peter  A.).  Common  Pleas,  Oyer  and 
Terminer,  Quarter  Sessions,  and  Orphans' 
Court  in  First  District  of  Pennsylvania,  1806- 
1814.    2  vols. 


REPORT 


446 


REPORTS 


HiiOAVNLOW  (Kichard)  &  Goldesborough  (John). 

CoimiKin  Pleas,  11  Eliz.-23  Jac.  I.    See  the 

fullest  account  yet  given  of  this  book,  in 

Wallace,  Report.  110-112. 
Bruce.    Court  of  Sessions,  Scotch,  1714,  1715.  1 

vol. 

Buck  (J.  AV.).  Cases  in  Bankruptcy,  Mich.  T. 
18IG-M;ch.  T.  1820.    1  vol. 

Buckler  (Henry).  See  Central  Criminal  Court. 

BuLSTRODE  (Edward).  King's  Bench,  7  Jac.  I.- 
14  Car.  I.    3  parts. 

BuNBURY  (William).  Exchequer,  1  Geo.  I.-14 
Geo.  II.  1  vol.  A  posthumous  work,  not  of 
the  highest  reputation,  though  edited  by  a 
good  editor.  Mr.  Bunbury  never  meant  that 
these  cases  should  be  published  :  they  are 
mere  loose  notes.    5  Burr.  2568. 

Burnett  (T.  P.).  Supreme  Court  of  the  Territory 
of  Wisconsin,  1842,  1843.    1  vol. 

Burrow  (James).  King's  Bench,  Mich.  T.  30  Geo. 
II.-East.  T.  12  Geo.  III.  5  vols.  A  full, 
excellent,  and  accurate  reporter,  who  holds 
in  a  legal  point  of  view  the  same  relation  to 
Lord  Mansfield  that  in  a  literary  and  histori- 
cal one  Boswell  does  to  Dr.  Johnson. 

Burrow  (James).  King's  Bench  Settlement  Cases, 
March,  1732-June,  1776. 

BuSBEE  (Perrin).  Equity  Cases  in  the  Supreme 
Court  of  North  Carolina,  1852,  ]8o3.    1  vol. 

BusBEE  (Perrin).  Supreme  Court  of  North  Carolina, 
1852,  1853.    1  vol. 

Caines  (George).  Cases  in  the  New  York  Court 
of  Errors,  1801-1805.    2  vols. 

Caines  (George).    Supreme  Court  of  New  York, 

1803-1805.    3  vols. 
Caldecott  (Thomas).    Cases  relative  to  the  Duty 

and  Office  of  a  Justice  of  the  Peace,  1776- 

1785. 

Caldavell.    Settlement  Cases,  15-25  Geo.  III. 
CALiPORN'rA.    Supreme  Court,  1850-1863.    21  vols. 
Vol.  1,       1850,  1851.    Nathaniel  Bennett. 
2-4,  .1852-1854.    H.  P.  Hepburn. 
5,      1855.  William  Gouverneur 

Morris. 

6-8,  1856,  1857.    H.  Toler  Booraem. 
9-12, 1858,  1859.    H.  Lee. 
1.3-15,  1859,  1860.    John  B.  Harmon. 
16-19,  1860-1862.    David  T.  Bagley. 
20,  21,  1862,  1863.    Curtis  J.  Hillyer. 
Call  (Daniel).    Virginia  Court  of  Appeals,  1779- 

1818.    6  vols. 
Calthorp  (H.).     Cases  touching  Several  Customs 
and  Liberties  of  the  City  of  London,  1609- 
1618.    1  vol. 

Cameron  (Duncan)  <fc  Norwood  (William).  North 
Carolina  Court  of  Conference,  1800-1804. 
1  vol. 

Campbell  (John).  Nisi  Prius  in  King's  Bench 
and  Common  Pleas,  48-56  Geo.  III.,  1807 
-1816.    4  vols. 

Carolina  Law  Repository.  A  periodical  con- 
taining reports  and  legal  intelligence,  1813- 
1816.    2  vols. 

Carpmael  (William).    Patent  Cases.    2  vols. 

Carrington  (F.  A.)  &  Kirwan  (A.  V.).  Nisi 
Prius  Cases  in  Queen's  Bench,  Common  Pleas, 
and  Exchequer,  and  in  the  Circuits  and  fh 
Central  Criminal  Court,  6-13  Vict.  2  vols, 
and  part  of  a  third. 

Cjirrington  (F.  A.)  &  Marshman  (J.  R.),  Nisi 
Prius  Cases  in  Queen's  Bench,  Common 
Pleas,  and  Exchequer,  and  on  Circuit,  4-6 
Vict.    1  vol. 


lit. 
the 


Carrington  (F.  A.)  &  Payne  (J.).  Nisi  P 
Cases  in  King's  Bench,  Common  Pleas, 
Exchequer,  and  on  Circuit,  Mich.  T.  181 
East.  T.  1841.    9  vols. 

Carrow  (John   M.).     See  Railway  &  Can, 
Cases. 

Carrow,  Hamerton,  &  Allen.  See  New  Sessk 
Cases 

Carter  (Horace  E.).    See  Indiana. 
Carter  (S.).    Common  Pleas,  1 6-25  Car.  I.  1 
Carthew  (Thomas).    King's  Bench,  3  Jac.  I 

12  Will.  III.    1  vol. 
Gary  (George).    Chancery,  9  Edw.  IV.-21  Elis 

1  vol.    Frequently  mere  transcripts  from  the 

Registrar's  books.  Wallace,  Report.  287.  ' 
Cases  tempore  Finch.    High  Court  of  Chancery, 

25-32  Car.  IL,  1673-1680.    1  vol. 

Cases  tempore  Hardwicke.    See  Ridgway. 
Cases  tempore  Holt.    See  Holt. 
Cases  tempore  King.    See  Mosely. 
Cases  tempore  Macclesfield.    See  Lucas. 

Cases  tempore  Plunket.  See  Lloyd  <fe  Gould ; 
Drury  <fe  Walsh. 

Cases  tempore  Sugden.  See  Lloyd  &,  Gould; 
Connor  &  Lawson;  Drury  &  Warren; 
Drury. 

Cases  tempore  Talbot.  King's  Bench,  Common 
Pleas,  and  Chancery,  7-10  Geo.  II.  By 
Forrester.  A  book  of  highly  respectable 
authority,  though  not  a  monument  wortby 
of  Lord  Talbot's  transcendent  virtue.  Wal- 
lace, Report.  318. 

Casey  (Joseph).    See  Pennsylvania  State. 

Central  Criminal  Court.    The  Whole  Proceed- 
ings in  Oyer  and  Terminer  and  Gaol  Delivery, 
1834-1860.    50  vols. 
Vol.  1-26,   Henry  Bucken. 

27-50,   James  D.  Barnet  <fc  Alexander 
Bucken. 

Chancery  Cases.  Cases  in  Chancery  in  the  Reign? 
of  Charles  I.,  Charles  II.,  James,  William, 
and  Anne.  One  of  the  least  accurate  of  tht 
many  inaccurate  early  Chancery  reports 
See  a  minute  account  of  the  compositioi 
and  sources  of  this  work  given  by  Mr.  Wil 
Ham  Green,  of  Virginia,  in  Wallace's  Re 
porters,  p.  297. 

Chancery  Precedents.  See  Precedents  i: 
Chancery. 

Chandler  (D.  H.).  Supreme  Court  of  Wisconsin 
1849-1852.    4  vols. 


Chandler  (P.  W.). 
2  vols. 


Criminal  Trials,  1637-1798. 


Chandler  (W.  E.).    See  New  Hampshire. 
Charlton  (Robert  M.).    Superior  Courts  of  the 

Eastern    District  of  Georgia,  1811-1837, 

1  vol. 


Charlton  (Thomas  1 

Eastern  Dis 

1  vol. 
Cheves (Langdor 

of  Appea' 

1  vol. 
Cheves  (Lang' 

Appeal 

vol. 
Chipman  (P 

-is: 

cas 
Chipman 
1' 
1 


Superior  Courts  of  the 
Georgia,  1805-1810. 

ity  Reports  in  the  Court 
ith  Carolina,  1839,  1840. 

;iaw  Reports  in  the  Court  ol 
ith  Carolina,  1839,  1840.  1 


Vermont  Supreme  Court,  1789 
".s.  This  work  contains  selected! 
(.  Chipman's  reports,  infra.  j 
liel).    Vermont  Supreme  Court,' 
1  vol.     Principally  cases  re-; 
jractice,  pleading,  and  magistrates. 


REPORTS 


447 


REPORTS 


Ch  tty  (Joseph).    Bail  Court  Practice  Cases,  59  &  J 
60  Geo.  III. 

Chitty  (Joseph).  King's  Bench,  59  Geo.  III., 
and  Cases?  in  the  Time  of  Lord  Mansfield. 

2  vols. 

Choyce  Chanckuy  Cases,  5*6  Mary-45  Eliz., 
1557-1606.  A  very  good  little  book,  so  far 
as  it  goes.  See  Wallace,  Report.  288,  where 
curious  extracts  are  given  from  the  volume, 
now  rare. 

City  Hall  Recorder.    See  Rogers. 

Clark  (C.)  &  Finelly  (W.).    Cases  in  the  House 

of  Lords,  1831-1846.    12  vols. 
Clark  (C.)  &  Finelly  (W.).    New  Series.  See 

House  of  Lords  Cases. 
Clarke  (Chas.  L.).    Chancery  Reports  in  New 

York  in  Time  of  Vice-Chancellor  Whittlesey, 

1839-1841.    1  vol. 
Clarke  (W.  Penn).    See  Iowa. 
Clayton  (^('hn).    Pleas  of  Assize  held  at  York, 

7-24  Car.  I.,  1632-1649. 
Cobb  (Thomas  R.  R.).    See  Georgia. 
Cockburn  (W.)  &  RowE  (R.  R.).    Election  Cases, 

3  Will.  IV. 

Cocke  (N.  W.).    See  Alabama,  New  Series. 
Code  Reports.    Reports  of  Decisions  on  the  Code 

of  Procedure  of  New  York,  1851,  1852.  1 

vol. 

Coke  (Edward).  King's  Bench,  Common  Pleas, 
Exchequer,  and  Chancery,  14  Eliz.-13  Jac. 
I.  13  parts  or  volumes.  Lord  Cuke's  reports 
are  very  voluminous.  They  have  been  se- 
verely criticized  by  Sir  Edward  Sugden, 
Lord  Redesdale,  and  others,  and  Coke 
charged  with  "  telling  untruths"  in  them  ; 
but  all  the  charges  made  against  him  have 
been  examined  by  Mr.  Wallace  (Reporters, 
pp.  112-142),  and  Lord  Coke's  integrity  vin- 
dicated from  the  imputations  of  his  country- 
men. 

Coleman  (William).  Decisions  in  the  Mayor's 
Court  of  the  City  of  New  York,  1794-1800. 
1  vol. 

Coleman  (William)  &  Caines  (George).  New 
York  Supreme  Court,  1794-1800.    1  vol. 

CoLLES  (Richard).  Cases  in  Parliament  on  Appeal 
and  Writs  of  Error,  1697-1709.    1  vol. 

CoLLYER  (John).  High  Court  of  Chancery,  1844- 
1846.    2  vols. 

Comberbacii  (Roger).  King's  Bench,  5  Jac.  II.- 
10  Will.  III.  It  is  said  by  Lord  Thurlow 
(1  Brown,  Ch.  97)  to  be  bad  authority;  though 
a  few  cases  are  better  reported  than  in  any 
other  place.  Its  chief  use  is  for  comparison 
with  other  reports  of  the  same  cases.  Wal- 
lace, Report.  246. 

Common  Bench.    Cases  argued  and  determined  in 
the  Court  of  Common  Pleas,  Ilil.  T.  1845- 
Trin.  Vac.  1856.    18  vols. 
Vol.  1-8,    Manning,  Jas.,  Granger,  T.  C, 
&  Scott,  John. 
9,       Manning,  Jas.,  &  Scott,  John. 
10-18,  Scott,  John. 

Common  Bench.  New  Series.  Common  Pleas  and 
Exchequer  Chamber,  Mich.  T.  1856-Trin. 
Vac.  1862.    18  vols.    By  John  Scott. 

Comstock  (George  F.).    See  New  York. 

CoMYNS  (Sir  John).  King's  Bench,  Chancery,  and 
Exchequer,  Hil.  T.  7  Will.  Ill.-Pasch.  T. 
13  Geo.  IL    2  vols. 

Conference.    See  Cameron  &  Norwood. 

Comnecticut.  Supreme  Court,  and  Other  Highest 
Courts  of  Judicature,  1814-1864     32  vols. 


Vol.  1-21,  x814-1852.    Thomas  Day. 

22-24,  1852-1856.    William  N.  Matson. 

25-32,  1856-1864.    John  Hooker. 
See  Day;  Kikby;  Root. 
Connor  (Henry)  &  Lawson  ( James  A.).  Chancerj 
in  Ireland  in  the  Time  of  Sugden,  1841-1843. 
2  vols. 

OoNOVER  (0.  M.).    See  Wisconsin. 

CoNROY.    Custodian  in  Ireland,  35  Geo.  III. 

Constitutional.  Reports  of  the  Constitutionil 
Court  of  South  Carolina.  Published  by  Tread - 
way,  and  sometimes  cited  as  Treadway's  Re- 
ports.   1812-1816,  1822.    2  vols. 

Constitutional.  New  Series.  Constitutional 
Court  of  South  Carolina,  1817, 1818.  2  vols. 
Published  by  Mills,  and  often  cited  as  Mills's 
Reports. 

Cook  (James  Rich)  &  Alcock  (John  Congreve). 
King's  Bench  in  Ireland,  1833, 1834.    1  vol. 

Cooke  (Sir  George).  Cases  of  Practice  in  the  Com- 
mon Pleas,  5  Anne-13  Geo.  II.  1  vol. 
Appended  are  the  rules  and  orders  in  the 
King's  Bench  from  2  Jac.  I. -15  Goo.  II.,  and 
the  rules  and  orders  in  the  Common  Pleas, 
35  Hen.  VI.-15  Geo.  II. 

Cooke  (William  Wilcox).  United  States  District 
Court  for  East  Tennessee,  and  Supreme  Court 
of  Errors  and  Appeals  of  Tennessee,  1810- 
1814.    1  vol. 

CooLEY  (Thomas  M.).    See  Michigan. 

Cooper  (Charles  P.).  Cases  in  Chancery  decided 
by  Lord  Brougham,  1833-1841.    1  vol. 

Cooper  (Charles  P.).  Cases  in  Chancery  decided 
by  Lord  Cottenham,  1846-1848.  1  vol.  and 
part  of  a  second. 

Cooper  (Charles  P.).    Cases  in  Lord  Chancellor's, 

Rolls,  and  Vice-Chancellor's  Courts,  1837, 

1838.    1  voL 
Cooper  (George).    High  Court  of  Chancery  in  the 

Time  of  Lord  Eldon,  1815.    1  vol. 
CoRBETT  (Uvedale)  &   Daniell  (Edmund  R.). 

Cases  in  Parliament,  1819.    1  vol. 
CowEN  (Esek).    New  York  Supreme  Court,  Court 

of  Errors  and  of  Impeachment,  1823-1828. 

9  vols. 

CoAVPER  (Henry).    King's  Bench,  Hil.  T.  14-Trin. 

T.  18  Geo.  III.    2  vols. 
Cox  (Edward  W.).  Criminal  Cases  in  all  the  Courts 

in  England  and  Ireland,  1843-1864.  10  vole. 

These  reports,  which  are  edited  b}'  Mr.  Cox, 

are  prepared  by  a  large  number  cf  reporters, 

as  follows  : 

J.  B.  Aspinwall,  1,  2. 

W.  St.  L.  Balington,  1-4. 

A.  Bittleton,  1-6. 

E.  W.  Cox,  1-8. 

J.  B.  Dasent.  1-7. 

R.  Davidge,  8. 

J.  E.  Davis,  .3-6. 

D.  T.  Evans,  3-5. 

T.  Campbell  Foster,  2-4. 

John  Lane,  1,  2. 

R.  D.  M.  Littler,  7,  8. 

A.  J.  Mclntyre,  3-8. 
P.  J.  McKenna,  6-8. 
H.  G.  Oliphant,  1. 
Paul  Parnell,  1-5. 

J.  S.  Raffles,  5,  6. 

B.  C.  Robinson,  1-8. 
R.  Sawyer,  7,  8. 

J.  Thompson,  7,  8. 

E.  Wise,  2. 

Cox  (Samuel  C).  Cases  determined  in  Courti  »f 
Equity,  1783-1796.    2  vols. 


REPORTS 


448 


REPORTS 


CoxE  (Richard  S.).    New  Jersey  Supreme  Court, 

1790-1795.    1  vol. 
Crabbe  (William  H.).     United   States  District 

Court,  Eastern   District  of  Pennsylvania, 

1836-1846.    1  vol. 

Ceaig  (R.  D.)  &  Phillips  (T.  J.).  High  Court  of 
Chancery  in  the  Time  of  Cottenham,  1840, 
1841.    1  vol. 

Craigie  (John)  &  Stewart  (John  Shaw).  Cases 
in  the  House  of  Lords  on  Appeal  from  Scot- 
land, 1726-1813.  4  vols.  The  last  three 
volumes  are  by  Thomas  S.  Paton ;  but  the 
series  is  cited  as  Craigie  &  Stewart's. 

Cranch  (William).  United  States  Supreme  Court, 
1800  -1815.    9  vols. 

Cranch  &  Davis.    See  Peters. 

Crawford  (George)  &  Dix  (Edward  Spencer). 
Cases  in  the  Circuit  in  Ireland,  also  at  Nisi 
Prius  and  Criminal  Courts  at  Dublin,  1839- 
1846.    3  vols. 

Creswell  (Creswell).  Insolvency  Cases,  7-9  Geo. 
IV. 

Critchfielp  (L.  J.).    See  Ohio  State. 

Croke  (Sir  George).  Chancery,  King's  Bench, 
and  Common  Pleas  during  the  Reigns  of 
Elizabeth,  James  I.,  and  Charles  I.,  com- 
mencing at  24  Eliz.  and  ending  at  16  Car.  I. 
The  reports  in  Croke  are  generally  short, 
and,  as  the  books  consist  of  four  closely- 
printed  volumes,  the  cases  are,  of  course, 
very  numerous.  Occasionally  cases  are  mis- 
reported;  but,  taken  as  a  whole,  Croke  has 
enjoyed  from  early  times  a  high  reputation, 
and  even  now  is  constantly  cited.  Wallace, 
Report.  143.  The  Chancery  cases  in  the 
time  of  Elizabeth  are  Sir  Harbottle  Guin- 
ston's.  The  reports  are  commonly  cited  by 
the  name  of  the  author  and  the  reigning 
sovereign :  as,  Croke  Car.,  Croke  Eliz.,  and 
Croke  Jac. 

Crompton  (Charles)  &,  Jervis  (J.).  Exchequer 
and  Exchequer  Chamber,  11  Geo.  IV.-2 
Will.  IV.    2  vols. 

Crompton  (Charles)  &  Meeson  (B.).  Exchequer 
and  Exchequer  Chamber,  3  Will.  IV.-4 
Will.  IV.    2  vols. 

Crompton  (Charles),  Meeson  (B.),  &  Roscoe, 
(H.).  Exchequer  and  Exchequer  Chamber, 
4  Will.  IV.-6  Will.  IV.    2  vols. 

Cunningham  (Timothy).  King's  Bench,  7-9  Geo. 
II.,  1734-1736,  Time  of  Hardwicke.    1  vol. 

Curry  (Thomas).    See  Louisiana. 

Ourteis  (W.  C).  Ecclesiastical  Courts  at  Doctors' 
Commons  and  High  Court  of  Delegates, 
1834-1844.    3  vols. 

Curtis  (B.  R.).  Circuit  Court  of  the  United  States 
for  the  First  Circuit,  1851-1856.    2  vols. 

TuRTis  (B.  R.).  United  States  Supreme  Court. 
The  reports  of  Dallas,  Cranch,  Wheaton, 
Peters,  and  the  first  seventeen  volumes  of 
Howard,  condensed  and  given  in  21  volumes, 
with  a  digest  making  the  twenty-second. 

Cushing  (Luther  S.).  Election  Cases  contested  in 
Massachusetts  Legislature,  1780-1834.  A 
later  edition  gives  the  cases  down  to  1852  in 
the  same  volume,  by  L.  S.  Cushing,  Charles 
W.  Storey,  and  Lewis  Josselyn. 

CiTSHiNG   (Luther   S.).     Massachusetts  Supreme 

Court,  1848-1853.    12  vols. 
CusHMAN  (John  S.).    See  Mississippi. 

Dalison  (Gulielme).    See  Benloe. 

Dallas  (Alexander  James).    Four  volumes,  con- 


taining Pennsylvania  Reports  from  : 
the  Revolution,  and  from  1780  to  180' 
cuit  Court  of  the  United  States  for  the 
Circuit  from  1792  to  1806  ;  United 
Supreme  Court,  and  the  Federal  Coi 
Appeals,  from  1790  to  1800. 
Dalrymple  (Sir  J,).    Decisions  of  the  Lor 
Council  and  Session,  1661-1681.  2 
See  Stair. 

Dana  (James  G.).    Kentucky  Court  of  Ap] 

1833-1840.    9  vols. 
Daniell  (Edmund  Robert).    Exchequer,  Equity 

Side,  before  Sir  Richard  Richards,  1817- 

1820. 

Danson  &  Lloyd.  Mercantile  Cases,  8-10  Geo.  IV. 

Daveis  (Edward  H.).  United  States  District 
Court,  Maine  District,  1839-1849.    1  vul. 

Davies,  or  Davis  (Sir  John).  King's  Bench,  Com- 
mon Pleas,  and  Exchequer  in  Ireland,  2-9 
Jac  I.,  1604-1612.  1  vol.  Davies,  who  was 
chief-justice  of  Ireland,  and  died  on  the  night 
of  the  day  on  which  he  had  been  appointed 
chief-justice  of  England,  was  a  man  of  great 
genius  and  accomplishments.  His  poetical 
writings  are  well  known  to  scholars,  and  are 
included  by  Southey  in  his  "  Select  Works  of 
the  British  Poets."  For  an  account  of  these 
reports,  and  for  an  entertaining  account  of  » 
fight  which  Davies,  when  a  young  man  in  the 
Temple,  had  with  Martin,  extracted  by  Lord 
Stowell  from  the  records  of  that  ancient  inn, 
see  Wallace,  Report.  167-172. 

Davison  (Henry)  &,  Merivale  (Herman). 
Queen's  Bench  and  Exchequer,  Trin.  T. 
1843-East.  T.  1844.    1  vol. 

Day  (Thomas).  Connecticut  Supreme  Court,  1802- 
1813.    5  vols.    See,  also,  Connecticut. 

DeGex  (John).  Bankruptcy  Cases  in  Court  of 
Review  and  Lord  Chancellor's  and  Vice- 
Chancellor's  Courts,  1844-1848.    1  vol. 

DeGex,  Fisher  &  Jones.  Bankruptcy  Appeals, 
Vol.  1  is  in  course  of  publication. 

DeGex  (John^,  Fisher  (F.),  &  Jones  (H.  C). 
Lord  Chancellor's  Court  and  Court  of  Ap- 
peals in  Chancery,  1859-1862.    3  vols. 

DeGex  (John)  &,  Jones  (H.  C).  Bankruptcy 
Appeals,  1857-1859.    1  voL 

DeGex  (John)  &  Jones  (H.  C).  Lord  Chanoel 
lor's  Court  and  Court  of  Appeals  in  Chatt* 
eery,  1857-1859.    4  vols. 

DeGex  (John),  Jones  (H.  C),  &,  Smith  (R.  H.). 
Lord  Chancellor's  Court  and  Court  of  Ap- 
peals in  Chancery,  1863.    1  vol. 

DeGex,  Jones  <fe  Smith.  Bankruptcy  Appeals, 
1862.    Vol.  1,  part  1. 

DeGex  (John),  Macnaghten  (S.),  &  Gordon 
(A.).  Lord  Chancellor's  Court  and  Court 
of  Appeals  in  Chancery,  1851-1857.    8  vols. 

DeGex,  Macnaghten,  &,  Gordon.  Bankruptcy 
Appeals,  1851-1856.    Parts  1-9. 

DeGex  (John)  &  Smale  (John).  High  Court  of 
Chancery,  1846-1852.    5  vols. 

'De  Winchedon.    See  Year-Book. 

Deacon  (Edward  E.).  Bankruptcy  Cases  in  the 
Court  of  Review  and  before  the  Lord  Chan- 
cellor, 1835-1840.    4  vols. 

Deacon  (Edward  E.)  A  Chitty  (Edward).  Bank- 
ruptcy Cases  in  the  Court  of  Review  and  be- 
fore the  Lord  Chancellor,  1832-1835.    4  vols. 

Deane  (James  P.)  &  Swabey  (M.  C.  M.).  Ecclesi- 
astical Courts  at  Doctors'  Commons,  185fr- 
1857.    1  voL 

Deane  (John  F.).    See  Vermont. 


KEPORTS 


449 


REPORTS 


Deabsly  (Henry  Richard).  Crown  Cases  Reserved, 
1852-1866.    1  vol. 

Dbabsly  (H.  R.)  &  Bell  (Thomas).  Crown  Cases 
Reserved  with  a  few  Cases  in  the  Queen's 
Bench  and  Court  of  Errors,  1866-1 S58.  1  vol. 

Deas  <fe  Andeiison.  Sessions,  Jury,  and  Justiciary 
Courts  in  Scotland,  10  Geo.  IV.-3  Will.  IV. 
Analogous  cases  decided  in  the  English 
courts  in  1831  by  Anderson. 

Delane.    Election  Cases,  Decisions  of  Revising 

Courts,  6  &  7  Will.  IV. 
Delaware.    See  Dallas;  Haukington. 
Denio  (Hiram).    New  York  Supreme  Court  and 

Court  for  Correction  of  Errors,  1846-1848. 

5  vols. 

Denison  (Stephen  Charles).  Crown  Cases  Reserved, 

1844-1852.     2  vols.     The  second  volume 

partly  reported  by  Pearce. 
Desaussure  (Henry  William).    Equity  Cases  in 

the  Court  of  Appeals  and  Chancery  in  South 

Carolina,  1784-1816.    4  vol. 
Devereux  (Thomas  P.).   North  Carolina  Supreme 

Court,  1826-1834.    4  vols. 
Devereux  (Thomas  P.).    North  Carolina  Supreme 

Court,  Equity  Cases,  1826-1834.    4  vols. 

Devereux  (Thomas  P.)  &  Battle  (William  H.). 
North  Carolina  Supreme  Court,  1834-1840. 
4  vols. 

Devereux  (Thomas  P.)  <fe  Battle  (William  H.). 
North  Carolina  Supreme  Court,  Equity  Cases, 
1834-1840.    4  vols. 

Dickens  (John).  High  Court  of  Chancery,  1659- 
1784.  2  vols.  Mr.  Dickens  was  a  very  at- 
tentive and  diligent  register;  but  his  notes, 
being  rather  loose,  are  not  to  be  considered 
as  of  very  high  authority.  Lord  Redesdale, 
1  Schoales  &  L.  Ir.  Ch.  240.  See,  also,  Sug- 
den.  Vend.  146.  A  few  cases,  where  the 
opinions  are  printed  from  manuscripts  pre- 
pared for  publication,  are  valuable.  Wallace, 
Report.  294. 

Dirleton  (see  John  Nisbet  of).  Decisions  of  the 
Lords  of  Council  and  Session,  1666-1677.  1 
vol. 

DoDSON  (John).  High  Court  of  Admiralty,  1811- 
1822.    2  vols. 

Douglas  (Sylvester,  Lord  Glenbervie).  Contested 
Elections  decided  in  Parliament,  15  &  16 
Geo.  III.    4  vols. 

Douglas  (Sylvester,  Lord  Glenbervie).  King's 
Bench,  19-25  Geo.  III.  4  vols.  Contained 
Lord  Mansfield's  decisions,  and,  with  Barron, 
highly  esteemed. 

Douglass  (Samuel  T.).  Michigan  Supreme  Court, 
1843-1847.    2  vols. 

Dc  iv  (P.).  Cases  in  the  House  of  Lords  upon  Ap- 
peals and  Writs  of  Error,  53-68  Geo.  III. 

6  vols. 

Dow  (P.)  &  Clark  (C).  Cases  in  Parliament, 
1827-1832.    2  vols. 

DoWLiNG  (Alfred  &  Vincent).  New  Series. 
Queen's  Bench,  Common  Pleas,  &  Exchequer, 
Trin.  T.  4  Vict.-East  T.  8  Vict.    2  vols. 

DowLiNG  (Alfred  S.  &  Alfred).  King's  Bench, 
Common  Pleas,  and  Exchequer,  Mich.  T.  1 
Will.  IV.-Trin.  T.  4  Vict.  9  vols.  The  first 
five  volumes  are  by  Alfred  S.,  the  last  four 
by  Alfred. 

DowLiNG  (Alfred)  <t  Lowndes  (John  James). 
Queen's  Bench,  Common  Pleas,  and  Ex- 
chequer, Trin.  T.  6  Vict.-East  T.  12  Vict. 

7  vols. 
ToL.  II.— 29 


DowLiNG  (James)  &  Ryland  (Archer).    Cases  at 

Nisi  Prius,  in  King's  Bench,  and  Home  Cir 

cuit,  1822,  1823.    1  vol. 
DowLiNG  (James)  &  Ryland  (Archer).  King'i 

Bench,  2-8  Geo.  IV.    9  vols. 
DovvLiNG  (James)  &  Ryland  (Archer).  Magis- 
trates' Cases  in  King's  Bench,  llil.  T.  2  Goo. 

IV.-East.  T.  8  Geo.  IV.    4  vols. 
Draper  (William  Henry).    King's  Bench,  Upper 

Canada,  1829^1831.    1  vol. 
Drewry  (Charles  S.).    High  Court  of  Chancery, 

1852-1859.    4  vols. 
Drewry  (Charles  S.)  &  Smale  (J.  Jackson).  High 

Court  of  Chancery,  1869-1861.    1vol.  Vol. 

2  is  in  course  of  publication. 
Drury  (William  B.).    Chancery  in  Ireland  in  Time 

of  Sugden,  1843,  1844.    1  vol. 
Drury  (W.  B.)  &  Walsh  (F.  W.).    Chancery  in 

Ireland  in  Time  of  Plunket,  1837-1840.  2 

vols. 

Drury  (W.  B.)  &  Warren  (Robert  B.).  Chancery 
in  Ireland  in  Time  of  Sugden,  1841-1843.  4 
vols, 

Dudley  (C,  W.).  South  Carolina  Court  of  Appeals, 
Law  Cases,  1837,  1838.    1  vol. 

Dudley  (C.  W,),  South  Carolina  Court  of  Ap- 
peals, Equity  Cases,  1837,  1838.    1  vol. 

Dudley  (G.  M.).  Superior  Courts  of  Law  and 
Equity  in  Georgia,  1830-1838.    1  voL 

DuER  (John).  Superior  Court  of  New  York  City, 
1852-1857.    6  vols. 

DuNLOP  (Alexander).    See  Sessions  Cases. 

DuNLOP  (Alexander)  &  Murray.  See  Sessions 
Cases. 

DuRFEE  (Thomas).    See  Rhode  Island. 
DuRiE.    Court  of  Sessions,  Scotch,  1621-1642.  1 
vol. 

DuRNFORD  (Charles)  &  East  (Edward  Hyde). 
See  Term. 

Dutcher  (Andrew).  New  Jersey  Supreme  Court, 
1855-1861.    6  vols. 

DwiGHT  (Theodore  W.).  Charity  Cases,  1515-1680. 
This  is  a  collection  of  cases  showing  the 
jurisdiction  of  the  Court  of  Chancery  over 
Charities  before  the  Statutes  of  Elizabeth. 

Dyer  (Sir  James).  King's  Bench  and  Common 
Pleas,  Exchequer  and  Chancery,  4  Hen. 
VIII.-23  Eliz.  Short  notes,  never  intended 
by  Dyer  to  have  been  published;  always  re- 
garded, however,  as  among  the  best  of  the 
old  reports.    Wallace,  Report.  87. 

Eagle  (F.  K.)  &  Younge  (E.).   Cases  relating  to 

Tithes,  1204-1825.    4  vols. 
East  (Edward  H.).    King's  Bench,  41  Geo.  III.- 

63  Geo.  IIL    16  vols. 
Eden  (Robert  H.).     High  Court  of  Chancery, 

1757-1766.     2  vols.     Published  from  the 

manuscript  of  Lord  Chancellor  Northington. 

Edgar  (John).  Court  of  Sessions,  1724,  1726.  1 
vol. 

Edwards  (Charles).     New  York  Chancery,  1831- 

1848.    4  vols. 
Edwards  (Thomas).     High  Court  of  Admiralty 

1808-1812.    1  vol. 

Elchie.  Court  of  Sessions,  Scotch,  1733-1754.  2 
vols. 

Election  Cases.    14  &  15  Geo.  III. 

Ellis  (Thomas  Flower)  &  Blackburn  (Colin). 
Queen's  Bench,  Mich.  T.  1852-Hil.  T.  185S. 


REPORTS 


450 


REPORTS 


8  vols.  Among  modern  reports  few  are 
more  valued  for  the  success  with  which  ex- 
traneous matter  is  stripped  and  nothing  but 
the  essence  of  the  case  presented  to  the 
reader.    9  Lond.  Law  Mag.  339. 

Ellis,  Best,  <fc  Smith.    See  Best  &  Smith. 

Ellis  (T.  F.),  Blackburn  (C),  <fc  Ellis  (Francis). 
Queen's  Bench,  Easter  and  Trinity  Terms 
and  Vacation,  1858.    1  vol. 

Ellis  (T.  F.)  &  Ellis  (F.).  Queen's  Bench,  1858, 
1859.  1  vol.  Vol.  2  is  in  course  of  publi- 
cation. 

English  (E.  H.).    See  Arkansas. 

Equity  Cases  Abridged.  High  Court  of  Chan- 
cery. This  work  is  a  digest,  rather  than  re- 
ports, and  is  frequently  cited.  The  first 
volume,  which  is  attributed  to  Pooley,  is  of 
excellent  authority;  the  second,  much  less 
so. 

Equity.    See  Spottiswoode. 

Espinasse  (Isaac).   Nisi  Prius  Cases  in  the  King's 

Bench  and  Common  Pleas,  33-47  Geo.  III., 

1793-1807.    6  vols. 
Exchequer.    Court  of  Exchequer  and  Exchequer 

Chamber,  10-19  Vict.     11  vols. 

Vol.  1-9,   V.  Welsby,  E.  T.  Hurlstone,  &  J. 
Gordon. 

10,11,  E.  T.  Hurlstone  &  J.  Gordon. 

Faculty  of  Advocates.  Court  of  Sessions,  1825, 
1826.  1  vol.  Collected  by  F.  Somerville, 
J.  Tawse,  J.  Craigie,  &  Ad.  Urquhart. 

Fairfield  (John).    See  Maine. 

Falconer  (Daniel).     Court  of  Sessions,  1744- 

1751.  1  vol. 

Falconer  &  Fitzherbert.  Election  Cases,  7  Will. 

IV.-2  Vict. 
Farresly.    See  Modern. 

Ferguson  (Sir  James).     Court  of  Sessions,  1738- 

1752.  1  vol.    See  Kilkerran. 

Finch  (Thomas).  High  Court  of  Chancery,  1689- 

1722.    1  vol. 
Flanagan  (Ste.  Woulfe)  <fc  Kelly  (Charles).  Rolls 

Court  in  Ireland,  1840-1842.    1  vol. 
Florida.    Supreme  Court,  1846-1859.    8  vols. 
Vol.  1,  1846.  Joseph  Branch. 

2  (part of ),  1847,  1848.    James  T.  Archer. 
2-4,       1849-1852.    David  P.  Hogue. 
5-8,       1853-1859.    Mariano  D.  Papy. 
f  OGG  (George  G.).    See  New  Hampshire. 
Foley  (  ).    Poor-Law  Decisions,  1  Car.  I.- 

13  Geo.  L 

FoNBLANQUE.    See  Equity  Cases  Abridged. 
Forbes  (William).    Lords  of  Council  and  Session, 

1705-1713.    1  vol. 
Forrest  (Robert).  Exchequer,  41  Geo.  III.,  1800, 

1801.    1  vol. 

Forrester  (John  Aland).  See  Cases  tempore 
Talbot. 

Fortesque  (John).  Select  Cases  in  all  the  Courts 
of  Westminster  Hall;  also  the  Opinion  of  All 
the  Judges  of  England  relative  to  the 
Grandest  Prerogatives  of  the  Royal  Family, 
and  some  Observations  relating  to  the  Pre- 
rogative of  a  Queen-Consort. 

Foster  (Michael).  Commission  for  Trial  of  Rebels 
in  1746,  and  Other  Crown  Cases.    1  vol. 

Foster  (T.  C.)  A  Finlason  (W.  F.).  Nisi  Prius 
Cases  on  Crown  Side,  on  Circuit  and  in 
Chambers,  1856-1862.  3  vols.  Vol.  4  is  in 
course  of  publication. 

ffosTER  (W.  L.).    See  New  Hampshire. 


Fountainhall  (Sir  John  Lander  of).  Lords 
Council  and  Session,  1678-1712.    2  vols. 

Fox   (Michael   C.)    &  Smith   (Thomas  B.  C. 
King's  Bench  and  Court  of  Errors,  Irish, 
1822-1824.    2  parts  in  one  volume. 

Eraser  (Simon).  Disputed  Elections  in  Parlia- 
ment, 1790.    2  vols. 

Freeman  (John  D.).  Mississippi  Supreme  Court, 
Chancery  Cases,  1839-1843.    1  vol. 

Freeman  (N.  L.).    See  Illinois. 

Freeman  (Richard).     High  Court  of  Chancery, 

1660-  1706.  1  vol.  This  volume  is  often 
cited,  without  any  apparent  reason,  as  2 
Freeman. 

Freeman  (Richard).  •  King's  Bench  and  Common 
Pleas,  1670-1704.  1  vol.  Freeman's  note- 
book having  been  stolen  by  a  student,  and 
these  reports  published  surreptitiously,  they 
were  for  a  long  time  but  little  esteemed.  Of 
late,  however,  they  have  been  re-edited,  and 
enjoy  a  higher  reputation  than  they  formerly 
did.    Wallace,  Report.  241,  302. 

Gale  (Charles  James).    Exchequer,  5-7  Will.  IV., 

1835,  1836.    2  vols. 

Gale  (C.  J.)  k  Davison  (Henry).  Queen's 
Bench  and  Exchequer  Chamber,  East.  T. 
1841-East.  T.  1843.    3  vols. 

Gallison  (John).  United  States  Circuit  Court, 
First  Circuit,  1812-1815.    2  vols. 

Gardenhire  (James  B.).    See  Missouri. 

George  (James  Z.).    See  Mississippi. 

Georgia.  Supreme  Court  Cases  at  Law  aud  in 
Equity. 

Vol.  1-3,   1846,  1847.    James  M.  Kelly. 

4,  5,    1848.  James  M.  Kelly  k  T.  R. 

R.  Cobb. 
6-20,  1849-1857.    T.  R.  R.  Cobb. 
21-29,  1857-1860.    B.  T.  Martin. 
See  Charlton  ;  Dudley. 
Georgia  Decisions.    Superior  Courts  of  Georgia, 

1842,  1843.    1  voL 
Gibbs  (George  C).    See  Michigan. 
GiFFARD  (J.  W.  de  Longueville).    High  Court  of 
Chancery,  1858-1862.    3  vols.    Vol.  4  is  in 
course  of  publication. 
Gilbert.    Cases  in  Law  and  Equity,  12,  13  Anne. 
A  posthumous  work,  containing  one  or  two 
cases  well  reported,  but  generally  consisting 
of  loose  notes  very  badly  edited.  Wallace, 
Report.  251.    Commonly  cited  as  Gilbert's 
Cases. 

Gilbert.  King's  Bench,  Exchequer,  and  Chancery, 
4  Anne-12  Geo.  L 

Gill  (Richard  W.).  Maryland  Court  of  Appeals, 
1843-1851.    9  vols. 

Gill  (R.  W.)  &  Johnson  (John).  Maryland 
Court  of  Appeals,  1829-1842.    12  vols. 

GiLMAN  (Charles).    See  Illinois. 

Gilmer  (Francis).  Virginia  Court  of  Appeal^ 
1820,  1821.  1  vol.  Sometimes  cited  as  Vir- 
ginia (Reports). 

GiLMOUR  k  Falconer.  Court  Df  Sessions,  Scotch, 

1661-  1685.    1  vol. 

Gilpin  (Henry  D.).  United  States  District  Court, 
Eastern   District  of  Pennsylvania,  1828- 

1836.  1  vol. 

Glanville  (John).  Election  Cases  decided  by 
the  House  of  Commons,  21,  22  Jao.  1.  1 
vol. 

Glascock  (Walter).  King's  Bench,  Comnr  s, 
and  Exchequer,  in  Ireland,  1831, 18  l 


REPORTS 


451 


REPORTS 


Glyn  (Thomas  C.)  &  Jameson  (Robert  S.). 
Bankruptcy  Cases,  Mich.  T.  1821-East.  T. 
1828.    2  vols. 

GODBOLT.  Cases  in  the  Several  Courts  at  West- 
minster Hail  in  the  Reigns  of  Elizabeth 
James  I.,  and  Charles  I. 

GouLDSBORoiiGii  (J.).  Cases  in  all  the  Courts  at 
Westminster  during  the  Last  Years  of  the 
Reign  of  Elizabeth.      See  Brownlow  & 

GOIJI.DSBOROUGH, 

Gow  (Nicl).  Nisi  Prius  Cases  in  Common  Picas 
and  on  Oxford  Circuit,  59  Geo.  III. -I  Geo. 
IV.,  1818-1820.    1  vol. 

Grant  (Alexander).  Upper  Canada  Chancery, 
1849-1861.    8  vols. 

(Q-RANT  (Benjamin).   Pennsylvania  Supreme  Court. 

Cases  not  reported  by  the  State  Reporter, 

1852-1863.    3  vols. 
Qrattan  (Peachy  P.).    Virginia  Court  of  Appeals, 

1844-1860.    15  vols. 
Gray  (Horace,  Jr.).  Massachusetts  Supreme  Court, 

1854-1860.    16  vols. 
Green  (Henry  W.).    New  Jersey  Chancery  Re- 
ports, 1838-1845.    3  vols. 
Grken  (J.  S.).    New  Jersey  Supreme  Court,  1831- 

1836.    3  vols. 
Greene  (George).     Iowa  Supreme  Court,  1847- 

1852.    5  vols.    See  Iowa. 
Greenleap  (Simon).    See  Maine. 
Greenleaf  (Simon).    A  Collection  of  Overruled, 

Denied,  and  Doubted  Decisions  and  Dicta. 

1  vol. 

Griswold  (Hiram).    See  Ohio. 
GwiLLiM  ^Sir  Henry).    Cases  respecting  Tithes, 
1224-1824. 

Haggard  (John).    Consistory  Court  of  the  City  of 

London,  1789-1802.    2  vols. 
Haggard  (John).  Ecclesiastical  Courts  at  Doctors' 

Commons  and  High  Court  of  Delegates, 

1827-1832.    3  vols,  and  part  of  a  4th. 
Haggard  (John).  High  Court  of  Admiralty,  1822- 

1838.    3  vols. 
Hailes  (Lord),   (David   Dalrymple).    Lords  of 

Council  and  Session,  1766-1791.    2  vols. 
Hall  (Frederic  J.)  &  Twells  (Philip).  High 

Court  of  Chancery  in  the  Time  of  Cottenham, 

1849,  1850.    2  vols. 
Hall  (Jonathan   Prescott).     Superior  Court  in 

New  York  City,  1828,  1829.    2  vols. 

Hall  (John  E.).    Law  Journal,  1808-1817.   6  vols. 

Hall  (J.  P.).  Journal  of  Jurisprudence,  1670- 
1821     1  vol. 

Halsted  (George  B.).  New  Jersey  Chancery  in 
Time  of  Oliver  S.  Halsted,  1845-1853.  4  vols. 

Halsted  (William).  New  Jersey  Supreme  Coiurt, 
1821-183L    7  vols. 

Hamerton,  Allen,  <t  Otter.  See  New  Sessions 
Cases. 

Hamilton  (Robert).  Court  of  Sessions,  1769- 
1772.    1  vol. 

Hammond  (Charles).    See  Ohio. 

Handy  (R.  G.  &  J,  H.).  Superior  Court  of  Cin- 
cinnati, 1854-1856.    2  vols. 

Hanmer  (J.  W.),  editor  of  Kenyon,  which  see. 

Harcrease  (Sir  Roger  H.).  Court  of  Sessions, 
1681-1691.    1  vol. 

Hardin  (Martin  D.).  Kentucky  Court  of  Appeals, 
1805-1808.    1  vol. 

IIardrks  (Sir  T.).  Exchequer,  1655,  21  Car.  IL 
1  vol. 


Hare  (Thomas).  High  Court  of  Chancery,  1841- 
1853.    10  vols,  and  Index. 

Hare  (Thomas).    See  Railway  &  Canal  Cases. 

Hake  (J.  I.  C.)  &  Wallace  (IL  B.).  American 
Leading  Cases.    2  vols. 

Hargrave  (Francis).  State  Trials  and  Proceedings 
for  High  Treason,  11  Rich.  Il.-lO  (Jeo.  III. 
11  vols.  For  a  full  account  of  the  character 
and  value  of  this  work,  which  is  an  immense 
collection  of  Ciiscs  brought  together  by 
hunting  though  every  collection  in  England, 
and  therefore  having  very  diflerent  degieo« 
of  merit,  sec  Wallace,  Report.  54-59. 

Harmon  (John  B.).    See  Calh-ounia. 

Harper  (William).  South  Carolina  Constitutional 
Court,  1823,  1824.    1  vol. 

Harper  (William).  South  Carolina  Court  of  Ap- 
peals, Equity  Cases,  1824.    1  vol. 

Harrington  (Edmund  Burke).  Michigan  Chan- 
cery, 1836-1842.    1  vol. 

Harrington  (Samuel  M.).  Delaware  Supreme 
Court,  1832-1856.    5  vols. 

Harris  (George  W.).    See  Pennsylvania  State. 

Harris  (Thomas)  &  Gill  (Richard  W.).  Mary- 
land Court  of  Appeals,  1826-1829.    2  vols. 

Harris  (Thomas)  &  Johnson  (Reverdy).  Mary- 
land General  Court  and  Court  of  Appeals, 
1800-1826.    7  vols. 

Harris  (Thomas)  &  M'Henry  (John).  Maryland 
General  Court  and  Court  of  Appeals,  1700- 
1799.  4  vols.  The  first  volume  contains 
cases  in  the  Roving  Court  and  Court  of  Ap- 
peals prior  to  the  Revolution. 

Harrison  (Benjamin).    See  Indiana. 

Harrison  (Josiah).  New  Jersey  Supreme  Court, 
1837-1842.    4  vols. 

Harrisou  (S.  B.)  &  WoLLASTON  (F.  L.).  King's 
Bench  and  Bail  Court,  Hil.  T.  5  Will.  IV.- 
Mich.  T.  7  WilL  IV.,  1835,  1836.    2  vols. 

Hartley  (Oliver  C).    See  Texas. 

Hartley  (0.  C.  &  R.  K.).    See  Texas. 

Hawaii.    Supreme  Court.    1  vol. 

Hawks  (Francis  L.).  North  Carolina  Supreme 
Court,  1820-1826.  4  vols.  The  first  volume 
was  partly  reported  by  Ruffin. 

Hay  &  Marriott.    See  Marriott. 

Hayes  (Edmund).  Irish  Exchequer,  Hil.  T.  10 
Geo.  IV.-East.  T.  2  Will.  IV.    1  vol. 

Hayes  (EJmund)  &  Jones  (Thomas).  Irish  Ex- 
chequer, Trin.  T.  2-Triu.  T.  4  Will.  IV.  1  vol. 

Haywood  (John).  North  Carolina  Superior  Courts 
of  Law  and  Equity,  1789-1806.  2  vols. 
Tennessee  Court  of  Error  and  Appeals,  1816- 
1818.  3  vols.  The  three  latter  volumes  are 
uniformly  numbered  3-5  in  the  same  series 
with  the  first  two,  and  are  cited  3-5  Haywood. 

Head  (John  W.).  Tennessee  Supreme  Court,  1858, 
1859.    2  vols. 

Heath  (Solyman).    See  Maine. 

Hemming  (George  W.)  &  Miller  (Alexander  Ed- 
ward). High  Court  of  Chancery  before  the 
Vice-Chancellor,  26  &  27  Vict.,  1862-1864. 
1  vol.    Vol.  2  is  in  course  of  publication. 

Hempstead  (Samuel  H.).  United  States  Circuit 
Court,  Ninth  Circuit,  1839-1856.  Supreme 
Court  for  the  Territory  of  Arkansas,  1820- 
1836.  United  States  District  Court  for  the 
District  of  Arkansas  1836-1849.    1  vol. 

Hening  (William  W.)  &  Munford.  Virginia  Court 
of  Appeals,  1806-1809.  4  vols.  1:ondensed 
by  Minor  into  one  volume. 


REPORTS 


Hepburn  (H.  P.).    See  California. 
Hbtley  (Sir  Thomas).    Common  Pleas,  3-7  Car. 

I.  1  vol.  Not  marked  by  any  peculiar  skill, 
accuracy,  or  information.    Dougl.  ix. 

Hill  (Nicholas,  Junior).  New  York  Supreme 
Court  for  Correction  of  Errors,  1841-1844. 
7  vols. 

Hill  (W.  R.).    South  Carolina  Court  of  Appeals, 

1833-1837.    3  vols. 
Hill  (W.  R.).    South  Carolina  Court  of  Appeals, 

Chancery  Cases,  1833-1837.    2  vols. 
Hill  (N.,  Jr.)  &  Denio  (H.).    See  Lalob. 
HiLLYER  (Curtis  J.).    See  California. 
Hilton  (Henry).    Common  Pleas  in  New  York 

City,  1855-1860.    2  vols. 
Hobart  (Sir  Henry).    Common  Pleas  and  Chan- 
cery, 1-23  Jac.  I.    Hobart  was  a  great  judge  ; 

and  these  reports,  which  are  by  himself,  have 

always  been  esteemed.     Wallace  (Report. 

163)  cites  from  Judge  Jenkins  a  splendid 

tribute  to  his  character. 
Hodges  (William).    Common  Pleas,  Hil.  T.  5  Will. 

IV.-Mich.  T.  1  Vict.,  1835-1837.    3  vols. 
Hoffman  (Murray).    New  York  Chancery,  1839, 

1840.    1  vol. 

HoGAN  (John).    Pennsylvania  State  Trials.    1  vol. 

HoGAN  (William).  Rolls  Court  in  Ireland,  1816- 
1831.    2  vols. 

HoGUE  (David  P.).    See  Florida. 

HoLCOMBE  (James  P.).  Leading  Cases  upon  Com- 
mercial Law  decided  by  the  United  States 
Supreme  Court. 

Holt.    See  Reports  tempore  Holt. 

Holt  (Francis  Ludlow).  Nisi  Prius  Cases  in  the 
Common  Pleas  and  in  the  Northern  Circuit, 
55-58  Geo.  III.    1  vol. 

Holt  (William).  Vice-Chancellor's  Court,  8  A  9 
Vict.    1  vol. 

Home  (Clerk).  Court  of  Sessions,  1736-1744.  1  vol. 
Hooker  (John).    See  Connecticut. 
Hopkins  (Samuel  M.).   New  York  Chancery,  1823- 
1826.    1  vol. 

HoPKiNSON  (Francis).  A  Few  Cases  in  Admiralty 
in  Pennsylvania,  principally  in  1785.    1  vol. 

HopwooD  (C.  H.)  &  Philbrick  (F.  A.).  Registra- 
tion Cases  in  the  Court  of  Common  Pleas, 
28  Vict.    Vol.  1  is  in  course  of  publication. 

Horn  (Henry)  <fc  Hurlstone  (E.  T.).  Exchequer 
and  Exchequer  Chamber,  1  <fc  2  Vict.,  1838, 
1839.    1  vol. 

House  of  Lords  Cases.  Cases  in  the  House  of 
Lords,  1847-1864.  10  vols.  Vol.  11  is  in 
course  of  publication. 

Vol.  1-4,  1847-1854.   4  vols.   Charles  Clark 
&  W.  Finelly. 
6-10,  1854-1864.  6  vols.  Charles  Clark. 
HovENDEN  (John  E.).   Notes  to  Vesey,  Junior,  em- 
braced in  Sumner's  edition. 
Howard  (Benjamin  C).    United  States  Supreme 

Court,  1843-1860.    24  vols. 
Howard  (G.  E.).    Popery  Cases  in  Ireland,  Geo. 

II.  -Geo.  IIL 

Howard  (Nathan,  Jr.).  New  York  Court  of  Ap- 
peals, 1847,  1848.    1  vol. 

Howard  (Nathan,  Jr.).  Practice  Cases  in  the  New 
York  Superior  Court  and  Court  of  Appeals, 
1844-1865.    28  vols. 

Howard  (Volney  E.).    See  Mississippl 

Howell  (Thomas  Bayly  &  Thomas  Jones).  State 
Trials  and  Proceedings  for  High  Treason 


REPORTS 


and  other  Crimes  and  Misdemeanors.  9  H 
II.-l  Geo.  IV.,  1163-1820.  33  vols.,  a 
Index. 

Vol.  1-21,  9  Hen.  II.-23  Geo.  IIL  T. 

Howell. 

22-33,  23  Geo.  III.-l  Geo.  IV.  T. 

Howell. 

This  is  an   immense  collection  of  case 
brought  together  by  hunting  through  every 
collection  in  England,  and,  therefore,  having 
very  different  degrees  of  merit.    For  a  full 
account  of  its   character   and  value,  see 
Wallace,  Report,  54-59. 
Hubbard  (Wales).    See  Maine. 
Hudson  (William  E.)  &  Brooke  (John).  King's 
Bench  <fe  Exchequer  in  Ireland,  Hil.  T.  7 
Geo.  III.-East.  T.  1  Will.  IV.    2  vols. 
Hughes.    Kentucky  Supreme  Court,  1785-1801. 
1  vol. 

Humphreys  (West  H.).    Supreme  Court  of  Ten 

nessee,  1839-1851.    11  vols. 
Hunt.    King's  Bench  Annuity  Cases,  34  Geo.  Ill, 
Hurlstone  (E.  T.)  <fc  Coltman  (F.  J.).  Exchequer 

and  Exchequer  Chamber,  1862-1865.  2  vols 

Vol.  3  is  in  course  of  publication. 
Hurlstone  (E.  T.)  &  Gordon  (J.).    See  Exche 

quer. 

Hurlstone  (E.  T.)  &  Norman  (J.  P.).  Excbeque? 

and  Exchequer  Chamber,  19-25  Vict.,  1856- 

1862.    7  vols. 
Hurlstone  (E.  T.)  A  Walmesly.    Exchequer  and 

Exchequer  Chamber,  3-4  Vict. 
Hutton  (Sir  Richard).    Common  Pleas,  16  Jac.  1. 

-12  Car.  I.    1  vol.    This  book,  says  Mr. 

Wallace,  seems  to  belong  to  that  class  of 

literary  productions  which  do  not  obtain 

notoriety  enough  to  be  abused.  Wallace, 

Report.  179. 

Illinois.    Illinois  Supreme  Court,  1819-1863.  31 
vols. 

Vol.  1,       1819-1830.    Sydney  Breese. 

2-  6,     1832-1843.    J.  Young  Scammon 
6-10,   1844-1849.    Charles  Gilman. 
11-30,  1849-1863.    E.  Peck. 

31,      1863.  Norman   L.  Free- 

man. 

Indiana.    Indiana  Supreme  Court,  1847-1864.  22 
Tols. 

Vol.  1,  2,     1847-1861.    Horace  E.  Carter. 

3-  7,     1861-1856.    Albert  G.  Porter. 

8-  14,  1856-1860.  Gordon  Tanner.  , 
16-17,  1860,  1861.  Benjamin  Harrison.  ^ 
18-22,  1862-1864.    Michael  C.  Kerr. 

See  Blackford  ;  Smith,  T.  L. 
Iowa.  Supreme  Court  of  Iowa,  1853-1863.  14  vols. 
Vol.  1-8,   1853-1859.    W.  Penn  Clarke. 

9-  14,  1859-1863.    Thomas  F.  Withrow. 
See  Greene;  Morris. 

Iredell  (James).    North  Carolina  Supreme  Court, 

Equity  Cases,  1840-1862.    8  vols. 
Iredell  (James).    North  Carolina  Supreme  Court, 

Law  Cases,  1840-1862.    13  vols. 
Irish  Equity.    Cases  in  Chancery  Rolls  Court  and 

Equity  Exchequer,  in  Ireland,  MicL.  T.  1838 

-Hil.  T.  1861.    13  vols.,  by 

Babington,  William  St.  Leger,  vols.  10-12 

Boyle,  J.  P.,  6,  7. 

Creighton,  John  C,  5-9. 

Deane,  John  C,  3,  4. 

Deasy,  R.,  3-6. 

Haig,  Charles,  1,  2. 

Jones.  Thomas,  3-5. 

Moore,  Ross  S.,  1-9. 

Morgan,  Lewis,  8-12. 


452 


REPORTS 


453 


REPORTS 


Stoker,  William  Beauchainp,  1-5. 
Trevor,  Edward  S.,  6-12. 
Waller,  John  F.,  6-12. 
Walsh,  John  E.,  6-12. 
Irish  Equity  Reports.    New  Series.    Cases  in 
Chancery  and  Rolls  Court,  in  Ireland,  1850- 
1864.    14  vols.   Vol.  15  is  in  course  of  publi- 
cation. 

laien  Law.  Cases  in  the  Irish  Courts  of  Law, 
Queen's  Bench,  Common  Pleas,  and  Ex- 
chequer, Mich.  T.  1838-Hil.  T.'l850.  13 
vols.,  by 

Adair,  John,  vol.  2. 

Armstrong,  John  S.,  4-13. 

Babington,  William  St.  Leger,  10-13. 

Boyle,  J.  P.,  6,  7. 

Brady,  Francis,  1-5. 

Fallon,  William  H.,  6-13. 

Jones,  Thomas,  3-5. 

M'Causland,  Dominick,  3-11. 

Moore,  Ross  S.,  1-9. 

Morgan,  Lewis,  8-12. 

Stokes,  Gabriel,  1-5. 

Westropp,  Michael  R.,  9-12. 
Irish  Law  Reports.    New  Series.    Cases  in  the 

Irish  Courts  of  Law,  Queen's  Bench,  Com- 
mon Pleas,  and  Exchequer,  1850-1864.  14 

vols.    Vol.  15  is  in  course  of  publication. 
Irish  Term.    See  Ridgway,  Lapp,  &  Schoales. 
Irvine  (Alexander  F.).    High  Court  and  Circuit 

Court  of  Justiciary.    3  vols.    Vol.  4  is  in 

course  of  publication. 

Facob  (Edward).  High  Court  of  Chancery  in  the 
Time  of  Eldon,  1821, 1822.    1  vol. 

Tacob  (Edward)  &  Walker  (John).  High  Court 
of  Chancery  in  the  Time  of  Eldon,  1819- 
1821.    2  vols. 

James  (Alexander).  Supreme  Court  of  Nova 
Scotia,  1853-1855.    1  voL 

Jebb  (Robert).  Crown  Cases  reserved  and  de- 
cided by  the  Twelve  Judges  of  Ireland,  1822 
-1840.    1  vol. 

Jebb  (Robert)  &  Burke  (Richard).  Queen's  Bench 
in  Ireland,  1841,  1842.    1  vol. 

Jebb  (Robert)  <fc  Symes  (Arthur  R.).  Queen's 
Bench  and  Exchequer  in  Ireland,  1838- 
1841.    2  vols. 

Jefferson  (Thomas).  Virginia  General  Court, 
1730-1740,  1768-1772.    1  voL 

Jenkins  (David).  Exchequer,  4  Hen.  III.-21 
Jac.  I.  Eight  centuries,  or  eight  hundred 
cases.  1  vol.  See  an  interesting  account 
of  Jenkins,  who  was  a  Welsh  judge,  by  Mr. 
D'Israeli,  given  in  Wallace's  Reporters,  page 
59.  The  reports  of  Jenkins  were  prepared 
in  prison,  where  Jenkins  was  put  for  his 
loyalty  to  Charles  I.  and  kept  for  fifteen 
years.    The  book  is  of  excellent  authority. 

Johnson  (Henry  R.  V.).  High  Court  of  Chancery, 
21-24  Vict.,  1858-1860.    1  voL 

Johnson  (H.  R.  V.)  &  Hemming  (George  W.). 
High  Court  of  Chancery,  1859-1862.   2  vols. 

Johnson  (J.).  See  Maryland  Chancery  De- 
cisions. 

J:nNS0N  (William).    Cases  in  the  New  York  Court 

of  Errors,  1799-1803.    3  vols. 
Johnson  (William).    New  York  Chancery,  1814- 

1823.    7  vols. 
Johnson  (William).    New  York  Supreme  Court, 

Court  for  Correction  of  Errors  and  Trial  of 

Impeachments,  1806-1823.    20  vols. 
Jones  (Edward  C).  Upper  Canada,  Common  Pleas, 

1850-1860.    10  vols. 


Jones  (Hamilton  C.;.  North  Carolina  Supreme 
Court,  Equity  Cases,  1853-1860.    5  vols. 

Jones  (Hamilton  C).  North  Carolina  Snprem* 
Court,  Law  Cases,  1853-1860.    7  vols. 

Jones  (Horatio  M.).    See  Missouri. 

Jones  (J.  P.).    See  Pennsylvania. 

Jones  (Sir  Thomas).  King's  Bench  and  Common 
Pleas,  Special  Cases,  in  the  Reign  of  Car.  II. 

Jones  (Thomas).    Exchequer  in  Ireland,  Mich.  T. 

5  Will.  IV.-l  Vict.    2  vols. 

Jones  (Thomas)  &  Carey.  Irish  Exchequer,  2  A  3 
Vict.    1  vol. 

Jones  (Thomas)  &  Latouche  (Edmund  Diggea). 
Irish  Chancery  in  the  Time  of  Sugden,  1844 
-1846.    3  vols. 

Jones  (Sir  William).  King's  Bench  and  Common 
Pleas,  House  of  Lords,  and  Exchequer  Cham- 
ber, 18  Jac.  I.-16  Car.  I.  It  is  a  book  of 
good  authority.  It  is  sometimes  cited  as  let 
Jones,  to  distinguish  it  from  W.  Jones,  which 
is  then  correspondingly  cited  as  2d  Jones. 

Jurist.    All  the  Courts,  1837-1854.    18  vols. 

Jurist.  New  Series.  All  the  Courts,  1855-1865. 
11  vols. 

Kames.     Court  of  Sessions,  Scotch,  Remarkable 

Cases,  1716-1752.    2  vols. 
Kames.    Court  of  Sessions,  Scotch,  Select  Cases, 

1752-1768.    1  vol. 
Kansas.    Supreme  Court  of  Kansas,  1863.    1  vol. 

By  Eliot  V.  Banks. 
Kay  (Edward  E.).    High  Court  of  Chancery,  16 

6  17  Vict.,  1853,  1854.    1  voL 

Kay  (E.  E.)  &  Johnson  (Henry  R.  Vaughan). 
High  Court  of  Chancery,  1854-1858.  4 
vols. 

Keane  (B.)  &  Grant.  Registration  Cases,  17-19 
Vict. 

Keble  (Joseph).  King's  Bench,  12-20  Car.  IL  3 
vols.  Not  a  satisfactory  reporter,  but  a  pretty 
good  register,  and  more  esteemed  of  late, 
perhaps,  than  formerly.  Wallace,  Report. 
207,-  Farrell  vs.  Hilditch,  94  Eng.  C.  L. 
885. 

Keen  (Benjamin).  Rolls  Court,  6  Will.  IV.-2 
Vict.    2  vols. 

Keilwey  (Robert).  King's  Bench  and  Common 
Pleas,  6  Edw.  I.-21  Hen.  VIII.  The  vo- 
lume, having  been  edited  by  a  person  named 
Croke,  is  sometimes  cited  as  Croke's  Reports. 
See  Wallace,  Report.  84. 

Kelly  (James  M.).    See  Georgia. 

Kelly  (J.  M.)  &  Cobb  (T.  R.  R.).    See  Georgia. 

Kelyng  (Sir  John).  King's  Bench,  14-20  Car.  II. 
1  vol. 

Kelynge  (Sir  William).    King's  Bench  and  Chan- 
cery, 4-8  Geo.  II.    1  vol. 
Kentucky.   See  Bibb;  Dana;  Hardin;  Hughes; 

Littell;  Marshall;  Metcalfe;  Monroe. 
Kentucky  Decisions.   Supreme  Court,  1801-1805. 

1  vol.    By  Sneed. 
Kenyon  (Lloyd).    King's  Bench,  East.  T.  26  Geo- 

II.-East.  T.  32  Geo.  II.    2  vols. 
Kernan  (Francis).    See  New  York. 
Kerr  (David  Shank).    New  Brunswick  Supreme 

Court,  1840-1842.    1  vol. 
Kerr  (Michael  C).    See  Indiana. 
Kilkerran  (Sir  James  Ferguson  of).     Courts  of 

Session,  1738-1752.  1  vol.  Sometimes  cited 

as  Ferguson. 
King  (William  W.).    See  Louisiana. 


REPORTS 


454 


REPORTS 


King's  Bench,   Upper   Canada,  Old  Series. 
King's  Bench  and  Practice  Reports,  1831- 
1843.    6  vols. 
Vol.  1-5,  J.  L.  Robinson. 

6,  Christopher  Robinson. 

KiRBY  (Ephraiin).  Connecticut  Supreme  Court 
and  Court  of  Errors,  1785-1788.    1  vol. 

Knapp  (Jerome  William).  Privy  Council,  1829- 
1836.  3  vols.  Third  volume  by  Knapp  & 
Moore. 

KXAPP  (J.  W.)  A  Ombler  (Edward).  Elections 
contested  in  Parliament,  1834-1837.   1  vol. 

Kncwles  (John  P.).    See  Rhode  Island. 

Lalor  (T.  M.).  New  York  Supreme  Court  and 
Court  of  Errors.  Supplement  to  Hill  & 
Denio,  1842-1844.    1  vol. 

Lander.    See  Fountainhall. 

Lane  (Richard).    Exchequer,  3-9  Jac.  I.    1  vol. 

Lansing.  New  York  Supreme  Court  and  Chancery, 
1824-1826.    1  vol. 

Lapp.    See  Irish  Term. 

Latch  (John).  King's  Bench,  1-31  Car.  I.  Not 
very  highly  esteemed.  The  original  English 
edition  is  in  French,  but  it  has  been  trans- 
lated in  the  United  States  by  Martin.  See 
Wallace,  Report.  191. 

Law  Journal.  All  the  Courts,  1823-1865.  39 
vols. 

Law  Magazine,  London,  1829-1856.  55  vols. 
Now  united  with  Law  Review,  and  con- 
tinued as  Law  Magazine  and  Review. 

Law  Recorder.  All  the  Courts  in  Ireland,  7  Geo. 
IV.-2  Will.  IV.  Second  Series,  3  Will. 
IV.-l  Vict.    Third  Series,  2  Vict.- 

Law  Reporter.    1838-    27  vols. 

Law  Review,  English,  1844-1855.  23  vols.  Then 
united  with  the  Law  Magazine. 

Law  Times.  All  the  Courts,  6  Vict.-1858.  New 
Series,  1859-1864.    9  vols. 

Lawrence  (William).    See  Ohio. 

Le  Marchant  (Denis).  Barony  Gardner  Case  in 
House  of  Lords,  5  Geo.  IV. :  with  Appendix 
containing  Legitimacy  Cases. 

Leach  (Thomas).  Cases  in  Common  Law  deter- 
mined by  the  Twelve  Judges,  4  Geo.  II.- 
55  Geo.  IIL    2  vols. 

Lee  (Sir  George).  Arches  and  Prerogative  Courts 
of  Canterbury,  and  High  Court  of  Delegates, 
1752-1758.  2  vols.  Containing,  also,  a  few 
cases  between  1724  and  1733.  By  Philli- 
more. 

Lefroy  (Thomas  E.  P.).  See  Railway  &  Canal 
Cases. 

Legal  Intelligencer.    1845-   13  vols. 

Legal  Observer.  All  the  Courts,  1  Will,  IV.- 
21  Vict.  ■ 

Leigh  (Benjamin  Watkins).     Virginia  Court  of 

Appeals,  1829-1841.    12  vols. 
Leigh  (G.  C.)  &  Care  (L.  W.).    Crown  Cases 

Reserved,  1861-1865.    Vol.  1,  6  parts. 

Leonard  (William).  King's  Bench,  Common 
Pleas,  and  Exchequer,  6  Edw.  VI.-12  Jac. 
I.  A  very  good  and  much-esteemed  re- 
porter; one  of  the  best,  indeed,  of  the  old 
books.  See  Wallace,  Report.  99,  citing 
Sugden,  Lord  Nottingham,  and  Sir  George 
Treby. 

Leyinz  (Sir  Crcswell).  King's  Bench,  12  Car.  II.- 
Trip.  T.  8  Will.  III.    3  parts. 


Lewin  (Sir  Gregory  A.).  Crown  Cases  on  Northei 
Circuit,  1822-1828.    2  vols. 

Ley  (Sir  James).  King's  Bench,  Common  Pleaa, 
Exchequer,  and  Court  of  Wards,  1-4  Car.  I, 
Containing  some  cases  pretty  well  reported, 
but,  generally  speaking,  mere  scraps  of 
cases.  The  book  is  seldom  cited.  Wallace, 
Report.  175. 

Lilly  (John).  Cases  in  Assize  for  Offices,  Nui- 
sances, Lands,  and  Tenements,  3-6  Jac.  II. 
A  scarce  and  worthless  book. 

LiTTELL  (William).  Kentucky  Court  of  Appeals, 
1822-1824.    5  vols. 

LiTTELL  (William).  Kentucky  Court  of  Appeala, 
Select  Cases,  1795-1821.    1  vol. 

Littleton  (Edward).  Common  Pleas  and  Ex- 
chequer, 2-7  Car.  I.    1  vol. 

Lloyd  (Bartholomew  Clifford)  &  Goold  (Francis). 
Irish  Chancery  in  the  Times  of  Sugden  and 
Plunket,  1834-1838.    2  vols. 

Lloyd  (B.  C.)  &  Welsby  (U.  N.).  King's  Bench, 
East.  T.  1829-East.  T.  1830.  1  vol.  Con- 
taining some  mercantile  cases.  An  incom- 
plete volume. 

LoCKWOOD  (Ralph).  New  York  Court  of  Errors, 
Reversed  Cases,  1799-1847.    1  vol. 

LoPFT  (Capel).  King's  Bench,  Common  Pleas, 
and  Chancery,  East.  T.  12  Geo.  III.-Mich. 
T.  14  Geo.  IIL  1  vol.  Not  a  very  highly- 
esteemed  reporter,  but  the  only  volume  giving 
an  account  of  the  great  case  of  the  negro 
Somerset. 

LoNGFiELD  (Robert)  &  Townsend  (John  Fitz- 
henry).   Irish  Exchequer,  4  &  5  Vict.  1  vol. 

Louisiana.  Louisiana  Supreme  Court,  1830-184L 
19  vols. 

Vol.  1-6,  1830-1834.    Branch  W.  Miller. 

6-  19,1834-1841.    Thomas  Curry. 
See  Martin;  Morgan. 

Louisiana  Annual.  Louisiana  Supreme  Court, 
1846-1860.    15  vols. 

Vol.  1-4,  1846-1849.   Merritt  M.  Robinson.  : 

5-  6,  1850,  1851.   William  W.  King. 

7-  12, 1852-1857.  William  M.  Randolph. 
13-15,1858-1860.  A.  N.  Ogden. 

Louisiana  Term.    See  Martin. 
Lower  Canada.    1850-1861.    11  vols.  1 
Vol.  1-5,  1850-1855.    Lelidvre  et  Angers. "  \ 
Beaudry  et  Fleet.  ^ 

6-  11,1855-1861.    Lelievre  et  Angers,  i 

Beaudry  et  Robinson,  j 
Lowndes  (John  James),  Maxwell  (Peter  B.),  & 
Pollock  (Charles  Edward).  Queen's  Bench, 
Common  Pleas,  and  Exchequer  Practice 
Cases,  Hil.  T.  13-Mich.  T.  15  Vict.   2  vols. 

Lucas  (Robert).     King's  Bench  and  Chancery, 

chiefly  during  the  Time  of  Macclesfield,  9-13 

Anne.    1  vol.    See  Modern. 
LuDDEN  (Timothy).    See  Maine.  ^ 
Luders  (Alexander).    Contested  Elections  in  the 

House  of  Commons,  1784-1786.    3  vols. 
Lumley  Poor-Law  Cases,  3  Will.  IV.- 

6  Vict. 

Lushington  (Vernon).  High  Court  of  Admiralty 
and  Privy  Council  on  Appeal,  1859-1862. 
1  vol. 

Lutwyche.    Election  Cases,  7-17  Vict. 
Lutwyche  (Sir  Edward).  Common  Bench,  34  Car. 

II.-2  Anne.    2  vols. 
Lutwyche  (Thomas).    See  Modern. 

M'Cleland   ^T.).      Exchequer  and  Exchequer 


REPORTS 


455 


REPORTS 


Chamber  at  Law  and  in  Equity,  4  <fe  5  Geo. 
IV,    1  vol. 

M'CLELANn  (T.)  <fc  YouNGE  (E.)-  Exchequer  and 
Exchequer  Chamber,  5  &  6  Geo.  IV.    1  vol. 

M'CoRD  (Daniel  James).  South  Carolina  Consti- 
tutional Court,  1821-1828.    4  vols. 

M'CoRD  (Daniel  James).  South  Carolina  Court 
of  Appeals,  Chancery  Cases,  1825-1827.  2 
vols. 

M'MuLLAN  (J.  J.).  South  Carolina  Court  of  Ap- 
peals, Equity  Cases,  1840-1842.    1  vol. 

M'MuLLAN  (J.  J.).     South  Carolina  Court  of  Ap- 
peals, Law  Cases,  1835-1842.    2  vols. 
.MacFarlane.      Jury  Court,  Scotch,  1838,  1839. 
1  vol. 

Maclaurix  High  Court  of  Justiciary. 

Criminal  Cases,  1670-1767. 
Maclean  (Charles  Hope)  &  Robinson  (George). 

House  of  Lords  on  Appeals  and  Writs  of 

Error,  2  <fe  3  Vict.    1  vol. 
Macnaghten  (W.  H.).     Cases  determined  in  the 

Court  of  Nizamut  Adawlut,  1805-1826.  2 

vols. 

Macnaghten  (Stewart)  &  Gordon  (Alexander). 
High  Court  of  Chancery  in  the  Times  of 
Cottenham  and  Truro,  1849,  1850.    3  vols. 

Macqueen  (John  F.).  House  of  Lords  on  Ap- 
peals and  Writs  of  Error  from  Scotland, 
1847-1860.  3  vols.  Vol.  4  is  in  course  of 
publication. 

Macrory  Patent  Cases,  1852-1858.    1  vol. 

Mabdock  (Henry).  Vice-Chancellor's  Court  in 
the  Time  of  Plumer,  1815-1820.    5  vols. 

Maddock  (H.)  &  Geldart  (T.  C).  Vice-Chan- 
cellor's Court  in  the  Time  of  Leach,  1821. 
1  vol. 

Magruder  (A.  C).    See  Maryland. 
Maine.     Maine  Supreme  Court,  1820-1861.  49 
vols. 

Vol.  1-9,  1820-1832.    Simon  Greenleaf. 
10-12,  183.3-1835.    John  Fairfield. 
1.3-W,  1836-1841.    John  Shepley. 
19,  20, 1841.  John  Appleton. 

20-30,  1841-1849.    John  Shepley. 
31-35,  1849-1853.    Asa  Redington. 
36-40,  1853-1855.    Solyman  Heath. 
41,42,1856.  John  M.  Adams. 

43, 44,  1857, 1858.    Timothy  Ludden. 
45-50, 1858-1862.    Wales  Hubbard. 
Manning  (Randolph).    See  Michigan. 
Manning  (J.),  Granger  (T.  C),  &  Scott  (J.). 

See  Common  Bench. 
Manning  (James)  &  Granger  (T.  C).  Common 

Pleas,  East.  T.  1840-Mich.  T.  1844.  7  vols. 
Manning  (James)  &  Ryland  (Archer).  King's 
Bench,  Mich.  T.  8-East.  T.  11  Geo.  IV.  5 
vols. 

March  (John).  A  translation  of  Brooke's  New 
Cases,  which  see. 

March  (John).  King's  Bench,  East.  T.  15  Car.  I.- 
Trin.  T.  18  Car.  I.  This  volume  is  some- 
times cited  as  March,  New  Cases,  to  distin- 
guish it  from  the  preceding  work,  but  is  ge- 
nerally intended  when  March  is  cited. 

Marriott  (Sir  James).  High  Court  of  Admiralty, 
Mich.  T.  1776-Hil.  T.  1779.    1  vol. 

Marshall  (Alexander  K.).  Kentucky  Court  of 
Appeals,  1817-1821.    3  vols. 

Marshall  (Charles).  Common  Plens,  Mich.  T.  54 
Geo.  III.-Mich.  T.  56  Geo.  III.,  1813-1816. 

Marshall  (J.  J.).  Kentucky  Court  of  Appeals,. 
^829-1832.    7  vols. 


Martin  (B.  Y.).    See  Georgia. 

Martin  (Francois  Xavier).  Superior  Court  of  Or- 
leans Territory,  1809-1812,  2  vols.;  some- 
times cited  as  Orleans  Term  Reports.  Su- 
preme Court  of  Louisiana,  1812-1823  (vols. 
3-12,  Martin) ;  sometimes  cited  as  Louisiana 
Term  Reports.    See  next  sub-title. 

Martin  (Francois  Xavier).  New  Series.  Louisi- 
ana Supreme  Court,  1 823-1830.  8  vol.«.  The 
reports  by  Martin  have  been  republished, 
under  the  editorial  care  of  Thomas  Gibbea 
Morgan,  in  10  vols.  The  Loui.'-iana  Reports 
have  also  been  republished,  under  the  same 
editorial  care,  in  a  most  creditable  manner. 

Martin  (John  IL).  North  Carolina  Superior 
Courts  of  Law,  1778-1797.  United  States 
Circuit  Court,  Fifth  Circuit,  1787-1796.  2 
vols. 

Martin  (John  H.)  &  Yerger  (George  S.).  Ten 
nessee  Supreme  Court,  1825-1828.    1  vol. 

Maryland.  Supreme  Court  of  Maryland,  1851- 
1862.    19  vols. 

Vol.  1,  2,   1851,  1852.    A.  C.  Magruder. 
3-18,  1852-1862.    Oliver  Miller. 
19,     1862.  Nicholas  Brewer, 

Jr. 

See  Bland;  Gill;  Gill  &  Johnson  ;  Har- 
Ris  &  Gill;  Harris  &  Johnson;  ){arri8 
&  M'Henry. 

Maryland  Chancery  Decisions.  Marylanc"  Chan- 
cery, John  Johnson,  Chancellor,  184'  -1854. 
4  vols. 

Vol.1.        Daniel  ,  M.    Thomas    &  lames 
Franklin. 
2-4.    Oliver  Miller. 

Mason  (William  P.).    United  States  Circuit  ^!ourt 

First  Circuit,  1816-1830.    5  vols. 
Massachusetts.    Massachusetts  Supreme  /onrt, 

1804-1822.    17  vols. 

Vol.1,       1804-1805.  E.Williams. 
2-17,  1805-1822.    D.  A.  Tyng. 

See  Allen;  Gushing;  Gray;  Metcalf; 
Thacher;  Pickering. 
Matson  (William  M.).    See  Connecticut. 
MAfJLE  (George)  &  Selwyn  (William).  King's 

Bench,  Hil.  T.  63-57  Geo.  IIL    6  vols. 
Maynard  (Sir  Jehan).    See  Year-Book. 
Mayor's  Court.    Judicial  Opinions  in  the  Mayor's 

Court  of  New  York  City.    By  Livingston, 

1802.    1  vol. 

McAllister  (Cutler).  United  States  Circuit  Court 
for  the  District  of  California,  1855-1859.  1 
vol. 

McBride  (P.  H.).    See  Missouri. 
McCooK  (George  W.).    See  Ohio  State. 
McLean  (John).    United  States  Circuit  Court  for 

the  Seventh  Circuit,  1829-1855.    6  vols. 
Meeson  (R.)  &  Welsby  (U.  N.).    Exchequer  and 

Exchequer  Chamber,  6  Will.  IV.-IO  Vict. 

16  vols.    Among  the  most  useful  and  best 

reported  of  the  modern  English  reports. 
Meigs  (Return  J.).    Tennessee  Supreme  Court, 

1838,  1839.    1  vol. 

Merivale  (J.  H.).  High  Court  of  Chancery, 
1815-1817.    3  vols. 

Metcalf  (Theron).  Massachusetts  Supreme  Court, 
1840-1847.    13  vols. 

Metcalfe  (James  P.).  Kentucky  Court  of  Ap- 
peals, 1858-1863.    5  vols. 

Michigan.  Michigan  Supreme  Court,  1847-1864. 
12  vols. 

Vol.  1,    1847-1850.    Randolph  Mnnning. 
2-4,  1851-1857.    George  C.  Gibbs. 


REPORTS 


456 


REPORTS 


Vol.  5-12,  1868-1864.    Thomas  M.  Cooley. 

See  Douglass;  Harrington;  Walker. 
Miles  (John)     District  of  Philadelphia,  1835- 

1840.    2  vols. 
Miller  (Branch  W.).    See  Louisiana. 
Miller  (0.).    See  Maryland. 
Mills.    See  Constitutional. 

MiLWARD  (C.  R.).  Prerogative  Court  in  Ireland 
and  Consistory  Court  of  Dublin,  1838-1842. 
1  vol. 

Minnesota.  Minnesota  Supreme  Court,  1851-1864. 

9  vols.    By  Harvey  Officer. 
Minor  (Henry).    See  Alabama. 
Mississippi.   Mississippi  Supreme  Court  and  High 

Court  of  Errors  and  Appeals,  1818-1859. 

37  vols. 

Vol.1,      1818-1832.  R.J.Walker. 

2-8,   1834-1843.    Volney  E.  Howard. 
9-22,  1843-1850.    W.  C.  Smedes  &  T. 

A.  Marshall. 
23-29,  1851-1855.    John  F.  Cushman. 
30-37,  1855-1859.    John  Z.  George. 
See  Freeman;  Smedes  <fc  Marshall. 
Missouri.    Missouri  Supreme  Court,  1821-1862. 
32  vols. 

Vol.  1-3,   1821-1834.    P.   H.   McBride  & 
John  C.  Edwards. 
4,       1835-1837.    W.  B.  Napton. 
5-8,    1837-1845.    S.  M.  Bay. 
9-11,  1845-1848.    B.  F.  Stringfellow. 
12,  13,  1848-1850.    William  A.  Robards. 
14,  15,  1851,  1852.    James   B.  Garden- 
hire. 

16-21,  1852-1855.    Samuel  A.  Bennet. 
22-30,  1856-1860.    Horatio  M.  Jones. 
31,  32,  1861,  1862.    Charles  C.  Whittle- 
sey. 

Modern.  King's  Bench,  Common  Pleas,  Chan- 
cery, and  Exchequer,  15  Car.  II.-28  Geo.  II. 
12  vols. 

The  Modem  Reports,  which  extend  over 
a  great  space,  being  in  twelve  volumes,  are 
very  various  in  the  character  of  the  different 
volumes,  as  might  be  expected,  being  the 
production  of  different  persons.  The  JirH 
volume  is  pretty  good.  The  second  has 
been  censured,  but  would  not  appear  to  be 
a  bad  work.  The  third  is  but  so-so.  The 
fourth  is  an  inaccurate  volume,  which,  along 
with  other  "  scrambling  reports,"  as  Lord 
Holt  styled  them,  would  "  make  the  judges 
appear  to  posterity  for  a  parcel  of  block- 
heads." The  Ji/th  is  but  so-so.  The  sixth 
is  a  work  whose  merits  are  not  very  high, — 
though  perhaps  greater  than  might  be  in- 
ferred from  some  early  expressions  in  regard 
to  it.  The  seventh  is  by  Farresly.  The  eighth, 
in  the  first  edition,  is  a  miserably  bad  book. 
A  second  edition,  which  appeared  in  1769, 
is  an  improvement  on  this ;  but  the  book  at 
best  is  not  highly  esteemed.  The  tenth  is 
by  Lucas,  and  is  sometimes  cited  as  cases 
tempore  Macclesfield.  The  eleventh  varies 
very  much  in  the  different  editions.  The 
best  is  not  Leach's;  though  all  the  others 
have  derived  benefit,  and  some  of  them  im- 
mense benefit,  from  his  labors.  The  folio 
of  1781  is  preferable  in  some  respects,  though 
it  does  not  contain  some  cases  given  in  Leach. 
A  complete  library  will  possess  both.  The 
twelfth  has  been  more  than  once  disrespect- 
fully treated,  but  perhaps  not  on  the  best 
grounds. 

For  a  full  account  of  the  different  volumes 
of  Modern,  which  differ  very  much  from 
each  other,  and  differ  also  in  different  edi- 
tions, see  Wallace,  Report.  219-241.  The 


Kentucky  Court  of  Ap- 
7  vols. 


observations  there  contained  are  too 
extended  to  be  given  here.  It  may,  howev< 
be  observed  that  the  ninth  volume,  whi 
contains  equity  cases,  is  much  better  th 
the  eighth,  which  contains  caser  at  law. 
Leach's  edition  is,  on  the  whole,  fav  the 
best ;  though,  as  is  said  above,  the  eleventh 
volume  is  less  perfect  than  the  others. 

MoLLOY  (Philip).  Irish  Chancery,  1827-1829.  3 
vols. 

MoLYNEAUX.    Cases  in  13  Car.  1. 

Monro.  Acta  Cancellarise,  36  Hen.  Vlll.-Jao. 
I.  Published  of  late  years,  and  containing 
some  curious  historical  records.  See  Wal- 
lace, Report.  285. 

Monroe  (Benjamin).  Kentucky  Court  of  Appeals, 
1840-1857.    18  vols. 

Monroe  (Thomas  B.). 
peals,  1824-1828. 

Montagu  (Basil).  Bankruptcy  Cases  decided  by 
the  Lord  Chancellor,  Vice-Chancellor,  and 
Court  of  Review,  1830-1832.    1  vol. 

Montagu  (Basil)  &  Ayrton  (Scrope).  Bankruptcy 
Cases  decided  by  the  Lord  Chancellor  and 
Court  of  Review,  1833-1837.    3  vols. 

Montagu  (Basil)  &  Bligh  (Richard).  Bankruptcy 
Cases  decided  by  the  Lord  Chancellor,  Vice- 
Chancellor,  and  Court  of  Review,  1832,  1833. 
1  vol. 

Montagu  (Basil)  &  Chitty  (Edward).  Bank- 
ruptcy Cases  decided  by  the  Lord  Chancellor 
and  Court  of  Review,  1838-1840.    1  vol. 

Montagu  (Basil),  Deacon  (E.  E.),  &  DeGex  (J. 
P.).  Bankruptcy  Cases  before  the  Lord 
Chancellor  and  Court  o^  Review,  1840-1844. 
4  vols. 

Montagu  (Basil)  &  Macarthur  (John).  Bank- 
ruptcy Cases  before  the  Lord  Chancellor  and 
Vice-Chancellor,  1828.    1  vol. 

Moody  (William).  Crown  Cases  reserved  for  Deci- 
sion by  the  Twelve  Judges  of  England,  from 
1824-1844.  2  vols.  The  cases  up  to  num- 
ber 97  are  by  Sir  Edward  Ryati,  joint-editor. 

Moody  (William)  <fc  Malkin  (Benjamin  Heath). 
Cases  at  Nisi  Prius  in  King's  Bench  and 
Common  Pleas  on  Westminster  and  Oxford 
Circuits,  7  Geo.  IV. -1  Will.  IV.,  1826-1830. 
1  vol. 

Moody  (William)  &  Robinson  (Frederic).  Cases 
at  Nisi  Prius  in  King's  Bench  and  Common 
Pleas,  and  on  Western  and  Northern  Circuits, 
1  Will.  IV.-7  Vict,  1830-1844.    2  vols. 

MooRE  (A.).  House  of  Lords,  Common  Pleas,  and 
Exchequer  Chamber,  36  &  37  Geo.  III. 

Moore  (Edmund  F.).  Cases  heard  in  the  Privy 
Council  on  Appeal  from  the  Courts  in  the 
East  Indies,  1836-1864.    9  vols. 

MooRE  (Edmund  F.).  Cases  in  Privy  Council, 
1836-1861.  14  vols.  VoL  15  is  in  course  of 
publication. 

MooRE  (Edmund  F.).  New  Series.  Privy  Coun- 
cil, 1862-1864.  1  voL  Vol.  2  is  in  course 
of  publication. 

Moore  (Francis).  King's  Bench,  Common  Pleas, 
Exchequer,  and  Chancery,  1  Eliz.-12  Jao. 
I.  Moore's  Reports  are  printed  from  a  genuine 
manuscript,  and  are  esteemed  valuable  and 
accurate. 

MooRE  (George  F.)  &  Walker  (Richard  S.). 
See  Texas. 

Moore  (John  Bayley).  Common  Pleas  and  Ex- 
chequer Chamber,  Hil.  T.  57  Geo.  IIL* 
Trin.  T.  8  Geo.  IV.    14  vols. 


REPORTS 


457 


REPORTS 


k  jORE  (J.  B.)  &  Paynk  (Joseph).  Common 
Picas  and  Exchequer  Chamber,  Mich.  T.  8 
Geo.  IV.-Trin.  T.  1  Will.  IV.,  1827-1831. 
5  vols. 

Moore  (J.  B.)  &  Scott  (John).  Common  Pleas, 
Exchequer  Chamber,  and  House  of  Lords, 
Mich.  T.  1831-Trin.  T.  1834.    4  vols. 

Morgan  (T.  G.).    See  Martin. 

Morris  (Eastin).  Iowa  Supreme  Court,  1839- 
1846.    1  vol. 

Morris  (William  G.).    See  California. 

MosELY  (William).  High  Court  of  Chancery  in 
Time  of  King,  1726-1730.  1  vol.  Con- 
demned by  Lord  Mansfield,  but  perhaps  on 
insufficient  ground.  Lord  Eldon,  a  better 
judge  of  the  merits  of  a  Chancery  Reporter, 
spoke  well  of  it,  as  did  also  Mr.  Hargrave. 
Wallace,  Report.  315. 

MuNFORD  (William).  Virginia  Supreme  Court  of 
Appeals,  1809-1820.    6  vols. 

Murphy  (A.  D.).  North  Carolina  Supreme  Court, 
1804-1819.    3  vols. 

Murphy  (F.  S.)  &  Hurlstone  (Edward  T.). 
Exchequer,  7  WiU.  IV.-l  Vict.,  1836,  1837. 
1  vol. 

Murray  (John).    Jury  Court  Cases  in  Scotland, 

56  Geo.  IIL-10  Geo.  IV. 
Mylne  (James  W.)  &   Craig  (R.  D.).  High 

Court  of  Chancery  in  Time  of  Cottenham, 

1835-1840.    5  vols. 
Mylne  (James  W.)  &  Keen  (Benjamin).  High 

Court  of  Chancery  in  Time  of  Brougham, 

1832-1835.    3  vols. 


Napton  (W.  B.).    See  Missouri. 
Nelson  (W.).    Octavo  Chancery,  1  Car.  I.-5  Will. 
IIL    1  vol. 

Nelson  (W.).  Quarto  Chancery,  Time  of  Finch, 
25-32  Car.  IL    X  vol. 

Nevile  (Sandford)  &  Manning  (William  M.). 
King's  Bench,  Mich.  T.  3  Will.  IV.-Trin. 
T.  6  Will.  IV.    6  vols. 

Nevile  (Sandford)  &  Perry  (Thomas  Erskine). 
King's  Bench  and  Exchequer  Chamber, 
Mich.  T.  1836-Trin.  T.  1838.    3  vols. 

New  Brunswick.    See  Allen,:  Berton;  Kerr. 

Newfoundland.  Newfoundland  Supreme  Court, 
1817-1828.    1  vol. 


New  Hampshire. 
1816-1863. 
Vol.  1,  1816 

2,  1819-1823 


New  Hampshire  Supreme  Court, 
44  vols. 
1819.    Nathaniel  Adams. 

Levi   Woodbury   A  W. 
M.  Richardson. 
3-5,    1823-1832.    W.  M.  Richardson. 
6-12,  1832-1842.    The  Judges. 
13-16,  1842-1846.    The  Judges. 
17,  18,  1846-1848.    The  Judges. 

19,  1848,  1849.    William  L.  Foster. 

20,  1849,  1850.    W.  E.  Chandler. 
21-31,  1850-1855.    W.  L.  Foster. 
32-37,  1855-1859.    George  G.  Fogg. 
38-44,  1859-1863.    W.  E.  Chandler. 

New  Jersey.  See  Beasley;  Coxe  ;  Dutcher; 
Green;  Halstead;  Harrison;  Penning- 
ton; Saxton  ;  Southard;  Spencer;  Stock- 
ton; Zabriskie. 

New  Magistrate  Cases.  Courts  at  Westminster, 
1844-1849.    3  vols. 

New  Reports.    See  Bosanquet  <fe  Puller. 

New  Sessions  Cases.  Cases  relating  to  Magis- 
trates determined  in  the  Superior  Courts  at 
Westminster,  1844-1851.    4  vols. 


Vol.  1,  2,  J.   M.   Carrow,  J.  llamerton,  &  B 
Allen. 

3,  J.  JIamerton,  F.  Allen,  &  C.  Otter. 

4,  C.  G.  Prideaux  &  II.  T.  Cole. 

New  York.    New  York  Court  of  Appeals,  I8i7' 
1865.    34  vols. 
Vol.  1-4,   1847-1851.    George  F.  Comstock. 
5-10,  1851-1854.    Henry  R.  Selden. 

11-14,  1854-1856.    Francis  Kcrnan. 

15-28,  1857-1863.    E.  Pcshine  Smith. 

29-34,  1863-1865.  Joel  Tiffany. 
See  Abbott;  Anthon  ;  Barbour;  Bosworth; 
Bradford;  Caines;  Clarke;  Code  Re- 
porter; Coleman;  Cowen;  Denio;  Duer; 
Edwards;  Hall;  Hill;  Hilton;  Hoffman; 
Hopkins;  Howard,  N.;  Johnson,  W.;  Lan- 
sing; Lalor;  Livingston;  Lockwood; 
Paige;  Parker;  Redfield;  Rogers;  Sand- 
ford; Smith, E.  D.;  Smith,  E.  P.;  Wendell; 
Wheeler;  Yates. 

Newberry  (John  S.).   Admiralty  Reports.   1  vol. 
District  of  Eastern  Louisiana,  1842-1856. 

Illinois,  1853,  1854. 

Michigan,  1852-1857. 

Missouri,  1846-1856. 

Northern  Ohio,  1855, 1856. 

Southern  Ohio,  1852-1855. 

Western  Pennsylvania,  1853. 
Nicholl  (Henry  J.).     See  Railway  &  Canal 
Cases. 

Nizamut  Adawlut.    See  Macnaghten. 

Nolan  (M.).     Reports  of  Cases  in  the  King's 

Bench  relating  to  Justices  of  the  Peace. 

1791,  1792.    1  vol. 

North  Carolina  Term.  Superior  Courts  of  North 
Carolina,  1816-1818.  1  vol.  Cited  as  3 
Law  Repository,  more  properly  as  Taylor. 
See  Busbee;  Carolina  Law  Repository  ;  Con- 
ference ;  Devereux  ;  Devereux  &  Battle  ; 
Hawks  ;  Haywood  ;  Iredell  ;  Jones;  Mar- 
tin; Murphy;  Ruffin  ;  Taylor. 

Notes  of  Cases  in  the  Ecclesiastical  and  Maritime 
Courts,  1841-1850.    7  vols. 

NoTT  (Henry  Junius)  &  M'Cord  (Daniel  James). 
South  Carolina  Constitutional  Court,  1817- 
1820.    2  vols. 

Nova  Scotia.    See  James  ;  Thomson. 

Nov  (William).  King's  Bench,  Common  Pleas, 
1  Eliz.-25  Car.  I.  This  book,  though 
called  Noy's  Reports,  is  supposed  to  be  an 
imposition,  or,  at  least,  a  loose  and  inaccu- 
rate transcript  from  Noy's  genuine  reports, 
and  is  of  no  esteem.  For  an  account  of  Noy 
himself,  one  of  the  prominent  actors  in  the 
troubled  times  of  Charles  I,  see  Wallace, 
Report.  108,  110. 

Officer  (Harvey).    See  Minnesota. 
Ogden  (A.  N.).    See  Louisiana  Annual. 
Ohio.    Ohio  Supreme  Court,  1821-1851.    20  vols. 
Vol.  1-9,   1821-1839.    Charles  Hammond. 
10,       1840,  1841.    P.  B.  Wilcox. 
11-13,  1841-1844.    Edwin  M.  Stanton. 
14-19,  1845-1851.    Hiram  Griswoid. 
20,       1851.  "William  Lawrence. 

See  Handy;  Tappan;  Wright. 

Ohio  State.  Ohio  Supreme  Court,  1852-1863.  14 
vols. 

Vol.  1,     1852, 1853.    George  W.  McCook. 

2,  1853.  Robert  B.  Warden. 

3,  1853,  1854.    R.  B.  Warden  &  J.  K 

Smith. 

4,  1854,  1855.    R.  B.  Warden. 
5-14, 1855-1863.    L.  J.  Critohfitild. 


REPORTS 


458 


REPORTS 


Olcott  (Edward  R.).  United  States  District 
Court,  New  York,  Southern  District,  1S43- 
1847.    1  vol. 

Oliver  (Lionel).    See  Railway  <fc  Canal  Cases. 

Orleans  Term.    See  Martin. 

Ormond  (J.  J.).    See  Alabama,  New  Series. 

OrERTON  (John).  Supreme  Court  and  Federal 
Court  for  Tennessee,  1791-1815.    2  vols. 

0«7EN  (Thomas).  King's  Bench  and  Common 
Pleas,  4  Mary-45  Eliz.  Occasionally  cited, 
but  enjoying  no  particular  reputation,  good 
or  bad.    Wallace,  Report.  107. 

Paige  (Alonzo  C).    New  York  Chancery,  1828- 

1845.    11  vols. 
Paine  (Elijah,  Jr.).    United  States  Circuit  Court 

for  the  Second  Circuit,  1810-1840.    2  vols. 

Palmer  (Sir  Godfrey).    King's  Bench,  Pasch.  T. 

17  Jac.  I.-Trin.  T.  4  Car.  I. 
Papy  (Mariano  D.).    See  Florida. 
Parker  (Araasa  J.).    Criminal  Cases  at  Terms  in 

Chambers  and  Oyer  and  Terminer  in  New 

York,  1845-1864.    6  vols. 
Parker  (F.  E.)    See  Sprague. 
Parker  (Sir  T.).    Exchequer,  1743-1767.    1  vol. 
Parsons  (A.  V.).     Select  Equity  Cases  in  the 

Court  of  Common  Pleas  of  the  First  District 

of  Pennsylvania,  1841-1851.    2  vols. 
Paton.    See  Craigie  &  Stewart. 
Patrick  (Alfred).    Upper  Canada  Election  Cases, 

1849.    1  vol. 

Patton  (John  M.)  &  Heath  (Roscoe  B).  Special 
Court  of  Appeals  in  Virginia,  1855-1859. 
3  vols. 

Peake  (Thomas).   Additional  Cases  in  the  King's 

Bench,  36-49  Geo.  III.    1  vol. 
Peake  (Thomas).    Nisi  Prius  Cases  in  the  King's 

Bench,  30-35  Geo.  III.    1  vol. 
Pearce.    See  Denison. 
Peck  (E.).    See  Illinois. 

Peck  (Jacob).  Tennessee  Supreme  Court  of  Errors 
and  Appeals,  1822-1824.    1  vol. 

Peckwell  (Robert  Henry).  Controverted  Elec- 
tion Cases  in  the  Second  Parliament  of  the 
United  Kingdom,  1802.    2  vols. 

Peere  Williams  (William).  King's  Bench  and 
Chancery,  7-14  Will.  III.  One  of  the  best 
of  the  earlier  Chancery  reporters ;  admi- 
rably edited  by  Mr.  Cox.  Wallace,  Report. 
311. 

Pennington  (William  S.).  New  Jersey  Supreme 
Court,  1806-1813.    2  vols. 

Pennsylvania.    Supreme  Court  of  Pennsylvania, 
1829-1832.    3  vols.    By  Rawle. 
Vol.  1,     Rawle,  Penrose,  &  Watts. 
2,  3,  Penrose  &  Watts. 

Pennsylvania  Law  Journal,  1842-1848.  2  vols. 

Pennsylvania   State.  Pennsylvania  Supreme 

Court,  1845-1864.  47  vols. 

Vol.  1-10,  1845-1849.  Robert  M.  Barr. 

11,  1849.  J.  P.  Jones. 

12,  1849.  J.   P.  Jones  &  R.  C. 

M'Murtrie. 
13-24,1850-1855.    George  W.  Harris. 
25-36,  1855-1860.    Joseph  Casey. 
37-48,  1860-1864.    Robert  E.  Wright. 
See  Addison;  Ashmkad  ;  Binney;  Brightly; 
Browne;  Dallas;  Grant;  Rawle;  Ser- 
geant <fc  Rawle;  Vaux  ;  Watts;  Watts 
Jk  Skrgeant;  Wallace;Whartonj  Yeates. 


Penrose  (Charles  B.)  &  Watts  (Frederic, 

Pennsylvania. 
Perry  (Sir  Erskine).    Supreme  Court  at  Bomtay, 

1843-1845.    1  vol. 
Perry  (Thomas  E.)  &  Davison  (Henry).  Queen'fl 

Bench  and  Exchequer  Chamber,  Mich.  T.  2 

Vict.,  1838-Hil.  T.  1841.    4  vols. 
Perry  (T.  E.)  &  Knapp  (J.  W.).    Election  Cases 

3  Will.  IV. 

Peters  (Richard,  Junior).  Admiralty  Decisions 
for  Pennsylvania  and  Maryland,  1792-1807. 
2  vols. 

Peters  (Richard,  Junior).  United  States  Circuit 
Court  for  the  Third  Circuit,  1803-1818.  1 
vol. 

Peters  (Richard,  Junior).  United  States  Supreme 
Court,  1827-1843.    17  vols. 

Phillipps  (John).  Election  Cases  determined  dur- 
ing the  First  Session  of  the  Nineteenth  Par- 
liament of  Great  Britain     I  vol. 

Phillimore  (Joseph).  Ecclesiastical  Courts  at 
Doctors'  Commons  and  High  Court  of  Dele- 
gates, 1809-1821.    3  vols. 

Phillips  (T.  J.).  High  Court  of  Chancery,  Time 
of  Cottenham,  1844-1849.    2  vols. 

Pickering  (Octavius).  Massachusetts  Supreme 
Court,  1822-1840.    24  vols. 

PiGOTT  &  Rodwell.  Registration  Appeals,  7- -9 
Vict. 

Pike  (Albert).    See  Arkansas. 
PiTCAiRN  (Robert).    Criminal  Trials  in  Scotland,  ' 
1488-1624.    4  vols. 

Plowden  (Edmund).  King's  Bench,  Common 
Pleas,  and  Exchequer,  4  Edw.  VL-21  Eliz. 
1  vol.  Probably  the  most  full,  finit^hed,  and 
thoroughly  accurate  of  the  old  reporters; 
always  highly  esteemed.  For  an  amusing 
illustration  of  subtle  argumentation,  see  the 
case  of  Hale  vs.  Petit,  as  quoted  by  Wallace, 
Report.  102,  where  he  shows  it  to  be  the  ori- 
ginal of  the  grave-digger's  scene  in  Hamlet. 

PoLLEXFEN  (Sir  Henry).  King'^  Bench  and  Chan- 
cery, Triu.  T.  22-Trin.  T.  34  Car.  II. 

Popham  (Sir  John).  King's  Bench,  Common  Pleas, 
and  Chancery,  34-39  Eliz. 

Porter  (Albert  G.).    See  Indiana. 

Porter  (Benjamin  P.).    See  Alabama. 


PoAVER,  Rodwell,  &  Dew.    Election  Cases,  11-20  i 
Vict. 

Practical  Register.    Common  Pleas,  1  Geo.  1.  \ 
-15  Geo.  II.  ' 

Practice  Cases.    See  Cooke. 

Prater.  Cases  of  Conflict  between  the  Laws  of 
England  and  Scotland  as  to  Marriage,  Di- 
vorce, and  Legitimacy. 

Precedents  in  Chancery.  Chancery,  1  Will.  III. 
-9  Geo.  I.  Said  to  be  by  Pooley.  This 
work,  which  is  attributed  to  the  author  of 
the  first  volume  of  Equity  Cases  Abridged,  i% 
like  that  book,  a  work  of  excellent  authority. 

Prerogative  Court. 

Price  (G.).  Exchequer,  54  Geo.  III.-5  Geo.  IV. 
13  vols. 

Prize  Cases.  Appeals  in  Prize  Cases  heard  before 
the  Commissioners  of  Appeals,  1793-1818. 
23  vols. 

Pyke.  King's  Bench  for  the  District  of  Quebec, 
Hil.  T.  1810.    1  voL 

Queen's  Bench.  Cases  in  the  Queen's  Beool^ 
1841-1852.    18  vols. 


REPORTS 


459 


REPORTS 


Queen's  Bench,  Upphu  Canada.    Ui)per  Canada 
Queen's  Bench,  1843-1861.    20  vols. 
Vol.  1,  2,   John  H.  Cameron. 

3-  13,  James  L.  Robinson. 
14—20,  Christopher  Robinson. 

See  King's  Bench. 
QuiNcy  (Josiah,  Junior).    Supreme  Court  of  Judi- 
cature for  the  Province  of  Massachusetts 
Bay,  1761,  1762.    1  vol.    Edited  by  Samuel 
M  Quincy. 

Railway  <fc  Canal  Cases.    Cases  relating  to  Rail- 
virays  and  Canals  argued  in  the  Courts  of 
Law  and  Equity,  1835-1854.    7  vols. 
Vol.  1,  2,  Henry  J.NichoU,  Thomas  Hare,  & 
John  M.  Carrow. 

3,  John  M.  Carrow,  Lionel  Oliver. 

4,  John  M.  Carrow,  Lionel  Oliver,  Ed- 

ward Beavan,  &  Thomas  E.  P. 
Lefroy. 

5-7,  Lionel  Oliver,  Edward  Beavan^  & 
Thomas  E.  P.  Lefroy. 

Randolph  (Peyton).  Virginia  Court  of  Appeals, 
1821-1828.    6  vols. 

Randolph  (W.  M.).    See  Louisiana  Annual. 

Rawle  (William,  Junior).  Pennsylvania  Supreme 
Court,  1828-1835.    6  vols. 

Rawle  (W.,  Jr.),  Penrose  (C.  B.),  &  Watts  (F.). 
See  Pennsylvania. 

Raymond  (Lord  Robert).  King's  Bench  and  Com- 
mon Pleas,  Pasch.  T.  6  Will.  IIL-Trin.  T. 
5  &  6  Geo.  III.  3  vols.  Some  of  the  earlier 
cases  in  Lord  Raymond,  having  been  taken 
when  he  was  a  young  man,  or  copied  from 
the  papers  of  his  different  young  friends, 
have  not  been  so  highly  esteemed,  perhaps, 
as  his  other  cases,  which  are,  generally  speak- 
ing, his  own.  However,  as  a  whole,  his 
reports  are  highly  respected,  and  often  cited, 
even  in  this  day  and  country.  Wallace,  Re- 
port 249. 

Raymond  (Sir  Thomas).  King's  Bench,  Common 
Pleas,  and  Exchequer,  Mich.  T.  12  Car.  IL 
-Hil.  T.  35  Car.  IL  1  part. 

Rayner.  Tithe  Cases,  Exchequer  Chamber,  1575- 
1782. 

Redfield  (Amasa  A.).  New  York  Surrogate's 
Courts,  18.^7-1863.    1  voL 

Redington  (Asa).    See  Maine. 

Reports  tempore  Hardwicke.  King's  Bench,  7- 
10  Geo.  IL    See  Ridgeway. 

Reports  tempore  Holt.  King's  Bench,  Common 
Pleas,  Exchequer,  and  Chancery,  1-14  Will. 
III.  By  Jacob.  A  work  of  very  little  repu- 
tation, though  it  is  beautifully  printed.  Wal- 
lace, Report.  247. 

Rhode  Island,    Rhode  Island  Supreme  Court, 
1828-1863.    6  vols. 
Vol.  1,     1828-1850.    J.  K.  Angell. 

2,  1850-1853.    Thomas  Durfee. 

3,  1853-1856.    John  P.  Knowles. 

4-  7,  1856-1863.    Samuel  Ames. 

Rice  (William).  South  Carolina  Court  of  Errors 
and  Appeals,  Equity  Cases,  1838,  1839.  1 
vol. 

Rice  (William).    South  Carolina  Court  of  Errors 

and  Appeals,  Law  Cases,  1838, 1839.  1  vol. 
Richardson  (J.  S.  G.).    South  Carolina  Court  of 

Errors  and  Appeals,  Equity  Cases,  1844- 

1859.    10  vols. 
Richardson  (J.  S.  G.).    South  Carolina  Court  of 

Errors  and  Appeals,  Law  Cases,  1844—1860. 

12  vols. 

RiLHARDSON  (W.  M.).    See  New  Hampshire. 


Ridgeway  (William).  Cases  on  Appeal  and  Writ 
of  Error  in  Parliament  in  Ireland,  1784- 
1793.    3  vols. 

Ridgeway  (William).  King's  Bench  and  Chancery 
during  the  Time  Lord  Hardwicke  presided  in 
those  courts.  King's  Bench,  7-10  Geo.  II.; 
Chancery,  18-20  Geo.  IL 

Ridgeway  (William).  State  Trials  in  Ireland,  38 
Geo.  IIL 

Ridgeway  (William),  Lapp  (William),  <fe  Schoales 
(John).  Cases  in  the  King's  Courts  at 
Dublin,  East.  T.  34  Geo.  III.-Hil.  T.  35 
Geo.  III.  1  vol.  Sometimes  cited  as  Irish 
Term. 

Riley  (W.).  South  Carolina  Court  of  Appeals, 
Equity  Cases,  1836,  1837.  1  vol.  Riley  ia 
the  publisher;  but  the  reports  are  known  by 
his  name. 

Riley  (W.).    South  Carolina  Court  of  Appeals, 

Law  Cases,  1836,  1837.    1  vol. 
RoBARDS  (William  A.).    See  Missouri. 
RoBB  (James  B.).    Patent  Cases  decided  in  the 

Supreme  Court  and  the  Circuit  Courts  of 

the  United  States  from  their  Organization 

to  1850.    2  vols. 
Robertson  (David).    House  of  Lords  Cases  on 

Appeal  from  Scotland,  1707-1  Geo.  II.  1  vol. 

Robertson  (J.  E.  P.).  Ecclesiastical  Courts  at 
Doctors'  Commons,  1844-1849.  1  vol.  and 
vol.  2  in  part. 

Robinson  (Christopher).  High  Court  of  Admi- 
ralty in  the  Time  of  Scott,  1798-1808.  6 
vols. 

Robinson  (Christopher).    See  Robinson,  J.  L. 
Robinson  (Conway).    Virginia  Court  of  Appeals, 

1842-1844.    2  vols. 
Robinson  (George).    House  of  Lords  Cases  on 

Appeal  from  Scotland,  1840,  1841.    2  vols. 

Robinson  (J.  L,).  Upper  Canada  Chamber  Cases 
in  Queen's  Bench  and  Common  Pleas,  1848- 
1852.  2  vols.  Second  volume  by  Christopher 
Robinson. 

Robinson  (Merritt  M.).   Louisiana  Supreme  Court, 

1841-1846.    12  vols. 
Robinson  (M.  M.).    See  Louisiana  Annual. 
Robinson  (William).    High  Court  of  Admiralty, 

Time  of  Lushington,  1838-1850.     2  vols. 

Vol.  3,  parts  1  &  2. 
Rogers  (Daniel).    Various  Courts  in  New  York 

City,  especially  Court  of  Sessions,  1816-1821. 

6  vols. 

RoLLE  (Henry).     King's  Bench,  12-22  Jac.  I. 
The  excellent  reports,  though  in  a  brief  and 
note-like  style,  of  one  of  Cromwell's  able 
judges.    See  an  account  of  the  book  in  ' 
Wallace,  Report.  180  et  seq. 

Root  (Jesse).  Superior  Court  of  Connecticut  and 
Supreme  Court  of  Errors,  1764-1798.   2  vols. 

Rose  (George).    Bankruptcy  Cases,  East.  T.  1810 

-Trin.  T.  1816.    2  vols. 
Ross  (George).    Leading  Commercial  Cases  in 

England  and  Scotland. 
RowE  (Richard   Radford).     Parliamentary  and 

Military  Cases,  1798-1823.    1  vol. 
RuFFiN  (Thomas).    See  Hawks. 
Russell  (James).    High  Court  of  Chancery,  Time 

of  Eldon,  1826-1829.    5  vols. 
Russell  (James)  A,  Mylne  (J.  W.).    High  Court 

of  Chancery,  Time  of  Lyndhurst,  1829-1831. 

2  vols. 

Russell  (William  0.)  &  Ryan  (Edward).  Crown 


REPORTS 


460 


REPORTS 


Cases  reserved  and  decided  by  the  Twelve 
Judges  of  England,  1799-1824.    1  vol. 

Ryan  (Edward)  &  MooDr  (William).  Nisi  Prius 
Cases  in  the  King's  Bench  and  Common 
Pleas  and  on  the  Western  and  Oxford  Cir- 
cuits, 4-7  Geo.  IV.,  1823-1826.    1  vol. 

Salkeld  (William).  King's  Bench,  Chancery, 
Common  Pleas,  and  Exchequer,  1  Will.  III. 
-10  Anne.  3  vols.  The  third  volume,  hav- 
ing been  published  from  notes  less  carefully 
prepared  than  the  first  two,  is  not  accounted 
as  of  the  highest  authority. 

Sandford  (Lewis  H.).  Superior  Court  of  New 
York  City,  1847-1852.    5  vols. 

Sandfoud  (Lewis  H.).  Vice-Chancellor's  Decisions, 
New  York  Chancery,  1843-1847.    4  vols. 

Saundeus  (Sir  Edmund).  Pleas  and  Cases  in  the 
K  ing's  Bench  in  the  Time  of  Charles  I.  Pro- 
bably the  best  of  the  old  reporters,  and  ad- 
mirably edited  by  Serjeant  Williams.  The 
cases  relate  almost  exclusively  to  pleadings. 
See,  for  a  full  testimony  to  the  merits  of 
Saunders  and  the  notes  by  Williams,  Wallace, 
Report.  3d  ed.  213. 

Saunders  (Thomas  W.)  &  Cole  (Henry  Thomas). 
Bail  Court  Reports,  Hil.  T.  9-Mich.  T.  12 
Vict.    2  vols. 

Saxjsse  (Matthew  Richard)  &  Scully  (Vincent). 
Rolls  Court  in  Ireland,  1837-1840.    1  vol. 

Bavile  (Sir  John).  Common  Pleas  and  Exche- 
quer, 22-29  Eliz.  This  book,  says  Wallace 
(Report.  142),  appears  to  be  in  the  condition 
of  Pope's  "most  women,"  and  to  have  no 
character  at  all.  I  have  not  found  a  word 
upon  it,  either  of  censure  or  of  praise. 

Saxton  (N.).  New  Jersey  Chancery,  1830-1832. 
1  vol. 

Sayer  (Joseph).  King's  Bench,  Mich.  T.  25  Geo. 
II.-Trin.  T.  29  &  30  Geo.  II. 

Scammon  (J.  Young).    See  Illinois. 

Bchoales  (John)  &  Lefroy  (Thomas).  Irish 
Chancery,  Time  of  Lord  Redesdale,  1802- 
1807.    2  vols. 

BcOTT  (John).  Common  Pleas  and  Exchequer 
Chamber,  East.  T.  3  Vict.-Mich.  T.  8  Vict., 
1840-1845.    8  vols. 

Scottish  Jurist,  1829-    32  vols. 

Belden  (Henry  R.).    See  New  York. 

Belect  Chancery  Cases.  High  Court  of  Chan- 
cery, 33  Car.  I.  Containing  the  great  case 
of  the  Duke  of  Norfolk  and  the  Earls  of 
Bath  and  Montague,  which  is  well  reported. 

Selwyn  (W.)  &  Barnewall  (R.  V.).  The  first 
part  of  Barnewall  &  Alderson  is  sometimes 
so  cited. 

Sergeant  (Thomas)  &  Rawle  (William,  Junior). 
Pennsylvania  Supreme  Court,  1814-1828. 
17  vols. 

PcssiON  Cases.    Cases  decided  in  the  Scotch  Court 
of  Session,  May,  1821-July,  1838.    16  vols. 
Vol.  1,       Patrick  Shaw  &  James  Ballantine. 
2-7,    Patrick  Shaw  &  Alexander  Dunlop. 

8,  Patrick  Shaw,  Alexander  Dunlop,  & 

James  M.  Bell. 

9,  Patrick  Shaw,  Alexander  Dunlop,  J. 

M.  Bell,  <fe  Mark  Napier. 
10, ,      Patrick  Shaw,  Alexander  Dunlop,  & 
James  M.  Bell. 

11,  Containing,  also,  Teind  Court  and  Ex- 

chequer. George  Young,  H.  L. 
Tennent,  <fc  Patrick  Eraser. 

12,  Patrick  Shaw.  Alexander  Dunlop,  & 

James  M.  Bell. 


Vol.  13, 


14-1. 


3,4, 
6, 

6-8, 
9,10, 

11, 
12, 
13, 

14, 15, 


k    Shaw,  Alexander  Dunlo 
les  M.  Bell,  &  John  Murray, 
jfatrick  Shaw,  James  M.  Bell, 
John  Murray. 
Session  Cases,  New  Series.    Scotch  Court  of 
Session,  Nov.  1838-July,  1862     24  vols. 
Vols.  1, 2,    Alexander  Dunlop,  J.  M.  Bell,  &  John 
Murray. 

Alexander  Dunlop,  J.  M.  Bell,  John 

Murray,  &  James  Donaldson. 
J.  M.  Bell,  John  Murray,  James  Don- 
aldson, &  George  Young. 
J.  M.  Bell,   John   Murray,  George 

Young,  &  H.  L.  Tennent. 
John  Murray,  George  Young,  H.  L. 

Tennent,  <fc  Patrick  Eraser. 
Patrick    Shaw,   Alexander  Dunlop, 

&  James  M.  Bell. 
George  Young,  H.  L.  Tennent,  Patrick 

Eraser,  &  W.  H.  Murray. 
H.  L.  Tennent,  Patrick  Eraser,  &  W. 

H.  Murray. 
H.  L.  Tennent,  Patrick  Eraser,  W.  H. 
Murray,  &  J.  E.  Montgomery. 

Session  Cases.  Third  Series.  1862-1865.  3 
vols. 

Sessions  Cases.  King's  Bench,  chiefly  Settlement 
Cases,  Mich.  T.  9  Anne-Trin.  T.  20  Geo.  II. 

Shaw  (George  B.).    See  Vermont. 

Shaw  (John).  Scotch  High  Circuit  Court  and 
Court  of  Justiciary,  1848-1852.    1  vol. 

Shaw  (Patrick).  House  of  Lords  Cases  on  Appeal 
from  Scotland,  1821-1824.    2  vols. 

Shaw  (William  G.).    See  Vermont. 

Shaw  (Patrick)  &  Maclean  (Charles  Hope). 
House  of  Lords  Cases  on  Appeal  from  Scot- 
land, 1835-1838.    3  vols. 

Shaw  ( Patrick),  Wilson,  &  Courte:nay.  House  of 
Lords  Cases  on  Appeal  from  Scotland,  1 825- 
1835.    7  vols. 

Shepherd  (J.  W.).    See  Alabama,  New  Series. 

Shepley  (John).    See  Maine. 

Shower  (Sir  Bartholomew).  House  of  Lords 
Cases  on  Writs  of  Error,  6-10  Will.  HI.  1 
vol. 

Shower  (Sir  Bartholomew).  King's  Bench,  30 
Car.  II.-ll  Will.  IIL  2  vols.  A  posthu- 
mous work,  printed  from  a  bad  manuscript. 
The  original  manuscript  of  Shower's  Reports 
is  still  preserved  in  the  Landsdowne  collec- 
tion in  England,  and  shows  that  the  printed 
book  is  inaccurate  in  many  respects.  Wal- 
lace, Report.  243. 

SiDERFiN.  King's  Bench,  Common  Pleas,  and  Ex- 
chequer, 9-22  Car.  I.  1  vol.  Not  highly  es- 
teemed, having  been  taken  when  the  reporter 
was  a  mere  student,  and  not  very  clear  or  ac- 
curate.   Wallace,  Report.  202. 

Simons  (Nicholas).  High  Court  of  Chancery,  1826 
-1852.    17  vols. 

Simons  (N.).  New  Series.  High  Court  of  Chan 
eery,  1850-1852.    2  vols. 

Simons  (N.)  &  Stuart  (John).  High  Court  of 
Chancery,  1822-1826.    2  vols. 

Skinner  (Robert).  King's  Bench,  33  Car.  II.-9 
Will.  III.  1  vol.  Not  a  bad  book,  though 
seldom  quoted,— the  reason  of  which  infr«- 
quency  of  citation  Mr.  Green  supposes  to 
be  because  it  gives  chiefly  such  cases  as  had 
been  previously  reported  by  others,  and  so 
got  the  start  in  the  abridgments  and  text* 

•         books.    Wallace,  Report.  244. 

Slade  (William).    See  Vermont. 

Smale  (John)  &  GiFPARD  (T.  V/.  de  Longueville) 


REPORTS 


461 


REPORTS 


High  Court  of  Chancery,  16-19  Vict.  3 
vols. 

{,MEDES  (W.  E.)  &,  Marshall  (T.  A.).  Missis- 
sippi Superior  Court  of  Chancery,  1843.  1 
vol. 

6mei)ES  (W.  E.)  a  Marshall  (T.  A.).  See  Mis- 
sissippi. 

Smith  (Abram  D.).    See  Wisconsik. 

fiMiin  (E,  D.).    Common  Pleas  in  New  York  City, 

1850-1855,  1858.    4  vols. 
Skith  (E.  Peshine).    See  New  York. 
Smith  (F.  0.  J.).    Circuit  Courts-Martial,  1827- 

1831.    1  vol. 

Smith  (John  B.).  King's  Bench  and  Chancery,  44 
-46  Geo.  III.    3  vols. 

Smith  (Thomas  L,).  Indiana  Supreme  Court,  1848, 
1849.    1  vol. 

Smith  (Chauncey)  &  Bates  (S.  E.).  Cases  con- 
cerning Railways  decided  in  the  United 
States  Supreme  Court  and  the  Courts  of  the 
Several  States.    2  vols. 

Smith  (Thomas  T.  C.)  A  Batty  (Espine).  King's 
Bench  of  Ireland,  1824,  1825.    1  vol. 

Smythe  (Hamilton).  Common  Pleas  and  Exche- 
quer Chamber  in  Ireland,  2  A  3  Vict.  1 
vol. 

Sneed.    See  Kentucky  Decisions. 

Sneed  (John  L.  T.).    Tennessee  Supreme  Court, 

185.V1858.    5  vols. 
Southard    (Samuel   L.).    New  Jersey  Supreme 

Court,  1816-1820.    2  vols. 
South  Carolina.    See  Bailet;  Bay;  Brevard; 

Cheves;    Constitutional;  Desaussure; 

Dudley;  Harper;  Hill;M'Cord;  M'Mul- 

lan;  Nott  <fe  M'Cord;  Rice;  Richardson; 

Riley;  Speers;  Strobhart. 
Speers  (R.  H.).    South  Carolina  Court  of  Appeals, 

Equity  Cases,  1842-1844.    1  vol. 

Speers  (R.  H.).  South  Carolina  Court  of  Appeals, 
Law  Cases,  1842-1844.    2  vols. 

Spencer  (Robert  D.).  New  Jersey  Supreme  Court, 
1842-1846.    1  vol. 

Spinks  (Thomas).  Arches  and  Prerogative  Courts 
of  Canterbury,  Consistory  Court  of  London, 

|,         Hij^h  Court  of  Admiralty,  and  Admiralty 

W        Prize  Court,  1853,  1854.    2  vols. 

Spooner  (Philip  L.).    See  Wisconsin. 

Spottiswoode.  Chancery  and  Appeal  Cases  in  the 
House  of  Lords  and  Privy  Council,  1853- 
1855.  3  vols.  Spottiswoode  is  the  pub- 
lisher. The  reporters  of  the  Equity  decisions 
are — 

Vols.  2,  3,  Andrew  Doria  Adair. 
1-3,  George  S.  Allnutt. 
1-3,  William  H.  Bennett. 
3,     John  W.  M.  Fonblanque. 
1,  2,  George  French. 
1,  2,  William  Hackett. 

1,  2,  Robert  H.  Hurst. 

2,  3,  Henry  Codraan  Jones. 

3,  Ernest  H.  Reed. 
1,  2,  James  Willis. 

BpRiGUE  (Peleg).  Decisions  of,  in  Admiralty  and 
Marine  Causes  in  the  United  States  Dis- 
trict Court  for  the  Massachusetts  District, 
1841-1861.    1  vol.    By  F.  E.  Parker. 

Stair  (Sir  James  Dalrymple  of ).    Lords  of  Coun- 
cil and  Sessions,  1661-1681     Qften  referred 
to  as  Dalrymple. 
Stanton  (Edwin  M.).    See  Ohio 
Star  Chamber  Cases,  Edw.  VI.-Eliz. 


Starkie  (Thomas).  Nisi  Prius  in  King's  Bench, 
Common  Pleas,  and  on  the  Circuit,  55  Geo, 
III.-3  Geo.  IV.,  1814-1822.    3  vols. 

State  Tryals,  Hen.  IV.-Anne.  4  vols.  See  Har- 
GRAVE ;  Howell. 

Stewart  (George  N.).    See  Alabama. 

Stewart  (James).  Vice-Admiralty  Court  at  Hali- 
fax, 1802-1813.    1  vol. 

Stewart  (George  N.)  A  Porter  (Benjamin  F.) 
See  Alabama. 

Stockton  (John  B.).  New  Jersey  Chancery,  1852- 
1856.    2  vols. 

Story  (W.  W.).  United  States  Circuit  Court,  First 
Circuit,  1839-1845.    3  vols. 

Strange  (Sir  John).  Chancery,  King's  Bcnch^ 
Common  Pleas,  and  Exchequer,  Trin.  T.  2 
Geo.  I.-Trin.  T.  21  Geo.  II.  2  vols.  Au- 
thoritative, though  too  brief  in  the  style  of 
reporting.  Mr.  Nolan,  in  1795,  published  a 
new  edition,  which  has  rendered  Strange  more 
valuable  than  he  was.  Wallace,  Report.  259. 

Strange  (Sir  Thomas).  Recorder's  Court  and 
Supreme  Court  at  Madras,  1798-1816.  y 
vols. 

Stringpellow  (B.  F.).    See  Missouri. 
Strobhart  (James  A.).    South  Carolina  Court  of 
Appeals,  Equity  Cases,  1846-1850.    4  vols. 

Strobhart  (James  A.).  South  Carolina  Court  of 
Appeals,  Law  Cases,  1846-1850.    5  vols. 

Stuart  (George  Okill).  King's  Bench  and  Privy 
Council  (with  a  few  Admiralty  Cases)  in 
Lower  Canada,  1810-1834.    1  voL 

Style  (William).  King's  Bench,  "now  Upper 
Bench,"  Hil.  T.  21  Car.  I.-1655.  Printed 
from  a  genuine  manuscript,  and  esteemed. 

Sumner  (Charles).  United  States  Circuit  Court, 
First  Circuit,  1830-1839.    3  vols. 

Surrogate.    See  Bradford  ;  Redpield. 

Swabey  (M.  C.  M.).  High  Court  of  Admiralty 
and  Privy  Council  on  Appeal,  1855-1859, 

1  vol.    See,  also,  Deane  A  Swabey. 
Swabey  (M.  C.  M.)  A  Tristram  (T.  H.).  Pro- 
bate and  Divorce  and  Matrimonial  Causes, 
1858-1862.    2  vols. 

Swan  (William  G.).     Tennessee  Supreme  Court, 

1851-1853.    2  vols. 
SwANSTON  (Clement  T.).    High  Court  of  Chancery, 

Time  of  Eldon,  1818,  1819.    3  vols. 
SwiNTON  (Archibald).     High  Court  and  Circuit 

Courts  of  Justiciary  in  Scotland,  1835-1841. 

2  vols. 

Syme  (David).  High  Court  of  Justiciary  in  Scot- 
land, 1826-1829.    1  vol. 

Tamlyn  (John).  High  Court  of  Chancery,  1829, 
1830.    1  vol. 

Tanner  (Gordon).    See  Indiana. 
Tappan  (Benjamin).    Ohio  Common  Pleas,  Fifth 
Circuit,  1816-1818.    1  vol. 

Taunton  (William  P.).  Common  Pleas  and  Other 
Courts,  Mich.  T.  48  Geo.  IIL-Hil.  T.  59 
Geo.  IIL,  1807-1819.  8  vols.  The  eighth 
volume  of  Taunton  is  not  very  highly  es- 
teemed, having  been  made  up  from  his  notes 
and  not  supervised  by  him.  Wallace,  Report. 
330 ;  9  Lond.  Law  Mag.  339. 

Taylor  (John  L.).  North  Carolina  Superioi 
Courts,  1798-1802.  1  vol.  Sometimes  cited 
as  North  Carolina  Term,  and  sometimes  as 

3  North  Carclina  Law  Repository. 
Temple  (Leofric)  ^  Mew  (George).    Courts  q\ 


REPORTS 


462 


REPORTS 


Criminal  Appeal,  Mich.  T.  1848-Mich.  T. 
1861.    1  vol. 

Xennjsssee.  See  Cooke;  Haywood;  Head;  Hill; 
HuMPHREVs;  Martin  &  Yerger;  Meigs; 
Peck;  Sneed  ;  Swan;  Yerger. 

Term.  King's  Bench,  Mich.  T.  26  Geo.  III.-40 
Geo.  III.  By  Durnford  &  East.  8  vols. 
One  of  the  most  valuable  and  frequently 
cited  of  all  the  English  Reports, — less  full 
than  Burrow,  but  equally  accurate  and  valu- 
able, and  perhaps  more  truly  satisfactory 
on  the  whole,  as  not  descending  in  any  degree 
too  much  into  detail. 

Texas.   Texas  Supreme  Court,  1846-1860.  24  vols. 
Vol.  1-3,   1846-1848.    James  Webb  &  Thomas 
H.  Duvall. 
4-10,  1849-1853.    Oliver  C.  Hartley. 
11-20,  1854-1858.    0.  C.  &  R.  K.  Hartley. 
21-24,  1859,  1860.    George  F.  Moore  &  Rich- 
ard S.  Walker. 
TnACHER  (Peter  0.).     Boston  Municipal  Court, 

Criminal  Cases,  1823-1842.    1  vol. 
Thomson  (James).    Nova  Scotia  Supreme  Court, 

1856-1859.    1  vol. 
Thornton  (Thomas).     Notes  of  Cases  in  Ecclesi- 
astical and  Maritime  Courts,  1841-1850.  7 
vols. 

Tiffany  (Joel).    See  New  York. 

ToMLlN.     Supplement  to  Brown's  Parliamentary 

Cases,  1  Geo.  II.-40  Geo.  III. 
ToTHiLL  (William).    Chancery  Cases,  1-23  Jac.  I. 

Short  and  not  very  accurate;  more  in  the 

nature  of  an  index  than  reports. 
Townsend.    Modern  State  Trials,  3-7  Vict. 
Treadway.    See  Constitutional. 
Tucker  (R.  A.).    Newfoundland,  1817-1828.  1 

vol. 

Turner  (George)  &  Russell  (James).  High 
Court  of  Chancery,  Time  of  Eldon,  1822- 
1824.    1  vol. 

Tyler  (Royall).  Vermont  Supreme  Court,  1800- 
1803.    2  vols. 

Tyng  (D.  a.).    See  Massachusetts. 

Tyrwhitt  (Robert  Philip).  Exchequer  and  Ex- 
chequer Chamber,  1  Will.  IV.-5  Will.  IV., 
1830-1835.    5  vols. 

Tyrwhitt  (R.  P.)  &  Granger  (Thomas  C). 
Exchequer  and  Exchequer  Chamber,  6  Will. 
IV.,  1835,  1836.    1  vol. 


Upper  Canada  Jurist.    See  King's  Bench,  Old 
Series. 


Van  Ness  (William  P.).  United  States  District 
Court,  New  York  District,  1813.    1  vol. 

Vaughan  (Sir  J.).  Common  Pleas,  17-25  Car.  II. 
1  vol.  Edited  by  Edward  Vaughan.  Con- 
taining some  cases  from  his  own  perfected 
manuscript,  very  well  reported,  but  some 
others  not  fully  prepared  and  not  so  much 
esteemed.  Vaughan  was  an  interesting 
character,  upon  whose  merits  the  author  of 
The  Reporters  dwells  with  interest.  See 
page  211,  whore  a  sketch  of  the  Chief  Jus- 
tice may  be  found. 

Vaux  (Richard).  Criminal  Cases  heard  before  the 
Recorder  of  Philadelphia,  1841-1845.  1  vol. 

Ventris  (Sir  Peyton).  King's  Bench,  Common 
Pleas,  and  Chancery,  Car.  II.-3  Will.  III. 
1  vol. 

Vermont.  Vermont  Supreme  Court,  1826-1863. 
36  vols.    Volumes  20-25,  29,  contain,  also. 


Decisions  in  the  United  States  Circuit 
for  the  Second  Circuit. 
Vol.  1-9,    1826-1837.    The  Judges. 
10, 11,  1837-1839.    G.  B.  Shaw. 
11-14,  1839-1842.    William  Weston. 
15,       1843.  William  Slade. 

27-29,  1854-1857.  C.  L.  Williams. 
30-35,  1856-1863.  William  G.  Shaw. 
36,  1863,  1864.  W.  G.  Veazey. 
See  Aikens  ;  Brayton  ;  Chipman  ;  Tyler. 
Vernon  (Thomas).  High  Court  of  Chancery, 
1680-1718,  2  vols.  Vernon  was  a  verj 
eminent  chancery  lawyer;  but  his  reports 
were  posthumously  published  from  notes 
found  in  his  study  after  his  death.  They 
were  loose,  and  on  that  account  unsatis- 
factory and  inaccurate.  A  very  highly 
improved  edition  was  published  in  1806, 
1807,  by  Mr.  Raithby,  under  the  auspices  of 
Lord  Eldon.  The  manuscript  reports  of 
Vernon  were  the  subject  of  an  entertaining 
chancery  suit  between  his  widow,  his  heir 
at  law,  and  his  residuary  legatee.  No  one 
of  the  parties,  however,  succeeded;  and  the 
case  was  ended  by  the  lord  chancellor's  keep- 
ing the  manuscript  himself.  See  Wallace, 
Report.  307. 

Vernon  (G.  W.)  &  Scriven  (J.  B.).  King's  Court 
at  Dublin,  with  a  Few  Cases  in  the  Irish 
House  of  Lords,  1786-1788.    1  vol. 

Vesey  (Francis,  Junior).  High  Court  of  Chancery, 
1789-1817.  20  vols.  The  American  edition 
was  edited  by  Charles  Sumner. 

Vesey  (Francis,  Senior).  High  Court  of  Chancery, 
Time  of  Hardwicke,  1746-1755.    2  vols. 

Vesey  (Francis)  &  Beames  (John).  High  Court  of 
Chancery,  Time  of  Eldon,  1812-1814.  3  vols. 

Virginia.  See  Call;  Gilmer;  Grattan;  Hening 
&  Munford;  Jefferson;  Leigh;  Mun- 
ford;  Randolph;  Robinson;  Washington; 
Wythe.  ? 

Virginia  Cases.  General  Court,  1789-1826.  2 
vols.  By  William  Brockenhrough  &  Hugh 
Holmes. 


Walker  (Henry  N.).  Michigan  Chancery,  1842- 
1845.    1  vol. 

Walker  (R.  J.).    See  Mississippi. 

Wallace  (H.  E.).      Philadelphia  Courts,  1850-  I 
1858.    2  vols.  f. 

Wallace  (John  B.).  United  States  Circuit  Court, 
Third  Circuit,  "under  the  organization  of 
President  Adam^,"  May-Oct.  1801.    1  vol. 

Wallace  (John  William).  United  States  Supreme 
Court,  1863,  1864.    2  vols. 

Wallace  (John  William,  Junior).  United  States 
Circuit  Court,  Third  Circuit,  1842-1853.  2 
vols. 

Wallis  (John).  Irish  Chancery,  1766-1791.  1 
vol. 

Warden  (Robert  B.).    See  Ohio  State. 
Warden  (R.  B.)  &  Smith  (J.  H.).  See  Ohio  Statjj. 
Ware  (Ashur).     United  States  District  Court  for 
the   Maine   District,   1822-1839,  and  the 
second  edition,  containing  cases  of  1^54, 
1855.    1  vol. 
Washburne  (Peter  T.).    See  Veumgnt. 
Washington  (Bushrod).     United  States  Circuit 

Court,  Third  Circuit,  1803-1827.    4  vols. 
Washington  (Bushrod).     Virginia  Court  of  Ap- 
peals, 1790-1796.    2  vols. 
Watts  (Frederic).    Pennsylvania  Supreme  Court< 


1832-1840.    10  vols. 


REPORTS 


4G3 


REPORTS 


WiiTTS  (Frederic)  &  Sargeant  (Henry  J.)-  Penn- 
sylvania Supreme  Court,  1841-1844.   9  vols. 

Wrbb  (James)  &  Duvall  (Thomas  H.).  See 
Texas. 

Webster  (Thomas).  Patent  Cases.  Reports  and 
notes,  and  not  strictly  to  be  classed  with 
reports. 

Weekly  Reporter.    All  the  Courts,  15  Vict.- 
Welch.      Irish  Registry  Cases,  10  Geo.  IV.-3 
Vict. 

Welsby  (W.  N.),  Hurlstone  (E.  T.),  &  Gordon 

(J.).    See  Exchequer. 
Wendell  (John  L.).     New  York  Supreme  Court 

and  Court  of  Errors,  1828-1841.    26  vols. 

West  (Martin  John).  High  Court  of  Chancery, 
1736-1739.  1  vol.  A  book  published  only 
of  recent  time,  though  from  ancient  and 
genuine  manuscripts.  It  is  a  good  work  so 
far  as  it  goes,  but,  unfortunately,  includes 
but  a  short  term  of  Lord  Hardwicke's  admi- 
nistration in  Chancery. 

West  (Martin  John).  House  of  Lords  Cases,  1839- 
1841.    1  vol. 

Weston  (William).    See  Vermont. 

Wharton  (Francis).  State  Trials  of  the  United 
States  during  the  Administrations  of  Wash- 
ington and  Adams.    1  vol. 

Wharton  (Thomas  L).  Pennsylvania  Supreme 
Court,  1835-1841.    6  vols. 

Wheaton  (Henry).  United  States  Supreme  Court, 
1816-1827.    12  vols. 

Wheeler  (Jacob  D.).  Criminal  Cases  decided  at 
New  York  City  Hall,  1822,  1823.    3  vols. 

White  (F.  T.)  &  Tudor  (0.  D.).    A  Selection  of 

Leading  Cases  in  Equity. 
Whittlesey  (Charles  Cv).    See  Missouri. 
WiGHTWiCK  (J.).    Exchequer,  50,  51,  Geo.  III., 

1810,  1811.    1  voL 
Wilcox  (P.  B.).    See  Ohio. 

Willes  (Chief- Justice).  Common  Pleas,  Ex- 
chequer Chamber,  Chancery,  and  House  of 
Lords,  10-32  Geo.  IL  1  vol.  Edited  by 
Charles  Durnford.  Posthumously  published; 
but  quite  authoritative  and  useful. 

Williams  (C.  L.).    See  Vermont. 

Williams  (Ephraim).    See  Massachusetts. 

Willmore  (Graham),  Wollaston  (F.  L.),  &  Davi- 
son (H.).  King's  Bench,  Exchequer  Cham- 
ber, and  Bail  Court,  Hil.  T.  7  Will.  IV.- 
Mich.  T.  1  Vict.,  1837.    1  vol. 

Willmore  (Graham),WoLLASTON  (F.  L.),<fe  Hodges 
(W.).  Queen's  Bench,  Exchequer  Chamber, 
and  Bail  Court,  Hil.  T.  1  Vict.-Mich.  T. 
2  Vict.,  1838.    1  vol. 

WiLMOT  (Sir  John  Eardley).  Notes  of  Cases  de- 
cided by,  in  the  Different  Courts,  30-34  Geo. 
II.    1  vol. 

Wilson  (George).  King's  Bench  and  Common 
Pleas.    3  vols. 

Vol.  1,  16-26  Geo.  IL,  King's  Bench. 

2,  3,  26  Geo.  II.-IO  Geo.  IIL,  Com- 
mon Pleas.    An  excellent  reporter. 
Wilson  (John).    Chancery,  1818,  1819.    2  vols. 
Wilson  (John).     Exchequer  Chamber,  1817.  1 
vol. 

Wilson  (James)  &  Shaw  (Patrick).  House  of 
Lords  Cases  on  Appeal  from  Scotland,  1825- 
1834.    7  vols. 

Winch  (Sir  Ilumphrej).  Common  Pleas,  19-22 
Jac.  I.    1  vol.    Relating  to  declarations: 


the  cases  are  generally  well  enough  re- 
ported. 

Wisconsin.  Wisconsin  Supreme  Court,  1853-1864, 
17  vols. 

VoL  1-11,  1853-1860.  A.D.Smith. 

12-15,  1860-1862.    Philip  L.  Spocner. 
16,  17,  1862-1864.    0.  M.  Conover. 
SeeBuuNETT;  Chandler. 

WiTHROW  (Thomas  F.).    See  Iowa. 
WoLFERSTAN  &  Dew  Electicn 

Cases,  21  Vict.    1  vol. 
Wood  (Hutton).    Tithe  Cases  in  the  Exchequer 
Chamber,  2  Car.  I.-1799.    4  vols. 

Woodbury  (C.  L.)  &  Minot  (George).  United 
States  Circuit  Court,  First  Circuit,  1845-1847. 
3  vols. 

Woodbury  (Levi)  &  Richardson  (W.  M.).  See 

New  Hampshire. 
Wordsworth.   Digest  of  Election  Cases,  4,  5  Will. 
IV.,  1834. 

Wright  (John  C).    Ohio  Supreme  Court,  1831- 

1834.    1  vol. 
Wright  (Robert  E.).    See  Pennsylvania  State. 
Wythe  (George).    Virginia  Chancery,  1788-1799. 
1  vol. 

Yates  (John  V.  N.).  Select  Cases  decided  in  the 
New  York  Courts.    1  vol. 

Year-Books.  Cases  in  Different  Courts  from  Edw. 
I.-Hen.  VIIL    11  parts. 
Part  I.    By  Maynard.    Exchequer  {Memo- 
randa Sea ccarii),  2-29  Edw.  I.,  King'i 
Bench,  Common  Pleas,  and  Exche- 
quer, 1-19  Edw.  II. 
II.-IV.  King's   Bench   and  Common 
Pleas,  1-60  Edw.  IIL 

V.  Liber  Assisarum. 

VI.  King's  Bench  and  Common  Pleas, 
1  Hen.  IV.-IO  Hen.  V. 

VII.  ,  VIIL  King's  Bench  and  Common 
Pleas,  1-39  Hen.  VL 

IX.  Annals  King's  Bench  and  Common 
Pleas,  1-22  Edw.  IV. 

X.  King's  Bench  and  Common  Pleas, 
5  Edw.  IV. 

XI.  King's  Bench  and  Common  Pleas, 
1  Edw.  V.-27  Hen.  VIIL  It  appears 
from  a  case  in  this  volume  of  the 
Year-Books  cited  in  Wallace's  Re- 
porters, from  Mr.  Foss's  valuable  Lives 
of  the  English  Judges,  that  Richard 
III.  wished  to  sit  in  court  and  decide 
cases  there.  The  judges  refused  very 
distinctly  to  allow  him  to  do  so.  See 
Wallace,  Report.  75. 

Year-Books.  30-33  Edward  I.  Edited  and 
translated  by  A.  J.  Howard.  Published  by 
the  authority  of  the  Lords  Commissioners  of 
the  Treasury,  under  the  direction  of  ths 
Master  of  the  Rolls.  1864. 

Yeates  (Jasper).  Pennsylvania  Supreme  Court, 
1791-1808.    4  vols. 

Yelverton  (Sir  Henry).  King's  Bench,  Pasch, 
T.  44  Eliz.-Hil.  T.  Jac.  I.  Excellent  re- 
ports of  a  first-rate  old-school  English  law- 
yer, and  admirably  edited  in  America  by 
Judge  Metcalf.  See  Wallace,  Report.  153, 
where  a  full  biographical  sketch  of  the 
gifted  and  unfortunate  reporter  is  given. 

Yerger  (George  S.).    Tennessee  Supreme  Court, 

1818-1837.    10  vols. 
Younge  (Edward).     Exchequer  Equity  Cases,  11 
Geo.  IV.-2  Will.  IV.    1  vol. 


REPRESENT 


464 


REPRIEVE 


TouNGE  (Edward)  &  Collveti  (John).  Exchequer 
Equity  Cases,  4  Will.  IV.-3  Vict.    3  vols. 

YouNGE  (Edward)  &  Collyer  (John).  High  Court 
of  Chancery,  1841-1844.    2  vols. 

YouNOE  (Edward)  &  Jervis  (J.).    Exchequer  and 
Exchequer  Chamber,  7-11  Geo.  IV.   3  vols. 

Za-Briskie  (A.  0.).     New  Jersey  Supreme  Court, 
1847-1855.    4  vols. 

REPRESENT.  To  exhibit;  to  expose 
before  the  eyes.  To  represent  a  thing  is  to 
produce  it  publicly.    Dig.  10.  4.  2.  3. 

REPRESENTATION.   In  Insurance. 

The  stating  of  facts  by  either  of  the  par- 
ties to  a  policy  of  insurance,  to  the  other, 
whether  in  M-riting  or  orally,  expressly  or  by 
plain  implication,  preliminary  and  in  refer- 
ence to  making  the  insurance,  obviously  tend- 
ing to  influence  the  other  as  to  entering  into 
the  contract.  1  Phillips,  Ins.  ^  524;  12  Md. 
348;  11  Cush.  Mass.  324;  2N.  H.  551;  6 
Gray,  Mass.  221. 

A  fact  obviously  haying  such  tendency 
is  called  a  material  fact.  1  Phillips,  Ins.  *| 
525.  Doctrines  respecting  representation  and 
concealment  usually  have  reference  to  those 
by  the  assured,  upon  whose  knowledge  and 
statement  of  the  facts  the  insurance  is  usually 
made;  but  the  doctrine  on  the  subject  is 
equally  applied  to  the  underwriter,  so  far  as 
facts  are  known  to  him.  1  Phillips,  Ins.  g 
533  ;  3  Burr.  1905  ;  2  Taunt.  214. 

A  misrepresentation  makes  the  insurance 
void,  notwithstanding  its  being  free  of  fraud. 
1  Story,  Confl.  L.  57 ;  1  Term,  12;  IDu.N.Y. 
747;  is  Eng.  L.  &  Eq.  427. 

A  statement  of  a  mere  expectation  or  be- 
lief is  not  a  representation  of  the  facts  to 
which  it  has  reference.  1  Phillips,  Ins.  g 
551;  Cowp.785;  1  Dougl.  271,  305 ;  13  Mass. 
172  ;  22  Pick.  Mass.  200. 

3.  A  substantial  compliance  with  a  repre- 
sentation is  sufficient, — the  rule  being  less 
strict  than  in  case  of  an  express  warranty. 
1  Phillips,  Ins.  544,  547,  669  et  seq.;  3 
Mete.  Mass.  114;  7  East,  367 ;  4  Mas.  C.  C. 
439. 

Insurance  against  fire  and  on  life  rests 
upon  the  same  general  conditions  of  good 
faith  as  maritime  insurance ;  but  in  the  first 
two  classes  the  contract  is  usually  based 
mainly  upon  statements  by  the  applicant  in 
■written  replies  to  numerous  inquiries  ex- 
pressly referred  to  in  the  policy,  which  an- 
swers are  thus  made  express  warranties,  and 
must,  accordingly,  be  strictly  true  whether 
their  being  so  is  or  is  not  material  to  the  risk. 
The  inquiries  are  intended  to  cover  all  mate- 
rial circumstances,  subject,  however,  to  the 
principle,  applicable  to  all  contracts,  that 
fraud  by  either  party  will  exonerate  the  other 
from  his  obligations,  if  he  so  elects.  1  Phil- 
hps,  Ins.  c.  7,  s.  15,  16  ;  5  Hill,  N.  Y.  188  ;  2 
Hall,  N,  Y.  632  ;  7  Barb.  N.  Y.  570  ;  2  Den. 
N.  Y.  7";  10  Pick.  Mass.  535  ;  6  Gray,  Mass. 
288  ;  6  Cush.  Mass.  42,  449  ;  2  Rob.  La.  266; 
24  Penn.  St.  320  :  3  Md.  341 ;  2  Ohio,  452 ; 
21  Conn.  19 ;  6  Humphr.  Tenn.  176 ;  6  Mc- 


Lean, C.  C.  324;  8  How.  235  ;  1  W.  Blackst 
312  ;  6  Taunt.  186  ;  8  Barnew.  &  C.  586  ;  S 
Mees.  &  W.  Exch.  505  ;  5  Bingh.  533  ;  3  Carr 
&  P.  353 ;  2  Mood.  &  II.  328.  See  Conceal- 
ment ;  Misrepresentation. 

In  Scotch  Law.  The  rame  of  a  plea  or 
statement  presented  to  a  lord-ordinary  of  the 
court  of  sessions,  when  his  judgment  is 
brought  under  review. 

REPRESENTATION  OF  PERSONS. 

A  fiction  of  the  law,  the  effect  of  which  is  to 
put  the  representative  in  the  place,  degree, 
or  right  of  the  person  represented. 

The  heir  represents  his  ancestor,  Bacon, 
Abr.  Heir  and  Ancestor  (A) ;  the  devisee,  his 
testator ;  the  executor,  his  testator ;  the  ad- 
ministrator, his  intestate;  tb^^  successor  in 
corporations,  his  predecessor;  and,  generally 
speaking,  they  are  entitled  to  the  rights  of 
the  persons  whom  they  represent,  and  bound 
to  fulfil  the  duties  and  obligations  which  were 
binding  upon  them  in  those  characters. 

Representation  was  unknown  to  the  Ro- 
mans, and  was  invented  by  the  commentators 
and  doctors  of  the  civil  law.  Toullier,  Dr.  Civ. 
Fr.  liv.  3,  t.  1,  c.  3,  n.  180.  See  Ayliffe,  Pand. 
397 ;  Dalloz,  Diet.  Succession,  art.  4,  §  2. 

REPRESENTATIVE.   One  who  repre- 

sents  or  is  in  the  place  of  another. 

In  legislation,  it  signifies  one  who  has  been 
elected  a  member  of  that  branch  of  the  legis- 
lature called  the  house  of  representatives. 

A  representative  of  a  deceased  person, 
sometimes  called  a  "  personal  repre?«^ntative,'' 
or  "legal  personal  representative,"  is  one 
who  is  executor  or  administrator  of  the  person ' 
described.  6  Madd.  Ch.  159 ;  5  Ves.  Ch. 
402. 

REPRESENTATIVE  DEMOCBACT. 

A  form  of  government  where  the  powers  ol 
the  sovereignty  are  delegated  to  a  body  of 
men,  elected  from  time  to  time,  who  exercise 
them  for  the  benefit  of  the  whole  nation  1 
Bouvier,  Inst.  n.  31. 

REPRIEVE  (from  Fr.  reprendre,  to  take 
back).  In  Criminal  Practice.  The  with- 
drawing of  a  sentence  for  an  interval  of  time, 
which  operates  in  delay  of  execution.  4  Black 
stone.  Comm.  394. 

It  is  granted  by  the  favor  of  the  pardon 
ing  power,  or  by  the  court  who  tried  the  pri- 
soner. Reprieves  are  sometimes  granted  ex 
necessitate  legis:  for  example,  when  a  woman 
is  convicted  of  a  capital  offence,  after  judg- 
ment she  may  allege  pregnancy  in  delay  of 
execution.  In  order,  however,  to  render  this 
plea  available,  she  must  be  quick  with 
child,  the  law  presuming — perhaps  absurdly 
enough — that  before  that  period  life  does  not 
commence  in  the  foetus.  Coke,  3d  Insk.  17 ; 
1  Hale,  PI.  Cr.368;  2  trf.  413  ;  4Blackstone. 
Comm.  395. 

The  judge  is  also  bound  to  grant  a  reprieve 
when  the  prisoner  becomes  insane.  4  Har- 
grave,  St  Tr.  205,  206 ;  Coke,  3d  Inst.  4 ; 
Hi  1.  Cr.  b.  1,  c.  1,  s.  4;  1  Chitty, 

Cr  757. 


REPRIMAND 


465 


REPUDIATION 


REPRIMAND.  The  censure  which  in 
§ome  cases  a  public  officer  pronounces  against 
an  offender. 

This  species  of  punishment  is  used  by  le- 
gishitive  bodies  to  punish  their  members  or 
others  who  have  been  guilty  of  some  impro- 
priety of  conduct  towards  them.  The  repri- 
mand is  usually  pronounced  by  the  speaker. 

REPRISALS.  The  forcibly  taking  a 
thing  by  one  nation  which  belonged  to  an- 
other, in  return  or  satisfaction  for  an  injury 
committed  by  the  latter  on  the  former.  Vat- 
tel,  b.  2,  c.  18,  s.  342 ;  1  Blackstone,  Comm. 
c.  7. 

General  reprisals  take  place  by  virtue  of 
commissions  delivered  to  officers  and  citizens 
of  the  aggrieved  state,  directing  them  to  take 
the  persons  and  property  belonging  to  the 
offending  state  wherever  found. 

Negative  reprisals  take  place  when  a  nation 
refuses  to  fulfil  a  perfect  obligation  which  it 
has  contracted,  or  to  permit  another  state  to 
enjoy  a  right  which  it  justly  claims. 

Positive  reprisals  consist  in  seizing  the  per- 
1  sons  and  effects  belonging  to  the  other  nation, 
in  order  to  obtain  satisfaction. 

Special  reprisals  are  such  as  are  granted  in 
times  of  peace  to  particular  individuals  who 
have  suffered  an  injury  from  the  citizens  or 
subjects  of  the  other  nation. 

Reprisals  are  used  between  nation  and 
*  nation  to  do  themselves  justice,  when  they 
cannot  otherwise  obtain  it.  Congress  have 
the  power  to  grant  letters  of  marque  and 
reprisal.    U.  S.  Const,  art.  1,  s.  8,  cl.  11. 

Reprisals  are  made  in  two  ways,  either  by 
embargo,  in  which  case  the  act  is  that  of  the 
state,  or  by  letters  of  marque  and  reprisals, 
in  which  case  the  act  is  that  of  the  citizen, 
authorized  by  the  government.  See  2  Brown, 
Civ.  Law,  334. 

The  property  seized  in  making  reprisals  is 
preserved  while  there  is  any  hope  of  obtain- 
ing satisfaction  or  justice  ;  as  soon  as  that 
hope  disappears,  it  is  confiscated,  and  then 
the  reprisal  is  complete.  Yattel,  b.  2,  c.  18, 
I  342.    See  Wheaton,  Int.  Law. 

REPRISES.  The  deductions  and  pay- 
ments out  of  lands,  annuities,  and  the  like 
are  called  reprises,  because  they  are  taken 
hack:  when  we  speak  of  the  clear  yearly 
value  of  an  estate,  we  say  it  is  worth  so  much 
a  year  ultra  reprises,  besides  all  reprises. 

In  Pennsylvania,  lands  are  not  to  be  sold 
when  the  rents  can  pay  the  encumbrances  in 
seven  years,  beyond  all  reprises. 

REPROBATION.  In  Ecclesiastical 
Law.  The  propounding  exceptions  either 
against  facts,  persons,  or  things:  as,  to  allege 
that  certain  deeds  or  instruments  have  not 
been  duly  and  lawfully  executed;  or  that 
certain  persons  are  such  that  they  are  incom- 
petent as  witnesses;  or  that  certain  things 
ought  not,  for  legal  reasons,  to  be  admitted. 

REPUBLIC.  A  commonwealth;  that 
form  of  government  in  which  the  adminis- 
tration of  affairs  is  open  to  all  the  citizens. 

Vol.  II.— 30 


In  another  sense,  it  signifies  the  state,  inde 
pendently  of  its  form  of  government.  1 
Toullier,  n.  28,  and  n.  202,  note. 

REPUBLICAN  GOVERNMENT.  A 

government  in  the  republican  form;  a  gov 
ernment  of  the  people:  it  is  usually  put  in 
opposition  to  a  monarchical  or  aristocratic 
government. 

The  fourth  section  of  the  fourth  article  of 
the  constitution  directs  that  "the  United 
States  shall  guarantee  to  every  state  in  the 
Union  a  republican  form  of  government.'' 
The  form  of  government  is  to  be  guaranteed, 
which  supposes  a  form  already  established; 
and  this  is  the  republican  form  of  govern- 
ment the  United  States  have  undertaken  to 
protect.    See  Story,  Const.  ^  1807. 

REPUBLICATION.  An  act  done  by  a 
testator,  from  which  it  can  be  concluded  that 
he  intended  that  an  instrument  which  had 
been  revoked  by  him  should  operate  as  his 
will ;  or  it  is  the  re-execution  of  a  will  by  the 
testator,  with  a  view  of  giving  it  full  force 
and  effect. 

2.  The  republication  is  express  when  there 
has  been  an  actual  re-execution  of  it,  1  Ves. 
Ch.  440 ;  2  Rand.  Va.  192 ;  9  Johns.  N.  Y. 
312;  it  is  implied  when,  for  example,  the 
testator  by  a  codicil  executed  according  to 
the  statute  of  frauds,  reciting  that  he  had 
made  his  will,  added,  "I  hereby  ratify  and 
confirm  my  said  will,  except  in  the  alterations 
after  mentioned."  Com.  381  ;  3  Brown, 
Pari.  Cas.  85.  The  will  might  be  at  a  dis- 
tance, or  not  in  the  power  of  the  testator,  and 
it  may  be  thus  republished.  1  Ves.  Sen.  Ch. 
437;  3Bingh.614;  lVes.Ch.486;  4  Brown, 
Ch.  2. 

3.  The  republication  of  a  will  has  the 
effect— ;^rs^,  to  give  it  all  the  force  of  a  will 
made  at  the  time  of  the  republication:  if,  for 
example,  a  testator  by  his  will  devise  '*  all 
his  lands  in  A,"  then  revokes  his  will,  and 
afterwards  buys  other  lands  in  A,  the  republi- 
cation, made  after  the  purchase,  will  pass  all 
the  testator's  lands  in  A.  Croke  Eliz.  493. 
See  1  P.  Will.  275.  Second,  io  set  up  a  will 
which  had  been  revoked.  See,  generally, 
Williams,  Exec;  Jarman,  Wills  ;  2  Bouvier, 
Inst.  nn.  2162-2264. 

REPUDIATE.  To  express  in  a  sufficient 
manner  a  determination  not  to  accept  a  right, 
when  it  is  offered. 

He  who  repudiates  a  right  cannot  by  that  act 
transfer  it  to  another.  Repudiation  dilfers  from 
renunciation  in  this,  that  by  the  former  he  who 
repudiates  simply  declares  that  he  will  not  accept; 
while  he  who  renounces  a  right  does  so  in  favor  of 
another.  Renunciation  is,  however,  sometimes  used 
in  the  sense  of  repudiation.  See  Renounce;  Re- 
nunciation; Wolff,  Inst,  g  339. 

REPUDIATION.     In  Civil  Law.  A 

term  used  to  signify  the  putting  away  of  a 
wife  or  a  woman  betrothed. 

Properly,  divorce  is  used  to  point  out  the  sepa- 
ration of  married  persons;  repudiation,  to  denote 
the  separation  either  if  married  people,  or  those 
who  are  only  affianced.  Divortium  est  repndmm 
et  aeparatio  maritorum;   »epudiuin  eat  rejiunciatiu 


REPUGNANCY 


466 


RES  COMMUNED 


I 


tponaalium,  vel  etium  est  divortium.  Dig.  50.  16. 
101. 

A  determination  to  have  nothing  to  do  with 
any  particulaT  thing :  as,  a  repudiation  of  a 
legacy  is  the  abandonment  of  such  legacy, 
and  a  renunciation  of  all  right  to  it. 

In  Ecclesiastical  Law.  The  refusal  to 
accept  a  benefice  which  has  been  conferred 
upon  the  party  repudiating. 

REPUGNANCY  (Lat.  re,  back,  against, 
pugnare,  to  fight).  In  Contracts.  A  dis- 
agreement or  inconsistency  between  two  or 
more  clauses  of  the  same  instrument.  In 
deeds,  and  other  instruments  inter  vivos,  the 
earlier  clause  prevarls,  if  the  inconsistency 
be  not  so  great  as  to  avoid  the  instrument  for 
uncertainty.  Hardw.  94  ;  Ow.  84 ;  2  Taunt. 
109;  15  Sim.  Ch.  118;  2  C.  B.  830  ;  13  Mees. 
&  W.  Exch.  534. 

In  wills,  the  latter  clause  prevails,  under 
the  same  exceptions.  Coke,  Litt.  112  b; 
Plowd.  541;  2  Taunt.  109;  6  Ves.  100;  2 
Mylne  &  K.  149;  1  Jarm.  Wills,  411.  See 
23  Am.  Jur.  277  ;  1  Parsons,  Contr.  26. 

Repugnancy  in  a  condition  renders  it  void. 
2  Salk.  463 ;  2  Mod.  285  ;  11  id.  191 ;  1  Hawks, 
No.  C.  20  ;  7  J.  J.  Marsh.  192.  And  see, 
generally,  3  Pick.  272  ;  4  id.  54  ;  6  Cow.  677. 

In  Pleading.  An  inconsistency  or  dis- 
agreement between  the  statements  of  mate- 
terial  facts  in  a  declaration  or  other  pleading: 
as,  where  certain  timber  was  said  to  be  for 
the  completion  of  a  house  already  built.  1 
Salk.  213. 

Repugnancy  of  immaterial  facts,  or  of  re- 
dundant and  unnecessary  matter,  if  it  does 
not  contradict  material  allegations,  will  not, 
in  general,  vitiate  the  pleadings.  Coke,  Litt. 
303  b;  10  East,  142 ;  1  Chitty,  Plead.  233. 
SeeLawes,  Plead.  64;  Stephen,  Plead.  378; 
Corny ns,  Dig.  Abatement  (H  6) ;  1  Viner,  Abr. 
36;  19  id.  45  ;  Bacon,  Abr.  Amendment,  etc. 
(E  2),  Pleas  (I  4). 

REPUTATION  (Lat.  reputo,  to  consider). 
The  opinion  generally  entertained  in  regard 
to  the  character  or  condition  of  a  person  by 
those  who  know  him  or  his  family.  The  opi- 
nion generally  entertained  by  those  who  may 
be  supposed  to  be  acquainted  with  a  fact. 

In  general,  reputation  is  evidence  to  prove 
a  man's  character  in  society ;  a  pedigree,  14 
Campb.  416  ;  4 Term,  356  ;  1  Sim.  &  S.  Ch.  153 ; 
certain  prescriptive  or  customary  rights  and 
obligations  ;  matters  of  public  notoriety.  But 
as  such  evidence  is  in  its  own  nature  very 
weak,  it  must  be  supported,  when  it  relates 
to  the  exercise  of  a  right  or  privilege,  by 
proof  of  acts  of  enjoyment  of  such  right  or 
privilege  within  the  period  of  living  memory. 

1  Maule  &  S.  679 ;  5  Term,  32.  Afterwards, 
evidence  of  reputation  may  be  given.  The 
fact  must  be  of  a  public  nature  ;  it  must  be 
derived  from  persons  likely  to  know  the  facts. 

2  Bingh.  86;  9  B.  Monr.  88;  4  Barnew.  & 
Aid.  53.  The  facts  must  be  general,  and  not 
particular  ;  they  must  be  free  from  suspicion. 
I  Starkie,  Ev.  54-65  ;  1  PhiUipps,  Ev.  4th 
Am.  ed.  248  et  seq. 


Injuries  to  a  man's  reputation  by  circu- 
lating false  accounts  in  relation  thereto  are 
remediable  by  action  and  by  indictment.  See 
Libel  ;  Slander. 

REQUEST  (Lat.  requiro,  to  ask  for). 

In  Contracts.  A  notice  of  a  desire  on  the 
part  of  the  person  making  it,  that  the  other 
party  shall  do  something  in  relation  to  a  con- 
tract. Generally,  when  a  debt  is  payable 
immediately,  no  request  need  be  made.  10 
Mass.  230  ;  3  Day,  Conn.  327  ;  1  Johns.  Cas. 
N.  Y.  319. 

In  some  cases,  the  necessity  of  a  request  is 
implied  from  the  nature  of  the  transaction : 
as,  where  a  horse  is  sold  to  A,  to  be  paid  for 
on  delivery,  A  must  show  a  request,  5  Term, 
409  ;  1  East,  209,  or  impossibility  on  the  part 
of  the  vendor  to  comply,  if  requested,  10  East, 
359;  5  Barnew.  &  Ad.  712,  previous  to  bring- 
ing an  action,  or  on  a  promise  to  marry.  2 
Dowl.  &  R.  55.  See  Demand.  And  if  the 
contract  in  terms  provides  for  a  request,  it 
must  be  made.  1  Johns.  Cas.  N.  Y.  327.  It 
should  be  in  writing,  and  state  distinctly 
what  is  required  to  be  done.  1  Chitty,  Pract. 
497. 

In  Pleading.  The  statement  in  the  plain- 
tiff's declaration  that  a  demand  or  request 
has  been  made  by  the  plaintiff  of  the  defend- 
ant to  do  some  act  which  he  was  bound  to  ' 
perform,  and  for  which  the  action  is  brought. 

A  general  request  is  that  stated  in  the  form 
"although  often  requested  so  to  do"  [licet 
scepe,  requisitus),  generally  added  in  the  ' 
common  breach  to  the  money  counts.  Its 
omission  will  not  vitiate  the  declaration.    2  - 
H.  Blackst.  131 ;  1  Wils.  33  ;  1  Bos.  &  P.  59;  ? 
1  Johns.  Cas.  N.  Y.  100. 

A  special  request  is  one  provided  for  by  the 
contract,  expressly  or  impliedly.    Such  a  re-  • 
quest  must  be  averred,  5  Term,  409 ;  1  East,  . 
204 ;  3  Bulstr.  297  ;  3  Campb.  549  ;  2  Barnew.  ; 
&C.  685,  and  proved.  1  Saund.32,n.2.  Itmust 
state  time  and  place  of  making,  and  by  whom 
it  was  made,  that  the  court  may  judge  of  its  ■ 
sufficiency.     1  Strange,  89.     See  Oomyns,  '■ 
Dig.  Pleader  (C  69,  70);  1  Saund.  33,  n.;  2  > 
Ventr.  75  ;  Demand. 

REQUEST  NOTES.  In  English  Law. 

Certain  notes  or  requests  from  persons  amena- 
ble to  the  excise  laws,  to  obtain  a  permit  for 
removing  any  excisable  goods  or  articles  from 
one  place  to  another. 

REQUISITION.  The  act  of  demanding 
a  thing  to  be  done  by  virtue  of  some  right. 

The  demand  made  by  the  governor  of  one 
state  on  the  governor  of  another  for  a  fugitive, 
under  the  provision  of  the  United  States  con- 
stitution. 

RES  (Lat.  things). 

The  terms  Res,  Bona,  Biens,  used  by  jurists  who 
have  written  in  the  Latin  and  French  languages, 
are  intended  to  include  movable  or  personal,  as 
well  as  immovable  or  real,  property.  1  Bnrge, 
Confl.  of  Laws,  19.    See  Biens;  Bona;  Things. 

RES  COMMUNES  (Lat.).;  In  CivU 
Law.  Those  things  which,  though  a  sepur 
rate  share  of  them  can  be  enjoyed  and  use*^ 


RES  GESTAE 


467 


RES  PRIVATE 


by  every  one,  cannot  be  exclusively  and 
wholly  appropriated:  as,  li^lit,  air,  ruiinitij; 
water.  Maekeldy,  Civ.  Law,  |  150  ;  Erskine, 
Inst.  1.  1.  5,  G. 

RES  GEST-SJ  (Lat.).  Transaction; 
thinji;  done;  the  subject-matter. 

When  it  is  necessary  in  the  course  of  a 
3ause  to  inquire  into  the  nature  of  a  particu- 
lar act,  or  the  intention  of  the  person  who 
did  the  act,  proof  of  what  the  person  said  at 
the  time  of  doing  it  is  admissible  evidence 
as  part  of  the  res  gestce,  for  the  purpose  of 
showing  its  true  character.  On  an  indict- 
ment {'or  a  rape,  for  example,  what  the  girl 
said  so  recently  after  the  iact  as  to  exclude 
the  possibility  of  practising  on  her,  has  been 
held  to  be  admissible  evidence  as  a  part  of 
the  transaction.  East,  PI.  Cr.  414;  2  Stark. 
241 ;  1  Starkie,  Ew.  47  ;  1  Phillipps,  Ev.  4th 
Am.  ed.  185  et  seq. ;  Bouvier,  Inst.  Index. 

RES  INTEGRA  (Lat.  an  entire  thing; 
an  entirely  new  or  untouched  matter).  A 
term  applied  to  those  points  of  law  which 
have  not  been  decided,  wdiich  are  untouched 
by  dictum  or  decision.  3  Mer.  Ch.  269;  1 
Burge,  Confl.  of  Laws,  241. 

RES  INTER  ALIOS  ACTA  (Lat.).  A 
technical  phrase  which  signifies  acts  of  others 
or  transactions  between  others. 

Neither  the  declarations  nor  any  other  acts 
of  those  who  are  mere  strangers,  or,  as  it  is 
usually  expressed,  any  res  inter  alios  acta, 
are  admissible  in  evidence  against  any  one: 
when  the  party  against  whom  such  acts  are 
offered  in  evidence  was  privy  to  the  act,  the 
objection  ceases:  it  is  no  longer  re5  inter  alios. 
1  Starkie,  Ev.  52;  3  id.  1300;  4  Mann.  &  G. 
;282.    See  1  Mete.  Mass.  55;  Maxims. 

RES  JUDICATA  (Lat.  things  decided). 
In  Practice.  A  legal  or  equitable  issue 
which  has  been  decided  by  a  court  of  compe- 
tent jurisdiction. 

It  is  a  general  principle  that  such  decision  is 
binding  and  conclusive  upon  all  other  courts  of  con- 
current power.  Thi^  principle  pervades  not  only 
our  own,  but  all  other  systems  of  jurisprudence, 
and  has  become  a  rule  of  universal  law,  founded 
on  the  soundest  policy.  If,  therefore,  Paul  sue  Peter 
to  recover  the  amount  due  to  him  upon  a  bond,  and 
on  the  trial  the  plaintiff  fails  to  prove  the  due  exe- 
cution of  the  bond  by  Peter, — in  consequence  of 
which  a  verdict  is  rendered  for  the  defendant  and 
judgment  is  entered  thereupon. — this  judgment, 
till  reversed  on  error,  is  conclusive  upon  the  par- 
ties, and  Paul  cannot  recover  in  a  subsequent  suit, 
although  he  may  then  be  able  to  prove  the  due  ex- 
ecuticm  of  the  bond  by  Peter,  and  that  the  money 
is  due  to  him;  for,  to  use  the  language  of  the 
civilians,  res  judicata  facit  ex  alio  ni(jruiu,  ex  nigro 
album,  ex  curvo  rectum,  ex  recto  ciirvum  (a  decision 
makes  white  black;  black,  white;  the  crooked, 
straight;  the  straight,  crooked). 

The  constitution  of  the  United  States  and  the 
amendments  to  it  declare  that  no  fact  once  tried  by 
a  jury  shall  be  otherwise  re-examinable  in  any 
court  of  the  United  States  than  according  to  the 
rules  of  the  common  law. 

But  in  order  to  make  a  matter  res  judicata 
there  must  be  a  concurrence  of  the  four  con- 
ditions following,  namely :  identiti/  in  the 
(king  sued  for,  b  Meea.  &  W.  Exch.  109;  3 


East,  34G;  7  Johns.  N.  Y.  20;  1  lien.  & 
M.  Va.  440;  1  Dan.  Ky.  434;  ideiUily  of 
the  cause  of  action:  if,  lor  example,  I  have 
claimed  a  right  of  way  over  Blackacre,  and 
a  final  judgment  has  been  rendered  against 
me,  and  aiterwards  I  purchase  Blackacre, 
this  first  decision  shall  not  be  a  bar  to  my 
recovery  wdien  I  sue  as  owner  of  the  land, 
and  not  for  an  easement  over  it  which  I 
claimed  as  a  right  appurtenant  to  my  land 
Whiteacre,  0  Wheat.  100;  2  Gall.  C.  C.  210; 
17  Mass.  237 ;  2  Leigh,  Va.  474 ;  8  Conn.  208 ; 
1  Nott  &  M'C.  So.  C.  329  :  10  Serg.  &  II. 
Penn.  282;  17  id.  319;  3  Pick.  Mass.  420 ; 
identity  of  persons  and  of  parties  to  the  ac- 
tion, 7  Cranch,  271 :  1  Wheat.  0  ;  14  Serg.  & 
R.  Penn.  435;  4  Mass.  441 ;  2  Yerg.  Tenn. 
10  ;  5  Me.  410  ;  8  Gratt.  Va.  68 ;  10  Mo.  108  ; 
12  Ga.  271 ;  21  Ala.  n.  s.  813  ;  4  Den.  N.  Y. 
302  ;  23  Barb.  N.  Y.  404 :  this  rule  is  a  neces- 
sary consequence  of  the  rule  of  natural  jus- 
tice, ne  inauditus  condemnetur ;  ideniit//  of 
the  quality  in  the  persons  for  or  against  whom 
the  claim  is  made:  for  example,  an  action  ]>y 
Peter  to  recover  a  horse,  and  a  final  judgment 
against  him,  is  no  bar  to  an  action  })y  Peter, 
administrator  of  Paul,  to  recover  the  same 
horse.  5  Coke,  32  Z>;  4  Term,  490  ;  0  Mann. 
&  G.  164  :  4  C.  B.  884.  See  Habeas  Corpus  ; 
Former  Judgment  ;  2  Phillipps,  passim. 

RES  MANCIPI  (Lat.).  In  Roman 
Law.  Those  things  which  might  be  sold  and 
alienated,  or  of  wdiich  the  property  might  be 
transferred  from  one  parson  to  another. 

The  division  of  things  into  res  mancipi  and  rea 
nec  mancijji  was  one  of  ancient  origin,  and  it  con- 
tinued to  a  late  period  in  the  empire.  Res  man- 
cipi  (Ulph.  Frag,  xix.)  are  prsediu  in  italico  solo, 
both  rustic  and  urban;  also,  ji«m  rvsticorum.  jJi'sc- 
diorum  or  seriiitutes,  as  via,  iter,  aquseductus ;  also 
slaves,  and  four-footed  animals,  as  oxen,  horses, 
etc.,  quse  collo  dorsove  domavtur.  Smith,  Diet. 
Gr.  <fe  Rom.  Antiq.  To  this  list  may  be  added 
children  of  Roman  parents,  who  were,  according 
to  the  old  law,  res  7)iaiic'ipi.  The  distinction  be- 
tween res  rnancipi  and  nec  viancipi  was  abolished 
by  Justinian  in  his  Code.     Id. ;  Cooper,  Inst.  442. 

RES  NOVA  (Lat.).  Something  new; 
something  not  before  decided. 

RES  NULLIUS  (Lat.).  A  thing  which 
has  no  owner.  A  thing  which  has  been  aban- 
doned by  its  owner  is  as  much  res  nullius  as 
if  it  had  never  belonged  to  any  one. 

The  first  possessor  of  such  a  thing  becomes 
the  owner:  res  nullius  f  t  primi  occupantis 
Bowyer,  Comm.  97. 

RES  PERIIT  DOMINO  (Lat.  the 
thing  is  lost  to  the  owner).  A  phrase  used 
to  express  that  wdien  a  thing  is  lost  or  de- 
stroyed it  is  lost  to  the  person  who  was  the 
owner  of  it  at  the  time.  For  example,  an 
article  is  sold  ;  if  the  seller  have  perfected 
the  title  of  the  buyer  so  that  it  is  his,  and  it 
be  destroyed,  it  is  the  buyer's  loss  ;  but  if,  on 
the  contrary,  something  remains  to  be  done 
before  the  title  becomes  vested  in  the  buyer, 
then  the  loss  falls  on  the  seller. 

RES  PRIVATiE  (Lat).  In  Civil  Law 
Things  the  property  of  one  or  more  indi 
viduals.    Maekeldy,  Civ.  Law,  I  15"^. 


RES  PUBLICS 


468 


RESCISSION  OF  COxVTRACTS 


RES  PUBLICiE  ( Lat. ) .   In  Civil  Law. 

Things  the  property  of  the  state.  Mackeldy, 
Civ.  Law,  ^  157  ;  Erskine,  Inst.  2.  1.  5.  6. 

RES  RELIGIOS-Sl  (Lat.).  In  Civil 
Law.  Things  pertaining  to  religion.  Places 
where  the  dead  were  buried.  Thevenot  Des- 
saules,  Diet,  du  Dig.  Chose. 

RES  SACRJG  (Lat.).  In  Civil  Law. 
Those  things  which  had  been  publicly  con- 
secrated. 

RES  SANCTiE  (Lat.).    In  Civil  Law. 

Those  things  which  were  especially  protected 
against  injury  of  man. 

RES  UNIVERSATIS  (Lat.).  Those 
things  which  belong  to  cities  or  municipal 
corporations.  They  belong  so  far  to  the 
public  that  they  cannot  be  appropriated  to 
private  use :  such  as  public  squares,  market- 
houses,  streets,  and  the  like.  1  Bouvier, 
Inst.  n.  440. 

RESALE.  A  second  sale  made  of  an 
article :  as,  for  example,  when  A,  having  sold 
a  horse  to  B,  and  the  latter,  not  having  paid 
for  him,  and  refusing  to  take  him  away, 
when  by  his  contract  he  was  bound  to  do  so, 
again  sells  the  horse  to  C. 

The  effect  of  a  resale  is  not  always  to  an- 
nul the  first  sale,  because,  as  in  this  case,  B 
would  be  liable  to  A  for  the  difference  of  the 
price  between  the  sale  and  resale.  4  Bingh. 
722  ;  4  Mann.  &  G.  898  ;  Blackburn,  Sales, 
336 ;  Story,  Sales. 

RESCEIT,  RECEIT.  The  admission 
or  receiving  of  a  third  person  to  plead  his 
fight  in  a  cause  formerly  commenced  between 
two  other  persons :  as,  when  an  action  is 
brought  against  a  tenant  for  life  or  years,  or 
any  other  particular  tenant,  and  he  makes 
default,  in  such  case  the  reversioner  may 
move  that  he  may  be  received  to  defend  his 
right  and  to  plead  with  the  demandant. 
Jacob,  Law  Diet. ;  Cowel. 

The  admittance  of  a  plea  when  the  con- 
troversy is  between  the  same  two  persons. 
Coke,  Litt.  192 ;  3  Nelson,  Abr.  146. 

RESCISSION  or  CONTRACTS. 

The  abrogation  or  annulling  of  contracts. 

2.  It  may  take  place  by  mutual  consent; 
and  this  consent  may  be  inferred  from  acts. 
4  Mann.  &  G.  898  ;  7  Bingh.  266  ;  1  Term, 
133  ;  1  Pick.  Mass.  57  ;  4  id.  114  ;  5  Me.  277. 
It  may  take  place  as  the  act  of  one  party,  in 
consequence  of  a  failure  to  perform  by  the 
other,  2  C.  B.  905  ;  4  Wend.  N.  Y.  285;  2 
Penn.  St.  454;  3  id.  445  ;  28  N.  H.  561 ;  9 
La.  Ann.  31 ;  not  so  where  the  failure  is  but 
partial,  4  Ad.  &  E.  599  ;  1  Mees.  &  W.  Exch. 
231  ;  on  account  of  fraud,  even  though  par- 
tially executed,  5  Cush.  Mass.  126;  15  Ohio, 
200  ;  23  N.  II.  519.  See  1  Den.  N.  Y.  69  ; 
10  Ala.  N.  s.  478 ;  7  Ired.  No.  C.  32. 

3.  A  contract  cannot,  in  general,  be  re- 
scinded by  one  party  unless  both  parties  can 
be  placed  in  the  same  situation  and  can 
stand  upon  the  same  terms  as  existed  w^hen 
the  contract  was  made.  5  East,  449  ;  2  Younge 
k  J.  Exch.  278  ;  4  Mann.  &  G.  903  ;  1  Mees. 


&  W.  Exch.  231 ;  2  Exch.  783  ;  3  Me.  30 ;  14 
id.  364 ;  1  Den.  N.  Y.  69 ;  1  Mete.  Mass.  547 ; 
22  Pick.  Mass.  283;  4  Blackf.  Ind.  515  ;  2 
AVatts,  Penn.  433;  10  Ohio,  142;  27  Miss, 
498  ;  3  Vt.  442 ;  1  N.  H.  17  ;  9  id.  298.  It 
must  be  done  at  the  time  specified,  if  there 
be  such  a  time :  otherwise,  within  a  reasonable 
time,  2  Campb.  530  ;  1  Stark.  107  ;  IJ.  B. 
Moore,  106 ;  6  Scott,  187 ;  14  Me.  57  ;  22 
Pick.  Mass.  546 ;  in  case  of  fraud,  upon  its 
discovery.  1  Den.  N.  Y.  69 ;  4  id.  554 ;  24 
Wend.  N.  Y.  74;  5  Mees.  &  W.  Exch.  83. 
The  right  may  be  waived  by  mere  lapse  of 
time,  3  Stor.  C.  C.  612  ;  see  6  Clark  &  F.  IIou. 
L.  234;  3  Eng.  L.  &  Eq.  17,  or  other  circum- 
stances. 9  Barnew.  &  C.  59;  4  Den.  N.  Y. 
554;  4  Paige,  Ch.  N.  Y.  537;^  4  Mass.  502; 
1  Baldw.  C.  C.  331.  A  peculiar  right  of  re- 
scission of  contracts  of  sale  of  real  estate 
where  security  has  been  taken  for  the  pay- 
ment of  the  purchase-money  exists  in  Penn- 
sylvania.   4  Watts,  Penn.  196,  199. 

4.  The  equity  for  the  rescission  and  can- 
cellation of  agreements,  securities,  deeds,  and 
other  instruments  arises  when  a  transaction  - 
is  vitiated  by  illegality  or  fraud,  or  by  reason 
of  its  having  been  carried  on  in  ignorance  or 
mistake  of  facts  material  to  its  operation. 
The  jurisdiction  of  the  court  of  equity  is  ex-  i 
ercised  upon  the  principle  of  quia  timet ;  that 
is,  for  fear  that  such  agreements,  securities,  • 
deeds,  and  other  instruments  may  be  vexa-  ; 
tiously  or  injuriously  used  against  the  party  i 
seeking  relief,  when  the  evidence  to  impeach 
them  may  be  lost ;  or  that  they  may  throw  a  , 
cloud  or  suspicion  over  his  interest  or  title ;  j 
or  where  he  has  a  defence  good  in  equity  , 
which  cannot  be  made  available  at  law.  The 
cases  in  which  this  relief  will  be  granted  on  : 
account  of  misrepresentation  and  fraud  may  ' 
be  divided  into  four  classes:  first,  where  \ 
there  is  actual  fraud  in  the  party  defendant  ' 
in  which  the  party  plaintifi"  has  not  partici-  { 
pated,  13  Pet.  26 ;  secojidly,  where  there  is  \ 
constructive  fraud  against  public  policy  and  \ 
theparty  plaintiff  has  not  participated  therein,  ' 
see  4  Munf.  Va.  316;  thirdly,  where  there  is  I 
a  fraud  against  public  policy  and  the  party  ; 
plaintiff  has  participated  therein,  but  public 
policy  would  be  defeated  by  allowing  it  to 
stand ;  fourthly,  where  there  is  a  constructive 
fraud  by  both  parties, — that  is,  where  both 
parties  are  in  delicto,  but  not  in  pari  delicto. 
See  2  Story,  Eq.  Jur.  H  694,  695  ;  3  Jones,  Eq. 
No.  C.  494 ;  2  Mas.  C.  C.  378  ;  25  Ga.  89 ;  1  Pat. 
&  H.  Va.  307.    The  court  will  decree  that  a 
deed  or  other  solemn  instrument  shall  be  de- 
livered up  and  cancelled,  not  only  when  it  is 
avoidable  on  account  of  fraud,  but  also  when 
it  is  absolutely  void,  unless  its  invalidity  ap- 
pears upon  the  face  of  it,  so  that  it  may  be 
defeated  at  any  time  by  a  defence  at  law.  2 
Story,  Eq.  Jur.  II 698-701 ;  6  Du.  N.  Y.  597. 

5.  The  ignorance  or  mistake  which  will 
authorize  relief  in  equity  must  be  an  igno-  j 
ranee  or  mistake  of  material  facts,  1  Stor,  C  .  C.  j 
173;  4  Mas.  C.C.  414;  11  Conn.  134;  6  Wend  j 
N.  Y.  77  ;  18  id.  407  ;  6  Ilarr.  k  J.  Md.  500;  j 
10  Leigh,  Va.  37  ;  and  the  mistake  m  jst  l  e 


RESCISSORY  ACTIONS  4G9 


RESCUE 


mutual.  8  Green,  Ch.  N.  J.  103 ;  2  Sumn. 
C.  C.  887  ;  11  Pet.  63  ;  24  Me.  82  ;  10  Vt.  570; 
6  Mo.  16  ;  35  Penn.  St.  287.  If  the  facts  are 
known  but  the  law  is  mistaken,  the  same 
rule  applies  in  equity  as  at  law,  that  a  mere 
mistake  or  if^norance  of  law,  where  there  is 
no  fraud  or  trust,  is  immaterial:  iguorantia 
Itijis  ueminem  excusat.    Adams,  Eq.  188. 

Instruments  may  also  be  rescinded  and 
cancelled  when  they  have  been  ol)tained  from 
persons  who  were  at  the  time  under  duress 
or  incapacity.  2  Root,  Conn.  216 ;  8  Ohio, 
214;  3  Yerg.  Tenn.  537;  36  Miss.  685  ;  or  by 
persons  who  stood  in  a  confidential  relation 
and  took  advantage  of  that  relation.  Adams, 
Eq.  182  el  seq.;  5  Sneed,  Tenn.  583;  31  Ala. 
N.  s.  292  ;  3  Cow.  N.  Y.  537  ;  2  Mas.  C.  C. 
37cS;  2  A.  K.  Marsh.  Ky.  175  ;  9  Md.  348;  8 
Jones,  Eq.  No.  C.  152,  186;  4  id.  39,  245; 
30  Miss.  369  ;  14  Ves.  Ch.  273  ;  4  Mylne  & 
C.  269  ;  8  Beav.  Rolls,  437. 

6.  Gross  inadequacy  of  consideration,  17 
Vt.  9;  2  Leigh,  Va.  149  ;  2  Yerg.  Tenn.  294; 
22  Ga.  637  ;  19  How.  303 ;  see  2  Ired.  Eq. 
No.  C.  365;  2  Ov.  Tenn.  426;  2  Green,  Ch. 
N.  J.  429  ;  33  Ala.  n.  s.  149 ;  2  Head,  Tenn. 
289  ;  fraudulent  misrepresentation  and  con- 
cealment, 3  Pet.  210 ;  13  id.  26 ;  2  Ala.  n.  s. 
251;  10  Yerg.  Tenn.  206;  1  A.  K.  Marsh. 
Kv.  285  ;  2  Paige,  Ch.  N.  Y.  390 ;  1  Dev.  & 
B.'Eq.  No.  C.  318  ;  6  Munf.  Va.  210  ;  5  How. 
Miss.  253  ;  2  Mo.  126  ;  34  Ala.  n.  s.  596  ;  6 
Wise.  295  ;  3  Ind.  331 ;  9  id.  172,  526;  hard- 
ship and  unfairness,  17  Vt.  542 ;  2  Root, 

i  Conn.  216  ;  2  Green,  Ch.  N.  J.  857;  2  Harr. 

i  &  J.  Md.  285  ;  3  Yerg.  Tenn.  537 ;  8  Ohio, 
214;  31  Vt.  101;  undue  influence,  2  Mas.  C.C. 
378 ;  see  2  Head,  Tenn.  285,  are  among  the 
causes  for  a  rescission  of  contracts  in  equity. 

RESCISSORY  ACTIONS.  In  Scotch 
Law.  Actions  which  are  brought  to  set 
aside  deeds.    Patterson,  Comp.  1058,  n. 

Proper  improbation  is  an  action  brought 
for  declaring  writing  false  or  forged. 

Reduction-improhation  is  an  action  whereby 
a  person  who  may  be  hurt  or  affected  by  a 
writing  insists  for  producing  or  exhibiting  it 
in  court,  in  order  to  have  it  set  aside,  or  its 
effects  ascertained  under  the  certification  that 
the  writing,  if  not  produced,  shall  be  declared 
I   false  and  forged. 

In  an  action  of  simple  reduction  the  certifi- 
'  cation  is  only  temporary,  declaring  the  writ- 
ings called  for  null  until  they  be  produced ; 
BO  that  they  recover  their  full  force  after  their 
production.  Erskine,  b.  4,  tit.  1,  g  5,  b.  4, 
tit.  1,  I  8. 

RESCOUS.  An  old  term,  synonymous 
-   with  rescue,  which  see. 

RESCRIPT.  In  Canon  Law.  A  term 
including  any  foym  of  apostolical  letter  ema- 
nating from  the  pope.  The  answer  of  the 
pope  in  writing.    Diet.  Droit  Can. 

In  Civil  Law.  The  answer  of  the  prince, 
at  the  request  of  the  parties,  respecting  some 
matter  in  dispute  between  them,  or  to  magis- 
trates, in  relation  to  some  doubtful  matter 
Bubmitted  to  him. 


The  rescript  was  differently  denominated  accord- 
ing to  tlie  character  of  those  who  sought  it.  They 
were  called  anvotationn  or  mthnotations,  when  the 
answer  was  given  at  the  request  of  private  citizens  , 
letters  or  eplHlles,  when  he  answered  the  consulta- 
tion of  ma<i,istrates ;  pratjmati'c  sanctions,  when  ho 
aiiSwenMl  a  corporation,  the  citizens  of  a  province, 
or  a  municipality.    See  Code. 

At  Common  Law.    A  counterpart. 

In  Massachusetts  it  is  used  to  denote  the 
statement  of  the  decision  of  the  supreme  judi- 
cial court  as  an  appellate  tribunal,  and  the 
accompanying  brief  statement  of  the  reasons 
for  the  decisl(m  sent  to  the  court  from  which 
the  case  was  brought. 

RESCRIPTION.  In  French  Law.  A 
rescription  is  a  letter  by  which  the  maker 
requests  some  one  to  pay  a  certain  sum  of 
money,  or  to  account  for  him  to  a  third  per- 
son for  it.    Pothier,  Contr.  de  Change,  n.  225. 

According  to  this  definition,  bills  of  exchange 
are  a  species  of  rescription.  The  difference  appears 
to  be  this, — that  a  bill  of  exchange  is  given  when 
there  has  been  a  contract  of  exchange  between  the 
drawer  and  the  payee ;  whereas  the  rescription  is 
sometimes  given  in  payment  of  a  debt,  and  at 
other  times  it  is  lent  to  the  payee. 

RESCUE.    In  Criminal  Law.  The 

forcibly  and  knowingly  freeing  another  from 
arrest  or  imprisonment.  4  Blackstone,  Comm. 
131. 

A  deliverance  of  a  prisoner  from  lawful 
custody  by  a  third  person.  2  Bishop,  Crim. 
Law,  1911. 

Taking  and  setting  at  liberty,  against  law, 
a  distress  taken  for  rent,  services,  or  damage 
feasant.    Bacon,  Abr.  Rescous. 

"2,  If  the  rescued  prisoner  were  arrested 
for  felony,  then  the  rescuer  is  a  felon  ;  if  for 
treason,  a  traitor,  3  P.  Will.  408  ;  Croke  Car. 
583 ;  and  if  for  a  trespass,  he  is  liable  to  a 
fine  as  if  he  had  committed  the  original  of- 
fence. Hawkins,  PI.  Cr.  b.  5,  c.  21.  See  2 
Gall.  C.  C.  313;  Russ.  &  R.  Cr.  Cas.  432.  If 
the  principal  be  acquitted,  the  rescuer  may 
nevertheless  be  fined  for  the  misdemeanor 
in  the  obstruction  and  contempt  of  public  jus- 
tice. 1  Hale,  PI.  Cr.  598.  See  T.  U.  P.  Charlt. 
Ga.  13;  Hawkins,  PI.  Cr.  b.  2,  c.  21. 

In  order  to  render  the  rescuer  criminal,  it- 
is  necessary  he  should  have  knowledge  that 
the  person  whom  he  sets  at  liberty  has 
been  apprehended  for  a  criminal  offence,  if 
he  is  in  the  custody  of  a  private  person  ;  but 
if  he  be  under  the  care  of  a  public  officer, 
then  he  is  to  take  notice  of  it  at  his  peril.  1 
Hale,  PI.  Cr  606.  See  further,  with  regard  to 
the  law  of  rescue,  1  Stor.  C.  C.  88 ;  2  Gall.  C.  C. 
313  ;  1  Carr.  &  M.  299  ;  1  Ld.  Raym.  35,  589. 

The  rescue  of  cattle  and  goods  distrained 
by  pound-breach  is  a  common-law  offence  and 
indictable.  2  Starkie,  Crim.  Plead.  017  ;  7 
Carr.  &  P.  233;  5  Pick.  Mass.  714.  See  4 
Leigh,  Va.  675. 

In  Maritime  Law.  The  retaking  by  a 
party  captured  of  a  prize  made  by  the  eriemy. 
There  is  still  another  kind  of  rescue  which 
partakes  of  the  nature  of  a  recapture :  it 
occurs  when  the  weaker  party,  before  he  ih 
overpowered,  obtains  relief  from  the  arrival 


RESCUSSOR 


470 


RESOLUTION 


of  fresh  succors,  and  is  thus  preserved  fr()m  | 
the  force  of  the  enemy.  1  C.  Rob.  Adm.  224,  j 
271;  Halleck,  Int.  Law,  cxxxv. 

Rescue  differs  from  recapture.  The  rescuers  do 
not  by  the  rescue  become  owners  of  the  property, 
as  if  it  had  been  a  new  prize;  but  the  property  is 
restored  to  the  original  owners  by  the  right  of  post- 
liminium. 

RESCUSSOR.  The  party  making  a 
rescue  is  sometimes  so  called  ;  but  more  pro- 
perly he  is  a  rescuer. 

RESERVATION.  That  part  of  a  deed 
or  instrument  which  reserves  a  thing  not  in 
esse  at  the  time  of  the  grant,  but  newly  cre- 
ated.   2  Ililliard,  Abr.  359. 

The  creation  of  a  right  or  interest  which 
had  no  prior  existence  as  such  in  a  thing  or 
part  of  a  thing  granted,  by  means  of  a  clause 
inserted  by  the  grantor  in  the  instrument  of 
conveyance. 

A  reservation  is  distinguished  from  an  exception 
in  that  it  is  of  a  new  right  or  interest :  thus,  a  right 
of  way  reserved  at  the  time  of  conveying  an  estate, 
which  may  have  been  enjoyed  by  the  grantor  as 
owner  of  the  estate,  becomes  a  new  right.  42 
Me.  9. 

A  reservation  may  be  of  a  life-estate,  28 
Vt.  10 ;  33  N.  II.  18  ;  3  Jones,  No.  C.  37,  38 ; 
23  Mo.  373  ;  3  Md.  Ch.  Dec.  230 ;  of  a  right 
of  flowage,  41  Me.  298 ;  right  to  use  water, 
41  Me.  177 ;  9  N.  Y.  423 ;  16  Barb.  N.  Y.  212 ; 
right  of  way,  25  Conn.  331  ;  6  Gush.  Mass. 
254;  10  id.  313;  10  B.  Monr.  Ky.  463;  and 
many  other  rights  and  interests.  33  N.  II. 
507  ;  9  B.  Mc.nr.  Ky.  163  ;  5  Penn.  St.  317. 
See  6  Gush.  Mass.  162;  4  Penn.  St.  173;  9 
Johns.  N.  Y.  73. 

RESET  OF  THEFT.  In  Scotch  Law. 
The  receiving  and  keeping  stolen  goods,  know- 
ing them  to  be  stolen,  with  a  design  of  felo- 
niously retaining  them  from  the  real  owner. 
Alison,  Grim.  Law,  328. 

RESETTER.  In  Scotch  Law.  A  re- 
ceiver of  stolen  goods,  knowing  them  to  have 
been  stolen. 

RESIANCE.  A  man's  residence  or  per- 
manent abode.  Such  a  man  is  called  a  resi- 
ant.    Kitch.  33. 

RESIDENCE  (Lat.  resedeo).  Personal 
presence  in  a  fixed  and  permanent  abode. 
20  Johns.  N.  Y.  208 ;  1  Mete.  Mass.  251. 

A  residence  is  different  from  a  domicil,  although 
it  is  a  matter  of  great  importance  in  determining  the 
place  of  domicil.  See  13  Mass.  501 ;  5  Pick.  Mass. 
370  ;  1  Mete.  Mass.  251;  2  Gray,  Mass,  490; 
19  Wend.  N.  Y.  11 ;  11  La.  175 ;  5  Me.  143  ;  Domi- 
cil. Residence  and  habitancy  are  usually  synony- 
mous. 2  Gray,  Mass.  490  ;  2  Kent,  Comm.  10th  ed. 
574,  n.  Residence  indicates  permanency  of  occu- 
pation, as  distinct  from  lodging,  or  boarding,  or 
temporary  occupation,  but  does  not  include  so 
much  as  domicil,  which  requires  an  intention  con-  j 
tinued  with  residence.  19  Me.  293;  2  Kent,  Comm. 
10th  ed.  576. 

RESIDENT.  One  who  has  his  residence 
in  a  place. 

RESIDENT  MINISTER.  In  Inter- 
national Law.  The  second  or  intermediate 
f;la?>8  between  ambassadors  and  envoys,  created 


by  the  conference  of  the  five  powers  at  Aix-la- 
Chapelle,  in  1818.  They  are  accredited  to  tlie 
sovereign.  2Phillimore,  Int.  Law,  220*.  They 
are  said  to  represent  the  affairs,  and  not  the 
person,  of  the  sovereign,  and  so  to  be  of  less 
dignity.  Vattel,  b.  4,  c.  6,  |  73.  The  fourth 
class  is  charges-d'afiaires,  accredited  to  the 
minister  of  foreign  affairs.  2  Phillimore,  Int. 
Law,  220  ;  Wheaton,  Int.  Law,  pt.  3,  c.  1,  ^  6. 

RESIDUARY  CLAUSE.  The  clause 
in  a  will  by  which  that  part  of  the  property  is 
disposed  of  which  remains  after  satisfying 
previous  bequests  and  devises.  4  Kent,  Comm. 
541*  ;  2  Williams,  Exec.  1014,  n.  2. 

RESIDUARY  DEVISEE.  The  person 
to  whom  the  residue  of  a  testator's  real  estate 
is  devised  after  satisfying  previous  devises. 

RESIDUARY  ESTATE.  What  re- 
mains of  testator's  estate  after  deducting  the 
debts  and  the  bequests  and  devises. 

RESIDUARY  LEGATEE.  He  to  whom 
the  residuum  of  the  estate  is  devised  or  be- 
queathed by  will.  Roper,  Leg.  Index ;  Pow- 
ell, Mortg.  Index.    See  Legacy. 

RESIDUE.  That  which  remains  of  some- 
thing after  taking  away  a  part  of  it:  as,  the 
residue  of  an  estate,  which  is  what  has  not 
been  particularly  devised  by  will. 

A  will  bequeathing  the  general  residue  of 
personal  property  passes  to  the  residuary 
legatee  every  thing  not  otherwise  effectually 
disposed  of ;  and  it  makes  no  diff'erence  whether 
a  legacy  falls  into  the  estate  by  lapse  or  as 
void  at  law,  the  next  of  kin  is  equally  ex- 
cluded. 15  Ves.  Ch.  416;  2  Mer.  Ch.  3')2. 
See  7  Ves.  Ch.  391 ;  1  Brown,  Ch.  589 ;  4  id. 
55  ;  Roper,  Le^.  Index ;  Jarman,  Wills. 

RESIGNATION  (Lat.  resignaiio :  re, 
back,  signo,  to  sign).  The  act  of  an  officer 
by  which  he  declines  his  office  and  renoum  es 
the  further  right  to  use  it.  It  differs  frum 
abdication. 

As  offices  are  held  at  the  will  of  both  par- 
ties, if  the  resignation  of  an  officer  be  not 
accepted  he  remains  in  office.  4  Dev.  No.  C.  1. 

RESIGNATION  BOND.  In  Eccle- 
siastical Law.  A  bond  given  by  an  in- 
cumbent to  resign  on  a  certain  contingency. 
It  may  be  conditioned  to  resign  for  good  and 
sufficient  reason,  and  therefore  lawful :  e.g. 
to  resign  if  he  take  a  second  benefice,  or  on 
request,  if  patron  present  his  son  or  kins- 
man when  of  age  to  take  the  living,  etc. 
Croke  Jac.  249,  274.  But  equity  will  gene- 
rally relieve  the  incumbent.  1  Rolle,  Abr. 
443. 

RESIGNEE,  One  in  favor  of  whom  a 
resignation  is  made.    1  Bell,  Comm.  125,  n. 

RESISTANCE  (Lat.  re,  back,  sisto,  to 
stand,  to  place).  The  opposition  of  force  to 
force.  See  Arrest;  Assault;  Officer;  Pro- 
cess. 

RESOLUTION  (Lat.  re,  back,  again, 
solvo,  to  loose,  to  free).  A  solemn  judgment 
or  decision  of  a  court.  This  word  is  fre- 
quently used  in  this  sense  in  Coke  and  some 


RESOLUTORY  CONDITION  471 


RESPOICDENTIA 


of  the  more  ancient  reporters.   An  agreement 
to  a  law  or  other  thing  adopted  by  a  h'gisla-  I 
ture  or  popuhir  assembly.     See  Diet,  de 
Jurisp. 

In  Civil  Law.  The  act  by  which  a  C(m- 
tract  wliich  existed  and  was  good  is  rendered 
null. 

Resolution  difiFers  essentially  from  rescission. 
The  former  presupposes  the  contract  to  have  been 
valid,  and  it  is  owing  to  a  cause  posterior  to  the 
agreement  that  the  resolution  takes  place;  while 
rescission,  on  the  contrary,  supposes  that  some  vice 
or  defect  annulled  the  contract  from  the  beginning. 
Resolution  may  be  by  consent  of  the  parties  or  by 
the  decision  of  a  competent  tribunal;  rescission 
must  always  be  by  the  judgment  of  a  court.  7  Trop- 
long,  de  la  Vente,  n.  689;  7  Toullier,  551 ;  Dalloz, 
Diet. 

RESOLUTORY   CONDITION.  One 

which  has  f«)r  its  object,  when  accomplished, 
the  revocation  of  the  principal  obligation ; 
for  example,  I  will  sell  you  my  crop  of  cot- 
ton if  my  ship  America  does  not  arrive  in 
the  United  States  within  six  months:  my 
ship  arrives  in  one  month  :  my  contract  with 
you  is  revoked.    1  Bouvier,  Inst.  n.  764. 

RESPIRATION  (Lat.  re,  back,  spiro,  to 
breathe).  Breathing,  which  consists  of  the 
drawing  into,  inhaling,  or,  more  technically, 
inspiring,  atmospheric  air  into  the  lungs,  and 
then  forcing  out,  expelling,  or,  technically, 
expiring,  from  the  lungs  the  air  therein. 
Chitty,  Med.  Jur.  92,  416,  note  n. 

RESPITE.  In  Civil  Law.  An  act  by 
which  a  debtor  who  is  unable  to  satisfy  his 
debts  at  the  moment  transacts  [i.e.  compro- 
mises) with  his  creditors  and  obtains  from 
them  time  or  delay  for  the  payment  of  the 
sums  which  he  owes  to  them.  La.  Code, 
3051. 

A  forced  respite  takes  place  when  a  part 
of  the  creditors  refuse  to  accept  the  debtor's 
proposal,  and  when  the  latter  is  obliged  to 
compel  them,  by  judicial  authority,  to  con- 
sent to  what  the  others  have  determined  in 
the  cases  directed  by  law. 

A  voluntary  respite  takes  place  when  all 
the  creditors  consenit  to  the  proposal  of  the 
debtor  to  pay  in  a  limited  time  the  whole  or 
H  part  of  his  debt. 

A  delay,  forbearance,  or  continuation  of 
time. 

In  Ciiminal  Law.  A  temporary  suspen- 
sion of  the  execution  of  a  sentence.  It  differs 
from  a  pardon,  which  is  an  absolute  suspen- 
iiion.    See  Pardon. 

RESPONDE  BOOK.  In  Scotch  Law. 

A  book  of  record  of  the  chancellary,  in  which 
are  entered  all  non-entry  and  relief  duties 
payable  by  heirs  who  take  precepts  from 
chancery.  Stair,  Inst.  p.  296,  I  28  :  Erskine, 
Inst.  11.  5.  50. 

RESPONDEAT  OUSTER  (that  he 
answer  over).  In  Practice.  A  form  of 
judgment  anoiently  used  when  an  issue  in 
law  upon  a  dilatory  plea  was  decided  against 
the  party  pleading  it.    See  Abatement. 

RESPONEENT.   The  party  who  makes 


an  answer  to  a  bill  or  other  proceeding  iu 
chancery. 

In  Civil  Law.  One  who  ansM^ers  or  is 
security  for  another;  a  fidejussor.  Dig.  2. 
8.  6. 

RESPONDENTIA.  In  Maritime  Law. 

A  loan  of  money,  on  maritime  interest,  on 
goods  laden  on  board  of  a  ship,  upon  the 
condition  that  if  the  goods  be  wholly  lost  in 
the  course  of  the  voyage,  by  any  of  the  perils 
enumerated  in  the  contract,  the  lender  shall 
lose  his  money ;  if  not,  that  the  borrower 
shall  pay  him  the  sum  borrowed,  with  the 
interest  agreed  upon. 

The  contract  is  called  respondentia  because  the 
money  is  lent  mainly,  or  most  frequently,  on  the 
personal  responsibility  of  the  borrower.  It  differs 
principally  from  bottomry,  which  see,  in  the  fol- 
lowing circumstances :  bottomry  is  a  loan  on  the 
ship  ;  respondentia  is  a  loan  upon  the  goods.  The 
money  is  to  be  repaid  to  the  lender,  with  maritime 
interest,  upon  the  arrival  of  the  ship  in  the  one 
case,  and  of  the  goods  in  the  other.  In  most 
other  respects  the  contracts  are  nearly  the  same, 
and  are  governed  by  the  same  principles.  In  the 
former,  the  ship  and  tackle,  being  hypothecated, 
are  liable,  as  well  as  the  borrower;  in  the  latter, 
the  lender  has,  in  general,  it  is  said,  only  the  per- 
sonal security  of  the  borrower.  Marsh.  Ins.  b.  2, 
c.  1,  p.  734. 

2.  If  any  part  of  the  goods  arrive  safely 
at  the  end  of  the  voyage,  the  lender  is  entitled 
to  have  the  proceeds  applied  to  the  payment  of 
his  debt.  If  the  loan  is  made  by  the  master, 
and  not  by  the  owners  of  the  goods,  the  neces- 
sity for  the  loan  and  for  the  hypothecation  of 
the  cargo  must  be  clearly  shown,  or  the  owners 
of  the  goods,  and,  consequently,  the  goods 
themselves,  will  not  be  bound.  The  ship  and 
freight  are  always  to  be  first  resorted  to  to 
raise  money  for  the  necessity  of  the  ship  or 
the  prosecution  of  the  voyage  ;  and  it  seems 
that  a  bond  upon  the  cargo  is  considered  by 
implication  of  law  a  bond  upon  the  ship 
and  freight  also,  and  that  unless  the  ship  be 
liable  in  law  the  cargo  cannot  be  held  liable. 
The  Constancia,  4  Notes  of  Cases,  285,  512, 
518,  677  ;  10  Jur.  845  ;  2  W.  Rob.  Adm.  83- 
85  ;  14  Jur.  96.    And  see  3  Mas.  C.  C.  255. 

3.  If  the  contract  clearly  contemplates 
that  the  goods  on  which  the  loan  is  made 
are  to  be  sold  or  exchanged,  free  from  any 
lien,  in  the  course  of  the  voyage,  the  lender 
will  have  no  lien  on  them,  but  must  rely 
wholly  on  the  personal  responsibility  of  the 
borrower.  It  has  been  frequently  said  by 
elementary  writers,  and  without  qualifica 
tion,  that  the  lender  has  no  lien,  2  Black 
stone,  Comm.  458  ;  3  Kent,  Comm.  354  ;  but 
the  form  of  bond  generally  in  use  in  this 
country  expressly  hypothecates  the  goods, 
and  thus,  even  when  there  is  no  express 
hypothecation,  if  the  goods  are  still  on  board 
at  the  end  of  the  voyage  it  is  not  doubtful 
that  a  court  of  admiralty  will  direct  the  ar- 
rest of  the  goods  and  enforce  against  them 
the  maritime  lien  or  privilege  conferred  by 
the  respondentia  contract.  There  is,  per- 
haps, no  common-law  lien,  but  this  maritime 
lien  only  ;  but  the  latter  will  be  enforced  \v 
the  proper  admiralty  process.    See  the  au 


RESPONDERE  NON  DEBET  471 


'2 


RESULTING  TRUST 


thorities  cited  in  note  to  1  Abbott,  Shipp.  154 ; 
4  Wash.  C.  C.  662;  form  of  respondentia 
bonds  in  Marvin  on  Wreck  &  Salvage,  Ap- 
pendix, 332-336  ;  Conkling,  Admiralty,  263- 
265  ;  i  Parsons,  Mar.  Law  437,  and  n.  5.  And 
see,  generally,  Abbott,  Shipping;  Parsons, 
Mar.t.  Law;  Phillips,  Ins. 

RESPONDERE  NON  DEBET  (Lat. 
ought  not  to  reply).  In  Pleading.  The 
prayer  of  a  plea  where  the  defendant  insists 
that  he  ought  not  to  answer,  as,  when  he 
claims  a  privilege :  for  example,  as  being  a 
member  of  congress  or  a  foreign  ambassador. 
1  Chitty,  Plead.  *433. 

RESPONSA  PRUDENTUM  (Lat.). 
In  Roman  Law.  Opinions  given  by  Roman 
lawyers. 

Before  the  time  of  Augustus,  every  lawyer  was 
authorized,  de  jure,  to  answer  questions  put  to  him; 
and  all  such  answers,  responsa  prudentnm,  had 
equal  authority,  which  had  not  the  force  of  law,  but 
the  opinion  of  a  lawyer.  Augustus  was  the  first 
prince  who  gave  to  certain  distinguished  juriscon- 
sults the  particular  privilege  of  answering  in  his 
name;  and  from  that  period  their  answers  required 
greater  authority.  Adrian  determined  in  a  more 
precise  manner  the  degree  of  authority  which  these 
answers  should  have,  by  enacting  that  the  opinions 
of  such  authorized  jurisconsults,  when  unanimously 
given,  should  have  the  force  of  law  [legia  vicem) 
and  should  be  followed  by  the  judges,  and  that 
when  they  were  divided  the  judge  was  allowed  to 
adopt  that  which  to  him  appeared  the  most  equita- 
ble. The  opinions  of  other  lawyers  held  the  same 
place  they  had  before  :  they  were  considered  merely 
as  the  opinions  of  learned  men.  Mackeldy,  Man. 
Introd.  I  4.3 ;  Mackeldy.  Hist,  du  Dr.  Rom.  jJg  40, 
49;  Hugo,  Hist,  du  Dr.  Rom.  §  313;  Inst.  1.'  2.  8; 
Institutes  Expliquees,  n.  39. 

RESPONSALIS.  In  Old  EngUsh 
Law.    One  who  appeared  for  another. 

In  Ecclesiastical  Law.    A  proctor. 

RESPONSIBILITY.  The  obligation  to 
answer  for  an  act  done  and  to  repair  any 
injury  it  may  have  caused. 

One  person — as,  for  example,  a  principal, 
master,  or  parent — is  frequently  responsible, 
civilly,  for  the  acts  of  another. 

Penal  responsibility  is  always  personal ; 
and  no  one  can  be  punished  for  the  commis- 
sion of  a  crime  but  the  person  who  has  com- 
mitted it,  or  his  accomplice. 

RESPONSIBLE.  Able  to  pay  the  sum 
which  may  be  required  of  him  ;  able  to  dis- 
charge an  obligation.  Webster,  Diet.;  26 
N.  H.  527. 

RESPONSIBLE  GOVERNMENT. 

A  term  used  in  England  and  her  colonial 
possessions  to  indicate  an  obligation  to  resign, 
on  the  part  of  the  executive  council,  upon 
the  declaration  of  a  want  of  confidence  by 
vote  of  the  legislative  branch  of  the  colonial 
government.    Mills,  Col.  Const.  27. 

RESTITUTIO  IN  INTEGRAM  (Lat.). 
In  Civil  Law.  A  restoring  parties  to  the  con- 
dition they  were  in  before  entering  into  a 
contract  or  agreement  on  account  of  fraud, 
infancy,  force,  honest  mistake,  etc.  Cal- 
vinus,  Lex.  The  going  into  a  cause  anew 
*"rom  the  beginning.    Calvinus,  Lex. 


RESTITUTION.    In  Maritime  Law. 

The  placing  back  or  restoring  articles  which 
have  been. lost  by  jettison :  this  is  done,  when 
the  remainder  of  the  cargo  has  been  saved, 
at  the  general  charge  of  the  owners  of  the 
cargo ;  but  when  the  remainder  of  the  goods 
is  afterwards  lost,  there  is  not  any  restitu- 
tion.   Stevens,  Av.  pt.  I,  c.  1,  s.  I,  art.  1,  n.  8. 

In  Practice.  The  return  of  something 
to  the  owner  of  it  or  to  the  person  entitled 
to  it. 

After  property  has  been  taken  into  execu- 
tion, and  the  judgment  has  been  reversed  or 
set  aside,  the  party  against  whom  the  execu- 
tion was  sued  out  shall  have  restitution ; 
and  this  is  enforced  by  a  writ  of  restitution. 
Croke  Jac.  698;  4  Mod.  161.  When  the 
thing  levied  upon  under  an  execution  has  not 
been  sold,  the  thing  itself  shall  be  restored ; 
when  it  has  been  sold,  the  price  for  which  it 
is  sold  is  to  be  restored.  Rolle,  Abr.  778 ; 
Bacon,  Abr.  Execution  (Q) ;  1  Maule  &  S. 
425. 

RESTITUTION  OF  CONJUGAL 
RIGHTS.    In  Ecclesiastical  Law.  A 

compulsory  renewal  of  cohabitation  between 
a  husband  and  wife  who  have  been  living 
separately. 

A  suit  may  be  brought  in  the  divorce  and 
matrimonial  court  for  this  purpose  whenever 
either  the  husband  or  wife  is  guilty  of  the 
injury  of  subtraction,  or  lives  separate  from 
the  other  without  sufficient  reason,  by  which 
the  party  injured  may  compel  the  other  to 
return  to  cohabitation.  3  Blackstone,  Comm. 
94 ;  3  Stephen,  Comm.  II ;  1  Add.  EccL  305  ; 
3  Hagg.  Eccl.  619. 

RESTORE.  To  return  what  has  been 
unjustly  taken  ;  to  place  the  owner  of  a 
thing  in  the  state  in  which  he  formerly 
was. 

RESTRAINING.  Narrowing  down ; 
making  less  extensive.  For  example,  a  re- 
straining statute  is  one  by  which  the  common 
law  is  narrowed  down  or  made  less  extensive 
in  its  operation.  Restraining  powers  are  the 
limitations  or  restrictions  upon  the  use  of  a 
power  imposed  by  the  donor. 

RESTRICTIVE  INDORSEMENT. 
An  indorsement  which  confines  the  nego- 
tiability of  a  promissory  note  or  bill  of  ex- 
change by  using  express  words  to  that  effect: 
as,  by  indorsing  it  payable  to  A  B  only.  I 
Wash.  C.  C.  512;  2  Murph.  No.  C.  138; 
I  Bouvier,  Inst.  n.  1138. 

RESULTING  TRUST.  A  trust  raised 
by  implication  or  construction  of  law,  and 
presumed  to  exist  from  the  supposed  inten- 
tion of  the  parties  and  the  nature  of  the 
transaction. 

All  trusts  created  by  implication  or  construction 
of  law  are  often  included  under  the  general  term 
implied  trusts ;  but  these  are  commonly  distin- 
guished into  implied  or  resulting  and  constructive 
trusts  :  resulting  or  preHumptive  trusts  being  those 
which  arc  implied  or  presumed  f;-om  the  supposed 
intention  of  the  parties  and  the  nature  of  the  trans- 
action :  cDUHtrm  iii  e  trusts,  such  as  are  raised  inde- 
pendently of  any  such  intention,  and  which  are 


RESULTING  USE 


473 


RETAINER 


.orced  on  the  conscience  of  the  trustee  by  equi- 
table construction  and  the  operation  of  law.  Story, 
Eq.  Jur.  ^  1095  ;  Hill,  Trust.  91 ;  I  Spcncc,  Eq.  Jur. 
510;  2  id'.  198;  3  Swanst.  Ch.  585;  1  "Ohio,  :m;  6 
Conn.  285 ;  2  Edw.  Ch.  N.  Y.  373  ;  6  Humphr.  Tenn. 
93. 

2.  Where,  upon  a  purchase  of  property, 
the  conveyance  of  the  legal  estate  is  taken  in 
the  name  of  one  person,  while  the  considera- 
tion is  given  or  paid  by  another,  the  parties 
being  strangers  to  each  other,  a  resulting  or 
presumptive  trust  immediately  arises  by  vir- 
tue of  the  transaction,  and  the  person  named 
in  the  conveyance  vrill  be  a  trustee  for  the 
party  from  w^hom  the  consideration  proceeds. 
30  Me.  126  ;  8  N.  11. 187  ;  15  Vt.  525  ;  5  Cush. 
Mass.  435  ;  10  Paige,  Ch.  N.  Y.  018  ;  2  Green, 
Ch.  N.  J.  480 ;  4  AVatts  &  S.  Penn.  149 ;  18 
Penn.  St.  283  ;  2  llarr.  Del.  225  ;  1  Md.  Ch. 
Dec.  479  ;  7  Leigh,  Va.  566  ;  1  Dev.  &  B.  Eq. 
No.  C.  119 ;  4  Des.  Eq.  So.  C.  491;  1  Strobh. 
Eq.  So.  C.  103  ;  2  Ga.  297  ;  3  Ala.  n.  s.  302  ; 
6  id.  404  ;  20  Miss.  65,  764  ;  6  Humphr.  Tenn. 
93  ;  4  J.  J.  Marsh.  Ky.  592  ;  1  Ohio  St.  1  ; 
2  Blackf.  Ind.  198,  444;  5  111.  35;  10  id. 
534  ;  14  Mo.  580  ;  9  Ark.  519  ;  2  Tex.  139  ;  1 
Iowa,  566 ;  3  Mas.  C.  C.  362 ;  2  Wash.  C.  C. 
441. 

The  fact  that  a  conveyance  is  voluntary, 
especially  when  accompanied  by  other  cir- 
cumstances indicative  of  such  an  intention, 
it  is  said,  may  raise  a  resulting  trust.  See 
2  Vern.  Ch.  473  ;  3  Swanst.  Ch.  593;  Ambl. 
265 ;  1  Curt.  C.  C.  230  :  23  Penn.  St.  243  ;  29 
Me.  410  ;  1  Johns.  Ch.  N.  Y.  240  :  1  Dev.  Eq. 
No.  C.  456 ;  14  B.  Monr.  Ky.  585. 

Where  a  voluntary,  1  Atk.  Ch.  188,  dispo- 
sition of  property  by  deed,  1  Dev.  Eq.  No.  C. 
493,  or  will  is  made  to  a  person  as  trustee, 
and  the  trust  is  not  declared  at  all,  10  Ves. 
Ch.  527  ;  19  id.  359  ;  3  Sim.  Ch.  538  ;  14  id. 
8  ;  16  id.  124 ;  6  Hare,  Ch.  148,  or  is  ineffec- 
tually declared,  10  Ves.  Ch.  527 ;  17  Jur.  798  ; 
19  id.  273  ;  1  Mylne  &  K.  298  ;  1  Mylne  &  C. 
286  ;  13  Sim.  Ch.  496  ;  2  Dev.  Eq.  No.  C.  255, 
or  does  not  extend  to  the  whole  interest  given 
to  the  trustee,  2  Powell,  Dev.  Jarm.  ed.  32  ; 
8  Pet.  326  ;  14  B.  Monr.  Ky.  585 ;  2  Smale  & 
G.  247  ;  3  Hou.  L.  Cas.  492 ;  2  Vern.  Ch.  644, 
or  it  fails  either  wholly  or  in  part  by  lapse  or 
otherwise,  1  Roper,  Leg.  627  ;  5  Harr.  &  J. 
Md.  392 ;  Qid.l;  5  Paige,  Ch.  N.  Y.  318  ;  6 
Ired.  Eq.  No.  C.  137  ;  7  B.  Monr.  Ky.  481  ; 
15  Penn.  St.  500 ;  10  Hare,  Ch.  204,  the  in- 
terest so  undisposed  of  will  be  held  by  the 
trustee,  not  for  his  own  benefit,  but  as  a  re- 
sulting trust  for  the  donor  himself,  or  for  his 
heir  at  law  or  next  of  kin,  according  to  the 
nature  of  the  estate. 

The  property  may  be  personal  or  real.  8 
Humphr.  Tenn.  447 ;  1  Ohio  St.  10 ;  26  Miss. 
615 ;  2  Beav.  Rolls,  454;  10  Ves.  Ch.  365  ;  17 
id.  253  ;  2  Washburn,  Real  Prop.  171. 

Consult  Story,  Eq.  Jur.  g  1195  et  seq. ; 
1  Spence,  Eq.  Jur.  510;  Adams,  Eq.  Jur.  ; 
Hill,  Lewin,  Sanders,  on  Trusts;  2  Wash- 
burn. Real  Prop.  171  at  seq. 

RESULTING  USE.  A  use  raised  by 
equity  for  the  benefit  of  a  feoffor  who  has 
itiade  a  voluntary  o^nveyance  to  uses  without 


any  declaration  of  the  use.  2  Washl  urn. 
Real  Prop.  100. 

The  doctrine,  at  first  limited  to  the  case  of 
an  apparently  voluntary  conveyance  with  no 
express  declaration,  became  so  extended  that 
a  conveyance  of  the  legal  estate  ceased  to 
imply  an  intention  that  the  feoffee  should 
enjoy  the  beneficial  interest  therein ;  and  if 
no  intent  to  the  contrary  was  expressed,  and 
no  consideration  proved  or  implied,  the  use 
always  resulted  to  the  feoffor.  2  Washburn, 
Real  Prop.  100.  And  if  part  only  of  the  use 
was  expressed,  the  balance  resulted  to  the 
feoffor.    2  Atk.  Ch.  150  ;  2  Rolle,  Abr.  781 ; 

1  Spence,  Eq.  Jur.  451 ;  Coke,  Litt.  23  a. 
And,  under  the  statute,  where  a  use  has  been 
limited  by  deed  and  expires,  or  cannot  vest, 
it  results  back  to  the  one  who  declared  it. 
4  Wend.  N.  Y.  494 ;  15  Me.  414 ;  5  Watts  & 
S.  Penn.  323  ;  3  Johns.  N.  Y.  388.  And  see 
Croke  Jac.  200  ;  Tudor,  Lead.  Cas.  258 ;  2 
Washburn,  Real  Prop.  132  et  seq. 

RETAIL.  To  sell  by  small  parcels,  and 
not  in  the  gross.    5  Mart.  La.  n.  s.  279. 

RETAILER    OF  MERCHANDISE. 

One  who  deals  in  merchandise  by  selling  it 
in  smaller  quantities  than  he  buys, — generally 
with  a  view  to  profit. 

RETAIN.  In  Practice.  To  engage  the 
services  of  an  attorney  or  counsellor  to  man- 
age a  cause.    See  Retainer. 

RETAINER.  The  act  of  withholding 
what  one  has  in  one's  own  hands,  by  virtue 
of  some  right.  See  Administrator  ;  Execu- 
tor ;  Lien. 

In  Practice.  The  act  of  a  client  by  which 
he  engages  an  attorney  or  counsellor  to  man- 
age a  cause,  either  by  prosecuting  it,  when 
he  is  plaintiff,  or  defending  it,  when  he  is 
defendant. 

The  retaining  fee. 

In  English  practice  a  much  more  formal  retainer 
is  usually  required  than  iu  American.  Thus  it  is 
said  by  Chitty,  3  Pract.  116,  note  m,  that,  al- 
though it  is  not  indispensable  that  the  retainer 
should  be  in  writing,  unless  required  by  the  other 
side,  it  is  very  expedient.  It  is  therefore  recom- 
mended, particularly  when  the  client  is  a  stranger, 
to  require  from  him  a  written  retainer,  signed  by 
himself;  and,  in  order  to  avoid  the  insinuation  that 
it  was  obtained  by  contrivance,  it  should  be  wit- 
nessed by  one  or  more  respectable  persons.  When 
there  are  several  plaintiffs,  it  should  be  signed  by 
all,  and  not  by  one  for  himself  and  the  others,  espe- 
cially if  they  are  trustees  or  assignees  of  a  bank- 
rupt or  insolvent.  The  retainer  should  also  state 
whether  it  be  given  for  a  general  or  a  qualified 
authority.  See  9  Wheat.  738,  830 ;  6  Johns.  N.  Y. 
34,  296 ;  11  id.  464;  1  N.  H.  23;  28  id.  302;  7  Harr. 
&  J.  Md.  275 ;  27  Miss.  567. 

2,  The  effect  of  a  retainer  to  prosecute  or 
defend  a  suit  is  to  confer  on  the  attorney  all 
the  powers  exercised  by  the  forms  and  usages 
of  the  courts  in  which  the  suit  is  pendiug. 

2  M'Cord,  Ch.  So.  C.  409 ;  13  Mete.  Mass. 
269.  He  may  receive  payment,  13  Mass.  320; 
4  Conn.  517  :  1  Me.  257  ;  39  id.  386  ;  1  Wash. 
C.  C.  10 ;  8  Pet.  18 ;  may  bring  a  second  suit 
after  being  nonsuited  in  the  first  for  want 
of  formal  proof,  12  Johns.  N  Y.  315  ;  may 


RETAINING  FEE 


474 


RETKACT 


-1 


sue  a  writ  of  error  on  the  judgment,  16  Mass. 
74 ;  may  discontinue  the  suit,  6  Cow.  N.  Y. 
385  ;  may  restore  an  action  after  a  iiol.  pi'os., 

1  Binn.  Penn.  469  ;  may  claim  an  appeal,  and 
bind  his  client  in  his  name  for  the  prosecu- 
tion of  it,  1  Pick.  Mass.  462  ;  may  submit  the 
suit  to  arbitration,  1  Dall.  Penn.  164 ;  16 
Mass.  396;  8  Rich.  So.  C.  468;  6  McLean, 
C.  C.  190 ;  7  Cranch,  436 ;  may  sue  out  an 
alias  execution,  2  N.  H.  376  ;  see  9  Mete. 
Mass.  423  ;  may  receive  livery  of  seisin  of 
land  taken  by  an  extent,  13  Mass.  363  ;  may 
waive  objections  to  evidence,  and  enter  into 
stipulation  for  the  admission  of  facts  or  con- 
duct of  the  trial,  2  N.  H.  520,  and  for  release 
of  bail,  1  Murph.  No.  C.  146 ;  may  waive  the 
right  of  appeal,  review,  notice,  and  the  like, 
and  confess  iudgment.  5  N.  H.  393  ;  4  T.  B. 
Monr.  Ky.  377  ;  5  Pet.  99.  But  he  has  no 
authority  to  execute  a  discharge  of  a  debtor 
but  upon  the  actual  payment  of  the  full 
amount  of  the  debt,  8  Bowl.  656;  8  Johns. 
N.  Y.  361 ;  10  id.  220 ;  10  Vt.  471 ;  32  Me. 
110;  36  id.  496;  21  Conn.  245;  3  Md.  Ch. 
Dec.  392 ;  14  Penn.  St.  87  ;  13  Ark.  644 ;  1 
Pick.  Mass.  347,  and  that  in  money  onlv,  16 
111.  272 ;  1  Iowa,  360  ;  see  6  Barb.  N.  Y.  201 ; 
nor  to  release  sureties,  3  J.  J.  Marsh,  Ky. 
532 ;  4  McLean,  C.  C.  87  ;  nor  to  enter  a 
retraxit,  3  Blackf.  Ind.  137  ;  nor  to  act  for 
the  legal  representatives  of  his  deceased 
client,  2  Penn.  N.  J.  689 ;  nor  to  release  a 
witness.  2  Greenleaf,  Ev.  ^41;  6  Barb.  N. 
Y.  392.  See  13  Mete.  Mass.  413  ;  29  N.  H. 
170 ;  13  N.  Y.  377  ;  36  Me.  339 ;  3  Ohio  St. 
528  ;  12  Mo.  76  ;  25  Penn.  St.  264. 

3.  There  is  an  implied  contract  on  the 
part  of  ttu  attorney  who  has  been  retained, 
that  he  Avill  use  due  diligence  in  the  course 
of  legal  proceedings ;  but  it  is  not  an  under- 
taking to  recover  a  judgment.  Wright,  Ohio, 
446.    See  3  Campb.  17;  7  Carr.  &  P.  289; 

2  Bingh.  No.  C.  625 ;  16  Serg.  &  R.  Penn. 
368;  2  Cush.  Mass.  316.  An  attorney  is 
bound  to  act  with  the  most  scrupulous  honor; 
he  ought  to  disclose  to  his  client  if  he  has 
any  adverse  retainer  which  may  affect  his 
judgment  or  his  client's  interest;  but  the 
concealment  of  the  fact  does  not  necessarily 
imply  fraud.  3  Mas.  C.  C.  305  ;  2  Greenleaf, 
Ev.  ^  139. 

RETAINING  FEE.  A  fee  given  to 
counsel  on  being  consulted,  in  order  to  insure 
his  future  services. 

RETAKING.  The  taking  one's  goods, 
wife,  child,  etc.  from  another,  who  without 
right  has  taken  possession  thereof.  See  Re- 
caption ;  Rescue. 

RETALIATION.  The  act  by  which  a 
nation  or  individual  treats  another  in  the 
same  manner  that  the  latter  has  treated  them. 
For  example,  if  a  nation  should  lay  a  very 
heavy  tariff  on  American  goods,  the  United 
States  would  be  justified  in  return  in  laying 
heavy  duties  on  the  manufactures  and  pro- 
ductions of  such  country.  Vattel,  Dr.  des 
Gens,  Hv.  2,  c.  18,  §  341. 

RETENTION.    In  Scotch  L^w.  The 


right  which  the  possessor  of  a  movable  has 
of  holding  the  same  until  he  shall  be  satisfied 
for  his  claim  either  against  such  movable  or 
the  owner  of  it ;  a  lien. 

General  retention  is  the  right  to  withhold 
or  detain  the  property  of  another,  in  respect 
of  any  debt  which  happens  to  be  due  by  the 
proprietor  to  the  person  who  has  the  custody, 
or  for  a  general  balance  of  accounts  arising 
on  a  particular  train  of  employment.  2  Bell, 
Comm.  5th  ed.  90,  91.  ; 

Special  retention  is  the  right  of  withholding 
or  retaining  property  or  goods  which  are  in 
one's  possession  under  a  contract,  till  indem- 
nified for  the  labor  or  money  expended  on 
them, 

RETORNA  BREVIUM.  In  Old  Eng. 
lish  Law.  The  return  of  writs  by  sheriffs 
and  bailiffs,  which  is  only  a  certificato  de- 
livered to  the  court  on  the  day  of  return,  of 
that  which  he  hath  done  touching  the  execu- 
tion of  their  writ  directed  to  him  :  this  must 
be  indorsed  on  back  of  writ  by  officer.  2 
Lilly,  Abr.  476.  Each  term  has  return-days, 
fixed,  as  early  as  51  Hen.  III.,  at  intervals  of 
about  a  week,  on  which  all  original  writs  are 
returnable.  The  first  return-day  is  regularly 
the  first  day  in  the  term  ;  but  there  are  three 
days'  grace.  2  Sharswood,  Blackst.  Comm 
277. 

RETORNO  HABENDO.   In  Practice. 

A  writ  issued  to  compel  a  party  to  return 
property  to  the  party  to  whom  it  has  been 
adjudged  to  belong,  in  an  action  of  replevin. 

Thus,  where  the  property  taken  was  cattle,  it 
recites  that  the  defendant  was  summoned  to  appear 
to  answer  the  plaintiff  in  a  plea  whereof  he  took 
the  cattle  of  the  said  plaintiff,  specifying  them,  and 
that  the  said  plaintiff  afterwards  made  default, 
wherefore  it  was  then  considered  that  the  said  plain- 
tiff and  his  pledges  of  prosecuting  should  be  in 
mercy,  and  that  the  said  defendant  should  go  with- 
out day,  and  that  he  should  have  retui'n  of  the  cat- 
tle aforesaid.  It  then  commands  the  sheriff  that 
.he  should  cause  to  be  returned  the  cattle  aforesaid 
to  the  said  defendant  without  delay,  etc.  2  Sellon, 
Pract.  168. 

RETORSION.  The  name  of  the  act  em- 
ployed by  a  government  to  impose  the  same 
hard  treatment  on  the  citizens  or  subjects  of 
a  state  that  the  latter  has  used  towards  the 
citizens  or  subjects  of  the  former,  for  the  pur- 
pose of  obtaining  the  removal  of  obnoxiotis 
measures.  Vattel,  liv.  2,  c.  18,  §  341 ;  De 
Martens,  Precis,  liv.  8,  c.  2,  |  254 ;  KlUber, 
Droit  des  Gens,  s.  2,  c.  1,  g  234;  Mann.  Comm. 
105. 

The  act  by  which  an  individual  returns  tc 
his  adversary  evil  for  evil :  as,  if  Peter  eali 
Paul  thief,  and  Paul  says,  You  are  a  greater 
thief. 

RETRACT  (Lat.  re,  back,  traho,  to  draw). 
To  withdraw  a  proposition  or  offer  before  it 
has  been  accepted. 

2.  This  the  party  making  it  has  a  right 
to  do  as  long  as  it  has  not  been  accepted ;  for 
no  principle  of  law  or  equity  can.  under  tliese 
circumstances,  require  him  to  persevere  in  it 
See  Offer. 


RETRAXIT 


475 


RETURN  OF  WRITS 


3.  After  pleading  guilty,  a  defendant  will, 
in  certain  cases  wliero  he  has  entered  that 
plea  by  mistake  or  in  consequence  of  some 
error,  be  allowed  to  retract  it.  But  where  a 
prisoner  pleaded  guilty  to  a  charge  of  larceny, 
and  sentence  has  l)een  passed  upon  him,  he 
will  not  be  allowed  to  retract  his  plea  and 
plead  not  guilty.  9  Carr.  &  P.  340  ;  Dig.  12. 
4.  5. 

RETRAXIT  (Lat.  he  withdraws).  In 
Practice.  Tlie  act  by  which  a  plaintiff  with- 
draws his  suit.  It  is  so  called  from  the  fact 
that  this  was  the  principal  word  used  when 
the  law  entries  were  in  Latin. 

A  retraxit  differs  from  a  nonsuit, — the  former 
being  the  act  of  the  plaintiff  himself,  for  it  cannot 
even  be  entered  by  attorney,  8  Coke,  68;  3  Salk. 
245;  8  Penn.  St.  157,  163,  and  it  must  bo  after 
declaration  filed,  3  Leon.  47;  8  Penn.  St.  163; 
while  the  latter  occurs  in  consequence  of  the  neglect 
merely  of  the  plaintiff.  A  retraxit  also  difl'ers 
from  a,nol/e  2J>'i)ii€(jui.  The  effect  of  a  retraxit  is  a 
bar  to  all  actions  of  a  like  or  a  similar  nature. 
Bacon,  Abr.  Nonmiit  (A);  a  nolle  pruaeqid  is  not  a 
bar  even  in  a  criminal  prosecution.  2  Mass.  172. 
See  2  Sellon,  Pract.  338:  Bacon,  Abr.  Nonsuit; 
Comyns,  Dig.  Pleader  {X  2), 

RETRIBUTION.  That  which  is  given 
to  another  to  recompense  him  for  what  has 
been  received  from  him:  as,  a  rent  for  the 
hire  of  a  house. 

A  salary  paid  to  a  person  for  his  services. 

The  distribution  of  rewards  and  punish- 
ments. 

RETROCESSION.     In   Civil  Law. 

When  the  assignee  of  heritable  rights  con- 
veys his  rights  back  to  the  cedent,  it  is  called 
a  retrocession.  Erskine,  Inst.  3.5.1;  Diet,  de 
Jur. 

RETROSPECTIVE  (Lat.  retro,  back, 
spectare,  to  look).  Looking  backward. 
Having  reference  to  a  state  of  things  ex- 
isting before  the  act  in  question. 

2.  This  word  is  usually  applied  to  those 
acts  of  the  legislature  which  are  made  to 
operate  upon  some  subject,  contract,  or  crime 
which  existed  before  the  passage  of  the  acts; 
and  they  are  therefore  called  retrospective  laws. 
These  laws  are  generally  unjust,  and  are  to  a 
certain  extent  forbidden  by  that  article  in  the 
constitution  of  the  United  States  which  pro- 
hibits the  passage  of  ex  post  facto  laws  or  laws 
impairing  contracts.  See  Ex  Post  Facto  Law. 

3.  The  right  to  pass  retrospective  laws, 
with  rhe  exceptions  above  mentioned,  exists  in 
the  several  states,  according  to  their  own  con- 
stitutions, and  they  bocome  obligatory  if  not 
prohibited  by  the  latter.  4  Serg.  &  R.  Penn. 
364;  3  Dall.  Penn.  396;  1  Bay,  So.  0.  179  ; 
7  Johns.  N.  Y.  477.  See  3  Serg.  &  R.  Penn. 
169;  2  Cranch,  272;  2  Pet.  414;  8  id.  110; 
11  id.  420;  1  Baldw.  C.  C.  74;  5  Penn.  St. 
149. 

4.  An  instance  may  be  found  in  the  laws 
of  Connecticut.  In  1795,  the  legislature 
passed  a  resolve  setting  aside  a  decree  of  a 
court  of  probate  disapproving  of  a  will,  and 
granted  a  new  hearing :  it  was  held  that  the 
rosolvp,  not  being  against  any  constitutional 


principle  in  that  state,  was  valid.  3  DalL 
386.  And  in  Pennsylvania  a  judgment  was 
opened  by  the  act  of  April  1,  1837,  Avhich 
was  holdcn  by  the  supreme  court  to  be  con- 
stitutional.   2  Watts  &  S.  Penn.  271. 

5.  Laws  should  never  be  considered  as  ap- 
plying to  cases  wdiich  arose  previously  to 
their  passage,  unless  tiie  legislature  have 
clearly  declared  such  to  be  their  intention. 
12  La.  352.  See  Barrington,  Stat.  400,  n.  ; 
7  J(dins.  N.  Y.  477  ;  1  Kent,  Comm.  455  ; 
Taylor,  Civil  Law,  168 ;  Code,  1.  14.  7 ; 
Bracton,  1.  4,  f.  228;  Story,  Const.  I  1393; 

1  McLean,  C.  C.  40;  1  Meigs,  Tenn.  437;  3 
Dall.  Penn.  391  ;  1  Blackf.  Ind.  193;  2  Gall. 
C.  C.  139;  1  Yerg.  Tenn.  300;  5  id.  320;  12 
Serg.  &  11.  Penn.  330. 

RETURN.  Persons  who  are  beyond  the 
sea  are  exempted  from  the  operation  of  the 
statute  of  limitations  of  Pennsylvania,  and 
of  other  states,  till  after  a  certain  time  has 
elapsed  after  their  returning.  As  to  what 
shall  be  considered  a  return,  see  14  Mass. 
203  ;  17  id.  180;  1  Gall.  C.  C.  342:  3  Johns. 
N.  Y.  263  ;  3  Wils.  145 ;  2  W.  Blackst.  723 ; 
3  Litt.  Ky.  48 ;  1  Ilarr.  &  J.  Md.  89,  350. 

RETURN-DAY.  A  day  appointed  by 
law  when  all  writs  are  to  be  returned  which 
have  issued  since  the  preceding  return-day. 
The  sheriff  is,  in  general,  not  required  to  re- 
turn his  writ  until  the  return-day.  After 
that  period  he  may  be  ruled  to  make  a  re- 
turn. 

RETURN  OF  PREMIUM.  In  In- 
surance. A  repayment  of  a  part  or  the 
whole  of  the  premium  paid.  Policies  of  in- 
surance, especially  those  on  marine  risks,  not 
unfrequently  contain  stipulations  for  a  return 
of  the  M'hole  or  a  part  of  the  premium  i^ 
certain  contingencies,  2  Phillips,  Ins.  xxii. 
sect.  xi. ;  but  in  the  absence  of  any  such  stipu- 
lation, in  a  case  free  of  fraud  on  the  part 
of  the  assured,  if  the  risk  does  not  commence 
to  run  he  is  entitled  to  a  return  of  it,  if  paid, 
or  an  exoneration  from  his  liability  to  pay  it, 
subject  to  deduction  settled  by  stipulation  or 
usage ;  and  so,  pro  rata,  if  only  a  part  of  the 
insured  subject  is  put  at  risk,  2  Phillips,  Ins. 
ch.  xxii.  sect.  i. ;  and  so  an  abatement  of  the 
excess  of  marine  interest  over  the  legal  rate 
is  made  in  hypothecation  of  ship  or  cargo  in 
like  case.  Id.  ibid.  sect.  vii. ;  Boulay-Paty, 
Droit  Com.  tit.  9,  s.  13,  torn.  3,  p.  03,  ed.  of 
1822 ;  Pothier,  Cout.  a  la  Grosse  n.  39. 

RETURN  OF  WRITS.  In  Practice. 
A  short  account,  in  writing,  made  by  the 
sheriff,  or  other  ministerial  ofiBcer,  of  the 
manner  in  which  he  has  executed  a  writ. 
Stephen,  PI.  24. 

It  is  the  duty  of  such  officer  to  return  all 
writs  on  the  return-day :  on  his  neglecting 
to  do  so,  a  rule  may  be  obtained  on  him  to 
return  the  writ,  and  if  he  do  not  obey  the 
rule  he  may  be  attached  for  contempt.  See 
19  Viner,  Abr.  171 :  Comvns,  Dig.  Return; 

2  Lilly,  Abr.  476;  Wood.  *Inst.  b.  1,  c.  7;  1 
Penn.  497;  1  Bawle,  Penn.  520;  3  Yeate-, 
Penn.  17,  47. 


HEUS 


476 


REVIEW 


REUS  ( Lat. ) .  In  Civil  Law.  A  party  to 
a  suit,  whether  plaintiff  or  defendant.  Reus 
est  qui  cum  altero  litem  contestaiem  habet,  sive 
id  egit,  sive  cum  eo  actum  est. 

A  party  to  a  contract.  Ecus  credendi  is  he 
to  whom  something  is  due,  by  whatever  title 
it  may  be ;  reus  debendi  is  he  who  owes,  for 
whatever  cause.    Pothier,  Pand.  lib.  50. 

REVELAND.  In  Domesday  Book  we 
find  land  put  down  as  thane-lauds,  which 
were  afterwards  converted  into  revelands, 
i.e.  such  lands  as,  having  reverted  to  the  king 
upon  death  of  his  thane,  who  had  it  for  life, 
were  not  since  granted  out  to  any  by  the 
king,  but  vested  in  charge  upon  account  of 
the  reve  or  bailiff  of  the  manor.  Spelman, 
Feuds,  c.  24.  Coke  was  mistaken  in  thinking 
it  was  land  held  in  socage. 

REVENDICATION.  In  Civil  Law. 
An  action  by  which  a  man  demands  a  thing 
of  which  he  claims  to  be  owner.  It  applies 
to  immovables  as  well  as  movables,  to  cor- 
poreal or  incorporeal  things.  Merlin,  Ru- 
pert. 

2.  By  the  civil  law,  he  who  has  sold  goods 
for  cash  or  on  credit  may  demand  them  back 
from  the  purchaser  if  the  purchase-money 
is  not  paid  according  to  contract.  The  ac- 
tion of  revendication  is  used  for  this  purpose. 
See  an  attempt  to  introduce  the  principle  of 
revendication  into  our  law,  in  2  Hall,  Law 
Journ.  181. 

3.  Revendication,  in  another  sense,  cor- 
responds very  nearly  to  the  stoppage  in 
transitu  of  the  common  la^ .  It  is  used  in 
that  sense  in  the  Code  de  Commerce,  art. 
677.  Revendication,  says  that  article,  can 
take  place  only  when  the  gcods  sold  are  on 
the  way  to  their  place  of  destination,  whether 
by  land  or  water,  and  before  they  have  been 
received  into  the  warehouse  of  the  insolvent 
(failli)  or  that  of  his  factor  or  ^^gent  author- 
ized to  sell  them  on  account  of  the  insol- 
vent. See  Dig.  14.  4. 15 ;  18.  1. 19.  53 ;  19. 1. 
11. 

REVENUE.  The  income  of  the  govern- 
meni  arising  from  taxation,  duties,  and  the 
like;  and,  according  to  some  correct  lawyers, 
under  the  idea  of  revenue  is  also  included 
the  proceeds  of  the  sale  of  stocks,  lands,  and 
other  property  owned  by  the  government. 
Story,  Const.  ^  877.  By  revenue  is  also  un- 
derstood the  income  of  private  individuals 
and  corporations. 

REVERSAL.    In  International  Law. 

A  declaration  by  which  a  sovereign  promises 
that  he  will  observe  a  certain  order,  or  cer- 
tain conditions,  which  have  been  once  esta- 
blished, notwithstanding  any  changes  that 
may  happen  to  cause  a  deviation  therefrom : 
as,  for  example,  when  the  French  court  con- 
sented for  the  first  time,  in  1745,  to  grant 
to  Elizabeth,  the  czarina  of  Russia,  the  title 
of  empress,  it  exacted  as  a  reversal  a  declara- 
tion purporting  that  the  assumption  of  the 
title  of  an  imperial  government  by  Russia 
fihould  not  derogate  from  the  rank  which 
Franco  had  held  towards  her. 


Letters  by  which  a  sovereign  declares  that 
by  a  particular  act  of  his  he  does  not  mean  to 
prejudice  a  third  power.  Of  this  we  have  an 
example  in  history :  formerly  the  emperor  of 
Germany,  whose  coronation,  according  to  the 
golden  ball,  ought  to  have  been  solemnized 
at  Aix-la-Chapelle,  gave  to  that  city,  when 
he  was  crowned  elsewhere,  reversals,  by 
which  he  .declared  that  such  coronation  took 
place  without  prejudice  to  its  rights,  and 
without  drawing  any  consequences  therefrom 
for  the  future. 

In  Practice.  The  decision  of  a  superior 
court  by  which  the  judgment,  sentence,  or 
decree  of  the  inferior  court  is  annulled. 

After  a  judgment,  sentence,  or  decree  has 
been  rendered  by  the  court  below,  a  writ  of 
error  may  be  issued  from  the  superior  to  the 
inferior  tribunal,  when  the  record  and  all 
proceedings  are  sent  to  the  supreme  court  on 
the  return  to  the  writ  of  error.  When,  on 
the  examination  of  the  recorcl,  the  superior 
court  gives  a  judgment  different  from  the  in- 
ferior court,  they  are  said  to  reverse  the  pro- 
ceeding. As  to  the  effect  of  a  reversal,  see  9 
Carr.  &  P.  513. 

REVERSION.  The  residue  of  an  estate 
left  in  the  grantor,  to  commence  in  possession 
after  the  determination  of  some  particular 
estate  granted  out  by  him.  The  return  of 
land  to  the  grantor  and  his  heirs  after  the 
grant  is  over.  ^  Coke,  Litt.  142  b. 

The  reversion  arises  by  operation  of  law, 
and  not  by  deed  or  will,  and  it  is  a  vested 
interest  or  estate ;  and  in  this  it  differs  from 
a  remainder,  which  can  never  be  limited 
unless  by  either  deed  or  devise.  2  Blackstone, 
Comm.  175 ;  Cruise,  Dig.  tit.  17 ;  Plowd.  151 ; 
4  Kent,  Comm.  349  ;  19  Viner,  Abr.  217.  A 
reversion  is  said  to  be  an  incorporeal  here- 
ditament. See  4  Kent,  Comm.  354 ;  1  Wash- 
burn, Real  Prop.  37,  47,  63  ;  2  Bouvier,  Inst, 
n.  1850 ;  Remainder  ;  Limitation. 

REVERSIONARY  INTEREST.  The 
interest  which  one  has  in  the  reversion  of 
lands  or  other  property.  The  residue  which 
remains  to  one  who  has  carved  out  of  his 
estate  a  lesser  estate.  See  Reversion.  An 
interest  in  the  land  when  possession  shall 
fail.  Cowel. 

REVERSOR.  In  Scotch  Law.  A 
debtor  who  makes  a  wadset,  and  to  whom 
the  right  of  reversion  is  granted.  Erskine, 
Inst.  2.  8."  1.  A  reversioner.  Jacob,  Law 
Diet. 

REVERTER.  Reversion.  A  possibility 
of  reverter  is  that  species  of  reversionary  in- 
terest which  exists  when  the  grant  is  so 
limited  that  it  may  possibly  terminate.  See 
1  Washburn,  Real  Prop.  63. 

REVIEW.  In  Practice.  A  second  ex- 
amination of  a  matter.  For  example,  l»y  the 
laws  of  Pennsylvania,  the  courts  having  ju- 
risdiction of  the  subject  may  grant  an  order 
for  a  view  of  a  proposed  road  ;  the  reviewers 
make  a  report,  which,  when  confirmed  by  the 
court,  would  authorize  the  laying  out  of  the 
same.    After  this,  by  statutory  provision,  the 


REVISING  BARRISTERS  477 


parties  may  apply  for  a  review  or  second  ex- 
amination, and  the  last  viewers  may  make  a 
dirtorent  report.  For  the  practice  of  reviews 
iji  chancery,  see  Bill  of  Review. 

REVISING  BARRISTERS.  In  Eng- 
lish Law.  Barristers  appointed  to  revise 
tlie  list  of  voters  for  county  and  borough 
members  of  parliament,  and  who  hold  courts 
for  that  purpose  throughout  the  country,  be- 
ing appointed  in  July  or  August.  G  Vict.  c. 
isl  3  Chitty,  Stat. 

REVIVAL.  Of  Contracts.  An  agree- 
ment to  renew  the  legal  obligation  of  a 
just  debt  after  it  has  been  barred  by  the  act 
of  limitation  or  lapse  of  time  is  called  its 
revival. 

In  Practice.  The  act  by  which  a  judg- 
ment which  has  lain  dormant  or  without  any 
action  upon  it  for  a  year  and  a  day  is,  at 
common  law,  again  restored  to  its  original 
force. 

When  a  judgment  is  more  than  a  day  and 
a  year  old,  no  execution  can  issue  upon  it  at 
common  law ;  but  till  it  has  been  paid,  or  the 
presumption  arises  from  lapse  of  time  that  it 
has  been  satisfied,  it  may  be  revived  and 
have  all  its  original  force,  which  was  merely 
suspended.  This  may  be  done  by  a  scire  fa- 
cias or  an  action  of  debt  on  the  judgment. 
See  Scire  Facias. 

REVIVOR.  In  Equity  Practice.  A 
bill  used  to  renew  an  original  bill  which, 
for  some  reason,  has  become  inoperative.  See 
Bill  of  Revivor. 

REVOCATION  (Lat.  re,  back,  voco,  to 
call).  The  recall  of  a  power  or  authority 
^,onferred,  or  the  vacating  of  an  instrument 
previously  made. 

52.  Revocation  of  grants.  Grants  may  be 
revoked  by  virtue  of  a  power  expressly  re- 
served in  the  deed,  or  where  the  grant  is 
without  consideration  or  in  the  nature  of  a 
testamentary  disposition.    3  Coke,  25. 

Voluntary  conveyances,  being  without  pe- 
cuniary or  other  legal  consideration,  may  be 
superseded  or  revoked,  in  effect,  by  a  subse- 
quent conveyance  of  the  same  subject-matter 
to  another  for  valuable  consideration.  And 
it  will  make  no  difference  that  the  first  con- 
veyance was  meritorious,  being  a  voluntary 
settlement  for  the  support  of  one's  self  or 
family,  and  made  when  the  grantor  was  not 
indebted,  or  had  ample  means  besides  for  the 

Eayment  of  his  debts.  And  the  English  cases 
old  that  knowledge  of  the  former  deed  will 
not  affect  the  rights  of  the  subsequent  pur- 
chaser. 9  East,  59  ;  4  Bos.  &  P.  332  ;  8  Term, 
528;  2  Taunt.  G9 ;  18  Ves.  Ch.  84.  See, 
also,  the  exhaustive  review  of  the  American 
cases,  in  note  to  Sexton  vs.  Wheaton,  1  Am. 
Lead  Cas.  36-47. 

3.  In  America,  it  is  generally  held  that  a 
voluntary  conveyance  Mdiich  is  also  fraudu- 
lent is  void  as  to  subsequent  bond  fide  pur- 
chasers for  value  with  notice ;  but  if  not 
fraudulent  in  fact,  it  is  only  void  as  to  those 
urchasing  without  notice.  14  Mass.  137  ; 
8  Pick.  Mass.  131;  20  id.  247  ;  2  B.  Monr. 


Ky.  345  ;  8  id.  11 ;  1  A.  K.  Marsh.  Ky.  126, 
210;  10  Ala.  n.  s.  348,  352;  12  Johns.  N.  Y. 
536,  557  ;  4  M'Cord,  So.  C.  '295,  308.  See 
Fraudulent  Conveyance. 

The  fact  that  the  voluntary  grantor  sub- 
sequently conveys  to  another,  is  regarded  as 
'prima  facie  evidence  that  the  former  deed 
was  fraudulent  as  to  subsequent  purchasers 
without  notice,  or  it  would  not  have  been  re- 
voked. 5  Pet.  265,  281 ;  4  M'Cord,  So.  C. 
295,  308  ;  3  Strobh.  So.  C.  59,  63  ;  1  Rob.  Va. 
500,  544. 

In  some  of  the  states,  notice  of  the  volun- 
tary deed  will  defeat  the  subsequent  pur- 
chaser. 1  Rawle,  Penn.  231 ;  5  Watts,  Penn. 
378;  6  Md.  242;  4  M'Cord,  So.  C.  295,  310; 
2  M'Mull.  So.  C.  508  ;  1  Bail.  So.  C.  575,  580; 
15  Ala.  525,  530 ;  5  Pet.  265,  281.  But  in 
other  states  the  English  rule  prevails.  1 
Yerg.  Tenn.  13-15  ;  5  id.  250  ;  1  A.  K.  Marsh. 
Ky.  208,  210 ;  1  Dan.  Ky.  531 ;  3  Ired.  Eq. 
No.  C.  81 ;  8  Ired.  No.  C.  340. 

There  is  a  distinction  between  the  creditors 
of  the  grantor  by  way  of  family  settlement 
(he  being  not  insolvent  or  in  embarrassed 
circumstances),  and  a  subsequent  purchaser 
for  value.  The  claim  of  the  latter  is  regarded 
as  superior  to  a  mere  creditor's,  whether  prior 
or  subsequent  to  the  voluntary  conveyance, 
— especially  if  he  buy  without  notice.  Some 
of  the  foregoing  cases  do  not  advert  to  this 
distinction.  3  Ired.  Eq.  No.  C.  81;  4  Vt. 
389,  395. 

4.  So,  too,  if  one  bail  money  or  other  valu- 
able to  another,  to  be  delivered  to  a  third 
person  on  the  day  of  marriage,  he  may 
countermand  it  at  any  time  before  delivery 
over.  1  Dy.  49.  But  if  such  delivery  be 
made  in  payment  or  security  of  a  debt,  or 
for  other  valuable  consideration,  it  is  not  re- 
vocable. 1  Strange,  165.  And  although  the 
gift  be  not  made  known  to  the  donee,  being 
for  his  benefit,  his  assent  will  be  presumed 
until  he  expressly  dissent.  3  Coke,  26  6;  2 
Salk.  618. 

Powers  of  appointment  to  uses  are  revoca- 
ble if  so  expressed  in  the  deed  of  settle- 
ment. But  it  is  not  indispensable,  it  is  said, 
that  this  power  of  revocation  should  be  re- 
peated in  each  successive  deed  of  appoint- 
ment, provided  it  exist  in  the  original  deed 
creating  the  settlement.   4  Kent,  Comm.  336 ; 

1  Coke,  110  6;  1  Chanc.  Cas.  201 ;  2  id.  46  ; 

2  Blackstone,  Comm.  339,  and  notes. 

It  has  been  said  that  the  power  of  revoca- 
tion does  not  include  the  appointment  of  new 
uses.  1  Sid.  343;  2  Freem.  61;  Prec.  in 
Chanc.  474. 

5.  The  Revocation  of  Powers  conferred 
UPON  Agents.  Naked  powers,  not  coupled 
with  an  interest,  may  always  be  revoked  by 
the  express  act  of  the  constituent,  whenever 
he  so  elects,  he  being  bound  by  all  the  acta 
of  the  agent  until  notice  of  the  revocation. 
Until  notice  of  revocation,  the  agent  is  en- 
titled to  compensation  and  indemnity  for  all 
acts  done  and  all  liabilities  incurred.  The 
act  of  revocation  is  merely  provisional  and 
contingent  until  notice  is  communicated  to 


REVOCATION 


478 


REVOCATION 


tlie  agent.  1  Parsons,  Contr.  58,  and  notes ;  0 
Ired.  No.  C.  231. 

As  to  tliird  p(n-sons  who  deal  with  the  agent 
before  notice  of  the  revocation  of  his  powers, 
they  are  not  affected  by  it.    1  Strange,  506 ; 

5  Term,  211-214;  12  Q.  B.  460;  4  Campb. 
215  ;  12  M  xl.  ;:146  ;  4  Munf.  Va.  130 ;  5  Binn. 
Petin.  305  ;  5  Dan.  Ky.  513  ;  17  Mo.  204  ;  11 
N.  11.  3*J7  ;  2  Kent,  Comm.  644,  and  cases 
cited;  11  Ad.  &  E.  589,  592. 

6.  But  as  to  strangers  who  have  never 
iealt  with  the  agent  before  the  revocation  of 
his  powers,  if  the  principal  give  public  notice 
of  the  revocation  in  such  manner  as  to  render 
the  fact  generally  known  in  the  vicinity,  it 
m\\  protect  him.  1  Parsons,  Contr.  59,  60 ; 
Hare,  J.,  in  U.  States  vs.  Jarvis,  Dav.  Dist. 
Ct.  287.  But  where  the  power  was  conferred 
m  writing,  which  the  agent  retained  and  ex- 
hibited as  the  evidence  of  his  authority,  so 
that  strangers  were  fairly  justified  in  believ- 
ing in  its  continuance,  having  no  adequate 
means  of  knowledge  of  its  revocation,  the  acts 
jf  the  agent  will  bind  the  principal.  11  N.  II. 
?j97.  It  is  a  question  of  fact  whether,  under 
a\1  the  circumstances,  the  party  was  fairly 
Justified  in  supposing  the  authority  still  con- 
tinued.   12  Q.  B.  460. 

Unless  the  power  provides  a  specific  mode 
of  revocation  (in  which  it  must  be  strictly 
followed),  its  authority  may  be  revoked  in 
any  form  which  the  constituent  may  adopt. 

6  Ired.  No.  C.  74 ;  6  Pick.  Mass.  198  ;  Story, 
A.g.  474.  See,  post,  Revocation  of  Powers 
•/F  Arbitrators. 

^,  The  authority  of  an  agent  may  be  re- 
voked by  the  incapacity  either  of  the  princi- 
j-al  or  agent,  by  death. 

In  the  case  of  a  naked  authority,  the  death 
('?  the  principal  terminates  the  authority  of 
the  agent  ipso  facto,  and  without  notice  either 
10  the  agent  or  those  with  whom  he  deals. 
The  civil  law  held  that  acts  done  bond  Jide 
in  the  discharge  of  the  agent's  duty  before 
knowledge  of  the  death  of  the  principal,  and 
which  enured  to  the  benefit  of  the  principal's 
estate,  were  binding  upon  his  personal  repre- 
sentatives. Courts  of  equity  have  sometimes 
enforced  a  similar  rule ;  but  the  strict  legal  rule 
of  the  common  law  is  as  first  stated.  Willes, 
103  ;  10  Mees.  &  AV.  Exch.  1 ;  Story,  Ag.  ^  488  ; 
4  Pet.  333, 334;  1  Ilumphr.  Tenn.  294;  12N.H. 
146 ;  4  Mete.  Mass.  333 ;  11  Leigh,  Va.  137.  But 
where  the  agent  has  entered  upon  the  business 
or  incurred  expenses,  he  is  entitled  to  com- 
pensation. 33  Eng.  L.  &  Eq.  229;  Dav. 
Dist.  Ct.  287  ;  Bacon,  Abr.  Authority  (E). 
So,  also,  if  he  have  incurred  liabilities  he  is 
entitled  to  indemnity.  Chitty,  Contr.  225, 
and  n.  (o),  Perkins  ed.  1860. 

8.  So,  also,  in  regard  to  powers  coupled 
with  an  interest  which  are  not  revocable  by 
the  act  of  the  principal  during  his  life,  they 
lire  nevertheless  annulled  by  his  death,  so 
far  as  any  act  in  his  name  is  concerned.  4 
Campb.  272;  Willes,  105;  5  Esp.  117;  6 
East,  356  ;  8  AVheat.  174 ;  2  Kent,  Comm. 
646  ;  2  Me  14 ;  Willes,  563  ;  Prec.  in  Chanc. 
125. 


So,  too,  a  joint  authority  to  two  persons 
terminates  by  the  death  of  one  of  them.  2 
Kent,  Comm.  645  ;  15  East,  592.  A  warrant 
of  attorney  to  confess  judgment  by  two  is 
vacated  by  the  death  of  one  of  the  constitu- 
ents ;  but  such  warrant  given  to  two  being 
merely  ministerial  may  be  executed  in  the 
name  of  the  survivor.    7  Taunt.  453. 

The  agent's  authority  terminates  by  the 
bankruptcy  either  of  the  principal  or  the 
agent.  2  Kent,  Comm.  644,  and  note?  ;  J 
Taunt.  544 ;  16  East,  382  ;  5  Barnew.  &  Aid. 
27.  But  where  the  agent  has  a  lien  it  may  be 
enforced  in  the  name  of  the  assignee.  Story, 
Bailm.  §  211 ;  Story,  Ag.  §  486. 

9.  Insanity  either  of  the  principal  or  agent 
terminates  the  agency.  2  Kent,  Comm.  645, 
and  cases  cited  in  note.  But  as  to  third  per- 
sons ignorant  of  the  fact  of  insanity,  and 
whose  contract  with  the  agent  is  fair  and 
just,  it  will  still  be  valid.  10  N.  11.  156. 
But  a  commission  of  lunacy  is  constructive 
notice  to  all.  2  Kent,  Comm.  645.  And  the 
inquisition  forming  the  basis  of  the  commis- 
sion is  allowed  to  antedate  the  finding  of  in- 
capacity, in  which  case  it  would  have  no 
other  effect,  probably,  than  to  throw  the  bur- 
den of  proof  on  the  other  party.  If  the 
power  confer  an  interest  upon  the  agent 
which  can  be  enforced  in  his  name,  insanity 
will  not  operate  as  a  revocation.  . 

The  marriage  of  a  feme  soZe  will  terminate 
her  power  either  as  principal  or  agent.  1 
Rolle,  Abr.  331,  Authority  (E  PI.  4)  ;  W. 
Jones,  388;  5  East,  266 ;  2  Kent,  Comm. 
645;  11  Vt.  525. 

An  authority  limited  by  time  expires  of 
necessity  with  the  period  fixed.  So  will  the 
authority  cease  with  the  accomplishment  of 
the  business,  or  the  death  of  the  agent,  or 
the  destruction  of  the  subject-matter,  or  its 
essential  change,  or  the  loss  of  the  prin- 
cipal's interest  in  it,  or  of  the  agent's  dis- 
interestedness in  regard  to  it,  or  of  his  capa- 
city fairly  to  discharge  the  duties  of  the 
agency.  Chitty,  Contr.  224,  and  notes,  Per- 
kins ed.  1860. 

10.  Powers  coupled  with  an  interest  aro,  in 
general,  not  revocable.  Being  conferred  upon 
consideration,  a  power  is  no  more  revocable 
than  any  other  contract.  1  Parsons,  Contr. 
61,  and  notes ;  Chitty,  Contr.  224,  and  notes, 
Perkins  ed.  1860 ;  7  Ves.  Ch.  3,  28. 

Whenever  the  power  confers  an  interest  in 
the  subject-matter,  and  not  in  the  results 
only,  and  constitutes  an  essential  part  of  a 
security  upon  the  faith  of  which  money  or 
other  thing  has  been  advanced  or  liability 
incurred,  it  is  not  revocable  even  by  the  death 
of  the  principal,  but  may  be  thereafter  exe- 
cuted, where  it  can  be  done,  without  the  use 
of  the  name  of  the  principal.  1  Caines,  Cas. 
N.  Y.  1  ;  3  Barnew.  &  C.  842,  851 ;  2  Esp. 
Cas.  565  ;  4  Campb.  272;  17  Mass.  234. 

11.  The  American  courts,  following  the 
case  of  Brown  vs.  McGraw,  14  Pet.  479, 
hold  that  the  consignee  of  goods  for  sale, 
who  has  incurred  liability  or  made  advances 
upon  the  faith  of  the  consignment,  acquirea 


)1 


REVOCATION 


479 


REVOCATION 


A  power  of  sale  which,  to  the  extent  of  his 
interest,  is  not  revocable  or  subject  to  the 
control  of  the  consignor.  But  if  orders  are 
given  by  the  consignor,  contemporaneously 
with  the  consignment  and  advances,  in  re- 
gard to  the  time  and  mode  of  sale,  and  Avhich 
arc,  either  expressly  or  impliedly,  assented  to 
by  the  consignee,  he  is  not  at  liberty  to  depart 
from  them  afterwards.  But  if  no  instructions 
are  given  at  the  time  of  the  consignment  and 
advances,  the  legal  presumption  is  that  the 
consignee  has  the  ordinary  right  of  factors  to 
sell,  according  to  the  usages  of  trade  and  the 
general  duty  of  factors,  in  the  exercise  of  a 
sound  discretion,  and  reimburse  the  advances 
out  of  the  proceeds,  and  that  this  right  is 
not  subject  to  the  interference  or  control  of 
the  consignor. 

12.  The  case  of  Parker  vs.  Brancker,  22 
Pick.  Mass.  40,  46,  seems  to  go  to  the  length 
of  holding  that  where  the  consignment  is  to 
sell  at  a  limited  price  the  consignee  may 
after  notice  sell  below  that  price,  if  necessary, 
to  reimburse  advances.  But  to  this  extent 
the  American  rule  has  not  gone.  1  Parsons, 
Contr.  59,  n.  (h).  See,  also,  12  N.  H.  239; 
3  N.  Y.  78. 

The  English  courts  do  not  hold  such  a 
power  irrevocable  in  law.  3  C.  B.  380 ;  5 
id.  895.  In  the  last  case,  Wilde,  C.  J., 
thus  lays  down  the  rule.  It  may  furnish 
a  ground  for  inferring  that  the  advances 
were  made  upon  the  footing  of  an  agree- 
ment that  the  factor  shall  have  an  irrevo- 
cable authority  to  sell  in  case  the  principal 
made  default.  But  it  would  be  an  inference 
of  fact,  not  a  conclusion  of  law.  The  fact 
that  the  agent  has  incurred  expense  in  faith 
of  the  authority  being  continued,  and  will 
suffer  loss  by  its  revocation,  is  a  ground  of 
recovery  against  the  principal,  but  does  not 
render  the  power  irrevocable.  28  Eng.  L.  & 
Eq.  321. 

13.  A  pledge  of  personal  property  to  secure 
liabilities  of  the  pledgeor,  with  an  express 
power  of  sale,  confers  such  an  interest  in 
the  subject-matter  that  it  will  not  be  revoked 
by  his  death.    10  Paige,  Ch.  N.  Y.  205. 

But  a  power  to  pledge  or  sell  the  property 
of  the  constituent  and  from  the  avails  to 
reimburse  advances  made  or  liabilities  in- 
curred by  the  appointee  is  not  so  coupled 
with  an  interest  as  to  be  irrevocable.  8 
Wheat.  174  ;  6  Conn.  559.  The  interest  must 
exist  in  the  subject-matter  of  the  power,  and 
not  merely  in  the  result  of  its  exercise,  to 
become  irrevocable.  15  N.  H.  468  ;  20  Ohio 
St.  185. 

Hence,  if  one  give  a  letter  of  credit  agree- 
1  ing  to  accept  bills  to  a  certain  amount  within 
a  limited  time,  the  letter  is  revoked  by  death, 
and  bills  drawn  after  the  death  and  before 
knowledge  thereof  reaches  the  drawer  cannot 
be  enforced  against  the  estate  of  such  deceased 
party.    28  Vt.  209. 

14.  All  contracts  which  are  to  be  executed 
in  the  name  of  the  constituent  by  virtue  of 
an  agency,  although  formi)7g  an  essential 
part  of  a  security  upon  the  "aith  of  which 


advances  have  been  made,  are  of  necessity 
revoked  by  the  death  of  the  constituent. 
Even  a  warrant  of  attorney  to  confess  judg- 
ment, although  not  revocable  hy  the  act  of 
the  party,  is  revoked  by  his  death.  The 
courts,  however,  allow  judgment  in  such 
cases  to  be  entered  as  of  a  term  prior  to  the 
death  of  the  constituent.  2  Kent,  Comm. 
646,  647  ;  9  Wend.  N.  Y.  452  ;  8  Wheat.  174. 
See,  also,  2  Ld.  Kaym.  766,  849,  where  the 
form  of  procedure  is  discussed  ;  7  Mod.  93  ; 
Strange,  108 ;  1  Ventr.  310 ;  1  Salk.  87  ;  3 
id.  116.  A  warrant  of  attorney  to  confess 
judgment,  executed  by  a  feme  sole,  is  re- 
voked by  her  marriage ;  but  if  executed  to 
a  feme  sole  the  courts  will  allow  judgment 
to  be  entered  up  in  the  name  of  the  husband 
and  wife.  1  Salk.  117  ;  1  P.  A.  Browne, 
Penn.  253;  3  Harr.  Del.  411. 

15.  The  Powers  of  Arbitrators.  These 
are  revocable  by  either  party  at  any  time 
before  final  award.  20  Vt.  l98.  It  is  not 
competent  for  the  parties  to  deprive  them- 
selves of  this  power  by  any  form  of  contract. 
8  Coke,  80  ;  W  Johns.  N.  Y.  205.  But  where 
the  submission  releases  the  original  cause  of 
action,  and  the  adversary  revokes,  the  party 
so  releasing  may  recover  the  amount  so  re- 
leased by  way  of  damages  caused  by  the 
revocation.    13  Vt.  97. 

Where  the  submission  is  made  a  rule  of 
court,  it  becomes  practically  irrevocal)le,  since 
such  an  act  would  be  regarded  as  a  contempt 
of  court  and  punishable  by  attachment.  7 
East,  608.  This  is  the  only  mode  of  making 
a  submission  irrevocable  "when  the  fear  of 
an  attachment  may  induce  them  to  submit." 
6Bingh.443. 

16.  In  the  American  courts,  a  submission 
by  rule  of  court  is  made  irrevocable  by  the 
express  provisions  of  the  statutes  in  most  of 
the  states,  and  the  referee  is  required,  after 
due  notice,  to  hear  the  case  ex  parte,  where 
either  part}'  fails  to  appear.  12  Mass.  47  ;  1 
Conn.  498  ;  3  Ilalst.  N.  J.  116  ;  4  Me.  459  ; 
1  Binn.  Penn.  42 ;  5  Penn.  St.  497  ;  3  Ired. 
No.  C.  333.  In  Ohio,  a  submission  under 
the  statute  is  irrevocable  after  the  arbitrators 
are  sworn,  19  Ohio  St.  245  ;  and  it  has  been 
held  that  a  naked  submission  is  not  revocable 
after  the  arbitrator  has  made  his  award  and 
published  it  to  oTie  of  the  parties.  6  N.  H. 
36.  But  while  a  statute  requisite,  as  being 
witnessed,  is  not  complied  with,  it  is  incom- 
plete and  so  the  sulDmission  revocable.  5 
Paige,  Ch.  N.  Y.  575.  In  New  York  it  is 
provided  by  statute  that  neither  party  shall 
be  allowed  to  revoke  after  the  case  is  heard 
and  finally  submitted  to  the  arbitrator.  5 
Paige,  Ch.  N.  Y.  575;  11  id.  529. 

When  one  party  to  the  submission  consists 
of  several  persons,  one  cannot  revoke  without 
the  concurrence  of  the  others.  Caldwell, 
Arb.  77,  78;  1  Brownl.  62:  Rolle,  Abr. 
Avthority  (H) ;  12  Wend.  N.  Y.  578.  But 
the  text-writers  are  not  fully  agreed  in  this 
proposition.  See  Russell,  Arb.  147  ;  2  Chitty, 
Bail,  452,  where  it  is  held  that  the  death  of 
one  of  several  parties  on  one  side  of  the  sub- 


REVOCATION 


480 


REVOCATUR 


mission  operates  as  a  revocation  as  to  such  I 
j:»arty  at  least,  and  that  an  aw  ard  made  in 
the  name  of  the  survivors  and  the  execu-  i 
tor  of  the  deceased  party  is  void.    It  is  here  j 
intimated  by  way  of  query  whether,  vs'here 
the  cause  of  action  survives,  the  award  might  I 
not  legally  be  made  in  the  name  of  the  sur- 
viving party. 

An  award  made  after  the  revocation  of 
the  submission  is  entirely  void.    1  Sim.  Ch.  i 
134.  ^    _         ^  i 

I'Y.  The  power  of  the  arbitrator  is  deter-  | 
mined  by  the  occurrence  of  any  fact  which  ; 
incapacitates  the  party  from  proceeding  with  j 
the  hearing.    The  marriage  of  a  feme  sole 
is  a  revocation  of  the  arbitrator's  power.  2 
Kebl.  865  ;  11  Vt.  525.    So,  also,  if  she  be 
joined  with  another  in  the  submission,  her 
marriage  is  a  revocation  as  to  both.  W. 
Jones,  338  ;  RoUe,  Abr.  Authority. 

Insanity  in  either  party,  or  in  the  arbitra- 
tor, will  determine  his  authority.  The  death 
of  either  party,  or  of  the  arbitrator,  or  one  of 
them,  or  where  the  arbitrators  decline  to  act, 
will  operate  as  a  revocation  of  the  submission. 
Caldwell,  Arb.  90 ;  1  Marsh.  366 ;  17  Ves.  Ch. 
241 ;  4  T.  B.  Monr.  Ky.  3  ;  3  Swanst.  Ch.  90; 

I  Barnew.  &  C.  66. 

It  is  competent  to  make  provision  in  the 
submission  for  the  completion  of  the  award 
notwithstanding  the  death  of  one  of  the 
parties,  by  proceedings  in  the  name  of  the 
personal  representative.  This  seems  to  be 
the  general  practice  in  England  in  late  years. 
3  Barnew.  &  C.  144;  3  Bingh.  20;  4  id, 
143,  435 ;  6  Bingh.  n.  c.  158 ;  8  Mees.  &  W. 
Exch.  873.  And  in  some  of  the  American 
states  it  is  held  that  a  submission  by  rule  of 
court  is  not  determined  by  the  death  of  the 
party,  where  the  cause  of  action  survives,  but 
may  be  revived  and  prosecuted  in  the  name 
of  the  personal  representative.  15  Pick. 
Mass.  79 ;  3  Halst.  N.  J.  116 ;  3  Gill,  Md. 
190;  2  Gill  &  J.  Md.  475.  Bankruptcy  of 
the  party  does  not  operate  to  revoke  a  sub- 
mission to  arbitration.  Caldwell,  Arb.  89. 
But  it  seems  to  be  considered,  in  Marsh  vs. 
Wood,  9  Barnew.  &  C.  659,  that  the  bank- 
ruptcy of  one  party  will  justify  the  other  in  re- 
voking. But  see  2  Chitt.  Bail.  43 ;  1  C.  B. 
131. 

18.  The  time  when  the  revocation  becomes 
operative.  Where  it  is  by  the  express  act  of 
the  party,  it  will  be,  when  notice  reaches  the 
arl)itrator.  Caldwell,  Arb.  80 ;  5  Barnew.  & 
Aid.  507  ;  8  Coke,  80.  But  in  the  case  of 
death,  or  marriage,  or  insanity,  the  act  itself 
terminates  the  power  of  the  arbitrator  at 
once,  and  all  acts  thereafter  done  by  him  are 
of  no  force.    1  Rolle,  Abr.  Authority  (I  4) ; 

II  Vt.  525;  5  East,  266. 

The  form  of  the  revocation  is  not  important, 
if  it  be  in  conformity  with  the  submission,  or 
if,  when  it  is  not,  it  be  acquiesced  in  by  the 
other  party.    7  Vt.  237. 

It  is  said  in  the  books  that  the  revocation 
must  bo  of  as  high  grade  of  contract  as  the 
8ul)mission.  This  seems  to  be  assumed  by 
tlie  text-writers  ana  judges  as  a  settled  pro- 


position. Caldwell,  Arb.  79;  8  Coke,  82; 
Brownl.  62 ;  8  Johns.  N.  Y.  125.  Where  the 
submission  is  in  writing,  the  revocation 
"oughtto  be  in  writing.'^  18Vt.  91.  But  see 
7  Vt.  237,  240 ;  15  N.  H.  468.  It  seems 
questionable  whether  at  this  day  a  submis- 
sion by  deed  would  require  to  be  revoked  by 
deed,  since  the  revocation  is  not  a  contract^ 
but  a  mere  notice,  and  no  special  right  is 
conferred  upon  such  an  act  by  the  addition 
of  wax  or  wafer.  8  Ired.  74.  But  see  26 
Me.  251,  contra.  But  it  is  conceded  the 
party  may  revoke  by  any  act  which  renders 
it  impracticable  for  the  arbitrators  to  pro- 
ceed. 1  Salk.  73;  7  Mod.  8;  Story,  Ag. 
474. 

So  a  revocation  imperfectly  expressed,  as 
of  the  bond  instead  of  the  submission,  will 
receive  a  favorable  construction,  in  order  to 
affectuate  the  intention  of  the  party.  1  Cow. 
N.  Y.  325. 

It  has  been  held,  too,  that  bringing  a  suit 
upon  the  same  cause  of  action  embraced 
in  the  submission,  at  any  time  before  the 
award,  was  an  implied  revocation.  6  Dan. 
Ky.  107  ;  Caldwell,  Arb.  Smith  ed.  1860,  80, 
Am.  notes. 

19.  The  Power  of  a  Partner  to  contract 
in  the  name  of  the  firm  may  be  revoked,  by 
injunction  out  of  chancery,  where  there  is  a 
wanton  or  fraudulent  violation  of  the  contract 
constituting  the  association.  1  Story,  Eq. 
Jur.  ^  673,  and  notes. 

This  will  sometimes  be  dane  on  account 
of  the  impracticability  of  carrying  on  the  un- 
dertaking. 1  Cox,  .Ch.  213;  2  Ves.  &  B. 
Ch.  Ir.  299. 

So,  too,  such  an  injunction  may  be  granted 
on  account  of  the  insanity  or  permanent 
incapacity  of  one  of  the  partners.  1  Story^ 
Eq.  Jur.  I  673.  But  insanity  is  not  alone  suf- 
ficient to  produce  a  dissolution  of  the  part- 
nership.   2  Mylne  &  K.  Ch.  125. 

The  death  of  one  of  the  partners  is  always 
a  dissolution  of  the  partnership,  unless  there 
is  a  provision  for  the  continuance  of  the 
business  for  the  benefit  of  the  personal  repre- 
sentatives. 2  Kent,  Comm.  55-57;  9  Ves, 
Ch.  500;  3  Madd.  Ch.  250;  7  Pet.  586, 
594. 

An  oral  license  to  occupy  land  is,  where 
the  Statute  of  Frauds  prevails,  revocable  at 
pleasure,  unless  permanent  and  expensive 
erections  have  been  made  by  the  licensee  in 
faith  of  the  permission.  In  such  case  a  court 
of  equity  will  decree  a  conveyance  on  equita- 
ble terms,  in  conformity  with  the  contracts  of 
the  parties,  or  else  recjuire  compensation  to 
be  made  upon  equitable  principles.  1  Stockt. 
Ch.  471 ;  Redtield,  Railw,  106,  and  notes ;  1? 
Vt.  150  ;  27  id.  265 ;  10  Conn.  375  ;  5  Day, 
Conn.  464,  469. 

For  the  law  in  regard  to  the  revocation  of 
wills,  see  Wills. 

REVOCATUR  (Lat.  recalled).  A  term 
used  to  denote  that  a  judgment  is  annulled 
for  an  error  in  fact.  The  judgment  is  then 
said  to  be  recalle  1,  reyoca^wr;  not  reversed^ 
which  is  the  word  used  when  a  judgment  it 


REVOLT 


481 


RHODE  ISLAND 


annulled  for  an  error  in  law.  Tidd,  Pract. 
1126. 

REVOLT.  The  endeavor  of  the  crew  of 
i  u  vessel,  or  any  one  or  more  of  them,  to  over- 
throw the  legitimate  authority  of  her  com- 
mander, with  intent  to  remove  him  from  his 
command,  or  against  his  will  to  take  posses- 
sion of  the  vessel  by  assuming  the  government 
and  navigation  of  her,  or  by  transferring 
their  obedience  from  the  lawful  commander 
to  some  other  person.    11  Wheat.  417. 

2.  According  to  Wolfif,  revolt  and  rebellion  are 
niearly  synonymous :  lie  says  it  is  the  state  of  citi- 
zens who  unjustly  take  up  arms  against  the  prince 
or  government.    Wolff,  Droit  de  la  Nat.  ^  1232. 

By  the  twelfth  section  of  the  act  of  30th  April, 
1790,  it  was  declared  that  if  any  seaman  shall  con- 
fine the  master  of  any  ship  or  other  vessel,  or  en- 
deavor to  make  a  revolt  in  such  ship,  such  person 
80  offending  shall  be  imprisoned  not  exceeding  three 
years,  and  fined  not  exceeding  one  thousand  dol- 
lars. 

Under  this  statute,  doubts  were  entertained  of  the 
power  of  the  courts  to  define  a  crime  which  bad  no 
statutory  or  common-law  definition.  4  Wash.  C.  C. 
628. 

3.  The  act  of  1790,  above  referred  to,  is  substan- 
tially superseded  by  the  act  of  3d  March,  1835,  4 
U.  S.  Stat,  at  Large,  775,  the  first  section  of  which 
declares  that  "  if  any  one  or  more  of  the  crew  of  any 
American  ship  or  vessel,  on  the  high  seas,  or  on 
any  other  waters  within  the  admiralty  and  mari- 
time jurisdiction  of  the  United  States,  shall  unlaw- 
fully and  wilfully,  and  with  force,  or  by  fraud, 
threats,  or  other  intimidations,  usurp  the  command 
of  such  ship  or  vessel  from  the  master  or  other  law- 
ful commanding  officer  thereof,  or  deprive  him  of 
his  authority  or  command  on  board  thereof,  or  resist 
or  prevent  him  in  the  free  and  lawful  exercise 
thereof,  or  transfer  such  authority  and  command 
to  any  person  not  lawfully  entitled  thereto,  every 
such  person  so  offending,  his  aiders  or  abettors, 
shall  be  deemed  guilty  of  a  revolt  or  mutiny  and 
felony,  and  shall,  on  conviction  thereof,  be  pun- 
ished by  fine  not  exceeding  two  thousand  dollars, 
and  by  imprisonment  and  confinement  to  hard 
labor  not  exceeamg  .en  years,  according  to  the 
nature  and  aggravation  of  the  offence.  And  the 
offence  of  making  a  revolt  in  a  ship,  which  now  is, 
under  and  in  virtue  of  the  eighth  section  of  the  act 
of  congress  passed  the  30th  day  of  April  in  the 
year  of  our  Lord  1790,  punishable  as  a  capital 
offence,  shall,  from  and  after  the  passage  of  the 
present  act,  be  no  longer  punishable  as  a  capital 
offence,  but  shall  be  punished  in  the  manner  pre- 
scribied  in  the  present  act,  and  not  otherwise." 

4.  The  second  section  of  said  act  declares  that 
if  any  one  or  more  of  the  crew  of  any  American 
ship  or  vessel  on  the  high  seas,  or  any  other  waters, 
within  the  admiralty  and  maritime  jurisdiction  of 
the  United  States,  shall  endeavor  to  make  a  revolt 
or  mutiny  on  board  such  ship  or  vessel,  or  shall 
combine,  conspire,  or  confederate  with  any  other 
person  or  persons  on  board  to  make  such  revolt  or 
mutiny,  or  shall  solicit,  incite,  or  stir  up  any  other  or 
others  of  the  crew  to  disobey  or  resist  the  lawful  orders 
of  the  master  or  other  officer  of  such  ship  or  vessel, 
or  to  refuse  or  neglect  their  proper  duty  on  board 
thereof,  or  to  betray  their  proper  trust  therein,  or 
shall  assemble  with  others  in  a  tumultuous  and 
mutinous  manner  or  make  a  riot  on  board  thereof, 
every  such  person  so  offending  shall,  on  conviction 
thereof,  be  punished  by  fine  not  exceeding  one 
thousand  dollars,  or  by  imprisonment  not  exceed- 
ing five  years,  or  by  both,  according  to  the  nature 
and  aggravation  of  the  offence. 

Revolts  on  shipboard  are  to  be  considered  as  de- 
VoL.  II.— 31 


fined  by  the  last-mentioned  act.  1  Woodb.  &  M. 
C.  C.  306.    See  Brightly,  Dig.  210,  211. 

A  confederacy  or  combination  must  be 
shown.  2  8umn.  C.  C.  582 ;  1  Woodb.  &  M. 
C .  C.  305  ;  Crabbe,  Dist.  Ct.  558.  The  vessel 
must  be  properly  registered,  3  Sumn  C.  C. 
342 ;  must  be  pursuing  her  regular  voyage. 
2  Sumn.  C.  C.  470.  The  indictment  must 
specifically  set  forth  the  acts  which  constitute 
the  crime.  Wharton,  Prec.  §  1061,  n.  And 
see  1  Mas.  C.  C.  147  ;  5  id.  402,  404;  1  Sumn. 
C.  C.  448;  4  Wash.  C.  C.  402,  528 ;  2  Curt. 
C.  C.  225  ;  1  Pet.  C.  C.  213. 

REWARD.  An  offer  of  recompense 
given  by  authority  of  law  for  the  perform- 
ance of  some  act  for  the  public  good,  which, 
when  the  act  has  been  performed,  is  to  be 
paid.    The  recompense  actually  so  paid. 

Si.  A  reward  may  be  offered  by  the  gov- 
ernment or  by  a  private  person.  In  criminal 
prosecutions,  a  person  may  be  a  competent- 
witness  although  he  expects  on  conviction  of 
the  prisoner  to  receive  a  reward.  1  Leach, 
Cr.  Cas.  314,  n. ;  9  Barnew.  &  C.  556;  1 
Leach,  134 ;  1  Hayw.  No.  C.  3  ;  1  Root,  Conn. 
249  ;  Starkie,  Ev.'pt.  4,  pp.  772,  773  ;  Roscoe, 
Crim.  Ev.  104;  1  Chitty,  Crim.  Law,  881  ; 
Hawkins,  PI.  Cr.  b.  2,  c.  12,  sa.  21-38 ;  4 
Blackstone,  Comm.  294;  Burn,  Just.  Felony, 
iv.    See  6  Humphr.  Tenn.  113. 

3.  By  the  common  law,  informers  who 
are  entitled  under  penal  statutes  to  part  of 
the  penalty  are  not,  in  general,  competent 
witnesses.  But  when  a  statute  can  receive 
no  execution  unless  a  party  interested  be  a 
witness,  then  it  seems  proper  to  admit  him  ; 
for  the  statute  must  not  be  rendered  inef- 
fectual for  want  of  proof.  Gilbert,  Ev.  114. 
In  many  acts  of  the  legislature  there  is  a  pro- 
vision that  the  informer  shall  be  a  witness 
notwithstanding  the  reward.  1  Phillipps, 
Ev.  92,  99. 

RHODE  ISLAND.  One  of  the  original 
thirteen  states  of  tho  United  States  of  Ame- 
rica ;  its  full  style  being,  "  The  State  of 
Rhode  Island  and  Pr  evidence  Plantations." 

2.  Its  territory  lies  1  etween  Massachusetts  an-i 
Connecticut,  in  the  soutl  west  angle  of  that  portion  ol 
the  territory  of  the  former  state  which  was  known  r.s 
the  colony  of  New  Plymouth,  and  is  situated  at  the 
head  and  along  both  shores  of  the  Narragansett 
bay,  comprising  the  islands  in  the  same,  the  prin- 
cipal of  which  is  Rhode  Island,  placed  at  the  mouth 
of  the  bay.  It  contains  a  population  of  about  one 
hundred  and  fifty  thousand.  The  settlement  was 
commenced  as  early  as  June,  1636,  on  the  present 
site  of  the  city  of  Providence,  by  five  men  under 
Roger  Williams.  Williams  founded  his  colony 
upon  a  compact  which  bound  the  settlers  to  obe 
dience  to  the  major  part  "only  in  civil  things:" 
leaving  to  each  perfect  freedom  in  matters  of  reli- 
gious concernment,  so  that  he  did  not,  by  his  reli- 
gious practices,  encroach  upon  the  public  order  and 
peace.  A  portion  of  the  Massachusetts  colonists, 
who  were  of  the  Antinomian  party,  after  their 
defeat  in  that  colony  settled  on  the  island  of  Aquet- 
net,  now  Rhode  Island,  where  they  associated 
themselves  as  a  colony  on  the  7th  of  March,  1638. 
These  settlements,  together  with  one  at  Shawomet, 
now  Warwick,  made  by  another  sect  of  religious 
outcasts,  under  Gorton,  in  1642-3,  remained  under 
separate  voluntary  governments  until  1647,  when 


RHODE  ISLAND 


482 


RHODE  ISLANC 


they  were  united  under  one  government,  styled 
"  The  Incorporation  of  Providence  Plantations  in 
the  Narragansett  Bay  in  New  England,"  by  virtue 
of  a  charter  granted  in  1643. 

3.  This  colony  remained  under  this  charter,  which, 
upon  S'jme  divisions,  was  confirmed  by  Cromwell 
in  1055,  until  after  the  restoration,  when  a  new 
charter  was  procured  from  Charles  II.,  in  the  fif- 
teenth year  of  his  reign,  under  which  a  new  colo- 
nial government  was  formed  on  the  24th  of  Novem- 
ber, 1663,  which  continued,  with  the  short  interrup- 
tion of  the  colonial  administration  of  Sir  Edmund 
Andros,  down  to  the  period  of  the  American  revo- 
lution. Under  both  the  parliamentary  charter 
which  was  procured  by  Williams,  the  founder  of 
the  settlement  at  Providence,  and  the  royal  charter 
which  was  procured  by  John  Clark,  one  of  the 
founders  of  the  settlement  at  Aquetnet,  religious 
liberty  was  carefully  protected.  By  the  parliament- 
ary charter,  the  colony  was  authorized  to  make 
only  "  such  civil  laws  and  constitution  as  they  or 
the  greatest  part  of  them  shall  by  free  consent 
agree  unto;"  and  the  royal  charter,  reciting  ''that 
it  is  much  on  the  hearts"  of  the  colonists,  if  they 
may  be  permitted,  to  hold  forth  a  lively  experi- 
ment, that  a  most  flourishing  civil  state  may  stand 
and  best  be  maintained,  and  that  amongst  our  Eng- 
lish subjects  with  full  liberty  in  religious  concern- 
ments," expressly  ordained  "that  no  person  within 
said  colony,  at  any  time  hereafter,  shall  be  any 
wise  molested,  punished,  disquieted,  or  called  in 
question  for  any  differences  in  opinion  in  matters 
of  religion,  and  do  not  actually  disturb  the  civil 
peace  of  our  said  colony ;  but  that  all  and  every 
person  or  persons  may,  from  time  to  time  and  at 
all  times  hereafter,  freely  and  fully  have  and  enjoy 
his  and  their  own  judgments  and  consciences  in 
matters  of  religious  concernments,  throughout  the 
tract  of  land  hereafter  mentioned,  they  behaving 
themselves  peaceably  and  quietly,  and  not  using 
the  liberty  to  licentiousness  and  profaneness,  nor 
to  the  civil  injury  or  outward  disturbance  of 
others ;  any  law,  statute,  or  clause  therein  contained 
or  to  be  contained,  usage  or  custom  of  this  realm, 
to  the  contrary  hereof,  in  any  wise  notwithstand- 
ing." 

4.  In  the  general  assembly  of  the  colony,  on 
the  first  Wednesday  of  May,  1776,  in  anticipation 
of  the  declaration  of  independence,  an  act  was 
passed  which  absolved  the  colonists  from  their  al- 
legiance to  the  king  of  Great  Britain,  and  which 
ordered  that  in  future  all  writs  and  processes  should 
issue  in  the  charter  name  of  "The  Governor  and 
Company  of  the  English  Colony  of  Rhode  Island 
and  Providence  Plantations,"  instead  of  the  name 
of  the  king.  The  old  colonial  charter,  together 
with  a  bill  of  rights  adopted  by  the  general  assem- 
bly, remained  the  sole  constitution  of  state  govern- 
ment until  the  first  Tuesday  in  May,  1843,  when  a 
state  constitution  framed  by  a  convention  as- 
sembled in  November,  1842,  and  adopted  by  the 
people  of  the  state,  went  into  operation. 

The  third  article  of  this  constitution  distributes 
the  powers  of  government  into  the  legislative,  exe- 
cutive, and  judicial. 

5.  The  fourth  article  regulates  the  legislative 
power.  It  provides  that  the  constitution  shall  be 
the  supreme  law,  and  the  general  assembly  shall 
pass  laws  to  carry  it  into  effect;  that  there  shall 
be  a  senate  and  house  of  representatives,  consti- 
tuting together  the  general  assembly,  and  that  a 
concurrence  of  these  two  houses  shall  be  necessary 
to  the  validity  of  a  law;  that  there  shall  be  one  ses- 
sion, to  be  holden  at  Newport,  commencing  the 
last  Tuesday  in  May,  and  an  adjournment  from  the 
Bamo  held  annually  at  Providence,  Amend.  1854, 
art.  iii. ;  that  members  shall  not  take  fees  or  be 
of  counsel  in  any  case  pending  before  either  house, 
under  penalty  of  expulsion;  against  arrest  of  the 


person  and  attachment  of  the  property  of  the 
members  during  the  session  and  two  days  before 
and  after:  for  freedom  of  debate;  that  each  house 
shall  judge  the  qualifications  of  its  members,  see 
Amend,  art.  i.,  as  to  evidence  required;  what 
shall  be  a  quorum,  and  for  continuing  the  session 
without  a  quorum;  that  each  house  may  prescribe 
rules  of  proceedings,  and  punish  and  expel  members ; 
for  keeping  a  journal  of  its  proceedings;  for  not 
adjourning,  without  consent  of  the  other  house,  for 
more  than  two  days  at  a  time;  that  the  assembly 
shall  exercise  all  their  usual  powers,  though  not 
granted  by  this  constitution  ;  for  regulating  the 
pay  of  members  and  all  other  officers.  It  also 
provides  for  abolishing  lotteries;  for  restricting  the 
power  to  create  a  debt  of  more  than  fifty  thousand 
dollars,  except  in  time  of  war  or  invasion  or 
insurrection,  without  the  express  consent  of  the 
people ;  that  the  assent  of  two-thirds  of  the  members 
of  each  house  shall  be  required  to  a  bill  appropri- 
ating public  money  for  local  or  private  purposes; 
that  new  valuations  of  property  may  be  made  by 
order  of  the  assembly  for  purposes  of  taxation; 
that  laws  may  be  passed  to  continue  officers  in 
office  till  their  successors  are  chosen  ;  that  no  bill  to 
create  a  corporation  other  than  for  religious,  chari- 
table, or  literary  purposes,  or  for  a  military  or  fire 
company,  shall  be  passed  by  the  assembly  to  which 
it  is  first  presented;  for  joining  to  elect  senators  in 
congress. 

6.  It  is  also  provided  that  amendments  to  the 
constitution  may  be  proposed  to  the  people  by  vote 
of  a  majority  of  all  the  members  elected  to  each 
house;  that  these  amendments  shall  be  read,  at  the 
annual  election  of  members  of  the  houses,  by  the 
clerks  of  the  towns  and  cities :  if  the  propositions 
are  again  approved  by  a  majority  of  the  members 
of  both  houses  then  elected,  they  are  to  be  sub- 
mitted to  the  electors,  and  if  approved  by  three-fifths 
of  those  voting  they  are  adopted. 

The  Legislative  Poicer. 

The  Senate.  The  sixth  article  of  the  constitu- 
tion provides  that  it  shall  consist  of  the  lieutenant- 
governor  and  one  senator  from  each  town  or  city 
in  the  state;  the  governor,  and  in  his  absence  the 
lieutenant-governor,  shall  preside,  and  may  vote 
only  in  case  of  a  tie ;  that  the  senate  may  elect  a 
presiding  oflScer  in  case  of  the  death  or  disability 
of  the  governor  and  lieutenant-governor;  that  the 
secretary  of  state  shall  be  secretary  of  the  senate, 
unless  otherwise  provided  by  law,  and  shall  preside 
over  the  senate  in  case  of  death  of  the  presiding 
officer,  till  a  new  one  is  chosen. 

The  House  of  Representatives.  The  fifth  article 
provides  that  it  shall  not  exceed  seventy-two 
members,  elected  on  the  basis  of  population,  giving 
each  town  and  city  one  at  least,  and  one  for  more 
than  half  the  ratio,  allowing  reappointment  after 
each  United  States  census,  and  forbidding  district- 
ing any  town  or  city;  that  the  house  shall  elect  its 
presiding  officer,  and  the  senior  members  from  the 
town  of  Newport  shall  preside  in  the  organization. 

The  Executive  Power. 

7.  The  seventh  article  provides  that  the  chief 
executive  power  of  the  state  shall  be  vested  in  a 
governor,  who,  together  with  a  lieutenant-governor, 
shall  be  annually  elected  by  the  people;  that  the 
governor  shall  take  care  that  the  laws  be  faithfully 
executed;  that  he  shall  be  captain-general  and 
commander-in-chief  of  the  military  and  naval  force 
of  the  state,  except  when  they  shall  be  called  into 
the  service  of  the  United  States  ;  that  he  shall  have 
power  to  grant  reprieves  after  conviction,  in  all 
cases  except  those  of  impeachment,  until  the  end 
of  the  next  session  of  the  general  assembly;  that 
ho  may  fill  vacancies  in  office  not  otherwise  pro- 
vided for  by  this  constitution,  or  by  law,  until  the 
same  shall  be  filled  by  the  general  assembly  or  by 


483        RIEN  PASSA  PAR  LE  FAIT 


RHODE  ISLAND 


"the people;  that  he  may  adjourn  the  houses,  in  case 
of  disagreement  a;s  to  time  of  adjournment,  till  the 
time  fur  the  next  session,  or  for  «  shorter  period; 
that  he  may  convene  the  assembly  at  a  time  or 
place  not  provided  for  by  law,  in  case  of  necessity; 
that  he  shall  sign  ail  commissions,  and  thatthe  secre- 
tary of  state  shall  attest  them;  that  the  lieutenant- 
governor  shall  supply  the  place  in  case  of  vacancy 
lor  inability  of  the  governor  to  till  the  office ;  thatthe 
Ipresidcnt  of  the  senate  shall  act  as  governor  if  the 
governor  and  lieutenant-governor's  offices  be  va- 
cant; that  the  compensation  of  the  governor  and 
lieutenant-governor  shall  be  fixed  by  law,  and  not 
diminished  during  their  term  of  office;  that  the 
governor,  by  and  with  the  advice  and  consent  of 
the  senate,  shall  hereafter  exclusively  exerci.-e  the 
pardoning  power,  except  in  cases  of  impeachment, 
to  the  same  extent  as  such  power  is  now  exercised 
by  the  general  assembly.  Amend,  art.  ii. ;  that 
the  duties  and  powers  of  the  secretary,  attorney- 
general,  and  general  treasurer  shall  be  the  same 
under  this  constitution  as  are  now  established,  or 
as  from  time  to  time  may  be  prescribed  by  law. 

The  Judicial  Poicer. 
!  8.  The  Supreme  Court  consists  of  a  chief  justice 
and  three  associate  justices,  elected  by  the  two 
houses  of  the  assembly  in  grand  committee.  They 
are  to  hold  office  until  their  places  are  declared 
vacant  by  a  resolution  passed  by  a  majority  of  both 
houses  at  the  annual  session  for  electing  officers, 
unless  removed  by  impeachment.  In  case  of  va- 
cancy by  death,  resignation,  removal  from  the 
state  or  from  office,  refusal  or  inability  to  serve,  of 
any  judge  of  the  supreme  court,  the  office  may  be 
filled  by  the  grand  committee,  until  the  next  an- 
nual election  ;  and  the  judge  then  elected  holds  his 
office  as  before  provided.  In  case  of  impeachment 
or  temporary  absence  or  inability,  the  governor 
may  appoint  a  person  to  discharge  the  duties  of 
the  office  during  the  vacancy  caused  thereby. 

This  court  has  original  jurisdiction  of  all  civil 
actions,  as  well  between  the  state  and  its  citizens  as 
between  citizens,  where  the  damages  laid  exceed 
one  hundred  dollars;  and  of  all  criminal  proceed- 
ings, concurrently  with  the  court  of  common  pleas: 
and  exclusive  jurisdiction  over  crimes  for  which 
the  punishment  is  imprisonment  for  life;  has  a 
general  superintendence  of  all  courts  of  inferior 
jurisdiction;  has  exclusive  authority  to  issue  writs 
of  error,  certiorari,  mandamus,  prohibition,  quo  war- 
ranto, to  entertain  informations  in  the  nature  of 
quo  warranto ;  has  exclusive  cognizance  of  all  pe- 
titions for  divorce,  separate  maintenance,  alimony, 
custody  of  children,  and  all  petitions  for  relief  of 
insolvents ;  and  exclusive  jurisdiction  in  equity. 
It  is  also  the  supreme  court  of  probate.  Two  ses- 
sions are  held  annually  in  each  county  in  the  state, 

9.  The  Court,  of  Common  Pleas  is  held  by  some 
one  of  the  justices  of  the  supreme  court,  desig- 
nated for  that  purpose  by  the  justices  of  that  court. 
This  court  has  original  jurisdiction  of  all  civil 
actions  which  involve  title  to  real  estate  or  where 
real  estate  is  attached,  if  the  amount  exceed  fifty 
dollars,  except  in  case  of  certain  writs.  It  has 
jurisdiction,  concurrently  with  the  supreme  court, 
of  all  crimes, — but  if  the  prisoner  be  arraigned  for 
%  crime  punishable  by  imprisonment  for  life,  the 
case  must  be  certified  to  the  supreme  court;  and 
also  of  actions  to  recover  possession  of  lands  from 
tenants  at  will,  sufferance,  and  the  like.  It  has 
appellate  jurisdiction  in  civil  and  criminal  cases 
from  justices  of  the  peace  and  the  magistrates' courts. 
Two  sessions  of  this  court  are  held  annually  in  each 
county.  Special  terms  of  this  court  are  also  held, 
for  which  no  jury  is  to  be  summoned  unless  re- 
quired by  notice  from  one  of  the  parties  to  the  suit. 
It  has  concurrent  jurisdiction  with  the  supreme 
court 


Justices  of  the  I'eace  are  elected  for  one  year  by 
the  several  towns,  and  also  by  the  general  assembly 
in  their  discretion  as  to  the  number  in  each  town. 
They  have  original  and  exclusive  jurisdiction  of 
all  civil  actions  for  less  than  fifty  dollars,  except 
where  the  title  to  land  is  involved. 

A  Court  of  Magistrates  exists  in  the  larger  cities, 
composed  of  one  or  more  justices,  which  has  exclu- 
sive jurisdiction,  within  specified  limits,  over  all 
cases  where  jurisdiction  is  given  to  justices  of  tho 
peace,  civil  and  criminal.  The  justices  of  this  court 
are  elected  by  the  general  assembly  in  convention 
among  the  justices  of  the  district. 

Courts  of  Probate  are  held  by  the  town  councils 
of  the  various  towns,  except  in  Providence,  where 
the  municipal  court  acts  as  a  probate  court.  This 
court  has  jurisdiction  of  the  settlement  of  estates 
of  deceased  persons,  supervision  of  guardians, 
probate  of  wills,  and  other  similar  matters,  with  a 
right  of  appeal  to  the  supreme  court. 

RHODIAN  LAWS.  A  code  of  mari- 
time laws  adopted  by  the  people  of  Rhodes, 
who  had  by  their  commerce  and  naval  vic- 
tories obtained  the  sovereignty  of  the  sea, 
about  nine  hundred  years  before  the  Chris- 
tian era.  There  is  reason  to  suppose  this 
code  has  not  been  transmitted  to  posterity,  at 
least  not  in  a  perfect  state.  A  collection  of 
marine  constitutions,  under  the  denomination 
of  Rhodian  Laws,  may  be  seen  in  Vinnius ; 
but  they  bear  evident  marks  of  a  spurious 
origin.  See  Marshall,  Ins.  b.  1,  c.  4,  p.  15  ; 
Code. 

RIAL  OF  PLATE.  A  Spanish  coin 
computed  in  custom-house  calculations  at  ten 
cents.    1  Story,  U.  S.  Laws,  626. 

RIAL  OF  VELLON.  A  Spanish  coin, 
computed  in  custom-house  calculations  at 
five  cents.    1  Story,  U.  S.  Laws,  626. 

RIBAUD.  A  rogue ;  a  vagrant.  It  is 
not  used. 

RIDER.  A  schedule  or  small  piece  of 
paper  or  parchment  added  to  some  part  of 
the  record :  as,  when  on  the  reading  of  a 
bill  in  the  legislature  a  new  clause  is  added, 
this  is  tacked  to  the  bill  on  a  separate  piece 
of  paper,  and  is  called  a  rider. 

RIDING.  In  English  Law.  An  ascer- 
tained district ;  part  of  a  county.  This 
term  has  the  same  meaning  in  Yorkshire 
that  division  has  in  Lincolnshire.  4  Term, 
459. 

RIEN.  A  French  word  which  signifies 
nothing.  It  has  generally  this  meaning:  as, 
rien  en  arrere;  rien  passe  per  lefait,  nothing 
passes  by  the  deed  ;  rien  per  descent,  nothing 
by  descent:  it  sometimes  signifies  not,  as, 
rien  culpable,  not  guilty.  Doctrina  Plac 
435. 

RIEN  EN  ARRERE  (L.  Fr.  nothing  in 
arrear).  In  Pleading.  A  plea  which  alleges 
that  there  is  nothing  remaining  due  and  un- 
paid of  the  plaintiff's  demand.    It  is  a  good 

f)lea,  and  raises  the  general  issue  in  an  action 
or  rent.  2  Wms.  Saund.  297,  n.  1 ;  2  Chitty, 
Plead.  486;  2  Ld.  Raym.  1503. 

RIEN  PASSA  PAR  LE  FAIT  (L.  Fr. 
nothing  passed  by  the  deed).  In  Pleading. 
A  plea  which  avoids  the  effect  of  a  deed 


RIGHT 


484 


JRIGHT 


where  its  execution  cannot  be  denied,  by 
asserting  that  nothing  passed  thereby:  for 
example,  an  allegation  that  the  acknowledg- 
ment was  before  a  court  which  had  not  juris- 
diction. 

RIGHT.  A  -well-founded  claim. 
2.  If  people  believe  thathumanity  itself  establishes 
or  proves  certain  claims,  either  upon  fellow-beings, 
or  upon  society  or  government,  they  call  these 
claims  human  rights ;  if  they  believe  that  these 
claims  inhere  in  the  very  nature  of  man  himself, 
they  call  them  inherent,  inalienable  rights;  if 
peoi)le  believe  that  there  inheres  in  monarchs  a 
claim  to  rule  over  their  subjects  by  divine  appoint- 
ment, they  call  the  claim  divine  right, ^us  divinum  ; 
if  the  claim  is  founded  or  given  by  law,  it  is  a  legal 
right.  The  ideas  of  claim  and  that  the  claim 
must  be  well  founded  always  constitute  the  idea 
of  right.  Rights  can  only  inhere  in  and  exist 
between  moral  beings;  and  no  moral  beings  can 
coexist  without  rights,  consequently  without  obli- 
gations. Eight  and  obligation  are  correlative  ideas. 
The  idea  of  a  well-founded  claim  becomes  in  law  a 
claim  founded  in  or  established  by  the  law :  so  that 
we  may  say  a  right  in  law  is  an  acknowledged 
claim. 

Men  are  by  their  inherent  nature  moral  and 
social  beings :  they  have,  therefore,  mutual  claims 
upon  one  another.  Every  well-grounded  claim  on 
others  is  called  a  right,  and,  since  the  social  cha- 
racter of  man  gives  the  element  of  mutuality  to 
each  claim,  every  right  conveys  along  with  it  the 
idea  of  obligation.  Right  and  obligation  are  cor- 
relatives. The  consciousness  of  all  constitutes  the 
first  foundation  of  the  right  or  makes  the  claim 
well  grounded.  Its  incipiency  arises  instinctively 
out  of  the  nature  of  man.  Man  feels  that  he  has  a 
right  of  ownership  over  that  which  he  has  produced 
out  of  appropriated  matter, — for  instance,  the 
bow  he  has  made  of  appropriated  wood ;  he  feels 
that  he  has  a  right  to  exact  obedience  from  his 
children,  long  before  laws  formally  acknowledge  or 
protect  these  rights;  but  he  feels,  too,  that  if  he 
claims  the  bow  which  he  made  as  his  own, he  ought 
to  acknowledge  (as  correlative  obligation)  the 
same  right  in  another  man  to  the  bow  which  he 
may  have  made ;  or  if  he,  as  father,  has  a  right  to 
the  obedience  of  his  children,  they  have  a  corre- 
sponding claim  on  him  for  protection  as  long  as 
they  are  incapable  to  protect  themselves.  The 
idea  of  rights  is  coexistent  with  that  of  authority 
(or  government) ;  both  are  inherent  in  man  ;  but  if 
we  understand  by  government  a  coherent  system 
of  laws  by  which  a  state  is  ruled,  and  if  we  under- 
stand by  state  a  sovereign  society,  with  distinct 
authorities  to  make  and  execute  laws,  then  rights 
precede  government,  or  the  establishment  of  states, 
which  is  expressed  in  the  ancient  law  maxim  :  Ne 
ex  regida  jus  sumatur,  aed  ex  jure  quod  est,  regula 
jiat.  See  Government.  We  cannot  refrain  from 
referring  the  reader  to  the  noble  passage  of  Sopho- 
cles, CEdyp.  Tyr.  876  et  seq.,  and  to  the  words  of 
Cicero,  in  his  oration  for  Milo :  Est  enim  haec, 
judices,  non  scripta  sed  nata  lex;  quam  non  di- 
dicimus,  accopimus,  legimus ;  verum  ex  natura 
ipsa  arripuimus,  hausimus,  expressimus;  ad  quam 
nun  docti  sed  facti ;  non  instituti  sed  imbuti 
sunius. 

3.  As  rights  precede  government,  so  we  find  that 
now  rights  are  acknowledged  above  governments 
and  their  states,  in  the  case  of  international  law. 
International  law  is  founded  on  rights,  that  is, 
well-grounded  claims  which  civilized  states,  as  indi- 
viduals, make  upon  one  another.  As  governments 
come  to  be  more  and  more  clearly  established, 
rights  are  more  clearly  acknowledged  and  pro- 
tected by  the  laws,  and  right  comes  to  mean  a 
claim  acknowledged  and  protected  by  the  law.  A 


legal  right,  a  constitutional  right,  means  a  riglit 
protected  by  the  law,  by  the  constitution ;  but 
government  does  not  create  the  idea  of  right  or  ori- 
ginal rights ;  it  acknowledges  them ;  just  as  govern- 
ment does  not  create  property  or  values  and  money, 
it  acknowledges  and  regulates  them.  If  it  were 
otherwise,  the  question  would  present  itself,  whence 
does  government  come?  whence  does  it  derive  its 
own  right  to  create  rights  ?  By  compact  ?  But 
whence  did  the  contracting  parties  derive  their 
right  to  create  a  government  that  is  to  make 
rights?  We  would  be  consistently  led  to  adopt  the 
idea  of  a  government  by  jua  divinum, — that  is,  a 
government  deriving  its  authority  to  introduce  and 
establish  rights  (bestowed  on  it  in  particular)  from 
a  source  wholly  separate  from  human  society  and 
the  ethical  character  of  man,  in  the  same  manner  in 
which  we  acknowledge  revelation  to  come  fr»m  a 
source  not  human. 

4:,  Rights  are  claims  of  moral  beings  upon  one 
another:  when  we  speak  of  rights  to  certain  things, 
they  are,  strictly  speaking,  claims  of  persons  on 
persons, — in  the  case  of  property,  for  in.^tance,  the 
claim  of  excluding  others  from  possessing  it.  The 
idea  of  right  indicates  an  ethical  relation,  and  all 
moral  relations  may  be  infringed ;  claims  may  b« 
made  and  established  by  law  which  are  wrong  in 
themselves  and  destitute  of  a  corollary  obligation  ; 
they  are  like  every  other  wrong  done  by  society  oi 
government;  they  prove  nothing  concerning  tl)« 
origin  or  essential  character  of  rights.    On  the 
other  hand,  claims  are  gradually  more  clearly 
acknowledged,  and  new  ones,  which  were  not  per- 
ceived in  early  periods,  are  for  the  first  time  per- 
ceived, and  surrounded  with  legislative  protection,  ,j 
as  civilization  advances.    Thus,  original  rights,  or 
the  rights  of  man,  are  not  meant  to  be  claims  , 
which  man  has  always  perceived  or  insisted  upon 
or  protected,  but  those  claims  which,  according  to  ,| 
the  person  who  uses  the  term,  logically  flow  from  the  ;j 
necessity  of  the  physical  and  moral  existence  c-f  i 
man  ;  for  man  is  born  to  be  a  man, — that  is,  to  lead  I 
a  human  existence.   They  have  been  called  inalion-  i 
able  rights;  but  they  have  been  alienated,  and '| 
many  of  them  are  not  perceived  for  long  periods.  ' 
Lieber,  in  his  Political  Ethics,  calls  them  primordial  | 
rights:  he  means  rights  directly  flowing  from  the  | 
nature  of  man,  developed   by  civilization,  and  | 
always  showing  themselves  clearer  and  clearer  ua 
society  advances.    He  enumerates,  as  such  especi-  ^ 
ally,  the  following  :  the  right  of  protection ;  the  , 
right  of  personal  freedom, — that  is,  the  claim  of  un-  '• 
restricted  action  except  so  far  as  the  same  claim  of  I 
others  necessitates  restriction :  these  two  rights ' 
involve  the  right  to  have  justice  done  by  the ) 
public  administration  of  justice,  the  right  of  pro- 
duction and  exchange  (the  right  of  property),  the 
right  of  free  locomotion  and  emigration,  the  right 
of  communion  in  speech,  letter,  print,  the  right  of 
worship,  the  right  of  influencing  or  sharing  in  the 
legislation.   All  political  civilization  steadily  tends 
to  bring  out  these  rights  clearer  and  clearer,  while 
in  the  course  of  this  civilization,  from  its  incipiency, 
with  its  relapses,  they  appear  more  or  less  de- 
veloped in  different  periods  and  frequently  wholly 
in  abeyance :  nevertheless,  they  have  their  origin 
in  the  personality  of  man  as  a  social  being. 

Publicists  and  jurists  have  made  the  following 
further  distinction  of  rights : 

5.  Rights  are  perfect  and  imperfect.  "When 
the  things  which  we  have  a  right  to  possess, 
or  the  actions  we  have  a  right  to  do,  are  or 
may  be  fixed  and  determinate,  the  right  is 
a  perfect  one ;  but  when  the  thing  or  the 
actions  are  vague  and  indeterminate,  the  i 
right  is  an  imperfect  one.  If  a  man  demand 
his  property  wliich  is  withheld  from  him,  the  i 
right  that  supports  his  demand  is  a  perfec* 


I 


RIGHT 


485 


RIGHT  OF  SEARCH 


one,  because  the  thing  demanded  is  or  may 
be  fixed  and  determinate ;  but  if  a  poor  man 
ask  relief  from  tliose  from  whom  he  has 
reason  to  expect  it,  the  right  which  supports 
his  petition  is  an  imperfect  one,  because  the 
relief  which  he  expects  is  a  vague,  indeter- 
minate thing.  Rutherforth,  Inst.  c.  2,  ^  4 ; 
Grotius,  lib.  1,  c.  1,  §  4. 

6.  Rights  are  also  absolute  and  qualified.  A 
man  has  an  absolute  right  to  recover  property 
which  belongs  to  him  ;  an  agent  has  a  quali- 
fied right  to  recover  such  property  when  it 
had  been  intrusted  to  his  care,  and  which 
has  been  unlawfully  taken  out  of  his  posses- 
sion. 

Rights  might  with  propriety  be  also  divided 
into  natural  and  civil  rights ;  but  as  all  the 
rights  which  man  has  received  from  nature 
have  been  modified  and  acquired  anew  from 
the  civil  law,  it  is  more  proper,  when  con- 
sidering their  object,  to  divide  them  into 
political  and  civil  rights. 

•y.  Political  rights  consist  in  the  power  to 
participate,  directly  or  indirectly,  in  the  esta- 
blishment or  management  of  government. 
These  political  rights  are  fixed  by  the  con- 
stitution. Every  citizen  has  the  right  of 
voting  for  public  officers,  and  of  being  elected : 
these  are  the  political  rights  which  the 
humblest  citizen  possesses. 

Civil  rights  are  those  which  have  no  rela- 
tion to  the  establishment,  support,  or  manage- 
ment of  the  government.  These  consist  in 
the  power  of  acquiring  and  enjoying  property, 
of  exercising  the  paternal  and  marital  powers, 
and  the  like.  It  will  be  observed  that  every 
one,  unless  deprived  of  them  by  a  sentence 
of  civil  death,  is  in  the  enjoyment  of  his 
civil  rights, — which  is  not  the  case  with 
political  rights ;  for  an  alien,  for  example, 
has  no  political,  although  in  the  full  enjoy- 
ment of  his  civil,  rights. 

8.  These  latter  rights  are  divided  into 
absolute  and  relative.  The  absolute  rights 
of  mankind  may  be  reduced  to  three  prin- 
cipal or  primary  articles :  the  right  of  per- 
sonal security,  which  consists  in  a  person's 
legal  and  uninterrupted  enjoyment  of  his 
life,  his  limbs,  his  body,  his  health,  and  his 
reputation;  the  right  of  personal  liberty, 
which  consists  in  the  power  of  locomotion, 
of  changing  situation  or  removing  one's  per- 
son to  whatsoever  place  one's  inclination  may 
direct,  without  any  restraint  unless  by  due 
course  of  law ;  the  right  of  property,  which 
consists  in  the  free  use,  enjoyment,  and  dis- 
posal of  all  his  acquisitions,  without  any  con- 
trol or  diminution  save  only  by  the  laws  of 
the  land.    1  Blackstone,  Comm.  124-139. 

9.  The  relative  rights  are  public  or  private: 
the  first  are  those  which  subsist  between  the 
people  and  the  government ;  as,  the  right  of 
protection  on  the  part  of  the  people,  and  the 
right  of  allegiance  which  is  due  by  the  people 
to  the  government ;  the  second  are  the  reci- 
procal rights  of  husband  and  wife,  parent 
and  child,  guardian  and  ward,  and  master 
tnd  servant. 

Rights  are  also  divided  into  legal  and 


equitable.  The  former  are  those  where  the 
party  has  the  legal  title  to  a  thing ;  and  in 
that  case  his  remedy  for  an  infringement  of 
it  is  by  an  action  in  a  court  of  law.  Al* 
though  the  person  holding  the  legal  title 
may  have  no  actual  interest,  but  hold  only 
as  trustee,  the  suit  must  be  in  his  name,  and 
not,  in  general,  in  that  of  the  cestui  qu6 
trust.  1  East,  497  ;  8  Term,  332  ;  1  Saund,  158, 
n.  1  ;  2  Bingh.  20.  The  latter,  or  equitable 
rights,  are  those  which  may  be  enforced  in  a 
court  of  equity  by  the  cestui  que  trust.  See, 
generally,  Bouvier,  Inst.  Index. 

RIGHT  or  DISCUSSION.  In 
Scotch  Law.  The  right  which  the  cau- 
tioner (surety)  has  to  insist  that  the  creditor 
shall  do  his  best  to  compel  the  performance 
of  the  contract  by  the  principal  debtor,  be- 
fore he  shall  be  called  upon.  1  Bell,  Comm. 
5th  ed.  347. 

RIGHT  OF  DIVISION.  In  Scotch 
Law.  The  right  which  each  of  several 
cautioners  (sureties)  has  to  refuse  to  answer 
for  more  than  his  own  share  of  the  debt.  To 
entitle  the  cautioner  to  this  right,  the  other 
cautioners  must  be  solvent,  and  there  must 
be  no  words  in  the  bond  to  exclude  it.  1 
Bell,  Comm.  5th  ed.  347. 

RIGHT  OF  HABITATION.  In 
Louisiana.  The  right  of  dwelling  gratui- 
tously in  a  house  the  property  of  another. 
La.  Civ.  Code,  art.  623;  3  Tou'llier,  c.  2,  p. 
325  ;  14  id.  n.  279,  p.  330 ;  Pothier,  n.  22 
-25. 

RIGHT  OF  POSSESSION.  The 

right  to  possession  which  may  reside  in  one 
man,  while  another  has  the  actual  possession, 
being  the  right  to  enter  and  turn  out  such 
actual  occupant:  e.g.  the  right  of  a  disseisee. 
An  apparent  right  of  possession  is  one  which 
may  be  defeated  by  a  better ;  an  actual  right 
of  possession,  one  which  will  stand  the  test 
against  all  opponents.  2  Sharswood,  Blackst. 
Comm.  196*. 

RIGHT  OF  PROPERTY.  The  ab- 
stract right  {merum  jus)  which  remains  after 
the  actual  possession  has  been  so  long  gone 
that  the  right  of  possession  is  also  lost,  and  the 
law  will  only  allow  recovery  of  the  land  by  a 
writ  of  right.  It,  together  with  possession 
and  right  of  possession,  makes  a  perfect  title: 
e.g.  a  disseisor  has  naked  possession,  the  dis- 
seisee has  right  of  possession  and  right  of 
property.  But  after  twenty  years  without 
entry  the  right  of  possession  is  transferred 
from  the  disseisee  to  the  disseisor ;  and  if  he 
now  buys  up  the  right  of  property  which 
alone  remains  in  the  disseisee,  the  disseisor 
will  unite  all  three  rights  in  himself,  and 
thereby  acquire  a  perfect  title.  2  Shars- 
wood, 'Blackst.  Comm.  197-199*. 

RIGHT  OF  RELIEF.  In  Scotch 
Law.  The  right  which  the  cautioner  (surety) 
has  against  the  principal  debtor  when  he  has 
been  forced  to  pay  his  debt.  1  Bell.  Comm. 
5th  ed.  347. 

RIGHT  OF  SEARCH.    See  Search, 


RIGHT  TO  BEGIN 


486 


RIOT 


RiGUT  of;  1  Kent,  Comm.  9th  ed.  153,  n. ;  1 
Phillimore,  Int.  Law,  325. 

RIGHT   TO   BEGIN.     In  Practice. 

The  party  who  asserts  the  affirmative  of  an 
issue  has  the  right  to  begin  and  reply,  as  on 
him  is  the  burden  of  proof.  The  substantial 
affirmative,  not  the  verbal,  gives  the  right.  1 
Greenleaf,  Ev.  ^  74 ;  18  B.  Monr.  Ky.  136 ;  6 
Ohio  St.  307 ;  2  Gray,  Mass.  260. 

RIGHT  PATENT.  The  name  of  an 
ancient  writ,  which,  Fitzherbert  says,  "ought 
to  be  brought  of  lands  and  tenements,  and 
not  of  an  advowson,  or  of  common,  and  lieth 
only  of  an  estate  of  fee-simple,  and  not  for 
him  who  has  a  lesser  estate,  as  tenant  in  tail, 
tenant  in  frank-marriage,  or  tenant  for  life.'' 
Fitzherbert,  Nat.  Brev.  1. 

RING-DROPPING.  In  Criminal 
Law.  A  phrase  applied  in  England  to  a 
trick  frequently  practised  in  committing  lar- 
cenies. It  is  difficult  to  define  it:  it  will 
be  sufficiently  exemplified  by  the  following 
cases.  The  prisoner,  with  some  accomplices, 
being  in  company  with  the  prosecutor,  pre- 
tended to  find  a  valuable  ring  wrapped  up  in 
a  paper,  appearing  to  be  a  jeweller^s  receipt 
for  "a  rich  brilliant  diamond  ring.''  They 
ofiered  to  leave  the  ring  with  the  prosecutor 
if  he  would  deposit  some  money  and  his 
watch  as  a  security.  The  prosecutor,  having 
accordingly  laid  down  his  watch  and  money 
on  a  table,  was  beckoned  out  of  the  room  by 
one  of  the  confederates,  while  the  others  took 
away  his  watch  and  money.  This  was  held 
to  amount  to  a  larceny.  1  Leach,  Cr.  Cas.  238 ; 
2  East,  PI.  Cr.  678.  In  another  case,  under 
similar  circumstances,  the  prisoner  procured 
from  the  prosecutor  twenty  guineas,  pro- 
mising to  return  them  the  next  morning,  and 
leaving  the  false  jewel  with  him.  This  was 
also  held  to  be  larceny.  1  Leach,  Cr.  Cas. 
314 ;  2  East,  PI.  Cr.  679.  In  these  cases  the 
prosecutor  had  no  intention  of  parting  with 
the  property  in  the  money  or  goods  stolen. 
It  was  taken,  in  the  first  case,  while  the 
transaction  was  proceeding,  without  his  know- 
ledge; and  in  the  last,  under  the  promise 
that  it  should  be  returned.  See  2  Leach,  Cr. 
Cas.  640. 

RINGING  THE  CHANGE.  In 
Criminal  Law.  A  trick  practised  by  a 
criminal,  by  which,  on  receiving  a  good 
piece  of  money  in  payment  of  an  article,  he 
pretends  it  is  not  good,  and,  changing  it,  re- 
turns to  the  buyer  a  spurious  coin.  For  ex- 
ample, the  prosecutor  having  bargained  with 
the  prisoner,  who  was  selling  fruit  about  the 
streets,  to  have  five  apricots  for  sixpence,  gave 
him  a  good  shilling  to  change.  The  prisoner 
put  the  shilling  into  his  mouth,  as  if  to  bite  it 
m  order  to  try  its  goodness,  and,  returning  a 
shilling  to  the  prosecutor,  told  him  it  was  a 
bad  one.  The  prosecutor  gave  him  another 
good  shilling,  which  he  also  affected  to  bite, 
and  then  returned  another  shilling,  saying 
it  W5t«>  a  bad  one.  The  prosecutor  gave  him 
another  good  sliilling,  with  which  he  prac- 


tised this  trick  a  third  time ;  the  shillings  re- 
turned by  him  being  in  every  respect  bad, 
2  Leach,  Cr.  Ca*s.  64.  This  was  held  to  be  an 
uttering  of  false  money.  1  Russell,  Crimes, 
114. 

RINGS-GIVING.  The  giving  of  golden 
rings  by  a  newly-created  serjeant-atrlaw  to 
every  person  of  rank  at  court,  from  the 
princes  of  the  blood,  through  the  lords  in 
parliament  and  the  justices  and  barons  of  the 
courts,  down  to  the  meanest  clerk  of  com- 
mon pleas,  to  each  one  according  to  his  dig- 
nity. The  expense  was  not  less  than  forty 
pounds  English  money.  Fortesque,  Amos 
ed.  190;  10  Coke,  Introd.  23. 

RIOT.  In  Criminal  Law.  A  tumult- 
uous disturbance  of  the  peace  by  three 
persons  or  more,  assembling  together  of  their 
own  authority  with  an  intent  mutually  to 
assist  each  other  against  any  who  shall  op- 
pose them,  in  the  execution  of  some  enterprise 
of  a  private  nature,  and  afterwards  actually 
executing  the  same  in  a  violent  and  turbu- 
lent manner,  to  the  terror  of  the  people, 
whether  the  act  intended  were  of  itself  law- 
ful or  unlawful.  Hawkins,  PI.  Cr.  c.  65,  §  1. 
See  3  Blackf.  Ind.  209;  4  id.  72;  3  Rich. 
So.  C.  337  ;  5  Penn.  St.  83. 

2.  In  this  case  there  must  be  proved— 

an  unlawful  assembling,  15  N.  H.  169 ;  for 
if  a  number  of  persons  lawfully  met  together, 
as,  for  example,  at  a  fire,  or  in  a  theatre  or  a 
church,  should  suddenly  quarrel  and  fight, 
the  offence  is  an  afiray,  and  not  a  riot,  be- 
cause there  was  no  unlawful  assembling; 
but  if  three  or  more  being  so  assembled, 
on  a  dispute  occurring,  form  into  parties 
with  promises  of  mutual  assistance,  which 
promises  may  be  express,  or  implied  from 
the  circumstances,  then  the  offence  will  no 
longer  be  an  affray,  but  a  riot;  the  unlawful 
combination  will  amount  to  an  assembling 
within  the  meaning  of  the  law.  In  this  manner 
any  lawful  assembly  may  be  converted  into  a 
riot..  18  Me.  346;  2  Campb.  328.  Any  one 
who  joins  the  rioters  after  they  have  actually 
commenced  is  equally  guilty  as  if  he  had 
joined  them  while  assembling. 

3.  Secondly,  proof  must  be  made  of  actual 
violence  and  force  on  the  part  of  the  rioters, 
or  of  such  circumstances  as  have  an  appar 
rent  tendency  to  force  and  violence,  and  cal- 
culated to  strike  terror  into  the  public  mind, 
2  Campb.  369.  The  definition  requires  that 
the  ofienders  should  assemble  of  their  own 
authority,  in  order  to  create  a  riot:  if,  there- 
fore, the  parties  act  under  the  authority  of 
the  law,  they  may  use  any  necessary  force  to 
enforce  their  mandate,  without  committing 
this  offence.    See  1  Hill,  So.  C.  362. 

4.  Thirdly,  evidence  must  be  given  that 
the  defendants  acted  in  the  riot  and  were 
participants  in  the  disturbance.  1  Morr. 
Tenn.  142.  It  is  sufficient  if  they  be  present 
encouraging  or  giving  countenance,  support, 
or  acquiescence  to  the  act.  9  Miss.  270.  See 
1  Russell,  Crimes,  247 ;  Viner,  Abr. ;  Hawkins, 

I  PI.  Cr.  c.  65,  U  1,  8,  9:  Coke,  3d  Inst.  170; 


RIOTOUISLY 


487 


RIVER 


4  Blaekstono,  Comm.  14G;  Comyns,  Dig.; 
lloscoe,  Crirn.  Ev. 

RIOTOUSLY.  In  Pleading.  A  tech- 
nical word,  properly  used  in  an  indictment 
for  a  riot,  w  hich  of  itself  implies  violence. 

2  Sess.  Cas.  Sc.  13  ;  2  Strange,  834 ;  2  Chitty, 
Crim.  Law,  489. 

RIP  A  (Lat.).  The  banks  of  a  river,  or 
the  place  beyond  which  the  waters  do  not  in 
their  natural  course  overflow. 

An  extraordinary  overflow  does  not  change 
the  banks  of  the  river.  Pothier,  Pand.  lib. 
50.    See  Banks;  River. 

RIPARIAN  PROPRIETORS.  Those 
who  own  the  land  bounding  upon  a  w^ater- 
course.    4  Mas.  C.  C.  397. 

Each  riparian  proprietor  owns  that  por- 
tion of  the  bed  of  the  river  (not  navigable) 
Tv^hich  is  adjoining  his  land  usque  ad  filum 
aquce ;  or,  in  other  words,  to  the  thread  or 
central  line  of  the  stream.  Hargrave, 
Tracts,  5  ;  Holt,  499  ;  3  Dane,  Abr.  4 ;  7 
Mass.  496  :  5  Wend.  N.  Y.  423 ;  26  id.  404  ; 

3  Caines,  N.  Y.  319;  20  Johns.  91;  2 
Conn.  482;  11  Ohio  St.  138;  Angell,  Wat.- 
Courses,  3-10;  Karnes,  Eq.  part  1,  c.  1,  s.  1. 
See  River;  Water-Course;  Tide-Water; 
Wharf;  Alluvion;  Avulsion. 

RIPUARIAN  LAW.  A  code  of  laws 
of  the  Franks,  who  occupied  the  country 
upon  the  Rhine,  the  Meuse,  and  the  Scheldt, 
who  were  collectively  known  by  the  name 
Ripuarians,  and  their  laws  as  Ripuarian 
law. 

RISKS  AND  PERILS.  In  Insurance. 

Those  causes  against  loss  from  which  the  in- 
surer is  to  be  protected  in  virtue  of  the  con- 
tract for  insurance. 

The  risk  or  peril  in  a  life  policy  is  death  ; 
under  a  fire  policy,  damage  by  fire ;  and 
under  a  marine  policy,  by  perils  of  the  seas, 
usually  including  fire ;  and  under  a  policy 
upon  subjects  at  risk  in  lake,  river,  or  canal 
navigation,  by  perils  of  the  same.  See  In- 
surable Interest  ;  Insurance  ;  Policy  ; 
Warranty. 

2.  Under  a  marine  insurance  the  risks 
are  from  a  certain  place  to  a  certain  other,  or 
from  one  date  to  another.  The  perils  usually 
insured  against  as  "  perils  of  the  seas"  are 
— fire,  lightning,  M'inds,  waves,  rocks,  shoals, 
and  collisions,  and  also  the  perils  of  hostile 
capture,  piracy,  theft,  arrest,  barratry,  and 
jettisons.  1  Phillips,  Ins.  ^  1099  et  seq.  But 
a  distinction  is  made  between  the  extraordi- 
nary action  of  perils  of  the  seas,  for  which 
underwriters  are  liable,  and  wear  and  tear 
and  deterioration  by  decay,  for  which  they 
are  not  liable.    1  Phillips,"  Ins.  §  1105. 

Perils  of  lakes,  rivers,  etc.  are  analogous 
to  those  of  the  seas.  1  Phillips,  Ins.  |  1099, 
n.  See,  as  to  sea  risks,  Crabbe,  405;  16 
Eng.  L.  &  Eq.  215  ;  22  id.  573 ;  27  id.  140 ; 
29  1,?.  Ill ;  32  id.  63  ;  33  id.  325  ;  34  id.  266, 
277;  36  id.  109,  455;  38  id.  39;  7  Ell.  &  i 
B.  172,  469  ;  4  Rich.  Eq.  So.  C.  416 ;  18  Mo. 
198  ;  23  Penn.  St.  65  ;  32  id.  351;  28  Me.  ' 


414;  2Paine,  C.C.  82;  16  B.  M  .nr.  Ky.  407; 
4  Du.  N.  Y.  141  ;  6  id.  191,  282  ;  13  Miss.  57 ; 
11  Ind.  171;  1  Bosw.  N.  Y.  61 ;  3  Dutch.  N.J, 
645;  13  Ala.  167;  6  Gray,  Mass.  192;  35 
N.  II.  328. 

3.  Underwriters  are  not  liable  for  loss  oc- 
casioned by  the  gross  misconduct  of  the  as- 
sured or  imputable  to  him ;  but  if  a  vessel  is 
seaworthy,  with  suitable  officers  and  crew, 
underwriters  are  liable  for  loss  though  occa- 
sioned through  the  mistakes  or  want  of  assi- 
duity and  vigilance  of  the  officers  or  men.  1 
Phillips,  Ins.  §  1049.  Underwriters  are  not 
answerable  for  loss  directly  attributable  to 
the  qualifications  of  the  insured  subject,  inde- 

Fendently  of  the  specified  risks,  1  Phillips, 
ns.  c.  xiii.  sect,  v.,  or  for  loss  distinctly  occa- 
sioned by  the  fraudulent  or  gross  negligence 
of  the  assured. 

4.  Insurance  against  illegal  risks — such 
as  trading  with  an  enemy,  the  slave-trade, 
piratical  cruisers,  and  illegal  kinds  of  busi- 
ness—is void.  1  Phillips,  Ins.  210,  691. 
Policies  usually  contain  express  exceptions 
of  some  risks  besides  those  impliedly  except- 
ed. These  may  be — in  maritiine  insurancey 
contraband  and  illicit,  interloping  trade,  vio- 
lation of  blockade,  mobs  and  civil  commo- 
tions ;  in  Jir6  policies,  loss  on  jewelry,  paint- 
ings, sculpture,  by  hazardous  trades,  etc. ;  in 
life  policies,  loss  by  suicide,  risk  in  certain 
climates  or  localities  and  in  certain  hazard- 
ous employments  without  express  permission. 
1  Phillips,  Ins.  §1  55,  63,  64.  See  Loss; 
Total  Loss  ;  Average. 

RIVER.  A  natural  stream  of  water  flow- 
ing betwixt  banks  or  walls  in  a  bed  of  con* 
siderable  depth  and  width,  being  so  called 
whether  its  current  sets  always  one  way  or 
flows  and  reflows  with  the  tide.  Woolrych, 
Wat.  40;  16N.  H.  467. 

2.  Rivers  are  either  public  or  private. 
Public  rivers  are  divided  mto  navigable  and 
not  navigable, — the  distinction  being  that 
the  former  flow  and  reflow  with  the  tide, 
while  the  latter  do  not.  Both  are  navigable 
in  the  popular  sense  of  the  term.  Angell, 
Tide-Wat.  74,  75  ;  7  Pet.  324;  5  Pick.  Mass. 
199;  26  Wend.  N.  Y.  404;  4  Barnew.  &  C. 
602 ;  5  Taunt.  705. 

At  common  law,  the  bed  or  soil  of  all  rivers 
subject  to  the  ebb  and  flow  of  the  tide,  to  the 
extent  of  such  ebb  and  flow,  belongs  to  the 
crown ;  and  the  bed  or  soil  of  all  rivers 
above  the  ebb  and  flow  of  the  tide,  or  in 
w^hich  there  is  no  tidal  eff*ect,  belongs  to  the 
riparian  proprietors,  each  owning  to  the  cen- 
tre or  thread, — ad  jilum  aqvce,v^h\ch.  see. — 
where  the  opposite  backs  belong  to  diff'erenfc 
persons.  Angell,  Tide-Wat.  20 ;  Dav.  Dist. 
Ct.  149;  5  Barnew.  &  Aid.  268.  In  this 
country  the  common  law  has  been  recognized 
as  the  law  of  many  of  the  states, — the  state 
succeeding  to  the  right  of  the  crown,  4  Pick. 
Mass.  268  ;  26  Wend.  N.  Y.  404 ;  31  Me.  9  ; 
1  Halst.  N.  J.  1 ;  2  Conn.  481;  2  Swan,  Tenn. 
j  9  ;  16  Ohio,  540  ;  4  Wise.  486  ;  but  in  Penn- 
{  sylvania,  North  Carolina,  South  Carolina, 
I  Iowa,  Mississippi,  and  Alabama,  it  has  been 


RIVER  488 


determined  that  the  common  law  does  not 
prevail,  and  that  the  ownership  of  the  bed  or 
8oil  of  all  rivers  navigable  for  any  useful 
purpose  of  trade  or  agriculture,  whether  tidal 
or  fresh-water,  is  in  the  state.  2  Binn.  Penn. 
475  ;  14  Serg.  &  R.  Penn.  71 ;  3  Ired.  No.  C. 
277  ;  1  M'Cord,  So.  C.  580 ;  3  Iowa,  1 ;  4  id. 
199  ;  29  Miss.  21 ;  11  Ala.  436.  At  common 
law,  the  ownership  of  the  crown  extends  to 
high-water  mark,  Angell,  Tide-Wat.  69-71 ; 
Woolrych,  Wat.  433-450 ;  3  Barnew.  &  Aid. 
967  ;  5  id.  26B  ;  and  in  several  states  of  this 
country  the  common  law  has  been  followed, 
12  Barb.  N.  Y.  616 ;  1  Dutch.  N.  J.  525  ;  3 
Zabr.  N.  J.  624 ;  6  Mass.  435 ;  7  Cush.  Mass.  53 ; 
14  Gray,  Mass.  ;  7  Pet.  324  ;  3  How.  221 ;  25 
Conn.  346  ;  but  in  others  it  has  been  modified 
by  extending  the  ownership  of  the  riparian 
proprietor,  subject  to  the  servitudes  of  navi- 
gation and  fishery,  to  low-water  mark,  28 
Penn.  St.  206;  1  Whart.  Penn.  124;  2  id. 
508  ;  4  Call,  Va.  441 ;  3  Rand.  Va.  33  ;  14 
B.  Monr.  Ky.  367;  11  Ohio,  138:  unless 
these  decisions  may  be  explained  as  apply- 
ing to  fresh-water  rivers.  2  Smith,  Lead. 
Cas.  224. 

3.  In  England,  many  rivers  originally  pri- 
vate have  become  public,  as  regards  the  right 
of  navigation,  either  by  immemorial  use  or 
by  acts  of  parliament.  Woolrych,  Wat.  40. 
In  this  country,  all  rivers,  whether  tidal  or 
fresh-water,  are,  of  common  right,  navigable 
highways,  if  naturally  capable  of  use  for  the 
floating  of  vessels,  boats,  rafts,  or  even  logs, 
or  *'  whenever  they  are  found  of  sufl&cient 
capacity  to  float  the  products  of  the  mines, 
the  forests,  or  the  tillage  of  the  country 
through  which  they  flow,  to  market."  8  Barb. 
N.  Y.  239  ;  18  id.  271 ;  31  Me.  9  ;  42  id.  552 ; 
20  Johns.  N.  Y.  90;  3  N.  H.  321;  10  111. 
351 ;  2  Swan,  Tenn.  9  ;  2  Mich.  519  ;  5  Ind. 
8.  The  state  has  the  right  to  improve  all 
such  rivers,  and  to  regulate  them  by  lawful  en- 
actments for  the  public  good.  4  Rich.  So.  C. 
69  ;  31  Me.  361 ;  5  Ind.  13;  29  Miss.  21.  Any 
obstruction  of  them  without  legislative  au- 
thority is  a  nuisance,  and  any  person  having 
occasion  to  use  the  river  may  abate  the  same, 
or,  if  injured  thereby,  may  receive  his  dam- 
ages from  its  author.  Angell,  Tide-Wat. 
111-123  ;  28  Penn.  St.  195  ;  4  Wise.  454;  4 
Cal.  180;  6  Cow.  N.  Y.  518;  10  Mass.  70;  5 
Pick.  Mass.  492  ;  4  Watts,  Penn.  437.  And 
see  Bridge.  By  the  ordinance  of  1787,  art. 
4,  relating  to  the  northwestern  territory,  it 
is  provided  that  the  navigable  waters  lead- 
ing into  the  Mississippi  and  St.  Lawrence, 
and  the  carrying-places  between  the  same, 
shall  be  common  highways  and  forever  free. 
3  Story,  U.  S.  Laws,  2077  ;  29  Miss.  21 ;  2 
Mich.  519. 

Rivers,  when  naturally  unfit  for  public  use, 
as  above  described,  are  called  private  rivers. 
They  are  the  private  property  of  the  ripa- 
rian proprietors,  and  cannot  be  appropriated 
to  public  use,  as  highways,  by  deepening  or 
improving  their  channels,  without  compensa- 
tion to  their  owners.  16  Ohio,  540  ;  26  Wend. 
N.  Y.  404  ;  6  Barb.  N.  Y.  265;   18  id.  277  ; 


ROBBERY 


8  Penn.  St.  379;  10  Me.  278;  1  M'Cord,  So.  C 
580.    And  see  Water-Cours"e. 

4.  A  river,  then,  may  be  considered — as 
private  in  the  case  of  shallow  and  obstructed 
streams;  as  private  property,  but  subject  to 
public  use,  when  it  can  be  navigated  ;  and  as 
public,  both  with  regard  to  its  use  and  pro 
perty.  Some  rivers  possess  all  these  qualities. 
The  Hudson  is  mentioned  as  an  instance :  in 
one  part  it  is  entirely  private  property ;  in 
another,  the  public  have  the  use  of  it ;  and 
it  is  public  property  from  the  mouth  as  high 
up  as  the  tide  flows.  Angell,  Wat.-Cour.  205, 
206  ;  6  Barb.  N.  Y.  265.  See,  generally,  La. 
Civ.  Code,  444 ;  Bacon,  Abr.  Prerogatives  [BZ); 
Jacobsen,  Sea  Laws ;  3  Kent,  Comm.  41 1-439 ; 
Woolrych,  Waters ;  Schultes,  Aquatic  Rights; 
Washburn,  Real  Prop. ;  Cruise,  Dig.  Green- 
leaf  ed. ;  Boundaries. 

RIX  DOLLAR.  The  name  of  a  coin. 
The  rix  dollar  of  Bremen  is  deemed,  as  mo- 
ney of  account  at  the  custom-house,  to  be  of 
the  value  of  seventy-eight  and  three-quarters 
cents.  Act  of  March  3,  1843.  The  rix  dol- 
lar is  computed  at  one  hundred  cents.  Act 
of  March  2, 1799,  s.  61.    See  Foreign  Coins. 

RIX  A  (Lat.).  In  Civil  Law.  A  dis- 
pute ;  a  quarrel.    Dig.  48.  8.  17. 

RIXATRIX  (Lat.).    A  common  scold. 

ROAD.  A  passage  through  the  country 
for  the  use  of  the  people.  3  Yeates,  Penn. 
421.    See  Way. 

In  Maritime  Law.  An  open  passage  of 
the  sea,  which,  from  the  situation  of  the  ad- 
jacent land  and  its  own  depth  and  wideness, 
afibrds  a  secure  place  for  the  common  riding 
and  anchoring  of  vessels.  Hale,  de  Port.  Mar. 
p.  2,  c.  2.  This  word,  however,  does  not 
appear  to  have  a  very  definite  meaning.  2 
Chitty,  Com.  Law.  4,  5. 

ROARING.  A  disease  among  horses,  oc- 
casioned by  the  circumstance  of  the  neck  of 
the  windpipe  being  too  narrow  for  accele- 
rated respiration:  the  disorder  is  frequently 
produced  by  sore  throat  or  other  topical  in- 
flammation. 

A  horse  afflicted  with  this  malady  is  ren- 
dered less  serviceable,  and  he  is,  therefore, 
unsound.    2  Stark.  81  ;  2  Campb.  523. 

ROBBER.    One  who  commits  a  robbery. 
One  who  feloniously  and  forcibly  takes  goods 
or  money  to  any  value  from  the  person 
another  by  violence  or  putting  him  in  fear. 

ROBBERY.    In  Criminal  Law.  The 

felonious  and  forcible  taking  from  the  person 
of  another,  goods  or  money  to  any  value,  by 
violence  or  putting  him  in  fear.  4  Blackst. 
Comm.  243;  1  Baldw.  C.  C.  102.  See  12 
Ga.  293. 

2.  Robbery,  by  the  common  law,  is  larceny 
from  the  person,  accompanied  by  violence  or 
by  putting  in  fear ;  and  an  indictment  there* 
for  must  allege  that  the  taking  was  from  the 
person,  and  that  it  was  by  violence  or  by 
putting  in  fear,  in  addition  to  the  averments 
that  are  necessary  in  indictments  for  other 


ROD 


489 


ROYAL  FISH 


larcenies.  Jebb,  Cr.  Cas.  62 ;  1  Leach,  Cr. 
Cas.  4th  ed.  195 ;  7  Mass.  242;  17  id.  539 ;  8 
Cush.  Mass.  215. 

3.  By  "  taking  from  the  person"  is  meant 
not  only  the  immediate  taking  from  his  per- 
son, but  also  from  his  presence  when  it  is 
done  with  violence  and  against  his  consent. 
1  Hale,  PI.  Cr.  533 ;  2  Russell,  Crimes,  01 ; 
3  Wash.  C.  C.  209;  11  Humphr.  Tenn.  1G7. 
The  taking  must  be  by  violence  or  putting 
the  owner  in  fear;  but  both  these  circum- 
stances need  not  concur;  for  if  a  man  should 
be  knocked  down,  and  then  robbed  while  he 
is  insensible,  the  offence  is  still  a  robbery.  4 
Binn.  Penn.  379.  And  if  the  party  be  put 
in  fear  by  threats  and  then  robbed,  it  is  not 
necessary  there  should  be  any  greater  vio- 
lence. 17  Mass.  539.  The  violence  or  put- 
ting in  fear  must  be  at  the  time  of  the  act 
or  immediately  preceding.    1  Carr.  &  P.  304. 

ROD.  A  measure  sixteen  feet  and  a  half 
long ;  a  perch. 

ROGATORY,  LETTERS.  See  Let- 
ters Rogatory. 

ROGUE.  A  French  word,  which  in  that 
language  signifies  proud,  arrogant.  In  some 
of  the  ancient  English  statutes  it  means  an 
idle,  sturdy  beggar,  which  is  its  meaning  in 
law.  Rogues  are  usually  punished  as  va- 
grants. Although  the  word  rogue  is  a  word 
of  reproach,  yet  to  charge  one  as  a  rogue  is 
not  actionable.  5  Binn.  Penn.  219.  See  2 
Dev.  No.  C.  162 ;  Hard.  Ky.  529. 

ROLE  D'EQUIPAGE.  The  list  of  a 
Bhip's  crew;  the  muster  roll. 

ROLL.  A  schedule  of  parchment  which 
may  be  turned  up  with  the  hand  in  the  form 
of  a  pipe  or  tube.    Jacob,  Law  Diet. 

In  early  times,  before  paper  came  in  common  use, 
jrarchment  was  the  substance  employed  for  making 
records,  and,  as  the  art  of  bookbinding  was  but  little 
used,  economy  suggested  as  the  most  convenient 
ll^ode  the  adding  of  sheet  to  sheet,  as  was  found 
requisite,  and  they  were  tacked  together  in  such 
a  manner  that  the  whole  length  might  be  wound 
up  together  in  the  form  of  spiral  rolls. 

The  records  of  a  court  or  office. 

ROLLS  OFFICE  OF  THE  CHAN- 
CERY. An  office  in  Chancery  Lane,  Lon- 
don, which  contains  rolls  and  records  of  the 
high  court  of  chancery,  of  which  the  master 
of  the  rolls  is  keeper.  It  was  formerly  called 
dornus  conversorum,  having  been  appointed 
by  Henry  III.  for  the  use  of  converted  Jews, 
but  for  irregularities  they  were  expelled  by 
Edward  II.,  when  it  was  put  to  its  present 
use.    Blount,  Encyc.  Lond. 

ROMNEY  MARSH.  A  tract  of  land 
in  the  county  of  Kent,  England,  containing 
twenty-four  thousand  acres,  governed  by 
certain  ancient  and  equitable  laws  of  sewers, 
composed  by  Henry  de  Bathe,  a  venerable 
judge  in  the  reign  of  king  Henry  III. ;  from 
which  laws  all  commissioners  of  sewers  in 
England  may  receive  light  and  direction.  3 
Stephen,  Comm.  442,  note  [a] ;  3  Blackstoiie, 
Comm.  73,  note  [t) ;  Coke,  4th  Inst.  276. 


ROOD  OF  LAND.    The  fourth  part 
an  acre. 

ROOT.  That  part  of  a  tree  or  plant  under 
ground  from  which  it  draws  most  of  its  nou- 
rishment from  the  earth. 

When  the  roots  of  a  tree  planted  in  one 
man's  land  extend  into  that  of  another,  this 
circumstance  does  not  give  the  latter  any 
right  to  the  tree,  though  such  is  the  doctrine 
of  the  civil  law,  Dig.  41.  1.  7.  13  ;  but  such 
person  has  a  right  to  cut  off  the  roots  up  to 
his  line.    Rolle,  394.   ^>ee  Tree. 

In  a  figurative  sense,  the  term  root  is  used 
to  signify  the  person  from  whom  one  or  more 
others  are  descended. 

ROSTER.  A  list  of  persons  who  are  in 
their  turn  to  perform  certain  duties  required 
of  them  by  law.    Tytler,  Courts-Mart.  93. 

ROTA  (Lat.).  A  court.  A  celebrated 
court  of  appeals  at  Rome,  of  which  one  judge 
must  be  a  German,  one  a  Frenchman,  two 
Spaniards,  and  eight  Italians.  Encyc.  Brit. 
Its  decisions  had  great  weight,  but  were  not 
law,  although  judged  by  the  law.  Sacciae  Trac. 
de  Com.  et  Cpmb.  I  1,  qugest.  7,  pars  2,  ampl. 
8,  num.  219,  220,  253,  254.  There  was  also 
a  celebrated  rota  or  court  at  Genoa  about 
the  sixteenth  century,  or  before,  whose  deci- 
sions in  maritime  matters  form  the  first  part 
of  Straccha  de  Merc. 

ROTURIER.  In  Old  French  Law. 
One  not  noble.  Diet,  de  FAcad.  FrauQ. 
A  free  commoner ;  one  who  did  not  hold  his 
land  by  homage  and  fealty,  yet  owed  certain 
services.    Howard,  Diet,  de  Normande. 

ROUBLE.  The  name  of  a  coin.  The 
rouble  of  Russia,  as  money  of  account,  is 
deemed  and  taken  at  the  custom-house  to  be 
of  the  value  of  seventy-five  cents.  Act  of 
March  3,  1843. 

ROUP.  In  Scotch  Law.  Sale  by 
auction.  Auction.  Index  to  Burton,  Law 
of  Scotl. ;  Bell,  Diet.  Auction. 

ROUT.  In  Criminal  Law.  A  disturb- 
ance of  the  peace  by  persons  assembled  to- 
gether with  an  intention  to  do  a  thing  which 
if  executed  would  have  made  them  rioters, 
and  actually  making  a  motion  towards  the 
execution  of  their  purpose. 

It  generally  agrees  in  all  particulars  with 
a  riot,  except  only  in  this:  that  it  may  be  a 
complete  offence  without  the  execution  of  the 
intended  enterprise.  Hawkins,  PI.  Cr.  c.  65, 
s.  14  ;  1  Russell,  Crimes,  253  ;  4  Blackstone, 
Comm.  140 ;  Viner,  Abr.  Riots,  etc.  (A  2) ; 
Comyns,  Dig.  Forcible  Unity  (D  9). 

ROUTOUSLY.  In  Pleading.  A 
technical  word,  properly  used  in  indictments 
for  a  rout  as  descriptive  of  the  offence.  2 
Salk.  593. 

ROYAL  FISH.  Whales  and  sturgeons, — 
to  which  some  add  porpoises, — which  when 
cast  on  shore  or  caught  near  shore  belong 
to  the  king  of  England  by  his  prerogative. 
1  Edw.  I. ;  17  Edw.  V.  c.  1 ;  1  Eliz.  c.  5 ;  17 
Edw.  II.  c.  11 ;  Bracton,  1.  3,  c.  3  ;  Britton,  c. 
17  J  Fleta,  lib.  1,  c.  45,  46. 


ROIAL  HONORS 


490 


RUNNING  DAIS 


ROYAL  HONORS.  In  diplomatic  lan- 
guage, by  this  term  is  understood  the  rights 
enjoyed  by  every  empire  or  kingdom  in  Eu- 
rope, by  the  pope,  the  grand  duchies  of  Ger- 
many, and  the  Germanic  and  Swiss  confede- 
rations, to  precedence  over  all  others  who 
do  not  enjoy  the  same  rank,  with  the  exclu- 
sive right  of  sending  to  other  states  public 
ministers  of  the  first  rank,  as  ambassadors, 
together  with  other  distinctive  titles  and 
ceremonies.  Vattel,  LaM'  of  Nat.  b.  2,  c.  3, 
§  38  ;  Wheaton,  Int.  Law,  pt.  2,  c.  3,  §  2. 

ROYAL  MINES.  Mines  of  silver  and 
gold  belong  to  the  kin^  of  England,  as  part 
of  his  prerogative  of  coinage,  to  furnish  him 
with  material.  1  Sharswood,  Blackst.  Comm. 
294*.    See  Mines. 

RUBRIC.  The  title  or  inscription  of  any" 
law  or  statute ;  because  the  copyists  formerly 
drew  and  painted  the  title  of  laws  and 
statutes  in  red  letters  [riibro  colore).  Ayliffe, 
Pand.  b.  1,  t.  8 ;  Diet,  de  Jur. 

RUDENESS.  In  Criminal  Law.  An 
impolite  action,  contrary  to  the  usual  rules 
observed  in  society,  committed  by  one  per- 
son against  another. 

This  is  a  relative  term,  which  it  is  difficult 
to  define :  those  acts  M^hich  one  friend  might 
do  to  another  could  not  be  justified  by  per- 
sons altogether  unacquainted  ;  persons  mov- 
ing in  polished  society  could  not  be  permitted 
to  do  to  each  other  what  boatmen,  hostlers, 
and  such  persons  might  perhaps  justify.  2 
Hagg.  Eccl.  73.  An  act  done  by  a  gentle- 
man towards  a  lady  might  be  considered  rude- 
ness, which  if  done  by  one  gentleman  to  an- 
other might  not  be  looked  upon  in  that  light. 
Russ.  &  R.  130.  A  person  who  touches  an- 
other with  rudeness  is  guilty  of  a  battery. 

RULE  OF  COURT.  An  order  made  by 
a  court  having  competent  jurisdiction. 

Rules  of  court  are  either  general  or  special: 
the  former  are  the  laws  by  which  the  prac- 
tice of  the  court  is  governed ;  the  latter  are 
special  orders  made  in  particular  cases. 

Disobedience  to  these  is  punished  by  giving 
judgment  against  the  disobedient  party,  or 
by  attachment  for  contempt. 

RULE  OF  LAW.  A  general  principle 
of  law,  recognized  as  such  by  authorities,  and 
stated  usually  in  the  form  of  a  maxim.  It  is 
called  a  rule  because  in  doubtful  and  unfore- 
seen cases  it  is  a  rule  for  their  decision :  it 
embraces  particular  cases  within  general 
principles.  Toullier,  tit.  pr61.  n.  17 ;  1 
Klackst.  Comm.  44  ;  Domat,  liv.  pr61.  t.  1,  s. 
1 ;  Ram,  Judgm.  30;  3  Barnew.  &  Ad.  34; 
2  Russ.  21G,  580,  581;  4  id. '605  ;  10  Price, 
Exch.  218,  219,  228 ;  1  Barnew.  &  C.  86 ;  7 
Bingh.  280 ;  1  Ld.  Raym.  728  ;  5  Term,  5  ;  4 
Maule  &  S.  348.    See  Maxim. 

RULE  NISI.  In  Practice.  xV  rule 
obtained  on  motion  ex  parte  to  show  cause 
against  the  particular  relief  sought.  Notice 
'e  served  on  the  party  against  whom  the  rule  is 
obtained,  and  the  case  is  then  heard  like  other 
motions,  except  that  the  party  showing  cause 


is  entitled  to  open  and  reply.  The  rule  is 
made  absolute  unless  [nisi)  good  cause  is 
shown  agaiiist  it.  Graham,  Pract.  p.  688 ; 
3  Stephen,  Comm.  p.  680. 

RULE  TO  SHOW  CAUSE.  An  order 
made  by  the  court,  in  a  particular  case,  upon 
motion  of  one  of  the  parties  calling  upon  the 
other  to  appear  at  a  particular  time  before 
the  court,  to  show  cause,  if  any  he  have,  why 
a  certain  thing  should  not  be  done. 

This  rule  is  granted  generally  upon  the 
oath  or  affirmation  of  the  applicant ;  but  upon 
the  hearing  the  evidence  of  competent  wit- 
nesses must  be  given  to  support  the  rule,  and 
the  affidavit  of  the  applicant  is  insufficient. 

RULE  OF  THE  WAR  OF  1756.  In 
Commercial  Law,  War.  A  rule  relating 
to  neutrals  was  the  first  time  practically  esta- 
blished in  1756,  and  universally  promulgated, 
that  "  neutrals  are  not  to  carry  on  in  times 
of  war  a  trade  which  was  interdicted  to  them 
in  times  of  peace."  Chitty,  Law  of  Nat.  166 ; 
2C.Rob.Adm.  186;  4id:.App.;  Reeve,  Shipp. 
271 ;  1  Kent,  Comm.  82. 

RULES.  Certain  limits  without  the  actual 
walls  of  the  prisons,  where  the  prisoner,  on 
proper  security  previously  given  to  the  proper 
authority,  may  reside.  These  limits  are  con- 
sidered, for  all  legal  and  practical  purposes, 
as  merely  a  further  extension  of  the  prison- 
walls.  The  rules  or  permission  to  reside 
without  the  prison  may  be  obtained  by  any 
person  not  committed  criminally,  2  Strange, 
845,  nor  for  contempt,  id.  817,  by  satisfy- 
ing the  marshal  or  warden  or  other  authority 
of  the  security  with  which  he  may  grant  such  ^ 
permission.  ' 

RULES  OF  PRACTICE.  Certain  or- 
ders made  by  the  courts  for  the  purpose  of , 
regulating  the  practice  of  members  of  the  bar ' 
and  others. 

Every  court  of  record  has  an  inherent  i 
power  to  make  rules  for  the  transaction  of  its^ 
business ;  which  rules  they  may  from  time  to ; 
time  change,  alter,  rescind,  or  repeal.   While  ; 
they  are  in  force,  they  must  be  applied  to  all'i 
cases  which  fall  within  them  ;  they  can  use' 
no  discretion,  unless  such  discretion  is  au-, 
thorized  by  the  rules  themselves.    Rules  of  ' 
court  cannot,  of  course,  contravene  the  con- 
stitution or  the  law  of  the  land.    3  Pick. 
Mass.  512;  5  id.  187  ;  2  Harr.  &  J.  Md.  79 ; 
1  Pet.  604;  3  Binn.  Penn.  227,  417  ;  3  Serg. 
&  R.  Penn.  253  ;  8  id.  336 ;  2  Mo.  98. 

RUMOR.  A  general  public  report  of 
certain  things,  without  any  certainty  as  to 
their  truth. 

In  general,  rumor  cannot  be  received  in 
evidence;  but  when  the  question  is  whether 
such  rumor  existed,  and  not  its  truth  or  false- 
hood, then  evidence  of  it  may  be  given. 

RUNCINUS  (Lat.).  A  nag.  1  Thomas, 
Coke,  Litt.  471. 

RUNNING  ACCOUNT.  An  open  ao 
count.    See  Account;  2  Parsons,  Contr.  351. 

RUNNING  DAYS.    Days  counted  in 


RUNNING  LANDS 


491 


succession,  without  any  allowance  for  holi- 
days. The  term  is  used  in  settling  lay- 
days or  days  of  deniurra<>;e. 

RUNNING  LANDS.  In  Scotch  Law. 
Lands  where  the  ridges  of  a  field  belong 
alternately  to  different  proprietors.  Bell, 
Diet. 

RUNNING  OF  THE  STATUTE  OF 
LIMITATIONS.  A  metaphorical  expres- 
sion, by  which  is  meant  that  the  time  men- 
tioned in  the  statute  of  limitations  is  con- 
sidered as  passing.    1  Bouvier,  Inst.  n.  861. 

RUNNING  WITH  THE  LAND.  A 
technical  expression  applied  to  covenants 
real  which  affect  the  land.    See  Covenant. 

RUPEE.  In  Commercial  Law.  A 
denomination  uf  money  in  Bengal.  In  the 
computation  of  ad  valorem  duties  it  is  valued 


at  fifty-five  and  one-half  cents.  Act  *)f  March 
2,  1799,  s.  01 ;  1  Story,  U.  S.  Laws,  C27.  See 
Foreign  Coins. 

The  rupee  of  British  India,  as  money  of 
account,  at  the  custom-house,  shall  be  deemed 
and  taken  to  be  of  the  value  of  forty-four  and 
one-half  cents.    Act  of  March  3,  1848. 

RURAL.  That  which  relates  to  the  coun- 
try:  as,  rural  servitudes.    See  Urban. 

RUSE  DE  GUERRE  (Fr.).  Literally, 
a  trick  in  war.  A  stratagem.  It  is  said  to 
be  lawful  among  belligerents,  provided  it 
does  not  involve  treachery  and  falsehood. 
Grotius,  Droit  de  la  Guerre,  liv.  3,  c.  1,  §  9. 

RUTA  (Lat.).  In  Civil  Law.  The  name 

given  to  those  things  which  are  extracted  or 
taken  from  land :  as,  sand,  chalk,  coal,  and 
such  other  things.    Pothier,  Pand.  1.  50. 


S. 


SABBATH.  A  name  sometimes  impro- 
perly used  for  Sunday. 

SABINIANS.  A  sect  of  lawyers  whose 
first  chief  was  Atteius  Capito,  and  the  second 
Cselius  Sabinus,  from  whom  they  derived 
their  name.    Clef  des  Lois  Kom. 

SAC,  SAK  (Lat.  saca  or  saclia).  An 
ancient  privilege,  which  a  lord  of  a  manor 
claimed  to  have  in  his  court,  of  holding  plea 
in  causes  of  trespass  arising  among  his  ten- 
ants, and  imposing  fines  touching  the  same. 
Termes  de  la  Ley. 

SAC  ABURTH,  S AC ABERE  (from  sac, 
cause,  and  hurh,  pledge).  He  that  is  robbed 
and  puts  in  surety  to  prosecute  the  felon  with 
fresh  suit.  Britton,  c.  15,  29  ;  Bracton,  1.  3, 
C.  32 ;  Cowel. 

SACQUIER.  In  Maritime  Law.  The 
name  of  an  ancient  officer,  whose  business 
"was  to  load  and  unload  vessels  laden  with 
salt,  corn,  or  fish,  to  prevent  the  ship's  crew 
defrauding  the  merchant  by  false  tale,  or 
cheating  him  of  his  merchandise  otherwise. 
Laws  of  Oleron,  art.  11,  published  in  an 
English  translation  in  an  Appendix  to  1 
Pet.  Adm.  xxv.    SccArrameur;  Stevedore. 

SACRAMENTALES  (L.  Lat.  sacra- 
mentum,  oath).  Compurgatores,  which  see. 
J  irors.    Law  Fr.  &  Lat.  Diet. 

SACRAMENTUM  (L.  Lat.).  In  Civil 
Law.  A  gage  in  money  laid  down  in  court 
by  both  parties  that  went  to  law,  returned 
to  him  who  had  the  verdict  on  his  side,  but 
forfeited  by  the  party  who  was  cast,  to  the 
exchequer,  to  be  laid  out  in  sacris  rebus,  and 
therefore  so  called.  Varro,  lib.  4.  de  Ling. 
Lat.  0.  36. 


An  oath,  as  a  very  sacred  thing.  Ains- 
worth.  Diet. ;  Vicat,  Voc.  Jur. 

The  oath  taken  by  soldiers  to  be  true  to 
their  general  and  country.  Id. 

In  Old  Common  Law.  An  oath.  Car- 
pentier,  Gloss.;  Cowel;  Jacob. 

SACRAMENTUM  DECISIONI3 

( Lat. ) .  The  voluntary  or  decisive  oath  of  the 
civil  law,  where  one  of  the  parties  to  a  suit, 
not  being  able  to  prove  his  case,  offers  to  refer 
the  decision  of  the  cause  to  the  oath  of  his 
adversary,  who  is  bound  to  accept  or  make 
the  same  offer  on  his  part,  or  the  whole  is 
considered  as  confessed  by  him.  3  Shars- 
wood,  Blackst.  Comm.  342. 

SACRILEGE.  The  act  of  stealing,  from 
the  temples  or  churches  dedicated  to  the  wor- 
ship of  God,  articles  consecrated  to  divine 
uses.  Pen.  Code  of  China,  b,  1,  s.  2,  ^  6; 
Ayliffe,  Parerg.  476. 

S-aiVITIA(Lat.).  Cruelty.  To  constitute 
scevitia  there  must  be  such  a  degree  of  cruelty 
as  to  endanger  the  party's  suffering  bodily 
hurt.  1  Hagg.  Cons.  35;  2  Mass.  150;  3 
id.  321 ;  4  id.  587. 

SAFE-CONDUCT.  A  passport  or  per- 
mission from  a  neutral  state  to  persons  who 
are  thus  authorized  to  go  and  return  in  safety, 
and,  sometimes,  to  carry  away  certain  things 
in  safety.  - 

According  to  common  usage,  the  term  passport  is 
employed  on  ordinary  occasions  for  the  permission 
given  to  persons  when  there  is  no  reason  why  they 
should  not  go  where  they  please ;  and  safe-conduct 
is  the  name  given  to  the  instrument  which  author- 
izes certain  persons,  as  enemies,  to  go  into  places 
where  they  could  not  go  without  danger  unlesa 
thus  authorized  by  the  government. 


SAFE-PLEDGE 


492 


SALE 


The  name  of  an  instrument  given  to  the 
2aptain  or  master  of  a  ship  to  proceed  on  a 
particular  vovage:  it  usually  contains  his 
name  and  residence,  the  name,  description, 
aad  destination  of  the  ship,  with  such  other 
matters  as  the  practice  of  the  place  requires. 
This  document  is  indispensably  necessary  for 
the  safety  of  every  neutral  ship. 

The  act  of  congress  of  April  30,  1790,  s. 
27,  punishes  the  violation  of  any  safe-conduct 
or  passport  granted  under  the  authority  of 
the  United  States,  on  conviction,  with  im- 
prisonment, not  exceeding  three  years,  and 
a  fine  at  the  discretion  of  the  court.  See 
Conduct;  Passport;  18  Viner,  Abr.  272. 

SAFE-PLEDGE.  A  surety  given  that 
a  man  shall  appear  upon  a  certain  day. 
Bracton,  1.  4,  c.  1. 

SAFEGUARD.  A  protection  of  the 
king  to  one  who  is  a  stranger,  who  fears 
violence  from  some  of  his  subjects  for  seek- 
ing his  right  by  course  of  law.  Reg.  Orig. 
26. 

SAID.    Before  mentioned. 

In  contracts  and  pleadings  it  is  usual  and 
proper,  when  it  is  desired  to  speak  of  a  person 
or  thing  before  mentioned,  to  designate  them 
by  the  term  said  or  aforesaid,  or  by  some 
similar  term ;  otherwise  the  latter  description 
will  be  ill  for  want  of  certainty.  2  Lev. 
207;  Comyns,  Dig.  Pleader  (C  18);  Gould, 
Plead,  c.  3,  |  63. 

SAILING  INSTRUCTIONS.  In 
Maritime  Law.  Written  or  printed  direc- 
tions, delivered  by  the  commanding  officer 
of  a  convoy  to  the  several  masters  of  the  ships 
under  his  care,  by  which  they  are  enabled  to 
understand  and  answer  his  signals,  to  know 
the  place  of  rendezvous  appointed  for  the 
fleet  in  case  of  dispersion  by  storm,  by  an 
enemy,  or  by  any  other  accident. 

Without  sailing  instructions  no  vessel  can 
have  the  full  protection  and  benefit  of  con- 
voy.   Marshall,  Ins.  368. 

SAILORS.  Seamen;  mariners.  See 
Seamen;  Shipping  Articles. 

SAISIE-EXECUTION.  In  French 
Law.  A  writ  of  execution  by  which  the 
creditor  places  under  the  custody  of  the  law 
the  movables  of  his  debtor,  which  are  liable 
to  seizure,  in  order  that  out  of  them  he  may 
obtain  payment  of  the  debt  due  by  him.  La. 
Code  of  Pract.  art.  641 ;  Dalloz,  Diet.  It  is 
a  writ  very  similar  to  ih^Jieri  facias  of  the 
3ommon  law. 

SAISIE-FORAINE.   In  French  Law. 

A  permission  given  by  the  proper  judicial 
officer  to  authorize  a  creditor  to  seize  the 

Eroperty  of  his  debtor  in  the  district  which 
e  inhabits.  Dallo/.,  Diet.  It  has  the  effect 
of  an  attachment  of  property,  which  is  ap- 
plied to  the  payment  of  the  debt  due. 

SAISIE-GAGERIE.   In  French  Law. 

A  conservatory  act  of  execution,  by  which 
the  owner  or  principal  lessor  of  a  house  or 
farm  causes  the  furniture  of  the  house  or 


farm  leased,  and  on  which  he  has  a  lien,  to 
be  seized,  in  order  to  obtain  the  rent  due 
to  him.  It  is  similar  to  the  distress  of  the 
common  law.    Dalloz,  Diet. 

SAISIE-IMMOBILIERE.  In  French 
Law.  A  writ  by  which  the  creditor  puts  in 
the  custody  of  the  law  the  immovables  of  his 
debtor,  that  out  of  the  proceeds  of  their  sale 
he  may  be  paid  his  demand. 

SALARY.  A  reward  or  recompense  for 
services  performed. 

It  is  usually  applied  to  the  reward  paid  to  a 
public  officer  for  the  performance  of  his  official 
duties. 

Salary  is  also  applied  to  the  reward  paid  for  the 
performance  of  other  services;  but  if  it  be  not 
fixed  for  each  year  it  is  called  honorarium.  Pothier, 
Pand.  According  to  M.  Duvergier,  the  distinction 
between  honorarium  and  salary  is  this.  By  the 
former  is  understood  the  reward  given  to  the  most 
elevated  professions  for  services  performed ;  and 
by  the  latter  the  price  of  hiring  of  domestic  ser- 
vants and  workmen.  19  Toullier,  n.  268,  p.  292, 
note. 

There  is  this  difference  between   salary  and 
price :  the  former  is  the  reward  paid  for  services 
or  for  the  hire  of  things ;  the  latter  is  the  con- 
sideration paid  for  a  thing  sold.    Lef.  Elem. 
907,  908. 

SALE.  An  agreement  by  which  one  of 
two  contracting  parties,  called  the  seller, 
gives  a  thing  and  passes  the  title  to  it,  in  ex- 
change for  a  certain  price  in  current  money, 
to  the  other  party,  who  is  called  the  buyer  or 
purchaser,  who,  on  his  part,  agrees  to  pay 
such  price.  Pardessus,  Dr.  Com.  n.  6  ;  Noy, 
Max.  ch.  42 ;  Sheppard,  Touchst.  244 ;  2  Kent, 
Comm.  363;  Pothier,  Vente,  n.  1. 

This  contract  differs  from  a  barter  or  exchange 
in  this  :  that  in  the  latter  the  price  or  consideration, 
instead  of  being  paid  in  money,  is  paid  in  goods  or 
merchandise  susceptible  of  a  valuation.  3  Salk. 
157  ;  12  N.  H.  390  ;  10  Vt.  457.  It  differs  from  ac- 
cord and  satisfaction,  because  in  that  contract  the 
thing  is  given  for  the  purpose  of  quieting  a  claim, 
and  not  for  a  price.  An  onerous  gift,  when  the 
burden  it  imposes  is  the  payment  of  a  sum  of 
money,  is,  when  accepted,  in  the  nature  of  a  sale. 
When  partition  is  made  between  two  or  more  joint 
owners  of  a  chattel,  it  would  seem  the  contract  is 
in  the  nature  of  a  barter.  See  11  Pick.  Mass. 
311. 

An  absolute  sale  is  one  made  and  completed 
without  any  condition  whatever. 

A  conditional  sale  is  one  which  depends  for 
its  validity  upon  the  fulfilment  of  some  con- 
dition. See  4  Wash.  C.  C.  588;  10  l»ick. 
Mass.  522;  18  Johns.  N.  Y.  141 ;  8  Vt,  154; 
2  Rawie,  Penn.  326;  Coxe,  N.  J.  292;  2  A. 
K.  Marsh.  Ky.  430. 

A  forced  sale  is  one  made  without  the  con- 
sent of  the  owner  of  the  property,  by  some 
officer  appointed  by  law,  as  by  a  marshal  or 
a  sheriff,  in  obedience  to  the  mandate  of  a 
competent  tribunal.  This  sale  has  the  effect 
to  transfer  all  the  rights  the  owner  had  in 
the  property,  but  it  does  not,  like  a  voluntary 
sale  of  personal  property,  guarantee  a  title  to 
the  thing  sold ;  it  merely  transfers  the  rights 
of  the  person  as  whose  property  it  has  been 
seized.  This  kind  of  a  sale  is  sometime! 
called  a  judicial  sale. 


SALE 


493 


SALE 


A  private  sale  is  one  made  voluntarily,  and 
not  by  .auction. 

A  public  sale  is  one  made  at  auction  to  the 
highest  bidder.  Auction  sales  sometimes  are 
voluntary,  as,  when  the  owner  chooses  to  sell 
his  goods  in  this  way,  and  then  as  between 
the  seller  and  the  buyer  the  usual  rules 
relating  to  sales  apply ;  or  they  are  involun- 
tary or  forced,  when  the  same  rules  do  not 

A  voluntary  sale  is  one  made  freely  with- 
out constraint  by  the  owner  of  the  thing 
sold :  this  is  the  common  case  of  sales,  and 
to  this  class  the  general  rules  of  the  law  of 
sale  apply. 

2.  Parties.  As  a  general  rule,  all  persons 
sui Juris  maybe  either  buyers  or  sellers.  See 
Parties.  There  is  a  class  of  persons  who 
are  incapable  of  purchasing  except  sub  modo, 
as,  infants  and  married  women,  1  Parsons, 
Contr.  437  ;  and  another  class  who,  in  conse- 
quence of  their  peculiar  relation  with  regard 
to  the  owner  of  the  thing  sold,  are  totally 
incapable  of  becoming  purchasers  while  that 
relation  exists;  these  are  trustees,  guardians, 
assignees  of  insolvents,  and,  generally,  all 
persons  who,  by  their  connection  with  the 
owner,  or  by  being  employed  concerning  his 
affairs,  have  acquired  a  knowledge  of  his 
property,  as,  attorneys,  conveyancers,  and 
the  like. 

The  thing  sold.  There  must  be  a  thing 
which  is  the  object  of  the  sale ;  for  if  the 
thing  sold  at  the  time  of  the  sale  had  ceased 
to  exist,  it  is  clear  there  can  be  no  sale :  if, 
for  example,  you  and  I  being  in  Philadelphia, 
I  sell  you  my  house  in  Cincinnati,  and  at 
the  time  of  the  sale  it  be  burned  down,  it  is 
manifest  there  was  no  sale,  as  there  was  not 
a  thing  to  be  sold.  See  1  Leon.  42;  Hob. 
132;  7  Exch.  208;  5  Maule  &  S.  228;  2 
Kent,  Comm.  640.  It  is  evident,  too,  that  no 
sale  can  be  made  of  things  not  in  commerce : 
as,  the  air,  the  water  of  the  sea,  and  the 
like.  When  there  has  been  a  mistake  made 
as  to  the  article  sold,  there  is  no  sale :  as,  for 
example,  where  a  broker,  who  is  the  agent 
of  both  parties,  sells  an  article  and  delivers 
to  the  seller  a  sold  note  describing  the  article 
sold  as  "  St.  Petersburg  clean  hemp,''  and 
bought  note  to  the  buyer,  as  "  Riga  Rhine 
hemp,"  there  is  no  sale.  5  Taunt.  786,  788; 
5  Barnew.  &  C.  437;  7  East,  569;  2  Campb. 
337  ;  4  Q.  B.  747 ;  9  Mees.  &  W.  Exch.  805  ; 
1  Moore  &  P.  778. 

3.  There  must  be  an  agreement  as  to  the 
specific  goods  which  form  the  basis  of  the 
contract  of  sale ;  in  other  words,  to  make  a 
perfect  sale  the  parties  must  have  agreed,  the 
one  to  part  with  the  title  to  a  specific  article, 
and  the  other  to  acquire  such  title :  an  agree- 
ment to  sell  one  hundred,  bushels  of  wheat, 
to  be  measured  out  of  a  heap,  does  not 
change  the  property  until  the  wheat  has 
been  measured.  3  Johns.  N.  Y.  179  ;  15  id. 
349 ;  2  N.  Y.  258  ;  5  Taunt.  176 ;  7  Ohio, 
127 ;  3  N.  H.  282 ;  6  Pick.  Mass.  280 ;  6 
Watts,  Penn.  29  ;  7  Ell.  &  B.  885.  And  see  6 
Barnew.  &  C.  388 ;  7  Gratt.  Va.  240 ;  34  Me. 


289  ;  25  Penn.  St.  208  ;  22  N.  IL  172  ;  24  id 
337;  7  Dan.  Ky.  61 ;  11  Humphr.  Tenn.  206  , 
11  Ired.  No.  C.  609. 

Price.  To  constitute  a  sale,  there  must  be 
a  price  agreed  upon  ;  but  upon  the  maxim  id 
certum  est  quod  reddi  certum  potest,  a  sale 
may  be  valid  although  it  is  agreed  that  the 
price  for  the  thing  sold  shall  be  determined 
by  a  third  person.  4  Pick.  Mass.  179.  See 
10  Bingh.  382,  487 ;  11  Ired.  No.  C.  166 ;  12 
id.  79. 

The  price  must  be  an  actual  or  serious 
price,  with  an  intention  on  the  part  of  the 
seller  to  require  its  payment :  if,  therefore, 
one  should  sell  a  thing  to  another,  and  by  the 
same  agreement  he  should  release  the  buyer 
from  the  payment,  this  would  not  be  a  sale, 
but  a  gift;  because  in  that  case  the  buyer 
never  agreed  to  pay  any  price,  the  sariie 
agreement  by  which  the  title  to  the  thing  is 
passed  to  him  discharging  him  from  all  obli- 
gations to  pay  for  it.  As  to  the  quantum  of 
the  price,  that  is  altogether  immaterial,  unles;* 
there  has  been  fraud  in  the  transaction.  The 
price  must  be  certain  or  determined  ;  but  it  is 
sufficiently  certain  if,  as  before  observed,  it 
be  left  to  the  determination  of  a  third  person. 
4  Pick.  Mass.  179  ;  Pothier,  Vente,  n.  24. 
And  an  agreement  to  pay  for  goods  what 
they  are  worth  is  sufficiently  certain.  Coxe, 
N.  J.  261 ;  Pothier,  Vente,  n.  26.  See  2  Sumn. 
C.  C.  539 ;  20  Mo.  553 ;  22  Penn.  St.  460. 
The  price  must  consist  in  a  sum  of  money 
which  the  buyer  agrees  to  pay  to  the  seller ; 
for  if  paid  for  in  any  other  way  the  contract 
would  be  an  exchange  or  barter,  and  not  a 
sale,  as  before  observed. 

4.  The  consent  of  the  contracting  parties, 
which  is  of  the  essence  of  a  sale,  consists  in 
the  agreement  of  the  will  of  the  seller  to  sell 
a  certain  thing  to  the  buyer  for  a  certain 
price,  and  in  the  will  of  the  buyer  to  pur- 
chase the  same  thing  for  the  same  price. 
Care  must  be  taken  to  distinguish  between 
an  agreement  to  enter  into  a  future  contract 
and  a  present  actual  agreement  to  make  a 
sale. 

The  consent  is  certain  when  the  parties 
expressly  declare  it.  This,  in  some  cases, 
it  is  requisite  should  be  in  writing.  See 
Frauds,  Statute  of.  This  writing  may  be  a 
letter.  See  Letter;  4  Bingh.  653;  3  Mete 
Mass.  207  ;  16  Me.  458. 

An  express  consent  to  a  sale  may  be  given 
verbally,  when  it  is  not  required  by  the  sta- 
tute of  frauds  to  be  in  writing. 

When  a  party,  by  his  acts,  approves  of 
what  has  been  done,  as,  if  he  knowingly  uses 
goods  which  have  been  left  at  his  house  by 
another  who  intended  to  sell  them,  he  will  by 
that  act  confirm  the  sale. 

5.  In  order  to  pass  the  property  by  a  sale, 
there  must  be  an  express  or  implied  agree- 
ment that  the  title  shall  pass.  An  agree- 
ment for  the  sale  of  goods  is  prima  facie  a 
bargain  and  sale  of  those  goods ;  but  this 
arises  merely  from  the  presumed  intention 
of  the  parties ;  and  if  it  appear  that  the 
parties  have  agreed,  not  that  there  shall  b» 


SALE-NOTE 


404 


SALVAGE 


a  mutual  credit  by  which  the  property  is  to 
pass  from  the  seller  to  the  buyer  and  the 
buyer  is  bound  to  pay  the  price  to  the  seller, 
but  that  the  exchange  of  the  money  for  the 
goods  shall  be  made  on  the  spot,  no  property 
is  transferred  ;  for  it  is  not  the  intention  of 
the  parties  to  transfer  any.  4  Wash.  C.  C. 
79.  See  20  Ohio,  304  ;  3  Sandf.  N.  Y.  230  ; 
1  C.  B.  385.  But  on  the  contrary  when 
the  makinji;  of  part-payment,  or  naming  a 
day  for  payment,  clearly  shows  an  intention 
in  the  parties  that  they  should  have  some 
time  to  complete  the  sale  by  payment  and 
delivery,  and  that  they  should  in  the  mean 
time  be  trustees  for  each  other,  the  one  of  the 
property  in  the  chattel  and  the  other  in  the 
price.  As  a  general  rule,  when  a  bargain  is 
made  for  the  purchase  of  goods  and  nothing 
is  said  about  payment  and  delivery,  the  pro- 
perty passes  immediately,  so  as  to  cast  upon 
the  purchaser  all  future  risk,  if  nothing 
remains  to  be  done  to  the  goods,  although  he 
cannot  take  them  away  without  paying  the 
price.  5  Barnew.  &  C.  862  ;  6  Dan.  Ky.  48 ; 
7  i^^.  61 ;  13  Pick.  Mass.  183. 

6.  The  above  rules  apply  to  sales  of  per- 
sonal property.  The  sale  of  real  estate  is 
governed  by  other  rules.  AVhen  a  contract 
has  been  entered  into  for  the  sale  of  lands, 
the  legal  estate  in  such  lands  still  remains 
vested  in  the  vendor,  and  it  does  not  become 
vested  in  the  vendee  until  he  shall  have 
received  a  lawful  deed  of  conveyance  from 
the  vendor  to  him  ;  and  the  only  remedy  of 
the  purchaser  at  law  is  to  bring  an  action  on 
the  contract  and  recover  pecuniary  damages 
for  a  breach  of  the  contract.  In  equity, 
nowever,  after  a  contract  for  the  sale,  the 
lands  are  considered  as  belonging  to  the 
purchaser,  and  the  court  will  enforce  his 
rights  by  a  decree  for  a  specific  performance  ; 
and  the  seller  will  be  entitled  to  the  pur- 
chase-money. Williams,  Real  Prop.  127.  See 
Specific  Performance. 

In  general,  the  seller  of  real  estate  does 
not  guarantee  the  title ;  and  if  it  be  desired 
that  he  should,  this  must  be  done  by  insert- 
ing a  warranty  to  that  effect.  See,  generally. 
Brown,  Blackburn,  Long,  Story,  on  Sales ; 
Sugden,  on  Vendors;  Pothier,  Vente  ;  Duver- 
gier,  Vente;  2  Kent,  Comm.  10th  ed.  640 
et  seq. ;  Parsons,  Story,  on  Contracts  ;  Con- 
tracts ;  Delivery  ;  Parties  ;  Stoppage  in 
Transitu. 

SALE-NOTE.  A  memorandum  given 
by  a  broker  to  a  seller  or  buyer  of  goods, 
stating  the  fact  that  certain  goods  have  been 
sold  by  him  on  account  of  a  person  called 
the  seller  to  another  person  called  the  buyer. 
Sale-notes  are  also  called  bought  and  sold 
notes,  which  see. 

SALE  AND  RETURN.  When  goods 
are  sent  from  a  manufacturer  or  wholesale 
dealer  to  a  retail  trader,  in  the  hope  that  he 
may  purchase  them,  with  the  understanding 
thfit  what  he  may  choose  to  take  he  shall 
have  as  on  a  contract  of  sale,  and  what  he 
docs  not  take  he  will  retain  as  a  consignee 


for  the  owner,  the  goods  are  said  to  have  been 
sent  on  sale  and  return.  < 
The  goods  taken  by  the  receiver  as  on  sale 
will  be  considered  as  sold,  and  the  title  to 
them  is  vested  in  the  receiver  of  them ;  the 
goods  he  does  not  buy  are  considered  as  a 
deposit  in  the  hands  of  the  receiver  of  them, 
and  the  title  is  in  the  person  who  sent  theia. 

1  Bell,  Comm.  268,  5th  ed. 

SALIQUE  LAW.  The  name  of  a  code 
of  laws,  so  called  from  the  Salians,  a  people 
of  Germany  who  settled  in  Gaul  under  their 
king  Pharamond. 

The  most  remarkable  law  of  this  code  is 
that  which  regards  succession.  De  tend  vera 
sailed  nulla  portio  hcereditatis  transit  in  mu- 
lierem,  sed  hoc  virilis  sextus  acquirit ;  hoc  est, 
filii  in  ipsa  hcereditate  succedunt:  no  part 
of  the  salique  land  passes  to  females,  but 
the  males  alone  are  capable  of  taking ;  that 
is,  the  sons  succeed  to  the  inheritance.  This 
has  ever  excluded  females  from  the  throne 
of  France. 

SALVAGE.    In  Maritime   Law.  A 

compensation  given  by  the  maritime  law  for 
service  rendered  in  saving  property  or  res- 
cuing it  from  impending  peril  on  the  sea  or 
wrecked  on  the  coast  of  the  sea,  or,  in  the 
United  States,  on  a  public  navigable  river  or 
lake,  where  inter-state  or  foreign  commerce 
is  carried  on.  1  Sumn.  C.  C.  210,  416;  12 
How.  466 ;  1  Blatchf.  C.  C.  420 ;  5  McLean, 
C.  C.  359. 

The  property  saved.  2  Phillips,  Ins.  §  1488 ; 

2  Parsons,  Marit.  Law,  595. 

2.  The  peril.  In  order  to  found  a  title  to 
salvage,  the  peril  from  which  the  property 
was  saved  must  be  real,  not  speculative 
merely,  1  Cranch,  1 ;  but  it  need  not  be  such 
that  escape  from  it  by  any  other  means  than 
by  the  aid  of  the  salvors  was  impossible.  It 
is  sufficient  that  the  peril  was  something  ex- 
traordinary, something  differing  in  kind  and 
degree  from  the  ordinary  perils  of  naviga- 
tion. 1  Curt.  C.  C.  353  ;  2  id.  350.  All  ser- 
vices rendered  at  sea  to  a  vessel  in  distress 
are  salvage  services.  1 W.  Rob.  Adm.  174 ;  3 
id.  71.  But  the  peril  must  be  present  and 
pending,  not  future,  contingent,  and  conjee 
tural.  1  Sumn.  C.  C.  216;  3  Ilagg.  Adm. 
344.  It  may  arise  from  the  sea,  rocks,  fire, 
pirates,  or  enemies,  1  Cranch,  1,  or  from  the 
sickness  or  death  of  the  crew  or  master.  1 
Curt.  C.  C.  376 ;  2  Wall.  Jr.  C.  C.  59 ;  1 
Swab.  Adm.  84. 

3.  The  saving.  In  order  to  give  a  title  to 
salvage,  the  property  must  be  effectually 
saved ;  it  must  be  brought  to  some  port  of 
safety,  and  it  must  be  there  in  a  state  capa- 
ble of  being  restored  to  the  owner,  before  the 
service  can  be  deemed  completed.  1  Sumn. 
C.C.417  ;  1  W.Rob.  Adm.  329, 406.  It  must  be 
saved  by  the  instrumentality  of  the  asserted 
salvors,  or  their  services  must  contribute  in 
some  certain  degree  to  save  it,  4  Wash.  C.  C. 
651 ;  01c.  Adm.  462;  though,  if  the  services 
were  rendered  on  the  request  of  the  master 
or  owner,  the  salvor  is  entitled  to  salva^f. 


SALVAGE 


49d 


SALVAGE 


though  the  services  were  slight  and  the  pro- 
perty was  saved  mainly  by  a  providential 
act.  5  McLean,  C.  C.  359 ;  1  Newb.  Adm. 
130;  2  W.  Rob.  Adm.  91;  Bee,  Adm.  90;  9 
Lond.  Jur.  119. 

4.  The  place.  In  England,  it  has  been 
held  that  the  services  must  be  rendered  on 
the  high  seas,  or,  at  least,  extra  corpus  comi- 

I  tatus,  in  order  to  give  the  admiralty  court  ju- 
I  risdiction  to  decree  salvage  ;  but  in  this  coun- 
try it  is  held  that  the  district  courts  of  the 
United  States  have  jurisdiction  to  decree  sal- 
vage for  services  rendered  on  tide-waters  and 
on  the  lakes  or  rivers  where  inter-state  or 
foreign  commerce  is  carried  on,  although  infra 
corpus  ccmifafus.  12  How.  466  ;  1  Blatchf. 
C.  C.  420 ;  5  McLean,  C.  C.  359. 

5.  The  amount.  Some  foreign  states  have 
fixed  by  law  the  amount  or  proportion  to  be 
paid  for  salvage  services ;  but  in  England  and 
the  United  States  no  such  rule  has  been  es- 
tablished. In  these  countries  the  amount 
rests  in  the  sound  discretion  of  the  court 
awarding  the  salvage,  upon  a  full  considera- 
tion of  all  the  facts  of  the  case.  It  generally 
far  exceeds  a  mere  remuneration  pro  opere  et 
labore,  the  excess  being  intended,  upon  prin- 
ciples of  sound  policy,  not  only  as  a  reward 
to  the  particular  salvor,  but  also  as  an  in- 
ducement to  others  to  render  like  services. 
2  Cranch,  240;  1  C.  Rob.  Adm.  312,  note;  3 
id.  355  ;  3  Hagg.  Adm.  95.  But  it  is  equally 
the  policy  of  the  law  not  to  provoke  the 
Balvor's  appetite  of  avarice,  nor  encourage 
his  exorbitant  demands,  nor  teach  him  to 
stand  ready  to  devour  what  the  ocean  has 
spared.  Gilp.  Dist.  Ct.  75.  Adequate  re- 
wards encourage  the  tendering  and  accept- 
ance of  salvage  services ;  exorbitant  de- 
mands discourage  their  acceptance  and  tend 
to  augment  the  risk  and  loss  of  vessels  in  dis- 
tress. 7  Notes  of  Cases.  The  amount  is  de- 
termined by  a  consideration  of  the  peril  to 
which  the  property  was  exposed,  the  value 
saved,  the  risk  •to  life  or  property  incurred 
by  the  salvors,  their  skill,  the  extent  of  labor 
©r  time  employed,  and  the  extent  of  the 
necessity  that  may  exist  in  any  particular 
locality  to  encourage  salvage  services.  3 
Hagg.  Adm.  121 ;  1  Gall.  C.  C.  133  ;  1  Sumn. 
C.  C.  413.  An  ancient  rule  of  the  admi- 
ralty allowed  the  salvors  one-half  of  the  pro- 
perty saved,  when  it  was  absolutely  dere- 
lict or  abandoned ;  but  th'^t  rule  has  been 
latterly  distinctly  repudiated  by  the  high 
court  of  admiralty  and  our  supreme  court, 
and  the  reward  in  cases  of  derelict  is  now 
governed  by  the  same  principles  as  in  other 
salvage  cases.  20  Eng.  L.  &  Eq.  607 ;  4 
Notes  of  Cases,  144;  19  How.  161.  Risking 
life  to  save  the  lives  of  others  is  an  ingre- 
dient in  salvage  service  which  will  enhance 
the  salvage  upon  the  property  saved.  Dav. 
I)ist.  Ct.  61;  3  Hagg.  Eccl.  84.  But  no 
salvage  is  due  for  saving  life  merely,  unac- 
companied by  any  saving  of  property,  1  W. 
Rob.  Adm.  330,  unless  it  be  the  life  of  a 
slave.  Bee,  Adm,  226,  260.  If  one  person 
saves  property  and  another  life,  the  latter  is 


entitled  to  share  in  the  salvage  on  the  pro 
perty  saved.    6  N.  Y.  Leg.  Obs. 

6.  The  property  saved.  Salvage  is  properly 
a  charge  apportionable  upon  all  the  interests 
and  property  at  risk  in  the  voyage  which 
derive  any  benefit  from  the  salvage  service. 
1  Stor.  C.  C.  469.  Qui  sentit  commodum  sentin 
debet  el  onus.  It  follows  that  salvage  ex- 
penses incurred  in  saving  ship,  cargo,  and 
freight  in  one  common  and  continuous  ser- 
vice are  apportionable  upon  them  all,  ac- 
cording to  their  respective  values  ;  but  ex- 
penses incurred  for  any  one  interest  sepa- 
rately, or  any  two  interests  only,  are  charge- 
able wholly  to  it  or  to  them.  2  .  Rob.  Adm. 
315;  7  Ell.  &  B.  523;  2  Pick.  Mass.  1;  11 
id.  90 ,  4  Whart.  Penn.  301 ;  5  Du.  N.  Y. 
310.  Goods  of  the  government  pay  the  same 
rate  as  if  owned  by  individuals,  3  Sumn. 
C.  C.  308 ;  3  Ilagg.  Eccl.  246  ;  Edw.  Adm. 
79  ;  but  not  the  mails,  Marvin,  Salvage,  132; 
nor  can  vessels  of  war  belonging  to  a  foreign 
neutral  power  be  arrested  in  our  ports  for 
salvage.  7  Cranch,  116  ;  2  Dods.  Adm.  451. 
Salvage  is  not  allowed  on  the  clothing  left 
by  the  master  and  crew  on  board  the  vessel 
which  they  abandon,  but  this  should  be 
returned  free  of  charge,  Ware,  Dist.  Ct. 
378,  or  for  saving  from  a  wreck  bills  of  ex- 
change or  other  evidences  of  debt,  or  docu- 
ments of  title.    Dav.  Dist.  Ct.  20. 

7.  Bar  to  salvage  claim.  An  express  ex- 
plicit agreement,  in  distinct  terms,  to  pay  at 
all  events,  whether  the  property  shall  be 
saved  or  not,  a  sum  certain,  or  a  reasonable 
sum,  for  work,  labor,  and  the  hire  of  a  vessel 
in  attempting  to  save  the  property,  is  incon- 
sistent with  a  claim  for  salvage ;  and  when 
such  agreement  is  pleaded  in  bar  and  proved, 
any  claim  for  salvage  will  be  disallowed.  2 
Curt.  C.  C.  350 ;  2  W.  Rob.  Adm.  177.  An 
agreement,  fairly  made  and  fully  understood 
by  the  salvors,  to  perform  a  salvage  service 
for  a  stipulated  sum  or  proportion,  to  be  paid 
in  the  event  of  a  successful  saving,  does  not 
alter  the  nature  of  the  service  as  a  salvage 
service,  but  fixes  the  amount  of  compensation. 
But  such  an  agreement  will  not  be  binding 
upon  the  master  or  owner  of  the  property  un- 
less the  court  can  clearly  see  that  no  advan- 
tage has  been  taken  of  the  party's  situation, 
and  that  the  rate  of  compensation  agreed  upon 
is  just  and  reasonable.  1  Stor.  C.  C.  323  ;  1 
Sumn.  C.  C.  207 ;  1  Blatchf.  Adm.  414 ;  19 
How.  160.  A  custom  in  any  particular  trade 
that  vessels  shall  assist  each  other  without 
claiming  salvage  is  legal,  and  a  bar  to  a  de- 
mand for  salvage  in  all  cases  where  it  properly 
applies.    1  W.  Rob.  Adm.  440. 

Forfeiture  or  denial  of  salvage.  Embezzle- 
ment of  any  of  the  goods  saved  works  a  for- 
feiture of  the  salvage  of  the  guilty  party. 
Ware,  Dist.  Ct.  380;  1  Sumn.  C.  C.  328;  and, 
in  general,  fraud,  negligence,  or  carelessness 
in  saving  or  preserving  the  property,  or  any 
gross  misconduct  on  the  D.irt  of  the  salvors 
in  connection  with  the  property  saved,  will 
work  a  total  forfeiture  of  the  salvage  or  a 
diminution  of  the  amount.    2  Cranch,  240  { 


496 


SALVOR 


1  W.  Rob.  Adm.  497  ;  2  id.  470 ;  3  id.  122  ;  2 
Eng.  L.  &  Eq.  554 ;  6  Wheat. -152  ;  19  Bost. 
Law  Rep.  490. 

8.  Distribution.  The  distribution  of  sal- 
vage among  the  salvors,  like  the  amount, 
rests  in  the  sound  discretion  of  the  court. 
In  general,  all  persons,  not  under  a  pre-exist- 
ing obligation  of  duty  to  render  assistance, 
who  have  contributed  by  their  exertions  to 
snve  the  property,  and  who  have  not  forfeited 
their  rights  by  their  misconduct,  are  entitled 
to  share  in  the  salvage,  as  well  those  who 
remain  on  board  the  salvor  vessel  in  the  dis- 
charge of  their  duty,  but  are  ready  and  will- 
ing t3  engage  in  the  salvage  enterprise,  as 
those  who  go  on  board  and  navigate  the 
wreck.  Ware,  Dist.  Ct.  483  ;  2  Dods.  Adm. 
132;  2  W.  Rob.  Adm.  115;  2  Cranch,  240. 
The  apportionment  between  the  owners  and 
crew  of  the  salvor  ship  depends  upon  the 
peculiar  circumstances  of  each  case:  such 
as,  the  character,  size,  value,  and  detention 
of  the  vessel,  its  exposure  to  peril,  and  like 
considerations,  and  the  number,  labor,  expo- 
r"*e,  and  hazard  of  the  crew.  In  ordinary 
cases,  the  more  usual  proportion  allowed  the 
owners  of  a  salvor  sail-vessel  is  one-third. 

2  Cranch,  240  ;  1  Sumn.  C.  C.  425  ;  3  id.  579. 
The  owner  of  a  steam-vessel,  if  of  consider- 
able value,  is  often  allowed  a  larger  proportion. 
Marvin,  Wreck  &  Salvage,  247.  The  mas- 
ter's share  is  usually  double  that  of  the  mate, 
and  the  mate's  double  that  of  a  seaman, 
and  the  share  of  those  who  navigate  the  de- 
relict into  port,  or  do  the  labor,  double  that 
of  those  who  remain  on  board  the  salvor  ves- 
sel. But  these  proportions  are  often  varied 
according  to  the  circumstances,  so  as  to  re- 
ward superior  zeal  and  energy  and  discourage 
indifference  and  selfishness.  3  Hagg.  Adm. 
121. 

9.  In  marine  insurance,  the  salvage  is  to 
be  accounted  for  by  the  assured  to  under- 
writers in  an  adjustment  of  a  total  or  sal- 
vage loss,  or  assigned  to  the  underwriters  by 
abandonment  or  otherwise.  2  Phillips,  Ins. 
§  1726.  And  so,  also,  the  remnant  of  the 
subject  insured  or  of  the  subject  pledged  in 
bottomry,  and  (if  there  be  such)  in  that  of- a 
fire  insurance,  and  of  the  interest  in  the  life 
of  a  debtor  (if  so  stipulated  in  this  case), 
is  to  be  brought  into  the  settlement  for  the 
loss  in  like  manner.  2  Dutch.  N.  J.  541 ;  5 
Du.  N.  Y.  1 ;  2  Phillips,  Ins.  ch.  xvii. ;  15 
Ohio,  81 ;  2  N.  Y.  285  ;  4  La.  289  ;  2  Sumn. 
0.  C.  157. 

SALVAGE    CHARGES.     In  Insu- 

1  ance.  All  those  costs,  expenses,  and  charges 
necessarily  incurred  in  and  about  the  saving 
and  preservation  of  the  property  imperilled, 
and  which,  if  the  property  be  insured,  are 
eventually  borne  by  the  underwriters.  Ste- 
vens, Av.  c.  2,  §  1. 

SALVAGE  LOSS.  That  kind  of  loss 
which  it  is  presumed  would,  but  for  cer- 
tain services  rendered  and  exertions  made, 
have  become  a  total  loss.  It  also  means, 
among  underwritera  and  average-adjusters, 


a  mode  of  settling  a  loss,  under  a  policy,  ir 
cases  where  the  goods  have  been  necessarily 
sold  at  a  port  short  of  the  port  of  destination, 
in  consequence  of  the  perils  insured  against. 
In  such  cases,  though  the  property  be  not 
abandoned  to  the  underwriter,  the  principle 
of  abandonment  is  assumed  in  the  adjustment 
of  the  loss.  The  underwriter  pays  a  total 
loss.  The  net  proceeds  of  the  sale  of  the  goods, 
after  deducting  all  expenses,  are  retained  by 
the  assured,  and  he  credits  the  underwriter 
with  the  amount.  2  Phillips,  Ins.  §  1480 : 
Stevens,  Av.  c.  2,  g  1. 

SALVOR.  In  Maritime  Law.  A  per 
son  who  saves  property  or  rescues  it  from  im- 
pending peril  on  the  sea  or  when  wrecked  on 
the  coast  of  the  sea,  or,  in  the  United  States, 
on  a  public  navigable  river  or  lake  where 
inter-state  commerce  is  carried  on,  and  who 
is  under  no  pre-existing  contract  or  obliga- 
tion of  duty  by  his  relation  to  the  property 
to  render  such  services.  1  Hagg.  Adm.  236; 
1  Curt.  C.  C.  378. 

2.  In  general,  the  crew  cannot  claim  as 
rialvors  of  their  own  ship  or  cargo,  they  being 
under  a  pre-existing  obligation  of  duty  to  bo 
vigilant  to  avoid  the  danger,  and  when  in  it 
to  exert  themseWes  to  rescue  or  save  the  pro- 
perty, in  consideration  of  their  wages  merely. 
14  Bost.  Law  Rep.  487  ;  21  id.  99 ;  1  Hagg. 
Adm.  236 ;  2  Mas.  C.  C.  319.  But  if  thei* 
connection  with  the  ship  be  dissolved,  as  by 
a  capture,  or  the  ship  or  cargo  be  voluntarily 
abandoned  by  order  of  the  master,  sine  spe 
revertendi  aut  recuperandi,  such  abandonment 
taking  place  bond  fide  and  without  coercion 
on  their  part,  and  for  the  purpose  of  saving 
life,  their  contract  is  put  an  end  to,  and  they 
may  subsequently  become  salvors.  20  Eng. 
L.  &  Eq.  607;  16  Jur.  572;  3  Sumn.  0.  C. 
270  ;  2  Cranch,  240 ;  Dav.  Dist.  Ct.  121.  A 
passenger,  2  Hagg,  Adm.  3,  note  ;  3  Bos.  &  P. 
612,  a  pilot,  10  Pet.  108;  Gilp.  Dist.  Ct.  65, 
Lloyd's  agent,  3  W.  Rob.  Adm.  181,  oflficial 
persons,  3'Wash.  C.  C.  567  ;  i  C.  Rob.  Adm. 
46,  officers  and  crews  of  naval  vessels,  2 
Wall.  Jr.  C.  C.  67;  1  Hagg.  Adm.  158;  15 
Pet.  518,  may  all  become  salvors,  and,  as 
such,  be  entitled  to  salvage  for  performing 
services  in  saving  property,  when  such  ser- 
vices are  not  within  or  exceed  the  line  of  their 
proper  official  duties. 

3.  The  finders  of  a  derelict  (that  is,  a  ship 
or  goods  at  sea  'abandoned  by  the  master 
and  crew  without  the  hope  or  intention  of 
returning  and  resuming  the  possession)  who 
take  actual  possession  with  an  intention  and 
with  the  means  of  saving  it  acquire  a  right  of 
possession  which  they  can  maintain  against 
all  the  world,  even  the  true  owner,  and  become 
bound  to  preserve  the  property  with  good 
faith  and  bring  it  to  a  place  of  safety  for  the 
owner's  use.  They  are  not  bound  to  part 
with  the  possession  until  their  salvage  is 
paid,  or  the  property  is  taken  into  the  custody 
of  the  law  preparatory  to  theamountof  salvage 
being  legally  ascertained.  Dav.  Dist.  Ct.  20; 
Olc.  Adm.  462;  Ware,  Dist.  Ct.  339.  If  they 
cannot  with  their  own  force  convey  the  pro* 


SAMPLE 


497 


SATISFACTION 


perty  to  a  place  of  safety  without  imminent 
risk  of  a  total  or  material  loss,  they  cannot, 
consistently  with  their  obligations  to  the 
owner,  refuse  the  assistance  of  other  persons 
proffering  their  aid,  nor  exclude  them  from 
rendering  it  under  the  pretext  that  they  are 
the  tinders  and  have  thus  gained  the  right 
to  the  exclusive  possession.  But  if  third 
persons  unjustifiably  intrude  themselves, 
their  services  will  enure  to  the  benefit  of  the 
original  salvors.  1  Dods.  Adm.  414 ;  3  Hagg. 
Adm.  15G  ;  01c.  Adm.  77. 

4.  If  a  first  set  of  salvors  fall  into  dis- 
tress, and  are  assisted  by  a  second  or  third 
set,  the  first  or  second  do  not  lose  their 
claim  to  salvage,  unless  they  voluntarily 
and  without  fraud  or  coercion  abandon  the 
enterprise,  but  they  all  share  together  ac- 
cording to  their  respective  merits.  1  Sumn. 
C.  C.  400;  1  W.  Rob.  Adm.  406  ;  2  id.  70. 
In  cases  of  ships  stranded  or  in  distress, 
not  derelicts,  salvors  do  not  acquire  an  ex- 
clusive possession  as  against  the  owner,  the 
master,  or  his  agent.  While  the  master  con- 
tinues on  board,  he  is  entitled  to  retain  the 
commaud  and  control  of  the  ship  and  cargo 
and  to  direct  the  labor.  The  salvors  are  as- 
sistants and  laborers  under  him;  and  they 
have  no  right  to  prevent  other  persons  from 
rendering  assistance,  if  the  master  wishes 
such  aid.  3  Hagg.  Adm.  383  ;  2  W.  Rob. 
Adm.  307 ;  2  Eng.  L.  &  Eq.  551.  When  the 
ship  has  been  relieved  from  its  peril,  salvors 
forfeit  no  right  and  impair  no  remedy  by 
leaving  the  ship.  1  Hagg.  Adm.  156 ;  1 
Newb.  Adm.  275.  Their  remedy  to  recover 
salvage  is  by  libel  or  suit  in  the  district  court 
of  the  United  States,  sitting  as  a  court  of  ad- 
miralty. 

SAMPLE.  A  small  quantity  of  any 
commodity  or  merchandise,  exhibited  as  a 
specimen  of  a  larger  quantity,  called  the 
bulk. 

When  a  sale  is  made  by  sample,  and  it 
afterwards  turns  out  that  the  bulk  does  not 
correspond  with  it,  the  purchaser  is  not,  in 
general,  bound  to  take  the  property  on  a  com- 
pensation being  made  to  him  for  the  difier- 
ence.  1  Campb.  113.  See  2  East,  314;  4 
Campb.  22 ;  9  Wend.  N.  Y.  20 ;  12  id.  413, 
566;  5  Johns.  N.  Y.  395;  6  N.  Y.  73,  95; 
13  Mass.  139 ;  2  Nott  &  M'C.  So.  C.  538  ; 
3  Rawle,  Penn.  37  ;  14  Mees.  &  W.  Exch. 
651. 

SANCTION.  That  part  of  a  law  which 
inflicts  a  penalty  for  its  violation  or  bestows 
a  reward  for  its  observance.  Sanctions  are 
of  two  kinds, — those  which  redress  civil  in- 
juries, called  civil  sanctions,  and  those  which 
punish  crimes,  called  penal  sanctions.  1  Hoff- 
man, Leg.  Outl.  279;  Rutherforth,  Inst.  b.  2, 
c.  6,  s.  6;  Toullier,  tit.  pr61.  86;  1  Blackstone, 
Comm.  56. 

SANCTUARY.  A  place  :f  :"efuge, 
where  the  process  of  the  law  cannot  be  exe- 
cuted. 

Sanctuaries  may  be  divided  into  religious 
and  civil.    The  former  were  very  common  in 
Vol.  IL— 32 


Europe, — religious  houses  affording  protc^ition 
from  arrest  to  all  persons,  whether  accused 
of  crime  or  pursued  for  debt.  This  kind  was 
never  known  in  the  United  States. 

Civil  sanctuary,  or  that  protection  which  is 
afforded  to  a  man  by  his  own  house,  was  al- 
ways respected  in  this  country.  The  hoube 
protects  the  owner  from  the  service  of  all 
civil  process  in  the  first  instance,  but  not 
if  he  is  once  lawfully  arrested  and  takes 
refuge  in  his  own  house.  See  Door  ;  House  ; 
Arrest. 

No  place  affords  protection  from  arrest  in 
criminal  cases:  a  man  may,  therefore,  be 
arrested  in  his  own  house  in  such  cases,  and 
the  doors  may  be  broken  for  the  purpose  of 
making  the  arrest.    See  Arrest. 

SANE  MEMORY.  That  understanding 
which  enables  a  man  to  make  contracts  and 
his  will,  and  to  perform  such  other  acts  as 
are  authorized  by  law.  See  Lunacy  ;  Memory  ; 
NoN  Compos  Mentis* 

SANG,  SANC.  Blood.  These  words  are 
nearly  obsolete. 

SANITY.  The  state  of  a  person  who 
has  a  sound  understanding;  the  reverse  of 
insanity. 

The  sanity  of  an  individual  is  always  pre* 
sumed.  5  Johns.  N.  Y.  144 ;  I  Pet.  163  ;  1 
Hen.  &  M.  Va.  476 ;  4  Wash.  C.  C.  202.  See 
9  Conn.  102;  1  Mass.  71;  3  id.  330;  8  id.  371; 
9  id.  225  ;  4  Pick.  Mass.  32 ;  8  Me.  42  ;  15 
Johns.  N.  Y.  503. 

SANS  CEO  QUE.  The  same  as  Ahsqnt 
hoc,  which  see. 

SANS  NOMBRE  (Fr.  without  number). 

In  English  Law.  A  term  used  in  relation 
to  the  right  of  putting  animals  on  a  common. 
The  term  common  sans  noinhre  does  not  mean 
that  the  beasts  are  to  be  innumerable,  but 
only  indefinite,  not  certain,  Willes,  227;  but 
they  are  limited  to  the  commoner's  own  com- 
monable cattle,  levant  et  couchant,  upon  his 
lands,  or  as  many  cattle  as  the  land  of  the 
commoner  can  keep  and  maintain  in  winter. 
2  Brownl.  101;  Ventr.  54;  5  Term,  48;  1 
Wms.  Saund.  28,  n.  4. 

SANS  RE  C  OURS  (Fr.  without  re- 
course). Words  which  are  sometimes  added 
to  an  indorsement  by  the  indorsee  to  avoid 
incurring  any  liability.  Chitty,  Bills,  179: 
7  Taunt.  160;  1  Carr.  N.  Y.  538;  3  Cranch, 
193;  7  id.  159;  12  Mass.  172;  14  Serg.  &  R. 
Penn.  325. 

SATISDATIO  (Lat.  satis,  and  dare).  In 
Civil  Law.  Security  given  by  a  party  to  an 
action  to  pay  what  might  be  adjudged  against 
him.  It  is  a  satisfactory  security  in  opposition 
to  a  naked  security  or  promise.  Vicat,  Voc 
Jjr. ;  3  Sharswood,  Blackst.  Comm.  291. 

SATISFACTION  (Lat.  satis,  enough, 
facio,  to  do,  to  make).  In  Practice.  An 
entry  made  on  the  record,  by  which  a  party 
in  whose  favor  a  judgment  was  rendered  de- 
clares that  he  has  been  satisfied  and  paid. 

In  Alabama,  Delaware,  Illinois,  Indi- 


SATISFACTION  PIECE 


498 


SCILICET 


ana,  Massachusetts,  New  Hampshire,  Penn- 
sylvania, Khode  Island,  South  Carolina,  and 
Vermont,  provision  is  made  by  statute,  re-  I 
quiring  the  mortgagee  to  discharge  a  mort- 
gage upon  the  record,  by  entering  satisfaction 
in  the  margin.  The  refusal  or  neglect  to 
enter  satisfaction  after  payment  and  demand 
renders  the  mortgagee  liable  to  an  action 
after  the  time  given  him  by  the  respective 
statutes  for  doing  the  same  has  elapsed,  and 
subjects  him  to  the  payment  of  damages,  and, 
in  some  cases,  treble  costs.  In  Indiana  and 
New  York,  the  register  or  recorder  of  deeds 
may  himself  discharge  the  mortgage  upon 
the  record  on  the  exhibition  of  a  certificate 
of  payment  and  satisfaction  signed  by  the 
mortgagee  or  his  representatives,  and  at- 
tached to  the  mortgage,  which  shall  be  re- 
corded. Ind.  Stat.  1836,  64 ;  1  N.  Y.  Rev. 
Stat.  761. 

In  Equity.  The  donation  of  a  thing,  with 
the  intention,  express  or  implied,  that  such 
donation  is  to  be  an  extinguishment  of  some 
existing  right  or  claim  in  the  donee.  See 
Legacy;  Cumulative  Legacy. 

SATISFACTION  PIECE.  In  English 
Practice.  An  instrument  of  writing  in  which 
it  is  declared  that  satisfaction  is  acknowledged 
between  the  plaintiff  and  defendant.  It  is 
signed  by  the  attorney,  and  on  its  production 
and  the  warrant  of  attorney  to  the  clerk  of 
the  judgments,  satisfaction  is  entered  on  pay- 
ment of  certain  fees.  Lee,  Diet,  of  Pract. 
Satisfaction. 

SATISFACTORY  EVIDENCE.  That 
which  is  suflBcient  to  induce  a  belief  that  the 
thing  is  true;  in  other  words,  it  is  credible 
evidence.    3  Bouvier,  Inst.  n.  3049. 

SCANDAL.  A  scandalous  verbal  report 
or  rumor  respecting  some  person, 

SCANDALOUS  MATTER.  In  Equity 

Pleading.  Unnecessary  matter  criminatory 
of  the  defendant  or  any  other  person,  al- 
leged in  the  bill,  answer,  or  other  pleading, 
or  in  the  interrogatories  to  or  answers  by  wit- 
nesses. Adams,  Eq.  306.  Matter  which  is 
relevant  can  never  be  scandalous,  Story,  Eq, 
PI.  g  270;  15  Ves.  Ch.  477  ;  and  the  degree 
of  relevancy  is  of  no  account  in  determining 
the  question.  Cooper,  Eq.  PI.  19;  2  Ves.  24; 
6  id.bU;  11  id.  256;  15  id.  417.  Where 
scandal  is  alleged,  whether  in  the  bill,  2  Ves. 
Ch.  631,  answer,  Mitford,  Eq.  Plead.  Jer.  ed. 
313,  cr  interrogatories  to  or  answer  of  wit- 
nesses, 2  Younge  &  C.  445,  it  will  be  referred 
to  a  master  at  any  time,  2  Ves.  Ch.  631,  and, 
by  leave  of  court,  even  upon  the  application 
of  a  stranger  to  the  suit,  6  Ves.  Ch.  514;  5 
Beav.  Rolls,  82,  and  matter  found  to  be 
scandalous  by  him  will  be  expunged,  Story, 
Eq.  Plead.  266,  862;  4  Hen.  &  M.  Va.  414, 
at  the  cost  of  counsel  introducing  it,  in  some 
cases.  Story,  Eq.  Plead,  g  266.  The  pre- 
sence of  scandalous  matter  in  the  Dill  is  no 
excuse  for  its  being  in  the  answer.  19  Me. 
214. 

SCANDALUM  MAGNATUM  (L.  Lat. 


slander  of  great  mien).  Words  spoken  in 
derogation  of  a  peer,  a  judge,  or  other  great 
officer  of  the  realm.  1  Ventr.  60.  This  was 
I  distinct  from  mere  slander  in  the  earlier  law,  V 
and  was  considered  a  more  heinous  offence. 
BuUer,  Nisi  P.  4.  See  3  Sharswood,  Blackst. 
Comm.  124. 

SCHEDULE.  In  Practice.  When  an 
indictment  is  returned  from  an  inferior  court 
in  obedience  to  a  writ  of  certiorari,  the  state- 
ment of  the  previous  proceedings  sent  with 
it  is  termed  the  schedule.  1  Saund  309  a, 
n.  2. 

Schedules  are  also  frequently  annexed  to 
answers  in  a  court  of  equity,  and  to  depo- 
sitions and  other  documents,  in  order  to  show 
more  in  detail  the  matter  they  contain  than 
could  otherwise  be  conveniently  shown. 

The  term  is  frequently  used  instead  of  in- 
ventory. 

SCHOOLMASTER.  One  employed  in 
teaching  a  school. 

*Z»  A  schoolmaster  stands  in  loco  parentis 
in  relation  to  the  pupils  committed  to  his 
charge,  while  they  are  under  his  care,  so  far 
as  to  enforce  obedience  to  his  commands  law- 
fully given  in  his  capacity  of  schoolmaster, 
and  he  may,  therefore,  enforce  them  by  mode- 
rate correction.  Comyns,  Dig.  Pleader  (3  M 
19) ;  Hftwkins,  PI.  Cr.  c.  60,  sect.  23 ;  4  Gray,  . 
Mass.  36.    See  Correction. 

3.  The  schoolmaster  is  justly  entitled  to  be  ' 
paid  for  his  important  and  arduous  services  ; 
by  those  who  employ  him.  See  1  Bingh.  357 ;  . 
8  J.  B.  Moore,  368.*  His  duties  are  to  teach  ' 
his  pupils  what  he  has  undertaken,  and  to  , 
have  a  special  care  over  their  morals.  See  I  ? 
Stark.  421 ;  Assault.  , 

SCIENDUM  (Lat.).    In  English  Law. 

The  name  given  to  a  clause  inserted  in  the 
record  by  which  it  is  made  "known  that 
the  justice  here  in  court,  in  this  same  term,  ; 
delivered  a  writ  thereupon  to  the  deputy  , 
sheriff  of  the  county  aforesaid,  to  be  exe- 
cuted  in  due  form  of  law."     Lee,  Diet,  \ 
Record.  \ 

SCIENTER  (Lat.  knowingly).  The  alle-  ! 
gation  of  knowledge  on  the  part  of  a  defend-  ; 
ant  or  person  accused,  which  is  necessary  to 
charge  upon  him  the  consequences  of  the 
crime  or  tort. 

A  man  may  do  many  acts  which  are  justi- 
fiable or  not,  as  he  is  ignorant  or  not  ignorant 
of  certain  facts.  He  may  pass  a  counterfeit 
coin,  when  he  is  ignorant  of  its  being  coun- 
terfeit, and  is  guilty  of  no  offence;  but  if  he 
knew  the  coin  to  be  counterfeit,  which  is 
called  the  scienter,  he  is  guilty  of  p£.ssii  g 
counterfeit  money. 

SCILICET  (Lat.  scire,  to  know,  licet,  it 
is  permitted:  you  may  know:  translated  by 
to  wit,  in  its  old  sense  of  to  know).  That  is 
to  say;  to  wit;  namely. 

It  is  a  clause  to  usher  in  the  sentence  of 
another,  to  particul  arize  that  which  was  too 
general  before,  distribute  what  was  too  gross, 
or  to  explain  what  was  doubtful  and  obscure. 


SCINTILLA  JURIS 


499 


SCIRE  FACIAS 


ft  ueitlier  increases  nor  diminishes  the  pre- 
mises or  habendum,  for  it  gives  nothing  of 
itself;  it  may  make  a  restriction  when  the 
preceding  words  may  l)e  restrained.  Ilob. 
^71;  1  P.  Will.  Ch.  18;  Coke,  Litt.  180  h, 
note  1. 

When  the  scilicet  is  repugnant  to  the  pre- 
cedent matter,  it  is  void:  for  exampk,  wlicn 
a  declaration  in  trover  states  that  the  plaintiff 
on  the  third  day  of  May  was  possessed  of  cer- 
tain goods  which  on  the  fourth  day  of  May 
came  to  the  defendant's  hands,  who  after- 
wards, to  wit,  on  the  Jirst  day  of  May,  con- 
verted them,  the  scilicet  was  rejected  as  sur- 
plusage. Croke  Jac.  428.  And  see  6  Binn. 
Penn.  15  ;  3  Saund.  291,  note  1. 

Stating  material  and  traversable  matter 
under  a  scilicet  will  not  avoid  the  conse- 
quences of  a  variance,  1  M'CIel.  &  Y.  277; 
4  Taunt.  321;  G  Term,  462;  2  Bos.  &  P.  170, 
n.  2;  1  Cow.  N.  Y.  676;  4  Johns.  N.  Y.  450; 
2  Pick.  Mass.  223  ;  nor  will  the  mere  omission 
of  a  scilicet  render  immaterial  matter  mate- 
rial, 2  Saund.  206  a;  3  Term,  68  ;  1  Chitty, 
Plead.  276 ;  even  in  a  criminal  proceeding. 
2  Campb.  307,  n.  See  3  Term,  68  ;  3  Maule 
&  S.  173. 

SCINTILLA  JURIS  (Lat.  a  spark  of  law 
or  right).  A  legal  fiction  resorted  to  for  the 
purpose  of  enabling  feoffees  to  uses  to  support 
contingent  uses  when  they  come  into  exist- 
ence, thereby  to  enable  the  Statute  of  Uses, 
27  Hen.  YIIL,  to  execute  them.  For  example, 
a  shifting  use:  a  grant  to  A  and  his  heirs  to 
the  use  of  B  and  his  heirs,  until  C  perform  an 
act,  and  then  to  the  use  of  C  and  his  heir?. 
Here  the  statute  executes  the  use  in  B,  which, 
being  coextensive  with  A's  seisin,  leaves  no 
actual  seisin  in  A.  When,  however,  C  per- 
forms the  act,  B's  use  ceases,  and  C's  springs 
up,  and  he  enjoys  the  fee-simple;  upon  w^hich 
the  question  arises,  out  of  what  seisin  C's  use 
is  served.  It  is  said  to  be  served  out  of  A's 
original  seisin;  for  upon  the  cesser  of  B's  use 
it  is  contended  that  the  original  seisin  re- 
verted to  A  for  the  purpose  of  serving  C's  use, 
and  is  a  possibility  of  seisin,  or  scintilla  juris. 
See  4  Kent,  Comm.  238  et  seq.,  and  the  au- 
thorities there  cited,  for  the  learning  upon 
this  subject;  Burton,  Real  Prop.  48,  49 ;  Wil- 
son, Springing  Uses,  59,  60;  Washburn,  Real 
Prop. 

SCIRE  FACIAS  (Lat.  that  you  make 
known).  The  name  of  a  writ  (and  of  the 
whole  proceeding)  founded  on  some  public 
record. 

2.  Public  records,  to  which  the  writ  is  ap- 
plicable, are  of  two  classes,  judicial  and  non- 
Judicial. 

Judicial  records  are  of  two  kinds,  judg- 
ments in  former  suits,  and  recognizances 
which  are  of  the  nature  of  judgments.  When 
founded  on  a  judgment,  the  purpose  of  the 
writ  is  either  to  revive  the  judgment,  which 
because  of  lapse  of  time — a  year  and  a  day  at 
common  law,  but  now  varied  by  statutes — is 
presumed  in  law  to  be  executed  or  released, 
and  therefore  execution  on  it  is  not  allowed 


without  giving  notice,  by  scire  facias,  to  the 
defendant  to  come  in,  and  show  if  he  can,  by 
release  or  otherwise,  why  execution  ought 
not  to  issue  ;  or  to  make  a  person,  who  derives 
a  benefit  by  or  becomes  chargeable  to  the 
execution,  a  party  to  the  judgment,  who  was 
not  a  party  to  the  original  suit.  In  both  of 
these  classes  of  cases,  the  purpose  of  the  writ 
is  merely  to  continue  a  former  suit  to  execu- 
tion. When  the  writ  is  founded  on  a  recog- 
nizance, its  purpose  is,  as  in  cases  of  judg- 
ment, to  have  execution  ;  and  though  it  is 
not  a  continuation  of  a  former  suit,  as  in  tho 
case  of  judgments,  yet,  not  being  the  com- 
mencement and  foundation  of  an  action,  it  is 
not  an  original,  but  a  judicial,  writ,  and  at 
most  is  only  in  the  nature  of  an  original 
action.  When  founded  on  a  judicial  record, 
the  writ  must  issue  out  of  the  court  where  the 
judgment  was  given  or  recognizance  entered 
of  record,  if  the  judgment  or  recognizance 
remains  there,  or  if  they  are  removed  out 
of  the  court  w^here  they  are.  3  Blackst. 
Comm.  416,  421 ;  Coke,  2d  Inst.  469-472  ;  3 
Gill  &  J.  Md.  359;  2  Wms.  Saund.  71,  72, 
notes. 

3.  Non-judicial  records  .are  letters  patent 
and  corporate  charters.  The  writ,  when 
founded  on  a  non-judicial  record,  is  the  com- 
mencement and  foundation  of  an  original 
action ;  and  its  purpose  is  always  to  re- 
peal or  forfeit  the  record.  Quo  warranto  is 
the  usual  and  more  appropriate  remedy  to 
forfeit  corporate  charters  and  offices ;  and 
scire  facias,  though  used  for  that  purpose,  is 
more  especially  applicable  to  the  repeal  of 
letters  patent.  When  the  crown  is  deceived 
by  a  false  suggestion,  or  when  it  has  granted 
any  thing  which  by  law  it  cannot  grant,  or 
where  the  holder  of  a  patent  office  has  com- 
mitted a  cause  of  forfeiture,  and  other  like 
cases,  the  crown  may  by  its  prerogative  re- 
peal by  scire  facias  its  own  grant.  And 
where  by  several  letters  patent  the  selfsame 
thing  has  been  granted  to  several  persons, 
the  first  patentee  is  of  right  permitted,  in 
the  name  and  at  the  suit  of  the  crown  by 
scire  facias,  to  repeal  the  subsequent  letters 
patent ;  and  so,  in  any  case  of  the  grant  of  a 
patent  w^hich  is  injurious  to  another,  the  in- 
jured party  is  permitted  to  use  the  name  of 
the  crown  in  a  suit  by  scire  facias  for  the 
repeal  of  the  grant.  This  privilege  of  suing 
in  the  name  of  the  crown  for  the  repeal 
of  the  patent  is  granted  to  prevent  multi- 
plicitv  of  suits.  2  "Wms.  Saund.  72,  notes; 
6  Mod.  230,  239 ;  10  id.  258 ;  Dy.  197  6, 
198  ;  4  Inst.  88  ;  2  Ventr.  354.  A  state 
may  by  scire  facias  repeal  a  patent  of  land 
fraudulently  obtained.  1  Harr.  &  M'll.  Md. 
162. 

In  the  United  States,  jurisdiction  over 
patents  for  writings  and  discoveries  is,  by 
the  8th  section  of  the  federal  constitution, 
vested  in  the  general  government.  And  by 
the  act  of  congress  of  February  21,  1793,  ch. 
ii.,  process  in  the  nature  of  a  scire  facias, 
founded  on  a  record  to  be  made  of  the  pre- 
liminary proceedings,  is  prescribed  as  the 


SCIRE  FACIAS 


500  SCIRE  FIERI  IXQUIRY 


mode  for  repealing  letters  patent.  9  Wheat. 
603  ;  1  Kent,  Comm.  381.  The  circuit  courts 
of  the  United  States  have  original  jurisdic- 
tion and  exclusive  authority  to  declare  a 
patent  void.  Act  of  Congress  of  July  4, 
1830  ;  2  Kent,  Comm.  368  ;  8  Paige,  Ch.  N.  Y. 
132. 

4.  Scire  facias  is  also  used  by  govern- 
ment as  a  mode  to  ascertain  and  enforce  the 
forfeiture  of  a  corporate  charter,  where  there 
is  a  legal  existing  body  capable  of  acting, 
but  who  have  abused  their  power :  it  cannot, 
like  qiio  warranto  (which  is  applicable  to  all 
cases  of  forfeiture),  be  applied  where  there  is 
a  body  corporate  de  facto  only,  who  take  upon 
themselves  to  act,  but  cannot  legally  exercise 
their  powers.  In  scire  facias  to  forfeit  a  cor- 
porate charter,  the  government  must  be  a 
party  to  the  suit;  for  the  judgment  is  that 
the  parties  be  ousted  and  the  franchises  be 
seized  into  the  hands  of  the  government.  2 
Kent,  Comm.  313;  10  Barnew.  &  C.  240; 
Yelv.  190  ;  5  Mass.  230  ;  16  Serg.  &  R.  Penn. 
140 ;  4  Gill  &  J.  Md.  1 ;  9  id.  365  ;  4  Gill, 
Md.  404. 

Scire  facias  is  also  used  to  suggest  further 
breaches  on  a  bond  with  a  condition,  where 
a  judgment  has  been  obtained  for  some  but 
not  all  of  the  breaches  and  to  recover  further 
instalments  where  a  judgment  has  been  ob- 
tained for  the  penalty  before  all  the  instal- 
ments are  due.  1  Wms.  Saund.  58,  n.  1 ;  4 
Md.  375. 

As  to  the  effects  of  the  judgment,  and  the 
principle  of  forfeiture,  see  Quo  Warranto. 

5.  The  pleadings  in  scire  facias  are  pecu- 
liar. The  writ  recites  the  judgment  or  other 
record,  and  also  the  suggestions  which  the 
plaintiff  must  make  to  the  court  to  entitle 
him  to  the  proceeding  by  scire  facias.  The 
writ,  therefore,  presents  the  plaintiff's  whole 
«ase,  and  constitutes  the  declaration,  to  which 
the  defendant  must  plead.  1  Blackf.  Ind. 
297.  And  when  the  proceeding  is  used  to 
forfeit  a  corporate  charter,  all  the  causes  of 
forfeiture  must  be  assigned  in  distinct 
breaches  in  the  writ,  as  on  a  bond  with  a 
condition  is  done  in  the  declaration  or  repli- 
cation. And  the  defendant  must  either  dis- 
claim the  charter  or  deny  its  existence,  or 
deny  the  facts  alleged  as  breaches,  or  demur 
to  them.  The  suggestions  in  the  writ,  dis- 
closing the  foundation  of  the  plaintiff's  case, 
must  also  be  traversed  if  they  are  to  be 
avoided.  The  scire  facias  is  founded  partly 
upon  them  and  partly  upon  the  record.  2 
Inst.  470,  679.  They  are  substantive  facts, 
and  can  be  traversed  by  distinct  pleas  em- 
bracing them  alone,  just  as  any  other  funda- 
mental allegation  can  be  traversed  alone.  All 
the  pleadings  after  the  writ  or  declaration 
are  in  the  ordinary  forms.  There  are  no 
pleadings  in  scire  facias  to  forfeit  a  corporate 
charter  to  be  found  in  the  books,  as  the  pro- 
ceeding has  been  seldom  used.  There  is  a 
case  in  1  P.  Will.  207,  but  no  pleadings. 
There  is  a  case  also  in  9  Gill,  Md.  379,  with 
a  synopsis  of  the  pleadings.  Perhaps  the 
only  other  case  is  in  Vermont;  and  it  is  with- 


out pleadings.  A  defendant  cannot  plead 
more  than  one  plea  to  a  scire  facias  to  lorfeit 
a  corporate  charter:  the  statutes  of  4  &  5 
Anne,  ch.  16,  and  9  Anne,  ch.  20,  allowing 
double  pleas,  do  not  extend  to  the  crown.  1 
Chitty,  Plead.  479 ;  1  P.  Will.  Ch.  220. 

SCIRE  FACIAS  AD  AUDIENDUM 
ERHORES  (Lat.).  The  name  of  a  writ 
which  is  sued  out  after  the  plaintiff  in  error 
has  assigned  his  errors.  Fitzherbert,  Nat. 
Brev.  20;  Bacon,  Abr.  Error  (F). 

SCIRE  FACIAS  AD  DISPROBAN* 
DUM  DEBITUM  (Lat.).  The  name  of  a 
writ  in  use  in  Pennsylvania,  which  lies  by  a 
defendant  in  foreign  attachment  against  tho 
plaintiff,  in  order  to  enable  him,  within  a 
year  and  a  day  next  ensuing  the  time  of  pay* 
ment  to  the  plaintiff  in  the  attachment,  to 
disprove  or  avoid  the  debt  recovered  against 
him.  Act  relating  to  the  commencement  of 
actions,  s.  61,  passed  June  13,  1836. 

SCIRE  FECI  (Lat.  I  have  made  known). 
In  Practice.  The  return  of  the  sheriff,  or 
other  proper  officer,  to  the  writ  of  scire  facias, 
when  it  has  been  served. 

SCIRE  FIERI  INQUIRY.  In  Eng- 
lish Law.  The  name  of  a  writ  formerly 
used  to  recover  the  amount  of  a  judgment 
from  an  executor. 

The  history  of  the  origin  of  the  writ  is  as  fob 
lows.  When  on  an  execution  de  honia  testatoria 
against  an  executor  the  sheriff  returned  7mlla  bona 
and  also  a  devastavit,  a  fieri  facias,  de  bonis  pro-' 
priin,  might  formerly  have  been  issued  against  th** 
executor,  without  a  previous  inquisition  finding  a 
devastavit  and  a  scire  facias.  But  the  most  usual 
practice  upon  the  sheriff's  return  of  nulla  bona  to 
a  fieri  facias  de  bonis  teslatoris  was  to  sue  out  a 
special  writ  of  feri  facias  de  bonis  testatoris,  with 
a  clause  in  it,  "  et  si  tibi  constare,  poterit,"  that  the 
executor  had  wasted  the  goods,  then  to  levy  d€ 
bonis  propriis.  This  was  the  practice  in  the  king's 
bench  till  the  time  of  Charles  I. 

2.  In  the  common  pleas  a  practice  had  pre-, 
vailed  in  early  times  upon  a  suggestion  in  the 
special  writ  of  Jieri  facias  of  a  devastavit  by  tho 
executor,  to  direct  the  sheriff  to  inquire  by  a  jury 
whether  the  executor  had  wasted  the  goods,  and  if 
the  jury  found  he  had,  then  a  scire  facias  was 
issued  out  against  him,  and,  unless  he  made  a  good 
defence  thereto,  an  execution  de  bonis  propriis  was 
awarded  against  him. 

The  practice  of  the  two  courts  being  different^ 
several  cases  were  brought  into  the  king's  bench  oh 

error,  and  at  last  it.  became  the  practice  of  both 

courts,  for  the  -  ;f  expedition,  to  incorporate 

the  fieri  facias    ■  ;•  ,-y,  and  scire  facias,  into  ono 

writ,  thence  ca  ;    icire  fieri  inquiry, — a  name 

compounded  of  '   ?t  words  of  the  two  writs  of 

scire  facias  and  etas,  and  that  of  inquiry,  of 
which  it  consist 

3.  This  writ  ;  he  fieri  facias  de  bonis  tes- 
tatoris sued  out  vii  .1  -jijdgment  against  the  execu- 
tor, the  return  <  '  ■7.,',  bona  by  the  sheriff,  and 
then,  suggesting  ie  executor  had  sold  and 
converted  the  go  he  testator  to  the  value  of 
the  debt  and  d?  recovered,  commands  the 
sheriff  to  levy  tl  debt  and  damages  of  thd 
goods  of  the  test  he  hands  of  the  executor* 
if  they  could  be  1  ereof,  but  if  it  should  ap- 
pear to  him  by  (  isition  of  a  jury  that  the 
executor  had  was  joods  of  the  testator,  then 
the  sheriff  is  to  1  )  executor  to  appear,  etc. 


SCITE 


501 


SEA 


If  the  judgment  had  been  either  by  or  against  the 
» testator  or  intestate,  or  both,  the  writ  of  fieri  facias 
i    Recites  that  fact,  and  also  that  the  court  had  ad- 
I    judged,  upon  a  scire  facias  to  revive  the  judgment, 
that  the  executor  or  administrator  should  have  exe- 
cution for  the  debt,  etc.    Clift,  Entr.  659;  Lilly, 
Eutr.  664, 

4.  Although  this  practice  is  eometimes 
adopted,  yet  the  most  usual  proceeding  is  by 
action  of  debt  on  the  judgment,  suggesting  a 
devastavit,  because  in  the  proceeding  by  scire 
Jieri  inquiry  the  plaintifi"  is  not  entitled  to 
costs  unless  the  executor  appears  and  pleads 
to  the  scire  facias.  1  Saund.  219,  n,  8.  See 
2  Archbold,  Pract.  934. 

SCITE.  The  setting  or  standing  of  any 
place.  The  seat  or  situation  of  a  capital  mes- 
suage, or  the  ground  on  which  it  stood. 
Jacob,  Law  Diet. 

SCOLD.  A  woman  who  by  her  habit  of 
fecolding  becomes  a  nuisance  to  the  neighbor- 
hood is  called  a  common  scold.  See  Com- 
mon Scold. 

SCOT  AND  LOT.    In  English  Law. 

The  name  of  a  customary  cdntribution,  laid 
upi)n  all  the  subjects  according  to  their 
ability. 

SCOTALE.  An  extortion  by  officers  of 
the  forests  who  kept  ale-houses  and  compelled 
people  to  drink  there  under  fear  of  their  dis- 
pleasure. Charter  of  the  Forest,  c.  7  ;  Man- 
wood,  For.  Laws,  pt.  1,  216. 

SCOUNDREL.  An  opprobrious  title, 
applicable  to  a  person  of  bad  character. 
General  damages  will  not  He  for  calling  a 
man  a  scoundrel,  but  special  damages  may 
be  recovered  when  there  has  been  an  actual 
loss.  2  Bouvier,  Inst.  n.  2250;  1  Chitty, 
Pract.  44. 

SCRAWL.  A  mark  which  is  to  supply 
the  place  of  a  seal.  2  Parsons,  Contr.  100. 
See  Scroll. 

SCRIP.  A  certificate  or  schedule.  Evi- 
dence of  the  right  to  obtain  shares  in  a  pub- 
lic company;  sometimes  called  scrip  certifi- 
cate, to  distinguish  it  from  the  real  title  to 
shares.  Wharton,  Law  Diet.  2d  Lond.  ed. ; 
15  Ark.  12.  The  possession  of  such  scrip  is 
prima  facie  evidence  of  ownership  of  the 
shares  therein  designated.  Addison,  Contr. 
203^.  It  is  not  goods,  wares,  or  merchandise 
within  the  Statute  of  Frauds.  16  Mees.  & 
VV.  Exch.  66. 

SCRIPT.  The  original  or  principal  in- 
strument, where  there  are  part  and  counter- 
part. 

SCRIVENER.  A  person  whose  busi- 
ness it  is  to  write  deeds  and  other  instruments 
for  others  ;  a  conveyancer. 

Money  scriveners  are  those  who  are  en- 
gaged in  procuring  money  to  be  lent  on  mort-  | 
gages  and  other  securities,  and  lending  such  ; 
money  accordingly.    They  act  also  as  agents 
for  the  purchase  and  sale  of  real  estates.  | 

To  be  considered  a  money  scrivener,  a  per- 
son muat  he  concerned  in  carrying  on  the 


trade  or  profession  as  a  means  of  making  a 
livelihooci.  He  must  in  the  course  of  his 
occupation  receive  other  men's  moneys  into 
his  trust  and  custody,  to  lay  out  for  them  as 
occasion  offers.  3  Campb.  538  j  2  Esp.  Cas. 
555. 

SCROLL.  A  mark  intended  to  supply 
the  place  of  a  seal  made  with  a  pen  or  other 
instrument  of  writing. 

A  scroll  is  adopted  as  a  sufficient  seal  in 
Jamaica,  1  Bos.  &  P.  360,  Arkansas,  Dela- 
ware, E^lorida,  Georgia,  Illinois,  Indiana, 
Maryland,  Michigan,  Minnesota,  Mississippi, 
Missouri,  North  Carolina,  ^^phio,  Oregon, 
Pennsylvania,  South  Carolina,  Wisconsin, 
and  perhaps  one  or  two  other  states.  In  the 
New  England  states,  New  Jersey,  and  New 
York,  the  common -law  seal  is  required. 
Thornton,  Conv.  passim.  And  see  7  Leigh, 
Va.  301 ;  4  Gratt.  Va.  283  ;  17  Miss.  34 ;  2 
Fla.  418. 

SCRUET  ROLL  (called,  also,  Scrvet  ^ 
Fininm,  or  simply  Scruet).  In  Old  English 
Law.  A  record  of  the  bail  accepted  in  cases 
of  habeas  corpus.  The  award  was  set  down 
in  the  remembrance  roll,  together  with  the 
cause  of  commitment,  the  writ  and  return 
were  put  on  tile,  the  bail  was  recorded  in  the 
scruet.  3  Howell,  St.  Tr.  134,  135,  arg.  For 
remembrance  roll,  see  Reg.  Michael.  1054, 
I  15. 

SCRUTATOR  (Lat.  from  scrufari,  to 
search).  In  Old  English  Law.  A  bailiff 
whom  the  king  of  England  appointed  in 
places  that  were  his  in  franchise  or  inte- 
rest, whose  duty  was  to  look  after  the  king's 
water-rights:  a.s,  foisam,  Jetsajn,  wreck,  etc. 
1  Hargr.  Tracts,  p.  23  ;  Pat.  27  Hen.  VI. 
parte  2,  m.  20;  Pat.  8  Ed.  IV.  parte  1, 
m.  22. 

SCUTAGE  (from  Lat.  scutum,  a  shield). 
Knight-service.  Littleton,  |  99.  The  tax 
which  those  who,  holding  by  knight-service, 
did  not  accompany  the  king,  had  to  pay  on 
its  being  assessed  by  parliament.  Escuage 
certain  was  a  species  of  socage  where  the 
compensation  for  service  was  fixed.  Little- 
ton, 97,  98 ;  Reg.  Orig.  88  ;  Wright,  Ten. 
121-134. 

SCYREGEMOTE.  The  name  of  a 
court  among  the  Saxons.  It  was  the  court 
of  the  shire,  in  Latin  called  curia  comttatus, 
and  the  principal  court  among  the  Saxons. 
It  was  holden  twice  a  year  for  determining 
all  causes  both  ecclesiastical  and  secular. 

SE  DEFENDENDO  (Lat.).  Defending 
himself. 

Homicide  se  defendendo  may  be  justifiable. 

SEA.  The  ocean ;  the  great  mass  of 
water  which  surrounds  the  land,  and  Avhich 
probably  extends  from  pole  to  pole,  covering 
nearly  three-quarters  of  the  globe.  Waters 
within  the  ebb  and  flow  of  the  tide  are  to 
be  considered  the  sea.    Gilp.  Dist,  Ct.  526. 

A  large  body  of  salt  water  communicating 
with  the  ocean  is  also  called  a  sea:  as,  th€ 
Mediterranean  sea,  etc. 


SEA-LETTER,  SEA-BRIEF  502 


SEA-WEED 


Very  large  inland  bodies  of  salt  water  are 
also  called  seas:  as,  the  Cq-spian  sea,  etc. 

The  open  sea  is  public  and  common  pro- 
perty, and  any  nation  or  person  has  ordinarily 
an  equal  right  to  navigate  it  or  to  fish  there- 
in, 1  Kent,  Comm.  27 ;  Angell,  Tide-Waters, 

44-  49;  1  Bouvier,  Inst.  170,  174,  and  to  land 
upon  the  sea-shore,  1  Bouvier,  Inst.  173, 174. 
But  it  is  generally  conceded  that  every  nation 
has  jurisdiction  tQ  the  distance  of  a  cannon- 
shot,  or  m.arine  league,  over  the  waters  ad,- 
jacent  to  its  shore.  2  Cranch,  187,  234; 
Bynkershoek,  Qu.  Pub.  Juris.  61 ;  Vattel, 
207. 

Every  nation  has  jurisdiction  over  the 
person  of  its  own  subjects  in  its  own  public 
and  private  vessels  when  at  sea ;  and  so  far 
territorial  jurisdiction  may  be  considered  as 
preserved ;  for  the  vessels  of  a  nation  are  in 
many  respects  considered  as  portions  of  its 
territory,  and  persons  on  board  are  protected 
and  governed  by  the  laws  of  the  country  to 
which  the  vessel  belongs.  The  extent  of 
jurisdiction  over  adjoining  seas  is  often  a 
question  of  difficulty,  and  one  that  is  still 
open  to  controversy.  As  far  as  a  nation  can 
conveniently  occupy,  and  that  occupation  is 
acquired  by  prior  possession  or  treaty,  the 
jurisdiction  is  exclusive.  1  Kent,  Comm.  29 
-31.  This  has  been  heretofore  limited  to  the 
distance  of  a  cannon-shot,  or  marine  league, 
over  the  waters  adjacent  to  its  shore.  2 
Cranch,  187,  234;  1  Cranch,  C.  C.  62; 
Bynkershoek,  Qu.  Pub.  Juris.  61 ;  1  Azuni, 
Marit.  Law,  204,  185 ;  Vattel,  207. 

SEA-LETTER,  SEA-BRIEF.  In 
Maritime  Law.  A  document  which  should 
be  found  on  board  of  every  neutral  ship:  it 
specifies  the  nature  and  quantity  of  the 
cargo,  the  place  from  whence  it  comes,  and 
its  destination.  Chitty,  Law  of  Nat.  197  ;  I 
Johns.  N.  Y.  192. 

SEA-SHORE.  That  space  of  land  on 
the  border  of  the  sea  which  is  alternately 
covered  and  left  dry  by  the  rising  and  falling 
of  the  tide ;  or,  in  other  words,  that  space  of 
land  between  high  and  low  water  mark. 
Ilargrave,  St.  Tr.  12 ;  6  Mass.  435,  439 ;  1 
Pick.  Mass.  180,  182;  5  Day,  Conn.  22;  12 
Me.  237  ;  2  Zabr.  N.  J.  441 ;  27  Eng.  L.  & 
Eq.  242;  4  DeGex,  M.  &  G.  206.  See  Tide  ; 
Tide-Water. 

2.  At  common  law,  the  sea-shore,  in  Eng- 
land, belongs  to  the  crown ;  in  this  country, 
to  the  state.  Angell,  Tide-Wat.  20  et  seq.;  3 
Kent,  Comm.  347  ;  27  Eng.  L.  &  Eq.  242 ;  6 
Mass.  435  ;  1  Dutch.  N.  J.  525 ;  16  Pet.  367 ;  3 
How.  221 ;  3  Zabr.  N.  J.  024.  In  England,  the 
sovereign  is  not  the  absolute  proprietor,  but 
holds  the  sea-shore  subject  to  the  public  rights 
of  navigation  and  fishery ;  and  if  he  grants 
it  to  an  individual  his  grantee  takes  subject 
to  the  same  rights.    Phoas,  Rights  of  Water, 

45-  55;  Angell,  Tide-Wat.  21.  So  in  this 
country  it  has  been  held  that  the  rights  of 
fishery  and  navigation  remain  unimpaired 
by  the  grant  of  lands  covered  by  navigable 
water.    6  Gill,  Md.  121.    But  the  power  of 


the  states,  unlike  that  of  the  crown,  is  absc>. 
lute,  except  in  so  far  as  it  is  controlled  by  tha^ 
federal  constitution.  Angell,  Tide-Wat.  59; 
The  states,  therefore,  may  regulate  the  use 
of  their  shores  and  the  fisheries  thereon, 
provided  such  regulations  do  not  interfere 
with  the  laws  of  congress.  4  Wash.  C.  C. 
371;  18  How.  71;  4  Zabr.  N.  J.  80;  2  Pet. 
245.    And  see  Tide-Water;  River. 

3.  The  public  right  of  fishing  includes 
shrimping  and  gathering  all  shell-fish  or 
other  fish  whose  natural  habitat  is  between 
high  and  low  water  mark.  5  Day,  Conn. 
22;  2  Bos.  &  P..472;  22  Me.  353.  In  Eng- 
land and  in  some  of  the  United  States  it  has 
been  held  that  the  public  have  no  right  to 
use  the  banks  of  rivers  for  the  purpose  of 
towing  vessels,  3  Term,  253  ;  11  Miss.  366; 
though  in  other  states  a  different  rule  seems 
to  have  been  adopted.  4  111.  520;  12  id.  29; 
31  Me.  9 ;  42  id.  552 ;  18  Barb.  N.  Y.  277  ,; 
4  Mo.  343  ;  1  Jones,  No.  C.  299. 

In  Pennsylvania  and  some  of  the  othei 
states  it  has  been  held,  contrary  to  the  com- 
mon law,  that  the  soil  of  the  sea-shore  be- 
longs to  the  riparian  proprietor.  6  Penn.  St. 
379 ;  28  id.  206 ;  1  Whart.  Penn.  536 ;  14 
B.  Monr.  Ky.  367 ;  11  Ohio,  138.  And  see 
River. 

In  Massachusetts  and  Maine,  by  the  colony 
ordinance  of  1691,  and  by  usage  arising  there- 
from, the  proprietors  of  the  adjoining  land  on 
bays  and  arms  of  the  sea,  and  other  places 
where  the  tide  ebbs  and  flows,  go  to  low- 
water  mark,  subject  to  the  public  easement, 
and  not  exceeding  one  hundred  yards  below 
high-water  mark.  3  Kent,  Comm.  429 ; 
Dane,  Abr.  c.  68,  a.  3,  4.    See  Wharf. 

4.  By  the  Roman  law,  the  shore  included 
the  land  as  far  as  the  greatest  wave  extended 
in  winter :  est  autem  liitus  maris,  quatemia 
hibernus,  jiucius  maximus  excurrit.  Inst. 
1.  2,  t.  1,  s.  3.  Liitus  publicum  est  eatenus 
qua  maxime  flnctus  excestuai.  Dig.  50.  16. 
112. 

The  Civil  Code  of  Louisiana  seems  to  have 
followed  the  law  of  the  Institutes  and  the  Di- 
gest ;  for  it  enacts,  art.  442,  that  the  "  sea-shore 
is  that  space  of  land  over  which  the  waters 
of  the  sea  are  spread  in  the  highest  water 
during  the  winter  season."  See  5  Rob.  Adm. 
182 ;  Dougl.  425 ;  1  Halst.  N.  J.  1 ;  2  Rolle, 
Abr.  170;  Dy.  326;  5  Coke,  107;  Bacon, 
Abr.  Courts  of  Admiralty  (A);  1  Am.  Law 
Mag.  76;  16  Pet.  234,  367;  Angell,  Tide- 
Waters,  Index,  Shore;  2  Bligh,  n.  s.  146;  5 
Mees.  &  W.  Exch.  327 ;  Merlin,  Quest,  de 
Droit,  Rivage  de  la  Mer ;  Inst.  2.  1.  1 ;  22 
Me.  350. 

SEA- WEED.  A  species  of  grass  which 
grows  in  the  sea. 

When  cast  upon  land,  it  belongs  to  the 
owner  of  the  land  adjoining  the  sea-shore, 
upon  the  grounds  that  it  increases  gradually, 
that  it  is  useful  as  manure  and  a  protection 
to  the  ground,  and  that  it  is  some  compen- 
sation for  the  encroachment  of  the  sea  upon 
the  land.  2  Johns.  N.  Y.  313.  323.  See  5 
Vt.  223. 


SEAL 


503 


SEALS 


The  French  differs  from  our  law  in  this  re- 
spect, as  sea-weeds  there,  when  cast  on  the 
beach,  belong  to  the  first  occupant.  Dalloz, 
Diet.  Propria^,  art.  3,  ^  2,  n.  128. 

SEAIi.  An  impression  upon  wax,  wafer, 
or  some  other  tenacious  substance  capable  of 
being  impressed.    5  Johns.  N.  Y.  239. 

Lord  Coke  defines  a  seal  to  be  wax,  with  an  im- 
pression. 3  Inst.  169.  "  Sig{llu7n,"  s'dya  he,  **  est 
cera  impresaa,  quia  cera  sine  impremiione  non  ent 
Bujillnm."  The  definition  given  above  is  the  com- 
mon-'aw  definition  of  a  seal.  Perkins,  129,  i;54; 
Br)ke,  Abr. /'aj(»,  17,  30;  2  Leon.  21;  5  Johns. 
K  r.  239  ;  2  Caines,  N.  Y.  362  ;  21  Pick.  Mass.  417. 
In  some  of  the  states  of  the  IJnited  States  a  scroll 
is  equally  elfective.    See  Scroll. 

Merlin  defines  a  seal  to  be  a  plate  of  metal  with 
a  flat  surface,  on  which  is  engraved  the  arms  of  a 
prince  or  nation,  or  private  individual,  or  other  de- 
vice, with  which  an  impression  may  be  made  on 
wax  or  other  substance  on  paper  or  parchment,  in 
order  to  authenticate  them :  the  impression  thus 
made  is  also  called  a  seal.  Rupert,  mot  Sceau;  3 
M'Cord,  So.  C.  583 ;  5  Whart.  Penn.  663. 

2.  When  a  seal  is  affixed  to  an  instrument 
it  makes  it  a  specialty.    See  Specialty. 

When  an  instrument  concludes  with  the 
■words,  "witness  our  hands  knd  seals,"  and  is 
signed  by  two  persons,  with  only  one  seal,  the 
jury  may  infer  from  the  face  of  the  paper 
that  the  person  who  signed  last  adopted  the 
seal  of  the  first.  6  Penn.  St.  302.  See  9 
Am.  Jur.  290-297 ;  1  Ohio,  368 ;  3  Johns. 
N.  Y.  470  ;  12  id.  76 ;  as  to  the  origin  and  use 
of  seals,  Addison,  Contr.  6;  Scroll. 

3.  The  public  seal  of  a  foreign  state 
proves  itself;  and  public  acts,  decrees,  and 
judgments  exemplified  under  this  seal  are 
received  as  true  and  genuine.  2  Cranch, 
187,  238;  4  Dall.  Penn.  416 ;  7  Wheat.  273, 
335;  1  Den.  N.  Y.  376;  2  Conn.  85,  90  ;  6 
Wend.  N.  Y.  475 ;  9  Mod.  66.  See  2  Munf. 
Va.  53.  But  to  entitle  its  seal  to  such  au- 
thority the  foreign  state  must  have  been  ac- 
knowledged by  the  government  within  whose 
jurisdiction  the  forum  is  located.  3  AVheat. 
610;  9  Ves.  Ch.  347. 

The  seal  of  a  notary  public  is  taken  judi- 
cial notice  of  the  world  over,  2  Esp.  700 ;  5 
Cranch,  535;  6  Serg.  &  R.  Penn.  484;  3 
Wend.  N.  Y.  173  ;  1  Gray,  Mass.  175;  but  it 
must  not  be  a  scroll.  4  Blackf.  Ind.  158. 
Judicial  notice  is  taken  of  the  seals  of  su- 
perior courts,  Comyns,  Dig.  Evidence  (A  2) ; 
not  so  of  foreign  courts,  3  East,  221 ;  9  id. 
192,  except  admiralty  or  maritime  courts. 
2  Cranch,  187;  4  id.  292,  435;  3  Conn.  171. 
So:  Story,  Confl.  Laws,  |  643 ;  2  Phillipps, 
Et.  4th  Am.  ed.  454,  notes. 

SEAL  OFFICE.  In  English  Practice. 
The  office  at  which  certain  judicial  writs  are 
sealed  with  the  prerogative  seal,  and  without 
which  they  are  of  no  authority.  The  officer 
whose  duty  it  is  to  seal  such  writs  is  called 
**  sealer  of  writs." 

SEAL  OF  THE  UNITED  STATES. 

The  seal  used  by  the  United  States  in  congress 
assembled  shall  be  the  seal  of  the  United 
States,  viz. :  Arms,  paleways  of  thirteen 
pieces  argent  and  gules;  a  chief  azure;  the 


escutcheon  on  the  breast  of  the  American 
eagle  displayer  proper,  holding  in  his  dexter 
talon  an  olive-branch,  and  in  his  sinister  a 
bundle  of  thirteen  arrows,  all  proper,  arid  in 
his-  beak  a  scroll,  inscribed  with  this  njotto, 
"  E  phtribus  unum."  For  the  Crest  :  over 
the  head  of  the  eagle  which  appears  above 
the  escutcheon,  a  glory,  or  breaking  through 
a  cloud,  proper,  and  surrounding  thirteen 
stars,  forming  a  constellation  argent  on  an* 
azure  field.  Reverse,  a  pyramid  unfinished. 
In  the  zenith,  an  eye  in  a  triangle,  surrounded 
with  a  glory  proper:  over  the  eye,  these 
words,  ''Annuit  ccepiis."  On  the  base  of  the 
pyramid,  the  numerical  letters  mdcclxxvi  ; 
and  underneath,  the  following  motto,  Novua 
ordo  sectorum."  Resolution  of  Congress, 
June  20,  1782;  Gordon,  Dig.  art.  207. 

SEALING  A  VERDICT.  In  Practice. 

The  putting  a  verdict  in  writing,  and  placing 
it  in  an  envelop,  which  is  sealed.  To  relieve 
jurors  after  they  have  agreed,  it  is  not  unusual 
for  the  counsel  to  agree  that  the  jury  shall 
seal  their  verdict  and  then  separate.  When 
the  court  is  again  in  session,  the  jury  come 
in  and  give  their  verdict  in  all  respects  as 
if  it  had  not  been  sealed;  and  a  juror  may 
dissent  from  it  if  since  the  sealing  he  has 
honestly  changed  his  mind.  8  Ohio,  405  ;  1 
Gilm.  333;  3  Bouvier,  Inst.  n.  3257. 

SEALS.  In  Louisiana.  A  method  of 
taking  the  effects  of  a  deceased  person  into 
public  custody. 

2.  On  the  death  of  a  person,  according  to  the  laws 
of  Louisiana,  if  the  heir  wishes  to  obtain  the  benefit 
of  inventory  and  the  delays  for  deliberating,  he  is 
bound,  as  soon  as  he  knows  of  the  death  of  the  de- 
ceased to  whose  succession  he  is  called,  and  before 
committing  any  act  of  heirship,  to  cause  the  seals 
to  be  afi&xed  on  the  effects  of  the  succession  by 
any  judge  or  justice  of  the  peace.  La.  Civ.  Code, 
art.  1027. 

In  ten  days  after  this  aflSxing  of  the  seals,  the 
heir  is  bound  to  present  a  petition  to  the  judge  of 
the  place  in  which  the  succession  is  opened,  pray- 
ing  for  the  removal  of  the  seals  and  that  a  true 
and  faithful  inventory  of  the  effects  of  the  succes- 
sion be  made.    Id.  art.  1028. 

In  case  of  vacant  estates,  and  estates  of  which 
the  heirs  are  absent  and  not  represented,  the  seals, 
after  the  decease,  must  be  affixed  by  a  judge  or 
justice  of  the  peace  within  the  limits  of  his  jurisdic- 
tion, and  may  be  fixed  by  him  either  ex  officio  or 
at  the  request  of  the  parties.  La.  Civ.  Code,  art. 
1070.  The  seals  are  affixed  at  the  request  of  the 
parties  when  a  widow,  a  testamentary  executor,  or 
any  other  person  who  pretends  to  have  an  interest 
in  a  succession  or  community  of  property,  requires 
it.  Id.  art.  1071.  They  are  affixed  euc  officio  when 
the  presumptive  heirs  of  the  deceased  do  not  all  re- 
side in  the  place  where  he  died,  or  if  any  of  them 
happen  to  be  absent.    Id.  art.  1072. 

3.  The  object  of  placing  the  seals  on  the  effects 
of  a  succession  is  for  the  purpose  of  preserving 
them,  and  for  the  interest  of  third  persons.  Id.  art. 
1068. 

The  seals  must  be  placed  on  the  bureaus,  cof- 
fers, armoires,  and  other  things  which  contain 
the  effects  and  papers  of  the  deceased,  and  on 
the  doors  of  the  apartments  which  contain  these 
things,  so  that  they  cannot  be  opened  without 
tearing  off,  breaking,  or  altering  the  seals.  Li. 
art.  1069. 


SEAMAN 


504 


SEAMEN'S  FUND 


The  judge  or  justice  of  the  peace  who  aflSxes 
the  seals  is  bound  to  appoint  a  guardian,  at  the  ex- 
pense of  the  succession,  to  take  care  of  the  seals 
and  of  the  effects,  of  which  an  account  is  taken  at  the 
end  of  the  proces-verbal  of  the  affixing  of  the 
seals.  The  guardian  must  be  domiciliated  in  'the 
place  where  the  inventory  is  taken.  Id.  art.  1079. 
And  the  judge,  when  he  retires,  must  take  with 
him  the  keys  of  all  things  and  apartments  upon 
which  the  seals  have  been  affixed.  Id. 
•■  The  raising  of  the  seals  is  done  by  the  judge  of 
the  place,  or  justice  of  the  peace  appointed  by  him 
to  that  effect,  in  the  presence  of  the  witnesses  of 
the  vicinage,  in  the  same  manner  as  for  the  affixing 
of  the  seals.    Id.  art.  1084. 

SEAMAN.  A  sailor;  a  mariner;  one 
whose  business  is  navigation.  2  Boulay-Paty, 
Dr.  Com.  232;  Code  de  Commerce,  art.  262  ; 
Laws  of  Oleron,  art.  7  ;  Laws  of  Wisbuy, 
art.  19. 

2.  The  term  seamen,  in  its  most  enlarged 
sense,  includes  the  captain  as  well  as  other 
persons  of  the  crew;  in  a  more  confined  sig- 
nification, it  extends  only  to  the  common 
Bailors.  3  Pardessus,  n.  667.  But  the  mate, 
1  Pet.  Adm.  246,  the  cook  and  steward,  2  Pet. 
Adm.  268,  and  engineers,  clerks,  carpenters, 
firemen,  deck-hands,  porters,  and  cliamber- 
maids,  on  passenger-steamers,  when  necessary 
for  the  service  of  the  ship,  1  Conkling,  Adm. 
107;  2  Parsons,  Marit.  Law,  582,  are  con- 
sidered, as  to  their  rights  to  sue  in  the  ad- 
miralty, as  common  seamen ;  and  persons 
employed  on  board  of  steamboats  and  lighters 
engaged  in  trade  or  commerce  on  tide-water 
are  within  the  admiralty  jurisdiction;  while 
those  employed  in  ferry-boats  are  not.  Gilp. 
Dist.  Ct.  203,  532.  Persons  who  do  not  con- 
tribute their  aid  in  navigating  the  vessel  or  to 
its  preservation  in  the  course  of  their  occupa- 
tion, as  musicians,  are  not  to  be  considered  as 
seamen  with  a  right  to  sue  in  the  admiralty 
for  their  wages.  Gilp,  Dist.  Ct.  516.  See 
Lien. 

3.  Seamen  are  employed  either  in  mer- 
chant-vessels for  private  service,  or  in  public 
vessels  for  the  service  of  the  United  States. 

Seamen  in  the  merchant-vessels  are  re- 
quired to  enter  into  a  contract  in  writing, 
commonly  called  shipping  articles,  which 
see.  This  contract  being  entered  into,  they 
are  bound,  under  severe  penalties,  to  render 
themselves  on  board  the  vessel  according  to 
the  agreement:  they  are  not  at  liberty  to 
leave  the  ship  without  the  consent  of  the 
captain  or  commanding  officer;  and  for  such 
absence,  when  less  than  forty-eight  hours, 
they  forfeit  three  days'  wages  for  every  day 
of  absence;  and  when  the  absence  is  more 
than  forty-eight  hours  at  one  time,  they  for- 
feit all  the  wages  due  to  them,  and  all  their 
goods  and  chattels  which  were  on  board  the 
vessel,  or  in  any  store  where  they  may  have 
been  lodged  at  the  time  of  their  desertion,  to 
the  use  of  the  owners  of  the  vessel ;  and  they 
are  liable  for  damages  for  hiring  other  hands. 
They  may  be  imprisoned  for  desertion  until 
the  ship  IS  ready  to  sail. 

4.  On  board,  a  seaman  is  bound  to  do  his 
duty  to  the  utmost  of  his  ability ;  and  when 
bie  services  are  required  for  extraordinary 


exertions,  either  in  consequence  of  the  death 
of  other  seamen  or  on  account  of  unforeseen 
perils,  he  is  not  entitled  to  an  increase  of 
wages,  although  it  may  have  been  promised 
to  him.  2  Campb.  317  ;  Peake,  72;  1  Term 
73.  For  disobedience  of  orders  he  may  be 
imprisoned  or  punished  with  stripes;  but  the 
correction  must  be  reasonable,  4  Mas.  C.  C. 
508;  Bee,  Adm.  161;  2  Day,  Conn.  294;  1 
Wash.  C.  C.  316;  and,  for  just  cause,  may 
be  put  ashore  in  a  foreign  country.  1  Pet. 
Adm.  186 ;  2  id.  268 ;  2  East,  145.  By  act 
of  congress,  September  28,  1850,  9  U.  S. 
Stat,  at  Large,  515,  it  is  provided  that  flog- 
ging in  the  navy' and  on  board  vessels  of 
commerce  be,  and  the  same  is  hereby,  abo- 
lished from  and  after  the  passage  of  this  act. 
And  this  prohibits  corporal  punishment  by 
stripes  inflicted  with  a  cat,  and  any  punish- 
ment which  in  substance  and  effect  amounts 
thereto.    1  Curt.  C.  C.  501. 

5.  Seamen  are  entitled  to  their  wages,  of 
which  one-third  is  due  at  every  port  at  which 
the  vessel  shall  unlade  and  deliver  her  cargo 
before  the  voyage  be  ended ;  and  at  the  end  of 
the  voyage  an  easy  and  speedy  remedy  is  given 
them  to  recover  all  unpaid  wages.  When 
taken  sick,  a  seaman  is  entitled  to  medical 
advice  and  aid  at  the  expense  of  the  ship, 
such  expense  being  considered  in  the  nature 
of  additional  wages  and  as  constituting  a 
just  remuneration  for  his  labor  and  ser- 
vices. Gilp.  Dist.  Ct.  435,  447 ;  2  Mas.  C.  C. 
541. 

The  right  of  seamen  to  wages  is  founded 
not  in  the  shipping  articles,  but  in  the  ser- 
vices performed,  Bee,  Adm.  395 ;  and  to  re- 
cover such  wages  the  seaman  has  a  triple 
remedy, — against  the  vessel,  the  owner,  and 
the  master.  Gilp.  Dist.  Ct.  592 ;  Bee,  Adm. 
254. 

6.  When  destitute  in  foreign  ports,  Ame- 
rican consuls  and  commercial  agents  are  re- 
quired to  provide  for  them,  and  for  their 
passage  to  some  port  of  the  United  States,  in 
a  reasonable  manner,  at  the  expense  of  the 
United  States ;  and  American  vessels  are 
bound  to  take  such  seamen  on  board  at  the 
request  of  the  consul,  but  not  exceeding  two 
men  for  every  hundred  tons  of  the  ship, 
and  transport  them  to  the  United  States,  on 
such  terms,  not  exceeding  ten  dollars  for 
each  person,  as  may  be  agreed  on.  See,  gene- 
rally, Brightly,  Dig.  U.  S.  Laws ;  3  Kent, 
Comm.  136-156;  Marshall,  Ins.  90;  Pothier, 
Mar.  Contr.,  translated  by  Cushing,  Index ; 
2  Brown,  Civ.  &  Adm.  Law,  155  ;  Parsons, 
Marit.  Law;  Conkling,  Adm.;  Abbott,  Ship- 
ping; Lien;  Captain. 

Seamen  in  the  public  service  are  governed 
by  particular  laws.    See  Navy  ;  Naval  Code. 

SEAMANSHIP.  The  skill  of  a  good 
seaman ;  an  acquaintance  with  the  art  of 
navigating  and  managing  a  ship  or  other 
vessel.  See  Dana,  Seaman's  Friend ;  Parish, 
Sea-Officer's  Manual:  Bowditch,  Navigator j 
The  Sheet-Anchor ;  The  Kedge-Anchor. 

SEAMEN' S  FUND.  By  the  act  of  J ulj 


SEARCH 


505 


SEARCII-W  ARRANT 


16,  1798,  &  J. r: vision  is  made  for  raising  a 
fund  for  the  relief  of  disabled  and  sick  sea- 
men :  tlie  amster  of  every  vessel  arriving 
from  a  foreign  jmrt  into  th-e  United  States  is 
required  to  pay  to  the  collector  of  customs 
ftt  the  rate  of  twenty  cents  per  month  for 
every  seaman  employed  on  board  of  his  ves- 
sel, which  sum  he  may  retain  out  of  the 
wages  of  such  seaman  ;  vessels  engaged  in 
the  goasting-trade,  and  boats,  rafts,  or  flats 
navigating  the  Mississippi  with  intention  to 
proceed  to  New  Orleans,  are  also  laid  under 
similar  obligations.  The  fund  thus  raised 
is  to  be  employed  by  the  president  of  the 
United  States,  as  circumstances  shall  require, 
for  the  benefit  and  convenience  of  sick  and 
disabled  American  seamen.  Act  of  March 
3,  1802,  s.  1. 

2.  By  the  act  of  congress  passed  February 
28,  1803,  c.  62,  2  U.  S.  Stat,  at  Large,  223, 
it  is  provided  that  when  a  seaman  is  dis- 
charged in  a  foreign  country  with  his  own 
consent,  or  when  the  ship  is  sold  there,  he 
shall,  in  addition  to  his  usual  wages,  be  paid 
three  months'  wages  into  the  hands  of  the 
American  consul,  two-thirds  of  which  are  to 
be  paid  to  such  seaman  on  his  engagement 
on  board  any  vessel  to  return  home,  and  the 
remaining  one-third  is  retained  in  aid  of  a 
fund  for  the  relief  of  distressed  American 
Bcamen  in  foreign  ports.  See  11  Johns. 
N.  Y.  66  ;  12  id.  143  ;  1  Mas.  C.  C.  45  ;  4  id, 
541 ;  Edw.  Adm.  239. 

SEARCH.  In  Criminal  Law.  An  ex- 
amination of  a  man's  house,  premises,  or  per- 
Bon,  for  the  purpose  of  discovering  proof  of 
bis  guilt  in  relation  to  some  crime  or  misde- 
meanor of  which  he  is  accused. 

2.  The  constitution  of  the  United  States, 
Amendments,  art.  4,  protects  the  people  from 
unreasonable  searches  and  seizures.  3  Story, 
Const.  §  1895 ;  Rawle,  Const,  ch.  10,  p.  127  ; 
10  Johns.  N.  Y.  203  ;  11  id.  500 ;  1  U.  S.  Stat. 
U,t  Large,  651 ;  3  Cranch,  447. 

By  the  act  of  March  2,  1799,  s.  68,  it  is 
enacted  that  every  collector,  naval  officer, 
and  surveyor,  or  other  person  specially  ap- 
pointed by  either  of  them  for  that  purpose, 
Bhall  have  full  power  and  authority  to  enter 
any  ship  or  vessel  or  any  dwelling-house  in 
the  daytime,  upon  taking  proper  measures, 
to  search  for  goods  forfeited  for  non-payment 
of  duties. 

SEARCH.  In  Practice.  An  examina- 
tion made  in  the  proper  lien  office  for  mort- 
gages, liens,  judgments,  or  other  incum- 
brances against  real  estate.  The  certificate 
given  by  the  officer  as  to  the  result  of  such 
examination  is  also  called  a  search. 

Conveyancers  and  others  who  cause  searches  to 
be  made  ought  to  be  very  careful  that  they  should 
be  correct  with  regard — to  the  time  during  which 
the  person  against  whom  the  search  has  been 
made  owned  the  premises  ;  to  the  property  searched 
against,  which  ought  to  be  properly  described;  to 
the  form  of  the  certificate  of  search. 

SEARCH,  RIGHT  OF.  In  Maritime 
Law.  The  right  existing  in  a  belligerent  to 
examine  and  inspect  the  papers  of  a  neutral 


vessel  at  sea.  On  the  continent  of  PiUrope 
this  is  called  the  right  of  visit.  Dalloz,  Diet. 
Prises  marUimes,  n.  104-111. 

2.  The  right  docs  not  extend  to  examine 
the  cargo,  nor  does  it  extend  to  a  ship  oi  war, 
it  being  strictly  confined  to  the  searching  of 
merchant-vessels.  The  exercise  of  the  right 
is  to  prevent  the  commerce  of  contraband 
goods.  Although  frequently  resisted  by 
powerful  neutral  nations,  yet  this  right  ap- 
T)ears  now  to  bo  fixed  beyond  contravention. 
The  penalty  for  violently  resisting  this  right 
is  the  confiscation  of  the  property  so  with- 
held from  visitation.  Unless  in  extreme  casefl 
of  gross  abuse  of  his  right  by  a  belligerent, 
the  neutral  has  no  right  to  resist  a  search. 
1  Kent,  Comm.  154 ;  2  Brown,  Civ.  &  Adm. 
Law,  319. 

3.  The  right  of  search — or  rather  of  visita- 
tion— in  time  of  peace,  especially  in  its  con- 
nection with  the  efforts  of  the  British  govern- 
mentforthe  suppression  of  the  slave-trade,  has 
been  the  subject  of  much  discussion;  but  it  is 
not  within  the  scope  of  this  work  to  review 
such  discussions.  Wheaton,  Right  of  Search ; 
The  Life  of  Genl.  Cass,  by  Smith,  c.  25,  26 ; 
Webster,  Works,  vol.  6,  329,  335,  338 ;  and 
the  documents  relating  to  this  subject  com- 
municated to  congress  from  time  to  time,  and 
most  of  the  works  on  international  law,  may 
be  profitably  examined  by  those  who  desire 
to  trace  the  history  and  understand  the 
merits  of  the  questions  involved  in  the  pro- 
posed exercise  of  this  right.  See,  also,  Edin- 
burgh Review,  vol.  11,  p.  9  Foreign  Quar- 
terly Review,  vol.  35,  p.  211 ;  3  Phillimore, 
International  Law,  Index,  title  Visit  and 
Search. 

SEARCH-WARRANT.    In  Practice. 

A  warrant  requiring  the  officer  to  whom  it  is 
addressed  to  search  a  house,  or  other  place, 
therein  specified,  for  property  therein  alleged 
to  have  been  stolen,  and,  if  the  same  shall 
be  found  upon  such  search,  to  bring  the 
goods  so  found,  together  with  the  body  of  the 
person  occupying  the  same,  who  is  named, 
before  the  justice  or  other  officer  granting 
the  warrant,  or  some  other  justice  of  the 
peace,  or  other  lawfully-authorized  officer. 

2.  It  should  be  given  under  the  hand  and 
seal  of  the  justice,  and  dated. 

The  constitution  of  the  United  States, 
Amendments,  art.  4,  declares  that  "  the  right 
of  the  people  to  be  secure  in  theii  persons, 
houses,  papers,  and  efi'ects  against  unreason- 
able searches  and  seizures,  shall  not  be  vio- 
lated ;  and  no  warrants  shall  issue  but  upon 
probable  cause,  supported  by  oath  or  affirm- 
ation, and  particularly  describing  the  place 
to  be  searched,  and  the  person  or  thing  to  be 
seized.''  See  11  Johns.  N.  Y.  500;  3  Cranch, 
447. 

3.  Lord  Hale,  2  PI.  Cr.  149,  150,  re^om- 
mends  great  caution  in  granting  such  war- 
rants -.—frst,  that  they  be  not  granted  with- 
out oath  made  before  a  justice  of  a  felon j 
committed,  and  that  the  complainant  has 
probable  cause  to  suspect  that  the  goods  are 
in  such  a  house  or  place,  and  his  reasons  for 


SEARCHER 


506 


SECONDARY 


Buch  suspicion,  see  2  Wils.  283  ;  1  Dowl.  &  R. 
97  ;  13  Mass.  236  ;  5  lied.  No.  C.  45  ;  1  R.  I. 
464  ;  second,  that  such  warrants  express  that 
the  search  shall  be  made  in  daytime ;  third, 
that  they  ought  to  be  directed  to  a  constable 
or  other  proper  officer,  and  not  to  a  private 
person  ;  fourth,  that  they  ought  to  command 
the  officer  to  bring  the  stolen  goods,  and  the 
person  in  whose  custody  they  are,  before 
some  iustice  of  the  peace.  See  6  Barnew. 
&  C.  *332 ;  5  Mete.  Mass.  98  ;  4  Wash.  C. 
C.  .  They  should  designate  the  place  to 
bo  searched.  1  Mees.  &  W.  Exch.  255  ;  2 
Mete.  Mass.  329 ;  5  id.  98  ;  2  J.  J.  Marsh.  Ky. 
44  ;  6  Blackf.  Ind.  249  ;  1  Conn.  40.  Trespass 
"will  not  lie  against  a  party  who  has  procured 
a  search-warrant  to  search  for  stolen  goods, 
if  the  warrant  be  duly  issued  and  regularly 
executed.  6  Wend.  N.  Y.  382.  And  see  6 
Me.  421;  2  Conn.  700  ;  9  id.  141 ;  10  Johns. 
N.  Y.  203  ;  11  Mass.  500  ;  2  Litt.  Ky.  231 ;  6 
Gill  &  J.  Md.  377. 

SEARCHER.  In  English  Law.  An 
officer  of  the  customs,  whose  duty  it  is  to  ex- 
amine and  search  all  ships  outward  bound,  to 
ascertain  whether  they  have  any  prohibited 
or  uncustomed  goods  on  board. 

SEATED  LANDS.  In  the  early  land- 
legislation  of  some  of  the  United  States,  seated 
is  used,  in  connection  with  improved,  to  denote 
lands  of  which  actual  possession  was  taken. 
6  Pet.  468. 

SEAWORTHINESS.  In  Maritime 
Law.  The  sufficiency  of  the  vessel  in  ma- 
terials, construction,  equipment,  officers,  men, 
and  outfit,  for  the  trade  or  service  in  which 
it  is  employed. 

St.  Under  a  marine  policy  on  ship,  freight, 
or  cargo,  the  fitness  for  the  service  of  the 
vessel,  if  there  is  no  provision  to  the  contrary 
at  the  outset,  is  an  implied  condition,  non- 
compliance with  which  defeats  the  insurance. 
1  Phillips,  Ins.  ch.  viii.  sect.  ii. ;  Marshall,  Ins. 
160 ;  2  Johns.  N.  Y.  231 ;  1  Whart.  Penn.  399 ; 
Cowp.  143;  1  Arnoult,  Ins.  662;  1  Dow.  32; 

1  Campb.  1;  5  Pick.  Mass.  21;  2  Ohio,  211; 

2  Barnew.  &  Aid.  73  ;  6  Cow.  N.  Y.  270;  7 
Term,  160;  3  Hill,  N.  Y.  250;  4  Mas.  C.  C. 
439;  20  Wend.  N.  Y.  287;  1  Pet.  C.  C.  410; 
1  Wall.  Jr.  C.  C.  273;  1  Curt.  C.  C.  278;  14 
Barb.  N.  Y.  206;  33  Eng.  L.  &  Eq.  325  ;  34 
id.  266,  277  ;  26  Penn.  St.  192 ;  4  Hou.  L. 
Cas.  253 ;  01c.  Adm.  110;  4  Du.  N.  Y.  234; 
12  Md.  348. 

It  is  of  no  consequence  whether  the  insured 
^ras  aware  of  the  condition  of  the  ship,  or  not. 
His  inno3ence'  or  ignorance  is  no  answer  to 
the  fact  that  the  ship  was  not  seaworthy. 
When  the  M^ant  of  seaworthiness  arises  from 
justifiable  ignorance  of  the  cause  of  the  de- 
fect, and  is  discovered  and  remedied  before 
any  injury  occurs,  it  is  not  to  be  considered 
as  a  defect.  1  Johns.  N.  Y.  241 ;  2  id.  124, 
129  ;  3  Johns.  Cas.  N.  Y.  76  ;  1  Pet.  183  ;  2 
Barnew.  &  Aid.  73. 

3.  The  opinion  of  carpenters  who  have  re- 
paired tlie  vessel,  however  they  may  strengthen 
the  presumption  that  the  ship  is  seaworthy, 


when  it  is  favorable,  is  not  conclusive  of  the 
fact  of  seaworthiness.  4  Dowl.  269.  The  pre- 
sumption prima  facie  is  for  seaworthiness. 
1  Dowl.  336.  And  it  is  presumed  that  a  vessel 
continues  seaworthy  if  she  was  so  at  the  in- 
ception of  the  risk.  20  Pick.  Mass.  389.  See 
1  Brev.  No.  C.  252.  Any  sort  of  disrepair 
left  in  the  ship,  by  which  she  or  the  cargo 
may  suffer,  is  a  breach  of  the  warranty  of 
seaworthiness.  A  deficiency  of  force  in  the 
crew,  or  of  skill  in  the  master,  mate,  efc,  is 
a  want  of  seaworthiness.  1  Campb.  1 ;  14 
East,  481 ;  4  Du.  N.  Y.  234.  But  if  there  was 
once  a  sufficient  crew,  their  temporary  ab- 
sence will  not  be  considered  a  breach  of  the 
warfanty.  2  Barnew.  &  Aid.  73 :  1  Johns, 
Cas.  N.  Y.  184 ;  1  Pet.  183.  A  vessel  may 
be  rendered  not  seaworthy  by  being  over- 
loaded.   2  Barnew.  &  Aid.  320. 

It  can  never  be  settled  by  positive  rules  of . 
law  how  far  this  obligation  of  seaworthiness 
extends  in  any  particul.ir  case,  for  the  reason 
that  improvements  and  changes  in  the  means 
and  modes  of  navigation  frequently  require 
new  implements,  or  new  forms  of  old  ones; 
and  these,  though  not  necessary  at  first,  be- 
come  so  when  there  is  an  established  usage 
that  all  ships  of  a  certain  quality,  or  those  to 
be  sent  on  certain  voyages  or  used  for  certain 
purposes,  shall  have  them.  2  Parsons,  Marit. 
Law,  134.  Seaworthiness  is,  therefore,  in 
general,  a  question  of  fact  for  the  jury.  Id» 
137;  1  Pet.  170,  184;  1  Bouvier,  Inst.  441. 

SECK.  A  want  of  remedy  by  distress. 
Littleton,  s.  218,  See  Rent.  Want  of  present 
fruit  or  profit,  as  in  the  case  of  the  reversion 
without  rent  or  other  service,  except  fealty. 
Coke,  Litt.  151  h,  note  5. 

SECOND.  A  measure  equal  to  one-six- 
tieth part  of  a  minute.    See  Measure. 

SECOND   DELIVERANCE.  In 

Practice.     The  name  of  a  writ  given  by 
statute  of  Westminster  2d,  13  Edw.  I.  c.  2, , 
founded  on  the  record  of  a  former  action  of 
replevin.    Coke,  2d  Inst.  341.    It  commands  \ 
the  sheriff",  if  the  plaintiff"  make  him  secure', 
of  prosecuting  his  claim  and  returning  the ' 
chattels  which  were  adjudged  to  the  defend- , 
ant  by  reason  of  the  plaintiff's  default,  to' 
make  deliverance.    On  being  nonsuited,  the 
plaintiff  in  replevin  might,  at  common  law, 
have  brought  another  replevin,  and  so  ad 
infinitum,  to  the  intolerable  vexation  of  tho 
defendant.    The  statute  of  Westminster  re- 
strains the  plaintiff"  when  nonsuited  from  so 
doing,  but  allows  him  this  writ,  issuing  out 
of  the  original  record,  in  order  to  have  the 
same  distress  delivered  again  to  him,  on  his 
giving  the  like  security  as  before.    3  Black- 
stone,  Comm.  150;  Eitzherbert,  Nat.  Brev. 
68. 

SECOND  SURCHARGE,  WRIT  OP. 

The  name  of  a  writ  issued  in  England  against 
a  commoner  who  has  a  second  time  sur- 
charged the  common.  3  Blackstone,  Comm 
239. 

SECONDARY.   In  English  Law.  All. 


SECONDARY  CONVEYANCES  1)07 


ofiBcer  ^vho  is  second  or  next  to  the  chief 
officer;  as,  secondaries  to  the  prothonotaries 
of  the  courts  of  king's  bench  or  common 
pleas;  secondary  of  the  remembrancer  in  the 
exchequer,  etc.    Jacob,  Law  Diet. 

SECONDARY  CONVEYANCES,  or 

derivative  conveyances,  are  those  which  pre- 
suppose some  other  conveyance  precedent, 
and  only  serve  to  enlarge,  confirm,  alter,  re- 
strain, restore,  or  transfer  the  interest  granted 
by  such  original  conveyance.  2  Sharswood, 
Blackst.  Comm.  324*. 

SECONDARY  EVIDENCE.  That 
species  of  proof  which  is  admissible  on  the 
loss  of  primary  evidence,  and  which  becomes 
by  that  event  the  best  evidence.  3  Bouvier, 
Inst.  n.  3055.  See  Hearsay  ;  Declaration 
Copy. 

SECONDS.  In  Criminal  Law.  Those 
persons  who  assist,  direct,  and  support  others 
engaged  in  fighting  a  duel. 

As  they  are  often  much  to  blame  in  inciting 
the  duellists  to  their  rash  act,  and  as  they  are 
always  assisting  in  the  commission  of  the 
crime,  the  laws  generally  punish  them  with 
severity ;  but,  in  consequence  of  the  false 
ideas  too  generally  entertained  on  the  subject 
of  honor,  they  are  too  seldom  enforced. 

SECRET.  A  knowledge  of  something 
which  is  unknown  to  others,  out  of  which  a 
profit  may  be  made:  for  example,  an  inven- 
tion of  a  machine,  or  the  discovery  of  the 
effect  of  the  combination  of  certain  matters. 

Instances  have  occurred  of  secrets  of  that 
kind  being  kept  for  many  years  5  but  they  are 
liable  to  constant  detection.  As  such  secrets 
are  not  property,  the  possessors  of  them  in 
general  prefer  making  them  public,  and  se- 
curing the  exclusive  right  for  years,  under 
the  patent  laws,  to  keeping  them  in  an  inse- 
cure manner  without  them.  See  Phillips, 
Pat.  ch.  15  ;  Godson,  Pat.  171 ;  Davies,  Piit. 
Cas.  429 ;  8  Ves.  Ch.  215 ;  2  Ves.  &  B.  Ch.  Ir. 
218;  2  Mer.  Ch.  446;  3  id.  157;  1  Jac.  &  W. 
Ch.  394;  1  Pick.  Mass.  443;  4  Mas.  C.  C.  15  ; 
3  Bos.  &  P.  630. 

SECRETARY.  An  officer  who,  by  order 
of  his  superior,  writes  letters  and  other  in- 
struments. He  is  so  called  because  he  is  pos- 
sessed of  the  secrets  of  his  employer.  This 
term  was  used  in  France  in  1343,  and  in  Eng- 
land the  term  secretary  was  first  applied  to 
the  clerks  of  the  king,  who  being  always  near 
his  person  were  called  clerks  of  the  secret,  and 
in  the  reign  of  Henry  YIII.  the  term  secre- 
tary of  state  came  into  use. 

in  the  United  States  the  term  is  used  to 
denote  the  head  of  a  department:  as,  secretary 
of  state,  etc.    See  Department. 

SECRETARY  OF  EMBASSY.  An 
Dfficer  appointed  by  the  sovereign  power  to 
accompany  a  minister  of  the  first  or  second 
rank,  and  sometimes,  though  not  often,  of  an 
inferior  rank. 

He  is,  in  fact,  a  species  of  public  minister;  for, 
independently  of  his  protection  as  attached  to  an 
ambassador's  suite,  he  enjoys  in  his  own  right  the 


same  protection  of  the  law  of  nations,  and  the  same 
immunities,  as  an  ambassador.  But  pn'rutd  secre- 
taries of  a  mini.^ter  must  not  be  confounded  with 
secretaries  of  embassy  or  of  legation.  Such  private 
secretaries  are  entitled  to  protection  only  as  be- 
longing to  the  suite  of  the  amba^sador. 

The  functions  of  a  secretary  of  legation  consist 
in  his  employment  by  his  minister  for  objects  of 
ceremony;  in  making  verbal  reports  to  the  secre- 
tary of  state  or  other  foreign  ministers;  in  taking 
care  of  the  archives  of  the  mission;  in  ciphering 
and  deciphering  despatches;  in  sometimes  making 
rough  draughts  of  the  notes  or  letters  which  the 
minister  writes  to  his  colleagues  or  to  the  local 
authorities;  in  drawing  up  ^^roc^:j-<7er6aM.r/  in  pre- 
senting passports  to  the  minister  for  his  signature, 
and  delivering  them  to  the  persons  for  whom  they 
are  intended;  and,  finally,  in  assisting  the  minister, 
under  whom  he  is  placed,  in  every  thing  concerning 
the  affairs  of  the  mission.  In  the  absence  of  the 
minister  he  is  admitted  to  conferences,  and  to  pre- 
sent notes  signed  by  the  minister. 

SECRETARY  OP  LEGATION.  An 

officer  employed  to  attend  a  foreign  mission 
and  to  perform  certain  duties  as  clerk. 

His  salary  is  fixed  by  the  act  of  congress  of  May 
1,  1810,  s.  1,  at  such  a  sum  as  the  president  of  the 
United  States  may  allow,  not  exceeding  two  thou- 
sand dollars. 

The  salary  of  a  secretary  of  embassy,  or  the  secre- 
tary of  a  minister  plenipotentiary,  is  the  same  as 
that  of  a  secretary  of  legation. 

SECTA  (Lat.  sequor,  to  follow).  The  per- 
sons, two  or  more  in  number,  whom  the  plain- 
tifi"  produced  in  court,  in  the  ancient  form  of 
proceedings,  immediately  upon  making  his 
declaration,  to  confirm  the  allegations  therein, 
before  they  were  called  in  question  by  the  de- 
fendant's plea.  Bracton,  214  a.  The  word 
appears  to  have  been  used  as  denoting  that 
these  ])eT»on8  Jollowed  the  plaintiff  into  court; 
that  is,  came  in  a  matter  in  which  the  plain- 
tiff was  the  leader  or  one  principally  con- 
cerned. The  actual  production  of  suit  was 
discontinued  very  early,  3  Sharswood, 
Blackst.  Comm.  295 ;  but  the  formula  "  et 
iride  producit  sectam"  (for  which  in  more 
modern  pleadings  "and  thereupon  he  brings 
suit"  is  substituted)  continued  till  the  aboli- 
tion of  the  Latin  form  of  pleadings.  Stephen, 
Plead.  429,  430.  The  count  in  dower  and 
writs  of  right  did  not  so  conclude,  however. 
1  Chitty,  Plead.  399.  A  suit  or  action.  Hob. 
20 ;  Bracton,  399  b.  A  suit  of  clothes.  Cowel ; 
Spelman,  Gloss. 

Ad  Furnum.  Suit  due  a  public  bake- 
house. 

Ad  Molendrinum.  A  service  arising 
from  the  usage,  time  out  of  mind,  of  carry- 
ing corn  to  a  particular  mill  to  be  ground* 
3  Sharswood,  Blackst.  Comm.  235.  A  writ 
adapted  to  the  injury  lay  at  the  old  law. 
Fitzherbert,  Nat.  Brev.  123. 

Ad  Torrale.  Suit  due  a  man's  kiln  or 
malt-house.  3  Sharswood,  Blackst.  Comm. 
235. 

Curiae.  Suit  at  court.  The  service  due 
from  tenants  to  the  lord  of  attending  his 
courts-baron,  both  to  answer  complaints  al- 
leged against  themselves,  and  for  the  trial  of 
their  fellow-tenants.  2  Sharswood,  Blackst. 
Comm.  54. 


SECTION  OF  LAND 


508 


SEISIN 


■ 


SECTION  OF  LAND.  A  parcel  of 
government  land  containing  six  hundred  and 
forty  acres.  The  lands  of  the  United  States 
are  surveyed  into  parcels  of  six  hundred  and 
forty  acres ;  each  such  parcel  is  called  a  sec- 
tion. 

These  sections  are  divided  into  half-sec- 
tions, each  of  which  contains  three  hundred 
and  twenty  acres,  and  into  quarter-sections 
of  one  hundred  and  sixty  acres  each.  See  2 
Washburn,  Real  Prop. 

SECTORES  (Lat.).    In  Roman  Law. 

Bidders  at  an  auction.    Babington,  Auct.  2. 

SECURITY.  That  which  renders  a 
matter  sure  an  instrument  which  renders 
certain  the  performance  of  a  contract.  A 
person  who  becomes  the  surety  for  another, 
or  who  engages  himself  for  the  performance 
of  another's  contract.  See  3  Blackf.  Ind.  431. 

SECURITY  FOR  COSTS.  In  Prac- 
tice. In  some  courts  there  is  a  rule  that 
when  the  plaintiff  resides  abroad  he  shall 
give  security  for  costs,  and  until  that  has 
been  done,  when  demanded,  he  cannot  pro- 
ceed in  his  action. 

2.  This  is  a  right  which  the  defendant 
must  claim  in  proper  time ;  for  if  he  once 
waives  it  he  cannot  afterwards  claim  it:  the 
waiver  is  seldom  or  perhaps  never  expressly 
made,  but  is  generally  implied  from  the  acts 
of  the  defendant.  When  the  defendant  had 
undertaken  to  accept  short  notice  of  trial,  2 
H.  Blackst.  573  ;  3  Taunt.  272,  or  after  issue 
joined,  and  when  he  knew  of  plaintiflF's  resi- 
dence abroad,  or,  with  such  knowledge,  when 
the  defendant  takes  any  step  in  the  cause, 
these  several  acts  will  amount  to  a  waiver. 
5  Barnew.  &  Aid.  702;  1  Dowl.  &  R.  348 ;  1 
Moore  &  P.  30.  See  1  Johns.  Ch.  N.  Y.  202 ; 
3  id.  520 ;  1  Ves.  Ch.  396. 

3.  The  fact  that  the  defendant  is  out  of 
the  jurisdiction  of  the  court  will  not  alone 
authorize  the  requisition  of  security  for 
costs :  he  must  have  his  domicil  abroad.  1 
Ves.  Ch.  396.  When  the  defendant  resides 
abroad,  he  will  be  required  to  give  such  se- 
curity although  he  is  a  foreign  prince.  See 
11  Serg.  &  R.  Penn.  121 ;  1  Miles,  Penn.  321 ; 
2  id.  402. 

SECUS  (Lat.).  Otherwise. 

SEDITION.    In  Criminal  Law.  The 

raising  commotions  or  disturbances  in  the 
state :  it  is  a  revolt  against  legitimate  author- 
ity. Erskine,  Inst.  4.  4.  14;  Dig.  49.  16.  3. 
I  19. 

The  distinction  between  sedition  and  treason  con- 
iists  in  this  :  that  though  the  ultimate  object  of  se- 
dition is  a  violation  of  the  public  peace,  or  at  least 
such  a  course  of  measures  as  evidently  engenders 
it,  yet  it  does  not  aim  at  direct  and  open  violence 
against  the  laws,  or  the  subversion  of  the  constitu- 
tion.   Alison,  Crim.  Law  of  Scotl.  580. 

The  obnoxious  and  obsolete  act  of  July  14,  1798, 
I  Story,  U.  S.  Laws,  543,  was  called  the  sedition 
taw,  because  its  professed  object  was  to  prevent  dis- 
turbances. 

In  the  Scotch  law,  sedition  is  either  verbal 
or  real,  Verbal  is  inferred  from  the  uttering 


of  words  tending  to  create  discord  between 
the  king  and  his  people  ;  real  sedition  is 
generally  committed  by  convocating  together 
any  considerable  number  of  people,  without 
lawful  authority,  under  the  pretence  of  re- 
dressing some  public  grievance,  to  the  dis- 
turbing of  the  public  peace.  Erskine,  Inst. 
4.  4.  14. 

SEDUCTION  (Lat.  seductio,  from  se, 
away,  duco,  to  lead,  to  draw). 

The  act  of  a  man  in  inducing  a  woman  to 
commit  unlawful  sexual  intercourse  with 
him. 

The  woman  herself  has  no  action  for  dam- 
ages, though  practically  the  end  is  reached 
by  a  suit  for  breach  of  promise  of  marriage, 
in  many  cases.  The  parent,  as  being  en- 
titled to  the  services  of  his  daughter,  may 
maintain  an  action  in  many  cases  grounded 
upon  that  right,  but  only  in  such  cases.  6 
Mees.  &  W.  Exch.  55  ;  1  Exch.  61 ;  10  Q.  B. 
725  ;  7  Ired.  No.  C.  408  ;  4  N.  Y.  38  ;  8  id. 
191;  lltd.  343;  14  Ala.  n.  s.  235  ;  11  Ga. 
603  ;  13  Gratt.  Va.  726  ;  3  Sneed,  Tenn.  29  ; 
6  Ind.  262 ;  10  Mo.  634.  By  statute,  it  has 
been  made  a  criminal  offence  in  Indiana, 
Acts  of  1847,  c.  95,  New  York,  Laws  of  1848, 
c.  Ill,  and  Wisconsin,  Rev.  Stat.  1849,  c. 
146,  §  6. 

SEEDS.  The  substance  which  nature 
prepares  for  the  reproduction  of  plants  or 
animals. 

Seeds  which  have  been  sown  in  the  earth 
immediately  become  a  part  of  the  land  in 
which  they  have  been  sown :  quce  sata  solo 
cedere  intelliguntur.    Inst.  2.  1.  32. 

SEIGNIOR,  SEIGNEUR.  Among  the 
feudists,  this  name  signified  lord  of  the  fee, 
Fitzherbert,  Nat.  Brev.  23.  The  most  ex- 
tended signification  of  this  word  includes  not 
only  a  lord  or  peer  of  parliament,  but  is  ap- 
plied to  the  owner  or  proprietor  of  a  thing: 
hence  the  owner  of  a  hawk,  and  the  master 
of  a  fishing  vessel,  is  called  a  seigneur.  37 
Edw.  III.  c.  19 ;  Barrington,  Stat.  258. 

SEIGNIORY.    In  English  Law.  The 

rights  of  a  lord,  as  such,  m  lands.  Swin- 
burne, Wills,  174. 

SEISIN.  The  completion  of  the  feudal 
investiture,  by  which  the  tenant  was  admitted 
into  the  feud  and  performed  the  rites  of  ho- 
mage and  fealty.    Stearns,  Real  Act.  2. 

Possession  with  an  intent  on  the  part  of 
him  who  holds  it  to  claim  a  freehold  interest. 
8  N.  II.  58 ;  1  Washburn,  Real  Prop.  35. 

Immediately  upon  the  investiture  or  livery  of 
seisin  the  tenant  became  tenant  of  the  freehold; 
and  the  term  seisin  originally  contained  the  idea 
of  possession  derived  from  a  superior  lord  of  whom 
the  tenant  held.  There  could  be  but  one  seisin,  and 
the  person  holding  it  was  regarded  for  the  time  as 
the  rightful  owner.  Littleton,  ^  701 ;  1  Spence,  Eq, 
Jur.  136.  In  the  early  history  of  the  country, 
livery  of  seisin  seems  to  have  been  occasionally 
practised.  See  1  Washburn,  Real  Prop.  .34,  n. ; 
Colony  Laws  (Mass.),  85,  86;  Smith,  Landl.  k  T 
Morris  ed.  6,  n. 

In  Connecticut,  Massachusetts,  Pennsylvania, 
and  Ohio,  seisin  means  merely  ownership,  and  th* 


SEIZT/RE 


509 


SELF-DEFENCE 


distinction  between  seisin  in  deed  and  in  law  is  not 
known  in  practice.  Walker,  Am.  Law,  324,  330 ; 
i  Day,  Conn.  305  ;  4  Mass.  489;  14  Pick.  Mass. 
224  ;  G  Mete.  Mass.  439.  A  patent  l)y  the  common- 
wealth, in  Kentucky,  gives  a  right  of  entry,  but 
not  actual  seisin.    3  Bibb,  Ky.  67. 

Seisin  in  fad  is  possession  with  intent  on 
the  part  of  him  who  holds  it  to  claim  a  free- 
hold interest. 

Seisin  in  law  is  a  right  of  immediate  pos- 
session according  to  the  nature  of  the  estate. 
Cowel  ;  Comyns,  Dig.  Seisin  (A  1,  2). 

51.  If  one  enters  upon  an  estate  having  title, 
the  law  presumes  an  intent  in  accordance, 
and  requires  no  further  proof  of  the  intent, 
12  Mete.  Mass.  357 ;  4  Wheat.  213 ;  8  Cranch, 
229  ;  but  if  one  enters  without  title,  an  intent 
to  gain  seisin  must  be  shown.    5  Pet.  402; 

9  id.  52.  Seisin  once  established  is  pre- 
sumed to  continue  till  the  contrary  is  shown. 
5  Mete.  Mass.  173.  Seisin  will  not  be  lost 
by  entry  of  a  stranger  if  the  owner  remains 
in  possession.  1  Salk.  246 ;  9  Mete.  Mass. 
418.  Entry  by  permission  of  the  owner  will 
never  give  seisin  without  open  and  unequi- 
vocal acts  of  disseisin  known  to  the  owner. 

10  Gratt.  Va.  305 ;  9  Metc.-Mass.  418.  Simple 
entry  by  one  having  the  freehold  title  is  suffi- 
cient to  regain  seisin.  Stearns,  Real  Act.  44 ; 
4  Mass.  416;  25  Vt.  316;  10  Pet.  412 ;  8 
Cranch,  247.  The  heir  is  invested  with  the 
seisin  by  law  upon  descent  of  the  title.  24 
Pick.  Mass.  78.  As  a  general  proposition 
by  the  law  in  this  country,  the  making,  deli- 
very, and  recording  of  a  deed  of  lands  passes 
the  seisin  without  any  formal  entry  being  ne- 
cessary. This  is  generally  by  force  of  the 
statutes  of  the  several  states, — in  some  such 
a  deed  being  in  terms  declared  to  be  equiva- 
lent to  livery  of  seisin,  and  in  others  dis- 
pensing with  any  further  act  to  pass  a  full 
and  complete  title.  4  Greenleaf,  Cruise,  Dig. 
45,  n.,  47,  n. ;  Smith,  Landl.  &  T.  Am.  ed.  6, 
n. ;  3  Dall.  Penn.  489. 

3.  The  seisin  could  never  be  in  abeyance, 
1  Atkinson,  Conv.  11;  1  Preston,  Est.  255; 
and  this  necessity  gave  rise  to  much  of  the 
difficult  law  in  regard  to  estates  enjoyable  in 
the  future.  See  1  Spence,  Eq.  Jur.  156 ;  2 
Flintoff,  Real  Prop.  258. 

Consult  Smith,  Landl.  &  T.  Am.  ed. ;  Green- 
leaf,  Cruise  ;  Stearns,  Real  Act. ;  and  espe- 
cially Washburn  on  Real  Prop.,  from  which 
this  article  is  mainly  taken. 

SEIZURE.    In  Practice.    The  act  of 

taking  possession  of  the  property  of  a  person 
condemned  ))y  the  judgment  of  a  competent 
tribunal  to  pay  a  certain  sum  of  money,  by 
a  sheriff,  constable,  or  other  officer  lawfully 
authorized  thereto,  by  virtue  of  an  execution, 
for  the  purpose  of  having  such  property  sold 
according  to  law  to  satisfy  the  judgment.  The 
taking  possession  of  goods  for  a  violation  of  a 
public  law:  as,  the  taking  possession  of  a  ship 
for  attempting  an  illicit  trade.  2  Cranch, 
187 ;  4  Wheat.  100  ;  1  Gall.  C.  C.  75  ;  2  Wash. 
C.  C.  127,  567  ;  6  Cow.  N.  Y.  404. 

2.  The  seizure  is  complete  as  soon  as  the 
goods  are  within  the  power  of  the  officer.  16 


1  Johns.  N.  Y.  287  ;  2  Nott  &  M'C.  So.  C.  392; 
2  Rawle,  Penn.  142;  3  idAOl ;  Watson,  Sher 
172 ;  Comyns,  Dig.  Execution,  C  5. 

3.  The  taking  of  part  of  the  goods  in  a 
house,  however,  by  virtue  of  a  fieri  facias  in 
the  name  of  the  whole,  is  a  good  seizure  of 

I  all.  8  East,  474.  As  the  seizure  must  be 
made  by  virtue  of  an  execution,  it  is  evident 
that  it  cannot  be  made  after  the  return-day. 
2  Caines,  N.  Y.  243  ;  4  Johns.  N.  Y.  450.  See 
Door;  House;  Searcii-Warrant. 

SELECTI  JUDICES  (Lat.).  In  Ro- 
man Law.  Judges  who  were  selected  very 
much  like  our  juries.  They  were  returned 
by  the  praitor,  drawn  by  lot,  subject  to  be 
challenged  and  sworn.  3  Blackstone,  Comm. 
366. 

SELECTMEN.  The  name  of  certain 
town  officers  in  several  states  of  the  United 
States,  who  are  invested  by  the  statutes  of  the 
states  with  extensive  powers  for  the  conduct 
of  the  town  business. 

SELF-DEFENCE.  In  Criminal  Law 
The  protection  of  one's  person  and  property 
from  injury. 

2.  A  man  may  defend  himself,  and  even 
commit  a  homicide  for  the  prevention  of  any 
forcible  and  atrocious  crime  which  if  com- 
pleted would  amount  to  a  felony,  17  Ala.  n. 
s.  587 ;  5  Ga.  85  ;  1  Jones,  No.  C.  190 ;  30 
Miss.  619;  14  B.  Monr.  Ky.  103,  014;  3 
Wash.  C.  C.  515  ;  and,  of  course,  under  the 
like  circumstances,  mayhem,  woundi^rg,  and 
battery  would  be  excusable  at  common  law. 
1  East,  PI.  Cr.  271  ;  4  Blackstone,  Comm. 
180.  A  man  may  repel  force  by  force  in  de 
fence  of  his  person,  property,  or  habitation 
ags.inst  any  one  who  manifests,  intends,  at- 
temrtts,  or  endeavors,  by  violence  or  surprise, 
to  commit  a  forcible  felony,  such  as  murder, 
rape,  robbery,  arson,  burglary,  and  the  like. 
In  these  cases  he  is  not  required  to  retreat, 
but  he  may  resist,  and  even  pursue  his  ad- 
versary, until  he*  has  secured  himself  from 
all  danger.  7  J.  J.  Marsh.  Ky.  478  ;  4  Bingh. 
628. 

3.  A  man  may  defend  himself  when  no 
felony  has  been  threatened  or  attempted.  Firsts 
when  the  assailant  attempts  to  beat  another 
and  there  is  no  mutual  combat:  as,  where  one 
meets  another  and  attempts  to  commit  or  does 
commit  an  assault  and  battery  on  him,  the  per- 
son attacked  may  defend  himself,  4  Den.  N.  Y. 
448;  Hill  &  D.  N.  Y.  229;  24  Vt.  218;  3 
Harr.  Del.  22;  3  Brev.  No.  C.  515;  5  Gray, 
Mass.  475 ;  3  Carr.  &  P.  31 ;  9  id.  474 ;  see  10 
Ired.  No.  C.  214 ;  and  in  case  of  an  offer  or 
attempt  to  strike  another,  when  sufficiently 
near,  so  that  there  is  danger,  the  person 
assailed  may  strike  first,  and  is  not  required 
to  "wdit  until  he  has  been  struck.  Buller, 
Nisi  P.  18  ;  2  Rolle,  Abr.  547.  Second,  when 
there  is  a  mutual  combat  upon  a  sudden 
quarrel.  In  these  cases  both  parties  are  the 
aggressors ;  and  if  in  the  fight  one  is  killed, 
it  will  be  manslaughter  at  least,  unless  the 
survivor  can  prove  two  things,  viz.,  that  be» 
fore  the  mortal  stroke  was  given  he  ha<f 


SELLER 


510 


SEPARALITER 


refused  any  further  combat,  and  had  retreated  j 
as  far  as  he  could  with  safety,  8  N.  Y.  39G ;  i 
4  Dev.  &  B.  No.  C.  491 ;  15  Ga.  117  :  17  id, 
465  ;  9  Ired.  No  C.  485;  10  id.  214;  1  Ohio, 
St.  60;  1  Hawks,  No.  C.  78,  210;  Selfridge's 
case ;  and  that  he  killed  his  adversary  from 
necessity,  to  avoid  his  own  destruction.    32  | 
Me.  279;  2  Ilalst.  N.J.  220;  11  Ilumphr. 
Tenn.  200 ;  4  Barb.  N.  Y.  460 ;  2  N.  Y.  193  ; 
Coxe,  N.  J.  424;  25  Ala.  n.  s.  15;  18  B. 
Monr.  Ky.  49  ;  16  111.  17. 

A  man  may  defend  himself  against  animals, 
and  he  may  during  the  attack  kill  them,  but 
not  afterwards.  1  Carr.  &  P.  106  ;  10  Johns. 
N.  Y.  365  ;  13  id.  12. 

SELLER.  One  who  disposes  of  a  thing 
in  consideration  of  money;  a  vendor. 

This  term  is  more  usually  applied  in  the 
sale  of  chattels,  that  of  vendor  in  the  sale  of 
estates.    See  Sale. 

SEMBLE  (Fr.  it  seems).  A  term  fre- 
quently used  before  the  statement  of  a  point 
of  law  which  has  not  been  directly  settled, 
but  about  which  the  court  have  expressed 
an  opinion  and  intimated  what  a  decision 
would  be. 

SEMI-PROOF.  In  Civil  Law.  Pre- 
sumption of  fact.  This  degree  of  proof  is 
thus  defined:  "  Non  est  ignorandum,  proba- 
tionem  semiplenam  eam  esse,  per  quam  rei 
gestae  fides  aliqua  fit  judici ;  non  tamen  tanta 
ut  jure  debeat  in  pronuncianda  sententiaeara 
sequi.''  Mascardus,  de  Prob.  vol.  1,  Quaest. 
11,  n.  1,  4. 

SEMINARY.  A  place  of  education. 
Any  school,  academy,  college,  or  university 
in  which  young  persons  are  instructed  in  the 
several  branches  of  learning  which  nay 
qualify  them  for  their  future  employments. 
Webster,  Diet. 

The  word  is  said  to  have  acquired  no  fixed 
and  definite  legal  meaning.  Hand,  J.,  12 
N.  Y.  229.  ^ 

SEMINAUFRAGIUM  (Lat.).  A  term 
used  by  Italian  lawyers,  which  literally  signi- 
fies half -shipwreck,  and  by  which  they  under- 
stand the  jetsam,  or  casting  merchandise  into 
the  sea  to  prevent  shipwreck.  Locr6,  Esp. 
du  Code  de  Com.  art.  409.  The  state  of  a 
vessel  which  has  been  so  much  injured  by 
tempest  or  accident  that  to  repair  the  dam- 
ages, after  being  brought  into  port,  and  pre- 
pare her  for  sea,  would  cost  more  than  her 
worth.    4  Bost.  Law  Rep.  120. 

SEMPER  PARATUS  (Lat.  always 
ready).  In  Pleading.  The  name  of  a  plea 
by  which  the  defendant  alleges  that  he  has 
always  been  ready  to  perform  what  is  de- 
manded of  him.  3  Blackstone,  Comm.  303. 
The  same  as  Tout  temps  prist. 

SEN.  This  is  said  to  be  an  ancient  word 
which  signified  justice.    Coke,  Litt.  61  a. 

SENATE.  The  name  of  the  less  nume- 
rous of  the  two  bodies  constituting  the  legis- 
lati\  e  branch  of  the  government  of  the  United 


j  States,  and  of  the  several  states.   See  U 
States,  and  the  articles  upon  the  va 
states. 

SENATOR.    A  member  of  a  senate. 

SENATUS  CONSULTUM  (Lat.).  . 
!  Roman   Law.     A  decree  or  decision  c 
the  Roman  senate,  which  had  the  force  o. 
law. 

When  the  Roman  people  had  so  increased  that 
there  was  no  place  where  they  could  meet,  it  wat 
found  necessary  to  consult  the  senate,  instead  of 
the  people,  both  on  public  affairs  and  those  which 
related  to  individuals.  The  opinion  which  was 
rendered  on  such  an  occasion  was  called  senahis 
consiiltnm.  Inst.  1.  2.  5  ;  Clef  des  Lois  Rom. ;  Mer- 
lin, Repert.  These  decrees  frequently  derived  their 
titles  from  the  names  of  the  consuls  or  magistrates 
who  proposed  them  :  as,  senatus-consultum  Clau- 
dianum,  Libonianum,  Velleianum,  etc.,  from  Clau 
dius,  Libonius,  Valleius.    Ayliffe,  Pand.  30. 

SENESCHALLUS  (Lat.).  A  steward. 
Coke,  Litt.  61  a. 

SENILITY.    The  state  of  being  old. 

2.  Sometimes  it  is  exceedingly  difficult  to 
know  whether  the  individual  in  this  state  is 
or  is  not  so  deprived  of  the  powers  of  his 
mind  as  to  be  unable  to  manage  his  affairs. 
In  general,  senility  is  merely  a  loss  of  energy 
in  seme  of  the  intellectual  operations,  while 
the  affections  remain  natural  andunperverted: 
such  a  state  may,  however,  be  followed  by  , 
actual  dementia  or  idiocy. 

3.  "When  on  account  of  senility  the  party  ■ 
is  unable  to  manage  his  affairs,  a  committee  ; 
will  be  appointed  as  in  case  of  lunacy.  1  i 
Collier,  Lun.  G6  ;  2  Johns.  Ch.  N.  Y.  232  ;  5  ' 
id.  158 ;  4  Call,  Va.  423 ;  12  Ves.  Ch.  446 ; 
8  Mass.  129 :  2  Ves.  Sen.  Ch.  407 ;  19  id.  , 

285.  ; 

SENIOR.    The  elder.    This  addition  is 
sometimes  made  to  a  man's  name,  when  two  ; 
persons  bear  the  same,  in  order  to  distinguish  ; 
them.     In  practice,  when  nothing  is  men-  , 

tioned,  the  senior  is  intended.    3  Miss.  59.  ' 

i 

SENTENCE.  A  judgment,  or  judicial  ; 
declaration  made  by  a  judge  in  a  cause.  The  { 
term  judgment  is  more  usually  applied  to  '( 
civil,  and  sentence  to  criminal,  proceedings.  ■ 
Sentences  are  final,  when  they  put  an  end  [ 
to  the  case ;  or  interlocutory,  when  they  ' 
settle  only  some  incidental  matter  which  has 
arisen  in  the  course  of  its  progress.  See  Aso 
&  Man.  Inst.  b.  3,  t.  8,  c.  1. 

SEPARALITER  (Lat.  separately).  A 
word  sometimes  used  in  indictments  to  show 
that  the  defendants  are  charged  separately 
with  offences  which  without  the  addition  of 
this  word  would  seem,  from  the  form  of  the 
indictment,  to  be  charged  jointly :  as,  for  ex- 
ample, when  two  persons  are  indicted  to- 
gether for  perjury,  and  the  indictment  states 
that  A  and  B  came  before  a  commissioner, 
etc.,  this  is  alleging  that  they  were  both  guilty 
of  the  same  crime,  when  by  law  their  crimeh 
are  distinct,  and  the  indictment  is  vicious ; 
but  if  the  word  separalUer  is  used,  then  the 
affirmation  is  that  each  was  guilty  of  a  sepa- 
rate off'ence.    2  ilale,  PI.  Cr.  174. 


SEPARATE  ESTATE  511  SEQUESTRATION 


SEPARATE  ESTATE.  That  wliich 
belon;r«  to  one  only  of  several  persons :  as, 
the  separate  estate  of  a  partner,  which  (l«tes 
not  belorij!;  to  tlie  partnersliip.  2  Bouvier, 
Inst.  n.  1519. 

The  separate  estate  of  a  married  woman 
18  that  which  belongs  to  her  and  over  which 
her  husband  has  no  right  in  equity.  It  may 
consist  of  lands  or  chattels.  4  Barb.  N.Y. 
407 ;  1  Const.  So.  C.  452;  4  Bouvier,  Inst.  n. 
3990. 

SEPARATE  MAINTENANCE.  An 

allowance  made  by  a  husband  to  his  wife  for 
her  separate  support  and  maintenance. 

When  this  allowance  is  regularly  paid,  and 
notice  of  it  has  been  given,  no  person  who 
has  received  such  notice  will  be  entitled  to 
recover  against  the  husband  for  necessaries 
furnished  to  the  wife,  because  the  liability 
of  the  husband  depends  on  a  presumption  of 
authority  delegated  by  him  to  the  wife,  which 
is  negatived  by  the  facts  of  the  case.  2 
Starkie,  Ev.  699. 

SEPARATE  TRIAL.    See  Joinder. 

SEPARATION.  A  cessation  of  cohabi- 
tation of  husband  and  wife  by  mutual  agree- 
ment. 

2.  Contracts  of  this  kind  are  generally 
made  by  the  husband  for  himself  and  by  the 
wife  with  trustees.  3  Paige,  Ch.  N.  Y.  483 ; 
4  id.  516;  5  Bligh,  N.  s.  339;  1  Dow  &  C. 
Hou.  L.  519.  This  contract  does  not  affect 
the  marriage,  and  the  parties  may  at  any 
time  agree  to  live  together  as  husband  and 
wife.  The  husband  who  has  agreed  to  a 
total  separation  cannot  bring  an  action  for 
criminal  conversation  with  the  wife.  Roper, 
Husb.  &  AVife,  passim  ;  4  Viner,  Abr.  173  ; 
2  Starkie,  Ev.  698 ;  Shelford,  Marr.  &  D.  ch. 
6,  p.  608. 

3.  Reconciliation  after  separation  super- 
sedes special  articles  of  separation,  in  courts 
of  law  and  equity.  1  Dowl.  Pari.  Cas.  245  ; 
2  Cox,  105  ;  3  Brown,  Ch.  619,  n. ;  11  Ves.  Ch. 
632.  Public  policy  forbids  that  parties  should 
be  permitted  to  make  agreements  for  them- 
selves to  hold  good  whenever  they  choose  to 
live  separate.  5  Bligh,  n.  s.  367,  375.  And 
see  1  Carr.  &  P.  36 ;  5  Bligh,  n.  s.  339 ;  2 
Dowl.  Pari.  Cas.  332 ;  2  Carr.  &  M.  388 ;  2 
East,  283  ;  11  Ves.  Ch.  526 ;  2  Sim.  &  S.  Ch. 
372 ;  1  Younge  &  C.  Ch.  28 ;  3  Johns.  Ch.  N. 
Y.  521 ;  1  Edw.  Ch.  N.  Y.  380 ;  1  Des.  Eq. 
So,  C.  45,  198;  8  N.  H.  350;  1  Hoffm.  Ch. 
N.Y.  1. 

SEPARATION  A  MENSA  ET 
THORO.  A  partial  dissolution  of  the  mar- 
riage relation. 

By  the  ecclesiastical  or  canon  law  of  England, 
which  had  exclusive  jurisdiction  over  marriage  and 
divorce,  marriage  was  regarded  as  a  sacrament  and 
indissoluble.  This  doctrine  originated  with  the 
church  of  Rome,  and  became  established  in  Eng- 
land while  that  country  was  Catholic;  and  though 
after  the  reformation  it  ceased  to  be  the  doctrin-e 
of  the  church  of  England,  yet  th«  law  remained 
unchanged  until  the  recent  statute  of  20  &  21  Vict. 
0857)  c.  85.  Bishop,  Marr.  &  D.  ^§  274,  278.  Hence, 
as  has  been  seen  i-i  the  article  on  Divorce,  a  valid 


niurringe  could  not  be  dissolved  in  England  ex- 
cept by  what  has  been  termed  the  omnipotent 
power  of  parliament. 

This  gave  rise,  in  the  ecclesiiistical  courts,  to  the 
practice  of  granting  divorces  from  bed  and  board, 
as  they  used  to  Ije  called,  or  judicial  separation,  as 
they  arc  called  iu  the  recent  statute  20  <fe  21  Vict, 
c.  85,  ^  7.  Bishop,  Marr.  &  D.  277,  278.  From 
Ei)gland  this  practice  was  introduced  into  th:i 
country;  and  though  in  some  of  the  statics  it  h&J 
entirely  given  way  to  the  divorce  a  vhu-ulo  matrix 
rnnmW,  in  others  it  is  still  in  use,  being  generally 
granted  for  causes  which  are  not  sufficient  to  au- 
thorize the  latter. 

2.  The  only  causes  for  which  such  a  di- 
vorce is  granted  in  England  are  adultery  and 
cruelty.  In  this  country  it  is  generally 
granted  also  for  wilful  desertion,  and  in 
some  states  for  other  causes. 

The  legal  consequences  of  a  separation 
from  bed  and  board  are  much  less  extensive 
than  those  of  a  divorce  a  vinculo  matrimonii 
or  a  sentence  of  nullity.  Such  a  separation 
works  no  change  in  the  relation  of  the  parties 
either  to  each  other  or  to  third  persons,  ex- 
cept in  authorizing  them  to  live  apart  until 
they  mutually  come  together.  In  coming  to- 
gether, no  new  marriage  is  required,  neither, 
it  seems,  under  the  general  law,  are  any  new 
proceedings  in  court  necessary ;  but  the  re* 
conciliation,  of  its  own  force,  annuls  the  sen- 
tence of  separation.  Bishop,  Marr.  &  D.  § 
G79 :  5  Pick.  Mass.  461,  468  ;  4  Johns.  Ch. 
N.Y.  187;  2  Dall.  Penn.  128;  3  Yeates, 
Penn.  56;  Croke  Eliz.  908. 

3.  Nor  does  such  a  separation,  at  common 
law  and  without  statutory  aid,  change  the 
relation  of  the  parties  as  to  property.  Thus, 
it  neither  takes  away  the  right  of  the  wife  to 
dower,  nor  the  right  of  the  husband  to  the 
wife's  real  estate,  either  during  her  life  or 
after  her  death,  as  tenant  by  the  curtesy; 
neither  does  it  affect  the  husband's  right  in  a 
court  of  law  to  reduce  into  possession  the  choses 
in  action  of  the  wife;  though  in  equity  it  maybe 
otherwise.  Bishop,  Marr.  &  D.  680-685 ;  2 
Pick.  Mass.  316 ;  5  id.  61 ;  6  Watts  &  S.  Penn. 
85;  Croke  Eliz.  908;  4  Barb.  N.  Y.  295. 

4.  It  should  be  observed,  however,  that 
in  this  country  the  consequences  of  a  ju- 
dicial separation  are  frequently  modified  by 
statute.    See  Bishop,  Marr.  &  D.  676-691. 

Of  those  consequences  which  depend  upon 
the  order  and  decree  of  the  court,  the  most 
important  is  that  of  alimony.  See  Alimony. 
In  respect  to  the  custody  of  children,  the 
rules  are  the  same  as  in  case  of  divorces  a 
vinculo  matrimonii.  Bishop,  Marr,  &  D.  3 
29. 

SEPULCHRE.  The  place  where  a  corpse 
is  buried.  The  violation  of  sepulchres  is  a 
misdemeanor  at  common  law. 

SEQUESTER.  In  CivU  and  Ec- 
clesiasticalliaw.  To  renounce.  Example: 
when  a  widow  comes  into  court  and  dis- 
claims having  any  thing  to  do  or  to  inter 
meddle  with  her  deceased  husband's  estate, 
she  is  said  to  sequester.    Jacob,  Law  Diet. 

SEQUESTRATION.  In  Chancery 
Practice.    A  writ  of  commission,  sometimes 


SEQUESTRATION^ 


512 


SERGEAXT 


I 


directed  to  the  sheriff,  but  usually  to  four 
or  more  commissioners  of  the  complainant's 
own  nomination,  authorizing  them  to  enter 
upon  the  real  or  personal  estate  of  the  de- 
fendant, and  to  take  the  rents,  issues^  and 
profits  into  their  own  hands,  and  keep  pos- 
session of  or  pay  the  same,  as  the  court  shall 
order  and  direct,  until  the  party  who  is  in 
contempt  shall  do  that  which  he  is  enjoined 
to  do  and  which  is  specially  mentioned  in 
the  writ.  Newland,  Chanc.  Pract.  18  ;  Blake, 
Chanc.  Pract.  103. 

2.  Upon  the  return  of  non  est  inventus  to 
a  commission  of  rebellion,  a  sergeant-at-arms 
may  be  moved  for;  and  if  he  certifies  that 
the  defendant  cannot  be  taken,  a  motion  may 
be  made  upon  his  certificate  for  an  order 
for  a  sequestration.  2  Maddock,  Chanc. 
Pract.  203;  Blake,  Chanc.  Pract.  103.  It 
is  the  process  formerly  used  instead  of  an 
attachment  to  secure  the  appearance  of  per- 
sons having  the  privilege  of  peerage  or  parlia- 
ment, before  a  court  of  equity.  Adams.  Eq. 
326. 

3.  Under  a.  sequestration  upon  mesne  pro^ 
cess,  as  in  respect  of  a  contempt  for  want  of 
appearance  or  answer,  the  sequestrators  may 
take  possession  of  the  party's  personal  pro- 
perty and  keep  him  out  of  possession;  but  no 
sale  can  take  place,  unless  perhaps  to  pay 
expenses ;  for  this  process  is  only  to  form  the 
foundation  of  taking  the  bill  pro  confesso. 
After  a  decree  it  may  be  sold.  See  3  Brown, 
Ch.  72,  372 ;  2  Cox,  Ch.  224 ;  1  Ves.  Ch.  86  ; 
2  Maddock,  Chanc.  Pract.  206. 

See,  generally,  as  to  this  species  of  seques- 
tration, 19  Viner,  Abr.  325 ;  Bacon,  Abr. 
Sequestration;  Comyns,  Dig.  Chancery  (D  7, 
Y  4);  1  Hov.  Suppl.  to  Ves.  Ch.  25-29;  7 
Vern.  Ch.  Raithby  ed.  58,  n.  1,  421,  n.  1. 

In  Contracts.  A  species  of  deposit  which 
two  or  more  persons,  engaged  in  litigation 
about  any  thing,  make  of  the  thing  in  con- 
test with  an  indifferent  person,  who  binds 
himself  to  restore  it,  when  the  issue  is  de- 
cided, to  the  party  to  whom  it  is  adjudged  to 
belong.  La.  Code,  art.  2942  ;  Story,  Bailm. 
I  45.  See  19  Viner,  Abr.  325 ;  1  Vern.  Ch. 
58,  420;  2  Ves.  Ch.  23. 

In  Louisiana.  A  mandate  of  the  court, 
ordering  the  sheriff,  in  certain  cases,  to  take 
in  his  possession,  and  to  keep,  a  thing  of 
which  another  person  has  the  possession, 
until  after  the  decision  of  a  suit,  in  order 
that  it  be  delivered  to  him  who  shall  be  ad- 
judged entitled  to  have  the  property  or  pos- 
session of  that  thing.  This  is  what  is  pro- 
perly called  a  judicial  sequestration.  See  1 
Mart.  La.  79;  1  La.  439;  La.  Civ.  Code, 
2941,  2948. 

In  this  acceptation,  the  word  sequestration  does 
not  mean  a  judicial  deponit,  because  sequestration 
may  exist  together  with  the  right  of  administra- 
tion, while  mere  deposit  does  not  admit  it. 

All  species  of  property,  real  or  personal, 
as  well  as  the  revenue  proceeding  from  the 
8ame,ol)ligationsand  titles,  when  their  otvner- 
ship  is  in  dispute,  may  be  sequestered. 

Judicial  sequestration  is  generally  ordered 


only  at  the  request  of  one  of  the  parties  to 
a  suit:  as,  where  there  is  reason  to  believoi 
that  the  defendant  may  destroy  or  injure  the' 
property  in  dispute  during  the  delay  of  adju 
dication.  There  are  cases,  nevertheless,  where 
it  is  decreed  by  the  court  without  such  re- 
quest/— as,  where  the  title  appears  equally 
balanced,  to  continue  till  the  question  is  do- 
cided,— -or  is  the  consequence  of  the  execution 
of  judgments. 

Security  is  required  from  the  petitioner 
asking  a  sequestration  to  reimburse  the  de- 
fendant his  damages  in  case  of  disputed  title. 

When  the  sheriff  has  sequestered  property 
pursuant  to  an  order  of  the  court,  he  must, 
after  serving  the  petition  and  the  copy  of  the 
order  of  sequestration  on  the  defendant,  send 
his  return  in  writing  to  the  clerk  of  the  court 
which  gave  the  order,  stating  in  the  same  in 
what  manner  the  order  was  executed,  and 
annex  to  such  return  a  true  and  minute  in* 
ventory  of  the  property  sequestered,  drawn 
by  him  in  the  presence  of  two  witnesses. 

The  sheriff,  while  he  retains  possession  of 
a  sequestered  property,  is  bound  to  take  pro- 
per care  of  the  same,  and  to  administer  the 
same,  if  it  be  of  such  nature  as  to  admit  of 
it,  as  a  prudent  father  of  a  family  adminis* 
ters  his  own  affairs.  He  may  confide  them 
to  the  care  of  guardians  or  overseers,  for 
whose  acts  he  remains  responsible,  and  he 
will  be  entitled  to  receive  a  just  compensa- 
tion for  his  administration,  to  be  determined 
by  the  court,  to  be  paid  to  him  out  of  the 
proceeds  of  the  property  sequestered,  if  judg* 
ment  be  given  in  favor  of  the  plaintiff.  La. 
Civ.  Code,  arts.  274^283. 

SEQUESTRATOR.     One  to  whom  a 

sequestration  is  made. 

A  depositary  of  this  kind  cannot  exonerate 
himself  from  the  care  of  the  thing  sequestered 
in  his  hands,  unless  for  some  cause  rendering 
it  indispensable  that  he  should  resign  hia 
trust.   La.  Civ.  Code,  art.  2947.   See  Stake-. 

HOLDER. 

Officers  appointed  by  a  court  of  chancery 
and  named  in  a  writ  of  sequestration.  As 
to  their  powers  and  duties,  see  2  Maddock^ 
Chanc.  Pract.  205  ;  Blake,  Chanc.  Pract.  103. 

SERF.  In  Feudal  Law.  A  term  ap* 
plied  to  a  class  of  persons  who  were  bound 
to  perform  very  onerous  duties  towards 
others.  Pothier,  Des  Personnes,  pt.  1,  t.  1^ 
a.  0,  s.  4. 

There  is  this  essential  difference  between  a  serf 
and  a  slave  :  the  serf  was  bound  simply  to  labor  on 
the  soil  where  he  was  born,  without  any  right  to 
go  elsewhere  without  the  consent  of  his  lord ;  but 
he  was  free  to  act  as  he  pleased  in  his  daily  action  : 
the  slave,  on  the  contrary,  is  the  property  of  his 
master,  who  may  require  him  to  act  as  he  pleases 
in  every  respect,  and  who  may  Bell  him  as  a  chat* 
tel.    Lepage,  Science  du  Droit,  c.  3,  art.  2,  ^  2. 

S£:RGEANT.    In  Military  Law.  An 

inferior  officer  of  a  company  of  foot  or  troop 
of  dragoons,  appointed  to  see  discipline  ob- 
served, to  teach  the  soldiers  the  exercise  of 
their  arms,  and  to  order,  straighten,  and 
form  ranks,  files,  etc. 


SERGEANT-AT-ARMS  513 


SERVITUDE 


SERGEANT-AT-ARMS.  An  officci- 
appointed  by  a  legislative  body,  whose  du- 
ties are  to  enforce  the  orders  given  by  such 
bodies,  generally  under  the  warrant  of  its 
presiding  otficer. 

SERIATIM  (Lat.).  In  a  series ;  seve- 
rally: as,  the  judges  delivered  their  opinions 
seriaiim. 

SERJEANTS-AT-LAW.  A  very  an- 
cient and  the  most  honorable  order  of  ad- 
vocates at  the  common  law. 

They  were  called,  formerly,  countors,  or 
eerjeant-countors,  or  countors  of  the  bench 
(in  the  old  law-Latin  phrase,  hand  narra- 
toi^es),  and  are  mentioned  by  Matthew  Paris 
in  the  life  of  John  II.,  written  in  1255.  They 
are  limited  to  fifteen  in  number,  in  addition 
to  the  judges  of  the  courts  of  Westminster, 
who  are  always  admitted  before  being  ad- 
vanced to  the  bench. 

The  most  valuable  privilege  formerly  en- 
joyed by  the  Serjeants  was  the  monopoly  of 
the  practice  in  the  court  of  common  pleas. 
A  bill  was  introduced  into  parliament  for 
the  purpose  of  destroying  this  monopoly,  in 
1755,  which  did  not  pass.  In  1834,  a  war- 
rant under  the  sign  manual  was  directed  to 
the  judges  of  the  common  pleas,  commanding 
them  to  open  that  court  to  the  bar  at  large. 
The  order  was  received  and  complied  with. 
In  1839,  the  matter  was  brought  before  the 
court  and  decided  to  be  illegal.  10  Bingh. 
571 ;  6  Bingh.  n.  c.  187,  232,  235.  The  sta- 
tute 9  &  10  Vict.  c.  54  has  since  extended 
the  privilege  to  all  barristers.  3  Sharswood, 
Blackst.  Comm.  27,  note. 

SERJEANTY.  In  English  Law.  A 
species  of  service  which  cannot  be  due  or  per- 
formed from  a  tenant  to  any  lord  but  the  king, 
and  is  either  grand  or  petit  serjeanty. 

SERVANTS.  In  Louisiana.  A  term 
including  slaves  and,  in  general,  all  free  per- 
sons who  let,  hire,  or  engage  their  services 
to  another  in  the  state,  to  be  employed  therein 
at  any  work,  commerce,  or  occupation  what- 
ever, for  the  benefit  of  him  who  has  con- 
tracted with  them,  for  a  certain  sum  or  retri- 
bution, or  upon  certain  conditions.  La.  Civ. 
Code,  arts.  155-157. 

Personal  Relations.  Domestics ;  those 
who  receive  wages,  and  who  are  lodged  and 
fed  in  the  house  of  another  and  employed 
in  his  services.  Such  servants  ate  not 
particularly  recognized  by  law.  They  are 
called  menial  servants,  or  domestics,  from 
livir»g  infra  moeiiia,  within  the  walls  of  the 
house.  1  Blackstone,  Comm.  324 ;  Wood, 
lust.  53. 

The  right  of  the  master  to  their  services  in 
every  respect  is  grounded  on  the  contract  be- 
tween them. 

Laborers  or  persons  hired  by  the  day's  work 
or  any  longer  time  are  not  considered  ser- 
vants. 5Binn.  Penn.  1G7 ;  3  Serg.  &  R.  Penn. 
351.  See  12  Ves.  Ch.  114;  IG  id.  486;  2 
Vern.  Ch.  546;  1  Roper,  Leg.  121  ;  3  Deac. 
&  C.  Bank.  332;  1  Mont.  <fe  B.  413;  2  Mart. 
La.  N.  s.  652;  Pothier,  Proc.  Civ.  sect.  2,  art. 

Vol.  IL— 38 


5,  ?  5  ;  Pothier,  Obi.  French  ed.  n.  710,  828 ; 
9  TouUier,  n.  314;  Domestic;  Oi'erative; 
Master. 

SERVICE.  In  Contracts.  The  lieing 
employed  to  serve  an(jtlier. 

In  cases  of  seduction,  the  gist  of  the  action 
not  the  injury  which  the  seducer  has  inflicted 
on  the  parent  by  destroying  his  jieiice  of  mind  and 
the  reputation  of  his  child,  but  i'or  the  consequent 
inability  to  perform  those  scrvici  s  for  which  she 
was  accountable  to  her  master  or  her  parent,  who 
assumes  this  character  for  the  jjurpose.  i^ee  Sk- 
duction;  2  Mees.  &  W.  Exch.  539;  7  Carr.  &  P. 
628. 

In  Feudal  Law.  That  duty  which  the 
tenant  owed  to  his  lord  by  reason  of  his  fee 
or  estate. 

The  services,  in  respect  of  their  quality, 
were  either  free  or  base,  and  in  respect  of 
their  quantity,  and  the  time  of  exacting  them, 
were  either  certain  or  uncertain.  2  Black 
stone.  Comm.  62. 

In  Civil  Law.    A  servitude. 

In  Practice.  The  execution  of  a  writ  or 
process.  Thus,  to  serve  a  writ  of  capias  sig- 
nifies to  arrest  a  defendant  under  the  process, 
Kirb.  Conn.  48;  2  Aik.  Vt.  338;  11  Mass. 
181 ;  to  serve  a  summons  is  to  deliver  a  copy 
of  it  at  the  house  of  the  party,  or  to  deliver 
it  to  him  personally,  or  to  read  it  to  him : 
notices  and  other  papers  are  served  by  deli- 
vering the  same  at  the  house  of  the  party,  or 
to  him  in  person. 

When  the  service  of  a  writ  is  prevented  by 
the  act  of  the  party  on  whom  it  is  to  be  served, 
it  will,  in  general,  be  sufficient  if  the  officer  do 
every  thing  in  his  power  to  serve  it.  1  Mann. 
&  G.  238. 

SERVIENT.  In  Civil  Law.  A  term 
applied  to  an  estate  or  tenement  by  or  in  re- 
spect of  which  a  servitude  is  due  to  another 
estate  or  tenement. 

SERVITORS  OF  BILLS.  Such  ser- 
vants or  messengers  of  the  marshal  belong- 
ing to  the  king's  bench  as  were  heretofore 
sent  abroad  with  bills  or  writs  to  summon 
men  to  that  court,  being  now  called  "  tip- 
staves."   Blount ;  2  Hen.  IV.  c.  23. 

SERVITUDE.    In  Civil  Law.  Tho 

subjection  of  one  person  to  another  person, 
or  of  a  person  to  a  thing,  or  of  a  thing  to  a 
person,  or  of  a  thing  to  a  thing. 

A  right  which  su])jects  a  land  or  tenement 
to  some  service  for  the  use  of  another  land  or 
tenement  which  belongs  to  another  master. 
Domat,  Civ.  Law,  Cushing's  ed.  ^  1018. 

A  mixed  servitude  is  the  subjection  of 
persons  to  things,  or  things  to  persons. 

A  nainral  servitude  is  one  which  arises  in 
consequence  of  the  natural  condition  or  situa 
tion  of  the  soil. 

A  personal  servitude  is  the  subjection  of 
one  person  to  another:  if  it  consists  in  the 
right  of  property  which  a  person  exercises 
over  another,  it  is  slavery.  When  the  sub- 
j  jection  of  one  person  to  another  is  not  slavery. 

it  consists  simply  in  the  right  of  requiring 
!  of  another  what  he  is  bound  to  do  or  not  to 


SERVITUS 


514 


SERVUS 


do:  th's  right  arises  from  all  kinds  of  con- 
tracts or  quasi-contracts.  Lois  des  Bat.  p.  1, 
e.  1,  art.  1. 

A  real  or  predial  servitude  is  a  charge  laid 
on  an  estate  for  the  use  and  utility  of  another 
estate  belonging  to  another  proprietor.  La. 
Code,  art.  643.  When  used  vs^ithout  any  ad- 
junct, the  vs'ord  servitude  means  a  real  or 

Sredial  servitude.    Lois  des  Bat.  p.  1,  c.  1. 
leal  servitudes  are  divided  into  rural  and 
urban. 

Rural  servitudes  are  those  which  are  due 
by  an  estate  to  another  estate,  such  as  the 
right  of  passage  over  the  serving  estate,  or 
that  which  owes  the  servitude,  or  to  draw 
water  from  it,  or  to  water  cattle  there,  or 
to  take  coal,  lime,  and  wood  from  it,  and  the 
like. 

Urban  servitudes  are  those  which  are  esta- 
blished over  a  building  for  the  convenience 
of  another,  such  as  the  right  of  resting  the 
joists  in  the  wall  of  the  serving  building,  of 
opening  windows  which  overlook  the  serving 
estate,  and  the  like.  Dalloz,  Diet.  Servi- 
tudes. 

This  term  is  used  as  a  translation  of  the  Latin 
term  servitus  in  the  French  and  Scotch  law,  Dalloz, 
Diet. ;  Paterson,  Comp.,  and  by  many  common- 
law  writers,  3  Kent,  Comm.  434 ;  Washburn, 
Easem.,  and  in  the  Civil  Code  of  Louisiana.  Ser- 
vice is  used  by  Wood,  Taylor,  Harris,  Cowper,  and 
Cushing  in  his  translation  of  Domat.  Much  of 
the  common-law  doctrine  of  easements  is  closely 
analoj^ous  to,  and  probably  in  part  derived  from, 
the  civil-law  doctrine  of  servitudes. 

SERVITUS  (Lat.).    In  Roman  Law. 

Servitude ;  slavery  ;  a  state  of  bondage  ;  a 
disposition  of  the  law  of  nations  by  which, 
against  common  right,  one  man  has  been 
subjected  to  the  dominion  of  another.  Inst. 
L  2.  3  ;  Bracton,  4  h;  Coke,  Litt.  116. 

A  service  or  servitude ;  a  burden  imposed 
by  law,  or  the  agreement  of  parties,  upon 
one  estate  for  the  advantage  of  another,  or 
for  the  benefit  of  another  person  than  the 
owner. 

Servitus  actvs,  a  right  of  way  on  horseback 
or  in  a  carriage.    Inst.  2.  3.  pr. 

Servitus  aitius  non  tollendi,  a  servitude 
preventing  the  owner  of  a  house  from  build- 
ing higher  than  his  neighbor.  Inst.  2.  3.  4 ; 
Paterson,  Comp. 

Servitus  aquce  ducendce,  a  right  of  leading 
water  to  one's  own  land  over  that  of  another. 
Inst.  2.  3.  pr. 

Servitus  aquce  educendce,  a  right  of  con- 
ducting water  from  one's  own  land  unto  a 
neighbor's.    Dig.  8.  3.  29. 

Servitus  aquce  hauriendce,  a  right  of  draw- 
ing water  from  another's  spring  or  well. 
Inst.  2.  3.  2. 

Servitus  cloaccB  miitendce,  a  right  of  having 
a  sewer  through  a  neighbor's  estate.  Dig. 
8.  1.  7. 

Servitus  fumi  immittendi,  a  right  of  con- 
ducting smoke  or  vapor  through  a  neighbor's 
chimney  or  over  his  ground.    Dig.  8.  5.  8. 

Servitus  itineris,  a  right  of  way  on  horse- 
back or  in  a  carriage.  This  includes  a  sei  vi- 
tus  actus.    Inst.  2.  3. 


Servitus  luminum,  a  right  to  have  an  open 
place  for  receiving  light  into  a  chamber  or 
other  room.    Domat,  1.  1.  4  ;  Dig.  8.  2.  4. 

Servitus  oneris  ferendi,  a  servitude  of  sup- 
porting a  neighbor's  building. 

Servitus  pascendi,  a  right  of  pasturing 
one's  cattle  on  another's  land!    Inst.  2.  3.  2. 

Servitus  pecoris  ad  aquam  adpulsam,  a 
right  of  driving  one's  cattle  on  a  neighbor's 
land  to  water. 

Servitus  proedii  rustici,  a  rural  servitude. 

Servitus  prcedii  urbani,  an  urban  servi- 
tude. 

Servitus  prcediorum,  a  servitude  on  one 
estate  for  the  benefit  of  another.    See  Pr^- 

Servitus  projiciendi,  a  right  of  building  a 
projection  into  the  open  space  belonging  to  a 
neighbor.    Dig.  8.  2.  2. 

Servitus  prospectus,  a  right  of  prospect. 
Dig.  8.  2.  15.  This  may  be  either  to  give 
one  a  free  prospect  over  his  neighbor's  land, 
or  to  prevent  a  neighbor  from  having  a  pros- 
pect over  one's  own  land.    Doma't,  1.  1.  6. 

Servitus  siillicidii,  a  right  of  having  the 
water  drip  from  the  eaves  of  one's  house 
upon  a  neighbor's  house  or  ground. 

Servitus  tigni  immittendi,  a  right  of  insert- 
ing beams  in  a  neighbor's  wall.  Inst.  2.  3. 
1.  4  ;  Dig.  8.  2.  2. 

Servitus  vice,  a  right  of  way  on  foot  or  ' 
horseback,  or  with  a  loaded  beast  or  wagon,  ; 
over  a  neighbor's  estate.    Inst.  2.  3. 

See,  generally,  Inst.  2.  3 ;  Dig.  8.  2 ;  Diet.  - 
de  Jur. ;  Domat,  Civ.  Law  ;  Bell,  Diet.;  Wash-  ' 
burn,  Easem. 

SERVUS  (Lat.).    A  slave.  ) 

The  institution  of  slavery  is  traced  to  the  re- 
motest antiquity.   It  is  referred  to  in  the  poeriis  of 
Homer;  and  all  the  Greek  philosophers  mention  it 
without  the  slightest  censure.   Aristotle  justified  it  i 
on  the  ground  of  a  diversity  of  race.    The  Roman 
jurists  rei^t  the  institution  of  slavery  on  the  law 
of  nations :  in  a  fragment  of  Florentinus  copied  in  ' 
the  Institutes  of  Justinian,  servitude  is  defined,  / 
Servitus  autem  est  constitutin  juris  geutiiim,  qua  quia  ' 
dominio  alieno  contra  naturam  subjicitur.    D.  1.  5.  ) 
4.  1;  Inst.  1.  3.  2.    The  Romans  considered  that  '■ 
they  had  the  right  of  killing  their  prisoners  of  i 
war,  7nanu  capti ;  and  that  by  preserving  their  . 
lives,  servati,  they  did  not  abandon  but  only  post-  j 
poned  the  exercise  of  that  right.  Such  was,  accord- 
ing to  their  ideas,  the  origin  of  the  right  of  (he 
master  over  his  slave.    Ilence  the  etymology  of 
the  words  servi,  from  servati,  and  muucipia,  from 
rnavu  coj)tt,  by  which  slaves  were  designated.  It 
is,  however,  more  simple  and  correct  to  derive  tl  >• 
word  servus  from  servire.    Inst.  1.  3.  3.  Children 
born  of  a  woman  who  was  a  slave  followed  the 
condition  of  their  mother:   servi  nascunlur  out 
Jiuiit. 

2.  A  free  person  might  be  reduced  to 
slavery  in  various  ways:  by  captivity,  ex 
captivifate.  The  Roman  who  was  taken  pri- 
soner by  the  enemy  lost  all  his  rights  as  a 
citizen  and  a  freeman  :  thus,  when  Regulua 
was  Ijrought  to  Rome  by  the  Carthaginian 
ambassadors  he  refused  to  take  his  seat 
among  the  senators,  saying  that  he  was 
nothing  but  a  slave.  But  if  he  made  bis 
escape  and  returned  to  Rome,  all  his  rights 
.  were  restored  to  him  by  the  jus  posiliminiis 


SESSION 


515 


SET-OFF 


and,  by  a  lef^al  fiction,  the  whole  period  of  his 
captivity  was  elfaced,  and  he  was  ccmsidered 
as  if  he  had  never  lost  his  freedom.  Accord- 
inir  to  the  laws  of  the  Twelve  Tables,  the  in- 
solvent debtor  became  the  slave  of  his  cic- 
ditor,  by  a  judgment  rendered  in  a  proceeding 
called  manus  wjectio^ — one  of  the  four  leges 
actiones.  The  thief  who  was  taken  in  the 
matinour — that  is  to  say,  in  the  act  of  stealing, 
or  while  he  was  carrying  the  thing  stolen  to 
the  place  where  he  intended  to  conceal  it — 
was  deprived  of  his  freedom,  and  became  a 
slave.  So  was  a  person,  who,  for  the  purpose 
of  defrauding  the  state,  ommitted  to  have  his 
name  inscribed  on  the  table  of  the-  census. 
The  illicit  intercourse  of  a  free  woman  with 
a  slave  without  the  permissian  of  his  master, 
the  sentence  to  a  capital  punishment  and 
the  sentence  to  work  perpetually  in  the 
mines, — in  metallum  dati^ — made  the  culprit 
the  sl.ave  as  his  punishment  [servi  pcence). 
The  ingratitude  of  the  emancipated  slave 
towards  his  patron  or  former  master  and  the 
fraud  of  a  freeman  who  had  suffered  him- 
6elf  to  be  sold  by  an  accomplice  (after  having 
attained  the  age  of  twenty  years)  in  order  to 
divide  the  price  of  the  sale,  were  so  punished. 

3.  Liberty  being  inalienable,  no  one  could 
cell  himself;  but  in  order  to  perpetrate  a 
fraud  on  the  purchaser,  a  freeman  was  offered 
for  sale  as  a  slave  and  bought  by  an  innocent 
purchaser:  after  the  price  had  been  paid 
and  divided  between  the  confederates,  the 
pretended  slave  claimed  and,  of  course,  ob- 
tained his  freedom.  To  remedy  this  evil  and 
punish  this  fraud,  a  senatus  consultum  issued 
under  Claudius  provided  that  the  person 
who  had  thus  suflered  himself  to  be  sold 
should  lose  his  liberty  and  remain  a  slave. 
In  the  social  and  political  organization  slaves 
were  not  taken  into  consideration  ;  they  had 
no  status.  Quod  attiner  ad  Jus  civile,  servi 
pro  nullis  habentur.  Servitutem  mortalitati 
fere  comparamus.  With  regard  to  the  master 
there  was  no  distinction  in  the  condition  of 
slaves:  they  w^ere  all  equally  subject  to  the 
domina potestas.  But  the  master  sometimes 
established  a  distinction  between  the  S€7^vi 
vicarii  and  the  servi  ordinarii:  the  former 
exercised  a  certain  authority  over  the  latter. 
But  there  was  a  marked  difference  between 
those  slaves  of  whom  we  have  been  speaking 
and  the  coloni  censili,  adscripti,  and  trihu- 
tarii,  who  resembled  the  serfs  of  the  middle 
ages.  1  Ortolan,  27  et  seq. ;  1  Etienne.  08 
et  seq. ;  Lagrange,  93  et  seq.  See  Slave  ; 
Slavery. 

SESSION.  The  time  during  which  a 
legislative  body,  a  court,  or  other  assembly, 
sits  for  the  transaction  of  business :  as,  a 
session  of  congress,  which  commences  on  the 
day  appointed  by  the  constitution,  and  ends 
when  congress  finally  adjourns  before  the 
commencement  of  the  next  session;  the  ses- 
sion of  a  court,  which  commences  at  the  day 
appointed  by  law,  and  ends  when  the  court 
finallv  rises.    A  term. 

SESSION  COURT.  See  Court  of  Ses- 
sion. 


SESSIONS  OF  THE  PEACE.  In 
English  Law.  Sittings  of  justices  of  the 
peace  for  the  execution  of  the  powers  wnich 
arc  confided  to  them  as  such. 

Petty  sessions  (or  petit  sessions)  are  sittings 
held  by  one  or  more  justices  for  tho  trial  of 
minor  offences,  admitting  to  bail  prisoners 
accused  of  felony,  and  the  like  purposes. 

When  sitting  for  purposes  of  prelimin  vry 
inquiry,  the  public  cannot  claim  admittar  ce  ; 
but  it  is  otherwise  when  sitting  for  purposes 
of  adjudication. 

Special  sessions  are  sittings  of  two  or  moro 
justices  on  a  particular  occasion  for  the  ex- 
ercise of  some  given  branch  of  their  author- 
ity, upon  reasonable  notice  given  to  the  other 
magistrates  of  the  hundred  or  other  division 
of  the  county,  city,  etc.  for  which  they  are 
convened.    See  stat.  7  &  8  Vict.  c.  33. 

The  counties  are  distributed  into  divisions, 
and  authority  given  by  various  statutes  to 
the  justices  acting  for  the  several  divisions 
to  transact  different  descriptions  of  business, 
such  as  licensing  alehouses,  or  appointing 
overseers  of  the  poor,  surveyors  of  the  high- 
ways, etc.,  at  special  sessions.  3  Stephen, 
Con)m.  43,  44. 

General  sessions  of  the  peace  are  courts  of 
record,  holden  before  the  justices,  whereof  one 
is  of  the  quorum,  for  execution  of  the  gene- 
ral authority  given  to  the  justices  by  ths 
commission  of  the  peace  and  certain  acts  of 
parliament. 

The  only  description  of  general  sessions 
now  usually  held  is  the  court  of  general 
quarter  sessions  of  the  peace;  but  in  the 
county  of  Middlesex,  besides  the  four 
quarter  sessions,  four  general  sessions  .are 
held  in  the  intervals,  and  original  interme- 
diate sessions  occasionally  take  place.  They 
may  be  called  by  any  two  justices  in  the 
jurisdiction,  one  being  of  the  quorum,  or  by 
the  custos  rotulorum  and  one  justice,  but  not 
by  one  justice  or  the  custos  rotidorum  alone. 

General  quarter  sessions  of  tlie  peace.  See 
Court  of  General  Quarter  Sessions  of  the 
Peace. 

SET  ASIDE.  To  annul;  to  make  void: 
as,  to  set  aside  an  award. 

When  proceedings  are  irregular,  they  may 
be  set  aside  on  motion  of  the  party  whom 
they  injuriously  affect. 

SET  OF  EXCHANGE.  The  different 
parts  of  a  bill  of  exchange,  taken  together. 
Each  part  is  a  perfect  instrument  by  itself; 
but  the  parts  are  numbered  successive! and 
upon  payment  of  any  one  the  others  become 
useless.  See  Chitty,  Bills,  1830  ed.  175; 
Parsons,  Notes  &  B. 

SET-OFF.  In  Practice.  A  demand 
which  a  defendant  makes  against  the  plain- 
tiff in  the  suit  for  the  purpose  of  liquidating 
the  whole  or  a  part  of  his  claim.    See  7  FUi.329. 

2.  A  set-off  was  unknown  to  the  common 
law%  accordingto  which  mutual  de^  ts  were  dis- 
I  tinct,  and  inextinguishable  except  by  actual 
payment  or  release.  1  Rawle,  Penn.  293: 
Babington,  Set-Off,  I. 


SETTLE 


516 


SEVERAL 


The  statute  2  Geo.  II.  c.  22,  which  has 
lieen  generally  adopted  in  the  United  States, 
vrith  some  modifications,  in  cases  of  mutual 
debts,  however,  allowed  the  defendant  to  set 
his  debt  against  the  other,  either  by  pleading 
it  in  bar,  or  giving  it  in  evidence,  when 
proper  notice  had  been  given  of  such  inten- 
tion, under  the  general  issue.  The  statute, 
being  made  for  the  benefit  of  the  defendant, 
is  not  compulsory,  8  Watts,  Penn.  39;  the  de- 
fendant may  waive  his  right,  and  bring  a 
cross-action  against  the  plaintiff.  2  Campb. 
594;  5  Taunt.  148;  9  Watts,  Penn.  179. 

3*  It  seems,  however,  that  in  some  cases 
of  intestate  estates  and  of  insolvent  estates, 
perhaps  owing  to  the  peculiar  wording  of 
the  law,  the  statute  has  been  held  to  operate 
on  the  rights  of  the  parties  before  action 
brought  or  an  act  done  bv  either  of  them. 
2Rawle,  Penn.  293;  3  Binn.  Penn.  135  ;  Bacon, 
Abr.  Bankrupt  (K).  See  7  Gray,  Mass.  191, 
425. 

Set-oflf  takes  place  only  in  actions  on  con- 
tracts for  the  payment  of  money:  as,  as- 
sumpsit, debt,  and  covenant.  A  set-off  is  not 
allowed  in  actions  arising  ex  delicto;  as,  upon 
the  case,  trespass,  replevin,  or  detinue.  Bul- 
ler,  Nisi  P.  181 ;  4  E.  D.  Smith,  N.  Y.  1G2. 

The  matters  which  may  be  setoff  may  be 
mutual  liquidated  debts  or  damages ;  but  un- 
liquidated damages  cannot  be  set  off.  3 
Bosw.  N.  Y.  500;  34  Penn.  St.  239 ;  34  Ala. 
N.  s.  659:  20  Tex.  31;  2  Head,  Tenn.  467; 

2  Mete.  Kv.  143  ;  3  Iowa,  163;  8  id.  325;  1 
Biackf.  Ind.  394;  8  Conn.  325;  6  Ilalst. 
N.  J.  397  ;  5  Wash.  C.  C.  232.  The  statutes 
refer  only  to  mutual  unconnected  debts;  for 
at  common  law,  when  the  nature  of  the  em- 
ployment, transaction,  or  dealings  necessarily 
constitutes  an  account  consisting  of  receipts 
and  payments,  debts  and  credits,  the  balance 
only  is  considered  to  be  the  debt,  and  there- 
fore in  an  action  it  is  not  necessary  in  such 
eases  either  to  plead  or  give  notice  of  set-off. 
4  Burr.  2221. 

4.  In  general,  when  the  government  is 
plaintiff,  no  set-off  will  be  allowed.  9  Pet. 
319 ;  4  Dall.  Penn.  303.  See  9  Cranch,  313 ; 
1  Paine,  C.  C.  156.  But  when  an  act  of  con- 
gress authorii!ie8  such  set-off,  it  may  be  made. 
9  Cranch,  213. 

Judgments  in  the  same  rights  may  be  set 
off  against  each  other,  at  the  discretion  of  the 
court.    3  Bibb,  Ky.  233 ;  3  AVatts,  Penn.  78; 

3  llalst.  N.  J.  172;  29  Barb.  N.  Y.  295;  18 
Tox.  541  ;  30  Ala.  n.  s.  470;  4  Ohio,  90;  7 
Mass.  140,  144;  8  Cow.  N.  Y.  126.  See 
Montague,  Set-Off;  Babington,  Set-Off:  3 
Slarkie,  Ev.;  3  Chitty,  Blackst.  Comm.  304, 
n.;  1  Chitty,  Plead.  Index;  1  Sellon,  Pract. 
321 ;  Btmvier,  Inst.  Index. 

SETTLE.    To  adjust  or  ascertain ;  to  pay. 

Two  contracting  parties  are  said  to  settle 
an  account  when  they  ascertain  what  is  justly 
duo  by  one  to  the  other;  when  one  pays  the 
balance  or  debt  due  by  him,  he  is  said  to  settle 
euch  debt  or  balance.    11  Ala.  n.  s.  419. 

SETTLEMENT.     A  residence  under 


such  circumstances  as  to  entitle  a  person  tc 
support  or  assistance  in  case  of  becoming  a 
pauper. 

2.  It  is  obtained  in  various  ways,  to  wit: 
by  birth;  by  the  legal  settlement  of  the  father, 
in  the  case  of  minor  children;  by  marriage j 
by  continued  residence;  by  the  payment  of 
requisite  taxes;  by  the  lawful  exercise  of 
a  public  office;  by  hiring  and  service  for  a 
specified  time;  hy  serving  an  apprenticeship; 
and  perhaps  some  others,  which  depend  upon 
the  local  statutes  of  the  different  states.  See 
1  Blackstone,  Comm.  363;  1  Dougl.  9;  6 
Serg.  &  R.  Penn.  103,  565;  10  id,  179. 

In  Contracts.  An  agreement  by  which 
two  or  more  persons  who  have  dealings  to- 
gether so  far  arrange  their  accounts  as  to 
ascertain  the  balance  due  from  one  to  the 
other  ;  payment  in  full. 

The  conveyance  of  an  estate  for  the  benefit 
of  some  person  or  persons. 

3.  Settlements  of  the  latter  class  are  usually 
made  on  the  prospect  of  marriage,  for  the 
benefit  of  the  married  pair,  or  one  of  them, 
or  for  the  benefit  of  some  other  persons;  as, 
their  children.  Such  settlements  vest  the 
property  in  trustees  upon  specified  terms, 
usually  for  the  benefit  of  the  husband  and 
wife  during  their  joint  lives,  and  then  for  the 
benefit  of  the  survivor  for  life,  and  afterwards 
for  the  benefit  of  children. 

Ante-nuptial  agreements  of  this  kind  will 
be  enforced  in  equity  by  a  specific  perform- 
ance of  them,  provided  they  are  fair  and 
valid  and  the  intention  of  the  parties  is  con- 
sistent with  the  principles  and  policy  of  law. 
8  Biackf.  Ind.  284;  4  R.  I.  276;  28  Penn. 
St.  73 ;  7  Pet.  348 ;  9  How.  196.  Settlements 
after  marriage,  if  made  in  pursuance  of  an 
agreement  in  writing  entered  into  prior  to 
the  marriage,  are  valid  both  against  cre- 
ditors and  purchasers.    22  Ga.  402. 

4.  When  made  without  consideration, 
after  marriage,  and  the  property  of  the 
husband  is  settled  upon  his  wife  and  children, 
the  settlement  will  be  valid  against  subse- 
quent creditors  if  at  the  time  of  the  settle- 
ment being  made  he  was  not  indebted,  8 
Wheat.  229;  4  Mas.  C.  C.  443;  21  N.  IL  34; 
28  Miss.  717;  25  Conn.  154;  but  if  he  was 
then  indebted  it  will  be  void  as  to  the  credit- 
ors existing  at  the  time  of  the  settlement,  3 
Johns.  Ch.  N.  Y.  481 ;  16  Barb.  N.  Y.  136; 

5  Md.  68;  13  B.  Monr.  Ky.  496;  15  Eng.  L. 

6  Eq.  265;  8  Wheat.  229,  unless  in  cases 
where  the  husband  received  a  fair  considera- 
tion in  value  of  the  thing  settled,  so  as  to 
repel  the  presumption  of  fraud'.  2  Ves.  Ch. 
16 ;  10  id.  139  :  6  Ind.  121 ;  28  Ala.  n.  s.  432 ; 

7  Pick.  Mass.  533 ;  4  Mas.  C.  C.  443.  See  1 
Madd.  Ch.  459  ;  1  Chitty,  Pract.  57  ;  2  Kent, 
Comm.  174;  Roberts,  Fraud.  Conv.  188 

SEVER.  In  Practice.  To  separate; 
to  insist  upon  a  plea  distinct  from  that  of 
other  co-defendants. 

SEVERAL.  Separate;  distinct.  A 
several  agreement  or  covenant  is  one  entered 
into  by  two  or  more  persons  separately,  each 


SEVERALTY,  ESTATE  IN 


517 


SHELLEY'S  CASE,  RULE  IN 


biuJing  himself  for  the  whole;  a  several  ac- 
tion is  one  in  which  two  or  more  persons  are 
separately  charged;  a  several  inheritance  is 
one  conveyed  so  as  to  descend  or  come  to 
two  persons  separately  by  moieties.  Several 
is  usually  opposed  to  joint.  See  Contract  ; 
CovENAxNT ;  Parties. 

SEVERALTY,  ESTATE  IN.  An 
estate  which  is  held  by  the  tenant  in  his  own 
right  only,  without  any  other  being  joined  or 
connected  with  him  in  point  of  interest  during 
the  continuance  of  his  estate.  2  Blackstone, 
Comm.  179 ;  Cruise,  Dig.  479,  480. 

SEVERANCE.  The  separation  of  a  part 
of  a  thing  from  another:  for  example,  the 
separation  of  machinery  from  a  mill  is  a 
severance,  and  in  that  case  the  machinery, 
which  while  annexed  to  the  mill  was  real 
estate,  becomes  by  the  severance  personalty, 
unless  such  severance  be  merely  temporary. 
8  Weiul.  N.  Y.  587. 

In  Pleading.  When  an  action  is  brought 
in  the  name  of  several  plaintiffs,  in  which 
the  plaintiffs  must  of  necessity  join,  and  one 
or  more  of  the  persons  so  named  do  not  ap- 
pear, or  make  default  after  appearance,  the 
other  may  have  judgment  of  severance,  or, 
as  it  is  technically  called,  judgment  ad  se- 
quendum  solum. 

But  in  personal  actions,  with  the  excep- 
tion of  those  by  executors,  and  of  detinue  for 
charters,  there  can  be  no  summons  and  sever- 
ance.   Coke,  Litt.  139. 

After  severance,  the  party  severed  can 
never  be  mentioned  in  the  suit  nor  derive 
any  advantage  from  it. 

When  there  are  several  defendants,  each 
of  them  may  use  such  plea  as  he  may  think 
proper  for  his  own  defence ;  and  they  may 
join  in  the  same  plea,  or  sever,  at  their  dis- 
cretion, Coke,  Litt.  303  a,  except,  perhaps, 
in  the  case  of  dilatory  pleas.  Hob.  245,  250. 
But  when  the  defendants  have  once  united 
in  the  plea  they  cannot  afterwards  sever  at 
the  rejoinder,  or  other  later  stage  of  the 
pleading.  See,  generally,  Brooke,  Abr.  Summ. 
and  Sev.;  2  RoUe,  488;  Archbold,  Civ. 
Plead.  59. 

Of  Estates.  The  destruction  of  any  one 
of  the  unities  of  a  joint  tenancy.  It  is  so 
called  because  the  estate  is  no  longer  a  joint 
tenancy,  but  is  severed. 

A  severance  may  be  effected  in  various 
ways,  namely:  by  partition,  w^hich  is  either 
voluntary  or  compulsory ;  by  alienation  of 
one  of  the  joint  tenants,  which  turns  the 
estate  into  a  tenancy  in  common ;  by  the 
purchase  or  descent  of  all  the  shares  of  the 
joint  tenants,  so  that  the  w^hole  estate  be- 
comes vested  in  one  only.  Comyns,  Dig. 
Estates  by  Grant  (K  5)  ;  1  Binn.  Penn.  175. 

SEWER  (L.  Lat.  sewer  a,  severa).  A  fresh- 
water trench  or  little  river,  encompassed  with 
banks  on  both  sides,  to  carry  the  water  into 
the  sea  and  thereby  preserve  the  lands 
against  inundation,  etc.  See  Callis,  Sew.  80, 
5'9,  100 ;  Cowel.  Properly,  a  trench  artiti- 
cially  made  for  the  purpose  of  carrying  water 


into  the  sea,  river,  or  some  other  place  of  re- 
ception.   Crabb,  Real  Prop.  s.  113.    A  ditch 

1  or  trench  through  marshy  places  to  carry 
off  water.  Spelman,  Gloss.  See  Washburn, 
P^asem.  Index. 

SEX.  The  physical  difference  between 
male  and  female  in  animals. 

In  the  human  species  the  male  is  called 
man,  and  the  female  woman.    Some  human 

I  beings  whose  sexual  organs  are  somewhat 
imperfect  have  acquired  the  name  of  hermor 
phrodite. 

In  the  civil  state  the  sex  creates  a  differ- 
ence among  individuals.  Women  cannot 
generally  be  elected  or  appointed  to  offices, 
or  service  in  public  capacities.  In  this  our 
law  agrees  with  that  of  other  nations.  The 
civil  law  excluded  women  from  all  offices 
civil  or  public :  f(vminai  ah  omnibus  ojfficiis 
civilibus  vel  pnblicis  remotce  sunt.  Dig.  50, 
17.  2.  The  principal  reason  of  this  exclu- 
sion is  to  encourage  that  modesty  which  is 
natural  to  the  female  sex,  and  which  renders 
them  unqualified  to  mix  and  contend  with 
men;  the  pretended  weakness  of  the  sex  is 
not  probably  the  true  reason.  Pothier,  Des 
Personues,  tit.  5 ;  Wood,  Inst.  12;  La.  Civ. 
Code,  art.  24;  1  Beck,  Med.  Juris.  94. 

SHAM  PLEA.  One  entered  for  the 
mere  purpose  of  delay  ;  it  must  be  of  a  matter 
w^hich  the  pleader  knows  to  be  false  :  as,  judg- 
ment recovered,  that  is,  that  judgment  has 
already  been  recovered  by  the  plaintiff  for 
the  same  cause  of  action. 

These  sham  pleas  are  generally  discouraged, 
and  in  some  cases  are  treated  as  a  nullity. 
1  Barnew.  &  Aid.  197, 199 ;  5  id.lbO ;  1  Barnew. 
&  C.  28G;  Archbold,  Civ.  Plead.  249;  1 
Chitty,  Plead.  401. 

SHARE.  A  portion  of  any  thing.  Some- 
times shares  are  equal,  at  other  times  they 
are  unequal. 

In  companies  and  corporations  the  whole 
of  the  capital  stock  is  usually  divided  into 
equal  portions,  called  shares.  Shares  in  pub- 
lic companies  have  sometimes  been  held  to 
be  real  estate,  but  most  usually  they  are  con- 
sidered as  personal  property.  See  Corpora- 
tion ;  Personal  Property.  The  proportion 
which  descends  to  one  of  several  children 
from  his  ancestor  is  called  a  share.  The 
term  share  and  share  alike  signifies  in  equal 
proportions.    See  Purpart. 

SHEEP.  A  wether  more  than  a  year 
old.    4  Carr.  &  P.  216. 

SHELLEY'S  CASE,  RULE  IN. 

"When  the  ancestor,  by  any  gift  or  convey- 
ance, taketh  an  estate  of  freehold,  and  in  the 
same  gift  or  conveyance  an  estate  is  limited, 
either  mediately  or  immediately,  to  his  heirs 
in  fee  or  in  tail,  the  heirs  are  words  of  li.ait- 
ation  of  the  estate,  and  not  words  of  pur 
I  chase."    1  Coke.  104. 

This  rule  has  been  the  subject  of  much  comment. 
It4«. given  by  Mr.  Preston,  Ef^tates,  vol.  1,  pp.  263- 
419,  a?  follows:  When  a  person  takes  an  estate  of 
freehold,  legally  or  equitably,  under  a  deed,  will, 
or  other  writing,  and  in  the  same  instrument  there 


SHERIFF 


518 


SHERIFF 


is  a  limitation  by  way  of  remainder,  either  with  or 
without  the  interposition  of  another  estate,  of  the 
game  legal  or  equitable  quality,  to  his  heii  s,  or  heirs 
of  his  body,  as  a  cla<s  of  persons  to  take  in  succes- 
sion from  generation  to  generation,  the  limitation 
to  the  heirs  entitles  the  ancestor  to  the  whole 
estate.  See  15  B.  Monr.  Ky.  282;  Hargrave,  Law 
Tracts,  489,  551    2  Kent,  Comm.  214. 

If  the  limitation  be  to  heirs  of  the  body, 
he  takes  an  estate  tail ;  if  to  heirs  generally, 
a  fee-simple.  1  Day,  Conn.  299  ;  2  Yeates, 
Penn.  410. 

It  does  not  apply  where  the  ancestor's 
estate  is  equitable  and  that  of  the  heirs  legal. 
1  Curt.  C.  C.  419. 

SHERIFF  ( Sax. .scyre,  shire,  rey^, keeper). 
A  county  officer  representing  the  executive  or 
administrative  power  of  the  state  within  his 
county. 

The  office  is  said  by  Camden  to  have  been 
created  by  Alfred  when  he  divided  England  into 
counties;  but  Lord  Coke  is  of  opinion  that  it  is 
of  still  greater  antiquity,  and  that  it  existed  in  the 
time  of  the  Romans,  being  the  deputy  of  the  earl 
{comes),  to  whom  the  custody  of  the  shire  was  origi- 
nally committed,  and  hence  known  as  vice-cotnea. 
Camden,  156 ;  Coke,  Litt.  168  a  ;  Dalton,  SherilT,  5. 

2.  The  selection  of  sheriffs  in  England 
was  formerly  by  an  election  of  the  inhabit- 
ants of  the  respective  counties,  except  that 
in  some  counties  the  office  was  hereditary, 
and  in  Middlesex  the  shrivealty  was  and  still 
is  vested  by  charter  in  the  city  of  London. 
But  now  the  lord  chancellor,  in  conjunction 
with  the  judges  of  the  courts  at  Westminster, 
nominates  suitable  persons  for  the  office,  and 
the  king  appoints.  In  this  country  the  usual 
practice  is  for  the  people  of  the  several  coun- 
ties to  elect  sheriffs  at  regular  intervals,  gene- 
rally of  three  years,  and  they  hold  subject 
to  the  right  of  the  governor  to  remove  them 
at  any  time  for  good  cause,  in  the  manner 
p  )inted  out  by  law.  Before  entering  upon 
the  discharge  of  their  duties,  they  are  re- 
quired to  give  bonds  to  the  people  of  the 
state,  conditioned  for  the  faithful  perform- 
ance of  their  duties,  without  fraud,  deceit,  or 
oppression. 

3.  It  is  the  sheriff's  duty  to  preserve  the 
peace  within  his  bailiM^ick  or  county.  To 
this  end  he  is  the  first  man  within  the  county, 
and  may  apprehend  and  commit  to  prison  all 
persons  who  break  or  attempt  to  break  the 
peace,  or  may  bind  them  over  in  a  recogniz- 
ance to  keep  the  peace.  He  is  bound,  ex 
officio,  to  pursue  and  take  all  traitors,  mur- 
derers, felons,  and  rioters;  has  the  safe-keep- 
ing of  the  county  jail,  and  must  defend  it 
against  all  rioters;  and  for  this,  as  well  as 
for  any  other  purpose,  in  the  execution  of  his 
duties  he  may  command  the  inhabitants  of 
the  county  to  assist  him,  which  is  called  the 
posse  comifafus.  And  this  summons  every 
person  over  fifteen  years  of  age  is  bound  to 
obey,  under  pain  of  fine  and  imprisonment. 
Dalton,  Sheriff,  355  ;  Coke,  2d  Inst.  454. 

4.  In  his  ministerial  capacity  he  is  bound 
to  execute,  within  his  county,  all  process  that 
issues  from  the  courts  of  justice,  except 
■where  he  is  a  party  to  the  proceeding,  in 


which  case  the  coroner  acts  in  his  stead.  On 
mesne  process  he  is  to  execute  the  writ,  to 
arrest,  and  take  bail ;  when  the  cause  ccimea 
to  trial  he  summons  and  returns  the  jury,  and 
when  it  is  determined  he  carries  into  effect 
the  judgment  of  the  court.  In  criminal 
cases  he  also  arrests  and  imprisons,  returns 
the  jury,  has  the  custody  of  the  prisoner,  and 
executes  the  sentence  of  the  court  upon  hira, 
whatever  it  may  be. 

5.  As  bailiff  to  the  chief  executive,  it  is 
his  business  to  seize,  on  behalf  of  the  state, 
all  lands  that  devolve  to  it  by  attainder  or 
escheat,  levy  all  fines  and  forfeitures,  and  seize 
and  keep  all  waifs,  wrecks,  estrayh,  and  the 
like.    Dalton,  Sheriff,  c.  9. 

He  also  possesses  a  judicial  capacity,  and 
may  hold  a  court  and  summon  a  jury  for  cer- 
tain purposes;  this  jurisdiction,  in  this  re- 
spect, is  at  common  law  quite  extensive. 
This  branch  of  his  powers,  however,  is  cir- 
cumscribed in  this  country  by  the  statutes  of 
the  several  states,  and  is  generally  confined 
to  the  execution  of  writs  of  inquiry  of  dam- 
ages, and  the  like,  sent  to  him  from  the  supe- 
rior courts  of  law.  1  Sharswood,  Blackstone, 
Comm.  389. 

6.  He  has  no  power  or  authority  out  of  his 
own  county,  except  when  he  is  commanded 
by  a  writ  of  habeas  corpus  to  carry  a  prisoner 
out  of  his  county  ;  and  then  if  he  conveys  him 
through  several  counties  the  prisoner  is  in 
custody  of  the  sheriffs  of  each  of  the  counties 
through  which  he  passes.  Plowd.  37  a;  2 
Rolle,  163.  If,  however,  a  prisoner  escapes 
and  flies  into  another  county,  the  sheriff  or 
his  officers  may,  upon  fresh  pursuit,  take  him 
again  in  such  county.  But  he  may  do  mere 
ministerial  acts  out  of  his  county,  if  within 
the  state,  such  as  making  out  a  panel  or  re- 
turn, or  assigning  a  bail-bond,  or  the  like. 
2  Ld.  Raym.  1455 ;  2  Strange,  727 ;  Dalton, 
Sheriff,  22. 

H,  To  assist  him  in  the  discharge  of  his 
various  duties,  he  may  appoint  an  under- 
sheriff,  and  as  many  general  or  special  depu- 
ties as  the  public  service  may  require,  who 
rnay  discharge  all  the  ordinary  ministerial 
duties  of  the  office,  such  as  the  service  and 
return  of  process,  and  the  like,  but  not  the 
execution  of  a  writ  of  inquiry,  for  this  is  in 
the  nature  of  aj'udicial  duty,  which  may  not 
be  delegated.  All  acts  of  the  under-sheriff 
or  of  the  deputies  are  done  in  the  name  of 
the  sheriff,  who  is  responsible  for  them  al- 
though such  acts  should  amount  to  a  trespass 
or  an  extortion  of  the  officer ;  for  which  rea- 
son he  usually  takes  bonds  from  all  his  sub- 
ordinates for  the  faithful  performance  of  their 
duties.  CrokeEliz.  294 ;  2  Wils.  378  ;  3  id, 
309  ;  2  Blackst.  832 ;  Dougl.  40. 

8.  The  sheriff  also  appoints  a  jailer,  who 
is  usually  one  of  his  deputies,  and  has  two 
kinds  of  jails,  one  for  debtors,  which  he  may 
appoint  in  any  house  within  his  bailiwick, 
and  the  other  for  felons,  which  is  the  common 
jail  of  the  county.  The  jailer  is  responsible 
for  the  escape  of  any  prisoner  committed  to 
his  charge,  and  is  bound  to  have  sufficient 


SHERIFF'S  COURT 


519 


SHIP 


fnrce  at  his  disposal  to  prevent  a  breach  of 
the  prison  by  a  mob  or  otherwise  ;  and 
nothing  will  excuse  him  but  an  act  of  God 
Dr  the  public  enemy,  lie  must  not  be  guilty 
of  cruelty,  or  of  putting  debtors  in  irons,  or 
the  like,  without  sufficient  cause  ;  but  he  may 
defend  himself  at  all  hazards  if  attacked.  In 
a  case  where  a  prisoner,  notwithstanding  his 
remonstrances,  was  confined  by  the  jailer  in 
a  room  in  which  was  a  person  ill  with  the 
small-pox,  which  disease  he  took  and  died,  it 
was  held  to  be  murder  in  the  jailer.  Viner, 
Abr.  Gaol  (A);  4  Term,  789;  4  Coke,  84; 
Coke,  3d  Inst.  34;  2  Strange,  850. 

9.  A  deputy  cannot  depute  another  per- 
son to  do  the  duty  intrusted  to  him ;  although 
it  is  not  necessary  that  his  should  be  the 
hand  that  executes  the  writ:  it  is  sufficient 
if  he  is  present  and  assists.  In  the  execu- 
tion of  criminal  process,  he  may,  after  de- 
manding admittance,  break  open  the  outer 
door  of  a  house ;  but  in  civil  actions  he  may 
not  forcibly  enter  a  dwelling-house,  for  every 
man's  house  is  said  to  be  his  castle  and  fort- 
ress, as  well  for  defence  as  for  repose.  But 
a  warehouse,  store,  or  barn,  or  the  inner 
door  of  a  dwelling-house'after  the  officer  has 
peaceably  entered,  is  not  privileged.  Pro- 
cess or  writs  of  any  description  may  not  be 
served  on  Sunday,  except  in  cases  of  treason, 
felony,  or  breach  of  the  peace  ;  nor  may  the 
sheriff  on  that  day  retake  a  prisoner  who 
has  escaped  from  custody.  6  Wend.  N.  Y. 
454;  8  id.  47  ;  16  Johns.  N.  Y.  287  ;  4  Taunt. 
619;  8  id.  250;  Cowp.  63;  Croke  Eliz.  908; 
Croke  Car.  537  :  W.  Jones,  429  ;  5  Term,  25  ; 
3  East,  155  ;  3  Bos.  &  P.  223  ;  Dalton,  Sheriff; 
Watson,  Sheriff. 

SHERIFF'S  COURT.  In  Scotch  Law. 
A  court  having  an  extensive  civil  and  crimi- 
nal jurisdiction. 

Its  judgments  and  sentences  are  subject 
to  review  by  the  court  of  session  and  court 
of  justiciary.  Alison,  Pract.  25  ;  Paterson, 
Comp.  941,  n. 

SHERIFF'S  COURT  IN  LONDON. 
A  tribunal  having  cognizance  of  personal 
actions  under  the  London  (city)  Small  Debts 
Act  of  1852,  21  &  22  Vict.  c.  157,  s.  3.  See  11 
&  12  Vict.  c.  121 ;  15  &  16  Vict.  c.  127  ;  18  & 
19  Vict.  c.  122,  s.  99 ;  20  &  21  Vict.  c.  157. 

The  sheriff's  court  in  London  is  one  of 
the  chief  of  the  courts  of  limited  and  local 
jurisdiction  in  London.  3  Stephen,  Comm. 
449,  note  (1);  3Blackstone,Comm.80,  note  (j). 

SHERIFF'S  JURY.  In  Practice.  A 
jury  composed  of  no  determinate  number, 
but  which  may  be  more  or  less  than  twelve, 
summoned  by  the  sheriff  for  the  purposes  of 
an  inquisition  or  inquest  of  office.  3  Shars- 
vrood,  Blackst.  Comm.  258. 

SHERIFF  S  TOURN.  A  court  of 
record  in  England,  held  twice  every  year, 
within  a  month  after  Easter  and  Michael- 
mas,before  the  sheriff,  in  different  parts  of  the 
county. 

It  is,  indeed,  only  the  turn  or  circuit 
of  the  sheriff  to  keep  a  court-leet  in  each 


respective  hundred.  It  is  the  great  court 
leet  of  the  county,  as  the  county  court  is  the 
court-baron ;  for  out  of  this,  for  the  ease  of 
the  sheriff,  was  taken  the  court-leet  or  view 
of  frank-pledge,  which  see.  4  Stephen, 
Comm.  339  ;  4  Blackstone,  Comm.  273. 

SHERIFFALTY.    The  office  of  sheriff. 

SHIFTING  USE.  Such  a  use  as  takes 
effect  in  derogation  of  some  other  estate,  and 
is  limited  expressly  by  the  deed  or  is  allowed 
to  be  created  by  some  person  named  in  the 
deed.  Gilbert,  Uses,  Sugden  ed.  152,  n. ;  2 
Washburn,  Real  Prop.  284. 

For  example,  a  feoffment  in  fee  is  made  to 
the  use  of  W  and  his  heirs  till  A  pays  £40 
to  W,  and  then  to  the  use  of  A  and  his  heirs. 
A  very  common  application  is  in  the  case  of 
marriage  settlements.  Williams,  Real  Prop. 
243.  The  doctrine  of  shifting  uses  furnished 
a  means  of  evading  the  principle  of  law  that 
a  fee  could  not  be  limited  after  a  fee.  See  2 
Washburn,  Real  Prop.  284  et  seq. ;  Williams, 
Real  Prop.  242  ;  1  Spence,  Eq.  Jur.  452 ;  1 
Vern.  Ch.  402 ;  1  Edw.  Ch.  34  ;  Plowd.  25  ; 
PoUexf.  65. 

SHILLING.  In  English  Law.  The 
name  of  an  English  coin,  of  the  value  of  one- 
twentieth  part  of  a  pound.  In  the  United 
States  while  they  were  colonies  there  were 
coins  of  this  denomination ;  but  they  varied 
greatly  in  their  value. 

SHIP.  A  vessel  employed  in  navigation : 
for  example,  the  terms  the  ship's  papers,  the 
ship's  husband,  shipwreck,  and  the  like,  are 
employed  whether  the  vessel  referred  to  be 
a  brig,  a  schooner,  a  sloop,  or  a  three-masted 
vessel. 

A  vessel  with  three  masts,  employed  in 
navigation.  4  Wash.  C.  C.  530  ;  Weskett,  Ins. 
514.  The  boats  and  rigging,  2  Marshall,  Ins. 
727,  together  with  the  anchors,  masts,  cables, 
and  such-like  objects,  are  considered  as  part 
of  the  ship.  Pardessus,  n.  599 ;  Dig.  22.  2. 
44. 

As  to  what  passes  by  a  bill  of  sale  under 
the  general  term  ship,  or  ship  and  her  appur- 
tenances, or  ship,  apparel,  and  furniture,  see 
1  Parsons,  Marit.  Law,  71,  n.  3  ;  Apparel. 
The  capacity  of  a  ship  is  ascertained  by  its 
tonnage,  or  the  space  which  may  be  occupied 
by  its  cargo. 

Ships  are  of  different  kinds:  as,  ships  of 
war  and  merchant-ships,  steamships  and  sail- 
ing-vessels. Merchant-ships  may  be  devoted 
to  the  carriage  of  passengers  and  property, 
or  either  ahme.  When  propelled  in  whole  or 
in  part  by  steam,  and  employed  in  the  trans- 
portation of  passengers,  they  are  subject  to 
inspection  and  certain  stringent  regulations 
imposed  by  act  of  congress  passed  Aug.  30, 
1852,  10  U.  S.  Stat,  at  Large,  61 ;  and  steam- 
vessels  not  carrying  passengers  are  likewise 
subject  to  inspection  and  certain  regulations 
prescribed  by  the  act  of  congress  of  July  7, 
1838.    5  U.  S.  Stat,  at  Large,  304. 

Stringent  regulations  in  regard  to  the 
number  of  passengers  to  be  taken  on  board 
of  sailing-vessels,  and  the  provisions  to  be 


520  SHIPPER 


SHIP-BROKER 


made  for  their  safety  and  comfort,  are  also 
proscribed  by  the  act  of  3d  March,  1855.  10 
tl.  S.  Stat,  at  Large,  715. 

Numerous  other  acts  of  congress  have  been 
jjassed  from  time  to  time  in  reference  to  the 
registering,  enrolling,  licensing,  employment, 
and  privileges  of  the  vessels  of  commerce 
owned  in  the  United  States ;  and  a  reference  to 
the  titles  and  provisions  of  these  acts  would 
occupy  more  space  than  can  properly  be 
devoted  to  them  in  this  article.  See  the 
various  titles  in  this  work,  and  in  Brightley's 
Digest  of  the  Laws  of  the  United  States. 

See,  also,  the  Act  of  Congress  of  March, 
3,  1851,  to  limit  the  liability  of  ship-owners, 
and  for  other  purposes;  the  English  Mer- 
chant Shipping  Act,  1854 ;  Code  de  Com- 
merce ;  Abbott,  Shipping ;  Parsons,  Marit. 
Law ;  Phillips,  Insurance ;  Emerigon,  In- 
surance, etc.  Meredith  ed. ;  Arnould,  Insur- 
ance ;  Marvin,  Wreck  &  Salvage ;  Conkling, 
Admiralty ;  Flanders,  Shipping ;  Flanders, 
Maritime  Law  ;  McCulloch,  Commercial  Dic- 
tionary ;  Homans,  Cyclopedia  of  Commerce  ; 
Pritchard,  Admiralty  Digest ;  Curtis,  Admi- 
ralty Digest ;  The  United  States  Digest ;  Bou- 
lay-Paty,  Cours  de  Droit  Commerciel  Mari- 
time ;  Pardessus,  Cours  de  Droit  Commerciel ; 
Pardessus,  Collection  de  Lois  Maritimes ; 
Reddie,  History  of  Maritime  Commerce  ;  Ed- 
vi-^ards,  Admiralty  Jurisdiction ;  Ware,  Re- 
ports. 

SHIP-BROKER.  One  who  transacts 
business  relating  to  vessels  and  their  employ- 
ment between  the  owners  of  vessels  and  mer- 
chants who  send  cargoes. 

SHIP-DAMAGE.  In  the  charter-parties 
with  the  English  East  India  Company  these 
words  occur:  their  meaning  is,  damage  from 
negligence,  insufficiency,  or  bad  stowage  in 
the  ship.    Dougl.  272 ;  Abbott,  Shipp.  204. 

SHIP'S  HUSBAND.  In  Maritime 
Law.  An  agent  appointed  by  the  owner  of 
a  ship,  and  invested  with  authority  to  make 
the  requisite  repairs  and  attend  to  the  manage- 
ment, equipment,  and  other  concerns  of  the 
ship.  He  is  the  general  agent  of  the  owners 
in  relation  to  the  ship,  and  may  be  appointed 
in  writing  or  orally.  He  is  usually,  but  not 
necessarily,  a  part-owner.  1  Parsons,  Marit. 
Law,  97.  He  must  see  to  the  proper  ouijit  of 
the  vessel  in  the  repairs  adequate  to  the  voy- 
age and  in  the  tackle  and  furniture  necessary 
for  a  seaworthy  ship;  must  have  a  proper 
master,  mate,  and  crew  for  the  ship,  so  that 
in  this  respect  it  shall  be  seaworthy;  must  see 
to  the  due  Jurnishing  of  provisions  and  stores 
according  to  the  necessities  of  the  voyage  ; 
must  see  to  the  regulariti/  of  the  clearances 
from  the  custom-house  and  the  regularity  of 
the  registry;  must  settle  the  contracts  and 
provide  for  the  payment  of  the  furnishings 
which  are  requisite  to  the  performance  of 
those  duties  ;  must  enter  into  proper  charter- 
parties,  or  engage  the  vessel  for  general 
freight  under  the  usual  conditions,  and  settle 
for  freight  and  adjust  averages  with  the 
tDorchaui .   and  n  ist  preserve  the  proper 


certificates,  surveys,  and  documents,  in  case 
of  future  disputes  with  insurers  and  freiirht- 
ers,  and  to  keep  regular  books  of  the  ship. 
Bell,  Comm.  H28  ;  4  Barnew.  &  Ad.  375  ;  13 
East,  538  ;  1  Younge  &  C.  Exch.  32G ;  8  Wend. 
N.  Y.  144 ;  16  Conn.  12.  These  are  his  gene- 
ral powers ;  but,  of  course,  they  may  be 
limited  or  enlarged  by  the  owners ;  and  it 
may  be  observed  that  without  special  au- 
thority he  cannot  borrow  money  generally 
for  the  use  of  the  ship ;  though,  as  above  ob- 
served, he  may  settle  the  accounts  for  fur- 
nishings, or  grant  bills  for  them,  which  form 
debts  against  the  concern  whether  or  not  he 
has  funds  in  his  hands  with  which  he  might 
have  paid  them.  1  Bell,  Comm.  ^  499.  Al- 
though he  may,  in  general,  levy  the  freight 
which  is  by  the  bill  of  lading  payable  on 
the  delivery  of  the  goods,  it  would  seem  that 
he  would  not  have  power  to  take  bills  for  the 
freight  and  give  up  the  possession  of  the 
lien  over  the  cargo,  unless  it  has  been  so  set- 
tled by  the  charter-party. 

He  cannot  insure  or  bind  the  owners  for 
premiums.  17  Me.  147  ;  2  Maule  &  S.  485  ; 
13  East,  274;  7  B.  Monr.  Ky.  595  ;  11  Pick. 
Mass.  85 ;  5  Burr.  2627 ;  Paley,  Ag.  Lloyd 
ed.  23,  note  8  ;  Abbott,  Shipp.  pt.  1,  c.  3,  s.  2; 
Marshall,  Ins.  b.  1,  c.  8,  s.  2 ;  Livermore,  Ag. 
72,  73. 

As  the  power  of  the  master  to  enter  into 
contracts  of  affreightments  is  superseded 
in  the  port  of  the  owners,  so  it  is  by  the  pre- 
sence of  the  ship's  husband  or  the  knowledge 
of  the  contracting  parties  that  a  ship's  hus- 
band has  been  appointed.  2  Bell,  Comm.  199. 
The  ship's  husband,  as  such,  has  no  lien  oa 
the  vessel  or  proceeds.    2  Curt.  C.  C.  427. 

SHIP' S  PAPERS.  The  papers  or  docu- 
ments required  for  the  manifestation  of  the 
ownership  and  national  character  of  a  vessel 
and  her  cargo,  and  to  show  her  compliance 
with  the  revenue  and  navigation  laws  of  the 
country  to  which  she  belongs. 

The  want  of  these  papers  or  any  of  them 
renders  the  character  of  a  vessel  suspicious, 
2  Boulay-Paty,  Droit  Com.  14 ;  and  the  use 
of  false  or  simulated  papers  frequently  sub- 
jects the  vessel  to  confiscation,  15  East,  46, 
70,  364 ;  Molloy,  b.  2,  g.  2,  s.  9,  or  avoids  an 
insurance,  unless  the  insurer  has  stipulated 
that  she  may  carry  such  papers.  Id. 

A  ship's  papers  are  of  two  sorts :  Jirst, 
those  required  by  the  law  of  the  particular 
country  to  which  the  ship  belongs:  as,  the 
certificate  of  registry  or  of  enrolment,  the 
license,  the  crew-list,  the  siiipping  articles, 
clearance,  etc. ;  and,  second,  such  as  are  re- 
quired by  the  laAV  of  nations  to  be  on  board 
of  neutral  ships  as  evidence  of  their  title  to 
that  character:  as,  tiie  sea  brief  or  letter,  or 
passport;  the  proofs  of  property  in  the  -^hip, 
as  bills  of  sale,  etc.;  tlic  charter-party;  the 
bills,  of  lading  ;  the  invoices  ;  the  crew-list  or 
muster-roll ;  the  log-book,  and  the  bill  of 
health.  M'Culloch,  Com.  Diet.  Ship's  Papers, 

SHIPPER.  One  who  ships  or  puts  goods 
oa  board  of  a  vessel,  to  be  carried  to  another 


SniPPINQ 


521 


SICKNESS 


place  during  her  voyage.  In  general,  the 
shipper  is  liound  to  pay  for  the  hire  of  the 
vessel  or  the  freight  of  the  goods.  1  Bouvicr, 
[nst.  n.  1030. 

SHIPPING.  Ships  in  general ;  ships  or 
vessels  of  any  kind  intended  for  navigation 
Relating  to  ships:  as,  shipping  interest,  ship- 
ping aflfairs,  shipping  husiness,  shipping  con- 
cerns. Putting  on  board  a  ship  or  vessel,  or 
receiving  on  board  a  ship  or  vessel.  Webster, 
Diet.;  Worcester,  Diet.  See  Ship;  Ship's 
Papers. 

SHIPPING  ARTICLES.  An  agree- 
ment, in  writing  or  print,  between  the  master 
and  seamen  or  mariners  on  board  his  vessel 
(except  such  as  shall  be  apprenticed  or  ser- 
vant to  himself  or  owners),  declaring  the 
voyage  or  voyages,  term  or  terms  of  time,  for 
which  such  seamen  or  mariners  shall  be 
shipped.  It  is  also  required  that  at  the  foot 
of  every  such  contract  there  shall  be  a  memo- 
randum, in  writing,  of  the  day  and  the  hour 
on  which  each  seaman  or  mariner  w^ho  shall 
60  ship  and  subscribe  shall  render  himself  on 
board  to  begin  the  voyage  agreed  upon. 

2.  For  vvantof  shipping  articles,  the  seaman 
is  entitled  to  the  highest  wages  wdiich  have 
been  given  at  the  port  or  place  where  such 
seaman  or  mariner  shall  ha^^e  been  shipped 
for  a  similar  voyage,  wdthin  three  months 
next  before  the  time  of  such  shipping,  on  his 
performing  the  service,  or  during  the  time  he 
shall  continue  to  do  duty  on  board  such 
vessel,  Avithout  being  bound  by  the  regula- 
tions or  subject  to  the  penalties  and  forfeitures 
contained  in  the  said  act  of  congress;  and  the 
master  is  further  liable  to  a  penalty  of  twenty 
dollars.    Act  of  Congr.  July  20,  1790. 

3.  The  shipping  articles  ought  not  to  con- 
tain any  clause  w^hich  derogates  from  the 
general  rights  and  privileges  of  seamen  ;  and, 
if  they  do,  such  clause  w^ill  be  declared  void. 
2  Sumn.  C.  C.  443  ;  2  Mas.  C.  C.  541. 

A  seaman  who  signs  shipping  articles  is 
bound  to  perform  the  voyage ;  and  he  has  no 
right  to  elect  to  pay  damages  for  non-perform- 
ance of  the  contract.    2  Va.  Cas.  276. 

See,  generally,  Gilp.  Dist.  Ct.  147,  219, 452; 
1  Pet.  Adm.  212;  Bee,  Adm.  48:  1  Mas. 
C.  C.  443;  5  id.  272;  14  Johns.  N.  Y.  2G0;  1 
Parsons,  Marit.  Law,  442-452. 

SHIPWRECK.  The  loss  of  a  vessel  at 
sea,  either  by  being  sM'allowed  up  by  the 
waves,  by  running  against  another  vessel  or 
thing  at  sea,  or  on  the  coast. 

SHIRE.  In  English  Law.  A  district 
or  division  of  country.    Coke,  Litt.  50  a. 

SHIRE-GEMOT  (spelled,  also,  Scire- 
gemote,  Scir-gemot,  Scyre-gemote,  Shire-inole ; 
from  the  Saxon  scir  or  scrgre,  county,  shire, 
and  gemote,  a  court,  an  assembly). 

The  Saxon  county  court. 
.  It  was  held  twice  a  year  before  the  bishop 
and  alderman  of  the  shire,  and  was  the  prin- 
cipal court.  Spelman,  Gloss.  GemoUim;  Cun- 
ningham, Law  Diet.  Shire;  Crabb,  Hist.  Eng. 
Law,  28. 

SHOP-BOOKS.    The  books  of  a  retail 


dealer,  mechanic,  or  other  person,  in  which 
entries  or  charges  are  made  of  work  done 
or  goods  sold  arid  delivered  to  customers: 
commonly  called  "account-books," or  "books 
of  account."  The  party's  own  aliop-hooka 
are  in  certain  cases  admissible  in  evidence 
to  prove  the  delivery  of  goods  therein  charged, 
where  a  foundation  is  laid  for  their  introduc- 
tion. The  following  are  the, general  rules 
governing  the  production  of  this  kind  of  evi- 
dence. First,  that  the  party  offering  the 
books  kept  no  clerk ;  second,  that  the  books 
offered  by  the  party  are  his  books  of  account, 
and  that  the  entries  therein  are  in  his  hand- 
writing; third,  it  must  appear,  by  some  of 
those  who  have  dealt  with  the  party  and 
settled  by  the  books  offered,  that  they  found 
them  correct;  fourth,  it  must  be  shown  that 
some  of  the  articles  charged  have  been  de- 
livered. Where  entries  are  made  by  a  clerk 
who  is  dead,  such  entries  are  admissible  in 
evidence  on  proof  of  his  handwriting.  4 
111.  120;  19  id.  393  ;  8  Johns.  N.  Y.  212;  11 
AVend.  N.  Y.  568;  1  Greenleaf,  Ev.  ^17;  1 
Smith,  Lead.  Cas.  Hare  &  W.  ed.  282.  See 
Original  Entry. 

SHORE.  Land  on  the  side  of  the  sea, 
a  lake,  or  a  river.  Strictly  speaking,  when 
the  water  does  not  ebb  .and  flow  in  a  river, 
there  is  no  shore.    See  River  ;  Sea. 

SHORT  ENTRY.  A  term  used  among 
bankers  to  denote  the  act  which  takes  place 
when  a  note  has  been  sent  to  a  bank  for  col- 
lection, and  an  entry  of  it  is  made  in  the 
customer's  bank-book,  stating  the  amount  in 
an  inner  column,  and  carrying  it  out  into  the 
accounts  betw^een  the  parties  when  it  has 
been  paid. 

A  bill  of  this  kind  remains  the  property  of 
the  depositor.  1  Bell,  Comm.  271 ;  9  East,  12;  1 
Rose,  Bank.  153;  2     163;  2Barnew.&C.422. 

SHORT  NOTICE.  In  English  Prac- 
tice. Four  days'  notice  of  trial.  Wharton, 
Diet.  2d  Lend.  ed.  Notice  of  Trial  at  Com- 
mon Law;  3  Chitty,  Stat.  148;  1  Crompt. 
&  M.  Exch.  499.  'Where  short  notice  has 
been  given,  two  days  is  sufficient  notice  of 
continuance.    Wharton,  Lex.  2d  Lond.  ed. 

SI  TE  FECERIT  SECURUM  (Lat. 
if  he  make  you  secure).  Words  which  occur 
in  the  form  of  writs,  which  originally  re- 
quired, or  still  require,  that  the  plaintiff 
should  give  security  to  the  sheriff  that  he 
will  prosecute  his  claim,  before  the  sheriff 
can  be  required  to  execute  such  writ. 

SICKNESS.  By  sickness  is  understood 
any  affection  of  the  body  which  deprives  it 
temporarily  of  the  power  to  fulfil  its  usual 
functions. 

Sickness  is  either  such  as  affects  the  body  gene- 
rally, or  only  some  parts  of  it.  Of  the  former  class 
a  fever  is  an  example;  of  the  latter,  blindness. 
When  a  process  has  been  issued  against  an  indi- 
vidual for  his  arrest,  the  sheriflf  or  other  officer  is 
authorized,  after  he  has  arrested  him,  if  he  be  so 
dangerously  sick  that  to  remove  him  would  en- 
danger his  life  or  health,  to  let  him  remain  where 
he  found  him,  and  to  return  the  facts  at  large,  or 
simply  lanauidua. 


SIDE-BAR  RULES  522 


SIGN  MANUAL 


SIDE-BAR  RULES.  In  English  Prac- 
tice. Rules  which  were  formerly  moved  for 
by  attorneys  on  the  side-bar  of  the  court, 
but  now  may  be  had  of  the  clerk  of  the  rules, 
upon  a  jrrcecipe.  These  rules  are,  that  the 
sheriff  return  his  writ,  that  he  bring  in  the 
body,  for  special  imparlance,  to  be  present 
at  the  taxing  of  costs,  and  the  like. 

SIDESMEN  [tester,  st/nodales).  In  Ec- 
clesiastical Law.  A  kind  of  impanelled 
jury,  consisting  of  two,  three,  or  more  persons, 
in  every  parish,  who  were  upon  oath  to  pre- 
sent all  heretics  and  irregular  persons.  In 
process  of  time  they  became  standing  officers 
in  many  places,  especially  cities.  They  were 
called  synodsmen, — by  corruption  sidesmen; 
also  questmen.  But  their  office  has  become 
absorbed  in  that  of  church-warden.  1  Burn, 
Eccl.  Law,  399. 

SIGHT.  Presentment.  Bills  of  exchange 
are  frequently  drawn  payable  at  sight  or  a 
certain  number  of  days  or  months  after  sight. 

2.  Bills  payable  at  sight  are  said  to  be 
entitled  to  days  of  grace  by  the  law  merchant. 
Beawes,  Lex  Merc.  pi.  256 ;  Kyd,  Bills,  10 ; 
Chitty,  Bills,  343 ;  Parsons,  Notes  &  B. 

The  holder  of  a  bill  payable  at  sight  is  re- 
quired to  use  due  diligence  to  put  it  into 
circulation,  and,  if  payable  after  sight,  have 
it  presented  in  reasonable  time.  20  Johns. 
N.  Y.  146  ;  7  Cow.  N.  Y.  705 ;  12  Pick.  Mass. 
399  ;  28  Eng.  L.  &  Eq.  131 ;  13  Mass.  137;  4 
Mas.  C.  C.  336;  5  id.  118  ;  1  M'Cord,  So.  C. 
322;  1  Hawks,  No.  C.  195. 

3.  When  the  bill  is  drawn  payable  any 
number  of  days  after  sight,  the  time  begins 
to  run  from  the  period  of  presentment  and 
acceptance.  1  Mas.  C.  C.  176;  20  Johns. 
N.  Y.  176.  It  is  usual  to  leave  a  bill  for  ac- 
ceptance one  whole  day ;  but  the  acceptance  is 
dated  as  on  the  day  it  was  left.   Sewell,  Bank. 

A  bill  drawn  payable  a  certain  number 
of  days  after  sight,  acceptance  waived,  must 
be  presented  to  fix  the  time  at  which  the  bill 
is  to  become  due,  and  the  term  of  the  bill 
begins  to  run  from  the  date  of  presentment. 

Sight  draft  and  sight  bill  are  bills  pay- 
able at  sight. 

SIGILLUM  (Lat.).    A  seal. 

SIGN.  In  Contracts.  A  token  of  any 
thing  ;  a  note  or  token  given  without  words. 

2.  Contracts  are  express  or  implied.  The  ex- 
press are  manifested  viva  voce  or  by  writing;  the 
implied  are  shown  by  silence,  by  acts,  or  by  signs. 

Among  all  nations  and  at  all  times,  certain  signs 
have  been  considered  as  proof  of  assent  or  dissent: 
for  example,  the  nodding  of  the  head,  and  the 
fhaking  of  hands,  2  Blackstone,  Comm.  448;  6 
Toullier,  n.  83  ;  Ileineccius,  Antiq.  lib.  2,  t.  23,  n. 
19,  silence  and  inaction,  facts  and  signs,  are  some- 
times very  strong  evidence  of  cool  reflection,  when 
following  a  question.  I  ask  you  to  lend  me  one 
hundred  dollars:  without  saying  a  word,  you  put 
your  hand  in  your  pocket  and  deliver  me  the  money. 
I  go  into  a  hotel,  and  I  ask  the  landlord  if  he  can 
accommodate  me  and  take  care  of  my  trunk  :  with- 
out speaking,  he  takes  it  out  of  my  hands  and  sends 
it  into  his  chamber.  By  this  act  he  doubtless  be- 
comes responsible  to  me  as  a  bailee.  At  the  expi- 
ration of  a  lease,  the  tenant  remains  in  possession, 


without  any  objection  from  the  landlord  :  this  may 
be  fairly  interpreted  as  a  sign  of  a  consent  that  th« 
lease  shall  be  renewed.    13  Serg.  &  R.  Penn.  60. 

3.  The  learned  author  of  the  Decline  and  Fall 
of  the  Roman  Empire,  in  his  44th  chapter,  remarks, 
"Among  savage  nations  the  want  of  letters  is  im- 
perfectly supplied  by  the  use  of  visible  signs,  which 
awaken  attention  and  perpetuate  the  remembrance 
of  any  public  or  private  transaction.    The  juris- 
prudence of  the  first  Romans  exhibited  the  scenes 
of  a  pantomime;  the  words  were  adapted  to  the 
gestures,  and  the  slightest  error  or  neglect  in  the 
forms  of  proceeding  was  suflScient  to  annul  the 
siibntauce  of  the  fairest  claim.    The  communion  of 
the  marriage- life  was  denoted  by  the  necessary 
elements  of  lire  and  water;  and  the  divorced  wife 
resigned  the  bunch  of  keys  by  the  delivery  of 
Avhich  she  had  been  invested  with  the  government 
of  the  family.     The  manumission  of  a  son  or  a 
slave  was  performed  by  turning  him  round  with  a 
gentle  blow  on  the  cheek ;  a  work  was  prohibited 
by  the  casting  of  a  stone;  prescription  was  inter- 
rupted by  the  breaking  of  a  branch ;  the  clenched 
fist  was  the  symbol  of  a  pledge  or  deposit;  the 
right  hand  was  the  gift  of  faith  and  confidence. 
The  indenture  of  covenants  was  a  broken  straw; 
weights  .and  scales  were  introduced  into  every  pay- 
ment ;  and  the  heir  who  accepted  a  testament  was 
sometimes  obliged  to  snap  his  fingers,  to  cast  away 
his  garments,  and  to  leap  and  dance  with  real  or 
aff"ected  transport.    If  a  citizen  pursued  any  stolen 
goods  into  a  neighbor's  house,  he  concealed  his 
nakedness  with  a  linen  towel,  and  hid  his  face  with 
a  mask  or  basin,  lest  he  should  encounter  the  eyes 
of  a  virgin  or  a  matron.    In  a  civil  action,  the 
plaintiff  touched  the  ear  of  his  witness,  seized  his 
reluctant  adversary  by  the  neck,  and  implored,  iu 
solemn  lamentation,  the  aid  of  his  fellow-citizens.  ; 
The  two  competitors  grasped  each  other's  hand,  as  ■ 
if  they  stood  prepared  for  combat  before  the  tri-  ; 
bunal  of  the  prsetor:  he  commanded  thtm  to  pro-  ; 
duce  the  object  of  the  dispute;  they  went,  they  re- 
turned with  measured  steps,  and  a  clod  of  earth  , 
was  cast  at  his  feet  to  represent  the  field  for  which  , 
they  contended.    This  occult  science  of  the  words 
and  actions  of  law  was  the  inheritance  of  the 
pontiffs  and  patricians.   Like  the  Chaldean  astrolo- 
gers, they  announced  to  their  clients  the  days  of 
business  and  repose;  those  important  trifles  were 
interwoven  with  the  religion  of  Numa;  and,  after 
the  publication  of  the  Twelve  Tables,  the  Roman  ' 
people  were  still  enslaved  by  the  ignorance  of  \ 
judicial  proceedings.    The  treachery  of  some  pie-  | 
beian  ofiicers  at  length  revealed  the  profitable  mys-  ; 
tery ;  in  a  more  enlightened  age,  the  legal  actions 
were  derided  and  observed  ;  and  the  same  antiquity  j 
which  sanctified  the  practice  obliterated  the  use 
and  meaning  of  this  primitive  language."  \ 

In  Measures,    In  angular  measures,  a 
sign  is  equal  to  thirty  degrees. 

In  Mercantile  Law.  A  board,  tin,  or 
other  substance,  on  which  are  painted  the 
nameand  businessof  amerchantortradesman. 

Every  man  has  a  right  to  adopt  such  a 
sign  as  he  may  please  to  select ;  but  he  haa 
no  right  to  use  another's  name  without  his 
consent.  See  Dalloz,  Diet.  FrojpriiU  Indus- 
trielle;  Trade-Marks. 

SIGN  MANUAL.    In  English  Law. 

The  signature  of  the  kir.g  to  grants  or  letters 
patent,  inscribed  at  the  top.  2  Sharswood, 
Blackst.  Comm.  347*. 

Any  one's  name  written  by  himself.  Web- 
ster, Diet.;  Wharton,  Law  Diet.  2d  Lond.  ed. 
The  sign  manual  is  not  good  unless  counter 
signed,  etc.    9  Mod.  54. 


SIGNA 


523 


SIMONY 


SIGNA  (Lat.).  In  Civil  Law.  Those 
specie!^  ol'  iiiUicia  wliich  como  more  immedi- 
ately utider  the  cMjgnizance  of  the  senses  :  such 
as,  stains  of  blood  on  the  person  of  one  ac- 
cused of  murder,  indicati(m8  of  terror  at  being 
charged  with  the  offence,  and  the  like. 

Signa,  although  not  to  be  rejected  as  instru- 
ments of  evidence,  cannot  always  be  relied 
upon  as  conclusive  evidence;  for  they  are  fre- 
quently explained  away.  In  the  instance 
mentioned,  the  blood  may  have  been  that  of 
a  beast;  and  expressions  of  terror  have  been 
frequently  manifested  by  innocent  persona 
who  did  not  possess  much  firmness.  See  Best, 
Pres.  Ev.  13,  n./V  Denisart. 

SIGNATURE.  In  Ecclesiastical  Law. 
The  name  of  a  sort  of  rescript,  without  seal, 
containing  the  supplication,  the  signature  of 
the  pope  or  his  delegate,  and  the  grant  of  a 
pardon.    Diet.  Dr.  Can. 

In  Practice.  By  signature  is  understood 
the  act  of  putting  down  a  man's  name  at  the 
end  of  an  instrument,  to  attest  its  validity. 
The  name  thus  written  is  also  called  a  signa- 
ture. 

2.  It  is  not  necessary  that  a  party  should 
write  his  name  himself,  to  constitute  a  signa- 
ture :  his  mark  is  now  held  sufficient,  though 
he  was  able  to  write.  8  Ad.  &  E.  94  ;  3  Nev. 
&  P.  228 ;  3  Curt.  C.  C.  752 ;  5  Johns.  N.  Y. 
144.  A  signature  made  by  a  party,  another 
person  guiding  his  hand  with  his  consent,  is 
sufficient.    4  Wash.  C.  C.  262,  209. 

3.  The  signature  is  usually  made  at  the 
bottom  of  the  instrument;  but  in  walls  it  has 
been  held  that  when  a  testator  commenced 
his  will  with  these  words,  "  I,  A  B,  make 
this  my  will,"  it  was  a  sufficient  signing.  3 
Lev.  1.  And  see  Roberts,  Wills,  122;  Chitty, 
Contr.  212;  Newdand,  Contr.  173;  Sugden, 
Vend.  71;  2  Starkie,  Ev.  605,  613;  Roberts, 
Frauds,  121.  But  this  decision  is  said  to  be 
absurd.  1  Brown,  Civ.  Law,  278,  n.  16. 
See  Merlin,  Report.  Signature,  for  a  history 
of  the  origin  of  signatures ;  and,  also,  4 
Cruise,  Dig.  32,  c.  2,  s.  73  et  seq.  See,  gene- 
rally, 8  Toullier,  nn.  94-96 ;  1  Dall.  Penn.  64  ; 

5  Whart.  Penn.  386 ;  2  Bos.  &  P.  238  ;  2  Maule 

6  S.  286;  Redfield,  Wills. 
SIGNIFICATION  (Lat.  signum,  a  sign, 

facere,  to  make).  In  French  Law.  The 
notice  given  of  a  decree,  sentence,  or  other 
judicial  act. 

SIGNIFIC AVIT  ( Lat. ) .  In  Ecclesiasti- 
cal Law.  When  this  word  is  used  alone,  it 
means  the  bishop's  certificate  to  the  court  of 
chancery  in  order  to  obtain  the  writ  of  ex- 
communication ;  but  where  the  w^ords  writ 
of  signijicavit  are  used,  the  meaning  is  the 
same  as  writ  de  excommunicato  capiendo.  2 
Burn,  Eccl.  Law,  248;  Shelford,  Marr.  &  D. 
«02. 

SIGNING  JUDGMENT.  In  English 
Practice,  the  plaintiff  or  defendant,  when 
the  cause  has  reached  such  a  stage  that  he  is 
entitled  to  a  judgment,  obtains  the  signature 
or  allowance  of  the  proper  officer ;  and  this 
is  called  signing  judgment,  and  is  instead  of 


the  delivery  of  judgment  in  open  court.  Ste 
phen.  Plead.  111.  It  is  the  leave  of  the  mas- 
ter of  the  office  to  enter  up  judgment,  and 
may  bo  had  in  vacation.  3  Barnew.  &  C. 
317  ;  Tidd,  Pi  act.  616. 

In  American  Practice,  it  is  an  actual 
signing  of  the  judgment  on  ihe  record,  by 
the  judge  or  other  officer  duly  authorized. 
Graham,  Pract.  341. 

SILENCE.  The  state  of  a  person  who 
does  not  speak,  or  of  one  who  refrains  from 
speaking. 

"2,  Pure  and  simple  silence  cannot  be  con- 
sidered as  a  consent  to  a  contract,  except  in 
cases  where  the  silent  person  is  bound  in 
good  faith  to  explain  himself :  in  which  case 
silence  gives  consent.  6  Toullier,  1.  3,  t.  3, 
n.  32,  note  ;  14  Serg.  &  R.  Penn.  393  ;  2  Belt, 
Suppl.  Ves.  Ch.  442;  1  Dane,  Abr.  c.  1,  art. 
4,  ^  3;  8  Term,  483;  6  Penn.  St.  336;  1 
Greenleaf,  Ev.  201  ;  2  Bouvier,  Inst.  n.  1313. 
But  no  assent  will  be  inferred  from  a  man's 
silence  unless  he  knows  his  rights  and  knows 
w^hat  he  is  doing,  nor  unless  his  silence  is 
voluntary. 

When  any  person  is  accused  of  a  crime  or 
charged  wMth  any  fact,  and  he  does  not  deny 
it,  in  general,  the  presumption  is  very  strong 
that  the  charge  is  correct.  5  Carr.  &  P.  332; 
7  id.  832 ;  Joy,  Conf.  s.  10,  p.  77. 

3.  The  rule  does  not  extend  to  the  silence  of 
the  prisoner  when,  on  his  examination  before 
a  magistrate,  he  is  charged  by  another  pri- 
soner with  having  joined  with  him  in  the 
commission  of  an  oflfence.    3  Stark.  33. 

When  an  oath  is  administered  to  a  witness, 
instead  of  expressly  promising  to  keep  it,  he 
gives  his  assent  by  his  silence  and  kissing 
the  book. 

The  person  to  be  affected  by  the  silence 
must  be  one  not  disqualified  to  act,  as  non 
compos,  an  infant,  or  the  like;  for  even  the 
express  promise  of  such  a  person  would  not 
bind  him  to  the  performance  of  any  contract. 

The  rule  of  the  civil  law^  is  that  oilence  is 
not  an  acknowledgment  or  denial  in  every 
case:  qui  tacet,  non  uiiquejateiur ;  sedtamen 
verum  est,  evm  non  negare.    Dig.  50.  17. 142. 

SILVAC^DUA(Lat.).  By  these  words, 
in  England,  is  understood  every  sort  of  wood, 
except  gross  w^ood  of  the  age  of  twenty  years. 
Bacon,  Abr.  Tythes  (C). 

SIMILITER  (Lat.  likewise).  In  Plead- 
ing. The  plaintiff's  reply  that,  as  the  de- 
fendant has  put  himself  upon  the  country, 
he,  the  plaintiff,  does  the  like.  It  occurs 
only  when  the  plea  has  the  conclusion  to  the 
country,  and  its  effect  is  to  join  the  plaintiff 
in  the  issue  thus  tendered  by  the  defendant. 
Coke,  Litt.  126  a.  The  word  similiter  was 
the  effective  word  when  the  proceedings  were 
in  Latin.  1  Chitty,  Plead.  519  ;  Archbold, 
Civ.  Plead.  250.  "See  Stephen,  Plead.  255; 
2  Saund.  319  5;  Cowp.  407  ;  1  Strange,  551; 
11  Serg.  &  R.  Penn.  32. 

SIMONY.  In  Ecclesiastical  Law. 
The  selling  and  buying  of  holy  oraors  or  an 
ecclesiastical  benefice.    Bacon,  Abr.  Simony, 


SIMPLE  CONTRACT 


524 


SITUS 


By  simony  is  also  understood  an  unlawful 
agreement  to  receive  a  temporal  reward  for 
something  holv  or  spiritual.  Code,  1.  3.  31; 
Ayliffe,  Parerg.  496. 

SIMPLE  CONTRACT.  A  contract  the 
evidence  of  which  is  merely  oral  or  in  writ- 
ing, nut  under  seal  nor  of  record.  1  Chitty, 
Contr.  1 ;  1  Chitty.  Plead.  88.  And  see  11 
Mass.  30;  11  East,  312:  4  Barnew.  &  Aid. 
588;  3  Starkie,  Ev.  995;  2  Blackstone,  Comm. 
472. 

SIMPLE  LARCENY.  The  felonious 
taking  and  carrying  away  the  personal  goods 
of  another,  unattended  by  acts  of  violence: 
it  is  distinguished  from  compound  larceny, 
which  is  stealing  from  the  person  or  with 
violence. 

SIMPLE  OBLIGATION.  An  uncon- 
ditional obligation :  one  which  is  to  be  per- 
formed without  depending  upon  any  event 
provided  by  the  parties  to  it. 

SIMPLE  TRUST.  A  simple  trust  cor- 
responds with  the  ancient  use,  and  is  where 
property  is  simply  vested  in  one  person  for 
the  use  of  another,  and  the  nature  of  the 
trust,  not  being  qualified  bpr  the  settler,  is 
left  to  the  construction  of  law.  It  differs 
from  a  special  irust.    2  Bouvier,  Inst.  n.  1896. 

SIMPLEX  (Lat.).  Simple  or  single :  as, 
charta  simplex  is  a  deed-poll  or  single  deed. 
Jacob,  Law  Diet. 

SIMPLICITER  (Lat.).  Simply;  with- 
out ceremony;  in  a  summary  manner. 

SIMUL  CUM  (Lat.  together  with).  In 
Pleading.  Words  used  in  indictments  and 
declarations  of  trespass  against  several  per- 
sons, when  some  of  them  are  known  and 
others  are  unknown. 

In  cases  of  riots,  it  is  usual  to  charge  that 
A  B,  together  with  others  unknown,  did  the 
act  complained  of.  2  Chitty,  Crim.  Law,  488 ; 
2  Salk.  593. 

When  a  party  sued  with  another  pleads 
separately,  the  plea  is  generally  entitled  in 
the  name  of  the  person  pleading,  adding, 

**  sued  with  naming  the  other  party. 

When  this  occurred,  it  was,  in  the  old  phrase- 
ology, called  pleading  with  a  simul  cum. 

SIMULATION  (Lat.  simul,  together). 
In  French  Law.  The  concert  or  agreement 
of  two  or  more  persons  to  give  to  one  thing 
the  appearance  of  another,  for  the  purpose  of 
fraud.    Merlin,  Repert. 

With  us,  such  act  might  be  punished  by 
indictment  for  a  conspiracy,  by  avoiding  the 
pretended  contract,  or  by  action  to  recover 
i3ack  the  money  or  property  which  may  have 
been  thus  fraudulently  obtained. 

SINE  DIE  (Lat.).  Without  day.  A  judg- 
ment for  a  defendant  in  many  cases  is  quod  eat 
sine  die,  that  he  may  go  without  day.  While 
the  cause  is  pending  and  undetermined,  it 
may  be  continued  from  term  to  term  by  dies 
datus.  See  Continuance;  Coke,  Litt.  362  h, 
1163  a.  When  the  court  or  other  body  rise  at 
the  end  of  a  session  or  term,  they  adjourn 
fine  die. 


SINECURE.    In  Ecclesiastical  Law. 

A  term  used  to  signify  tliat  an  ecclesiasticaJl 
officer  is  without  a  charge  or  cure. 

In  common  parlance,  it  means  the  receipt 
of  a  salary  for  an  office  when  there  are  no. 
duties  to  be  performed. 

SINGLE  BILL.  One  without  any  con- 
dition, and  which  does  not  depend  upon  any 
future  event  to  give  it  validity. 

SINGLE  ENTRY.  A  term  used  among 
merchants,  signifying  that  the  entry  is  made 
to  charge  or  to  credit  an  individual  or  thing, 
without  at  the  same  time  presenting  any 
other  part  of  the  operation:  it  is  used  in 
contradistinction  to  double  entry.  For  ex- 
ample, a  single  entry  is  made,  A  B  debtor, 
or  A  B  creditor,  without  designating  what 
are  the  connections  between  the  entry  and 
the  objects  which  composed  the  fortune  of 
the  merchant. 

SINGULAR.  In  grammar,  the  singular  is 
used  to  express  only  one;  not  plural.  Johnson. 

In  law,  the  singular  frequently  includes 
the  plural.  A  bequest  to  "wy  nearest  rela- 
tion," for  example,  will  be  considered  as  a 
bequest  to  all  the  relations  in  the  same  de- 
gree who  are  nearest  to  the  testator.  1  Ves. 
Sen.  Ch.  357  ;  1  Brown,  Ch.  293.  A  bequest 
made  to  my  heir,"  by  a  person  who  had 
three  heirs,  will  be  construed  in  the  plural. 
4  Russ.  Cr.  Cas.  384. 

The  same  rule  obtains  in  the  civil  law:  in 
usu  juris  frequenter  uti  nos  singulari  appeU 
latione,  cum  plura  signijicari  vellemus.  Dig. 
50.  16.  158. 

SINKING  FUND.  A  fund  arising 
from  particular  taxes,  imposts,  or  duties, 
which  is  appropriated  towards  the  payment 
of  the  interest  due  on  a  public  loan  and  for 
the  gradual  payment  of  the  principal.  See 
Funding  System. 

SIRE.  A  title  of  honor  given  to  kings 
or  emperors  in  speaking  or  writing  to  them. 

SISTER.  A  woman  who  has  the  same 
father  and  mother  with  another,  or  has  one 
of  them  only.  In  the  first  case,  she  is  called 
sister,  simply ;  in  the  second,  half-sister. 

SITTINGS  IN  BANK  OR  BANC. 

The  sittings  which  the  respective  superior 
courts  of  common  law  hold  during  every 
term  for  the  purpose  of  hearing  and  deter- 
mining the  various  matters  of  law  argued 
before  them. 

They  are  so  called  in  contradistinction  to 
the  sittings  at  nisi  prius,  which  are  held  for 
the  purpose  of  trying  issues  of  fact.  The 
former  are  usually  held,  in  England,  beforo 
four  of  the  judges,  while  at  the  latter  one 
judge  only  presides.  Ilolthouse,  Law  Diet.; 
3  Stephen,  Comm.  423. 

In  America,  the  practice  is  essentially  the 
same,  all  the  judges,  or  a  majority  of  them, 
usually,  sitting  m  banc,  and  but  one  holding 
the  court  for  jury  trials;  and  the  term  has 
the  same  application  here  as  in  England. 

SITUS  (Lat.).  Situation;  location.  5 
Pet.  524. 


SIX  CLERKS  IN  CHANCERY  525 


SLANDER 


Real  estate  has  always  a  fixed  situs,  while 
personal  estate  has  no  such  fixed  situs:  the 
law  rei  sitce  regulates  real  but  not  the  per- 
sonal estate.    Story,  Confl.  of  Laws,  ^  3/9. 

SIX  CLERKS  IN  CHANCERY. 
Officers  who  received  and  filed  all  proceedings, 
signed  office  copies,  attended  court  to  read  the 
pleadings,  etc.  Abolished  by  5  Vict.  c.  5. 
3  Sharswood,  Blackst.  Comm.  443*;  Spence, 
Eq.  Jur.;  Fleta,  lib.  2,  c.  13,  I  15. 

SKELETON  BILL.  In  Commercial 
Law.  A  blank  paper,  properly  stamped,  in 
those  countries  where  stamps  are  required, 
with  the  name  of  a  person  signed  at  the 
bottom. 

In  such  case  the  person  signing  the  paper 
will  be  held  as  the  drawer  or  acceptor,  as  it 
may  be,  of  any  bill  which  shall  afterwards 
be  written  above  his  name,  to  the  sum  of 
which  the  stamp  is  applicable.  1  Bell,  Comm. 
390,  5th  ed. 

SKILL.  The  art  of  doing  a  thing  as  it 
ought  to  be  done. 

2»  Every  person  who  purports  to  have  skill 
in  a  business,  and  undertakes  for  hire  to  per- 
form it,  is  bound  to  do  it  with  ordinary  skill, 
and  is  responsible  civillv  in  damages  for  the 
want  of  it,  11  Mees.  &  W.  Exch.  483;  and 
sometimes  he  is  responsible  criminally.  See 
Mala  Praxis  ;  2  Russell,  Crimes,  288. 

3.  The  degree  of  skill  and  diligence  re- 
quired rises  in  proportion  to  the  value  of  the 
article  and  the  delicacy  of  the  operation  : 
more  skill  is  required,  for  example,  to  repair 
a  very  delicate  mathematical  instrument, 
than  upon  a  common  instrument.  Jones, 
Bailm.  91 ;  2  Kent,  Comm.  458,  463;  1  Bell, 
Comm.  459  ;  2  Ld.  Raym.  909,  918  ;  Domat, 
1.  1,  t.  4,  §  8,  n.  1 ;  Pothier,  Louage,  n.  425 ; 
Pardessus,  528  ;  Ayliffe,  Pand.  b.  4,  t.  7,  p. 
466;  Erskine,  Inst.  3.  3.  10;  1  Rolle,  Abr. 
10;  Story,  Bailm.  ?  431  et  seq.;  2  Green- 
leaf,  Ev.  \  144. 

SLANDER.  In  Torts.  Words,  spoken 
or  written,  which  are  injurious  to  the  charac- 
ter of  another. 

2.  The  ground  of  all  liability  to  an  action 
for  words  spoken  or  written  consists  in  in- 
jury to  character;  and  an  action  may  be 
maintained  in  the  following  cases.  To  be 
actionable  in  themselves,  the  words  when 
only  spoken,  not  written,  must  be  such  as  in 
their  plain  and  popular  sense  convey  to  the 
minds  of  the  hearers  a  charge  of  some  of- 
fence for  which  the  plaintiff  is  amenable  to 
the  law,  or  of  having  some  disease  which 
will  exclude  him  from  society.  Words 
which  are  not  actionable  in  themselves  be- 
come so  when  they  are  spoken  of  a  person  in 
his  profession,  office,  or  trade,  and  necessarily 
or  naturally  tend  to  injure  him  therein.  And 
any  words  defamatory  or  injurious  in  their 
nature,  spoken  of  another,  without  legal 
justification,  are  actionable,  if  productive  of 
special  damage  flowing  naturally  from  the 
slander.  The  term  "libel"  is  applied  to 
written  or  printed  slander.  Heard,  Libel  & 
S.§8. 


Verbal  Slander.  Actionable  words  are  of 
two  descriptions:  first,  those  act'')nable  in 
themselves,  without  proof  of  special  damages , 
and,  secondly,  those  actionable  only  in  re- 
spect of  some  actual  consequential  damages. 

Wordsof  the  firstdescription  must  impute — 

First,  the  guilt  of  some  offence  for  which  the 
party,  if  guilty,  might  be  indicted  and  pun- 
ished by  the  criminal  courts:  as,  to  call  a 
person  a  "traitor,"  "thief,"  "highwayman," 
or  to  say  that  he  is  guilty  of  "perjury," 
"forgery,"  "murder,"  and  the  like.  And 
although  the  imputation  of  guilt  be  general, 
without  stating  the  particulars  of  tlie  pre- 
tended crime,  it  is  actionable.  Croke  Jac. 
114,  142;  6  Term,  674;  3  Wils.  186;  2  Ventr. 
266 ;  5  Bos.  &  P.  335. 

A  very  recent  writer,  after  reviewing  the 
authorities,  concludes  "that  an  action  will 
lie  for  all  words  spoken  of  another  which 
impute  to  him  the  commission  of  a  crime  in- 
volving moral  turpitude  and  which  is  punish- 
able by  law."  Heard,  Libel  &  S.  §  24.  See 
3  Serg.  &  R.  Penn.  255 ;  7  id.  451 ;  10  id.  44; 
8  Mass.  248;  13  Johns.  N.  Y.  124,  275: 
Starkie,  Slander,  13-42. 

3.  Second,  that  the  party  has  a  disease 
or  distemper  which  renders  him  unfit  for 
society.  Bacon,  Abr.  Slander  (B  2).  An 
action  can,  therefore,  be  sustained  for  calling 
a  man  a  leper.  Croke  Jac.  144;  Starkie, 
Slander,  67.  Imputations  of  having  at  the 
present  time  the  venereal  disease  or  the 
gonorrhoea  are  actionable  in  themselves.  8 
C.  B.  N.  s.  9  ;  7  Gray,  Mass.  181;  22  Barb. 
N.  Y.  396;  2  Ind.  82;  2  Ga.  57.  But 
charging  another  with  having  had  a  conta- 
gious disease  is  not  actionable,  as  he  wall  not 
on  that  account  be  excluded  from  society. 
2  Term,  473,  474;  2  Strange,  1189;  Bacon, 
Abr.  Slander  (B  2). 

Third,  unfitness  in  an  officer,  who  holds  an 
office  to  which  profit  or  emolument  is  at- 
tached, either  in  respect  of  morals  or  in- 
ability to  discharge  the  duties  of  the  office:  in 
such  a  case  an  action  lies.  1  Salk.  695,  698  ; 
Rolle,  Abr.  65;  2  Esp.  500  ;  4  Coke.  16  a.;  5 
id.  125;  1  Strange,  617;  2  Ld.  Raym.  1369; 
Buller,  Nisi  P.  4 ;  Starkie,  Slander,  100. 

Fourth,  the  want  of  integrity  or  capacity, 
whether  mental  or  pecuniary,  in  the  conduct 
of  a  profession,  trade,  or  business,  in  which 
the  party  is  engaged,  is  actionable,  1  Mai. 
Entr.  234:  as,  to  accuse  an  attorney  or 
artist  of  inability,  inattention,  or  want  of  in- 
tegrity, 3  Wils.^187;  2  W.  Blackst.  750,  or 
a  clergyman  of  being  a  drunkard,  1  Binn. 
Penn.  178,  is  actionable.  It  is  one  of  tho 
general  rules  governing  the  action  for  words 
spoken,  that  words  are  actionable,  when 
spoken  of  one  in  an  office  of  profit,  which 
have  a  natural  tendency  to  occasion  the  loss 
of  his  office,  or  when  spoken  of  persona 
touching  their  respective  professions,  trades, 
and  business,  and  which  have  a  natural 
tendency  to  their  damage.  The  ground  of 
action  in  these  cases  is  that  the  party  is  dis- 
graced or  injured  in  his  profession  or  trade, 
or  exposed  to  the  hazard  of  losing  his  office. 


8LAXDER 


526 


SLANDER  OF  TITLE 


in  coiisequence  of  the  slanderous  words ;  not 
that  liis  general  reputation  and  standing  in 
the  community  are  affected  by  them.  It  will 
be  recollected  that  the  words  spoken,  in  this 
class  of  cases,  are  not  actionable  of  them- 
selves, but  that  they  become  so  in  conse- 
quence of  the  special  character  of  the  party 
of  whom  they  were  spoken.  The  fact  of  his 
maintaining  that  special  character,  therefore, 
lies  at  the  very  foundation  of  the  action. 
Heard,  Libel  &*S.  II  41,  45. 

4.  Of  the  second  class  are  words  which 
are  actionable  only  in  respect  of  special  dam- 
ages sustained  by  the  party  slandered. 
Though  the  law  will  not  permit  in  these 
cases  the  inference  of  damage,  yet  when  the 
damage  has  actually  been  sustained  the 
party  aggrieved  may  support  an  action  for 
the  publication  of  an  untruth,  1  Lev.  53 ;  1 
Sid.  79,  80;  3  Wood,  210;  2  Leon.  Ill;  un- 
less the  assertion  be  made  for  the  assertion 
of  a  supposed  claim,  Comyns,  Dig.  Action 
vpon  the  Case  for  Defamation  (D  30) ;  Bacon, 
Abr.  Slander  (B);  but  it  lies  if  maliciously 
spoken.  In  this  case  special  damage  is  the 
gist  of  the  action,  and  must  be  particularly 
specified  in  the  declaration.  For  it  is  an 
established  rule  that  no  evidence  shall  be  re- 
ceived of  any  loss  or  injury  which  the  plain- 
tiff had  sustained  by  the  speaking  of  the 
words,  unless  it  be  specially  stated  in  the  de- 
claration. And  this  rule  applies  equally 
where  the  special  damage  is  the  gist  of  the 
action  and  where  the  words  are  in  themselves 
actionable.  Heard,  Libel  &  S.  §  51.  See  1 
Rolle,  Abr.  36  ;  1  Saund.  243  ;  Bacon,  Abr. 
Slander  (C);  8  Term,  130;*  8  East,  1; 
Starkie,  Slander,  157. 

5.  The  charge  must  be  false.  5  Coke,  125, 
126;  Hob.  253.  The  falsity  of  the  accusation 
is  to  be  implied  till  the  contrary  is  shown.  2 
East,  436;  1  Saund.  242.  The  instance  of  a 
master  making  an  unfavorable  representation 
of  his  servant,  upon  an  application  for  his 
character,  seems  to  be  an  exception,  in  that 
case  there  being  a  presumption,  from  the  oc- 
casion of  the  spoakinsr,  that  the  words  were 
true.  1  Term,  1 1 1 ;  3  Bos.  &  P.  587 ;  Starkie, 
Sland.  44,  175,  223. 

The  slander  must,  of  course,  be  published, 
— that  is,  communicated  to  a  third  person, — 
and,  if  verbal,  then  in  a  language  which  he  un- 
derstands ;  otherwise  the  plaintiff's  reputation 
is  not  impaired.  1  Rolle,  Abr.  74;  Croke 
Eliz.  857:  1  Saund.  242,  n.  3;  Bacon,  Abr. 
Slander  (D  3).  A  letter  addressed  to  the 
party,  containing  libellous  matter,  is  not  suffi- 
cient to  maintain  a  civil  action,  though  it  may 
subject  the  libeller  to  an  indictment,  as  tend- 
ing to  a  breach  of  the  peace.  2  Blackst.  Comm . 
1038;  1  Term,  110;  1  Saund.  132,  n.  2;  2 
Esp.  623 ;  4  id.  1 17  ;  2  East,  361.  The  slander 
must  be  published  respecting  the  plaintiff.  A 
mother  cannot  maintain  an  action  for  calling 
her  daughter  a  bastard.  11  Serg.  &  R.  Penn. 
S43.  In  an  action  for  slander,  whether  oral 
or  written,  it  will  afford  no  justification  that 
the  defamatory  matter  has  been  previously 
published  by  a  third  person,  that  the  de- 


fendant at  the  time  of  his  publication  dis- 
closed the  name  of  that  third  person  and 
bel'cved  all  the  statements  to  be  true.  Heard, 
Libel  &  S.  II  148,  149.  And  a  repetition  of 
oral  slander  already  in  circulation,  without 
expressing  any  disbelief  of  it  or  any  purpose 
of  inquiring  as  to  its  truth,  though  without 
any  design  to  extend  its  circulation  or  credit, 
or  to  cause  the  person  to  whom  it  is  addressed 
to  believe  or  suspect  it  to  be  true,  is  action- 
able. 5  Gray,  Mass.  3. 
.  6.  To  render  words  actionable,  they  must 
be  uttered  without  legal  occasion.  On  some 
occasions  it  is  justifiable  to  utter  slander  of 
another ;  in  others  it  is  excusable,  provided 
it  be  uttered  without  express  malice.  Bacon, 
Abr.  Slander  (D  4) ;  Rolle,  Abr.  87  ;  1  Viner, 
Abr.  540.  It  is  justifiable  for  an  attorney 
to  use  scandalous  expressions  in  support  of 
his  client's  cause  and  pertinent  thereto.  1 
Maule  &  S.  280 ;  1  Holt,  531 ;  1  Barnew.  & 
Aid.  232.  See  2  Serg.  &  R.  Penn.  469 ;  1 
Binn.  Penn.  178;  11  Yt.  536;  Starkie,  Slan- 
der, 182.  Members  of  congress  and  other 
legislative  assemblies  cannot  be  called  to 
account  for  any  thing  said  in  debate.  See 
Privileged  Communications. 

Malice  is  essential  to  the  support  of  an 
action  for  slanderous  words.  But  malice  is, 
in  general,  to  be  presumed  until  the  contrary 
be  proved,  4  Barnew.  &  C.  247 ;  1  Saund. 
242,  n.  2;  1  Term,  111,  544;  1  East,  563;  2 
id.  436  ;  5  Bos.  &  P.  335  ;  Buller,  Nisi  P.  8, 
except  in  those  cases  where  the  occasion  j:)ri>wi2 
facie  excuses  the  publication.  4  Barnew.  & 
C.  247.  See  14  Serg.  &  R.  Penn.  359  ;  Starkie, 
Slander,  201. 

See,  generally,  Comyns,  Dig.  Action  vpon 
the  Case for  DeJ  am  at  ion;  Bacon,  Abr.  Slander; 
1  Yiner,  Abr.  187;  1  Phillipps,  Ev.  c.  8; 
Yelv.  28,  n.;  Doctrina  Plac.  53;  Starkie, 
Slander ;  Heard,  Libel  &  Slander. 

SLANDER  OF  TITLE.  In  Torts.  A 
statement  tending  to  cut  down  the  extent  of 
title.  An  action  for  slander  of  title  is  nv.t 
properly  an  action  for  words  spoken  or  for 
libel  written  and  published,  but  an  action 
on  the  case  for  special  damage  sustained  by 
reason  of  the  speaking  or  publication  of  the 
slander  of  the  plaintiff's  title.  This  action 
is  ranged  under  that  division  of  actions  in 
the  digests  and  other  writers  on  the  text  law, 
and  is  so  held  by  the  courts  at  the  present 
day.  An  action  for  slander  of  title  is  a  sort 
of  metaphorical  expression.  Slander  of  title 
may  be  of  such  a  nature  as  to  fall  within  the 
scope  of  ordinary  slander.  Slander  of  title 
ordinarily  means  a  statement  tending  to  cut 
down  the  extent  of  title,  which  is  injurious 
only  if  it  is  false.  It  is  essential,  to  give  a 
cause  of  action,  that  the  statement  should  be 
false.  It  is  essential,  also,  that  it  should  be 
malicious, — not  malicious  in  the  worst  sense, 
but  with  intent  to  injure  the  plaintiff.  If 
the  statement  be  true,  if  there  really  be  the 
infirmity  in  the  title  that  is  suggested,  nc 
action  will  lie  however  malicious  the  defend- 
ant's intention  might  be.  Heard,  Libel  &  S 
§g  10,  59  et  seq. 


SLANDERER 


527 


SLAVE-TRADE 


SLANDERER.  A  calumniator  who 
iiialiciou.sly  and  without  reason  imputes  a 
crime  or  fault  to  another  of  which  he  is  inno- 
cent. 

For  this  olFence,  when  the  slander  is  merely 
verbal,  the  remedy  is  an  action  on  the  case 
for  damages ;  when  it  is  reduced  to  writing  or 
printing,  it  is  a  libel. 

SLAVE.  One  over  whose  life,  liberty,  and 
property  another  has  unlimited  control.  The 
jus  viice  et  necis  is  included  in  pure  or  abso- 
lute slavery.  Such  a  power  has  no  founda- 
tion in  natural  law;  and  hence  the  Justinian 
Code  declared  it  contra  naturam  esse.  Inst. 

1.  4.  2. 

2.  Every  limitation  placed  by  law  upon  this 
absolute  control  modifies  and  to  that  extent  changes 
the  condition  of  the  slave.  In  every  slaveholding 
state  of  the  United  States  the  life  and  limbs  of  a 
slave  were  protected  from  violence  inflicted  by  the 
master  or  third  persons. 

Among  the  Romans  the  slave  was  classed  among 
things  (res).  He  was  homo  sed  non  persona. 
Heineccius,  Elem.  Jur.  1. 1,  g  76.  He  was  considered 
pro  nullo  et  mortuo,  quia  nec  statu  familiae  nec 
civitatis  nec  libertatis  gaudet.  Id.  ^  77.  See,  also, 
4  Dev.  No.  C.  340;  9  Ga.  582.  In  the  United 
States,  as  a  person,  he  was  capable  of  committing 
crimes,  of  receiving  his  freedom,  of  being  the 
subject  of  homicide,  and  of  modifying  by  his  voli- 
tion very  materially  the  rules  applicable  to  other 
species  of  property.  His  existence  as  a  person 
being  recognized  by  the  law,  that  existence  was 
protected  by  the  law.  1  Hawks,  No.  C.  217 ;  2  id. 
454;  1  Ala.  8;  1  Miss.  83;  11  id.  518;  2  Va.  Cas. 
394;  5  Rand.  Va.  678;  1  Yerg.  Tenn.  156;  11 
Humphr.  Tenn.  172. 

3.  In  the  slaveholding  states  the  relations  of 
husband  and  wife  and  parent  and  child  were 
recognized  by  statutes  in  relation  to  public  sales, 
and  by  the  courts  in  all  cases  where  such  relations 
were  material  to  elucidate  the  motives  of  their  acts. 

A  slave  has  no  political  rights,  the  government 
being  the  judge  who  shall  be  its  citizens.  His 
civil  rights,  though  necessarily  more  restricted 
than  the  freeman's,  are  based  upon  the  same  founda- 
tion,— the  law  of  the  land.  He  has  none  but  such 
as  are  by  that  law  and  the  law  of  nature  given  to 
him.  The  civil-law  rule  "partus  sequitur  ventrem" 
was  adopted  in  all  the  slaveholding  states,  the 
status  of  the  mother  at  the  time  of  birth  de- 
ciding the  status  of  the  issue.  1  Hen.  &  M.  Va. 
134;  2  Rand.  Va.  246;  4  id.  600;  1  Hayw.  No.  C. 
234;  1  Cooke,  Tenn.  381;  2  Bibb,  Ky.  298 ;  2  Dan. 
Ky.  432:  5  id.  207 ;  2  Mo.  71 ;  3  lU  640 ;  8  Pet. 
220 ;  14  Serg.  &  R.  Penn.  446 :  16  id.  18  ;  2  Brev. 
No.  C.  307 ;  3  Harr.  &  M'H.  Md.  139 ;  20  Johns. 
N.  Y.  1;  12  Wheat.  568;  2  How.  266,  496.  In 
South  Carolina,  Georgia,  Mississippi,  Virginia, 
Louisiana,  and  perhaps  Maryland,  this  rule  was 
adopted  by  statute. 

4.  The  slave  cannot  acquire  property  :  his  acqui- 
sitions belong  to  his  master.  5  Cow.  N.  Y.  397 ;  1 
Bail.  So.  C.  633 ;  2  Hill,  Ch.  So.  C.  397 ;  2  Rich. 
So.  C.  424;  6  Humphr.  Tenn.  299;  2  Ala.  320; 
5  B.  Monr.  Ky.  186.  The  jjecnlium  of  the  Roman 
slave  was  ex  f/rafia,  and  not  of  right.  Institutes, 

2.  9.  3  ;  Heineccius,  Elem.  Jur.  lib.  ii.  tit.  xviii. 
In  like  manner,  negro  slaves  in  the  United  States 
were,  as  a  matter  of  fact,  sometimes  permitted 
by  their  masters,  cx  gratia,  to  obtain  and  retain 
property.  The  same  was  true  of  ancient  villeins 
in  England.  The  slave  could  not  be  a  witness, 
except  for  and  against  slaves  or  free  negroes. 
This  was,  perhaps,  the  rule  of  the  common  law. 
None  but  a  freeman  was  othenworth.  The  privi- 
lege of  being  sworn  was  one  of  the  characteristics 


of  a  "  liher  et  le<jalin  homo."  To  lose  this  privilege, 
amittcre  liberam  le<i€m,  was  a  severe  punishment.  3 
Blackstone,  Coram.  340  ;  Fortescue,  c.  xxvi. ;  Coke, 
Litt.  6  b.  With  this  the  civil  law  agreed.  Huberus, 
Prselec.  1.  xxv.  tit.  v.  ^  2.  In  the  United  States 
the  rule  of  exclusion  which  we  have  mentioned 
was  enforced  in  all  cases  where  the  evidence  was 
offered  for  or  against  free  white  persons.  6  Leigh, 
Va.  74.  In  most  of  the  states  this  exclusion  is  by 
express  statutes,  while  in  others  it  exists  hy  custom 
and  the  decision  of  the  courts.  10  Ga.  519.  In  the 
slaveholding  states,  and  in  Ohio,  Indiana,  Illinois^ 
and  Iowa,  by  statute,  the  rule  has  been  extended  to 
include  free  persons  of  color  or  emancipated  slaves. 
14  Ohio,  199;  3  Harr.  &.  J.  Md.  97.  The  slave 
could  be  a  suitor  in  court  only  for  his  freedom.  For 
all  other  wrongs  he  appeared  through  his  n'aster, 
for  whose  benefit  the  recovery  was  had.  9  Gill  &> 
J.  Md.  19;  1  Litt.  Ky.  326;  1  Mo.  608;  4  Yerg. 
Tenn.  303;  3  Brev.  No.  C.  11 ;  4  Gill,  Md.  249;  9 
La.  156;  4  T.  B.  Monr.  Ky.  169.  The  suit  for 
freedom  is  favored.  1  Hen.  <fe  M.  Va.  143 ;  8  Pet. 
44;  2  A.  K.  Marsh.  Ky.  467;  2  Call,  Va.  350;  4 
Rand.  Va.  134.  Lapse  of  time  worked  no  forfeiture 
by  reason  of  his  dependent  condition,  3  Dan.  Ky. 
382;  8  B.  Monr.  Ky.  631  ;  1  Hen.  &  M.  Va.  141 ; 
and  such  was  the  civil  law.  Code,  7.  22.  2.  3. 
The  master  was  bound  to  maintain,  support,  and 
defend  his  slave,  however  hel[)less  or  impotent.  If 
he  failed  to  do  so,  public  officers  were  provided  to 
supply  his  deficiency  at  his  expense.  In  Tennessee 
the  master  in  such  a  case  was  responsible  for  all 
that  he  stole. 

5.  Cruel  treatment  was  a  penal  offence  of  a  high 
grade.  Emancipation  of  the  slave  was  the  conse- 
quence of  conviction  in  Louisiana;  and  the  sale  of 
the  slave  to  another  master  was  a  part  of  the  pen- 
alty in  Alabama  and  Texas.  In  some  of  the  an- 
cient German  states,  and  also  by  the  "  Code  noir," 
another  and  more  eflFectual  penalty  was  a  total  dis- 
qualification of  the  master  forever  lo  hold  slaves. 

Among  the  ancient  Lombards,  if  a  master  de- 
bauched his  slave's  wife,  the  slave  and  his  wife 
were  thereby  emancipated.  Among  the  Romans, 
double  damages  were  given  for  the  corruption 
of  a  slave.  The  enfranchisement  of  a  slave  is 
called  manumission.  The  word  is  expressive  of 
the  idea.  Thus,  Littleton,  ^  204,  "  manvmittere 
quod  idem  est,  quod  extra  manum,  vel  poleslatem  alte- 
rius  ponere."  Manumission  being  merely  the  with- 
drawal of  the  dominion  of  the  master,  the  right  to 
manumit  exists  everywhere,  unless  forbidden  by 
law.  No  one  but  the  owner  can  manumit,  4  J.  J. 
Marsh.  Ky.  103;  10  Pet.  583  ;  and  the  effect  is 
simply  to  make  a  freeman,  not  a  citizen.  The  state 
must  decide  who  shall  be  citizens.  See  Manumis- 
siox;  Servus;  Freedom. 

Slavery  having  been  abolished  in  the  United 
States,  it  is  only  as  affecting  the  future  rights 
and  liabilities  of  those  formerly  slaves  that 
the  elaborate  slave  codes  of  those  states  re- 
cognizing the  status  can  be  of  interest  or 
value. 

SLAVE-TRADE.  The  traffic  in  slave*, 
or  the  buying  and  selling  of  slaves  for  profit. 
It  is  either  foreign  or  domestic.  The  former 
is  when  the  trade  includes  transportation 
from  a  foreign  state;  the  latter,  when  con- 
fined within  a  single  state  or  states  connected 
in  a  federal  union. 

The  history  of  the  slave-trade  is  as  old  as  the 
authentic  records  of  the  race.  Joseph  was  sold  to 
Ishmaelitish  slave-tratlers,  and  Egypt  has  been  a 
mart  for  the  traffic  from  that  day  to  this.  The 
negro  early  became  a  subject  of  it.  In  every  slave- 
market  he  has  been  found,  and  never  as  a  master 
except  in  Africa.    The  Roman  mart,  however  ex 


SLAVERY 


528 


SOCAGE 


hibited  a  variety  of  all  the  conquered  races  of  the 
world.  At  Bristol,  in  England,  for  many  years 
about  the  eleventh  century,  a  brish  trade  was  car- 
ried on  in  purchasing  Englishmen  And  exporting 
them  to  Ireland  for  sale.  And  William  of  Malms- 
bury  states  that  it  seems  to  be  a  natural  custom 
with  the  people  of  Northumberland  to  sell  their 
nearest  relations. 

The  African  slave-trade  on  the  eastern  coast  has 
been  carried  on  with  India  and  Arabia  from  a 
period  difficult  to  be  established,  and  was  continued 
with  British  India  while  British  ships-of-war 
hovered  on  the  western  coast  to  capture  the'pirates 
engaged  in  the  same  trade.  On  the  western  coast 
the  trade  dates  from  1442.  The  Spaniards  for  a 
time  monopolized  it.  The  Portuguese  soon  rivalled 
them  in  its  prosecution.  Sir  John  Hawkins,  in 
1562,  was  the  first  Englishman  who  engaged  in  it; 
and  queen  Elizabeth  was  the  first  Englishwoman 
known  to  share  in  the  profits. 

Immense  numbers  of  African  negroes  were  trans- 
ported to  the  New  World,  although  thousands  were 
landed  in  England  and  France  and  owned  and 
used  as  servants.  The  large  profits  of  the  trade 
stimulated  the  avarice  of  bad  men  to  forget  all  the 
claims  of  humanity;  and  the  horrors  of  the  middle 
passage,  though  much  exaggerated,  were  undoubt- 
edly very  great. 

The  American  colonies  raised  the  first  voice  in 
Christendom  for  its  suppression ;  but  the  interests 
of  British  merchants  were  too  powerful  with  the 
king,  who  stifled  their  complaints.  The  constitution 
of  the  United  States,  in  1789,  was  the  first  govern- 
mental act  towards  its  abolition.  By  it,  congress 
was  forbidden  to  prohibit  the  trade  until  the  year 
1808.  This  limitation  was  made  at  the  suggestion 
of  South  Carolina  and  Georgia,  aided  by  some  of 
the  New  England  states.  Yet  both  of  those  states, 
by  state  action,  prohibited  the  trade  many  years 
before  the  time  limited, — Georgia  as  early  as  1793. 
In  1807,  an  act  of  congress  was  passed  which  pro- 
hibited the  trade  after  1808  ;  and  by  subsequent 
acts  it  was  declared  piracy.  The  federal  legislation 
on  the  subject  will  be  found  in  acts  of  congress 
passed  respectively  March  22,  1794,  May  10,  1800, 
March  2,  1807,  April  20,  1818.  March  .3,  1819,  and 
May  15,  1820.  These  several  acts,  with  the  deci- 
sions under  them,  will  be  found  collected  in  Bright- 
ly's  U.  S.  Digest,  835,  etc.  In  the  year  1807,  the 
British  parliament  also  passed  an  act  for  the  aboli- 
tion of  the  slave-trade, — the  consummation  of  a 
parliamentary  struggle  continued  for  nineteen 
years,  and  fourteen  years  after  a  similar  act  had 
been  adopted  by  Georgia.  Great  efforts  have  been 
made  by  Great  Britain,  by  treaties  and  otherwise, 
to  suppress  this  trade.  The  immense  profits,  how- 
ever, induce  reckless  men  to  continue  it  still, — the 
chief  market  for  their  slaves  being  at  this  time 
the  Spanish  West  Indies.  See  Buxton's  Slave- 
Trade,  etc. ;  Carey's  Slave-Trade,  Foreign  and  Do- 
mestic; Cobb's  Historical  Sketch  of  Slavery. 

SLAVERY.  The  status  or  condition  of 
a  slave. 

2,  Slavery,  being  a  personal  status,  does, 
jis  a  general  rule,  accompany  the  individual, 
like  minority  or  incapacity,  wherever  he 
may  go,  so  long  as  his  domicil  remains  un- 
changed ;  and  the  domicil  of  the  slave  is 
that  of  his  master.  Ilovr  far  and  under 
what  circumstances  the  right  of  the  master 
or  the  status  of  the  slave  is  affected  by 
the  escape  of  the  latter,  or  the  removal  of 
the  master  and  slave  into,  or  their  transit 
through,  a  state  where  slavery  does  not  exist, 
is  a  subject  as  to  which  there  is  a  want  of 
entire  agreement  among  the  various  deci- 
sK'na.    The  following  are  the  principal  au- 


thorities :  18  Pick.  Mass.  193  ;  3  Mete.  Mass 
72;  12  Conn.  38  ;  2  Serg.  &  11.  Penn.  305  ; 
7  id.  378 ;  6  Binn.  Penn.  213 ;  1  P.  A.  Browne, 
Penn.  113  ;  1  Watts,  Penn.  155  ;  4  Yeates, 
Penn.  204;  Add.  Penn.  284;  5  111.461;  3 
Am.  Jur.  407  ;  2  A.  K.  Marsh.  Ky.  467  ;  3 
T.  B.  Monr.  Ky.  104;  1  Bibb,  Ky.  423  ;  5  B. 
Monr.  Ky.  173  ;  7  id.  635  ;  8  id.  545  ;  9  id. 
565  ;  1  Mo.  472 ;  2  id.  19,  37  ;  3  id.  194,  400  ; 
4  id.  350,  592 ;  14  Mart.  La.  401 ;  1  La.  Ann. 
329;  7  id.  170;  1  Leigh,  Va.  172;  1  Gilm. 
A^a.  143;  4  Harr.  &  M'H.  Md.  322,  418. 
See,  also,  decisions  in  federal  courts,  in  16 
Pet.  610 ;  5  How.  229  ;  10  id.  2  ;  19  id.  1  ;  1 
Baldw.  C.  C.  571 ;  1  Wash.  C.  C.  499  ;  2  Mc- 
Lean, C.  C.  605  ;  3  id.  530.  See  Servus  ; 
Bondage;  Freedom. 

SMART-MONEY.  Vindictive  or  exem- 
plary damages  given  beyond  the  actual  daui- 
f>g6,  by  way  of  punishment  and  example, 
in  cases  of  gross  misconduct  of  defendant 
15  Conn.  225  ;  14  Johns.  N.  Y.  352  ;  6  Hill, 
N.  y.  466.  That  it  cannot  be  given  by  jury, 
see  2  Greenleaf,  Ev.  4th  ed.  §  253,  n.  See 
Exemplary  Damages. 

SMOKE- SILVER.  A  modus  of  six- 
pence in  lieu  of  tithe-wood.  Twisdale,  Hist. 
Vindicat.  77. 

SMUGGLING.  The  fraudulent  taking 
into  a  country,  or  out  of  it,  merchandise 
which  is  lawfully  prohibited.    Bacon,  Abr. 

Smuggling. 

SO  HELP  YOU  GOD.    The  formula 

at  the  end  of  a  common  oath,  as  administered 
to  a  witness  who  testifies  in  chief. 

SOCAGE.  (This  word,  according  to  the 
earlier  common-law  writers,  originally  signi- 
fied a  service  rendered  by  a  tenant  to  his  lord, 
by  the  soke  or  ploughshare ;  but  Mr.  Somner's 
etymology,  referred  to  by  Blackstone,  seems 
more  apposite,  who  derives  it  from  the  Saxon 
word  soc,  which  signifies  liberty  or  privilege, 
denoting  thereby  a  free  or  privileged  tenure.) 
A  species  of  English  tenure,  whereby  the 
tenant  held  his  lands  of  the  lord  by  any  cer- 
tain service  in  lieu  of  all  other  services,  so  that 
the  service  was  not  a  knight's  service.  Its 
principal  feature  was  its  certainty:  as,  to 
hold  by  fealty  and  a  certain  rent,  or  by  fealty- 
homage  and  a  certain  rent,  or  by  homage 
and  fealty  without  rent,  or  by  fealty  and  cer- 
tain corporal  service,  as  ploughing  the  lord's 
land  for  a  specified  number  of  days.  2  Black- 
stone,  Comm.  80. 

2.  The  term  socage  was  afterwards  ex- 
tended to  all  services  which  were  not  of  a 
military  character,  provided  they  were  fixed: 
as,  by  the  annual  payment  of  a  rose,  a  pair 
of  gilt  spurs,  a  certain  number  of  capons,  or 
of  so  many  bushels  of  corn.  Of  some  tene- 
ments the  service  was  to  be  hangman,  or  ex- 
ecutioner of  persons  condemned  in  the  lord's 
court ;  for  in  olden  times  such  officers  were 
not  volunteers,  nor  to  be  hired  for  lucre,  and 
could  only  be  bound  thereto  by  tenure.  There 
were  three  diff"erent  species  of  these  socage 
tenures, — one  in  frank  tenure,  another  in.  an- 


SOGER 


529 


SOLARES 


cient  tenure,  and  the  third  in  base  tenure: 
the  second  and  third  kinds  are  now  called, 
respectively,  tenure  in  ancient  demesne,  and 
copyhold  tenure.  The  first  is  called  free  and 
common  socage,  to  distinguish  it  from  the 
other  two ;  but,  as  the  term  socage  has  long 
ceased  to  be  applied  to  the  two  latter,  socage 
and  free  and  common  socage  now  mean  the 
same  thing.  Bracton ;  Coke,  Litt.  17,  8G. 
See  Tenure,  |  5. 

3.  By  the  statute  of  12  Car.  II.  c.  24,  the 
ancient  tenures  by  knight's  service  were 
abolished,  and  all  lands,  with  the  exception 
of  copyholds  and  of  ecclesiastical  Lands, 
which  continued  to  be  held  in  free  alms 
(frankalmoigne),  were  turned  into  free  and 
common  socage,  and  the  great  bulk  of  real 
property  in  England  is  now  held  under  this 
ancient  tenure.  Many  grants  of  land  in  the 
United  States,  made,  previous  to  the  revolu- 
tion, by  the  British  crown,  created  the  same 
tenure  among  us,  until  they  were  formally 
abolished  by  the  legislatures  of  the  different 
states.  In  1787,  the  state  of  New  York  con- 
verted all  feudal  tenures  within  its  bounda- 
ries into  a  tenure  by  free  and  common  socage ; 
but  in  1830  it  abolished  this  latter  tenure, 
with  all  its  incidents,  and  declared  that  from 
thenceforth  all  lands  in  the  state  should  be 
held  upon  a  uniform  allodial  tenure,  and 
vested  an  absolute  property  in  the  owners 
according  to  their  respective  estates.  Similar 
provisions  have  been  adopted  by  other  states  ; 
and  the  ownership  of  land  throughout  the 
United  States  is  now  essentially  free  and  un- 
restricted.   See  Tenure. 

SOGER  (Lat.).  The  father  of  one's  wife ; 
a  father-in-law. 

SOCIDA  (Lat.).    In  Civil  Law.  The 

name  of  a  contract  by  which  one  man  deli- 
vers to  another,  either  for  a  small  recompense 
or  for  a  part  of  the  profits,  certain  animals, 
on  condition  that  if  any  of  them  perish  they 
shall  be  replaced  by  the  bailer  or  he  shall 
pay  their  value. 

A  contract  of  hiring,  with  the  condition 
that  the  bailee  takes  upon  him  the  risk  of 
the  loss  of  the  thing  hired.    Wolff,  §  638. 

SOCIETAS  (Lat.).    In  Civil  Law.  A 

contract  in  good  faith  made  to  share  in  com- 
mon the  profit  and  loss  of  a  certain  business 
or  thing,  or  of  all  the  possessions  of  the  par- 
ties. Calvinus,  Lex. ;  Inst.  3.  26  ;  Dig.  17.  21. 
See  Partnership. 

Also,  companionship  or  partnership  in 
good  or  evil.  Cicero,  pro  S.  Rose.  34 ;  Fleta, 
1.  1,  c.  38,  ^  18. 

SOCIETAS  LEONINA  (Lat.).  In 
Roman  Law.  That  kind  of  society  or 
artnership  by  which  the  entire  profits  should 
elong  to  some  of  the  partners  in  exclusion 
of  the  rest. 

It  was  so  called  in  allusion  to  the  fable  of  the 
lion  and  other  animals,  who  having  entered  into 
partnership  for  the  purpose  of  hunting,  the  lion 
appropriated  all  the  prey  to  himself.  Dig.  17.  2. 
29.  2  ;  Poth.  Traite  de  Societo,  n.  12.  See  2  M'Cord, 
So.  C.  421  ;  6  Pick.  Mass.  372. 
Vol.  II.— 34 


SOCIETE  EN  COMMENDITB.  In 
Louisiana.  A  partnership  fbrm<id  by  a 
contract  by  which  one  person  or  partner- 
ship agrees  to  furnish  another  pers(m  or 
partnership  a  certain  amount,  either  in  pro- 
perty or  money,  to  be  employed  by  the  person 
or  partnership  to  whom  it  is  furnished,  in 
his  or  their  own  name  or  firm,  on  condition 
of  receiving  a  share  in  the  profits,  in  the  pro- 
portion determined  by  the  contract,  anu  of 
being,  liable  to  losses  and  expenses  to  tho 
amount  furnished  and  no  more.  La.  Civ. 
Code,  art.  2810;  Code  de  Comm.  26,  33  ;  4 
Pardessus,  Dr.  Com.  n.  1027 ;  Dalloz,  Diet. 
SocUl^  Commerciale,  n.  166.  See  Com  men-  * 
DAM ;  Partnership. 

SOCIETY.  A  society  is  a  number  of 
persons  united  together  by  mutual  consent, 
in  order  to  deliberate,  determine,  and  act 
jointly  for  some  common  purpose. 

Societies  are  either  incorporated  and  known 
to  the  law,  or  unincorporated,  of  which  tho 
law  does  not  generally  take  notice. 

By  civil  society  is  usually  understood  a 
state,  a  nation,  or  a  body  politic.  Ruther- 
forth,  Inst.  c.  1,  2. 

SODOMITE.  One  who  has  been  guilty 
of  sodomy.  Formerly  such  offender  was 
punished  with  great  severity,  and  was  de- 
prived of  the  power  of  making  a  will. 

SODOMY.  A  carnal  copulation  by  hu- 
man beings  with  each  other  against  nature,  oi 
with  a  beast.    2  Bishop,  Crim.  LaAv.  §  1029. 

It  may  be  committed  between  two  persons 
both  of  whom  consent,  even  between  husband 
and  wife,  8  Carr.  &  P.  604 ;  and  both  may  be 
indicted.  1  Den.  Cr.  Cas.  464  ;  2  Carr.  &  K. 
869.  Penetration  of  the  mouth  is  not  sodomy. 
Russ.  &  R.  Cr.  Cas.  331.  As  to  emission,  see 
12  Coke,  36  ;  1  Va.  Cas.  307.  See  1  Russell, 
Crimes,  Greaves  ed.  698 ;  1  Mood.  Cr.  Cas.  34 ; 
8  Carr.  &  P.  417 ;  3  Ilarr.  &  J.  Md.  154. 

SOIL.  The  superficies  of  the  earth  on 
which  buildings  are  erected  or  may  be 
erected. 

The  soil  is  the  principal,  and  the  building, 
when  erected,  is  the  accessory. 

SOIT  DROIT  FAIT  AL  PARTIE. 
In  English  Law.  Let  right  be  done  to  the 
party.  A  phrase  written  on  a  petition  of 
right,  and  subscribed  by  the  king.  See 
Petition  of  Right. 

SOKEMANS.  In  English  Law.  Those 
who  held  their  land  in  socage.  2  Blackstone, 
Comm.  100. 

SOLAR  DAY.  That  period  of  time 
which  begins  at  sunrise  and  ends  at  sunset; 
the  same  as  "artificial  day.''  Coke,  Litt.  135 
a ;  3  Chitty,  Stat.  1376,  n. 

SOLAR  MONTH.  A  calendar  month. 
Coke,  Litt.  135  h;  1  W.  Blackst.  450;  1 
Maule  &  S.  Ill ;  1  Bingh.  307 ;  3  Chitty,  Stat. 
1375,  n. 

SOLARES.    In  Spanish  Law  Loti* 

of  ground.  This  term  is  frequently  found  in 
grants  from  the  Spanish  government  of  lands 
in  America.    2  White,  Coll.  474. 


530  SOLUTIO  INDEBITI 


SOLD  NOTE 


'•  SOLD  NOTE.  The  name  of  an  instru- 
ment in  writing,  given  by  a  broker  to  a 
buyer  of  merchandise,  in  which  it  is  stated 
that  the  goods  therein  mentioned  have  been 
sold  to  him.  1  Bell,  Comm.  5th  ed.  435; 
Story,  Ag.  §  28.  Some  confusion  may  be 
found  in  the  books  as  to  the  name  of  these 
notes:  they  are  sometimes  called  bought  notes. 

SOLDIER.  A  military  man;  a  private 
in  the  army. 

The  constitution  of  the  United  States, 
Amendm.  art.  3,  directs  that  no  soldier  shall, 
in  time  of  peace,  be  quartered  in  any  house, 
without  the  consent  of  the  owner  ;  nor  in 
time  of  war,  but  in  a  manner  to  be  prescribed 
by  law. 

SOLE.  Alone,  single:  used  in  contra- 
distinction io  joint  or  married.  A  sole  tenant, 
therefore,  is  one  who  holds  lands  in  his  own 
right,  without  being  joined  with  any  other. 
A  feme  sole  is  a  single  woman ;  a  sole  cor- 
poration is  one  composed  of  only  one  natural 
person. 

SOLEMNITY.  The  formality  esta- 
blished by  law  to  render  a  contract,  agree- 
ment, or  other  act  valid. 

A  marriage,  for  example,  would  not  be 
valid  if  made  in  jest  and  without  solemnity. 
See  Marriage  ;  Dig.  4.  1.  7  ;  45.  1.  30. 

SOLICITATION  OF  CHASTITY. 
The  asking  a  person  to  commit  adultery  or 
fornication. 

This  of  itself  is  not  an  indictable  ofFence. 
Salk.  382 ;  2  Chitty,  Pract.  478.  The  con- 
trary doctrine,  however,  has  been  held  in 
Connecticut.  7  Conn.  267.  In  England,  the 
bare  solicitation  of  chastity  is  punished  in 
the  ecclesiastical  courts.  2  Chitty,  Pract. 
478.  See  2  Strange,  1100;  10  Mod.  384; 
Say.  33  ;  1  Hawkins,  PI.  Cr.  ch.  74;  2  Ld. 
.  Ray m.  809. 

The  civil  law  punished  arbitrarily  the 
person  who  solicited  the  chastity  of  another. 
Dig.  47.  11.  1.    See  3  Phill.  Eccl.  508. 

SOLICITOR.  A  person  whose  business 
is  to  be  employed  in  the  care  and  manage- 
ment of  suits  depending  in  courts  of  chan- 
cery. 

A  solicitor,  like  an  attorney,  will  be  re- 
quired to  act  with  perfect  good  faith  towards 
his  clients.  He  must  conform  to  the  au- 
thority given  him.  It  is  said  that  to  insti- 
tute a  suit  he  must  have  a  special  authority, 
although  a  general  authority  will  be  sufficient 
to  defend  one.  The  want  of  a  written  author- 
ity may  subject  him  to  the  expenses  incurred 
in  a  suit.  3  Mer.  Ch.  12;  Hovenden,  Fr.  ch. 
2,  pp.  28-61.  See  1  Phillipps,  Ev.  102;  2 
Chitty,  Pract.  2.    See  Attorney  at  Law; 

COUNSELF.OR  AT  LaW  ;  PrOCTOR. 

SOLICITOR-GENERAL.  In  English 
Law.  A  law  officer  of  the  crown,  appointed 
})y  patent  during  the  royal  pleasure,  and  who 
assists  the  attorney-general  in  managing  the 
law  business  of  the  crown.  Selden,  1.  6.  7. 
He  is  first  in  right  of  preaudience.  3  Shars- 
wcod,  Blackst.  Comm.  28,  n.  (a),  n.  9;  Encyc. 
Brit. 


SOLICITOR  OF  THE  TREASURY 

The  title  of  one  of  the  officers  of  the  L'nitec 
States,  created  by  the  act  of  May  29,  1830. 
4  U.  S.  Stat,  at  Large,  414,  which  prescribes 
his  duties  and  his  rights. 

2.  His  poM'ers  and  duties  are — First,  those 
which  were  by  law  vested  and  requi.t  J  from 
the  agent  of  the  treasury  of  the  United 
States.  Second,  those  which  theretofore  be- 
longed to  the  commissioner  or  acting  com- 
missioner of  the  revenue,  relating  to  the  su- 
perintendence of  the  collection  of  outstanding 
direct  and  internal  duties.  Third,  to  take 
charge  of  all  lands  which  shall  be  conveyed 
to  the  United  States,  or  set  off  to  them  in 
payment  of  debts,  or  which  are  vested  in  them 
by  mortgage  or  other  security ;  and  to  re- 
lease such  lands  which  had  at  the  passage 
of  the  act  become  vested  in  the  United 
States,  on  payment  of  the  debt  for  which 
they  were  received.  Fourth,  generally  to 
superintend  the  collection  of  debts  due  to  the 
United  States,  and  receive  statements  from 
different  officers  in  relation  to  suits  or  actions 
commenced  for  the  recovery  of  the  same. 
Fifth,  to  instruct  the  district  attorneys, 
marshals,  and  clerks  of  the  circuit  and  dis- 
trict courts  of  the  United  States,  in  all 
matters  and  proceedings  appertaining  to 
suits  in  which  the  United  States  are  a  party 
or  interested,  and  to  cause  them  to  report  to 
him  any  information  he  may  require  in  re- 
lation to  the  same.  Sixth,  to  report  to  the 
proper  officer  from  whom  the  evidence  of  ; 
debt  was  received,  the  fact  of  its  having  « 
been  paid  to  him,  and  also  all  credits  which 
have  by  due  course  of  law  been  allowed  on  , 
the  same.  Seventh,  to  make  rules  for  the  i 
government  of  collectors,  district  attorneys,  y 
and  marshals,  as  may  be  requisite.  Eighth, 
to  obtain  from  the  district  attorneys  full  ac-  ; 
counts  of  all  suits  in  their  hands,  and  sub- 
mit abstracts  of  the  same  to  congress. 

3.  His  rights  are — First,  to  call  upon  the  ' 
attorney-general  of  the  United  States  for  ad-  ( 
vice  and  direction  as  to  the  manner  of  con-  | 
ducting  the  suits,  proceedings,  and  prosecu-  i 
tions  aforesaid.    Second,  to  receive  a  salary  \ 
of  three  thousand  live  hundred  dollars  per  v 
annum.    Third,  to  employ,  with  the  appro-  \ 
bation  of  the  secretary  of  the  treasury,  a 
clerk,  with  a  salary  of  one  thousand  five 
hundred  dollars,  and  a  messenger,  with  a 
salary  of  five  hundred  dollars.    Fourth,  to 
receive  and  send  all  letters,  relating  to  the 
business  of  his  office,  free  of  postnge. 

SOLIDO,  IN.    See  In  Solido. 

SOLUTIO  (Lat.  release).  In  Civil 
Law.  Payment.  By  this  term  is  under- 
stood every  species  of  discharge  or  libera- 
tion, which  is  called  satisfaction,  and  with 
which  the  creditor  is  satisfied.  Dig.  40.  3. 
54 ;  Code  8.  43.  17  ;  Inst.  3.  30.  This  term 
has  rather  a  reference  to  the  substance  of  the 
obligation  than  to  the  numeration  or  count 
ing  of  the  money.    Dig.  50.  16.  176. 

SOLUTIO  INDEBITI  (Lat.).  In  CivL 
Law.    The  case  where  one  hab  paid  a  debt^ 


SOLVENCY 


531 


SON  ASSAULT  DEMESNE 


:)T  dene  an  act  or  remitted  a  claim  because 
he  thought  that  he  was  bouml  ii)  law  to  do  so, 
when  lie  was  not.  In  such  cases  of  mistake 
there  is  an  implied  obligation  {quasi  ex  con- 
traclu]  to  pay  back  the  money,  etc.  Mac- 
kelly,  Civ.  Law,  I  4G8. 

SOLVENCY.  The  state  of  a  person 
who  is  able  to  pay  all  his  debts:  the  oppo- 
site of  iusolvencf/. 

SOLVENT.  One  who  has  sufficient  to 
pay  his  debts  and  all  obligations.  Dig.  50. 
16.  U4. 

SOLVERE  (Lat.  to  unbind;   to  untie). 

Tt)  release;  to  pay:  solvere  dicimii.s  eiim  qui 
fecit  quod  facere  promisit.  1  Buuvier,  Inst, 
n.  807. 

SOLVIT  A.D  DIEM  (Lat.  he  paid  at 
the  dayb  l7>  Pleading.  The  name  of  a 
plea  to  an  ai^Uou  on  a  bond,  or  other  ol)liga- 
tion  to  pay  jQOuey,  by  which  the  defendant 
pleads  that  be  paid  the  money  on  the  day  it 
was  due.  See  1  Strange,  652;  Rep.  ieinp. 
llardw.  m  ;  Corny ns,  Dig.  F/cader  (2  W  29). 

Tins  plea  ought  to  conclude  with  an  aver- 
ment, and  not  to  the  country.  1  Sid.  215  ; 
IJ  Johns.  N.  Y.  253.  See  2  Phillipps,  Ev. 
92 :  Coxe,  N.  J.  467. 

r.OLVIT  POST  DIEM  (Lat.  he  paid 
after  the  day).  In  Pleading,  The  name  of 
a  special  plea  in  bar  to  an  action  of  debt  on  a 
bond,  by  which  the  defendant  asserts  that  he 
paid  the  money  after  the  day  it  became  due. 
1  Chitty,  Plead.  480,  555  ;  2  Phillipps,  Ev.  93. 

SOMNAMBULISM  (Lat.  somninm, 
sleep,  ambido,  to  walk).  In  MedicalJuris- 
prudence.  Sleep-walking. 

2.  The  mental  condition  in  this  affection  is  not 
very  unlike  that  of  dreaming.  Many  of  their  pheno- 
mena are  the  same;  and  the  former  differs  from  the 
latter  chiefly  in  the  larger  number  of  the  functions 
involved  in  the  abnormal  process.  In  addition  to 
the  mental  activity  common  to  both,  the  somnam- 
bulist enjoys  the  use  of  his  senses  in  some  degree, 
and  the  power  of  locomotion.  He  is  thereby  en- 
abled to  perform  manual  operations  as  well,  fre- 
quently, as  in  his  waking  state.  The  farmer  goes 
to  his  barn  and  threshes  his  grain;  the  house- 
servant  lights  a  fire  and  prepares  the  breakfast  for 
the  family;  and  the  scholar  goes  to  his  desk  and 
writes  or  reads.  Usually,  however,  the  action  of 
the  senses  is  more  or  less  im[)erfect,  many  of  the 
impressions  being  incorrectly  or  not  at  all  per- 
ceived. The  person  walks  against  a  wall,  or 
stumbles  over  an  object  in  his  path;  he  mistakes 
some  projection  for  a  horse,  strides  across  it.  and 
imagines  himself  to  be  riding  ;  he  hears  the  faintest 
sound  connected  with  what  he  is  doing,  while  the 
voices  of  persons  near  him,  and  even  the  blast  of  a 
trumpet,  are  entirely  unnoticed.  Occasionally  the 
power  of  the  senses  is  increased  to  a  degree  un- 
known in  the  waking  state.  Jane  Rider,  whose 
remarkable  history  was  published  some  thirty 
3'ears  ago,  could  read  the  almost  obliterated  dates 
of  coins,  in  a  dark  room,  and  was  able  to  read  and 
write  while  her  eyes  were  covered  with  several 
folds  of  handkerchief.  For  the  most  part,  how- 
ever, the  operations  of  the  somnambulist  consist  in 
getting  up  while  asleep,  groping  about  in  the  dark, 
endeavoring  to  make  his  way  out  of  the  house 
through  doors  or  windows,  making  some  inarticu- 
late sounds,  perhaps,  and  all  the  while  unconscious 
*f  persons  or  things  around  him.    The  power  of 


the  perceptive  faculties,  as  well  as  that  of  the  senses, 
is  sometimes  increased  in  a  wonderful  degree.  It  is 
related  of  the  girl  just  mcnti<ined  that  in  the  fit 
she  would  sing  correctly,  and  play  at  backgammon 
with  considerable  skill,  though  ebe  had  never  done 
cither  when  awake. 

3.  The  somnambulist  alwayi^  awakes  suddenly, 
and  has  but  a  faint  conception,  if  any,  of  whivt 
he  has  been  thinking  and  doing.  Il  cuifci' U8 
of  any  thing,  it  is  of  an  unpleasant  Jream  imper- 
fectly remembered.  This  fact,  not  being  ;.encraily 
known,  will  often  enable  us  to  detect  simulaled 
somnambulism.  If  the  person  on  waking  con- 
tinues the  same  train  of  thought  and  pursues  the 
SJime  plans  and  purposes  whicli  he  did  whi  e  asiecp, 
there  can  be  no  doubt  that  he  is  feigning  the  attec- 
tion.  When  a  real  somnambulist,  fur  some  crinii 
nal  purpose,  undertakes  to  simulate  a  jiaroxysm, 
he  is  not  at  all  likely  to  imitate  one  of  his  own  pre- 
vious paroxysms,  for  the  simple  reason  that  he 
knows  less  than  olhers  how  he  appeared  while  in 
them.  If,  therefore,  somniimbulism  is  alleged  in 
any  given  case,  with  no  other  proof  than  the  occur- 
rence of  former  paroxysms  unquestionably  genuine, 
it  must  be  viewed  with  suspicion  if  the  character 
of  the  alleged  paroxysm  difiers  materially  from 
that  of  the  genuine  ones.  In  one  way  or  another, 
a  case  of  simulaticm  would  generally  be  detected  l)y 
means  of  a  close  and  intelligent  scrutiny,  so  difficult 
is  it  to  imitate  that  mixture  of  consciousness  and  un- 
consciousness, of  (lull  and  sharp  perceptions,  which 
somnambulism  presents.  The  history  of  the  indi- 
vidual may  throw  some  lighten  the  matter.  If  he 
has  had  an  opportunity  of  witnessing  the  movtmenta 
of  a  somnambulist  in  the  course  of  his  life,  this 
fact  alone  would  rouse  suspicion,  which  would  be 
greatly  increased  if  the  alleged  paroxysm  pre- 
sented many  traits  like  those  of  the  paroxysms 
previously  witnessed.  ■ 

4.  The  legal  consequences  of  somnambulism 
should  be  precisely  those  of  insanity,  which 
it  so  nearly  resembles.  The  party  should  be 
exempt  from  punishment  for  his  criminal 
acts,  and  be  held  amenable  in  damages  for 
torts  and  trespasses.  The  only  possible  ex- 
ception to  this  principle  is  to  be  found  in 
those  cases  where  the  somnambulist,  by  medi- 
tating long  on  a  criminal  act  while  awake,  is 
thereby  led  to  commit  it  in  his  next  par^ 
oxysm.  Iloff bauer  contends  that,  such  being 
generally  the  fact,  too  much  indulgence  ought 
not  to  be  shown  to  the  criminal  acts  of  the 
somnambulist.  Die  Psychologic,  etc.  c.  4. 
art.  2.  But  surely  this  is  rather  refined  and 
hazardous  speculation,  and  seems  like  pun- 
ishing men  solely  for  bad  intentions, — because 
the  acts,  though  ostensibly  the  ground  of 
punishment,  are  actually  those  of  a  person 
deprived  of  his  reason.  The  truth  is,  how- 
ever, that  criminal  acts  have  been  committed 
in  a  state  of  somnambulism  by  persons  of 
irreproachable  character.  See  Grav,  Mod. 
Jur.  205  ;  AVharton  &■  S.  Med.  Jur. ;  Tirrell's 
case,  Mass. 

SON.  An  immediate  male  descendant. 
In  its  technical  meaning  in  devises,  this  is  a 
word  of  purchase ;  but  the  testator  may  make 
it  a  word  of  descent.  Sometimes  it  is  ex 
tended  to  more  remote  descendants. 

SON  ASSAULT  DEMESNE  (L.  Fr 

his  own  first  assault).  In  Pleading.  A 
form  of  a  plea  to  justiiy  an  assault  and  bat 
tery,  by  which  the  defendant  asserts  that  the 


SON-IN-LAW 


532 


SOURCES  OF  THE  LAW 


plaintiff  committed  an  assault  upon  him  and 
the  defendant  merely  defended  himself. 

When  the  plea  is  supported  by  evidence, 
it  is  a  sufficient  justification,  unless  the  re- 
taliation by  the  defendant  were  excessive  and 
bore  no  proportion  to  the  necessity  or  to  the 
provocation  received.  1  East,  PI.  Or.  406;  1 
Chitty,  Pract.  595. 

SON-IN-LAW.  The  husband  of  one's 
daughter. 

SORS  (Lat.).  In  Civil  Law.  A  lot; 
chance;  fortune.  Calvinus,  Lex. ;  Ainsworth, 
Diet.  S  )rt;  kind.  The  little  scroll  on  which 
the  thing  to  be  drawn  by  lot  was  written. 
Carpentier,  Gloss.  A  principal  or  capital 
sum:  e.g.  the  capital  of  a  partnership.  Cal- 
vinus, Lex. 

In  Old  English  Law.  A  principal  lent 
on  interest,  as  distinguished  from  the  interest 
itself.    Pryn,  Collect,  tom.  2,  p.  IGl ;  Cow-el. 

SOUL-SCOT.  A  mortuary,  or  customary 
gift  due  ministers,  in  many  parishes  of  Eng- 
land, on  the  death  of  parishioners.  It  was 
originally  voluntary  and  intended  as  amends 
for  ecclesiastical  dues  neglected  to  be  paid  in 
the  lifetime.  2  Sharswood,  Blackst.  Comm. 
425*. 

SOUND  MIND.  That  state  of  a  man's 
mind  which  is  adequate  to  reason  and  comes 
to  a  judgment  upon  ordinary  subjects  like 
other  rational  men. 

The  law  presumes  that  every  person  who 
has  acquired  his  full  age  is  of  sound  mind, 
and,  consequently,  competent  to  make  con- 
tracts and  perform  all  his  civil  duties;  and 
he  who  asserts  to  the  contrary  must  prove 
the  affirmation  of  his  position  by  explicit  evi- 
dence, and  not  by  conjectural  proof.  2  Hagg. 
Eccl.  434;  3  Add.  Eccl.  86;  8  Watts,  Penn. 
66 :  Ray,  Med.  Jur.  §  92 ;  3  Curt.  Eccl.  671. 

SOUNDING  IN  DAMAGES.  When 
an  action  is  brouglit,  not  for  the  recovery  of 
lands,  goods,  or  sums  of  money  (as  is  the 
case  in  real  or  mixed  actions  or  the  personal 
action  of  debt  or  detinue),  but  for  damages 
only,  as  in  covenant,  trespass,  etc.,  the  action 
is  said  to  be  sounding  in  damages.  Stephen, 
Plead.  126,  127. 

SOUNDNESS.  General  health;  free- 
dom from  any  permanent  disease.  1  Carr.  & 
M.  291.  To  create  unsoundness,  it  is  requisite 
that  the  animal  should  not  be  useful  for  the 
purpose  for  which  he  is  bought,  and  that  in- 
ability to  be  so  useful  should  arise  from  dis- 
ease or  accident.  2  Mood.  &  R.  113,  137  ;  9 
Mees.  &  W.  Exch.  670. 

In  the  sale  of  slaves  and  animals  they  are 
sometimes  warranted  by  the  seller  to  be 
sound  ;  and  it  becomes  important  to  ascertain 
what  is  soundness.  Horses  affected  by  roar- 
ing; a  temporary  lameness,  which  rendered  the 
horse  less  fit  for  service,  4  Campb.  271 ;  but  see 
2  Esp.  Cas.  573 ;  a  cough,  unless  proved  to  be 
of  a  temporary  nature,  2  Chitty,  Bail.  245, 416 ; 
and  a  nerved  horse,  have  been  held  to  be  un- 
sound. But  crib-biting  is  not  a  breach  of  a 
general  warranty  of  soundness.  Ilolt,  Cas.  630. 

An  acti<m  on  the  case  is  the  proper  remedy 


for  a  verbal  warrant  of  soundness.  1  11 
Blackst.  17;  3  Esp.  82;  9  Barnew.  &  C. 
259;  2  DowL  &  R.  10 ;  5  id.  164;  1  Bingh. 
344;  1  Taunt.  566;  7  East,  274;  Bacon.  Abr. 
Action  on  the  Case  (E);  Oliphant,  Horses; 
Stephen,  Horses. 

SOURCES  OF  THE  LAW.  The  au- 
thority from  which  the  laws  derive  their 
force.  A  term  used  to  include  all  the  relia- 
ble testimonials  of  what  constitutes  the  law. 

2.  The  power  of  making  all  law?  is  in  the  people 
or  their  representatives,  and. none  can  have  any 
force  whatever  which  is  derived  from  any  other 
source.  But  it  is  not  required  that  the  legislator 
shall  expressly  pass  upon  all  laws,  and  give  the 
sanction  of  his  seal,  before  they  can  have  life  or  ex- 
istence. The  laws  are,  therefore,  such  as  have  re- 
ceived an  express  sanction,  and  such  as  derive 
their  force  and  effect  from  implication.  The  first, 
or  express,  are  the  constitution  of  the  United 
States,  and  the  treaties  and  acts  of  the  legislature 
which  have  been  made  by  virtue  of  the  authority 
vested  by  the  constitution.  To  these  must  be  added 
the  constitution  of  the  state,  and  the  laws  made  by 
the  state  legislature,  or  by  other  subordinate  legis- 
lative bodies,  by  virtue  of  the  authority  conveyed 
by  such  constitution.  The  latter,  or  tacit,  received 
their  effect  by  the  general  use  of  them  by  the 
people, — when  they  assume  the  name  of  customs — 
or  by  the  adoption  of  rules  by  the  courts  from  systems 
of  foreign  laws. 

3.  The  express  laws  arc — first,  the  constitution 
of  the  United  States;  secondly,  the  treaties  made 
with  foreign  powers  ;  thirdly,  the  acts  of  congress; 
fourthly,  the  constitutions  of  the  respective  states; 
fifthly,  the  laws  made  by  the  several  state  legisla- 
tures ;  sixthly,  the  laws  made  by  inferior  legislative 
bodies,  such  as  the  councils  of  municipal  corpora- 
tions, and  the  general  rules  made  by  the  courts. 

The  constitution  is  an  act  of  the  people  them- 
selves, made  by  their  representatives  elected  for 
that  purpose.  It  is  the  supreme  law  of  the  land, 
and  is  binding  on  all  future  legislative  bodies 
until  it  shall  be  altered,  by  the  authority  of  the 
people,  in  the  manner  provided  for  in  the  instru- 
ment itself ;  and  if  an  act  be  passed  contrary  to  the 
provisions  of  the  constitution  it  is,  ipso  facto, 
void.  2  Pet.  522 ;  12  Wheat.  270 ;  2  Dall.  309 ;  3 
id.  386 ;  4  ?V/.  18 ;  6  Cranch,  128. 

4.  Treaties  made  under  the  authority  of  the 
constitution  are  declared  to  be  the  supreme  law 
of  the  land,  and,  therefore,  obligatory  on  courts, 
1  Cranch,  103.    See  Treaty. 

The  acts  and  resolutions  of  congress  enacted 
constitutionally  are,  of  course,  binding  as  laws, 
and  require  no  other  explanation. 

The  constitutions  of  the  respective  states,  if  not 
opposed  to  the  provisions  of  the  constitution  of  the 
United  States,  are  of  binding  force  in  the  states 
respectively  ;  and  no  act  of  the  state  legislature  has 
any  force  which  is  made  in  contravention  of  the 
state  constitution. 

The  laws  of  the  several  states  constitutionally 
mnde  by  the  state  legislatures  have  full  and  com- 
plete authority  in  the  respective  states. 

5.  Laws  are  frequently  made  by  inferior  legisla- 
tive bodies  which  are  authorized  by  the  legisla 
ture:  such  are  the  municipal  councils  of  cities  or 
boroughs.  Their  laws  arc  generally  known  by  the 
name  of  ordinances,  and  when  lawfully  ordained 
they  are  binding  on  the  people.  The  courts,  per- 
haps by  a  necessary  usurpation,  have  been  in  the 
practice  of  making  general  rules  and  orders,  which 
sometimes  affect  suitors  and  parties  as  much  as  the 
most  regular  laws  enacted  by  congress.  These  apply 
to  all  future  eases.  There  are  also  rules  made  in 
particular  cases  as  they  arise;  but  these  are  rathnr 
decrees  or  judgments  than  laws. 


sous  SEING  PRIVE 


533 


SOUTH  CAROLINA 


6.  The  tncit  laws,  which  derive  their  authority 
from  the  conaent  of  the  people  without  any  legis- 
lative enactment,  may  be  subdivided  into, — 

The  cominon  law,  which  is  derived  from  two 
sources,— the  common  law  of  England,  jind  the 
practice  and  decisions  of  our  own  courts.  In  some 
states  it  has  been  enacted  that  the  common  law  of 
England  shall  be  the  law,  except  where  the  same 
Is  inconsistent  with  our  constitutions  and  laws. 
See  Law. 

CiixtoDia  which  have  been  generally  adopted  by 
the  people  have  the  force  of  law. 

The  principles  of  the  Roman  law,  being  gene- 
rally founded  in  superior  wisdom,  have  insinuated 
themselves  into  every  part  of  the  law.  Many  of 
the  refined  rules  which  now  adorn  the  common 
law  appear  there  without  any  acknowledgment 
of  their  paternity;  and  it  is  at  this  source  that 
some  judges  dipped  to  get  the  wisdom  which  adorns 
their  judgments.  The  proceedings  of  the  courts  of 
equity,  an<l  many  of  the  admirable  distinctions 
which  manifest  their  wisdom,  are  derived  from  this 
source.  To  this  fountain  of  wisdom  the  courts  of 
admiralty  owe  most  of  the  law  which  governs  in 
admiralty  cases. 

The  Canon  law,  which  was  adopted  by  the  eccle- 
siastical courts,  figures  in  our  laws  respecting  mar- 
riage, divorces,  wills  and  testaments,  executors  and 
administrators,  and  many  other  subjects. 

The  jnrixprudence,  or  decisions  of  the  various 
courts,  have  contributed  their  full  share  of  what 
makes  the  law.  These  decisions  are  made  by  fol- 
lowing precedents,  by  borrowing  from  the  sources 
already  mentioned,  and  sometimes  by  the  less  ex- 
cusable disposition  of  the  judges  to  legislate  on 
the  bench. 

T.  The  monument  where  the  common  law  is  to 
be  found  are  the  records,  reports  of  cases  adjudi- 
cated by  the  courts,  and  the  treatises  of  learned 
men.  The  books  of  reports  are  the  best  proof  of 
what  is  the  common  law ;  but,  owing  to  the  difficulty 
of  finding  out  any  systematic  arrangement,  re- 
course is  had  to  treatises  upon  the  various  branches 
of  the  law.  The  records,  owing  to  their  being 
kept  in  one  particular  place  and  therefore  not 
generally  accessible,  are  seldom  used. 

SOUS  SEING  PRIVE.    In  Louisiana. 

An  act  or  contract  evidenced  by  writing 
under  the  pricate  signature  of  the  parties  to 
it.  The  term  is  used  in  opposition  to  the  au- 
thentic act,  which  is  an  agreement  entered 
into  in  the  presence  of  a  notary  or  other 
public  officer. 

The  form  of  the  instrument  does  not  give 
it  its  character  so  much  as  the  fact  that  it 
appears  or  does  not  appear  to  have  been  exe- 
cuted before  the  officer.  5  Mart.  La.  n.  s. 
19G ;  7  id.  548. 

The  effect  of  a  sous  seing  priv4  is  not  the 
same  as  that  of  the  authentic  act.  The 
former  cannot  be  given  in  evidence  until 
proved,  and,  unless  accompanied  by  posses- 
sion, it  does  not,  in  general,  affect  third 
persons,  6  Mart.  La.  n.  s.  429,  432;  the 
latter,  or  authentic  acts,  are  full  evidence 
against  the  parties  and  those  who  claim 
under  them.    8  Mart.  La.  n.  s.  132. 

JOUTH    CAROLINA.     One   of  the 

original  thirteen  United  States. 

2.  This  state  was  originally  part  of  the  British 
province  of  Caroliwi,  then  comprehending  both 
North  Carolina  and  South  Carolina.  Th  it  province 
was  granted  by  Charles  II.,  by  charter  issued  to 
eight  lords  proprietors,  in  1663,  and  amended  in  166o 
•0  as  to  extend  it  from  north  latitude  twenty-nine 


degrees  to  thirty  degrees  thirty  minutes,  and  in- 
clude it  within  parallel  lines  drawn  from  these 
points  on  the  Atlantic  to  the  Pacific  ocean.  'J  he 
first  permanent  settlement  in  South  Carolina 
was  effected  in  1670,  at  Beaufort,  then  Port  Royal, 
by  a  colony  of  Scottish  Presbyterians  under  Lord 
Cardrulf.  In  1071,  the  emigrants  removed  to  the 
point  on  the  river  Ashley  nearly  op[)03ite  the  pre- 
sent site  of  Charleston  ;  but,  abandoning  this  posi- 
tion, they  again  removed,  in  1680,  to  Oyster  Point, 
at  the  confluence  of  the  Ashley  and  Cooper,  where 
they  began  Charleston. 

In  1719,  the  colonial  legislature  disowned  the 
proprietary  government  and  threw  the  colony  into 
the  hands  of  the  king,  who,  accordingly,  assumed 
the  control  of  it.  It  was  not,  however,  until  1729 
that  the  charter  was  surrendeied.  In  that  year 
the  shares  of  seven  out  of  the  eight  lords  proprie- 
tors were  ceded.  The  eighth  share,  which  belonged 
to  the  family  of  Lord  (iranville,  formerly  Carteret, 
was  retained,  and  laid  off  in  North  Carolina, — 
which  was  about  the  same  time  divided  from  South 
Carolina. 

3.  In  1732,  that  part  of  South  Carolina  lying  west 
of  the  river  Savannah  was  granted  by  the  crown 
to  the  Georgia  Company,  under  Oglethorpe.  Thus 
South  Carolina  was  reduced  in  extent,  and,  in  con- 
sequence of  subsequent  arrangements  of  boundaries, 
made  with  Georgia  in  1787  in  the  treaty  of  Beau- 
fort, and  with  North  Carolina  in  the  early  part  of 
the  present  century,  is  now  separated  from  those 
two  states  by  a  line  begining  at  a  cedar  stake, 
marked  with  nine  notches,  planted  near  the  mouth 
of  Little  river  on  the  Atlantic  (north  latitude  thirty- 
five  degrees  eight  minutes),  and  running  by  various 
traverses  a  west-northwest  course  to  the  forks  of 
the  Catawba,  thence  irregularly  a  west  course  to 
a  point  of  intersection  in  the  Appalachian  moun- 
tains, from  which  it  proceeds  due  south  to  the 
Chattooga,  and  thence  along  the  Chattooga,  Tugaloo, 
Keowee,  and  the  Savannah  (as  regulated  by  the 
treaty  of  Beaufort)  to  the  most  northern  mouth 
of  the  latter  river  on  the  Atlantic. 

On  the  twenty-sixth  of  March,  1776,  she  adopted 
her  first  constitution, — the  earliest,  it  is  believed,  of 
the  American  constitutions.  This  constitution  was 
replaced  in  1778  by  another,  some  parts  of  which 
are  still  in  force,  being  recognized  by  the  present 
constitution  of  1790,  parlicularly  such  parts  as 
secure  the  rights  of  religious  bodies,  with  their 
property. 

The  constitution  of  this  state  was  adopted  the 
third  day  of  June,  1790,  to  which  two  amendments 
have  been  made,  one  ratified  December  seventeenth, 
1808,  and  the  other  December  nineteenth,  1816. 
The  powers  of  the  government  are  distributed  into 
three  branches, — the  legislative,  the  executive,  and 
the  judicial. 

The  Legislative  Power. 

4,  The  legislative  power  consists  of  two  cham- 
bers, a  senate  and  a  house  of  representati\  cs.  Thia 
legislature,  by  joint  ballot  of  the  two  houses,  elects 
the  governor  and  superior  judges,  and  formerly 
elected  all  the  state  and  district  officers. 

The  Senate  is  composed  of  one  member  from 
each  district  as  now  established  for  the  election 
of  the  house  of  representatives,  except  the  district 
formed  by  the  districts  of  the  parishes  of  St.  Philip 
and  St.  Michael,  to  which  shall  be  allowed  two 
senators,  as  heretofore.  Amend,  of  December  seven- 
teenth, 1808.  The  members  are  elected  for  four 
years.  The  election  takes  ]>laee  on  the  second 
Monday  in  October.    Art.  1,  s.  10. 

The  House  of  Reprexentutives  consists  of  on© 
hundred  and  twenty-four  members,  Amend.  Dec. 
17,  ISOh,  elected  for  two  years,  Art.  1,  ^  2,  at  the 
same  time  that  the  election  of  senators  is  held. 

No  person  is  eligible  to  a  seat  in  the  senate 
unless  he  is  a  free  white  man  of  the  age  of  thirty 


SOUTH  CAROLINA 


534 


SOUTH  CAROLINA 


years  and  has  been  a  citizen  and  resident  in  the 
state  five  years  previous  to  his  election.  If  a 
resident  in  the  election  district,  he  is  not  eligible 
unless  he  is  legally  seised  and  possessed  in  his  own 
right  of  a  settled  freehold  estate  of  tlie  value  of 
three  hundred  pounds  sterling,  clear  of  debt.  If 
a  non-resident  in  the  election  district,  he  is  not 
eligible  unless  he  is  legally  seised  and  possessed  in 
his  own  right  of  a  settled  freehold  estate  in  the 
district  of  the  value  of  one  thousand  pounds  ster- 
ling, clear  of  debt.  No  person  is  eligible  to  a 
Beat  in  the  house  of  representatives  unless  he  is 
a  free  vrhite  man  of  the  age  of  twenty-one  years 
and  has  been  a  citizen  and  resident  in  the  state 
three  years  previous  to  his  election.  If  a  resident 
in  the  election  district,  he  is  not  eligible  to  a  seat 
in  the  house  of  representatives  unless  he  is  legally 
seised  and  possessed  in  his  own  right  of  a  settled 
freehold  estate  of  five  hundred  acres  of  land  and 
ten  negroes,  or  of  a  real  estate  of  the  value  of  one 
hundred  and  fifty  pounds  sterling,  clear  of  debt. 
If  a  non-resident,  he  must  be  legally  seised  and 
possessed  of  a  settled  freehold  estate  therein  of 
the  value  of  five  hundred  pounds  sterling,  clear  of 
debt. 

5.  Every  free  white  man  who  is  a  citizen  of  the 
state  and  has  resided  therein  two  years  previous  to 
the  day  of  election,  and  who  has  a  freehold  of  fifty 
acres  of  land  or  a  town  lot  of  which  he  has  been 
legally  seised  and  possessed  at  least  six  months 
before  such  election,  or,  not  having  such  freehold 
or  town  lot,  has  been  a  resident  in  the  election 
district  in  which  he  offers  to  give  his  vote,  six 
months  before  the  said  election  and  has  paid  a 
tax  the  preceding  year  of  three  shillings  sterling 
tbvrards  the  support  of  this  government,  has  a 
right  to  vote  for  a  member  or  members  to  serve  in 
either  branch  of  the  legislature  for  the  election 
district  in  which  he  holds  such  property  or  is  so 
resident. 

The  Executive  Poicer. 

The  Governor.  No  person  is  eligible  to  the 
office  of  governor  unless  he  has  attained  the  age 
of  thirty  years  and  has  resided  within  the  state 
j>nd  been  a  citizen  thereof  ten  years,  and  unless  he 
is  seised  and  possessed  of  a  settled  estate  within 
the  same,  in  his  own  right,  of  the  value  of  fifteen 
hundred  pounds  sterling,  clear  of  debt.   Art.  2,  s.  2. 

He  is  elected,  by  the  senate  and  house  of  repre- 
sentatives jointly,  in  the  house  of  representatives, 
whenever  a  majority  of  both  houses  is  present,  for 
two  years  and  until  a  new  election  shall  be  made. 
The  governor  is  commander-in-chief  of  the  army 
and  navy  of  the  state,  and  of  the  militia,  except 
when  they  shall  be  called  into  the  actual  service 
of  the  United  States.  He  may  grant  reprieves 
and  pardons  after  conviction,  except  in  cases  of 
impeachment,  and  remit  fines  and  forfeitures  un- 
less otherwise  directed  by  law,  shall  cause  the 
Irtws  to  be  faithfully  executed  in  mercy,  may  pro- 
hibit the  exportation  of  provisions  for  any  time 
liot  exceeding  thirty  d.ays,  may  require  informa- 
tion from  the  executive  departments,  shall  recom- 
mend such  measures  as  he  may  deem  necessary, 
and  give  the  assembly  information  as  to  the  con- 
dition of  the  state,  may  on  extraordinary  occa- 
sions convene  the  assembly,  and,  in  case  of  dis- 
agreement between  the  two  houses  with  respect  to 
the  time  of  adjournment,  adjourn  them  to  such 
time  as  he  shall  think  proper,  not  beyond  the  fourth 
Monday  in  the  month  of  November  then  next  en- 
suing. 

6.  A  Lieufennnt-Qovernor  is  to  be  chosen  at  the 
same  time,  in  the  same  manner,  continue  in  office 
for  the  same  period,  and  be  possessed  of  the  same 
qualifications,  as  the  governor.  Art.  2,  s.  .3.  In 
case  of  the  impeachment  of  the  governor  or  his 
removal  from  office,  death,  resignation,  or  absence 
from  the  state,  the  lieutenant-governor  succeeds  to 


his  office.  And  in  case  of  the  impeachment  of  the 
lieutenant-governor  or  his  removal  from  office, 
death,  resignation,  or  absence  from  the  state,  the 
president  of  the  seuiite  succeeds  to  his  office  till  a 
nomination  to  those  offices  respectively  is  made  by 
the  senate  and  house  of  representatives  for  the 
remainder  of  the  time  for  which  the  officer  so  im- 
peached, removed  from  office,  dying,  resigning,  or 
being  absent,  was  elected,    Art.  2,  s.  6. 

The  Judicial  Poicer. 

T.  The  judicial  power  is  vested  in  such  superior 
and  inferior  courts  of  law  and  equity  as  the  legis- 
lature shall  from  time  to  time  direct  and  establish. 
The  judges  of  each  hold  their  commissions  during 
good  behavior;  and  judges  of  the  superior  courts 
are,  at  stated  times,  to  receive  a  compensation  for 
their  services,  which  is  neither  to  be  increased 
nor  diminished  during  their  continuance  in  office; 
but  they  are  to  receive  no  fees  or  perquisites  of 
office  nor  hold  any  other  office  of  profit  or  trust 
under  the  state,  the  United  States,  or  any  other 
power.  Art.  3,  s.  1.  The  judges  are  required  to, 
meet  «at  such  times  and  places  as  shall  be  pre- 
scribed by  the  act  of  the  legislature,  and  sit  for 
the  purpose  of  hearing  and  determining  all  mo-' 
tions  which  may  be  made  for  new  trials  and  in 
arrest  of  judgment,  and  such  points  of  law  as  may 
be  submitted  to  them.    Amend,  of  Dec.  19,  1816. 

Until  1769,  the  business  of  the  superior  courts 
was  done  in  Charleston.  Since  that  time  it  has 
been  extended,  until  at  present  these  courts  sit 
twice  a  year — spring  and  fall — in  every  district. 
We  now  speak  of  the  law  courts.  The  districts  are 
arranged  in  circuits,  which  the  judges  take  in  rota- 
tion. The  courts  of  equity  sit  in  each  district 
once  a  year,  except  in  Charleston,  where  they  are 
held  twice  a  year;  and  the  chancellors  take  the 
circuits  in  rotation.  The  superior  law  judges  have 
exclusive  jurisdiction  of  criminal  matters,  and  of  , 
civil  matters  both  ex  contractu  and  ex  delicto.  The 
process  runs  throughout  the  state;  but  trials  in 
criminal  cases  and  in  civil  cases  relating  to  real^ 
estate  are  confined  to  the  district  where  the  cause 
of  prosecution  or  of  suit  arose.  There  are  some 
exceptions :  in  the  law  courts  there  is  a  jurisdic- 
tion entitled  the  "summary  process  jurisdiction," 
limited  to  twenty  pounds  currency,  equal  to  $85.91. 
In  this  jurisdiction  elaborate  pleading  is  dispensed 
with,  no  imparlance  is  given,  and  a  jury  is  not 
employed  unless  one  or  the  other  of  the  parties 
require  it;  and  a  party  may  be  called  upon  to 
answer  interrogatories  on  oath.  An  equitable 
jurisdiction  has  existed  from  the  planting  of  the 
colony,  and  was  at  first  lodged  in  the  proprietors' 
and  their  deputies  and  council.  By  the  colonial 
statute  of  1721,  which  was  passed  after  the  regal 
had  succeeded  to  the  proprietary  government,  it 
was  established  as  the  rule  of  proceeding  that  it 
should  conform,  as  far  as  the  peculiar  situation  of 
the  colony  permitted,  to  the  usages  in  chancery  in 
England.  This  court  has  also  a  less  formal  and 
more  summary  jurisdiction,  limited  to  unlitigated 
cases  and  to  cases  involving  not  more  than  one 
hundred  pounds,  in  which  the  suit  may  be  brought 
by  petition.  The  court  was  remodelled  in  1784, 
and  again  in  1808,  by  the  creation  of  chancellors, 
and  an  appeal  was  given  to  all  the  chancellors 
from  the  circuit  decisions.  The  circuit  courts  have 
masters,  or  commissioners,  and  registrars.  The 
sheriflF  executes  the  decrees  by  attachment,  or  by 
fieri  facias,  according  to  the  nature  of  the  case 

8.  The  law  judges  and  the  chancellors  are  all 
elected,  under  the  constitution  of  1790,  by  joint  bal- 
lot of  the  two  legislative  chambers,  and  hold  office 
dum  bene  se  ifesacrint.  They  may  be  impeached  be- 
fore the  senate  for  high  crimes  and  misdemeanors, 
misbehavior  in  office,  corruption  in  procuring  office, 
or  any  act  degrading  their  official  character,  and, 
by  virtue  of  an  amendment  adopted  in  1828,  may 


I 

SOUTH  CAROLINA  535  SPARSIM 


be  removed  by  a  vote  of  two-thirds  of  the  two 
houses  for  disability  arising  from  permanent  bodily 
or  menhil  intirniity. 

There  was  formerly  an  appellate  bench  for  each 
jurisdiction,  law  and  equity  (apart  from  one  an- 
other), consisting  of  the  law  judges  for  the  one  and 
the  chancellors  for  the  other.  This  plan  continued 
until  1824,  when  a  separate  court  of  appeals,  con- 
sisting of  three  judges,  was  established  for  both 
jurisdictions.  This  court  was  broken  up  in  18.35, 
by  electing  its  members  to  the  equity  and  law 
benches  respectively,  and  an  appeal  bench  was 
i  constituted,  in  its  stead,  of  all  the  chancellors  and 
[  judges.  This  arrangement,  after  one  year's  trial, 
I  was  given  up  in  1836,  and  the  appeal  benches  as 
originally  existing  were  restored,  with  an  obli- 
gation, however,  to  carry  the  cause  or  the  question, 
when  a  constitutional  point  arose,  before  all  the 
chancellors  and  judges,  and  a  right,  also,  to  carry 
it  before  them  on  the  request  of  any  two  chan- 
cellors or  judges.  This  last  resort  was  denomi- 
nated the  court  of  errors.  In  December,  1859,  a 
separate  court  of  appeals  was  again  established  in 
three  judges,  with  a  resort  to  all  the  chancellors 
and  judges  on  constitutional  questions  or  on  the 
request  of  two  appeal  judges.  And  this  is  the 
present  plan. 

The  State  Reporter  is  appointed  by  the  legisla- 
ture instead  of  the  court;  but  the  appeal  court 
appoints  all  other  of  its  officers. 

The  inferior  courts  consist  of  a  magistracy  of 
justices  of  the  peace,  etc.,  for  the  conservation  of 
peace  and  order,  and  have  a  jurisdiction  in  matters 
of  contract  limited  to  twenty  dollars.  They  are 
appointed  by  the  general  assembly  ;  and  appeals  lie 
from  them  to  the  superior  law  courts. 

There  is  also  a  court  of  limited  jurisdiction,  called 
the  "  Court  of  Ordinary."  This  jurisdiction  was 
in  colonial  times  administered  by  the  governor 
and  privy  council.  There  is  now  an  ordinary  for 
every  district,  elected  by  popular  suffrage,  whose 
jurisdiction  deals  in  the  probate  of  wills,  granting 
of  administrations,  etc.,  like  the  ecclesiastical  courts 
of  England.  To  the  ordinary  is  also  allotted,  by 
jtatute,  the  sale  and  partition  of  lands  under  the 
value  of  one  thousand  dollars.  When  the  probate 
of  a  will  is  concerned,  the  matter  maj'  be  taken  up, 
by  appeal,  to  the  superior  law  courts,  where  the 
evidence  is  taken  and  the  matter  laid  before  a  jury 
de.novo.  From  the  ordinary's  decision  in  matters 
of  account  an  appeal  lies  to  the  courts  of  equity. 
In  all  other  cases  the  appeal  is  to  the  superior  law 
courts.    There  are  no  county  courts. 

Jurisprudence, 
9.  By  a  colonial  statute  passed  in  1712,  the 
common  law  of  England,  not  unsuitable  to  the  con- 
dition of  the  colony,  was  adopted,  together  with 
leading  English  statutes  selected  and  enumerated. 
Among  the  latter  were  the  statutes  relating  to  the 
writ  of  habeas  corpus  and  to  the  confirmation  of 
Magna  Charta,  9  Edw.  I.,  a.d.  1297.  The  con- 
stitution of  1790  secures  rights  in  the  following 
particulars,  among  others: — an  independent  judi- 
ciary, the  freedom  of  religion,  not  amounting  to 
licentiousness  nor  inconsistent  with  public  peace 
and  safety,  subordination  of  military  to  civil 
power,  perpetuation  of  jury  trial,  liberty  of  the 
press,  no  hereditary  offices  or  titles,  inhibition  of 
excessive  bail,  excessive  fines,  and  cruel  punish- 
ments, that  no  freeman  of  this  state  shall  be  taken 
or  imprisoned,  or  disseised  of  his  freehold,  liberties, 
or  privileges,  or  outlawed,  or  exi'ed,  or  in  any 
manner  destroyed,  or  deprived  of  his  life,  liberty, 
or  property,  but  by  the  judgment  of  his  peers  or 
by  the  law  of  the  land  (it  is  not,  however,  further 
declared  that  private  property  shall  be  taken  for 
public  use  only  by  direct  act  of  the  legislature,  by 
giving  contemporaneously  full  hoim  fide  com- 
Vensation  for  the  property  taken  and  the  injury 


therefrom  accruing,  or  by  authority  conferred  by 
the  legislature  by  statute  prescribing  the  rule  by 
which  similar  compensation  shall  be  made);  that 
no  bill  of  attainder,  ex  post  facto  law,  or  law  im-- 
pairing  the  obligations  of  contracts  shall  ever  bo 
passed  by  the  legislature  of  this  state. 

The  people  have  also  by  this  constitution  en« 
deayored  to  secure  themselves  against  their  own 
caprice,  by  anticipating  that  no  alteration  of  thia 
instrument  shall  be  made  except  by  bill  read  three 
times  in  each  house,  agreed  to  by  two-thirds  of 
both  houses,  and  (after  an  intervening  election 
securing  three  months'  previous  publication  of  the 
bill)  passed,  by  a  similar  process,  at  the  imme- 
diiitely  consecutive  session.  And,  by  an  amendment 
adopted  in  1810,  it  is  also  provided  that  no  con- 
vention of  the  people  shall  be  called  but  by  the 
concurrent  vote  of  both  branches  of  the  legisla- 
ture. 

These  constitutional  and  fundamental  provisions, 
and  the  common  law,  and  leading  English  statutes, 
adopted  in  1712,  together  with  the  statutes  subse- 
quently enacted,  and  the  decisions  of  the  courts, 
constitute  the  law  of  the  state. 

SOVEREIGN.  A  chief  ruler  with  su- 
preme power;  a  king  or  other  ruler  with 
limited  power. 

In  English  Law.  A  gold  coin  of  Great 
Britain,  of  the  value  of  a  pound  sterling. 

SOVEREIGN  STATE.  One  which 
governs  itself  independently  of  any  foreign 
power. 

SOVEREIGNTY.  The  union  and  ex- 
ercise of  all  human  power  possessed  in  a 
state:  it  is  a  combination  of  all  power;  it 
is  the  power  to  do  every  thing  in  a  state, 
without  accountability, — to  make  laws,  to  ex- 
ecute and  to  apply  them,  to  impose  and  col- 
lect taxes  and  levy  contributions,  to  make 
war  or  peace,  to  form  treaties  of  alliance  or 
of  commerce  with  foreign  nations,  and  the 
like.    Story,  Const.  §  207. 

2.  Abstractly,  sovereignty  resides  in  the 
body  of  the  nation  and  belongs  to  the  people. 
But  these  powers  are  generally  exercised  by 
delegation. 

When  analyzed,  sovereignty  is  naturally 
divided  into  three  great  powers:  namely, 
the  legislative,  the  executive,  and  the  judi- 
ciary :  the  first  is  the  power  to  make  new 
laws  and  to  correct  and  repeal  the  old ;  the 
second  is  the  power  to  execute  the  laws,  both 
at  home  and  abroad ;  and  the  last  is  the 
power  to  apply  the  laws  to  particular  facts, 
to  judge  the  disputes  which  arise  among  the 
citizens,  and  to  punish  crimes. 

3.  Strictly  speaking,  in  our  republican 
forms  of  government  the  absolute  sovereignty 
of  the  nation  is  in  the  people  of  the  nation ; 
and  the  residuary  sovereignty  of  each  state, 
not  granted  to  any  of  its  public  functionaries, 
is  in  the  people  of  the  state.  2  Ball.  471.  And 
see,  generally,  2  Ball.  433,  455;  3  id.  93;  1 
Story,  Const.  ^  208;  1  Toullier,  n.  20;  Merlin, 
Repert. 

SPADONES  (Lat.).     In  Civil  Law 

Those  who,  on  account  of  their  temperament 
or  some  accident  they  have  suffered,  are  unable 
to  procreate.  Inst.  I.  11.  9;  Big.  1.  7.  2.  1. 
And  see  Impotence. 

SPARSIM  (Lat.)     Here  and  there ;  in 


SPEAR 


536 


SPECIAL  ISSUE 


a  scattered  manner ;  sparsedly  ;  dispersedly. 
It  is  sometimes  used  in  law :  for  example,  the 
plaintiff  may  recover  the  place  w^asted,  not 
only  w^here  the  injury  has  been  total,  but 
where  trees  growing  sparsim  in  a  close  are 
cut.  Bacon,  Abr.  Waste  (M)  :  Brownl.  240; 
Coke,  Litt.  54  a;  4  Bouvier,  Inst.  n.  3690. 

SPEAK.  A  term  used  in  the  English 
law  to  signify  the  permission  given  by  a 
court  to  the  prosecutor  and  defendant,  in  some 
cases  of  misdemeanor,  to  agree  together, 
after  which  the  prosecutor  comes  into  court 
and  declares  himself  to  be  satisfied;  when 
the  court  pass  a  nominal  sentence.  1  Chitty, 
Pract.  17. 

SPEAKER.  The  title  of  the  presiding 
oflScer  of  the  house  of  representatives  of  the 
United  States.  The  presiding  officer  of  either 
branch  of  the  state  legislatures  generally  is 
called  the  speaker. 

SPEAKING  DEMURRER.  In  Plead- 
ing. One  which  alleges  new  matter  in  addi- 
tion to  that  contained  in  the  bill  as  a  cause 
for  demurrer.  4  Brown,  Ch.  254 ;  2  Ves.  Ch. 
83  ;  4  Paige,  Ch.  N.  Y.  374. 

SPECIAL.  That  which  relates  to  a  par- 
ticular species  or  kind;  opposed  to  general: 
as,  special  verdict  and  general  verdict ;  spe- 
cial imparlance  and  general  imparlance ; 
special  jury,  or  one  selected  for  a  particular 
case,  and  general  jury ;  special  issue  and 
general  issue,  etc. 

The  meaning  of  special,  as  used  in  a  con- 
stitutional provision  authorizing  the  legisla- 
ture to  confer  jurisdiction  in  special  cases, 
has  been  the  subject  of  much  discussion  in 
the  court  of  appeals  of  the  state  of  New 
York.    12  N.  Y.  593  ;  16  id.  80  ;  18  id.  57. 

SPECIAL  AGENT.  An  agent  whose 
authority  is  confined  to  a  particular  or  an  in- 
dividual instance.  It  is  a  general  rule  that 
he  who  is  invested  with  a  special  authority 
must  act  within  the  bounds  of  his  authority, 
and  he  cannot  bind  his  principal  beyond 
what  he  is  authorized  to  do.  2  Bouvier,  Inst, 
n.  1299  ;  2  Johns.  N.  Y.  48 ;  5  id.  48;  15  id. 
44;  8  Wend.  N.  Y.  494;  1  Wash.  C.  C.  174. 
See  Agent. 

SPECIAL  ASSUMPSIT.  In  Prac- 
tice. An  action  of  assumpsit  brought  on  a 
special  contract,  which  the  plaintiff  declares 
upon  setting  out  its  particular  language  or 
its  legal  effect 

It  is  distinguished  from  a  general  assumpsit, 
where  the  plaintiflF,  instead  of  setting  out  the  par- 
ticular language  or  effect  of  the  original  contract, 
declares  as  for  a  debt  arising  out  of  the  execution 
of  the  contract,  whore  that  constitutes  the  debt. 
3  Bouvier,  Inst.  n.  3426. 

SPECIAL  BAIL.  A  person  who  be- 
comes specially  bound  to  answer  for  the  ap- 
pearance of  another. 

The  recognizance  or  act  by  which  such 
person  thus  becomes  bound. 

SPECIAL  CONSTABLE.  One  who 
has  been  app(»inte(l  a  constable  for  a  particu- 
lar occasion,  as  in  the  case  of  an  actual  tumult 


or  a  riot,  or  for  the  purpose  of  serving  a  par 
ticular  process. 

SPECIAL  DAMAGES.  The  damages 
recoverable  for  the  actual  injury  incurred 
through  the  peculiar  circumstance  of  the  in 
dividual  case,  above  and  beyond  those  pre- 
sumed by  law  from  the  general  nature  of  the 
wrong. 

These  damages  must  be  specially  averred 
in  the  declaration,  or  they  cannot  be  recovered ; 
while  damages  implied  by  law  are  recovera- 
ble Avithout  any  such  special  averment.  Thus, 
in  the  case  of  an  action  for  libel  the  law  pre- 
sumes an  injury  as  necessarily  involved  in 
the  loss  of  reputation,  and  will  award  dam- 
ages therefor  without  any  distinct  averment. 
But  if  there  was  any  peculiar  loss  suffered 
in  the  individual  case,  as  the  plaintiff's  mar- 
riage prevented  or  the  plaintiff's  business 
diminished,  etc.,  this  must  be  especially 
averred.    See  Damages. 

SPECIAL  DEMURRER.  In  Plead- 
ing. One  which  excepts  to  the  sufiiciency  of 
the  pleadings  on  the  opposite  side,  and  shows 
specifically  the  nature  of  the  objection  and 
the  particular  ground  of  the  exception.  3 
Bouvier,  Inst.  n.  3022.    See  Demurrer. 

SPECIAL  DEPOSIT.  A  deposit  made 
of  a  particular  thing  with  the  depositary :  it 
is  distinguished  from  an  irregular  deposit. 

When  a  thing  has  been  specially  deposited 
with  a  depositary,  the  title  to  it  remains  with 
the  depositor,  and  if  it  should  be  lost  the 
loss  will  fall  upon  him.  When,  on  the  con- 
trary, the  deposit  is  irregular,  as  where  money 
is  deposited  in  a  bank,  the  title  to  which  is 
transferred  to  the  bank,  if  it  be  lost,  the  loss 
will  be  borne  by  the  bank.  This  will  result 
from  the  same  principle :  the  loss  will  fall, 
in  both  instances,  on  the  owner  of  the  thing, 
according  to  the  rule  res  periit  domino.  See 
1  Bouvier,  Inst.  n.  1054. 

SPECIAL  ERRORS.  Special  pleas  in 
error  are  those  which  assign  for  error  matters 
in  confession  and  avoidance,  as  a  release  of 
errors,  the  act  of  limitations,  and  the  like, 
to  which  the  plaintiff  in  error  may  reply  or 
demur. 

SPECIAL  IMPARLANCE.  In 

Pleading.  An  imparlance  which  contains 
the  clause,  "  saving  to  himself  all  advantages 
and  exceptions,  as  well  to  the  writ  as  to  the 
declaration  aforesaid."  2  Chitty,  Plead.  407, 
408.    See  Imparlance. 

SPECIAL  INJUNCTION.  An  injunc- 
tion obtained  only  on  motion  and  petition, 
with  notice  to  the  other  party.  It  is  applied 
for  sometimes  on  affidavit  before  answer,  but 
more  frequently  upon  merits  disclosed  in  the 
defendant's  answer.  4  Bouvier,  Inst.  n.  3756. 
See  Injunction. 

SPECIAL  ISSUE.  In  Pleading.  A 
plea  to  the  action  which  denies  some  particu- 
lar material  allegation,  which  is  in  effect  a 
denial  of  the  entire  right  of  action.  It  differs 
from  the  general  issue,  which  traverses  or 
denies  the  whole  declaration  or  indictment 


SPECIAL  JURY 


537 


SPECIFIC  LEGACY 


Gould,  Plead,  c.  2,  g  38.  See  General  Issue  ; 
Issue. 

SPECIAL  JURY.    One  selected  in  a 
particular  way  by  the  parties.    See  Jury. 
SPECIAL  NGN  EST  PACTUM.  The 

name  of  a  plea  by  which  the  deieiidant  says 
that  the  deed  which  he  has  executed  is  not 
liis  own  or  binding  upon  him,  because  of  some 
circumstance  which  shows  that  it  was  not  in- 
tended to  be  his  deed,  or  because  it  was  not 
bindjng  upon  him  for  some  lawful  reason:  as, 
when  the  defendant  delivered  the  deed  to  a 
third  person  as  an  escrow  to  be  delivered 
upon  a  condition,  and  it  has  been  delivered 
without  the  performance  of  the  condition,  he 
may  plead  non  est  factum,  state  the  fact 
of  the  conditional  delivery,  the  non-perform- 
ance of  the  condition,  and  add,  "  and  so  it  is 
not  his  deed;"  or  if  the  defendant  be  a  feme 
covert,  she  may  plead  non  est  factum,  that 
she  was  a  feme  covert  at  the  time  the  deed 
was  made,  *'  and  so  it  is  not  her  deed." 
Bacon,  Abr.  Pleas,  etc.  ( H  3,1  2) ;  Gould, 
Plead,  c.  6,  pt.  1,  §  64.    See  Issint. 

SPECIAL  OCCUPANT.  AYhen  an 
estate  is  granted  to  a  man  and  his  heirs 
during  the  life  of  cestui  que  vie,  and  the 
grantee  die  without  alienation,  and  while  the 
life  for  which  he  held  continues,  the  heir 
will  succeed,  and  is  called  a  special  occupant. 

2  Sharswood,  Blackst.  Comm.  259.  In  the 
United  States  the  statute  provisions  of  the 
different  states  vary  considerably  upon  this 
subject.  In  New  York  and  New  Jersey, 
special  occupancy  is  abolished.  Yirginia, 
and  probably  Maryland,  follow  the  English 
statutes.  In  Massachusetts  and  other  states, 
where  the  real  and  personal  estates  of  in- 
testates are  distributed  in  the  same  way  and 
manner,  the  question  does  not  seem  to  be 
material.    4  Kent,  Comm.  27. 

SPECIAL     PARTNERSHIP.  See 

Partnership. 

SPECIAL    PLEA    IN    BAR.  One 

which  advances  new  matter.  It  differs  from 
the  general  in  this,  that  the  latter  denies 
some  material  allegation,  but  never  advances 
new  matter.    Gould,  Plead,  c.  2,  |  38. 

SPECIAL  PLEADER.  In  English 
Practice.  A  lawyer  whose  professional  oc- 
cupation is  to  give  verbal  or  written  opinions 
upon  statements  submitted  to  him,  either  in 
writing  or  verbally,  and  to  draw  pleadings, 
civil  or  criminal,  and  such  practical  proceed- 
ings as  may  be  out  of  the  general  course.  2 
Chitty,  Pract.  42. 

SPECIAL  PLEADING.  The  science 
of  pleading. 

The  allegation  of  special  or  new  matter 
to  avoid  the  effect  of  the  previous  allegations 
of  the  opposite  party,  as  distinguished  from 
a  direct  denial  of  matter  previously  alleged 
on  the  opposite  side.  Gould,  Plead,  c.  1,  g  18  ; 

3  Wheat.  246;  Comyns,  Dig.  Pleader  (E  15). 

SPECIAL  PROPERTY.  That  property 
in  a  thing  which  gives  a  qualified  or  limited 
right.    See  Property. 


SPECIAL  REQUEST.  A  request  act 
ually  made,  at  a  particular  time  and  place: 
this  term  is  used  in  contradistinction  to  a 
general  request,  which  need  not  state  the 
time  when  nor  place  where  made.  3  Bouvier, 
Inst.  n.  2843. 

SPECIAL  RULE.  A  rule  or  order  of 
court  made  in  a  particular  case,  for  a  particu- 
lar purpose:  it  is  distinguished  from  a  genC' 
ral  rule,  which  applies  to  a  class  of  cases.  It 
differs  also  from  a  common  rule,  or  rule  of 
course. 

SPECIAL   TRAVERSE.      See  Tra- 

verse. 

SPECIAL  TRUST.  A  special  trust  in 
one  where  a  trustee  is  interposed  for  the  ex- 
ecution of  some  purpose  particularly  pointed 
out,  and  is  not,  as  in  the  case  of  a  simple 
trust,  a  mere  passive  depositary  of  the  estate, 
but  is  required  to  exert  himself  actively  in 
the  execution  of  the  settler's  intention:  as, 
where  a  conveyance  is  made  to  trustees  upon 
trust  to  reconvey,  or  to  sell  for  the  payment 
of  debts.  2  Bouvier,  Inst.  n.  1896.  See 
Trust. 

SPECIAL  VERDICT.    In  Practice. 

A  special  verdict  is  one  by  which  the  facts 
of  the  case  are  put  on  the  record,  and  the 
law  is  submitted  to  the  judges.  SeeYERDicx; 
Bacon,  Abr.  Verdict  (D). 

SPECIALTY.  A  writing  sealed  and 
delivered,  containing  some  agreement.  2 
Serg.  &  R.  Penn.  503;  Willes,  189;  1  P. 
Will.  Ch.  130.  A  writing  sealed  and  de- 
livered, which  is  given  as  a  security  for  the 
payment  of  a  debt,  in  which  such  debt  is 
particularly  specified.  Bacon,  Abr.  Obliga- 
tion (A). 

Although  in  the  body  of  the  writing  it  is 
not  said  that  the  parties  have  set  their  hands 
and  seals,  yet  if  the  instrument  be  really 
sealed  it  is  a  specialty,  and  if  it  be  not 
sealed  it  is  not  a  specialty,  although  the 
parties  in  the  body  of  the  writing  make 
mention  of  a  seal.  2  Serg.  &  R.  Penn.  504; 
2  Coke,  5  a ;  Perkins,  I  129.  See  Bond  ; 
Debt;  Obligation. 

SPECIE.  Metallic  money  issued  by 
public  authority. 

This  term  is  used  in  contradistinction  to  pafer 
money,  which  in  some  countries  is  emitted  by  the 
government,  and  is  a  mere  engagement  which  re 
presents  specie.  Bank-paper  in  the  United  States 
is  also  called  paper  money  Specie  is  the  only  con- 
stitutional money  in  this  country.  See  4  T.  B. 
Monr.  483. 

SPECIES  FACTI  (Lat.).    The  particu- 

lar  kind  of  act.    Ainsworth,  Diet. 

SPECIFIC  LEGACY.  A  bequest  of  a 
particular  thing. 

It  follows  that  a  specific  legacy  may  be  of 
animals  or  inanimate  things,  provided  they 
are  specified  and  separated  from  all  other 
things:  a  specific  legacy  may,  therefore,  be  of 
money  in  a  bag,  or  of  money  marked  and  sr 
described:  as,  I  give  two  eagles  to  A  B,  on 
which  are  engraved  the  initials  of  my  name, 
A  specific  legacy  may  also  be  given  out  of  to 


SPECIFIC  PERFORMANCE 


5^38' 


SPECIFIC  PERFORMANCE 


feneral  fund.  Touchstone,  433  ;  Ambl.  310; 
Ves.  Ch.  5G5;  3  Ves.  &  B.  Ch.  Ir.  5.  If 
the  specific  article  given  be  not  found  among 
the  assets  of  the  testator,  the  legatee  loses 
his  legacy;  but,  on  the  other  hand,  if  there 
be  a  deficiency  of  assets,  the  specific  legacy 
will  not  be  liable  to  abate  with  the  general 
legacies.  1  Vern.  Ch.  31;  1  P.  Will.  422; 
3  trf.  3G5;  3  Brown,  Ch.  160.  See  1  Roper, 
Leg.  150 ;  1  Belt,  Suppl.  Ves.  Ch.  209,  231 ; 
2id.  112;  Legacy;  Legatee. 

SPECIFIC  PERFORMANCE.  The 
actual  accomplishment  of  a  contract  by  the 
party  bound  to  fulfil  it. 

S.  Many  contracts  are  entered  into  by 
parties  to  fulfil  certain  things,  and  then  the 
contracting  parties  neglect  or  refuse  to  fulfil 
their  engagements.  In  such  cases  the  party 
grieved  has  generally  a  remedy  at  law,  and 
ne  may  recover  damages  for  the  breach  of 
the  contract ;  but  in  many  cases  the  re- 
covery of  damages  is  an  incompetent  remedy, 
and  the  party  seeks  to  recover  a  specific  per- 
formanr-ij  of  the  agreement. 

9,  It  is  a  general  rule  that  courts  of  equity 
will  entertain  jurisdiction  for  a  specific  per- 
formance of  agreements,  whenever  courts  of 
law  can  give  but  an  inadequate  remedy  ;  and 
it  is  immaterial  whether  the  subject  relate  to 
rieal  or  personal  estate.  1  Maddock,  Ch.  Pr. 
295;  2  Story,  Eq.  §  717;  1  Sim.  &  S.  Ch. 
607  ;  1  P.  Will.  Ch.  570;  I  Schoales  &  L.  Ir. 
Ch.  553  ;  1  Vern.  Ch.  159.  But  the  rule  is 
confined  to  cases  where  courts  of  law  cannot 
give  an  adequate  remedy,  1  Grant,  Cas.  Penn. 
83;  18  Ga.  473;  2  Story,  Eq.  Jur.  §  718; 
and  a  decree  is  to  be  granted  or  refused  in 
the  discretion  of  the  court.  38  N.  II.  400 ;  2 
Iowa,  126;  5  id.  525;  9  Ohio  St.  511;  8 
Wise.  392  ;  1  Grant,  Cas.  Penn.  83  ;  5  Ilarr. 
Bel.  74 ;  1  Ilempst.  Ark.  245 ;  2  Jones,  Eq. 
No.  C.  207  ;  6  Ind.  259. 

4.  As  the  doctrine  of  a  specific  perform- 
ance in  equity  arises  from  the  occasional  in- 
adequacy of  the  remedy  at  law  upon  a  vio- 
lated contract,  it  follows  that  the  contract 
must  be  such  a  one  as  is  binding  at  law,  33 
Ala.  N.  s.  449 ;  and  it  must  be  executory,  cer- 
tain in  its  terms,  and  fair  in  all  its  parts.  It 
must  also  be  founded  upon  a  valuable  con- 
sideration, and  its  performance  in  specie  must 
be  practicable  and  necessary  ;  and,  if  it  be 
one  of  the  contracts  which  is  embraced  in 
the  Statute  of  Frauds,  it  must  be  evidenced  in 
•writing.  2  Story,  Eq.  Jur.  f  751;  Adams, 
Eq.  77;  Busb.  Eq.  No.  C.  80 ;  1  Chitty, 
Gen.  Pract.  828.  Thejirst  requisite  is  that 
the  contract  must  be  founded  upon  a  valuable 
consideration,  19  Ark.  51,  either  in  the  way 
of  benefit  bestowed  or  of  disadvantage  sus- 
tained by  the  party  in  whose  favor  it  is 
sought  to  be  enforced,  1  Beasl.  Ch.  N.J. 
498;  and  this  consideration  must  be  proved 
even  though  the  contract  be  under  seal.  12 
Ind.  539;  14  La.  Ann.  GOG;  17  Tex.  397. 
The  consideration  must  be  strictly  a  valuable 
one,  and  not  one  merely  arising  from  a  moral 
duty  or  affection,  as  towards  a  wife  and  chil- 
dren ;  although  it  need  not  necessarily  be  an 


.adequate  one.    Adams,  Eq.  78.    See  6  Iowa, 
279  ;  6  Mich,  364. 

The  second  requisite  is  that  the  mutual  en- 
forcement of  the  contract  must  be  practicable ; 
for  if  this  cannot  be  judicially  secured  on 
both  sides,  it  ought  not  to  be  compelled 
against  either  party.  Among  the  cases 
which  the  court  deems  impracticable  is  that 
of  a  covenant  by  a  husband  to  convey  his 
wife's  land,  because  this  cannot  be  effectuated 
without  danger  of  infringing  upon  that  free- 
dom of  will  which  the  policy  of  the  law- 
allows  the  wife  in  the  alienation  of  her  real 
estate.  2  Story,  Eq.  Jur.  ^  731-735.  See  6 
Wise.  127;  9  Md.  480. 

5.  The  third  requisite  is  that  the  enforce- 
ment in  specie  must  be  necessary;  that  is,  it 
must  be  really  important  to  the  plaintiff,  and 
not  oppressive  to  the  defendant.     1  Beasl. 
Ch.  N.  J.  497.    We  have  seen,  for  instance, 
that  mere  inadequacy  of  consideration  is  not 
necessarily  a  bar  to  a  specific  performance 
of  a  contract ;  but  if  it  be  so  great  as  to  in- 
duce the  suspicion  of  fraud  or  imposition,  the 
court  of  equity  will  refuse  its  aid  to  the 
party  seeking  to  enforce  it,  and  leave  him  to 
his  remedy  at  law.    2  Jones,  Eq.  No.  C.  267. 
This  is  upon  the  ground  that  the  specific  en- 
forcement of  the  contract  would  be  oppress- 
ive to  the  defendant.    The  court  wnll  equally 
withhold  its  aid  where  such  enforcement  is 
not  really  important  to  the  plaintiff,  as  it 
will  not  be  in  any  case  where  the  damages 
which  he  may  recover  at  law^  will  answer  his 
purpose  as  well  as  the  possession  of  the  thing 
which  was  contracted  to  be  conveyed  to  him. 
Adams,  Eq.  83  et  seq.    As  a  general  rule,  a 
contract  to  convey  real  estate  will  be  deemed 
necessary,  and  therefore  will  be  specifically  , 
enforced  ;  while  one  for  the  transfer  of  per- 
sonal chattels  will  be  denied  any  relief  in  . 
equity  unless  the  chattel  have  some  peculiar'  ' 
value  to  the  person  who  seeks  to  obtain  it. 
In  most,  if  not  all,  slave  states,  a  contract!  ! 
for  the  purchase  of  slaves  will  be  enforced  i 
specifically  in  equity  upon  the  latter  ground.-  \ 
3  Murph.  No.  C.  74;  7  Ired.  Eq.  No.  C.  190;  l 
1  McMull.  Eq.  So.  C.  256;  3  Munf.  Va.  559;  ' 
9  Miss.  231.  ^  .  I 

When  the  Statute  of  Frauds  requires  that  a  j 
contract  shall  be  evidenced  in  writing,  that 
wall  be  a  fourth  requisite  to  the  specific  exe-' 
cution  of  it.  In  such  case  the  contract  must! 
be  in  writing  and  certain  in  its  terms;  but 
it  will  not  matter  in  what  form  the  instrument 
may  be,  for  it  will  be  enforced  even  if  it  ap- 
pear only  in  the  consideration  of  a  bond  se- 
cured by  a  penalty.  6  Gray,  Mass.  25  ;  2 
Story,  Eq.  Jur.  §  751. 

6.  In  applying  the  equity  of  specific  per- 
formance to  real  estate,  there  are  some  modi- 
fications of  legal  rules,  which  at  first  sight 
appear  inconsistent  with  them  and  repug- 
nant to  the  maxim  that  equity  follows  the 
law.  The  modifications  here  referred  to  are 
those  of  enforcing  parol  contracts  relating  to 
land,  on  the  ground  that  they  have  been  already 
performed  in  part;  of  aHowing  time  to  make 
out  a  title  beyond  the  day  which  ihe  C(mtraot^ 


SPECIFICATIO 


539 


SPELLING 


specifies  ;  and  of  allowing  a  conveyance  with 
compensation  for  defects.    Adams,  Eq.  85. 

7.  The  principle  upon  which  it  is  held 
that  part-performance  of  a  contract  will  in 
equity  take  a  case  out  of  the  operation  of  the 
Statute ot  Frauds,  is  that  it  would  be  a  fraud 
upon  the  opposite  party  if  the  agreement 
were  not  carried  into  complete  execution.  1 1 
Cal.  28 ;  30  Barb.  N.  Y.  0:53  ;  24  Ga.  402  ; 
28  310.  134;  40  iMe.  94.  What  will  be  a 
sufficient  part-perf  irmance  must  depend  on 
circumstances.  The  taking  possession  of  the 
land  and  making  improvements  thereon  will 
answer.  10  Cal.  156:  8  Mich.  4G3  ;  6  Iowa, 
279;  30  Vt.  516;  5  R.  L  149;  33  N.  II.  32; 
4  AVisc.  79;  though  the  payment  of  a  part 
or  even  the  whole  of  the  purchase-money 
will  not.  14  Tex.  373  ;  22  111.  643  ;  4  Kent, 
Comm.  451.  See  8  Wise.  249  ;  1  Dev.  Eq. 
No.  C.  180,  341,  398.  If  the  purchaser  have 
entered  and  made  improvements  upon  the 
land,  and  the  vendor  protect  himself  from  a 
specific  performance  by  taking  advantage  of 
the  statute,  the  plaintiff  shall  be  entitled  to  a 
decree  for  the  value  of  his  improvements.  14 
Tex.  331 ;  1  Dev.  &  B.  Eq.  No.  C.  9  ;  1  Jones, 
Eq.  No.  C.  302,  339. 

The  doctrine  of  allowing  time  to  make  out 
a  title  beyond  the  day  M^hich  the  contract 
specifies,  and  which  is  embodied  in  the  maxim 
that  time  is  not  of  the  essence  of  a  contract 
in  equity,  has  no  doubt  been  generally  adopted 
in  the  United  States.  It  certainly  has  in 
North  Carolina.  1  Dev.  &  B.  Eq.  No.  C. 
237 ;  3  Jones,  Eq.  No.  C.  84,  240.  But  to  en- 
title the  purchaser  to  a  specific  performance 
he  must  show  good  faith  and  a  reasonable 
diligence.  4  Ired.  Eq.  No.  C.  386  ;  3  Jones, 
Eq.  No.  C.  321. 

8.  The  third  equity,  to  wit,  that  of  al- 
lowing a  conveyance  with  compensation  for 
defects,  applies  where  a  contract  has  been 
inade  for  the  sale  of  an  estate,  which  cannot 
be  literally  performed  in  ioto,  either  by  rea- 
son of  an  unexpected  failure  in  the  title  to 

?art  of  the  estate,  34  Ala.  n.  s.  633  ;  1  Head, 
'enn.  251;  6  Wise.  127,  of  inaccuracy  in 
the  terms  of  the  description,  or  of  diminu- 
tion in  value  by  a  liability  to  a  charge  upon 
it.  In  any  such  case,  the  court  of  equity 
will  enforce  a  specific  performance,  allowing 
a  just  compensation  for  defects,  whenever 
it  can  do  so  consistently  with  the  principle 
of  doing  exact  justice  between  the  parties. 
Adams,  Eq  89  et  seq.  This  doctrine  has 
also  been  adopted  in  the  United  States.  See 
2  Story,  Eq.  Jur.  794-800;  1  Ired.  Eq.  No.  C. 
299.  See  20  N.  Y.  412  ;  35  Penn.  St.  381 ;  1 
Head,  Tenn.  251 ;  2  id.  221 ;  8  Rich.  Eq.  So. 
C.  241. 

SPECIFICATIO  (Lat.).  In  Civil  Law. 

The  process  by  which,  from  material  either 
of  one  kind  or  different  kinds,  either  belong- 
ing to  the  person  using  them  or  to  another,  a 
new  form  or  thing  is  created  :  as,  if  from  gold 
Dr  gold  and  silver  a  cup  be  made,  or  from 
grapes  wine.  Calvinus,  Lex.  Whether  the 
property  in  the  new  article  was  in  the  owner 
of  the  materials  or  in  him  who  effected  the 


change  was  a  matter  of  contest  between  the 
two  great  sects  of  Roman  lawvers.  Stair,- 
Inst.  p.  204,  I  41 ;  Mm-keldey,  Civ.  Law,  ^  241. 

SPECIFICATION.  A  particular  and 
detailed  account  of  a  thing. 

For  example,  in  order  to  obtain  a  pntc  nt  for  an 
invention,  it  i.s  necessary  to  file  a  specification  or 
an  instrument  of  writing,  whicli  must  \ny  open  and 
disclose  to  the  public  every  part  of  the  process  by 
whicli  the  invention  can  be  made  uselul.  If  the 
specification  does  not  contain  the  whole  truth  rela- 
tive to  the  discovery,  or  contains  more  ihan  is 
requisite  to  produce  the  desired  ellect,  and  the 
concealment  or  addition  was  made  for  the  purpose 
of  deception,  the  patent  would  be  void  ;  for  if  the 
specification  were  insufficient  on  account  of  its 
want  of  clearness,  exactitude,  or  good  faith,  it 
would  be  a  fraud  on  society  that  the  patentee 
should  obtain  a  monopoly  without  giving  up  his 
invention.  2  Kent,  Comm.;}00;  1  Bell,  Comm.  pt. 
2,  c.  3,  s.  1,  p.  112;  Perpigna,  Pat.  67;  llenouard, 
Des  Brevets  d'Inv.  252.    See  Patent. 

In  Military  Law.  The  clear  and  parti' 
cular  description  of  the  charges  preferred 
against  a  person  accused  of  a  military  of-- 
fence.    Tytler,  Courts-xAIart.  109. 

SPECIMEN.  A  sample ;  a  part  of  some- 
thing by  which  the  other  may  be  known. 

The  act  of  congress  of  July  4,  18:^6,  section  6, 
requires  the  inventor  or  discoverer  of  an  inven- 
tion or  discovery  to  accompany  his  ])efition  and 
specification  for  a  patent  with  specimens  of  in- 
gredients, and  of  the  composition  of  matter,  suf- 
ficient in  quantity  for  the  purpose  of  experiment, 
where  the  invention  or  discovery  is  of  the  composi- 
tion of  matter. 

SPECULATION.  The  hope  or  desire 
of  making  a  profit  by  the  pure-hase  and  re-, 
sale  of  a  thing.  Pardessus,  Droit  Com.  n.  12., 
The  profit  so  made  :  as,  he  made  a  good 
speculation. 

SPEECH.    A  formal  discourse  in  public. 

The  liberty  of  speech  is  guaranteed  to  mem- 
bers of  the  legislature,  in  debate,  and  to  coun- 
sel in  court. 

The  reduction  of  a  speech  to  writing  and 
its  publication  is  a  libel  if  the  matter  con- 
tained in  it  is  libellous  ;  and  the  repetition  of 
it  upon  occasions  not  warranted  by  law,  when 
the  matter  is  slanderous,  will  be  slander; 
and  the  character  of  the  speaker  will  be  no 
protection  to  him  from  an  action.  1  Maule 
&  S.  273  ;  1  Esp.  226 ;  Bouvier,  Inst.  Index. 
See  Debate  ;  Liberty  of  Speech. 

SPELLING.  The  art  of  putting  the 
proper  letters  in  words  in  their  proper  order. 

It  is  a  rule  that  bad  spelling  will  not  void 
a  contract  when  it  appears  with  certainty 
what  is  meant:  for  example,  where  a  man 
agreed  to  pay  threty  pounds  he  was  held  bound 
to  pay  thirty  pounds  ;  and  seutene  was  holdeu 
to  be  seventeen.  Croke  Jac.  607;  10  Coke, 
133  a;  2  Rolle,  Abr.  147.  Even  in  an  in- 
dictment undertood  has  been  holden  as  under- 
stood.   1  Chitty,  Crim.  Law. 

A  misspelling  of  a  name  in  a  declaration 
will  not  be  sufficient  to  defeat  the  plaintiff; 
on  the  ground  of  variance  between  the  writing 
produced  and  the  declaration,  if  such  nam^ 
be  idem  sonans:  as,  Kay  for  Key,  16  East;; 


SPENDTHRIFT 


540 


SPRING-BRANCH 


110;  2  Stark.  29  ;  Segrave  f^or  Seag rave.  2 
Strange,  S89.    See  Idem  Soxans. 

SPENDTHRIFT.  A  person  who  by 
excessive  drinking,  gaming,  idleness,  or  de- 
bauchery of  any  kind,  shall  so  spend,  waste, 
or  lessen  his  estate  as  to  expose  himself  or 
his  ftimily  to  want  or  suflering,  or  expose  the 
town  to  charge  or  expense  for  the  support  of 
himself  or  family.    Vt.  Rev.  Stat.  c.  05,  ^  9. 

SPERATE  (Lat.  spero,  to  hope).  That 
of  which  there  is  hope. 

In  the  accounts  of  an  executor  and  the 
inventory  of  the  personal  assets,  he  should 
distinguish  between  those  which  are  sperate 
and  those  which  are  desperate :  he  will  be 
prima  facie  responsible  for  the  former  and 
discharged  for  the  latter.  1  Chitty,  Pract. 
520 ;  2  Williams,  Exec.  044 ;  Toller,  Exec. 
248.    See  Desperate. 

SPES  RECUPERANDI  (Lat.  the  hope 
of  recovery).  A  term  applied  to  cases  of 
capture  of  an  enemy's  property  as  a  booty 
or  prize,  while  it  remains  in  a  situation  in 
which  it  is  liable  to  be  recaptured.  As 
between  the  belligerent  parties,  the  title  to 
the  property  taken  as  a  prize  passes  the 
moment  there  is  no  longer  any  h<)p6  of  re- 
covery. 2  Burr.  083.  See  Infra  Pr^sidia  ; 
Jus  PosTLiMiNii;  Booty;  Prize. 

SPINSTER.  An  addition  given,  in  legal 
writings,  to  a  woman  who  never  was  married. 
Lovelace,  Wills,  209. 

SPLITTING  A  CAUSE  OF  ACTION. 

The  bringing  an  action  for  only  a  part  of  the 
cause  of  action.  This  is  not  permitted  either 
at  law  or  in  equity.   4  Bouvier,  Inst.  n.  4107. 

SPOLIATION.  In  English  Ecclesi- 
astical Law.  The  name  of  a  suit  sued  out 
in  the  spiritual  court  to  recover  for  the  fruits 
of  the  church  or  for  the  church  itself.  Fitz- 
herbert,  Nat.  Brev.  85. 

A  waste  of  church  property  by  an  eccle- 
siastical person.  3  Sharswood,  Blackst.  Comm. 
90. 

In  Torts.  Destruction  of  a  thing  by  the 
act  of  a  stranger :  as,  the  erasure  or  altera- 
tion of  a  writing  by  the  act  of  a  stranger  is 
called  spoliation.  This  has  not  the  effect  to 
destroy  its  character  or  legal  effect.  1  Green- 
leaf,  Ev.  §  500. 

In  Admiralty  Law.  By  spoliation  is  also 
understood  the  total  destruction  of  a  thing : 
as,  the  spoliation  of  papers  by  the  captured 
party  is  generally  regarded  as  a  proof  of 
guilt ;  but  in  America  it  is  open  to  explana- 
tion, except  in  certain  cases  where  there  is  a 
vehement  presumption  of  bad  faith.  2  Wheat. 
227,  241 ;  1  Dods.  Adm.480,480.  See  Altera- 
tion. 

SPONSALIA,  STIPULATIO  SPON- 
SALITIA  (Lat.).  A  promise  lawfully  made 
V)etwecn  persons  capable  of  marrying  each 
other,  that  at  some  future  time  they  will 
marry.  See  Espousals  ;  Erskine,  Inst.  1.  0.  3. 

SPONSIONS.  In  International  Law. 
Agreements  or  engagements  made  by  certain 
public  officers,  as  generals  or  admirals,  in 


time  of  war,  either  without  authority  or  by 
exceeding  the  limits  of  authority  under  which 
they  purport  to  be  made. 

Before  these  conventions  can  have  any  bind- 
ing authority  on  the  state,  they  must  be  con- 
firmed by  express  or  tacit  ratification.  The 
former  is  given  in  positive  terms  and  in  the 
usual  forms;  the  latter  is  justly  implied  from 
the  fact  of  acting  under  the  agreement  as 
if  bound  by  it,  and  from  any  other  circum- 
stance from  which  an  assent  may  be  fairly 
presumed.  Wheaton,  Int.  Law,  pt.  3,  c.  2,  g 
3 ;  Grotius,  de  Jur.  Bel.  ac  Pac.  1.  2,  c.  15,  | 
10  ;  id.  1.  3,  c.  22,  II  1-3 ;  Vattel,  Law  of  Nat. 
b.  2,  c.  14,  II  209-212;  Wolff,  |  1150. 

SPONSOR.    In  Civil  Law.    He  who 

intervenes  for  another  voluntarily  and  with- 
out being  requested.  The  engagement  which 
he  enters  into  is  only  accessory  to  the  prin- 
cipal. See  Dig.  17.  \.  18  ;  Nov.  4.  1 ;  Code 
de  Comm.  art.  158,  159;  Code  Nap.  1236; 
Wolff,  Inst.  I  1550. 

SPRING.    A  fountain. 

2.  The  owner  of  the  soil  has  the  exclusive 
right  to  use  a  spring  arising  on  his  ^-ounds. 
When  another  has  an  easement  or  right  to 
draw  water  from  such  a  spring,  acquired  by 
grant  or  prescription,  if  the  spring  fails  the 
easement  ceases,  but  if  it  returns  the  right 
revives. 

The  owner  of  land  on  which  there  is  a 
natural  spring  has  a  right  to  use  it  for  do-  ; 
mestic  and  culinary  purposes  and  for  water-  > 
ing  his  cattle,  and  he  may  make  an  aque-  • 
duct  to  another  part  of  his  land  and  use  all  ' 
the  water  required  to  keep  the  aqueduct  in 
order  or  to  keep  the  water  pure.    15  Conn.  ' 
300.     He  may  also  use  it  for  irrigation,  pro-  * 
vided  the  volume  be  not  materially  decreased.  ■ 
Angell,  Wat.-C.  34.    See  1  Root,  Conn.  535  ; 
9  Conn.  291;  2  Watts,  Penn.  327;  2  Hill,  '! 
So.  C.  034 ;  Coxe,  N.  J.  400 ;  2  Dev.  &  B.  : 
No.  C.  50  ;  8  Mass.  106  ;  13  id.  420  ;  3  Pick.  ; 
Mass.  209  ;  8  id.  136  ;  8  Me.  253.  • 

3.  The  owner  of  the  spring  cannot  law-  j 
fully  turn  the  current  or  give  it  a  new  direc-  | 
tion.   He  is  bound  to  let  it  enter  the  inferior 
estate  on  the  same  level  it  has  been  ac-  < 
customed  to,  and  at  the  same  place,  for  every  ■ 
man  is  entitled  to  a  stream  of  water  flowing  ' 
through  his  land  without  diminution  or  altera- 
tion.   6  East,  200;   2  Conn.  584.    See  3 
Rawle,  Penn.  84;  12  Wend.  N.  Y.  330;  10 
Conn.  213  ;  14  Vt.  239. 

The  owner  of  the  superior  inheritance,  or 
of  the  land  on  which  there  is  a  spring,  has 
no  right  to  deprive  the  owner  of  the  estate 
below  him,  1  Yeates,  Penn.  574 ;  5  Pick. 
Mass.  175;  3  Ilarr.  &  J.  Md.  231;  12  Vt. 
178  ;  13  Conn.  303  ;  4  111.  492  ;  nor  can  lie 
detain  the  water  unreasonably.  17  Johns, 
N.  Y.  300  ;  2  Barnew.  &  C.  910.  See  1  Dall. 
Penn.  211;  3  Rawle,  Penn.  250;  13  N.  H. 
300;  Pool;  Stagnum  ;  Back-Water;  Irriga- 
tion; Mill;  Rain-Wate^i;  Water-Course. 

SPRING-BRANCH.  A  l)ranch  of  a 
str(?am  flowing  from  a  spring  12  Gratt.  Va- 
190.  \jk 


SPRINGING  USE 


541 


STANDARD 


SPRINGING  USE.  A  use  limited  to 
arise  on  a  future  event  wliere  no  preceding 
use  is  limited,  and  which  does  not  take  effect 
in  derogation  of  any  other  interest  than  that 
which  results  to  the  grantor  or  remains  in 
him  in  the  mean  time.  Gilbert,  Uses,  Sug- 
den  ed.  153,  n. ;  2  Crabb,  Real  Prop.  498. 

A  future  use,  either  vested  or  contingent, 
limited  to  arise  without  any  preceding  limita- 
tion.   Cornish,  Uses,  91. 

It  differs  from  a  remainder  in  not  requiring  any 
other  particular  estate  to  sustain  it  than  the  use 
resulting  to  the  one  who  creates  it,  intermediate 
between  its  creation  and  the  subsequent  taking 
eflfect  of  the  springing  use.  Dy.  274;  Pollexf. 
65;  1  Ed.  Ch.  34;  4  Drur.  &  Warr.  Ch.  27;  1  Mod. 
238;  1  Me.  271.  It  differs  from  an  executory 
devise  in  that  a  devise  is  created  by  will,  a  use  by 
deed.  Fearne,  Cont.  Rem.  385,  Butler's  note ; 
Wilson,  Uses.  It  differs  from  a  shifting  use,  though 
often  confounded  therewith.  See,  generally,  2 
Washburn,  Real  Prop.  281. 

SPUIiZIIj  [spoliatio).   In  Scotch  Law. 

The  taking  away  movables  without  the  con- 
sent of  the  owner  or  order  of  law.  Stair, 
Inst.  96,  §  16 ;  Bell,  Diet. 

SPY.  One  who  goes  into  a  place  for  the 
purpose  of  ascertaining  the  best  way  of  doing 
an  injury  there. 

The  term  is  mostly  applied  to  an  enemy 
who  comes  into  the  camp  for  the  purpose  of 
ascertaining  its  situation  in  order  to  make  an 
attack  upon  it.  The  punishment  for  this 
crime  is  death.  See  Articles  of  War  ;  Vattel, 
Droit  des  Gens,  liv.  3,  I  179 ;  Halleck,  Int. 
Law. 

SQUATTER.  One  who  settles  on  the 
lands  of  others  without  any  legal  authority : 
this  term  is  applied  particularly  to  persons 
who  settle  on  the  public  land.  3  Mart.  La. 
N.  s.  293. 

STAB.  To  make  a  wound  with  a  pointed 
instrument.  A  stab  differs  from  a  cut  or  a 
wound.  Russ.  &  R.  Cr.  Gas.  356;  Russell, 
Crimes,  597  ;  Bacon,  Abr.  Maihem  (B). 

STAGNUM  (Lat.).  A  pool.  It  is  said  to 
consist  of  land  and  water ;  and  therefore  by 
the  name  of  stagmnn  the  water  and  the  land 
may  be  passed.    Coke,  Litt.  5. 

STAKEHOLDER.  A  third  person 
chosen  by  two  or  more  persons  to  keep  in 
deposit  property  the  right  or  possession  of 
which  is  contested  between  them,  and  to  be 
delivered  to  the  one  who  shall  establish  his 
right  to  it.  Thus,  each  of  them  is  considered 
as  depositing  the  whole  thing.  This  dis- 
tinguishes this  contract  from  that  which 
takes  place  when  two  or  more  tenants  in 
common  deposit  a  thing  with  a  bailee.  Do- 
mat,  Lois  Civ.  liv.  1,  t.  7,  s.  4;  1  Vern.  Ch. 
44,  n.  1. 

A  person  having  in  his  hands  money  or 
other  property  claimed  by  several  others  is 
considered  in  equity  as  a  stakeholder.  1 
Tern.  Ch.  144. 

The  duties  of  a  stakeholder  are  to  deliver 
the  thing  holden  by  him  to  the  person  en- 
titled to  it  on  demand.  It  is  frequently 
questionable  who  is  entitled  to  it.    In  case 


of  an  unlawful  wager,  although  he  may  be 
justified fordeliveriiig  tiiethingto  thewinner, 
by  the  express  or  implied  consent  of  the 
loser,  8  Johns.  N.  Y.  147,  yet  if  before  the 
event  has  happened  he  has  been  required  by 
either  party  to  give  up  the  thing  deposited 
with  him  by  such  party,  he  is  Vjound  so  to 
deliver  it,  3  Taunt.  377  ;  4  id.  492 ;  or  if, 
after  the  event  has  happened,  the  losing 
party  give  notice  to  the  stakeholder  not  to 
pay  the  winner,  a  payment  made  to  him  after- 
wards will  be  made  in  his  own  wrong,  and 
the  party  who  deposited  the  money  or  thing 
may  recover  it  from  the  stakeholder.  16 
Serg.  &  R.  Penn.  147  ;  7  Term,  536 ;  8  id. 
575;  4  Taunt.  474;  2  Marsh.  542.  See  3 
Penn.  468 ;  4  Johns.  N.  Y.  426 ;  5  Wend. 
N.  Y.  250;  1  Bail.  So.  C.  486,  503.  See 
Wagers. 

STALE  DEMAND.  A  claim  which  has 
been  for  a  long  time  undemanded :  as,  for 
example,  where  there  has  been  a  delay  of 
twelve  years  unexplained.    3  Mas.  C.  C.  161. 

STALLAGE  (Sax.  stal).  The  liberty  or 
right  of  pitching  or  erecting  stalls  in  fairs  or 
markets,  or  the  money  paid  for  the  same. 
Blount;  Wharton,  Diet.  2d  Lond.  ed.;  6  Q. 
B.  31. 

STALL ARIUS  (Lat.).  In  Saxon  Law. 

prcefectus  stahuli,  now  master  of  the  horse 
{Ss,x.  stalstabidum).  Blount.  Sometimes  one 
who  has  a  stall  in  a  fair  or  market.  Fleta. 
lib.  4,  c.  28,  p.  13. 

STAMP.  An  impression  made  by  order 
of  the  government,  on  paper,  which  must  be 
used  in  reducing  certain  contracts  to  writing, 
for  the  purpose  of  raising  a  revenue.  See 
Starkie,  Ev. ;  1  Phillipps,  Ev.  444. 

A  paper  bearing  an  impression  or  devic? 
authorized  by  law  and  adapted  for  attach- 
ment to  some  subject  of  duty  or  excise. 

The  term  in  American  law  is  used  often  in  dis- 
tinction  from  stamped  paper,  which  latter  meaning 
as  well  as  that  of  the  device  or  impression  itself,  is 
included  in  the  broader  signification  of  the  word. 

Stamps  or  stamped  paper  are  prepared  under  the 
direction  of  officers  of  the  government,  and  sold  at 
a  price  equal  to  the  duty  or  excise  to  be  collected. 
The  stamps  are  affixed  and  cancelled;  and  where 
stamped  paper  is  used,  one  use  obviously  prevents 
a  second  use.  The  Internal  Revenue  acts  of  the 
United  States  of  1862  and  subsequent  years  re- 
quire stamps  to  be  affixed  to  a  great  variety  of 
subjects,  under  severe  penalties  in  the  way  of  fines, 
and  also  under  penalty  of  invalidating  written 
instruments  and  rendering  them  incapable  of  being 
produced  in  evidence.  Neither  the  system  nor  the 
law  upon  the  subject,  however,  has  become  suffi- 
c  ently  established  to  warrant  a  full  examinatiuD  of 
the  matter  here. 

Maryland  has  enacted  a  stamp  la\^ 

STAND.  To  abide  by  a  thing ;  to  sub- 
mit to  a  decision  ;  to  comply  with  an  agreo- 
mcnt ;  to  have  validity  :  as,  the  judgment 
must  stand. 

STANDARD.  In  War.  An  ensign  or 
flag  used  in  war. 

In  Measures.  A  weight  or  measure  of 
certain  dimensions,  to  which  all  other  weights 
and  measures  must  correspond :  as,  a  stand- 


STANNARY  COURTS 


342 


STATE 


H.-d  bushel.  Also,  the  quality  of  certain 
metals,  to  which  all  others  of  the  same  kind 
ought  to  be  made  to  conform :  as,  standard 
gold,  standard  silver.    See  Dollar  ;  Eagle  ; 

MONEV. 

STANNARY  COURTS  [stannary,— 
from  Lixi.  islauiium,Qovnis\\  stean,  tin, — a  tin- 
mine). 

In  English  Law.  Courts  of  record,  in 
Devonshi)e  and  Cornwall,  England,  for  the 
administration  of  justice  among  the  tinners 
therein.  They  are  of  the  same  limited  and  ex- 
clusive nature  as  those  of  the  counties  pala- 
tine. 

2.  They  are  held  before  a  judge  called  the 
vice-warden,  in  virtue  of  a  privilege  granted 
to  the  workers  in  the  tin-mines,  or  .stannaries, 
there,  during  the  time  of  their  working  bond 
fide  in  the  stannaries,  to  sue  and  be  sued 
only  in  these  their  own  courts,  in  all  matters 
arising  within  the  stannaries,  except  pleas 
of  land,  life,  and  member,  that  they  may  not 
be  drawn  from  their  business,  which  is  highly 
profitable  to  the  public,  by  attending  their 
law-suits  in  other  courts. 

3.  No  proceedings  in  error  can  be  brought ; 
but  by  18  and  19  Vict.  c.  32,  s.  26,  from  all 
decrees  and  orders  of  the  vice-warden  on  the 
equity  side  of  his  court,  and  from  all  his 
judgments  on  the  common-law  side  thereof, 
an  appeal  is  given  to  the  lord- warden  (assist- 
ed by  two  or  more  assessors,  members  of  the 
judicial  committee  of  the  privy  council,  or 
judges  of  the  high  court  of  chancery,  or 
courts  of  common  law,  at  Westminster),  and 
from  the  lord-warden  a  final  appeal  to  the 
judicial  committee  of  the  privy  council.  3 
Stephen,  Comm.  448 ;  3  Blackstone,  Comm. 
7'J,  80. 

STAPLE.      In  International  Law. 

The  right  of  staple,  as  exercised  by  a  people 
up  )n  foreign  merchants,  is  defined  to  be  that 
they  may  not  allow  them  to  set  their  mer- 
chandises and  wares  to  sale  but  in  a  certain 
place. 

This  practice  is  not  in  use  in  the  United 
Slates.     1  Chitty,  Comm.  Law,  103  ;  Coke, 
4th  Inst.  238;  Malone,  Lex  Merc.  237;  Bacon, 
;  Abr.  Execution  (B  1).   See  Statute  Staple. 

STAR-CHAMBER.  See  Court  of 
Star-Ciiamher. 

STARE  DECISIS  (Lat.).  To  abide  by, 
or  adhere  to,  decided  cases.  Stare  decisis  et 
non  quieta  movere.  It  is  a  general  maxim  that 
when  a  point  has  been  settled  by  decision,  it 
forms  a  precedent  which  is  not  afterwards  to 
be  departed  from.  The  doctrine  of  stare  de- 
cisis is  not  always  to  be  relied  upon  ;  for  the 
courts-lind  it  necessary  to  overrule  cases  which 
have  been  decided  contrary  to  principle. 
Many  hundreds  of  such  overruled  cases  may 
be  found  in  the  American  and  English  re- 
ports. Sec  Greenleaf,  Overruled  Cases;  1 
Kent.  Comm.  477;  Livingston,  Syst.  of  Pen. 
Law,  104,  105;  Authorities;  Precedents. 

STARE  IN  JUDICIO  (Lat.).  To  ap- 
pear before  a  tribunal,  either  as  plaintiff  or 
defendant. 


STATE  (Lat.  stare,  to  place,  establish) 
In  Governmental  Law.  A  self-sufficient 
body  of  persons  united  together  in  one  com- 
munity for  the  defence  of  their  rights  and  to 
do  right  and  justice  to  foreigners.  In  this 
sense,  the  state  means  the  whole  people  united 
into  one  body  politic;  and  the  state,  and  the 
people  of  the  state,  are  equivalent  expressions. 
1  Pet.  Cond.  Rep.  37-39  ;  2  Ball.  Penn.  425 ; 
3  id.  93  ;  2  Wilson,  Lect.  120 ;  Dane,  Appx! 
I  50,  p.  63;  1  Story,  Const,  g  301.  The 
positive  or  actual  organization  of  the  legis- 
lative  or  judicial  powers:  thus,  the  actual 
government  of  the  state  is  designated  by  the 
name  of  the  state :  hence  the  expression,  the 
state  has  passed  such  a  law  or  prohibited 
such  an  act.  The  section  of  territory  occu- 
pied by  a  state:  as,  the  state  of  Pennsylvania. 

One  of  the  commonAvealths  which  form  the 
United  States  of  America. 

2.  The  constitution  of  the  United  States 
makes  the  following  provisions  in  relation  to 
the  states.  Art.  1,  s.  9,  §  5.  No  tax  or  duty 
shall  be  laid  on  articles  exported  from  any 
state.  ^  No  preference  shall  be  given  by  any 
regulation  of  commerce  or  revenue  to  the 
ports  of  one  state  over  those  of  another ;  nor 
shall  vessels  bound  to  or  from  one  state  be 
obliged  to  enter,  clear,  or  pav  duties  in 
another.  Art.  1,  s.  10,  ^  1.  No  state  shall 
enter  into  any  treaty,  alliance,  or  confedera- 
tion ;  grant  letters  of  marque  and  reprisal ; 
coin  money;  emit  bills  of  credit;  make  any 
thing  but  gold  and  silver  coin  a  tender  in  pay- 
ment of  debts  ;  pass  any  bill  of  attainder,  ex-  ' 
post-facto  law  or  law  impairing  the  obligation 
of  contracts;  or  grant  any  title  of  nobility. 
No  state  shall,  without  the  consent  of  con- 
gress, lay  any  imposts  or  duties  on  imports 
or  exports,  except  what  may  be  absolutely 
necessary  for  executing  its  inspection  laws; 
and  the  net  produce  of  all  duties  and  imposts 
laid  by  any  state  on  imports  or  exports  shall 
be  for  the  use  of  the  treasury  of  the  United  , 
States,  and  all  such  laws  shall  be  subject  to 
the  revision  and  control  of  congress.  No 
state  shall,  without  the  consent  of  congress, 
lay  any  duty  on  tonnage,  keep  troops  or  ships 
of  war  in  time  of  peace,  enter  into  any  agree-  ' 
ment  or  compact  with  another  state,  W  with 
a  foreign  power,  or  engage  in  war,  unless 
actually  invaded  or  in  such  imminent  danger 
as  will  not  admit  of  delay. 

3.  The  District  of  Columbia  and  the  terri- 
torial districts  of  the  United  States  are  not 
states  within  the  meaning  of  the  constitution 
and  of  the  judiciary  act,  so  as  to  enable  a 
cicizen  thereof  to  sue  a  citizen  of  one  of  the 
states  in  the  federal  courts.  2  Cranch,  I'lo  : 
I  Wheat.  91. 

The  several  states  composing  the  United 
States  are  sovereign  and  independent  in  all 
things  not  surrendered  to  the  national  govern- 
ment by  the  constitution,  and  are  considered, 
on  general  principles,  by  each  other  as  foreign 
states:  yet  their  mutual  relations  are  rather 
those  of  domestic  independence  than  of  for- 
eign alienation.  7  Cranch,  481;  3  Wheat 
324 ;  1  Greenleaf,  Ev.  H  489,  504. 


STATEMENT 


543 


STATUTE 


■  See,  generally,  Mr.  Madison's  report  in  the 
legislature  of  Virginia,  January,  1800;  1 
Story,  Const.  ^  208;  1  Kent,  Comm.  189, 
note  6;  Curtis, Const. ;  Sedgwick, Const. Law; 
Grotiuis,  b.  1,  c.  1,  8.  14;  id.  b.  3,  c.  3,  s.  2 ; 
Burlamaqui,  vol.  2,  pt.  1,  c.  4,  s.  9 ;  Vattel, 
b.  1,  c.  1  ;  1  Toullier,  n.  202,  note  1 ;  Cicero, 
de  Respub.  1.  1,  s.  25. 

In  Society.  That  quality  which  belongs 
to  a  person  in  society,  and  which  secures  to 
and  imposes  upon  him  different  rights  and 
duties  in  consequence  of  the  difference  of 
tha,t  quality. 

4.  Although  all  men  come  from  the  hands  of 
nature  upon  an  equality,  yet  there  are  among  them 
marked  differences.  The  distinctions  of  the  sexes, 
fathers  and  children,  age  and  youth,  etc.  come  from 
nature. 

The  civil  or  municipal  laws  of  each  people  have 
added  to  these  natural  qualities  distinctions  which 
are  purely  civil  and  arbitrary,  founded  on  the 
manners  of  the  people  or  in  the  will  of  the  legis- 
lature. Such  are  the  differences  which  these  laws 
have  establi.shed  between  citizens  and  aliens,  be- 
tween magistrates  and  subjects,  and  between  free- 
men and  slaves,  and  those  which  exist  in  some 
countries  between  nobles  and  plebeians,  which 
differences  are  either  unknown  or  contrary  to 
natural  law. 

Although  these  latter  distinctions  are  more  par- 
ticularly subject  to  the  civil  or  municipal  law, 
because  to  it  they  owe  their  origin,  it  nevenheless 
extends  its  authority  over  the  natural  qualities,  not 
to  destroy  or  to  weaken  them,  but  to  confirm  them 
and  to  render  them  more  inviolable  by  positive  rules 
and  by  certain  maxims.  This  union  of  the  civil  or 
municipal  and  natural  law  forms  among  men  a 
third  species  of  differences,  which  may  be  called 
mixed,  because  they  participate  of  both,  and  derive 
their  principles  from  nature  and  the  perfection  of 
the  law  :  for  example,  infancy,  or  the  privileges 
which  belong  to  it,  have  their  foundation  in  natural 
law  ;  but  the  age  and  the  term  of  these  prerogatives 
are  determined  by  the  civil  or  municipal  law. 

Three  sorts  of  different  qualities  which  form  the 
state  or  condition  of  men  may,  then,  be  distinguished: 
those  which  are  purely  natural,  those  purely  civil, 
and  those  which  are  composed  of  the  natural  and 
civil  or  municipal  law. 

See  3  Blackstone,  Comm.  396;  1  Toullier,  n.  170, 
.71 ;  Civil  State. 

In  Practice.  To  make  known  specifically ; 
to  explain  particularly :  as,  to  state  an  account 
or  to  show  the  different  items  in  an  account ; 
to  state  the  cause  of  action  in  a  declaration. 

STATEMENT.  See  Particular  State- 
ment. 

STATION.  In  Civil  Law.  A  place 
where  ships  may  ride  in  safety.  Dig.  49.  12. 
1.  13  ;  50.  15.  59. 

STATING-PART  OF  A  BILL.  See 
Bill. 

STATU  LIBERI  (Lat.).  In  Louisiana. 

Slaves  for  a  time,  who  have  acquired  the  right 
of  being  free  at  a  time  to  come,  or  on  a  con- 
dition which  is  not  fulfilled,  or  in  a  certain 
.event  which  has  not  happened,  but  who  in 
the  mean  time  remain  in  a  state  of  slavery. 
La.  Civ.  Code,  art.  37.  See  3  La.  1 76 ;  6  id.  57 1 ; 
4  Mart.  La.  102 ;  7  id.  351  ;  8  id.  219.  This  is 
substantially  the  definition  of  the  civil  law. 
Hist,  de  la  Jur.  1. 40 ;  Dig.  40. 7. 1 ;  Code,  7. 2. 13. 
;  STATUS  (Lat.).    The  condition  of  per- 


sons. It  also  means  estate,  because  it  signifies 
the  condition  or  circumstances  in  which  the 
owner  stands  with  regard  to  his  property.  2 
Bouvier,  Inst.  n.  1089. 

STATUTE.  A  law  established  y)y  the  act 
of  the  legislative  power.  An  act  of  tiie  legis- 
lature. The  written  will  of  tiie  legislature, 
solemnly  expressed  according  to  the  forms 
necessary  to  constitute  it  the  law  of  the  state. 

This  word  is  used  to  designate  the  written  law 
in  contradistinction  to  the  unwritten  law.  See 
Common  Law. 

Among  the  civilians,  the  term  statute  is  generally 
applied  to  laws  and  regulations  of  every  sort  ;  every 
provision  of  law  which  ordains,  permits,  or  pro- 
hibits any  thing  is  designated  a  statute,  without 
considering  from  what  source  it  arises.  Sometimes 
the  word  is  used  in  contradistinction  from  the  im- 
perial Roman  law,  which,  by  way  of  eminence, 
civilians  call  the  common  law. 

All  affirmative  statute  is  one  which  is  enact- 
ed in  affirmative  terms. 

Such  a  statute  does  not  necessarily  take  away 
the  common  law.  Coke,  2d  Inst.  200;  Lwarris, 
Stat.  474.  If,  for  example,  a  statute  without  nega- 
tive words  declares  that  when  certain  requisiteg 
shall  have  been  complied  with,  deeds  shall  have  a 
certain  effect  as  evidence,  this  does  not  prevent 
their  being  used  in  evidence,  though  the  requisites 
have  not  been  complied  with,  in  the  same  manner 
as  they  might  have  been  before  the  statute  was 
passed.  2  Caines,  N.  Y.  169.  Nor  docs  such  an 
affirmative  statute  repeal  a  precedent  statute  if  the 
two  can  both  be  given  effect.    Dwarris,  Stat.  474. 

A  declaratory  statute  is  one  which  is  passed 
in  order  to  put  an  end  to  a  doubt  as  to  what 
is  the  common  law  or  the  meaning  of  another 
statute,  and  which  declares  what  it  is  and 
ever  has  been. 

A  negative  statute  is  one  expressed  in  nega- 
tive terms,  and  so  controls  the  common  law 
that  it  has  no  force  in  opposition  to  the 
statute.    Bacon,  Abr.  Statute  (G). 

Penal  statutes  are  those  which  command 
or  prohibit  a  thing  under  a  certain  penalty. 
Espinasse,  Pen.  Act.  5  ;  Bacon,  Abr.  See, 
generally,  Bacon,  Abr. ;  Comyns,  Dig.  Par- 
liainent ;  Yiner,  Abr. ;  Dane,  Abr.  Index ; 
Chitty,  Pract. ;  1  Kent,  Comm.  447-459; 
Barrington,  Statutes;  Boscawen,  Pen.  Stat.; 
Espinasse,  Pen.  Act. ;  Dwarris,  Stat. ;  Sedg- 
wick, Const.  Law.  A  statute  affixing  a  pen- 
alty to  an  act,  though  it  does  not  in  words 
prohibit  it,  thereby  makes  it  illegal.  14 
Johns.  N.  Y.  273;  1  Binn.  Penn.  110;  37 
Eng.  L.  &  Eq.  475  ;  14  N.  H.  294 ;  4  Iowa, 
490;  7Ind.  77. 

A  perpetual  statute  is  one  for  the  continu- 
ance of  which  there  is  no  limited  time,  al- 
though it  be  not  expressly  declared  to  be  -:o. 

If  a  statute  which  did  not  itself  contain  any  limit- 
ation is  to  be  governed  by  another  which  is  tem- 
porary only,  the  former  will  also  be  temporary  and 
dependent  upon  the  existence  of  the  latter.  Bacon, 
Abr.  Statute  (D). 

Private  statutes  or  acts  are  those  of  which 
the  judges  will  not  take  notice  without  plead- 
ing ;  such  as  concern  only  a  particular  species 
or  person. 

Private  statutes  may  be  rendered  public  by  being 
so  declared  by  the  legislature.  Bacon,  Abr.  Statute 
(F);  1  Blackstone,  Comm.  85,  86;  Dwarris,  Statutes 


STATUTE 


544 


STATUTE 


629;  4  Coke,  76;  1  Term,  125;  Skinn.  350.  And 
see  Hale,  Hist.  Comm.  Law,  RunHington's  ed.  3;  1 
Kent,  Comm.  459.  Private  statutes  will  not  bind 
strangers;  though  they  should  not  contain  any- 
saving  of  their  rights.  A  general  saving  clause 
used  to  be  inserted  in  all  private  bills;  but  it  is 
settled  that,  even  if  such  saving  clause  be  omitted, 
the  act  will  bind  none  but  the  parties. 

Public  statutes  are  those  of  which  the  courts 
will  take  judicial  notice  without  pleading  or 
proof. 

They  are  either  general  or  local, — that  is,  have 
operation  throughout  the  state  at  large,  or  within 
a  particular  locality.  It  is  not  easy  to  say  what 
degree  of  limitation  will  render  an  act  local.  Thus, 
it  hah  been  held  that  a  public  act  relating  to  one 
county  only  is  not  local  within  the  meaning  of  a 
constitutional  provision  which  forbids  enactments 
of  local  bills  embracing  more  than  one  subject. 
5  N.  Y.  285 ;  2  Sandf.  N.  Y.  355 ;  1  Hilt.  N.  Y. 
483. 

A  remedial  statute  is  one  made  to  supply 
such  defects  and  abridge  such  superfluities  in 
the  common  law  as  may  have  been  discovered. 
1  Blackstone,  Comm.  86. 

These  remedial  statutes  are  themselves  divided 
into  enlarginy  statutes,  by  which  the  common  law 
is  made  more  comprehensive  and  extended  than  it 
was  before,  and  into  restraining  statutes,  by  which 
it  is  narrowed  down  to  that  which  is  just  and 
proper.  The  terra  remedial  statute  is  also  applied 
to  those  acts  which  give  the  party  injured  a  remedy  ; 
and  in  some  respects  such  statutes  are  penal. 
Espinasse.  Pen.  Act.  1. 

A  temporanj  statute  is  one  which  is  limited 
in  its  duration  at  the  time  of  its  enactment. 

It  continues  in  force  until  the  time  of  its  limit- 
ation has  expired,  unless  sooner  repealed.  A 
statute  which  by  reason  of  its  nature  has  only  a 
single  and  temporary  operation — e.g.  an  appro- 
priation bill — is  also  called  a  temporary  statute. 

The  most  ancient  English  statute  extant  is  Magna 
Charta,  Formerly  the  statutes  enacted  after  the 
beginning  of  the  reign  of  Edw.  III.  were  called 
Norn  Slatnta,  or  new  statutes,  to  distinguish  them 
from  the  ancient  statutes.  The  modern  English 
statutes  are  divided  into  Public  General  Acts, 
Local  and  Personal  Acts  declared  public,  Private 
Acts  printed,  and  Private  Acts  not  printed.  In 
parliamentary  practice  are  adopted  other  distinc- 
tions, resting  upon  dififerent  grounds. 

2.  By  the  civilians,  statutes  are  considered 
as  real,  personal,  or  mixed.  Mixed  statutes 
are  those  which  concern  at  once  both  persons 
and  property.  But  in  this  sense  almost  all 
statutes  are  mixed,  there  being  scarcely  any 
law  relative  to  persons  which  does  not  at  the 
same  time  relate  to  things.  Personal  statutes 
are  those  which  have  principally  for  their 
object  the  person,  and  treat  of  property  only 
Incidentally:  such  are  those  which  regard 
birth,  legitimacy,  freedom,  the  right  of  insti- 
tuting suits,  majority  as  to  age,  incapacity  to 
contract,  to  make  a  will,  to  plead  in  person, 
and  thy  like.  A  personal  statute  is  universal 
in  its  operation,  and  in  force  everywhere. 
Real  statutes  are  those  which  have  principally 
for  their  object  property,  and  which  do  not 
speak  of  perscms  except  in  relation  to  pro- 
perty, Story,  Confl.  of  L.  ^  13:  such  are  those 
which  concern  the  disposition  which  one  may 
make  of  his  property  either  alive  or  by  testa- 
ment.   A  real  statute,  unlike  a  personal  one, 


is  confined  in  its  operation  to  the  country  of 
its  origin. 

3.  It  is  a  general  rule  that  when  the  provi- 
sion of  a  statute  is  geneval,  every  thing  which  is 
necesvsary  to  make  such  provision  eftectual  is 
supplied  by  the  common  law,  Coke,  Litt.  235  ; 
Coke,  2d  Inst.  222  ;  Bacon,  Abr.  Statute  (B) ; 
and  when  a  power  is  given  by  statute,  every 
thing  necessary  for  making  it  eftectual  is  given 
by  implication :  quando  lex  aliquid  concedity 
concedere  videlur  et  id  per  quod  devenitur  ad 
aliud.  12  Coke,  130,  131 ;  Coke,  2d  Inst.  306 

As  to  the  doctrine  of  the  interpretation  of 
statutes,  see  Construction. 

As  to  the  mode  of  enacting  statutes  in  Eng 
land,  see  1  Blackstone,  Comm.  182.  Tl 
mode  in  the  United  States  is  regulated  by  tl 
constitution  of  the  Union  and  of  the  sever 
states  respectively.  The  advantage  of  having 
a  law  officer,  or  board  of  officers,  to  revise  bills 
and  amendments  of  bills  during  their  pro- 
gress through  the  legislature,  has  been  some- 
what discussed.  It  is  urged  that  legislators 
often  have  no  general  knowledge  of  law,  are 
ignorant  or  careless  of  the  extent  to  which  a 
proposed  law  may  aff'ect  previous  statutes  on 
the  same  or  collateral  subjects ;  amendments, 
too,  are  affixed  without  carefully  harmonizing 
them  with  the  bill  amended  ;  and  special 
provisions  are  resorted  to  when  a  more  general 
and  simple  remedy  should  be  applied.  Reports 
of  the  English  Statute  Law  Commissioners, 
March,  1856,  March,  1857.  Consult,  also, 
Street,  Council  of  Revision. 

4.  Much  interesting  discussion  has  arisen 
on  the  question  whether  a  statute  which  ap- 
pears to  be  contrary  to  the  laws  of  God  anj 
nature,  and  to  right  reason,  is  void.  Dwarris 
states  the  English  doctrine  to  be  that  an  act 
of  parliament  of  which  the  terms  are  explicit 
and  the  meaning  plain  cannot  be  questioned 
or  its  authority  controlled  in  any  court  of 
justice.  But  resort  has  been  had  in  such 
cases  to  the  cover  of  a  construction,  and  it 
has  been  contended  that  such  a  case  must  bo 
interpret'^ '  to  be  exempted  out  of  the  pro- 
visio  he  statute, — that  a  contrary  con 
struc  'Id  not  be  within  the  meaning  of 
the 

^6  law,  therefore,  was  to  be  pro- 
perly t  ^  not  to  apply  to  such  cases;  bu 
the  la  f  was  not  to  be  held  void 
Dwarri  482.  And  see  8  Coke,  116  ;  12 
Mod.  6^  Blackstone,  42,  91 ;  Bentham 
Fragme  )v. ;  1  Bay,  So.  C.  93  ;  Harp. 
So.  C.  It  suit,  also,  18  Wend.  N.  Y.  9 ; 
21  id.  56  11,  N.  Y.  323  ;  10  N.  Y.  374. 
393;  19  I  4  Barb.  N.  Y.  64. 

In  ^  ed  States,  a  statute  which 

contravene  ision  of  the  constitution  of 

the  state  b  legislature  it  was  enacted, 

or  of  the  cc  m  of  the  United  States,  is 

in  so  far  vt  »e  Constitutional  Law. 

The  presumj  wever,  is  that  every  state 

statute  the  ,nd  provision  of  which 

are  among  th  vledged  powers  of  legis- 

lation is  valid  istitutional ;  and  such 

presumption  ii  )e  overcome  unless  the 

contrary  is  cloi  onstrated.    6  Cranch, 

87  ;  1  Cow.  N.  3  Den.  N.  Y.  381 :  7 


STATUTE 


545  STAYING  PROCEEDINGS 


N.  Y.  109  ;  19  Barb.  N.  Y.  81.  Where  a  part 
oniy  of  a  statute  is  unconsti'tutional,  the  rest 
is  not  void  if  it  cau  stand  by  itself.  1  Gray, 
Mass.  1.  , 

6.  By  the  common  law,  statutes  took  effect 
by  relation  back  to  the  first  day  of  the  session 
at  which  they  were  enacted.  The  injustice 
which  this  rule  often  worked  led  to  the  statute 
of  33  Geo.  III.  c.  13,  which  declared  that,  except 
when  otherwise  provided,  statutes  should  take 
eflect  from  the  day  of  obtaining  the  royal 
assent.  This  rule,  however,  does  not  obviate 
the  hardship  of  sometimes  holding  men  re- 
sponsible under  a  law  before  its  promulgation. 
By  the  Code  Napoleon,  a  law  takes  effect  in 
each  department  of  the  empire  as  many  days 
after  its  promulgation  in  that  department  as 
there  are  distances  of  twenty  leagues  between 
the  seat  of  government  and  the  place  of  pro- 
mulgation. The  revised  statutes  of  several 
of  the  American  states  provide  that  every 
statute  shall  take  effect  twenty  days  from  the 
time  of  its  enactment,  except  when  otherwise 
provided.  As  to  retroactive  statutes,  see  Ex 
rosT  Facto. 

•y.  A  statute  is  not  to  be  deemed  repealed 
merely  by  the  enactment  of  another  statute 
on  the  same  subject.  There  must  be  a  posi- 
tive repugnancy  between  the  provisions  of 
the  new  law  and  the  old,  to  work  a  repeal  by 
implication  ;  and  even  then  the  old  law  is 
repealed  only  to  the  extent  of  such  repug- 
nancy. 16  Pet.  342.  This  rule  is  supported 
by  a  vast  variety  of  cases.  There  is,  how- 
ever, a  qualification  to  be  observed  in  the 
case  of  a  revised  law.  Where  the  new  statute 
is  in  effect  a  revision  of  the  old,  it  may  be 
treated  as  superseding  the  former,  though 
not  expressly  so  declared.  7  Mass.  140  ;  12 
id.  537,  545  ;  1  Pick.  Mass.  43,  45,  154 ;  9  id. 
97  ;  10  id.  39  :  3  Me.  22  ;  31  id.  34  ;  42  id. 
53  ;  16  Barb.  N.  Y.  15  ;  5  Eng.  L.  &  Eq.  588; 
37  N.  11.  295  ;  30  Vt.  344;  8  Tex.  62  ;  14  111. 
334 ;  6  B.  Monr.  Ky.  146.  But  compare  9 
Ind.  337  ;  10  id.  566.  A  mere  change  of 
phraseology  in  the  revision  does  not,  however, 
necessarily  imply  a  change  in  the  law.  21 
Wend.  N.  Y.  316;  2  Hill,  N.  Y.  380;  4 
Sandf.  N.  Y.  374;  7  Barb.  N.  Y.  191;  33 
N.  H.  246;  6  Tex.  34. 

Where  a  new  statute  expressly  repeals  the 
former  statute,  and  the  new  and  the  repeal 
of  the  old  are  to  take  effect  at  the  same  time, 
a  provision  in  the  old  statute  which  is  em- 
bodied in  the  new  is  deemed  to  have  conti- 
nued in  force  without  suspension.  3  Wise. 
667  ;  15  111.  595.  But  it  has  been  held  that 
\^here  the  new  law  does  not  go  into  effect 
until  a  time  subsequent  to  that  at  which  the 
re}>eal  takes  effect,  such  a  provision  is  to  be 
deemed  repealed  meantime.  12  La.  Ann. 
593.  But  see  1  Pick.  Mass.  33. 

H.  When  one  statute  is  repealed  by  another, 
the  unqualified  repeal  of  the  repealing  statute 
revives  the  original.  2  Mete.  Mass.  118;  21 
Pick.  Mass.  492;  1  Gray,  Mass.  163;  7  Watts 
&  S.  Penn.  203 ;  1  Ga.  32.  This  is  the  common- 
law  rule  ;  but  the  contrary  is  provided  by  stat- 
ute in  some  of  the  United  States. 

Vol.  II.— 35 


It  is  not  to  be  presumed  in  the  courts  of 
any  state  that  statutes  which  have  been  enact- 
ed in  that  state  have  also  been  enacted  in 
other  states.  The  courts  assume  that  the 
common  law  still  prevails,  unless  it  is  shown  to 
have  been  modified.  22  Barb.  N.  Y.  118;  23 
id.  498;  2  Du.  N.  Y.  419.  See  Foreign  Laws, 

Some  laws,  such  as  charters,  or  other  statute's 
granting  franchises,  if  accepted  or  acted  upon 
by  the  persons  concerned,  acquire  some  of 
the  qualities  of  a  contract  between  them  and 
the  state.  4  Wheat.  518;  6  Cranch,  87;  7 
id.  164;  9  id.  43,  292:  10  IIow.  190,  218, 

224,  sn. 

STATUTE  MERCHANT.  A  security 
entered  before  the  mayor  of  London,  or  some 
cliief  warden  of  a  city,  in  pursuance  of  13 
Ed.  I.  Stat.  3,  c.  1,  whereby  the  lands  of  the 
debtor  are  conveyed  to  the  creditor  till  out 
of  the  rents  and  profits  of  them  his  debt 
may  be  satisfied.  Cruise,  Dig.  t.  14,  s.  7;  2 
Blackstone,  Comm.  160. 

STATUTE  STAPLE.  The  statute  of 
the  staple,  27  Ed.  III.  stat.  2,  confined  the 
sale  of  all  commodities  to  be  exported  to  cer- 
tain towns  in  England,  called  estaple  or  sta2)le, 
where  foreigners  might  resort.  It  authorized 
a  security  for  money,  commonly  called  statute 
staple,  to  be  taken  by  traders  for  the  benefit 
of  commerce;  the  mayor  of  the  place  is  en- 
titled to  take  a  recognizance  of  a  debt  in 
proper  form,  which  has  the  effect  to  convey 
the  lands  of  the  debtor  to  the  creditor  till 
out  of  the  rents  and  profits  of  them  he  may 
be  satisfied.  2  Blackstone,  Comm.  160; 
Cruise,  Dig.  tit.  14,  s.  10;  2  Rolle,  Abr.  446; 
Bacon,  Abr.  Execution  (B  1);  Coke,  4th 
Inst.  238. 

STATUTI  (Lat.).     In  Roman  Law. 

Those  advocates  whose  names  were  inscribed 
in  the  registers  of  matriculation,  and  formed 
a  part  of  the  college  of  advocates.  The  num- 
ber of  advocates  of  this  class  was  limited. 
They  were  distinguished  from  the  supernu- 
meraries from  the  time  of  Constantino  to 
Justinian.    See  Calvinus,  Lex. 

STAY  OF  EXECUTION.  In  Prac- 
tice. A  term  during  which  no  execution 
can  issue  on  a  judgment. 

It  is  either  conventional,  when  the  parties 
agree  that  no  execution  shall  issue  for  a  cer- 
tain period,  or  it  is  granted  by  law,  usually 
on  condition  of  entering  bail  or  security  for 
the  money. 

An  execution  issued  before  the  expiration 
of  the  stay  is  irregular  and  will  be  set  aside; 
and  the  plaintiff  in  such  case  may  be  liable 
to  an  action  for  damages.  What  is  said  above 
refers  to  civil  cases. 

In  criminal  cases,  when  a  woman  is  capi- 
tally convicted  and  she  is  proved  to  be  e?i 
ceinie  there  shall  be  a  stay  of  execution  till 
after  her  delivery.    See  Pregnancy. 

STAYING  PROCEEDINGS.  The  sus- 
pension of  an  action. 

Proceedings  are  stayed  absolutely  or  con- 
ditionally. 

They  are  peremptorily  stayed  when  the 


STEALING 


546 


STINT 


plaintiff  is  wholly  incapacitated  from  suing  : 
as,  for  example,  when  the  plaintiff  is  not  the 
holder,  nor  beneficially  interested  in  a  bill  on 
which  he  has  brought  his  action,  2  Crompt. 
&  M.  Exch.  416;  2  Dowl.  336;  Chitty,  Bills, 
335 ;  3  Chitty,  Pract.  628,  or  when  the  plain- 
tiff admits  in  writing  that  he  has  no  cause 
of  action,  3  Chitty,  Pract.  370,  630,  or  when  an 
action  is  brought  contrary  to  good  faith.  Tidd, 
Pract.  515,  529,  1134;  3"  Chitty,  Pract.  633. 

Proceedings  are  sometimes  stayed  until 
some  order  of  the  court  shall  have  been  com- 
plied with:  as,  when  the  plaintiff  resides  in 
a  foreign  country  or  in  another  state,  or  is 
insolvent,  and  he  has  been  ruled  to  give 
security  for  costs,  the  proceedings  are  stayed 
until  such  security  shall  be  given,  3  Chitty, 
Pract.  633,  635,  or  until  the  payment  of  costs 
in  a  former  action.    1  Chitty,  Bail.  195. 

STEALING.  This  term  imports,  ex  vi 
termini,  nearly  the  same  as  larceny;  but  in 
common  padance  it  does  not  always  import 
a  felony :  as,  for  example,  you  stole  an  acre 
of  my  land. 

In  slander  cases,  it  seems  that  the  term 
stealing  tfikes  its  complexion  from  the  sub- 
ject-matter to  which  it  is  applied,  and  will 
be  considered  as  intended  of  a  felonious 
stealing,  if  a  felony  could  have  been  com- 
mitted of  such  subject-matter.  Starkie,  Sland. 
80;  12  Johns.  N.*Y.  239;  3  Binn.  Penn.  546. 

ST^ELBOW  GOODS.  Instruments  of 
husbandry,  cattle,  corn,  etc.,  delivered  by  a 
landlord  to  his  tenant  on  condition  that  the 
like  number  of  goods  of  like  quality  should 
be  returned  on  expiration  of  the  lease.  Bell, 
Diet. ;  Stair,  Inst.  285,  ^  81. 

STELLIONATE.  In  Civil  Law.  A 
name  given  generally  to  all  species  of  frauds 
committed  in  making  contracts. 

This  word  is  said  to  be  derived  from  the  Latin 
etelUo,  a  kind  of  lizard  remarkable  for  its  cunning 
and  the  change  of  its  color,  because  those  guilty 
of  frauds  used  every  art  and  cunning  to  conceal 
them.  But  more  particularly  it  was  the  crime  of  a 
person  who  fraudulently  assigned,  sold,  or  engaged 
the  thing  which  he  had  before  assigned,  sold,  or 
engaged  to  another,  unknown  to  the  person  with 
whom  h^  was  dealing.  Dig.  47.  20.  3;  Code,  9. 
34.  1 ;  Merlin,  Repert.;  La.  Civ.  Code,  art.  2069;  1 
Brown,  Civ.  Law,  426. 

STEP-DAUGHTER.  The  daughter  of 
one's  wife  by  a  former  husband,  or  of  one's 
husband  by  a  former  wife. 

STEP-FATHER.  The  husband  of  one's 
mother  by  virtue  of  a  marriage  subsequent 
to  that  of  which  the  person  spoken  of  is  the 
offspring. 

STEP-MOTHER.  The  wife  of  one's 
father  by  virtue  of  a  marriage  subsequent  to 
that  of  which  the  person  spoken  of  is  the 
offspring. 

STEP-SON.  The  son  of  one's  wife  by  a 
former  husband,  or  of  one's  husband  by  a 
former  wife. 

8TERE.  A  French  measure  of  solidity, 
used  in  measuring  wood.  It  is  a  cubic  metre. 
b«c  Mkasure. 


STERILITY.  Barrenness;  incapacity 
to  produce  a  child.  It  is  curable  and  incura- 
ble: when  of  the  latter  kind  at  the  time  of 
the  marriage,  and  arising  from  impotency,  it 
is  a  good  cause  for  dissolving  a  marriage.  1 
Foder6,  Med.  L6g.  §  254.    See  Impotency. 

STERLING.  Current  money  of  Great 
Britain,  but  anciently  a  small  coin  worth 
about  one  penny,  and  so  called,  as  some  sup- 
pose, because  it  was  stamped  with  the  figure 
of  a  small  star,  or,  as  others  suppose,  because 
it  was  first  stamped  in  England  in  the  reign 
of  king  John  by  merchants  from  Germany 
called  Esterlings.  Pounds  sterling  originally 
signified  so  many  pounds  in  weight  of  these 
coins.  Thus,  we  find  in  Matthew  Paris,  a.d 
1242,  the  expression  Accepit  a  rege  pro  sti 
pendio  tredecim  lihras  esterlingorum.  The 
secondary  or  derived  sense  is  a  certain  value 
in  current  money,  whether  in  coins  or  other 
currency.  Lowndes,  14;  Watts,  Gloss.  Ster- 
ling. 

STET  PROCESSUS  (Lat.).  In  Prac- 
tice. An  order  made,  upon  proper  cause 
shown,  that  the  process  remain  stationary. 
As,  where  a  defendant  having  become  insol- 
vent would,  by  moving  judgment  in  the  case 
of  nonsuit,  compel  a  plaintiff  to  proceed,  the 
court  will,  on  an  affidavit  of  the  fact  of  in- 
solvency, award  a  stet  processus.  See  7 
Taunt.  180;  1  Chitty,  Bail.  738;  10  Went- 
worth.  Plead.  43. 

STEVEDORE.  A  person  employed  in 
loading  and  unloading  vessels.  He  has  no 
maritime  lien  on  the  ship  for  wages.  Dunlap, 
Adm.  Pract.  98. 

STEWARD  OF  ALL  ENGLAND. 
In  Old  English  Law.  An  officer  who  was 
invested  with  various  powers;  and,  among 
others,  it  was  his  duty  to  preside  on  the  trial 
of  peers. 

STEWS.  In  English  Law.  Places 
formerly  permitted  in  England  to  women  of 
professed  lewdness,  and  who  for  hire  would 
prostitute  their  bodies  to  all  comers. 

These  places  were  so  called  because  the  dissolute  ' 
persons  who  visited  them  prepared  themselves  by. 
bathing, — the  word  stews  being  derived  from  the 
old  French  estuves,  stove,  or  hot  bath.  Coke,  3d 
Inst.  205. 

STILLICIDIUM(Lat.).   In  Civil  Law. 

The  rain-water  that  falls  from  the  roof  or  eaves 
of  a  house  by  scattered  drops.  When  it  is 
gathered  into  a  spout,  it  is  called  ^wmew. 

Without  the  constitution  of  one  or  other  of 
these  servitudes,  no  proprietor  can  build  so 
as  to  throw  the  rain  that  falls  from  his  house 
directly  on  his  neighbor's  grounds;  for  it  is 
a  restriction  upon  all  property,  nemo  potest 
immittere  in  alienum;  and  he  who  in  build- 
ing breaks  through  that  restraint  truly 
builds  on  another  man's  property ;  because 
to  whomsoever  the  area  belongs,  to  him  also 
belongs  whatever  is  above  it:  cujus  est  solum, 
ejus  est  usque  ad  caelum.  3  Burge,  Confl.  of 
Laws,  405.  See  Servitus  Stillicidii;  Inst, 
3.  2.  1;  Dig.  8.  2.  2. 

STINT.    The  proportionable  part  of  a 


STIPES 


547 


STOCKS 


mixn'A  cattle  which  he  may  keep  upon  the 
coiinnon.  The  general  rule  is  that  the  com- 
moner shall  not  turn  more  cattle  upon  the 
common  than  are  sufficient  to  manure  and 
stock  the  land  to  which  his  right  of  common 
is  annexed.  There  may  be  such  a  thing  as 
common  without  stint  or  number;  but  this  is 
seldom  granted,  and  a  grantee  cannot  grant 
it  over.  3  Blackstone,  Comm.  239;  1  Ld. 
Raym.  407. 

STIPES.  Stock;  source  of  descent  or 
title.  Ainsworth,  Diet. ;  2  Sharswood,  Bhickst. 
Comm.  209. 

STIPULATIO  (Lat.).  In  Roman  Law. 
A  contract  made  in  the  following  manner: 
viz.,  the  person  to  whom  the  promise  was  to 
be  made  proposed  a  question  to  him  from 
whom  it  was  to  proceed,  fully  expressing  the 
nature  and  extent  of  the  engagement;  and, 
the  question  so  proposed  being  answered  in 
the  affirmative,  the  obligation  was  complete. 

It  was  essentially  necessary  that  both  par- 
ties should  speak  (so  that  a  dumb  man  could 
not  enter  into  a  stipulation),  that  the  person 
making  the  promise  should  answer  conform- 
ably to  the  specific  question  proposed  with- 
out any  material  interval  of  time,  and  with 
the  intention  of  contracting  an  obligation. 
No  consideration  was  required. 

STIPULATION.  A  material  article  in 
an  agreement. 

The  term  appears  to  have  derived  its  meaning 
from  the  use  of  stipulatio  above  given;  though  it  is 
applied  more  correctly  and  more  conformably  to  its 
original  meaning  to  denote  the  insisting  upon  and 
requiring  any  particular  engagement.  2  Pothier, 
Obi.  Evans  ed.  19. 

In  Admiralty  Practice.  A  recognizance 
of  certain  persons  (called  in  the  old  law^ 
Jide  jussors)  in  the  nature  of  bail  for  the 
appearance  of  a  defendant.  3  Blackstone, 
Comm.  108. 

These  stipulations  are  of  three  sorts:  namely, 
iudicatiim  sold,  by  which  the  party  is  absolutely 
bound  to  pay  such  sum  as  may  be  adjudged  by  the 
court;  de  jiidicio  sinti,  by  which  he  is  bound  to 
appear  from  time  to  time  during  the  pendency  of 
the  suit,  and  to  abide  the  sentence ;  de  ratio,  or 
de  rato,  by  which  he  engages  to  ratify  the  acts  of 
his  proctor:  this  stipulation  is  not  usual  in  the  ad- 
miralty courts  of  the  United  States. 

The  securities  are  taken  in  the  following  man- 
ner: namely,  cautio fide juaaoria,  by  sureties;  pi(j- 
noratitia,  by  deposit ;  Jurntoria,  by  oath :  this 
security  is  given  when  the  party  is  too  poor  to  find 
sureties,  at  the  discretion  of  the  court;  tuide 
promissoria,  by  bare  promise:  this  security  is  un- 
known in  the  admiralty  courts  of  the  United 
States.  Hall,  Adm.  Pract.  12;  Dunlap,  Adm. 
Pract.  150,  151.    See  17  Am.  Jur.  51. 

STIRPES  (Lat.).  Descents.  The  root, 
stem,  or  stock  of  a  tree.  Figuratively,  it 
signifies  in  law  that  person  from  whom  a 
family  is  descended,  and  also  the  kindred  or 
family.    2  B'ackstone,  Comm. 

STOCK.  In  Mercantile  Law.  The 
capital  of  a  merchant,  tradesman,  or  other 
person,  including  his  merchandise,  money, 
and  credits.  The  goods  and  wares  he  has 
for  sale  and  traffic.    The  capital  of  corpora- 


tions: this  latter  is  usually  divided  into  equal 
shares  of  a  determined  value.  The  indebt- 
edness of  states  is  sometimes  represented  by 
stock,  and  sometimes  by  bonds.  Stock  is  in- 
scribed on  the  proper  books  in  the  name  of 
the  person  owning  it,  and  can  only  be  trans- 
ferred by  such  person  or  his  attorney.  Bonds 
are  transferable  by  delivery,  and  are  jjayable 
to  bearer.  The  United  States  debt  consists 
in  part  of  stock  and  bonds,  as  d<»es  also  the 
debt  of  several  of  the  states.  The  debt  of 
Great  Britain  is  entirely  in  stock. 

JJ,  Stock  held  by  individuals  in  corporate 
companies  or  in  government  loans  is  gene- 
rally considered  as  personal  property  4 
Dane,  Abr.  G70;  6  Cush.  Mass.  282;  Angell 
&  A.  Corp.  ^  5G0.  See  Personal  Pro- 
perty. Certificates  of  stock  are  usually 
issued  to  the  person  to  whom  it  is  trans- 
ferred ;  and  when  a  new  transfer  is  effected, 
such  certificate  is  surrendered  and  cancelled, 
a  new  one  being  issued  to  the  transferee. 
Stock  is  sometimes  sold  by  delivering  the 
certificate,  accompanied  by  a  power  of  attor- 
ney to  transfer  it;  but  it  appears  that  such  a 
sale  amounts  to  no  more  than  a  mere  equita- 
ble assignment.  2  Wheat.  393  ;  1  Pet.  299  ; 
10  id.  616.    See  3  T.  B.  Monr.  Ky.  126. 

Stock  issued  by  the  agent  of  a  company 
transcending  his  authority,  as  in  the  case  of 
an  over-issue,  is  not  binding  on  the  company, 
13  N.  Y.  599 ;  17  id.  592. 

Descents.  A  metaphorical  expression 
which  designates  in  the  genealogy  of  a  family 
the  person  from  whom  others  are  descended: 
those  persons  who  have  so  descended  are 
called  branches.  See  1  Roper,  on  Leg.  103; 
2  Belt,  Suppl.  Ves.  Ch.  307;  Branch;  De- 
scent; Line;  Stirpes. 

STOCK-BROKER.    See  Broker. 

STOCK-EXCHANGE.  A  building  or 
room  in  which  stock-brokers  meet  to  trans- 
act their  business  of  purchasing  or  selling 
stocks. 

In  large  cities  the  stock  business  is  trans- 
acted through  the  medium  of  the  members  of 
the  board  of  brokers.  This  is  an  association 
of  stock-brokers  governed  by  rules  and  regula- 
tions made  by  themselves,  to  which  all  the 
members  are  obliged  to  subject  themselves. 
Admission  is  procured  by  ballot,  and  a  mem- 
ber defaulting  in  his  obligations  forfeits  his 
seat.  A  regular  register  of  all  the  trans- 
actions is  kept  by  an  officer  of  the  associa- 
tion, and  questions  arising  between  the  mem- 
bers are  generally  decided  by  an  arbitration 
committee.  The  official  record  of  sales  is 
the  best  evidence  of  the  price  of  any  stock 
on  any  particular  day.  The  stocks  dealt  in 
at  the  sessions  of  the  board  are  those  vhich 
are  placed  on  the  list  by  a  regular  vote  of 
the  association  ;  and  when  it  is  proposed  to 
add  a  stock  to  the  list,  a  committee  is  ap- 
pointed to  examine  into  the  matter,  and  the 
board  is  generally  guided  by  the  report  of 
such  committee.    Sewell,  Bankruptcy. 

STOCKS.  In  Criminal  Law.  A  ma- 
chine, commonly  made  of  wood,  w'tik  holes  iu 


S'TOPPAGE  IN  TRANSITU 


548 


STRANDING 


it,  in  which  to  confine  persons  accused  of  or 
guilty  of  crime. 

It  was  used  either  to  confine  unruly  of- 
fenders by  way  of  security,  or  convicted 
criminals  for  punishment.  This  barbarous 
punishment  has  been  generally  abandoned 
in  the  United  States. 

STOPPAGE  IN  TRANSITU.  A  re- 
sumption by  the  seller  of  the  possession  of 
goods  not  paid  for,  while  on  their  way  to  the 
vendee  and  before  he  has  acquired  actual 
possession  of  them.    15  Me.  314. 

For  most  purposes,  the  possession  of  the  carrier 

15  considered  to  be  that  of  the  buj'er;  but  by  virtue 
of  this  right,  which  is  an  extension  of  the  right  of 
lien,  the  vendor  may  reclaim  the  possession  before 
they  reach  the  vendee,  in  case  of  the  insolvency  of 
the"  latter.  12  Pick.  Mass.  313  ;  4  Gray,  Mass.  336  ; 
2  Caines,  N.  Y.  98 ;  8  Mees.  &  W.  Exch.  341. 

2.  The  vendor,  or  a  consignor  to  whom 
the  vendee  is  liable  for  the  price,  3  East,  93; 
6  id.  17  ;  15  id.  419  ;  13  Me.  103  ;  1  Binn. 
Penn.  106  ;  see  4  Campb.  31  ;  2  Bingh.  n.  c. 
83  ;  or  a  general  or  special  agent  acting  for 
him,  9  Mees.  &  W.  Exch.  518  ;  2  Jac.  &  W. 
Ch.  349 ;  5  Whart.  Penn.  189 ;  13  Me.  93. 
See  1  Moore  &  P.  515  ;  4  Bingh.  479 ;  5  Term, 
404;  4  Gray,  Mass.  367;  1  Hill,  N.  Y.  302; 

5  Mass.  157,  may  exercise  the  right. 

There  need  not  be  a  manual  seizure :  it  is 
sufficient  if  a  claim  adverse  to  the  buyer  be 
made  during  their  passage.   2  Bos.  &  P.  457 ; 
.  7  Taunt.  169  ;  1  Esp.  240  ;  2  id.  613  ;  9  Mees. 

6  W.  Exch.  518  ;  13  Me.  93  ;  5  Den.  N.  Y. 
333. 

3.  The  goods  sold  must  be  unpaid  for, 
either  wholly  or  partially.  3  East,  102 ;  7 
Term,  440  ;  15  Me.  314 ;  2  Exch.  702.  See  5 
Carr.  &  P.  179.  As  to  the  rule  where  a  note 
has  been  given,  see  2  Mees.  &  W.  Exch.  375 ; 

7  Mass.  453  ;  4  Cush.  Mass.  33  ;  7  Penn.  St. 
301 ;  14  id.  48  ;  where  there  has  been  a  pre- 
existing debt,  4  Campb.  31 ;  16  Pick.  Mass. 
475  ;  3  Paige,  Ch.  N.  Y.  373  ;  1  Binn.  Penn. 
106 ;  1  Bos.  &  P.  563  ;  where  there  are  mu- 
tual credits,  7  Dowl.  &  R.  126  ;  4  Campb.  31 ; 

16  Pick.  Mass.  467.  The  vendee  must  be 
insolvent.  6  East,  17  :  4  Ad.  &  E.  332 ;  5 
Barnew.  &  Ad.  313;  20  Conn.  54;  8  Pick. 
Mass.  198;  14  Penn.  St.  51;  Smith,  Merc. 
Law,  Am.  ed.  1847,  548,  n.  See  3  East,  585  ; 
6  C.  Rob.  Adm.  321. 

4.  The  goods  must  be  in  transit,  3  Term, 
466  ;  15  B.  Monr.  Ky.  270  ;  16  Pick.  Mass. 
474 ;  20  N.  H.  154 ;  the  goods  must  have 
come  actually  into  the  hands  of  the  vendee 
or  some  person  acting  for  him,  2  Mees.  &  W. 
Exch.  632  ;  10  id.  436  ;  2  Crompt.  &  J.  Exch. 
218  ;  1  Pet.  386  :  3  Mas.  C.  C.  107  ;  2  Strobh. 
So.  C.  309  ;  23  Wend.  N.  Y.  611,  or  construct- 
ively, as,  by  reaching  the  place  of  destina- 
tion' 9  Barnew.  &  C.  422;  4  C.  B.  837;  3 
Bos.  &  P.  320,  469  ;  7  Mass.  457  ;  20  N.  II. 
154;  2  Curt.  C.  C.  259;  3  Vt.  49,  or  by 
coming  into  an  agent's  possession,  5  East, 
175  ;  7  Term,  440  ;  4  Campb.  181  ;  7  Mass. 
453;  4  Dan.  Ky.  7;  30  Penn.  St.  254;  see 
22  Conn.  473  ;  17  N.  Y.  249  ;  7  Cal.  213,  or 
by  being  deposited  for  the  vendee  in  a  public 


store  or  warehouse,  5  Den.  N.  Y.  G31  ;  7 
Penn.  St.  301  ;  7  Mann.  &  G.  360 ;  4  Campb. 
251,  or  by  delivery  of  part  for  the  whole, 
14  Mees.  &  W.  Exch.  28  ;  4  Bos.  &  P.  69  ;  1 
I  Carr.  &  P.  207  ;  1  Barnew.  &  C.  180 ;  2  id. 
540;  14  B.  Monr.  Ky.  324,  to  defeat  the 
right.  As  to  the  eff'ect  of  transfer  of  bill  of 
lading,  see  Story,  Sales,  g§  343-347  ;  16  N.  Y. 
325  ;  16  Pick.  Mass.  467  ;  24  id.  42  ;  34  Me. 
554  ;  3  Conn.  9  ;  24  Vt.  55  ;  4  Mas.  C.  C.  5  ; 
6  Cranch,  338  ;  1  Pet.  445  ;  7  Ad.  &  E.  29. 

5.  The  eifect  of  the  exercise  of  this  right 
is  to  repossess  the  parties  of  the  same  rights 
which  they  had  before  the  vendor  resigned 
his  possession  of  the  goods  sold.  6  East,  27 ; 
1  Q.  B.  389;  5  Barnew.  &  Ad.  339;  10 
Barnew.  &  C.  99  ;  14  Me.  314  ;  5  Ohio,  98  ; 
20  Conn.  53  ;  10  Tex.  2. 

See,  generally.  Brown,  Story,  Long,  on 
Sales  ;  Parsons,  on  Contracts  ;  Cross,  on  Lien ; 
Whittaker,  on  Stoppage  in  Transitu. 

STORES.  The  victuals  and  provisions 
collected  together  for  the  subsistence  of  a 
ship's  company,  of  a  camp,  and  the  like. 

STOUTHRIEFP.    In   Scotch  Law. 

Formerly  this  word  included  in  its  signi- 
fication every  species  of  theft  accompanied 
with  violence  to  the  person ;  but  of  late  years 
it  has  become  the  vox  signata  for  forcible  and 
masterful  depredation  within  or  near  the 
dwelling-house  ;  while  robbery  has  been  more 
particularly  applied  to  violent  depredation 
on  the  highway  or  accompanied  by  house- 
breaking.   Alison,  Princ.  Scotch  Law,  227. 

STOWAGE.    In  Maritime  Law.  The 

proper  arrangement  in  a  ship  of  the  different 
articles  of  which  a  cargo  consists,  so  that  they 
may  not  injure  each  other  by  friction  or  be 
damaged  by  the  leakage  of  the  ship. 

The  master  of  the  ship  is  bound  to  attend 
to  the  stowage  unless  by  custom  or  agreement 
this  business  is  to  be  performed  by  persons 
employed  by  the  merchant.  Abbott,  Shipp. 
228 ;  Pardessus,  Dr.  Com.  n.  721.  See  Steve- 
dore. 

Merchandise  and  other  property  must  be 
stored  under  deck,  unless  a  special  agreement 
or  established  custom  and  usage  authorizes 
their  carriage  on  deck. 

STRANDING.    In  Maritime  Law. 

The  running  of  a  ship  or  other  vessel  on 
shore:  it  is  either  accidental  or  voluntaiy. 

Accidental  stranding  takes  place  where  the 
ship  is  driven  on  shore  by  the  winds  and 
waves. 

Voluntary  stranding  takes  place  where  the 
ship  is  run  on  shore  either  to  preserve  her 
from  a  worse  fate  or  for  some  fraudulent  pur- 
pose.   Marshall,  Ins.  b.  1,  c.  12,  s.  1. 

2.  It  is  of  great  consequence  to  define 
accurately  what  shall  be  deemed  a  stranding; 
but  this  is  no  easy  matter.  In  one  case,  a  ship 
having  run  on  some  M'ooden  piles,  four  feet 
under  water,  erected  in  Wisboach  river,  about 
nine  yards  from  shore,  which  were  placed 
there  to  keep  up  the  banks  of  the  river,  and 
having  remained  on  these  piles  until  they 


STRANGER  549  STRICTISSIMI  JURIS 


wore  cut  away,  was  considered  by  Lord  Ken- 
yon  to  have  been  stranded.  Marshall,  Ins. 
1 1.  7,  s.  3,  In  another  case,  a  ship  arrived  in 
tliA  river  Thames,  and  upon  coming;  up  to  the 
Pool,  which  was  full  of  vessels,  one  brig  ran 
foul  of  her  bow  and  another  of  her  stern,  in 
consequenceof  which  she  was  driven  aground, 
and  continued  in  that  situation  an  hour,  dur- 
ing which  period  several  other  vessels  ran 
foul  of  her:  this  Lord  Kenyon  told  the  jury 
that,  unskilled  as  he  was  in  nautical  affairs, 
he  thought  he  could  safely  pronounce  to  be 
no  stranding.  1  Campb.  131  ;  3  id.  431  ;  4 
Maule  &  S.  503  ;  5  Barnew.  &  Aid.  225  ;  4 
Barnew.  &  C.  73G  ;  7  id.  224.  See  Perils  of 
THE  Sea. 

3.  It  may  be  said,  in  general  terms,  that 
in  order  to  constitute  a  stranding  the  ship 
must  be  in  the  course  of  prosecuting  her 
voyage  when  the  loss  occurs;  there  must  be 
a  settling  down  on  the  obstructing  object ; 
and  the  vessel  must  take  the  ground  by 
reason  of  extraordinary  casualty,  and  not 
from  one  of  the  ordinary  incidents  of  a  voy- 
age. Arnould,  Insurance,  297,  318,  319. 
And  see  Phillips,  Ins. 

STRANGER.  A  person  born  out  of  the 
United  States  ;  but  in  this  sense  the  term 
alien  is  more  properly  applied  until  he  be- 
comes naturalized. 

A  person  who  is  not  privy  to  an  act  or 
contract :  example,  he  who  is  a  stranger  to 
the  issue  shall  not  take  advantage  of  the 
verdict.  Brooke,  Abr.  Record,  pi.  3  ;  Viner, 
Abr.  1.  And  see  Comyns,  Dig.  Abatement 
(H  54). 

When  a  man  undertakes  to  do  a  thing,  and 
a  stranger  interrupts  him,  this  is  no  excuse. 
Comyns,  Dig.  Condition  (L  14).  When  a 
party  undertakes  that  a  stranger  shall  do  a 
sertain  thing,  he  becomes  liable  as  soon  as  the 
stranger  refuses  to  perform  it.  Bacon,  Abr. 
Conditions  (Q  4). 

STRATAGEM.  A  deception,  either  by 
words  or  actions,  in  times  of  war,  in  order  to 
obtain  an  advantage  over  an  enemy. 

Stratagems,  though  contrary  to  morality,  have 
been  justified  unless  they  have  been  accompanied 
by  perfidy,  injurious  to  the  rights  of  humanity, 
as  in  the  example  given  by  Vattel  of  an  English 
frigate,  which  during  a  war  between  France  and 
England  appeared  off  Calais  and  made  signals  of 
listress  in  order  to  allure  some  vessel  to  come  to  its 
relief,  and  seized  a  shallop  and  its  crew  who  had 
generously  gone  out  to  render  it  assistance.  Vattel, 
Droit  des'Gens,  liv.  .3,  c.  9,  ^  178. 

Sometimes  stratagems  are  employed  in  making 
contracts.  This  is  unlawful  and  fraudulent,  and 
avoids  the  contract.    Sec  Fraud. 

STRATOCRACY.  A  military  govern- 
ment;  government  by  military  chiefs  of  an 
army. 

STREAM.  A  current  of  water.  The  right 
to  a  water-course  is  not  a  right  in  the  fluid 
itself,  so  much  as  a  right  in  the  current  of 
the  stream.  2  Bouvier,  Inst.  n.  1612.  See 
KivER  ;  Water-Course. 

STREET.     A  public  thoroughfare  or 


[  highway  in  a  city  or  village.     4  Serg.  &  R. 
I  Penn.  100  5  11  Barb.  N.  Y.  399.    See  High- 
way. 

2.  A  street,  besides  its  use  as  a  highway 
for  travel,  may  be  used  for  the  accommoda- 
tion of  drains,  sewers,  aqueducts,  water-  and 
gas-pipes,  lines  of  telegraph,  and  for  other 
purposes  ci  nducive  to  the  general  police,  sani- 
tary and  business  interests,  of  a  city.  10 
Barb.  N.  Y.  20,  300  ;  15  id.  210  ;  17  id.  435  ; 
2  R.  I.  15.  A  street  may  be  used  by  indi- 
viduals for  the  lading  and  unlading  of  car- 
riages, for  the  temporary  deposit  of  moval^les 
or  of  materials  and  scaffoldings  for  building 
or  repairing,  provided  such  use  shall  not 
unrcasonaldy  abridge  or  incommode  its  pri- 
mary use  for  travel.  0  East,  427  ;  3  Campb. 
230  ;  Hawkins,  PI.  Cr.  c.  70,  s.  49  ;  4  Ad.  & 
E.  405 ;  4  Iowa,  199 ;  1  Den.  N.  Y.  524  ; 

1  Serg.  &  R.  Penn.  219.  So  a  sidewalk 
which  is  part  of  a  street  may  be  excavated 
for  a  cellar,  pierced  by  an  aperture  for  the 
admission  of  light,  or  overhung  by  an  awn- 
ing. But  if  the  highway  becomes  more  un- 
safe and  a  passenger  is  injured  by  reason 
thereof,  the  individual  so  using  the  street 
will  be  responsible  for  the  damages.  18  N.  Y. 
79-84  ;  4  Carr.  &  P.  202  ;  23  Wend.  N.  Y. 
440  ;  3  Cush.  Mass.  174  ;  0  id.  524  ;  13  Mete. 
Mass.  299.  But  an  individual  has  no  right  to 
have  an  auction  in  a  street,  13  Serg.  &  R. 
Penn.  403,  or  to  keep  a  crowd  of  carriages 
standing  therein,  3  Campb.  230,  or  to  attract 
a  disorderly  crowd  to  witness  a  caricature  in 
a  shop-window,  6  Carr.  &  P.  030.  Such  an 
act  constitutes  a  nuisance.  Angell,  High, 
c.  0. 

3.  The  owners  of  lands  adjoining  a  street 
are  not  entitled  to  compensation  for  damages 
occasioned  by  a  change  of  grade  or  other 
lawful  alteration  of  the  street.  4  Term,  794  ; 

2  Barnew.  &  A.  403  ;  1  Pick.  Mass.  417  ;  4 
N.  Y.  195  ;  18  Penn.  St.  87  ;  14  Mo.  20 ;  2 
R.  I.  154  ;  0  Wheat.  593  ;  20  How.  135,  un- 
less such  damages  result  from  a  want  of  due 
skill  and  care  or  an  abuse  of  authority.  3 
Wils.  401  ;  5  Barnew.  &  Aid.  837  ;  1  Sandf. 
N.  Y.  22 ;  10  N.  Y.  158,  and  note. 

Under  the  statutes  of  several  of  the  states, 
assessments  are  levied  upon  the  o-wners  of 
lots  specially  benefited  by  opening,  widening, 
or  improving  streets,  to  defray  the  expense 
thereof;  and  such  assessments  have  been  ad- 
judged to  be  a  constitutional  exercise  of  the 
taxing  power.  4  N.  Y.  419  :  8  Wend.  N.  Y. 
85  ;  18  Penn.  St.  20  ;  21  id.  147  ;  3  Watts, 
Penn.  293  ;  23  Conn.  189  ;  5  Gill,  Md.  383  ; 
27  Mo.  209  ;  4  R.  I.  230  ;  Angell,  Highways, 
c.  4. 

STRICT  SETTLEMENT.  A  settle- 
ment of  lands  to  the  parent  for  life,  and  after 
his  death  to  his  first  and  other  sons  in  tail, 
with  an  interposition  of  trustees  to  preserve 
the  contingent  remainders. 

STRICTISSIMI  JURIS  (Lat.  the  most 
strict  right  or  law).  In  general,  when  a 
person  receives  an  advantage,  as  the  grant 
^f  a  license,  he  is  bound  to  conform  strictly 


TRICTUM  JUS 


550 


SUBALTERN 


to  the  exercise  of  the  rights  given  him  by  it, 
and  in  case  of  a  dispute  it  will  be  strictly 
construed.    See  3  Stor.  C.  C.  159. 

STRICTUM  JUS  (Lat.).  Mere  law, 
in  contradistinction  to  equity. 

STRIKING  A  DOCKET.  In  English 
Practice.  Entering  the  creditor's  affidavit 
md  bond  in  bankruptcy.  1  Deac.  Bank.  lOG. 

STRIKING  A  JURY.  In  English 
Pi  actice.  Where,  for  nicety  of  the  matter 
in  dispute,  or  other  cause,  a  special  jury  is 
necessary,  upon  motion  and  rule  granted 
thereon,  the  sheriff  is  to  attend  the  protho- 
notary  or  proper  officer  with  the  book  of  free- 
holders, and  to  take  indifferently  forty-eight 
of  the  principal  freeholders,  when  the  attor- 
neys on  each  side,  being  present,  are  to  strike 
off  twelve  respectively,  and  the  remaining 
twenty-four  are  returned.  3  Sharswood, 
Blackst.  Comm.  357.  Essentially  the  same 
practice  prevails  in  New  York.  Graham, 
Pract.  277. 

STRUCK.  In  Pleading.  A  word  essen- 
tial in  an  indictment  for  murder,  when  the 
death  arises  from  any  wounding,  beating,  or 
braising.  1  Bulstr.  184;  5  Coke,  122;  3 
Mod.  202;  Croke  Jac.  655;  Palm.  282;  2 
Hale,  PI.  Cr.  184,  186,  187;  Hawkins,  PI.  Cr. 
b.  2,  c.  23,  s.  82 ;  1  Chitty,  Crim.  Law,  *243  ; 
6  Binn.  Penn.  179. 

STRUCK  OFF.  A  tferm  applied  to  a 
case  which  the  court,  having  no  jurisdic- 
tion over,  and  not  being  able  to  give  judg- 
ment, order  to  be  taken  off  the  record.  This 
is  done  by  an  entry  to  that  effect. 

STRUMPET.  A  harlot,  or  courtesan. 
The  word  was  formerly  used  as  an  addition. 
Jacob,  Law  Diet. 

STULTIFY  (Lat.  siulius,  stupid).  To 
make  one  out  mentally  incapacitated  for  the 
performance  of  an  act. 

It  has  been  laid  down  by  old  authorities, 
Littleton,  §  405  ;  4  Coke,  123 ;  Croke  Eliz. 
398,  that  no  man  should  be  allowed  to  stultify 
himself,  i.e.  plead  disability  through  mental 
unsoundness.  This  maxim  was  soon  doubted 
as  law,  1  Hagg.  Eccl.  414;  2  Sharswood, 
Blackst.  Comm.  292,  and  has  been  completely 
overturned.    4  Kent,  Comm.  451. 

STUPIDITY.  In  Medical  Jurispru- 
dence. That  state  of  the  mind  which 
cannot  perceive  and  embrace  the  data  pre- 
sented to  it  by  the  senses  ;  and  therefore  the 
stupid  person  can,  in  general,  form  no  cor- 
rect judgment.  It  is  a  want  of  the  percep- 
tive powers.  Ray,  Med.  Jur.  c.  3,  ^  40.  See 
Imbecility. 

STUPRUM  (Lat.).    In  Roman  Law. 

The  criminal  sexual  intercourse  which  took 
place  between  a  man  and  a  single  woman, 
maid,  or  widow,  who  before  lived  honestly. 
Inst.  4.  18.  4;  Dig.  48.  5.  6;  50.16.101;  1 
Bouvier,  Inst.  Theolo.  ps.  3,  quaest.  2,  art.  2, 
p.  252. 

SUB-AGENT.    A  person  appointed  by 


an  agent  to  perform  some  duty,  or  the  whole 
of  the  business  relating  to  his  agency. 

2.  A  sub-agent  is  generally  invested  witli 
the  same  rights,  and  incurs  the  same  liabili- 
ties in  regard  to  his  immediate  employers,  aa 
if  he  were  the  sole  and  real  principal.  To 
this  general  rule  there  are  some  exceptions : 
for  example,  where,  by  the  general  usage  of 
trade  or  the  agreement  of  the  parties,  sub- 
agents  are  ordinarily  or  necessarily  employed 
to  accomplish  the  ends  of  the  agency,  there, 
if  the  agency  is  avowed  and  the  credit  is 
exclusively  given  to  the  principal,  the  inter- 
mediate agent  may  be  entirely  exempted 
from  all  liability  to  the  sub-agent.  The  agent, 
however,  will  be  liable  to  the  sub-agent 
unless  such  exclusive  credit  has  been  given, 
although  the  real  principal  or  superior  may 
also  be  liable.  Story,  Ag.  g  386;  Paley,  Ag. 
Lloyd  ed.  49.  When  the  agent  employs  a 
sub-agent  to  do  the  whole  or  any  part  of  the 
business  of  the  agency,  without  the  know- 
ledge or  consent  of  his  principal,  either  ex- 
press or  implied,  the  latter  will  only  be  en- 
titled to  recover  from  his  immediate  em- 
ployer, and  his  sole  responsibility  is  also  to 
him.  In  this  case  the  superior  or  real  prin- 
cipal is  not  responsible  to  the  sub-agent, 
because  there  is  no  privity  between  them. 
Story,  Ag.     13,  14,  15,  217,  387. 

3.  Where,  by  an  express  or  implied  agree- 
ment of  the  parties,  or  by  the  usages  of  trade, 
a  sub-agent  is  to  be  employed,  a  privity  ex- 
ists between  the  principal  and  the  sub-agent, 
and  the  latter  may  justly  maintain  his  claim 
for  compensation  both  against  the  principal 
and  his  immediate  employer,  unless  exclusive 
credit  is  given  to  one  of  them ;  and  in  that 
case  his  remedy  is  limited  to  that  party.  1 
Livermore,  Ag.  64 ;  6  Taunt.  147. 

SUB-CONTRACT.  A  contract  by  one 
who  has  contracted  for  the  performance  of 
labor  or  service  with  a  third  party  for  the 
whole  or  part  performance  of  that  labor  or 
service.  9  Mees.  &  W.  Exch.  710;  3  Gray, 
Mass.  362;  17  Wend.  N.  Y.  550;  22  id.  395; 
1  E.  D.  Smith,  N.  Y.  716;  2  id.  558. 

SUB  MODO  (Lat.).  Under  a  qualifica- 
tion. A  legacy  may  be  given  sub  modo,  that 
is,  subject  to  a  condition  or  qualification. 

SUB  PEDE  SIGILLI  (Lat.).  Under  the 
foot  of  the  seal ;  under  seal.  This  expression 
is  used  when  it  is  required  that  a  record  should 
be  certified  under  the  seal  of  the  court. 

SUB  POTESTATE  (Lat.).  Under,  or 
subject  to,  the  power  of  another:  as,  a  wife 
is  under  the  power  of  her  husband  ;  a  child 
is  subject  to  that  of  his  father;  a  slave  to 
that  of  his  master. 

SUB  SILENTIO  (Lat.).  Under  silence ; 
without  any  notice  being  taken.  Sometimes 
passing  a  thing  sub  sileniio  is  evidence  of 
consent.    See  Silence. 

SUB-TENANT.    An  under-tenant. 

SUBALTERN.  An  officer  who  exercises 
his  authority  under  the  superintendence  and 
control  of  a  superior. 


SUBDIVIDE 


551 


SUBMISSION 


SUBDIVIDE.  To  divide  a  part  of  a 
thing  which  has  already  been  divided.  For 
example,  when  a  person  dies  leaving  children, 
and  grandchildren,  the  children  of  one  of  his 
own  who  is  dead,  his  property  is  divided  into 
as  many  shares  as  he  had  children,  including 
the  deceased,  and  the  share  of  the  deceased 
is  subdivided  into  as  many  shares  as  he  had 
eliiidren. 

SUBINFEUDATION.    The  act  of  an 

inferior  lord  by  which  he  carved  out  a  part 
of  an  estate  which  he  held  of  a  superior,  and 
granted  it  to  an  inferior  tenant  to  be  held  of 
himself. 

It  was  an  indirect  mode  of  transferring 
the  fief,  and  resorted  to  as  an  artifice  to  elude 
the  feudal  restraint  upon  alienation.  This 
was  forbidden  by  the  statute  of  Quia  ffmp- 
tores.  18  Ed.  I. ;  2  Blackstone,  Comm.  91 ; 
3  Kent,  Comm.  406. 

SUBJECT.  In  Scotch  Law.  The  thing 
which  is  the  object  of  an  agreement. 

In  Governmental  Law.  An  individual 
member  of  a  nation,  who  is  subject  to  the 
laws.  This  term  is  used  in  contradistinction 
to  citizen,  which  is  applied  to  the  same  indi- 
vidual when  considering  his  political  rights. 

In  monarchical  governments,  by  subject  is 
meant  one  who  owes  permanent  allegiance  to 
the  monarch.  See  Body  Politic  ;  Greenleaf, 
Ev.  §  286 ;  Phillipps,  Ev.  732,  n.  1. 

SUBJECT-MATTER.  The  cause  ;  the 
object ;  the  thing  in  dispute. 

It  is  a  fatal  objection  to  the  jurisdiction  of 
the  court  when  it  has  not  cognizance  of  the 
subject-matter  of  the  action:  as,  if  a  cause 
exclusively  of  admiralty  jurisdiction  were 
brought  in  a  court  of  common  law,  or  a 
criminal  proceeding  In  a  court  having  juris- 
diction of  civil  cases  only.  10  Coke,  68,  76; 
IVentr.  133;  8  Mass.  87;  12  id.  ZQl.  In 
such  case,  neither  a  plea  to  the  jurisdiction 
nor  any  other  plea  would  be  required  to  oust 
the  court  of  jurisdiction.  The  cause  might 
be  dismissed  upon  motion  by  the  court,  ex 
officio. 

SUBJECTION  (Lat.  sub,  under,  jacio, 
to  put,  throw).  The  obligation  of  one  or 
more  persons  to  act  at  the  discretion  or  ac- 
cording to  the  judgment  and  will  of  others. 
Private  subjection  is  subjection  to  the  author- 
ity of  private  persons.  Public  subjection  is 
subjection  to  the  authority  of  public  per- 
sons. 

SUB-LEASE.  A  lease  by  a  tenant  to 
another  person  of  a  part  of  the  premises 
held  by  him;  an  under-lease. 

SUBMISSION  (Lat.  submissio, — sub, 
under,  mittere,  to  put, — a  putting  under.  Used 
of  persons  or  things.  A  putting  one's  person 
or  property  under  the  control  of  another). 
A  yielding  to  authority.  A  citizen  is  bound 
to  submit  to  the  laws,  a  child  to  his  parents, 
a  guardian  to  his  ward.  A  victor  may  en- 
force the  submission  of  his  enemy. 

In  Maritime  Law.  Submission  on  the 
part  of  the  vanquished,  and  complete  posses- 


sion on  the  part  of  the  victor,  transfer  pro- 
perty as  between  belligerents.  1  Gall.  C.  C. 
532. 

In  Practice.  An  agreement,  parol  (oral 
or  written)  or  sealed,  by  which  parties  agree 
to  submit  their  differences  to  the  decision  of 
a  referee  or  arlntrators.  It  is  sometimes 
termed  a  reference.  Encycl.  Am.  Arbiter; 
Kyd,  Arb.  11;  Caldwell,  Arb.  16;  17  Ves. 
Ch.  419;  6  Bingh.  596;  3  Mecs.  &  W.  Exch 
816;  6Watts,Penn.359;  16Vt.663;  4N.Y. 
157;  2  Barb.  Ch.  N.  Y.  430. 

It  is  the  authority  given  by  the  parties 
to  the  arbitrators,  empowering  them  to  in- 
quire into  and  determine  the  matters  in  dis- 
pute. 

It  may  be  in  pais,  or  by  rule  of  court,  or 
under  the  various  statutes.    1  Dev.  No.  C.  82. 

It  may  be  oral,  but  this  ia  inconvenient,, 
because  open  to  disputes;  by  written  agree- 
ment not  under  seal  (in  Louisiana  and  Cali- 
fornia the  submission  must  be  in  writing,  5 
La.  133;  2  Cal.  92) ;  by  indenture,  with  mu- 
tual covenants  to  abide  by  the  decision  of  the 
arbitrator;  by  deed-poll,  or  by  bond,  each 
party  executing  an  obligation  to  the  other 
conditioned  to  be  void  respectively  upon  the 
performance  of  the  award.  Caldwell,  Arb. 
16;  6Watts,  Penn.  357.  If  general \QTms, 
both  law  and  fact  are  referred,  7  Ind.  49;  if 
limited,  the  arbitrator  cannot  exceed  his  au- 
thority.  11  Cush.  Mass.  37. 

3.  When  to  be  made.  A  subminsion  may 
be  made  at  any  time  of  causes  not  in  court; 
and  at  common  law,  where  a  cause  was  de- 
pending, submission  might  be  made  by  rule 
of  court  before  the  trial,  or  by  order  of  nisi 
prius  after  it  had  commenced,  which  was 
afterwards  made  a  rule  of  court.  1  Mann.  & 
G.  976;  2  Barnew.  &  Aid.  395;  3  Serg.  &  R. 
Penn.  262;  1  Dall.  Penn.  145,  355  :  4  Halst. 
N.  J.  198. 

Who  may  make.  Any  one  capable  of 
making  a  disposition  of  his  property  or  re- 
lease of  his  right,  or  capable  of  suing  or 
being  sued,  may  make  a  binding  submission 
to  arbitration ;  but  one  under  civil  or  natural 
incapacity  cannot  be  bound  by  his  submis- 
sion. Watson,  Arb.  65 ;  Russell,  Arb.  20;  2 
P.Will.  Ch.  45-50;  9  Ves.  Ch.  350;  1  Dowl. 
&L.145;  8  Me.  315;  11^^^.326;  2N.H.484; 
8  Vt.  472;  16  Mass.  396;  5  Conn.  367;  1 
Barb.  N.  Y.  584;  14  Johns.  N.  Y.  302;  5 
Wend.  N.Y.  20;  5  Hill,  N.  Y.  419;  2  Rob 
Va.  761 ;  6  Munf.  Va.  458;  Paine,  C.  C.  646  ; 

I  Wheat.  304;  5  How.  83. 

4.  In  general,  in  cases  of  incapacity  of 
the  real  owner  of  property,  as  well  as  in 
many  cases  of  agency,  the  person  who  has 
the  legal  control  of  the  property  may  make 
submission,  including  a  hvsband  for  his 
wife.  Strange,  351;  5  Ves.  846;  a  parent  or 
guardian  for  an  infant,  Latch,  207;  March, 
111,  141;   Freem.  Ch.  62,  139:    1  Wils.  28; 

II  Me.  326;  12  Conn.  376;  3  Caines,  N.  Y. 
253;  but  not  a  guardian  ad  litem,  9  Humphr. 
Tenn.  129;  a  trustee  for  his  cestui  que  trust, 
3  Esp.  101;  2  Chitt.  Bail.  40;  1  Lutw.  571; 
an  attorney  for  his  client,  1  Wils.  28,  58; 


SUBMISSION 


552 


j^TJBMISSION 


1  Salk.  70 ;  ]  L.i.  Raym.  246  ;  12  Mod.  129  ; 
Dv.  217  h;  12  Ala.  252;  9  Penn.  St.  101 ;  19 
id.  418 ;  23  id.  393 ;  1  Park.  Crim.  N.  Y.  387 ; 

2  Hill,  N.  Y.  271;  4  T.  B.  Monr.  Ky.  375;  7 
Cranch,  436;  but  see  6  Weekl.  Rep.  10;  an 
agent  duly  authorized  for  his  principal,  4 
Taunt.  378,  486;  8  Barnew.  &  C.  16  ;  5  id. 
141 ;  8  Vt.  472 ;  11  Mass.  449 ;  5  Green,  N.  J. 
38;  29  N.  H.  405;  8  N.  Y.  160;  an  executor 
or  administrator  at  his  own  peril,  but  not 
thereby  necessarily  admitting  assets,  2 
Strange,  1144;  5  Term,  6;  7  id.  453;  5 
Mass.  15;  20  Pick.  Mass.  584;  6  Leigh,  Va. 
62;  5  T.  B.  Monr.  Ky.  240;  5  Conn.  621 ;  see 

5  Bingh.  200;  1  Barb.  N.  Y.  419;  3  Harr. 
N.  J.  442 ;  assignees  under  bankruptcy  and 
insolvency  laws,  under  the  statutory  restric- 
tions, Stat.  6  Geo.  IV.  c.  16,  and  state  statutes; 
the  right  being  limited  in  all  cases  to  that 
which  the  person  acting  can  control  and 
legally  dispose  of,  6  Mass.  78 ;  6  Munf.  Va. 
453  ;  4  T.  B.  Monr.  Ky.  240 ;  21  Miss.  133  ; 
BUT  NOT  INCLUDING  a  partner  for  a  partner- 
ship. 3  Bingh.  101;  Holt,  143  ;  1  Crompt.  M. 

6  R.  Exch.  681  ;  1  Pet.  221 ;  19  Johns.  N.  Y. 
137  ;  2  N.  H.  284;  5  Gill  &  J.  Md.  412;  12 
Serg.  &  R.  Penn.  243;  CoUyer,  Partn.  ^§  439 
-470 ;  3  Kent,  Comm.  49. 

5.  What  mag  be  included  in  a  submission. 
Generally,  any  matter  which  the  parties 
might  adjust  by  agreement,  or  which  may 
be  the  subject  of  an  action  or  suit  at  law, 
except  perhaps  actions  {qui  tarn)  on  penal 
statutes  by  common  informers;  for  crimes 
cannot  be  made  the  subject  of  adjustment 
and  composition  by  arbitration,  this  being 
against  the  most  obvious  policy  of  the  law, 
Caldwell,  Arb.  12;  Comyns,  Dig.  Arb.  (D  3, 
4);  5  Wend.  N.  Y.  Ill;  2  Cow.  N.  Y.  638; 

3  Caines,  N.  Y.  320;  9  Johns.  N.  Y.  38;  13 
Serg.  &  R.  Penn.  319 ;  2  Rawle,  Penn.  341 ; 

7  Conn.  345;  6  N.  II.  177;  16  Miss.  298;  16 
Vt.  450;  10  Gill  &  J.  Md.  192;  5  Munf.  Va. 
10;  4  Dall.  Penn.  120;  including  a  debt  cer- 
tain on  a  specialty,  any  question  of  law,  the 
construction  of  a  will  or  other  instrument,  any 
personal  injury  on  which  a  suit  will  lie  for 
damages,  although  it  may  be  also  indictable. 
2  Madd.  Ch.  6;  7  taunt.  422;  9  Ves.  Ch. 
367;  10  Mod.  59;  1  Lev.  592;  8  Me.  119, 
288 ;  6  Pick.  Mass.  148. 

6.  An  agreement  to  refer  future  disputes 
will  not  be  enforced  by  a  decree  of  specific 
performance,  nor  will  an  action  lie  for  re- 
fusing to  appoint  an  arbitrator  in  accordance 
with  such  an  agreement.  6  Ves.  Ch.  815;  2 
Sim.  &  S.  Ch.  418;  2  Bos.  &  P.  135  ;  2  Stor. 
C.  C.  800;  15  Ga.  473.  It  is  considered  against 
public  policy  to  exclude  from  the  tribunals 
of  the  state  disputes  the  nature  of  which 
cannot  be  foreseen.  1  Wils.  Ch.  129;  4 
Brown,  Ch.  312,  315;  2  Ves.  Ch.  131;  19  id. 
431;  1  Swanst.  Ch.  40.  See  31  Penn.  St. 
306. 

Effect  of.  A  submission  of  a  case  in  court 
works  a  discontinuance  and  a  waiver  of  de- 
fects in  the  process,  2  Penn.  St.  868;  18 
Johns.  N.  Y.  22-  12  Wend.  N.  Y.  403;  3 
handf.  N.  Y.  4  ;    10  Yerg.  Tonn.  439 ;  2 


Humphr.  Tenn.  516;  10  Mass.  253:  5  Gray, 
Mass.  492;  4  lien.  &  M.  Va.  363;  5  Munf. 
Va.  10;  5  Wise.  421 ;  4  N.  J.  647  ;  41  Me. 
355;  30  Vt.  610;  2  Curt.  C.  C.  28;  see  20 
Barb.  N.  Y.  262;  9  Tex.  44;  and  the  bail  or 
sureties  on  a  replevin  bond  are  discharged. 
17  Mass.  591;  1  Pick.  Mass.  192;  4  Green, 
N.  J.  277;  7  id.  .348;  1  Ired.  No.  C.  9;  3 
Ark.  214;  2  Barnew.  &  Ad.  774;  Russell, 
Arb.  88.  But  see  6  Taunt.  379;  10  Bingh, 
118.  But  this  rule  has  been  modified  in  Eng- 
land by  statute.  Stat.  17  &  18  Vict.  c.  125, 
Ul;  8  Exch.  327. 

1.  The  submission  which  defines  and  limits 
as  well  as  confers  and  imposes  the  duty  of 
the  arbitrator  must  be  followed  by  him  in 
his  conduct  and  award ;  but  a  fair  and  liberal 
construction  is  allowed  in  its  interpretation. 

1  Wms.  Saund.  65 ;  Croke  Car.  226 ;  11  Ark. 
477;  3  Penn.  St.  144;  13  Johns.  N.  Y.  187 ; 

2  N.  H.  126;  2  Pick.  Mass.  534;  3  Halst.  N. 
J.  195  ;  1  Pet.  222.  If  general,  it  submits 
both  law  and  fact,  7  Ind.  49;  if  limited,  the 
arbitrator  cannot  exceed  his  authority.  11 
Cush.  Mass.  37. 

The  statutes  of  many  of  the  states  of  the 
United  States  provide  for  submissions  by  the 
parties  before  a  justice  of  the  peace,  in  which 
case  the  award  will  be  enforced  as  if  it  had 
been  made  under  rule  of  court;  and  statutes 
also  regulate  submissions  made  under  rule 
of  court. 

8.  Revocation  of  a  submission  may  take 
place  at  any  time  previous  to  the  award, 
though  it  be  expressed  in  the  agreement  to 
be  irrevocable.  The  remedy  of  the  injured 
party  is  by  an  action  for  breach  of  the  agree- 
ment. 2  Kebl.  64;  8  Coke,  81 ;  5  Taunt.  402; 
7  East,  608  ;  6  Bingh.  443 ;  4  Barnew.  &  C. 
103;  10  id.  16  Johns.  N.  Y.  205 ;  1  Cow. 
N.Y.  235;  12  Wend.  N.  Y.  578 ;  1  Hill,  N.  Y. 
44;  12  Mass.  49 ;  20  Vt.  198;  28  id.  532;  26 
Me.  251,  459;  3  Day,  Conn.  118 ;  23  Penn. 
St.  393 ;  _  4  Sneed,  Tenn.  462  ;  6  Dan.  Ky.  307. 
A  submission  by  deed  must  be  revoked  by 
deed.    8  Coke,  72,  and  cases  above. 

A  submission  under  rule  of  court  is  gene- 
rally irrevocable,  by  force  of  statutory  pro- 
visions, both  in  England  and  the  United 
States.  Stat.  3  &  4  Will.  IV.  c.  42 ;  5  Burr. 
497;  12  Mass.  47;  4  Me.  459;  lAshm.Penn. 
45  ;  1  Binn.  Penn.  42  ;  3  Yeates,  Penn.  42  ; 
6  N.  H.  36  ;  4  Conn.  498  ;  5  Paige,  Ch.  N.  Y. 
575  ;  11  id.  529  ;  3  Halst.  N.  J.  116 ;  3  Ired. 
No.  C.  333 ;  19  Ohio,  245. 

9.  A  submission  at  common  law  is  gene- 
rally revoked  by  the  death  of  either  party 
(unless  it  be  stipulated  otherwise),  or  of  the 
arbitrator,  or  his  refusal  to  act,  1  Marsh. 
366  ;  7  Taunt.  571 ;  1  Moore,  287  ;  2  Barnew. 
&  Aid.  394 ;  3  Barnew.  &  C.  144 ;  3  Dowl.  & 
R.  608 ;  3  Bingh.  n.  c.  20  ;  6  id.  158  ;  8  Mees. 
&  W.  Exch.  873 ;  but  see  15  Pick.  Mass.  79 ; 

3  Halst.  N.  J.  116 ;  3  Gill,  Md.  192 ;  2  Gill 
&  J.  Md.  479 ;  3  Swan,  Tenn.  90 ;  15  Ga. 
473  ;  by  marriage  of  a  feme  sole,  and  the 
husband  and  wife  may  then  be  sued  on  her 
arbitration  bond.  2  Kebl.  865 ;  Rolle,  331 ; 
5  East,  266.    It  is  not  revoked  by  the  bank 


SUBXOTATIOXS 


553 


SUBROGATION 


ruptcy  of  the  party  or  by  the  death  of  the 
arbitrator  after  publication  of  the  award.  4 
Barnew.  &  Aid.  250 ;  2  Chitt.  Bail,  43  ;  2 
Mann.  &  G.  55  ;  1  C.  B.  131 ;  9  Barnew.  & 
C.  629  ;  29  Eng.  L.  &  Eq.  362;  21  Ga.  1. 

SUBNOTATIONS  (Lat.).  In  Civil 
Law.  The  answers  of  the  prince  to  ques- 
tions which  had  been  put  to  him  respecting 
some  obscure  or  doubtful  point  of  law.  See 
Rescript. 

SUBORNATION  OF  PERJURY.  In 
Criminal  Law.  The  procuring  another  to 
commit  legal  perjury,  who  in  consequence  of 
the  persuasion  takes  the  oath  to  which  he  has 
been  incited.  Hawkins,  PI.  Cr.  b.  1,  c.  69, 
8.  10. 

2.  To  complete  the  offence,  the  false  oath 
must  be  actually  taken,  and  no  abortive 
attempt  to  solicit  will  complete  the  crime.  2 
Show.  1;  5  Mete.  Mass.  241. 

But  the  criminal  solicitation  to  commit 
perjury,  though  unsuccessful,  is  a  misde- 
meanor at  common  law.  2  East,  17 ;  6  id. 
464;  2  Chitty,  Grim.  Law,  317.  For  a  form 
of  an  indictment  for  an  attempt  to  suborn  a 
person  to  commit  perjury,  see  2  Chitty,  Crim. 
Law,  480. 

3.  The  act  of  congress  of  March  3,  1825, 
§  13,  provides  that  if  any  person  shall  know- 
ingly or  wilfully  procure  any  such  perjury, 
mentioned  in  the  act,  to  be  committed,  every 
such  person  so  offending  shall  be  guilty  of 
subornation  of  perjury,  and  shall,  on  convic- 
tion thereof,  be  punished  by  fine,  not  exceed- 
ing two  thousand  dollars,  and  by  imprison- 
ment and  confinement  to  hard  labor,  not 
exceeding  five  years,  according  to  the  aggra- 
vation of  the  offence.  See  8  How.  41,  and, 
generally,  Viner,  Abr. ;  Bishop,  Crim.  Law. 

SUBPOSNA  (Lat.  sub,  under,  poena, 
penalty).  In  Practice.  A  process  to  cause 
a  witness  to  appear  and  give  testimony,  com- 
manding him  to  lay  aside  all  pretences  and 
excuses,  and  appear  before  a  court  or  magis- 
trate therein  named,  at  a  time  therein  men- 
tioned, to  testify  for  the  party  named,  under 
a  penalty  therein  mentioned.  This  is  called 
distinctively  a  subpoena  ad  testificandum. 

On  proof  of  service  of  a  subpoena  upon  the 
witness,  and  that  he  is  material,  an  attach- 
ment may  be  issued  against  him  for  a  con- 
tempt, if  he  neglect  to  attend  as  com- 
manded. 

In  Chancery  Practice.  A  mandatory 
writ  or  process  directed  to  and  requiring  one 
or  more  persons  to  appear  at  a  time  to  come 
and  answer  the  matters  charged  against  him 
or  them.  The  writ  of  subpoena  was  origin- 
ally a  process  in  the  courts  of  common  law, 
to  enforce  the  attendance  of  a  witness  to  give 
evidence;  but  this  writ  was  used  in  the  court 
of  chancery  for  the  same  purpose  as  a  cita- 
tion in  the  courts  of  civil  and  canon  law,  to 
compel  the  appearance  of  a  defendant,  and 
to  oblige  him  to  answer  upon  oath  the  allega- 
tions of  the  plaintiff. 

It  was  invented  by  John  Waltham,  bishop  of 
Salisbury,  ani  chancellor  to  Rich.  II.,  under 


the  authority  of  the  statutes  of  Westminster 
2,  and  13  Edw.  I.  c.  34,  which  enabled  him 
to  devise  new  writs.  Cruise,  Dig.  t.  11,  c. 
1,  12-17.  See  Viner,  Abr.  /Suljjjoena;  1 
Swanst.  209;  Spence,  Eq.  Jur. 

SUBPOSNA  DUCES   TECUM.  In 

Practice.  A  Avrit  or  process  of  the  same 
kind  as  the  subpoena  ad  testificandum,  in- 
cluding a  clause  requiring  the  witness  to 
bring  with  him  and  produce  to  the  court 
books,  papers,  etc.,  in  his  hands,  tending  to 
elucidate  the  matter  in  issue.  3  Blackstone, 
Comm.  382.    See  Discovers. 

SUBREPTIO  (Lat.).    In  Civil  Law. 

Obtaining  gifts  of  escheat,  etc.  from  the 
king  by  concealing  the  truth.  Bell,  Diet.; 
Calvinus,  Lex,  Subi'ipere. 

SUBREPTION.  In  French  Law.  The 

fraud  committed  to  obtain  a  pardon,  title,  or 
grant,  by  alleging  facts  contrary  to  truth. 

SUBROGATION.  The  substitution  of 
another  person  in  the  place  of  the  creditor, 
to  whose  rights  he  succeeds  in  relation  to  the 
debt.  That  change  which  puts  another  per- 
son in  the  place  of  the  creditor,  and  which 
makes  the  right,  the  mortgage,  or  the  se- 
curity which  the  creditor  has  pass  to  the  per- 
son who  is  subrogated  to  him, — that  is  to 
say,  who  enters  into  his  right.  Domat,  Civ. 
Law,  pt.  i.  1.  iii.  t.  i.  |  vi. 

It  is  a  legal  fiction  by  force  of  which  an  obliga- 
tion extinguished  by  payment  made  by  a  third 
party  is  considered  as  continuing  to  subsist  for  the 
benefit  of  this  third  person,  who  makes  but  one 
and  the  same  person  with  the  creditor  in  the  view 
of  the  law.  Subrogation  is  the  act  of  putting  one 
thing  in  place  of  another,  or  one  person  in  place 
of  another.  Guyot,  Repertoire  Universelle,  Sub- 
rogation, sect.  ii. 

The  substitution  of  one  creditor  to  the  rights 
and  securities  of  another.  Subrogatio  est  trana- 
/u6io  unius  creditoris  in  alitim  eadem  vel  viitiori 
conditione.    Merlin,  Inst,  de  Droit,  Subrogatio. 

Subrogation  gives  to  the  substitute  all  the  rights 
of  the  party  for  whom  he  is  substituted.  4  Md. 
Ch.  Dec.  253.  Among  the  earlier  civil-law  writers, 
the  term  seems  to  have  been  used  synonymously 
with  substitution;  or,  rather,  subxtitutio)i  included 
subrogation  as  well  as  its  present  more  limited  sig- 
nification. See  Domat,  Civ.  Law,  passim;  Pothier, 
Obi.  passim.  The  term  substitution  is  now  almost 
altogether  confined  to  the  law  of  devises  and  chan- 
cery practice.    See  Substitution. 

The  word  subrogation  is  originally  found  only 
in  the  civil  law,  and  nas  been  adopted,  with  the  doc- 
trine itself,  thence  into  equity ;  but  in  the  law  as 
distinguished  from  equity  it  hardly  appears  as  a 
term,  except  perhaps  in  those  states  where,  as 
in  Pennsylvania,  equity  is  administered  through 
the  forms  of  law.  There  the  term  subrogation, 
adopted  from  the  Roman  law,  has  of  late  years 
come  into  quite  general  use.  6  Penn.  St.  504.  Tho 
equitable  doctrine  of  marshalling  assets  is  plainly 
derived  from  the  Roman  law  of  subrogation  or 
substitution ;  and  although  the  word  is  or,  rather, 
has  been  used  sparingly  in  the  common  law,  many 
of  the  doctrines  of  subrogation  are  familiar  to  the 
courts  of  common  law. 

Subrogation  diflfers  from  cession  in  this  that 
while  cession  only  substitutes  the  one  to  whom  tho 
debt  is  ceded  in  place  of  the  ceder,  in  subrogation 
the  debt  would  have  become  extinguished  but  for 
the  efi"ect  of  the  subrogation ;  and,  also,  becaus* 


SUBROGATION 


554 


SUBKOGAIIOIS 


although  subrogation  supposes  a  change  in  the 
person  of  the  creditor,  it  does  not  imply  novation ; 
but,  through  the  fiction  of  the  law,  the  party  who 
is  subrogated  is  considered  as  making  only  one 
and  the  same  person  with  the  creditor,  whom  he 
succeeds.  Masse,  Droit  Commerciel,  Payment  in 
Subroy  ation. 

It  is  one  thing  to  decide  that  a  surety  is  entitled, 
on  payment,  to  have  an  assignment  of  the  debt, 
and  quite  another  to  decide  that  he  is  entitled  to 
be  subrogated  or  substituted  as  to  the  equities  and 
securities  to  the  place  of  the  creditor,  as  against 
the  debtor  and  his  co-sureties.  Story,  Eq.  Jur.  ^ 
493,  n.j  2  McLean,  C.  C.  451;  1  Dev.  Ch.  No.  C. 
137. 

Subrogation  of  persons  is  of  three  sorts: — 
First,  the  canonists  understand  by  subrogation 
the  succession  of  a  priest  to  the  rights  of  action  of 
the  occupant  of  a  benefice  who  has  died  during  a 
suit.  Guyot,  Rupert.  Univ.  Subrogation  of  Per- 
sons, sect.  i. 

Second,  the  second  sort  arose  from  a  local  cus- 
tom of  the  Bourbonnais,  and  had  for  its  object  the 
protection  of  the  debtor  from  the  effects  of  collu- 
sion on  the  part  of  the  attaching  creditor. 

Third,  subrogation  in  fact  to  aliens  and  pledges, 
which  is  only  the  change  of  one  creditor  for  an- 
other. See  Guyot,  ut  sup.,  and,  also,  Masse,  Droit 
Commerciel. 

Nearly  all  the  instances  in  which  the  common 
law  has  adopted  the  doctrines  of  subrogation  have 
arisen  under  this  latter  class. 

2.  Conventional  subrogation  results,  as  its 
name  indicates,  from  the  agreement  of  the 
parties,  and  can  take  effect  only  by  agree- 
ment. This  agreement  is,  of  course,  with 
the  party  to  be  subrogated,  and  may  be  either 
by  the  debtor  or  creditor.  La.  Civ.  Code, 
1249. 

Thus,  it  may  happen  when  the  creditor  re- 
ceiving payment  from  the  third  person  sub- 
rogates the  payer  to  his  right  against  the 
debtor.  This  must  happen  by  express  agree- 
ment ;  but  no  formal  words  are  required. 
This  sort  of  subrogation  only  takes  place 
where  there  is  a  payment  of  the  debt  by  a 
third  party, — not  where  there  is  an  assign- 
ment, in  which  case  subrogation  results  from 
the  assignment. 

This  principle  is  recognized  by  the  com- 
mon law  in  cases  where  upon  payment  the 
securities  are  transferred  to  a  party  having 
an  interest  in  the  payment.  Or,  in  case  the 
debtor  borrows  money  from  a  third  party  to 
pay  a  debt,  he  may  subrogate  the  lender  to 
the  rights  of  the  creditor;  for  by  this  change 
the  rights  of  the  other  creditors  are  not  in- 
juriously affected.  To  make  this  mode  of 
subrogation  valid,  the  borrowing  and  dis- 
charge must  take  place  before  a  notary ;  in 
the  borrowing  it  must  be  declared  that  the 
money  has  been  borrowed  to  make  payment, 
and  in  the  discharge,  that  it  has  been  made 
with  money  furnished  by  the  creditor.  Masse, 
Droit  Commerciel,  lib.  5,  tit.  1,  ch.  5,  l\  1,  2. 

3.  Legal  subrogation  takes  place  to  its  full 
extent — 

First,  for  the  benefit  of  one  who  being 
himself  a  creditor  pays  the  claim  of  another 
who  has  a  preference  over  him  by  reason  of 
his  liens  and  securities.  For  in  this  case,  it 
is  said,  it  is  to  be  presumed  that  he  pays  for 
the  purpose  of  securing  his  own  debt;  and 


this  distinguishes  his  case  from  that  of  a 
mere  stranger.  Domat,  Civ.  Law,  part  1, 
lib.  3,  tit.  1,  §  6,  art.  6;  Dig.  qui  pvt.  in  tig, 
1.16;  1.11,H;1..12,§9;  1.17,§9.  And  so, 
at  common  law,  if  a  junior  mortgagor  pays 
off  the  prior  mortgage,  he  is  entitled  to  de- 
mand an  assignment  thereof. 

Second,  for  the  benefit  of  the  purchasers 
of  an  immovable,  who  uses  the  price  which 
he  paid  in  paying  the  creditors  to  whom  the 
inheritance  was  mortgaged. 

Third,  for  the  benefit  of  him  who,  being 
held  with  others  or  for  others  for  the  payment 
of  the  debt,  has  an  interest  in  discharging  it. 

Subrogation  takes  place  for  the  benefit 
of  co-promisors  or  co-guarantors,  as  between 
themselves,  and  for  the  benefit  of  sureties 
against  their  principals. 

But  between  co-guarantors  and  co-promisors 
subrogation  benefits  him  who  pays  the  debt 
only  to  the  extent  of  enabling  him  to  recover 
from  each  separately  his  portion  of  the  debt. 

Whether  one  of  four  debtors  who  pays  is 
subrogated  in  solido  against  the  other  three 
for  their  proportion,  or  only  against  each  one 
separately  for  his  share,  is  an  open  question. 
Guyot,  ub.  sup.  But  in  case  of  the  insol- 
vency of  one  of  the  three,  all  who  are  sol- 
vent must  divide  the  loss.  This  doctrine  is 
adopted  in  the  common  law  under  the  name 
of  contribution.    See  Contribution. 

4.  As  against  his  co-sureties,  the  surety  in- 
creasing the  value  of  their  joint  security  is 
entitled  to  subrogation  only  to  the  amount 
actually  paid.  6  Ind.  857 ;  12  Gratt.  Va.  642. 
Any  arrangement  by  one  co-surety  with  the 
principal  enures  to  the  benefit  of  all  the  co- 
sureties.  26  Ala.  N.  s.  280,  728. 

If  one  of  several  grantees  of  a  mortgagor 
pays  the  mortgage,  the  debt  is  discharged  as 
to  all.    7  Mass.  355. 

Subrogation  for  the  whole  sum  takes  place 
only  when  the  person  who  pays  ought  to  have 
recourse  to  the  principal  debtor  for  the  whole. 
But  when  the  person  paying  ought  only  to  [ 
have  recourse  for  part,  and  is  debtor  without  \ 
recourse  ^nd  on  his  own  account  also,  the  / 
subrogation  will  only  be  for  the  portions  for  ' 
which  he  might  have  recourse.    Mass^,  uh.  I 
sup.  1 

Most  of  the  cases  of  subrogation  so  called 
in  the  common  law  arise  from  transactions  of 
principals  and  sureties. 

Courts  of  equity  have  held  sureties  entitled, 
upon  payment  of  the  debt  due  by  their  prin- 
cipal to  the  creditor,  to  have  the  full  benefit 
of  all  the  collateral  securities,  both  of  a  legal 
and  equitable  nature,  which  the  creditor  has 
taken  as  an  additional  pledge  for  his  debt. 
Story,  Eq.  Jur.  §  499. 

It  is  a  settled  rule  that  in  all  cases  where 
a  party  only  secondarily  liable  on  an  obliga- 
tion is  compelled  to  discharge  it,  he  has  a 
right  in  a  court  of  equity  to  stand  in  the 
place  of  the  creditor,  and  be  subrogated  to 
all  his  rights  against  the  party  previously 
liable.  4  Johns.  Ch.  N.  Y.  123;  3  Paige, 
Ch.  N.  y.  117;  17  Johns.  N.  Y.  584;  2  Call. 
Va.  125;  11  Ves.  Ch.  12,  22;  14  id.  162;  2 


SUBROGATION 


555 


SUBROGATION 


Binn.  Penn.  382;  3  Stor.  C.  C.  392;  1  Gill  & 
J.  M(l.  346;  2  Yerg.  Tenn.  34G;  G  Rand.  Va. 
98;  8  Watts,  Penn.  384;  2  Penn.  St.  296;  1 
Harr.  Del.  367;  1  Ired.  Eq.  No.  C.  113;  11 
Gratt.  Va.  522;  2  M'Cord,  Ch.  So.  C.  455;  3 
Ala.  N.  s.  302;  25  id,  250;  5  B.  Monr.  Ky 
393  ;  3  Ilumphr.  Tenn.  547 ;  6  Gill  &  J.  Md. 
243;  3  Leigh,  Va.  272;  4  Hen.  &  M.  Va. 
436;  1  Dev.  Eq.  No.  C.  137;  2  Dev.  &  B. 
Eq.No.C.390;  10  Yerg.  Tenn.  310;  27  Miss. 
679;  17  Conn.  575;  17  Eng.  L.  &  Eq.  346. 
This  is  clearly  the  case  where  the  surety 
takes  an  assignment  of  the  security.  2  Me. 
341. 

5.  If  a  surety  on  a  debt  secured  by  mort- 
gage pays  the  debt,  he  is  entitled  to  the 
mortgage  as  security.  1  Turn.  &  R.  Ch.  224; 
4Russ.Ch.277;  1  Younge,  Ch.  Ill ;  3  Mylne 
&  R.  Ch.  183;  2  Swanst.  Ch.  191;  2  Sim.  Ch. 
155.  In  all  cases  the  payment  must  have 
been  made  by  a  party  liable,  and  not  by  a 
mere  volunteer.  3  Paige,  Ch.  N.  Y.  117;  1 
Spears,  Eq.  So.  C.  37 ;  2  Brock.  Va.  252. 
The  creditor  must  have  had  his  claim  fully 
satisfied,  1  Gill  &  J.  Md.  347 ;  3  Md.  Ch.  Dec. 
334,  and  the  surety  claiming  subrogation 
must  have  paid  it,  6  Watts,  Penn.  221 ;  7 
Watts  &  S.  Penn.  99;  3  Heyw.  No.  C.  14;  3 
Barb.  Ch.  N.  Y.  625;  11  Ired.  No.  C.  118;  13 
111.  68,  and  is  subrogated,  vrhere  he  has  paid 
to  redeem  a  security,  only  to  the  amount  he 
has  paid,  M^hatever  be  the  value  of  the  secu- 
rity. 19  Miss.  632;  2  Sneed,  Tenn.  93;  11 
Gratt.  Va.  522.  But  giving  a  note  is  pay- 
ment within  this  rule.  8  Tex.  66. 

Judgment  obtained  against  the  principal 
and  surety  does  not  destroy  the  relation  as 
between  themselves.  2  Ga.  239;  11  Barb. 
N.  Y.  159.  If  a  judgment  is  recovered 
against  a  debtor  and  surety  separately  for 
the  same  amount,  the  surety  can  enforce  the 
judgment  against  his  principal  when  as- 
signed to  him  after  he  paid  the  amount  of 
the  judgment.  10  Joins.  N.  Y.  524;  3  Rich. 
Eq.  So.  C.  139. 

A  surety  in  a  judgment,  to  obtain  a  stay 
of  execution,  is  not  entitled  to  be  substituted 
on  paying  the  judgment.  5  Watts  &  S.  Penn. 
352;  1  Penn.  St.  512.  Nor  can  the  surety  be 
subrogated,  although  he  has  paid  a  judgnient, 
if  he  has  brought  suit  against  his  principal 
and  failed  to  recover.    8  Watts,  Penn.  384. 

6.  If  a  judgment  is  recovered  and  the 
sureties  pay.  they  are  entitled  to  be  subro- 
gated, 1  Watts  &  S.  Penn.  155 ;  3  Leigh,  Va. 
272;  14  Ga.  674;  5  B.  Monr.  Ky.  393;  22 
Ala.  N.  s.  782;  3  Sandf.  Ch.  N.  Y.  431,  even 
where  a  mortgage  had  been  given  them,  but 
which  turned  out  to  be  invalid.  4  Hen.  &  M. 
Va.  436.  This  seems  to  be  contradicted  in  3 
Gratt.  Va.  343. 

Entry  of  satisfaction  on  a  judgment  does 
not  destroy  subrogation,  if  the  entry  was  not 
made  at  the  instance  of  the  surety.  20  Penn. 
St.  41.  ^ 

A^'here  the  surety  has  become  liable  on  the 
contract  of  his  principal,  when  the  principal 
fails  to  perform  the  contract  the  surety  may 
nay  and  be  subrogated.   6  Gill  &  J.  Md.  243 ; 


15  N.  II.  119:  thus,  where  the  surety  was 
held  on  a  bond  which  he  was  obliged  to  pay, 
2  Call,  Va.  125;  1  Ired.  Ch.  No.  C.  340;  3 
id.  17,  147;  22  Vt.  274;  and  this  even  where 
the  bond  was  given  to  the  United  States  to 
pay  duties  on  goods  belonging  to  a  third 
person.  4  Rand.  Va.  438.  And  where  the 
bond  was  given  for  the  payment  of  the  price 
of  land,  he  was  allowed  to  sell  the  land.  2 
Dev.  &  B.  No.  C.  390;   3  Ala.  n.  s.  430;  2 

B.  Monr.  Ky.  50. 

But  it  is  said  the  mere  payment  does  not 
ipso  facto  subrogate  him.  6  Watts  &  S.  Penn. 
190. 

If  the  surety  be  also  a  debtor,  there  will 
be  no  substitution,  unless  expressly  made,  2 
Penn.  St.  296;  and  the  person  who  claims  a 
right  of  subrogation  must  have  superior 
equities  to  those  opposing  him.  3  Penn.  St. 
200. 

Sureties  of  a  surety,  and  his  assignee,  are 
entitled  to  all  the  rights  of  the  surety,  and 
to  be  substituted  to  his  place  as  to  all  reme- 
dies against  the  principal  or  his  estate.  5 
Barb.  N.  Y.  398 ;  22  Vt.  274. 

•y.  Fourth,  subrogation  is  allowed  in  the 
civil  law  for  the  benefit  of  the  beneficiary 
heir  who  has  paid  with  his  own  money  the 
debts  of  the  inheritance.   Mass^,  uh.  sup. 

Fifth,  and  for  the  benefit  of  the  payer  of 
a  debt  through  the  medium  of  a  bill  of  ex- 
change or  promissory  negotiable  note.  Code 
Commerciel,  159. 

Sixth,  and  for  the  benefit  of  the  successive 
indorsers  of  a  note,  to  the  rights  of  those 
who  follow  them  against  those  who  precede 
them,  when  they  are  called  upon  to  pay  the 
note. 

The  debt  of  the  accepter  of  a  bill  is  not 
extinguished  by  the  payment  of  the  bill  by 
the  indorser  or  drawer ;  for  the  same  rights 
will  remain  against  him,  in  their  favor, 
which  the  holder  had  himself,  unless  he  is  a 
mere  accommodation  accepter.  Story,  Bills, 
g  422.  See  a  limitation  in  19  Barb.  N.  Y. 
562. 

But  if  payment  is  made  hj  an  indorser 
who  had  not  received  due  notice,  it  is  at  hia 
own  risk,  and  he  can  ordinarily  have  no  re- 
course over  to  third  persons.  Chitty,  Bills, 
c.  9. 

An  accommodation  accepter  is  not  entitled 
on  payment  to  a  security  given  to  an  accom- 
modation indorser.    1  Dev.  Eq.  No.  C.  205. 

An  accommodation  indorser  who  is  obliged 
to  pay  the  note  is  subrogated  to  the  collate- 
ral securities.  12  La.  Ann.  733.  This  sub- 
rogation in  the  civil  law  operates  for  ihe 
benefit  of  a  holder  by  intervention  [i.e.  who 
pays  for  the  honor  of  the  drawer). 

This  species  of  subrogati(>n  (by  indorse- 
ment) is  to  be  distinguished  from  that  which 
a  surety  on  a  note  has  when  he  is  compelled 
to  pay.  Such  surety  is  entitled  to  the  benefit 
of  all  the  securities  which  the  holder  has.  2 
Rich.  Eq.  So.  C.  179;  4  Ired.  Eq.  No.  C.  22; 
22  Penn.  St.  68;   7  N.  H.  236;   7  Rich.  So. 

C.  112. 

8.  In  the  civil  law,  an  agent  who  buyp 


SUBSCRIBING  WITNESS  556 


SUBSTITUTES 


goods  for  his  principal  with  his  own  money 
is  so  far  subrogated  to  the  principal's  rights 
that  if  he  fails  the  agent  may  sell  his  goods 
as  if  they  were  his  own.  Gourde  Cass.  Nov. 
14,  1810;  Dev.  et  Car.  3.  1.  258. 

An  insurer  of  real  property  is  subrogated 
to  the  rights  of  the  insured  against  third 
parties  who  are  responsible  for  the  loss  at 
common  law.  3  Dougl.  63,  245 ;  2  Barnew. 
&  C.  254;  13  Mete.  Mask  99;  39  Me.  253  ; 
25  Conn.  265.  But  an  insurance  company  is 
not  subrogated  to  the  rights  of  a  mortgagee 
who  has  paid  the  premiums  himself,  so  as  to 
demand  an  assignment  of  the  mortgage  be- 
fore paying  his  claim  when  the  buildings 
were  burned.  7  Cush.  Mass.  1 ;  2  Gray, 
Mass.  216;  8  Hare,  Ch.  216. 

In  Canada,  this  subrogation  takes  place,  1 
Low.  Can.  222,  and  would  probably  in  New 
York.    17  N.  Y.  429. 

In  the  civil  law,  whoever  paid  privileged 
debts,  such,  for  example,  as  the  funeral  ex- 
penses, had  by  subrogation  the  prior  claim : 
Eorum  ratio  prior  est  creditorum  quorum  pe- 
cunia  ad  creditor es  privilegios  pervenii.  Dig. 
de  reb.  anc.jud.  pos.  1.  24,  ^  3. 

So,  if  during  the  community  of  goods 
arising  from  the  relation  of  husband  and 
wife  an  annuity  which  was  due  from  one  of 
them  only  was  redeemed  by  the  money  be- 
longing to  both,  the  other  was  subrogated 
pleno  jure  as  to  that  part  of  the  claim. 
Pothier,  Obi.  pt.  3,  c.  1,  art.  6,  I  2. 

In  the  civil  law,  the  consignee  of  goods 
who  pays  freight  is  said  to  be  subrogated  to 
the  rights  of  the  carrier  and  forwarder. 
Cour  de  Cass.  7  Dec.  1826;  Dev.  et  Car.  8.  1. 
476. 

The  common  law  does  not  recognize  this 
right  as  a  subrogation.    But  see  Lien. 

In  marshalling  assets,  M^here  a  mortgagee 
has  a  lien  on  two  funds,  if  he  satisfy  himself 
out  of  one  which  is  mortgaged  to  a  junior 
mortgagee  so  as  to  extinguish  the  fund,  the 
junior  mortgagee  is  subrogated  to  the  other 
fund.    4  Sandf.  Ch.  N.  Y.  510. 

This  right  of  subrogation  is  a  personal 
right,  but  may  be  assigned,  3  Penn.  St.  300; 
and  the  creditors  of  the  surety  may  claim 
the  benefit  of  the  right.  8  Penn.  St.  347; 
10  id.  519 ;  22  Miss.  87.  As  to  which  of  two 
parties  liable  for  the  debt  shall  be  subrogated, 
see  23  Vt.  169. 

Sureties  of  a  surety  are  entitled  to  the 
rights  by  subrogation  of  their  principal.  5 
Barb.  N.  Y.  398;  22  Vt.  274.  The  creditor 
need  not  be  made  a  party  to  a  bill  to  obtain 
subrogation.  10  Yerg.  Tenn.  310.  Consult 
Domat,  Civil  Law;  Guyot,  Rupert.  Univ.; 
Masse,  Droit  Comm.;  Dixon,  Subrogation. 

SUBSCRIBING  WITNESS.  One 
who  subscribes  his  name  to  a  writing  in 
order  to  be  able  at  a  future  time  to  prove  its 
due  execution.    An  attesting  witness. 

In  order  to  make  a  good  subscribing  wit- 
ness, it  is  requisite  he  should  sign  his  name 
to  the  instrument  himself,  at  the  time  of  its 
execution,  and  at  the  request  or  with  the  as- 
sent of  the  party.    6  Hill,  N.  Y.  303 ;  11  Mees. 


&  W.  Exch.  168:  1  Greenleaf,  Ev.  4th  ed.  | 
569  a;  5  Watts,  Penn.  399. 

SUBSCRIPTION  (Lat.sit6,  under,  scn6o, 
to  write).  The  placing  a  signature  at  the 
bottom  of  a  written  or  printed  engagement ; 
or  it  is  the  attestation  of  a  witness  by  so 
writing  his  name ;  but  it  has  been  holden 
that  the  attestation  of  an  illiterate  witness 
by  making  his  mark  is  a  sufficient  subscrip- 
tion. 7  Bingh.  457  ;  2  Ves.  Sen.  Ch.  454;  1 
Atk.  Ch.  177  ;  1  Ves.  Ch.  11 ;  3  P.  Will.  Ch. 
253  ;  1  Ves.  &  B.  Ir.  Ch.  392. 

The  act  by  which  a  person  contracts,  in 
writing,  to  furnish  a  sum  of  money  for  a 
particular  purpose:  as,  a  subscription  to  a 
charitable  institution,  a  subscription  for  a 
book,  for  a  newspaper,  and  the  like. 

SUBSCRIPTION  LIST.  A  list  of 
subscribers  to  some  agreement  with  each 
other  or  a  third  person. 

The  subscription  list  of  a  newspaper  is  an 
incident  to  the  newspaper,  and  passes  with 
the  sale  of  the  printing  materials.  2  Watts, 
Penn.  111. 

SUBSIDY.  In  English  Law.  An  aid, 
tax,  or  tribute  granted  by  parliament  to  the 
king  for  the  urgent  occasions  of  the  kingdom, 
to  be  levied  on  every  subject  of  ability,  ac- 
cording to  the  value  of  his  lands  or  goods.  ^ 
Jacob,  Law  Diet. 

In  International  Law.    The  assistance 
given  in  money  by  one  nation  to  another  to 
enable  it  the  better  to  carry  on  a  war,  when  ; 
such  nation  does  not  join  directly  in  tliewar.  ' 
Vattel,  liv.  3,  §  82.    See  Neutrality. 

SUBSTANCE  (Lat.  sub,  under,  stare,  to  ( 
stand).  That  which  is  essential:  it  is  used  ' 
in  opposition  to  form. 

It  is  a  general  rule  that  on  any  issue  it  is  suffi-  i 
cient  to  prove  the  substance  of  the  issue.  For 
example,  in  a  case  where  the  defendant  pleaded  , 
payment  of  the  principal  sum  and  all  interest  due,  ' 
and  it  appeared  in  evidence  that  a  gross  sum  was  [ 
paid,  not  amounting  to  the  full  interest,  but  ac-  j 
cepted  by  the  plaintiff  as  full  payment,  the  proof  ; 
was  held  to  be  sufficient.  2  Strange,  690 ;  1  Phil-  \ 
lipps,  Ev.  161.  ^ 

SUBSTITUTE  (Lat.  substitutus).    One  [ 
placed  under  another  to  transact  business  for  ' 
him.    In  letters  of  attorney,  power  is  gene- 
rally given  to  the  attorney  to  nominate  and 
appoint  a  substitute. 

Without  such  power,  the  authority  given  to  one 
person  cannot,  in  general,  be  delegated  to  another, 
because  it  is  a  personal  trust  and  confidence,  and 
is  not,  therefore,  transmissible.  The  authority  ia 
given  to  him  to  exercise  his  judgment  and  discre- 
tion, and  it  cannot  be  said  that  the  trust  and  jon- 
fidence  reposed  in  him  shall  be  exercised  at  the 
discretion  of  another.  2  Atk.  Ch.  88 ;  2  Ves.  Ch. 
645.  But  an  authority  may  be  delegated  to  another 
when  the  attorney  has  express  power  to  do  so. 
Bunb.  166;  T.  Jones,  110.  See  Story,  Ag.  13, 
14.  When  a  man  is  drawn  into  the  militia,  he  may 
in  some  cases  hire  a  substitute. 

SUBSTITUTES.  In  Scotch  Law. 
Where  an  estate  is  settled  on  a  long  series  of 
heirs,  substituted  one  after  another,  in  tailzie, 
the  person  first  called  in  the  tailzies  is  the 


SUBSTITUTION 


557 


SUGGESTION 


institute ;  the  rest,  the  heirs  of  tailzie,  or 
the  substitutes.  Erskiiie,  Inst.  3.  8.  8.  See 
Tailzie. 

SUBSTITUTION  ( Lat.  suhstiiutio).  In 
Civil  Law.  The  putting  of  one  person  in 
the  phice  of  another,  so , that  he  may,  in  de- 
fault of  ability  in  the  former,  or  after  him, 
have  the  benefit  of  a  devise  or  legacy. 

Direct  substitution  js  merely  the  institu- 
tion of  a  second  legatee  in  case  the  first 
should  be  either  incapable  or  unwilling  to 
accept  the  legacy:  for  example,  if  a  testator 
should  give  to  Peter  his  estate,  but  in  case 
he  cannot  legally  receive  it,  or  he  w^ilfully 
refuses  it,  then  I  give  it  t«  Paul.  Fidei  com- 
missary substitution  \9,  that  which  takes  place 
when  the  person  substituted  is  not  to  receive 
the  legacy  until  after  the  first  legatee,  and, 
consequently,  must  receive  the  thing  be- 
queathed from  the  hands  of  the  latter:  for 
example,  I  institute  Peter  my  heir,  and  I  re- 
quest that  at  his  death  he  shall  deliver  my 
succession  to  Paul.  Merlin,  Repert. ;  5  Toul- 
lier,  14.    See  Subrogation. 

SUBSTRACTION.  In  French  Law. 
The  act  of  taking  something  fraudulently : 
it  is  generally  applied  to  the  taking  of  the 
goods  of  the  estate  of  a  deceased  person 
fraudulently.    See  Expilation. 

SUBTRACTION  (Lat.  sub,  away,  iralio, 
to  draw).  The  act  of  withholding  or  detain- 
ing any  thing  unlawfully. 

SUBTRACTION  OF  CONJUGAL 
RIGHTS.  The  act  of  a  husband  or  wife 
living  separately  from  the  other  without  a 
lawful  cause.    3  Blackstone,  Comm.  94. 

SUCCESSION.    In  Louisiana.  The 

right  and  transmission  of  the  rights  and 
obligations  of  the  deceased  to  his  heirs.  The 
estate,  rights,  and  charges  which  a  person 
leaves  after  his  death,  whether  the  property 
excee#the  charges  or  the  charges  exceed  the 
property,  or  whether  he  has  left  only  charges 
without  property.  The  succession  not  only 
includes  the  rights  and  obligations  of  the 
deceased  as  they  exist  at  the  time  of  his 
death,  but  all  that  has  accrued  thereto 
since  the  opening  of  the  succession,  as  also 
of  the  new  charges  to  which  it  becomes  sub- 
ject. That  right  by  which  the  heir  can  take 
possession  of  the  estate  of  the  deceased,  such 
as  it  may  be. 

Irregular  succession  is  that  which  is  esta- 
blished by  law  in  favor  of  certain  persons  or 
of  the  state  in  default  of  heirs  either  legal  or 
instituted  by  testament. 

Legal  succession  is  that  which  is  esta- 
blished in  favor  of  the  nearest  relations  of 
the  deceased. 

Testamentary  succession  is  that  which  re- 
sults from  the  constitution  of  the  heir,  con- 
tained in  a  testament  executed  in  the  form 
prescribed  by  law.  See  Heir;  Descent; 
Pothier,  des  Successions  ;  Toullier,  1.  3,  tit.  1. 

In  Common  Law.  The  mode  by  which 
niie  set  of  persons,  members  of  a  corporation 
"Agregate,  acquire  the  rights  of  another  set 


which  preceded  them.  This  term  in  strict- 
ness is  to  be  applied  only  to  such  corporations. 
2  Sharswood,  lilackst.  Comm.  430. 

SUCCESSOR.  One  who  follows  or  comes 
into  the  place  of  another. 

This  terra  is  applied  more  particularly  to  a  sole 
corporation,  or  to  any  corporation.  The  word  heir 
is  more  correctly  applicable  to  a  common  person 
who  takes  an  estate  by  descent.  12  Pick.  Mass. 
322;  Coke,  Litt.  8  b.  ' 

A  person  who  has  been  appointed  or  elected 
to  some  office  after  another  person. 

SUCKEN,  SUCHEN.  In  Scotch 
Law.  The  whole  lands  restricted  to  a  mill, 
— that  is,  whose  tenants  are  bound  to  grind 
there.  The  possessors  of  these  lands  are 
called  suckeners.    Bell,  Diet. 

SUE.  To  commence  or  continue  legal 
proceedings  for  the  recovery  of  a  right.  See 
Action  ;  Suit. 

SUFFRAGAN  (L.  Lat.  sufraganeus), 
A  titular  bishop  ordained  to  assist  the  bishop 
of  the  diocese  in  his  spiritual  functions,  or  to 
take  his  place.  The  number  was  limited  to 
two  to  each  bishop  by  26  Hen.  VIII.  c.  14. 
So  called  because  by  his  suffrage  ecclesi- 
astical causes  were  to  be  judged.  Termes 
de  la  Ley. 

SUFFRAGE.    Vote ;  the  act  of  voting. 

The  right  of  suffrage  is  given  by  the  con 
stitution  of  the  United  States,  art.  1,  s.  2,  tc 
such  of  the  electors  in  each  state  as  shall  have 
the  qualifications  requisite  for  electors  of  the 
most  numerous  branch  of  the  state  legisla- 
ture. See  2  Story,  Const.  ^  578  et  seq.;  Amer. 
Citiz.  201;  1  Blackstone,  Comm.  171;  2 
Wilson,  Lect.  130;  Montesquieu,  Esp.  des 
Lois,  liv.  11,  c.  6  ;  1  Tucker,  Blackst.  Comm. 
App.  52,  53. 

SUGGESTIO  FALSI  (Lat.).  A  state- 
ment of  a  falsehood.  This  amounts  to  a 
fraud  whenever  the  party  making  it  was 
bound  to  disclose  the  truth. 

The  following  is  an  example  of  a  case  where 
chancery  will  interfere  and  set  aside  a  contract  as 
fraudulent,  on  account  of  the  svfjgesdo  falsi:  a 
purchaser  applied  to  the  seller  to  purchase  a  lot  of 
wild  land,  and  represented  to  him  it  was  worth 
nothing,  except  for  a  sheep  pasture,  when  he  knew 
there  was  a  valuable  mine  on  the  lot,  of  which  the 
seller  was  ifjnoraut.  The  sale  was  set  aside.  2 
Paige,  Ch.  N.  Y.  390;  4  Bouvier,  Inst.  n.  3837  et 
seq.  See  Concealment;  Misrepresentation; 
Representation;  Suppressio  Veri. 

SUGGESTION.  In  Practice.  Inform- 
ation. It  is  applied  to  those  cases  where 
during  the  pendency  of  a  suit  some  matter  of 
fact  occurs  which  puts  a  stop  to  the  suit  in 
its  existing  form,  such  as  death  or  insol- 
vency of  a  party ;  the  counsel  of  the  other 
party  announces  the  fact  in  court  or  enters 
it  upon  the  record  :  the  fact  is  usually  ad- 
mitted, if  true,  and  the  court  issues  the  proper 
order  thereupon.    See  2  Sellon,  Pract.  191. 

In  wills,  when  suggestions  are  made  to  a 
testator  for  the  purpose  of  procuring  a  devise 
of  his  property  in  a  particular  way,  and 
when  such  suggestions  are  false,  they  gen'v 


SnOGESTIVE  INTERROGATION  558 


SUIT 


rally  amount  to  a  fraud.  Bacon,  Abr.  Wills 
(G  3)  ;  5  Toullier,  n.  706. 

SUGGESTIVE  INTERROGATION. 

A  phrase  which  has  been  used  by  some  writers 
to  signify  the  same  thing  as  leading  question. 
2  Bentham,  Ev.  b.  3,  c.  3.  It  is  used  in  the 
French  laAv. 

SUI  JURIS  (Lat.  of  his  own  right). 
Possessing  all  the  rights  to  which  a  freeman 
is  entitled  ;  not  being  under  the  power  of 
another,  as  a  slave,  a  minor,  and  the  like. 

To  make  a  valid  contract,  a  person  must, 
in  general,  be  sui  Juris.  Every  one  of  full 
age  is  presumed  to  be  sui  Juris.    Story,  Ag. 

SUICIDE  (Lat.  suns,  oneself,  ccedere,  to 
kill).  In  Medical  Jurisprudence.  Self- 
destruction. 

This  was  once  regarded  by  the  common  law  as 
exclusively  a  felonious  act :  of  late,  however,  it  has 
been  often  treated  as  the  result  of  insanity,  to  be 
followed  by  all  the  legal  consequences  of  that  dis- 
ease, so  far  as  it  is  practicable.  That  suicide  may 
be  committed  by  a  person  in  the  full  enjoyment  of 
his  reason,  there  can  be  no  doubt;  nor  can  there 
be  any  doubt  that  it  is  often  the  result  of  unques- 
tionable insanity.  Between  the  two  kinds  of  suicide 
here  indicated,  the  medical  jurist  is  obliged  to  dis- 
criminate, and  in  performing  this  duty  the  facts  on 
ihe  subject  should  be  carefully  considered. 

The  instinct  of  self-preservation  is  not  so  strong 
as  to  prevent  men  entirely  from  being  tired  of  life 
and  seeking  their  own  destruction.  They  may 
have  exhausted  all  their  sources  of  enjoyment,  their 
plans  of  business  or  of  honor  may  have  been  frus- 
trated, poverty  or  dishonor  may  be  staring  them  in 
the  face,  the  difficulties  before  them  may  seem 
utterly  insurmountable,  and,  for  some  reason  like 
these,  they  calmly  and  deliberately  resolve  to  avoid 
the  evil  by  ending  their  life.  The  act  may  be  un- 
wise an  l  pvosuinittuous,  but  there  is  in  it  no  element 
of  disease.  On  the  other  hand,  it  is  well  known 
that  suicidal  desires  are  a  very  common  trait  of  in- 
sanity,— that  a  large  proportion  of  the  insane 
attempt  or  Mtditate  self-destruction.  It  may  be 
prompte  l  by  i  particular  delusion,  or  by  a  sense  of 
irresistible  necessity.  It  may  be  manifested  in  the 
shape  of  a  well-considered,  persistent  intention  to 
seize  upon  the  first  opportunity  to  terminate  life, 
or  of  a  blind,  automatic  impulse  acting  without 
much  regard  to  means  or  circumstances.  As  the 
disease  -iivcs  way  and  reason  is  restored,  this  pro- 
pensity disappears,  avid  the  love  of  life  returns. 

Besides  these  two  forms  of  the  suicidal  propen- 
sity, there  are  other  phases  which  cannot  be  re- 
ferred with  any  degree  of  certainty  to  either  of 
theui.  Persons,  for  inulance,  in  the  enjoyment  of 
every  thing  calculated  to  make  life  happy,  and  ex- 
hibiting no  sign  of  mental  disease,  deliberately 
end  their  days.  Another  class,  on  approaching  a 
precipice  or  a  body  of  waier,  are  seized  with  a 
d.esire,  which  may  be  irresistible,  to  take  the  fatal 
plunge.  Many  are  the  cases  of  children  who,  after 
Bome  mild  reproof,  or  slight  contradiction,  or  trivial 
disappointment,  have  gone  at  once  to  some  retired 
■  place  and  taken  their  lives.  Now,  wc  are  as  little 
prepared  to  refer  all  such  cases  to  mental  disease 
as  we  are  to  free  voluntary  choice.  Every  case, 
therefore,  must  be  judged  by  the  circumstances 
accompanying  it,  always  allowing  the  benefit  of 
the  doubt  to  be  given  to  the  side  of  humanity  and 
justice. 

2.  By  the  common  law,  suicide  was  treated 
as  a  crime,  and  the  person  forfeited  all  chat- 
tels real  or  personal,  and   various  other 


kstone,  Comm.  190.  This 
led  by  establishing  the  in 
and  in  England,  of  late 
favored  this  course  when- 
:  of  suicide  would  operate 
3n  the  other  hand,  where 
rests  of  other  parties  are 
•  ion  of  insanity  is  more 
>  and  ample  proof  is  re- 
bn  whom  the  burden  of 


property, 
result  can 
sanity  of  tl 
years,  coun 
ever  the  leg 
as  a  punish 
the  rights  i 
involved,  th 
closely  scru 
quired  of  th 
proof  lies. 

In  regard  made  just  before  com- 

mitting suic  prevalent  doctrine  on 

this  point,  buin  in  the  United  States  and  in 
England,  is  that  the  act  of  self-destruction 
may  not  necessarily  imply  insanity,  and  that 
if  the  will  is  a  rational  act,  rationally 
done,  the  sanity  of  the  testator  is  established. 
7  Pick.  Mass.  94 ;  1  Hagg.  Eccl.  109  ;  2  Harr. 
Del.  583  ;  2  Eccl.  415. 

In  regard  to  life-insurance,  it  is  the  law 
of  England,  at  present,  that  in  every  case  of 
intentional  suicide,  whatever  may  have  been 
the  mental  condition,  the  policy  becomes  void. 

3  Mann.  &  G.  437  ;  5  id.  039^;  4  AM.  Mass. 
96.  See  Wharton,  Mental  Unsoundness;  Phil- 
lips, Ins. 

3.  In  cases  of  persons  found  dead,  the 
cause  may  not  be  always  perfectly  obvious, 
and  it  becomes  ncce^^^ary  to (iet<'rmine  whether 
death  was  an  act  of  suicide,  or  murder.  This 
is  often  one  of  the  nioj^t  d  fiicult  questions  in 
the  whole  ran^^e  of  medical  jurisprudence, 
requiring  for  its  solution  the  most  profound 
knowledge  of  surgery  and  piiysiology,  and 
great  practical  t^agacity.  In  case  of  death 
caused  by  wounds,  the  kind  and  situation  of  ^ 
the  weapon,  the  extent,  direction,  and  situa- 
tion of  the  wounds,  their  connection  with 
marks  of  blows,  the  temper  and  disposition 
of  the  person,  all  these  and  many  other  cir- 
cumstances must  be  carefully  and  intelligently 
invest'gated.  The  frequency  with  which  cases 
of  suicide  strongly  resemble,  in  their  fhcternal 
characters,  those  of  murder,  renders  neces- 
sary the  highest  degree  of  skill  and  careful 
discrimination.  If  one  counsels  another  to  I 
commit  suicide,  and  is  present  at  the  con- 
summation of  the  act,  it  is  murder  in  the  prin- 
cipal.   13  Mass.  359  ;  Iluss.  &  R.  Cr.  Cas.  523.  i 

SUIT  (L.  Lat.  sccfa ;  from  Lat.  sequi,  to 
folioAv.  French,  suite).  In  Practice.  An 
action. 

The  word  suit  in  the  twenty-fifth  section  of  the 
Judiciary  Act  of  1789  applies  to  any  proceeding  in 
a  court  of  justice  in  which  the  i)laintiff  pursues  in 
such  court  the  remcdj'  which  the  law  affords  him. 
An  application  for  a  prohibition  is,  therefore,  a 
suit.  2  Pet.  449.  According  to  the  Code  of  Prac- 
tice of  Louisiana,  art.  96,  a  suit  is  a  real,  personal, 
or  mixed  demand  made  before  a  competent  judge, 
by  which  the  parties  pray  to  obtain  their  rights 
and  a  decision  of  their  disputes.  In  that  accepta- 
tion, the  words  suit,  process,  and  cause  are  in  that 
state  almost  synonymous.  See  Secta  ;  Stephen, 
Plead.  427;  .3  Sharswood,  Blackst.  Comm.  395 ;  1 
Chitty,  Plead.  399 ;  Wood,  Civ.  Law,  b.  4,  p.  315; 

4  Mass.  263;  18  Johns.  N.  Y.  14;  4  Watts,  Penn. 
154;  3  Story,  Const.  {J  1719.  In  its  most  extended 
sense,  the  word  suit  includes  not  only  a  civil  action, 
but  also  a  criminal  prosecution,  as,  indictment,  in 


SUITE 


559  SUNDAY 


formation,  and  a  conviction  by  a  magistrate.  Ifam- 
mond,  Nisi  P.  270.  Suit  is  applied  to  proceedings 
in  chancery  as  well  as  in  law,  1  Smith,  Chanc.  Dec. 
26,  27,  and  is,  therefore,  more  general  than  action, 
which  is  almost  exclusively  applied  to  matters  of 
law.  10  Paige,  Ch.  N.  Y.  516,  517.  But  Actions 
is  a  title  in  the  United  States  Equity  Digest. 
The  witnesses  or  followers  of  the  plaintiff. 

3  Sharswood,  Blackst.  Comm.  295.  See 
Secta. 

Suit  of  court,  an  attendance  which  a  tenant 
owes  to  his  lord's  court.  Cowel,  Gloss. ; 
Jacob,  Law  Diet.  4. 

Suit  covenant,  where  one  has  covenanted 
to  do  suit  and  service  in  his  lord's  court. 

Suit  custom,  where  service  is  owed  time 
out  of  mind. 

Tho  following  one  in  chase:  as,  fresh  suit. 

A  petition  to  a  king,  or  a  great  person,  or 
n  court. 

SUITE  (French).  Those  persons  who  by 
his  authority /o^/oM7  or  attend  an  ambassador 
or  other  public  minister. 

In  general,  the  suite  of  a  minister  are  pro- 
tected from  arrest,  and  the  inviolability  of 
his  person  is  communicated  to  those  who 
form  his  suite.  Vattel,  lib.  4,  c.  9,  g  120. 
See  1  Dall.  Penn.  177  ;  Baldw.  C.  C.  240 ; 
Ambassador. 

SUITOR.  One  who  is  a  party  to  a  suit 
or  action  in  court.  One  who  is  a  party  to  an 
action.  In  its  ancient  sense,  suitor  meant 
one  who  was  bound  to  attend  the  county 
court;  also,  one  who  formed  part  of  the 
secta. 

SULTAN.  The  title  of  the  Turkish  sove- 
reign and  other  Mohammedan  princes. 

SUMMARY  PROCEEDING.  A  form 
of  trial  in  which  the  ancient  established 
course  of  legal  proceedings  is  disregarded, 
especially  in  the  matter  of  trial  by  jury,  and, 
in  the  case  of  the  heavier  crimes,  presentment 
by  a  grand  jury.    See  8  Gray,  Mass.  329. 

In  no  case  can  the  party  be  tried  sum- 
marily unless  when  such  proceedings  are 
authorised  by  legislative  authority,  except 
perhaps  in  cases  of  contempts ;  for  the  com- 
mon law  is  a  stranger  to  such  a  mode  of  trial. 

4  Blackstone,  Comm.  280.  See  2  Kent, 
Comm.  6th  ed.  73  ;  2  Conn.  819  ;  4  id.  535  ; 
37  Me.  172 ;  4  Hill,  N.  Y.  145  ;  8  Gray,  Mass. 
329  ;  4  Dev.  No.  C.  15  ;  10  Yerg.  Tenn.  59. 

SUMMING  UP.    In  Practice.  The 

act  of  making  a  speech  before  a  court  and 
jury,  after  all  the  evidence  has  been  heard, 
in  favor  of  one  of  the  parties  in  the  cause,  is 
called  summing  up.  When  the  judge  delivers 
his  charge  to  the  jury,  he  usually  sums  up 
the  evidence  in  the  case.  6  Hargrave,  St. 
Tr.  832;  1  Chitty,  Crim.  Law,  632.  See 
Charge. 

SUMMON.  In  Practice.  To  notify 
the  defendant  that  an  action  has  been  insti- 
tuted against  him,  and  that  he  is  required  to 
answer  to  it  at  a  time  and  place  named.  This 
is  done  by  a  proper  oflficer's  either  giving  the 
defendant  a  copy  of  the  summons,  or  having  it 


at  his  house,  or  by  reading  the  summons  to 
him. 

SUMMONERS.  Petty  officers  who  cite 
men  to  appear  in  any  court. 

SUMMONS.    In  Practice.    The  name 

of  a  writ  commanding  the  sheriff,  or  other 
authorized  officer,  to  notify  a  party  to  appear 
in  court  to  answer  a  complaint  made  against 
him  and  in  the  said  writ  specified,  on  a  day 
therein  mentioned.  Viner,  Abr.  Summons  ; 
2  Sellon,  Pract.  356 ;  3  Blackstone,  Comm. 
279. 

SUMMONS  AND  SEVERANCE. 

See  Severance. 

SUMMUM  JUS  (Lat.).  Extreme  right, 
strict  right.    See  Maxims,  Summum  jus. 

SUMPTUARY  LAWS.  Laws  relating 
to  the  expenses  of  the  people,  and  made  to 
restrain  excess  in  apparel,  food,  furniture, 
etc. 

They  originated  in  the  view  that  luxury  is,  in 
some  of  its  degrees,  opposed  to  public  policy,  and 
that  the  state  is  bound  to  interfere  against  it. 
Montesquieu,  Esprit  des  Lois,  b,  7,  c.  2,  4,  and 
Tacitus,  Ann.  b.  2,  ch.  33,  b.  3,  ch.  52. 

In  England,  in  1336,  it  was  enacted,  10  Edw. 
III.  c.  3,  that  inasmuch  as  many  mischiefs  had 
happened  to  the  people  of  the  realm  by  excessive 
and  costly  meats,  by  which,  among  other  things, 
many  who  aspired  in  this  respect  beyond  their 
means  were  impoverished  and  unable  to  aid  them- 
selves or  their  liege  lord  in  time  of  need,  all  men 
were  forbidden  to  have  served  more  than  two 
courses  at  a  meal,  each  of  but  two  sorts  of  victual, 
except  on  the  principal  feasts  of  the  year,  and 
then  only  three  courses  were  allowed.  Blackstone 
states  that  this  is  still  unrepealed.  4  Comm.  170. 
Subsequent  statutes — that  of  1363,  and  those  of 
1463  and  1482 — regulated  the  dress,  and  to  some 
extent  the  diet,  of  the  people,  with  careful  regard 
to  their  rank.  The  substance  of  these  statutes  will 
be  found  in  Knight's  History  of  England,  vol.  2,  pp. 
272-274.    They  were  repealed  by  1  Jac.  I.  c.  25. 

In  modern  times,  legislation  is  not  resorted  to  in 
respect  to  this  object;  but  the  subject  is  frequently 
discussed  in  connection  with  the  laws  for  the  pre- 
vention or  punishment  of  intemperance,  which  is 
so  direct  and  fruitful  a  source  of  crime. 

SUNDAY.    The  first  day  of  the  week. 

2.  In  some  of  the  New  England  states  it 
begins  at  sunsetting  on  Saturday  and  ends  at 
the  same  time  the  next  day.  But  in  other 
parts  of  the  United  States  it  generally  com- 
mences at  twelve  o'clock  on  the  night  be- 
tween Saturday  and  Sunday,  and  ends  in 
twenty-four  hours  thereafter.  6  Gill  &  J. 
Md.  268.  And  see  Bacon,  Abr.  Heresy,  etc. 
(D),  Sheriff  (N  4);  1  Salk.  78;  1  Sellon, 
Pract.  12.  The  Sabbath,  the  Lord's  day^ 
and  Sunday,  all  mean  the  same  thing.  6 
Gill  &  J.  Md.  268.  See  3  Watts,  Penn.  56, 
59;  6  id.  231. 

3.  In  some  states,  owing  to  statutory  pro- 
visions, contracts  made  on  Sunday  are  void, 
6  Watts,  Penn.  231 ;  Leigh,  Nisi  P.  14 ;  5 
Barnew.  &  C.  406  ;  4  Bingh.  84;  but  in  gene- 
ral they  are  binding  although  made  on  that 
day,  if  good  in  other  respects.  1  Crompt.  & 
J.  Exch.  130;  3  Law  In.  210;  Chitty,  Bills, 
59;  Wright,  Ohio,  764;  10  Mass.  312;  1 
Cow.  N.  Y.  76,  n.;  Cowp.  640;  1  W.  Blackst. 


SUPER  ALTUM  MARE 


560  SUPERSTITIOUS  USE 


499 ;  1  Strange,  702.  See  8  Cow.  N.  Y.  27 ;  6 
Penn.  St.  417,  420. 

No  one  is  bound  to  do  work  in  performance 
of  his  contract  on  Sunday,  unless  the  work 
by  its  very  nature  or  by  express  agreement 
is  to  be  done  on  that  day  and  can  be  then 
done  Avithout  a  breach  of  law.  2  Conn.  69; 
18?'c?.  181;  6  Johns.  N.Y.  326;  10  Ohio,  426; 
7  Blackf.  Ind.  479.  See  6  Gill  &  J.  Md.  268 ; 
10  Ad.  &  E.  57. 

4.  Sundays  are  computed  in  the  time  al- 
lowed for  the  performance  of  an  act ;  but  if 
the  last  day  happen  to  be  a  Sunday  it  is  to 
be  excluded,  and  the  act  must,  in  general,  be 
performed  on  Saturday.  3  Penn.  201;  3 
Chitty,  Pract.  110.  See  21  Bost.  Law  Rep.  36. 
Promissory  notes  and  bills  of  exchange,  when 
they  fall  due  on  Sunday,  are  generally  paid 
on  Saturday.  See,  as  to  the  origin  of  keep- 
ing Sunday  as  a  holiday,  Neale,  F.  &  F.  In- 
dex, Lord's  Day;  Story,  Pr.  Notes,  ^  220; 
Story,  Bills,  |  233 ;  Parsons,  Notes  &  Bills. 

SUPER  ALTUM  MARE  (Lat).  Upon 
the  high  sea.    See  High  Seas. 

SUPER  VISUM   CORPORE  (Lat.). 

Upon  view  of  the  body.  When  an  inquest  is 
held  over  a  body  found  dead,  it  must  be  super 
visum  corpore.    See  Coroner  ;  Inquest. 

SUPERCARGO.    In  Maritime  Law. 

A  person  specially  employed  by  the  owner 
of  a  cargo  to  take  charge  of  and  sell  to  the 
best  advantage  merchandise  which  has  been 
shipped,  and  to  purchase  returning  cargoes 
and  to  receive  freight,  as  he  may  be  author- 
ized. 

Supercargoes  have  complete  control  over 
the  cargo  and  every  thing  which  immediately 
concerns  it,  unless  their  authority  is  either 
expressly  or  impliedly  restrained.  12  East, 
381.  Under  certain  circumstances  they  are 
responsible  for  the  cargo,  4  Mass.  115;  see  1 
Gill  &  J.  Md.  1 ;  but  the  supercargo  has  no 
power  to  interfere  with  the  government  of  the 
ship.  3  Pardessus,  n.  646 ;  1  Boulay-Paty,  Dr. 
Com.  421. 

SUPERFICIARIUS  (Lat.).  In  Civil 
Law.  He  who  has  built  upon  the  soil  of 
another,  which  he  has  Hired  for  a  number  of 
years  or  forever,  yielding  a  yearly  rent.  This 
is  not  very  different  from  the  owner  of  a  lot 
on  ground-rent  in  Pennsylvania.  Dig.  43. 
18.  1. 

SUPERFICIES  (Lat.).    In  Civil  Law. 

Whatever  has  been  erected  on  the  soil. 

SUPERFCETATION.  In  Medical  Ju- 
lisprudence.  The  conception  of  a  second 
embryo  during  the  gestation  of  the  first,  or 
the  conception  of  a  child  by  a  woman  already 
pregnant  with  another,  during  the  time  of 
such  pregnancy. 

This  doctrine,  though  doubted,  seems  to  be 
established  by  numerous  cases.  1  Beck,  Med. 
Jur.  103  ;  Cassan,  Superfoetation ;  New  York 
Medical  Repository;  1  Briand,  Med.  L6g. 
prem.  partic,  c.  3,  art.  4;  1  Foder^,  M6d. 
L6g.  ^  299;  Buffon  Hist.  Nat.  de  I'Homme, 


SUPERIOR.    One  who  has  a  right  to 

command ;  one  who  holds  a  superior  rank : 
as,  a  soldier  is  bound  to  obey  his  superior. 

In  estates,  some  are  superior  to  others:  an 
estate  entitled  to  a  servitude  or  easement 
over  another  estate  is  called  the  superior  or 
dominant,  and  the  other  the  inferior  or  ser- 
vient estate.    1  Bouvier,  Inst.  n.  1612. 

SUPERIOR  C9URT.  In  English 
Law.  A  term  applied  collectively  to  the 
three  courts  of  common  law  at  Westminster  : 
namely,  the  king's  bench,  the  common  pleas, 
the  exchequer. 

It  denotes  a  court  of  intermediate  jurisdic- 
tion between  the  courts  of  inferior  or  limited 
jurisdiction  and  the  courts  of  last  resort. 

In  American  Law.  A  court  of  interme- 
diate jurisdiction  between  the  inferior  courts 
and  those  of  last  resort. 

In  Delaware  it  is  the  court  of  last  resort; 
and  in  some  of  the  states  there  is  a  superior 
court  for  cities.  See  Delaware;  New  York; 
Ohio  ;  Illinois. 

SUPERNUMERARII  (Lat.).  In  Ro- 
man Law.  Those  advocates  who  were  not 
statuti,  which  title  see. 

The  statuti  were  inscribed  in  the  matriculation 
books,  and  formed  a  part  of  the  college  of  advo- 
cates in  each  jurisdiction.  The  supernumeraries 
were  not  attached  to  any  bar  in  particular,  and 
could  reside  where  they  pleased :  they  took  the 
place  of  advocates  by  title  as  vacancies  occurred 
in  that  body. 

SUPERONERATIO  (L.  Lat.  supero- 
nerare).  Surcharging  a  common:  i.e.  put- 
ting in  beasts  of  a  number  or  kind  other  than 
the  right  of  common  allows.  It  can  only  be 
of  a  common  appendant  or  appurtenant. 
Bracton,  229,  and  Fleta,  lib.  4,  c.  23,  §  4, 
give  two  remedies,  novel  disseisin  and  writ 
of  admeasurement,  by  which  latter  remedy 
no  damages  are  recovered  till  the  second 
offence.  Now,  distraining,  trespass,  and  case 
are  used  as  remedies.  3  Sharswood,  Blackst. 
Comm.  238*. 

SUPERSEDEAS  (Lat.  that  you  sot 
aside).  In  Practice.  The  name  of  a  writ 
containing  a  command  to  stay  the  proceed- 
ings at  law. 

It  is  granted  on  good  cause  shown  that  the 
party  ought  not  to  proceed.  Fitzherbert,  Nat. 
Brev.  236.  There  are  some  writs  which, 
though  they  do  not  bear  this  name,  have  the 
effect  to  supersede  the  proceedings:  namely, 
a  writ  of  error  when  bail  is  entered  operates 
as  a  supersedeas ;  and  a  writ  of  certiorari  to 
remove  the  proceedings  of  an  inferior  into  a 
superior  court  has,  in  general, the  same  effect. 
8  Mod.  373  ;  1  Barnes,  2G0;  6  Binn.  Penn. 
461.  But,  under  special  circumstances,  the 
certiorari  has  not  the  effect  to  stay  the  pro- 
ceedings, particularly  where  summary  pro- 
ceedings, as  to  obtain  possession  under  the 
landlord  and  tenant  law,  are  given  by  statute. 
6  Binn.  Penn.  4C0  ;  4  Dall.  Penn.  214.  See 
Bacon,  Abr. ;  Comyns,  Dig. ;  Yelv.  6,  note. 

SUPERSTITIOUS  USE.  In  English 
Law.    When  lands,  tenements,  rents,  goods, 


SUPERVISOR 


501 


SUPPLIES 


or  cliattels  are  given,  secured,  or  appointed 
for  and  toward  the  maintenance  of  a  priest 
or  chaplain  to  say  mass;  for  the  maintenance 
of  a  priest  or  other  man  to  pray  for  the  soul 
of  any  dead  man  in  such  a  church  or  else- 
where ;  to  have  and  maintain  perpetual  obits, 
lamps,  torches,  etc.  to  be  used  at  certain  times 
to  help  to  save  the  souls  of  men  out  of  purga- 
tory  ;  in  such  cases  the  king,  by  force  of 
several  statutes,  is  authorized  to  direct  and 
appoint  all  such  uses  to  such  purposes  as 
are  truly  charitable.  Bacon,  Abr,  Charitable 
Uses  and  Mortmain  (D) ;  Duke,  Char.  Uses, 
105  ;  6  Ves.  Ch.  5G7  ;  4  Coke,  104. 

In  the  United  States,  where  all  religious 
opinions  are  free  and  the  right  to  exercise 
them  is  secured  to  the  people,  a  bequest  to 
support  a  Catholic  priest,  and  perhaps  certain 
other  uses  in  England,  would  not  be  con- 
sidered as  superstitious  uses.  1  Penn.  49  ; 
8  Penn.  St.  327  ;  17  Serg.  &  R.  Penn.  388  ;  1 
Wash.  C.  C.  224.  Yet  many  of  the  super- 
stitious uses  of  the  English  law  would  fail 
to  be  considered  as  charities,  and  would  un- 
doubtedly come  under  the  prohibition  against 
perpetuities.  See  Charities;  Charitable 
Uses. 

SUPERVISOR.  An  overseer;  a  sur- 
veyor. 

An  officer  whose  duty  it  is  to  take  care  of 
the  highways. 

The  chief  officer  of  a  town  or  organized 
township  in  the  states  of  Michigan,  Illinois, 
Wisconsin,  and  Iowa.  He  has  various  duties 
assigned  him  by  the  statutes  as  a  town  officer, 
and  likewise  represents  his  town  in  the  gene- 
ral assembly,  or  county  board  of  supervisors. 
See  Board  of  Supervisors. 

SUPPLEMENTAL.  That  which  is 
added  to  a  thing  to  complete  it:  as,  a  supple- 
mental affidavit,  which  is  an  additional  affi- 
davit to  make  out  a  case ;  a  supplemental 
bill. 

SUPPLEMENTAL  BILL.  In  Equity 
Practice.  A  bill  brought  as  an  addition  to 
an  original  bill  to  supply  some  defect  in  its 
original  frame  or  structure  which  cannot  be 
supplied  by  amendment.  See  1  Paige,  Ch. 
N.  Y.  200  ;  15  Miss.  456  ;  22  Barb.  N.  Y.  161 ; 
14  Ala.  N.  s.  147  ;  18  id.  771.  It  may  be 
brought  by  a  plaintiff  or  defendant,  2  Atk. 
Ch.  533 ;  2  Ball  &  B.  Ch.  Ir.  140 ;  1  Stor.  C. 
C.  218,  and  as  well  after  as  before  a  decree, 
3  Md.  Ch.  Dec.  306 ;  1  Macn.  &  G.  405 ; 
Story,  Eq.  Plead.  ^  338  ;  Hinde,  Chanc.  Pract. 
43,  but  must  be  within  a  reasonable  time.  2 
Ilalst.  Ch.  N.  J.  465. 

2.  It  may  be  filed  when  a  necessary  party 
has  been  ornitted,  6  Madd.  Ch.  309  ;  4  Johns. 
Ch.  N.  Y.  605,  to  introduce  a  party  who  has 
acquired  rights  subsequent  to  the  filing  of 
the  original  bill,  3  Iowa,  472;  when,  after  the 
parties  are  at  issue  and  witnesses  have  been 
examined,  some  point  not  already  made  seems 
to  be  necessary,  or  some  additional  discovery 
is  found  requisite,  3  Atk.  Ch.  110;  1  Paige,  i 
Ch.  N.  Y.  200 ;  Cooper,  Eq.  Plead.  73  ;  when  i 
new  events  referring  to  and  supporting  the  ' 

Vol.  II.'- -36 


rights  and  interests  already  mentioned  have 
occurred  subsequently  to  the  filing  of  the 
bill.  Story,  Eq.  Plead.  336  ;  5  Beav.  Rolls. 
253  ;  3  Hare,  Ch.  39  ;  2  Md.  Ch.  Dec.  28'J  > 
for  the  statement  only  of  facts  and  circum- 
stances material  and  beneficial  to  the  merits, 
and  not  merely  matters  of  evidence,  3  Stor. 
C.  C.  299;  when,  after  a  decision  has  b^-jii 
made  on  the  original  bill,  it  becomes  neces- 
sary to  bring  other  matter  before  the  court  to 
get  the  full  effect  of  it,  Story,  Eq.  Plead.  | 
336;  3  Atk.  Ch.  370;  when  a  material  fact, 
which  existed  before  the  filing  of  the  bill, 
has  been  omitted,  and  it  can  no  longer  be  in- 
troduced by  way  of  amendment,  3  Stor.  C.  C. 
54;  2  Md.  Ch.  Dec.  303;  Mitford,  Chanc. 
Plead.  55,  61,  325 ;  but  only  by  special  leave 
of  court  when  it  seeks  to  change  the  original 
structure  of  the  bill  and  introduce  a  new  and 
different  case.  4  Sim.  Ch.  76,  628  ;  3  Atk. 
Ch.  110;  8  Price,  Exch.  518;  4  Paige,  Ch. 
N.  Y.  259  ;  2  Md.  Ch.  Dec.  42.  See  2  Sumn. 
C.  C.  316. 

3.  The  bill  must  be  in  respect  to  the  same 
title  in  the  same  person  as  the  original  bill. 
Story,  Eq.  Plead.  339. 

It  must  state  the  original  bill,  and  the  pro- 
ceedings thereon ;  and  when  it  is  occasioned 
by  an  event  which  has  occurred  subsequently 
to  the  original  bill,  it  must  state  that  event 
and  the  consequent  alteration  with  regard  to 
the  parties.  In  general,  the  supplemental 
bill  must  pray  that  all  defendants  appear  and 
answer  the  charges  it  contains.  Mitford, 
Chanc.  Plead.  Jerem.  ed.  75;  Story,  Eq. 
Plead.  ^  343. 

SUPPLETORY  OATH.  In  Ecclesi- 
astical Law.  An  oath  given  by  the  judge 
to  the  plaintiff  or  defendant  upon  half  proof, 
as  by  one  witness,  already  made.  The  oath 
added  to  the  half  proof  enables  the  judge  to 
decide.  It  is  discretionary  with  the  judge. 
Strange,  80;  3  Sharswood,  Blackst.  Comm. 
370*. 

SUPPLICATIO  (Lat.).   In  Civil  Law. 

A  petition  for  pardon  of  a  first  ofi'ence ;  also, 
a  petition  for  reversal  of  judgment ;  also, 
equivalent  to  duplicatio,  which  is  our  re- 
joinder.   Calvinus,  Lex. 

SUPPLICAVIT  (Lat.).  In  English 
Law.  The  name  of  a  writ  issuing  out  of 
the  king's  bench  or  chancery  for  taking  sure- 
ties of  the  peace:  it  is  commonly  directed 
to  the  justices  of  the  peace,  when  they  are 
averse  to  acting  in  the  affair  in  their  judicial 
capacity.  4  Blackstone,  Comm'.  233.  See 
Viner,  Abr.;  Comyns,  Dig.  Chancery  (4  R), 
Forcible  Entry  (D  16, 17). 

SUPPLICIUM(Lat.).  In  Civil  Law.  A 
corporal  punishment  ordained  by  law;  tht> 
punishment  of  death :  so  called  because  it 
was  customary  to  accompany  the  guilty  man 
to  the  place  of  execution  and  there  offer  sup- 
plications for  him. 

SUPPLIES.  In  English  Law.  Ex- 
traordinary grants  to  the  kmg  by  parliament 
to  supply  the  exigencies  of  the  state.  Jacob, 
Law  Diet. 


SUPPORT 


5G2 


SURETYSHIP 


SUPPORT.  The  right  of  support  is  an 
easement  which  one  man,  either  by  contract 
or  prescription,  enjoys,  to  rest  the  joists  or 
timbers  of  his  house  upon  the  wail  of  an 
adjoining  building  owned  by  another  person. 
3  Kent,  Comm.  435.  See  Washburn,  Easem. ; 
Lois  des  Bat.  pt.  1,  c.  3,  s.  2,  a.  1,  ^  7. 

A  right  to  the  support  of  one's  land  so  as 
to  prevent  its  falling  into  an  excavation  made 
by  the  owner  of  adjacent  lands. 

SUPPRESSIO  VERI  (Lat.).  Conceal- 
ment of  truth. 

2.  In  general,  a  suppression  of  the  truth 
when  a  party  is  bound  to  disclose  it  vitiates 
a  contract.  In  the  contract  of  insurance,  a 
knowledge  of  the  facts  is  required  to  enable 
the  underwriter  to  calculate  the  chances  and 
form  a  due  estimate  of  the  risk ;  and,  in  this 
contract  perhaps  more  than  any  other,  the 
parties  are  required  to  represent  every  thing 
with  fairness.  1  W.  Blackst.  594;  3  Burr. 
1809. 

3.  Suppressio  veri,  as  well  as  suggestio 
falsi,  is  a  ground  to  rescind  an  agreement, 
or  at  least  not  to  carry  it  into  execution.  3 
Atk.  Ch.  383;  Chanc.  Prec.  138;  1  Fon- 
blanque,  Eq.  c.  2,  s.  8;  1  Ball  &  B.  Ch.  Ir. 
241;  3  Munf.  Va.  232;  1  Pet.  383;  2  Paige, 
Ch.  N.  Y.  390;  4  Bouvier,  Inst.  n.  3841.  See 
Concealment;  Misrepresentation;  Repre- 
sentation; Suggestio  Falsi. 

SUPRA  PROTEST.  Under  protest. 
See  Acceptance;  Acceptor;  Bills  of  Ex- 
change. 

SUPREMACY.  Sovereign  dominion, 
authority,  and  pre-eminence;  the  highest 
state.  In  the  United  States  the  supremacy 
resides  in  the  people,  and  is  exercised  by  their 
constitutional  representatives,  the  president 
and  congress.    See  Sovereignty. 

SUPREME.  That  which  is  superior  to 
all  other  things:  as,  the  supreme  power  of 
the  state,  which  is  an  authority  over  all 
others  ;  the  supreme  court,  which  is  supe- 
rior to  all  other  courts. 

SUPREME  COURT.  In  American 
Law.  A  court  of  superior  jurisdiction  in 
many  of  the  states  of  the  United  States. 

The  name  is  properly  applied  to  the  court  of  last 
resort,  and  is  so  used  in  most  of  the  states.  In 
nearly  all  the  states  there  is  a  supreme  court,  but  in 
one  or  two  there  is  a  court  of  appellate  jurisdiction 
from  the  supreme  court. 

See  the  articles  on  the  respective  states, 
Courts  of  the  United  States,  and  3  Bouvier, 
Inst.  G9;  4  Sharswood,  Blackst.  Comm.  259. 

SUPREME  COURT  OF  ERRORS. 
In  American  Law.  An  appellate  tribunal, 
and  the  court  of  last  resort,  in  the  state  of  Con- 
necticut.   See  Connecticut. 

SUPREME  JUDICIAL  COURT.  In 
American  Law.  An  appellate  tribunal,  and 
the  c()urt  of  last  resort,  in  the  states  of  Maine, 
Massachusetts,  and  New  Hampshire.  See 
Maine;  Massachusetts;  New  Hampshire. 

SURCHARGE.  To  put  more  cattle  upon 
a  common  than  the  herbage  will  sustain  or 


than  the  party  hath  a  right  to  do.     3  SliarS"*] 
wood,  Blackst.  Comm.  237. 

In  case  of  common  without  stint  it  could^ 
only  happen  when  insufficient  herbage  was  left 
for  the  lord's  own  cattle.    1  Rolle,  Abr.  399. 

The  remedy  was  by  distraining  the  beasts 
beyond  the  proper  number ;  an  action  of 
trespass  which  must  have  been  brought  by 
the  lord  of  the  manor  ;  an  action  on  the  case, 
or  a  writ  of  admeasurement  of  pasture.  2 
Sharswood,  Blackst.  Comm.  238,  n. 

In  Equity  Practice.  To  prove  the  omis- 
sion of  an  item  from  an  account  which  is 
before  the  court  as  complete,  which  should  be 
inserted  to  the  credit  of  the  party  surcharging. 
Story,  Eq.  Jur.  g  526 ;  2  Ves.  Ch.  565;  11 
Wheat.  237  ;  8  Rich.  Eq.  So.  C.  248.  It  is 
opposed  to  falsify,  which  see.  Leave  to  sur- 
charge and  falsify  is  granted  in  preference  to 
opening  an  account,  in  case  of  an  account 
stated  by  the  parties  or  reported  by  an  audi- 
tor, where  the  party  obtaining  the  liberty 
would  be  concluded  by  the  account  were  it 
not  granted.    See  Account  ;  Auditor. 

SURETY.  A  person  who  binds  himself 
for  the  payment  of  a  sum  of  money,  or  for  the 
performance  of  something  else,  for  another, 
who  is  already  bound  for  the  same. 

A  surety  differs  from  a  guarantor,  and  the 
latter  cannot  be  sued  until  after  a  suit  against  , 
the  principal.  10  Watts,  Penn.  258.  The 
surety  differs  from  bail  in  this,  that  the  latter 
actually  has,  or  is  Vjy  law  presumed  to  have, 
the  custody  of  his  principal,  while  the  former  ; 
has  no  control  over  him.  The  bail  may  sur- 
render his  principal  in  discharge  of  his  obli- 
gation ;  the  surety  cannot  be  discharged  by 
such  surrender. 

For  a  full  discussion  of  the  principles  regu- 
lating the  liability  of  the  surety,  see  the 
article  on  Suretyship,  below. 

SURETYSHIP.  An  undertaking  to  an- 
swer for  the  debt,  default,  or  miscarriage  of 
another,  by  which  the  surety  becomes  bound 
as  the  principal  or  original  debtor  is  bound. 
It  differs  from  guaranty  in  this,  that  suretyship 
is  a  primary  obligation  to  see  that  the  debt  ia 
paid,  while  guaranty  is  a  collateral  under- 
taking, essentially  in  the  alternative,  to  pay 
the  debt  if  the  debtor  does  not  pay  it.  24 
Pick.  Mass.  252.  And  accordingly  a  surety 
may  be  sued  as  a  promisor  to  pay  the  debt, 
while  a  guarantor  must  be  sued  specially  on 
his  contract.    8  Pick.  Mass.  423. 

While  guaranty  applies  only  to  contracts 
not  under  seal,  and  principally  to  mercantile 
obligations,  suretyship  may  apply  to  all  obli- 
gations under  seal  or  by  parol.  The  subjects 
are,  however,  nearly  related,  and  many  of  the 
principles  are  common  to  both.  There  must 
be  a  principal  debtor  liable,  otherwise  the 
promise  becomes  an  original  contract;  and,  the 
promise  being  collateral,  the  surety  must  be 
bound  to  no  greater  extent  than  the  principal. 
Suretyship  is  one  of  the  contracts  included 
in  the  Statute  of  Frauds,  29  Car.  II.  c.  3. 

2.  Kent,  C.  J.,  divides  secondary  under- 
takings into  three  classes: — First,  cases  in 


SURETYSHIP  5G3 


Cirliich  the  guaranty  or  promise  is  collateral  to 
the  principal  contract,  but  is  made  at  the 
game  time  and  becomes  an  essential  ground 
of  the  credit  given  to  the  principal  or  direct 
debtor.  Here  there  is  not,  and  need  not  bo, 
any  other  consideration  than  that  moving 
between  the  creditor  and  original  debtor. 
Second,  cases  in  which  the  collateral  under- 
taking is  subsequent  to  the  creation  of  the 
debt,  and  was  not  the  inducement  to  it, 
though  the  subsisting  liability  is  the  ground 
of  the  promise  without  any  distinct  and  un- 
connected inducement.  Here  there  must  be 
some  further  consideration  shown,  having  an 
immediate  respect  to  such  liability;  for  the 
consideration  lor  the  original  debt  will  not 
attach  to  this  subsequent  promise.  Third, 
when  the  promise  to  pay  the  debt  of  another 
arises  out  of  some  new  and  original  consider- 
ation of  benefit  or  harm  moving  between  the 
newly  contracting  parties.  The  two  first 
classes  of  cases  are  within  the  Statute  of 
Frauds;  the  last  is  not.  8  Johns.  N.  Y.  29. 
This  classification  has  been  reviewed  and  af- 
firmed in  numerous  cases.  21  N.  Y.  415 ;  21 
Me.  459;  15  Pick.  Mass.  159.  A  simpler  di- 
vision is  into  two  classes.  First,  where  the 
principal  obligation  exists  before  the  collateral 
undertaking  is  made.  Second,  where  there 
is  no  principal  obligation  prior  in  time  to  the 
collateral  undertaking.  In  the  last  class  the 
principal  obligation  may  be  contemporaneous 
with  or  after  the  collateral  undertaking.  The 
first  class  includes  Kent's  second  and  third, 
the  second  includes  Kent's  first,  to  which 
must  be  added  cases  where  the  guaranty 
referring  to  a  present  or  future  principal 
obligation  does  not  share  the  consideration 
thereof,  but  proceeds  on  a  distinct  considera- 
tion. Moreover,  there  are  other  original  un- 
dertakings out  of  the  Statute  of  Frauds  and 
valid  though  by  parol,  besides  his  third  class. 
These  are  w^here  the  credit  is  given  exclu- 
sively to  the  promisor  though  the  goods  or 
consideration  pass  to  another.  Under  this 
division,  undertakings  of  the  first  class  are 
original:  first,  when  the  principal  obligation 
is  thereby  abrogated;  second,  when  without 
such  abrogation  the  promisor  for  his  own  ad- 
vantage apparent  on  the  bargain  undertakes 
for  some  new  consideration  moving  to  him 
from  the  promisee;  third,  where  the  promise 
is  in  consideration  of  some  loss  or  disadvan- 
tage to  the  promisee;  fourth,  where  the  pro- 
mise is  made  to  the  principal  debtor  on  a 
consideration  moving  from  the  debtor  to  the 
promisor.  Theobald,  Surety,  37  et  seq.,  49  et 
seq.  The  cases  under  these  heads  will  be 
considered  separately. 

3.  First,  where  the  principal  obligation 
is  pre-existent,  there  must  be  a  new  consider- 
ation to  support  the  promise;  and  where  this 
consideration  is  the  discharge  of  the  principal 
debtor,  the  promise  is  original  and  not  colla- 
teral, as  the  first  requisite  of  a  collateral  pro- 
mise is  the  existence  of  a  principal  obligation. 
This  has  been  held  in  numerous  cases.  The 
discharge  may  be  by  agreement,  by  novation 
or  substitution  by  discharge  or  final  process, 


SURETYSHIP 


or  by  forbearance  under  certain  vnrcum* 
stances.  5  Barnew.  &  Aid.  297  ;  1  Q.  B.  938; 
4  Bos.  &  P.  124;  11  Mees.  &  W.  Exch.  857; 
7  Johns'.  N.  Y.  4G3;  8  id.  370;  21  N.  Y.  412; 
Hill  &  D.  N.  Y.  109;  19  Barb.  N.  Y.  258;  5 
Cush.  Mass.  488:  8  Gray,  Mass.  233;  13  Md. 
141;  5  Chandl.  Wise.  Gl;  28  Vt.  135;  29  id. 
1G9 ;  10  Ircd.  No.  C.  13 ;  Browne,  Stat.  Frauds, 
^^•i  IGC,  193. 

But  the  converse  of  this  proposition,  that 
where  the  principal  obligation  remains,  the 
promise  is  collateral,  cannot  be  sustained, 
though  there  have  been  repeated  dicta  to  that 
eff'ect.  Browne,  Stat.  Fr.  ^  193;  12  Johns. 
N.  Y.  291 ;  20  Wend.  N.  Y.  201 ;  2  Den.  N.  Y. 
45;  4  Barb.  N.  Y.  131;  denied  in  21  N.  Y. 
415;  7  Ala.  n.  s.  54;  G  Vt.  GG6;  30  id,  G41  ; 
33  id.  132. 

The  main  question  arising  in  cases  under 
this  head  is  whether  the  debtor  is  discharged ; 
and  this  is  to  a  great  extent  a  question  for 
the  jury.  But  if  in  fact  the  principal  debt 
is  discharged  by  agreement  and  the  new  pro- 
mise is  made  upon  this  consideration,  then 
the  promise  is  original,  and  not  collateral. 
Fell,  Guar.  c.  ii.  ^  9;  1  All.  Mass.  405. 

It  has  been  held  that  the  entry  on  the  cre- 
ditor's books  of  the  debtor's  discharge  is  sufii- 
cient  to  prove  it.   3  Hill,  So.  C.  41. 

A  discharge  of  the  debtor  from  custody,  or 
surrender  of  property  taken  on  an  execution, 
is  a  good  discharge  of  the  debt.  1  Barnew.  & 
Aid.  297;  11  Mees.  &  W.  Exch.  857;  I  Q.  B. 
937;  9  Vt.  137;  4  Dev.  261;  7  Johns.  N.  Y. 
4G3;  10  Wend.  N.  Y.  461;  21  N.  Y.  415. 

Where  the  transaction  amounts  to  a  sale 
of  the  principal  debt  in  consideration  of  the 
new  promise,  the  debtor  is  discharged,  and 
the  promise  is  original.  4  Bos.  &  P.  124;  3 
Barnew^  &  C.  855 ;  4  Dowl.  &  R.  7 ;  1  Crompt. 
M.  &  R.  Exch.  743. 

So  where  a  purchaser  of  goods  transfers 
them  to  another,  who  promises  the  vendor  to 
pay  for  them,  this  is  a  substitution  and  an 
original  promise.  5  Taunt.  450;  5  Me.  81 ;  9 
Cow.  N.  Y.  266;  11  Ired.  No.  C.  298;  21  Me. 
545;  10  Mo.  538;  7  Cush.  Mass.  133.  _ 

A  mere  forbearance  to  press  the  principal 
debt  is  not  such  a  discharge  of  the  debtor  as 
will  make  the  promise  original,  1  Smith,  Lead. 
Cas.  5th  Am.  ed.  387  ;  4  Johns.  N.  Y.422:  Lai. 
N.  Y.  47;  15  Wend.  N.  Y.  122,  343;  20  id. 
201 ;  3  Mete.  Mass.  396  :  21  N.  Y.  412 ;  2  Wils. 
94;  13  B.  Monr.  Ky.  356;  BuUer,  N.  P.  281 ; 
but  where  the  forbearance  is  so  protracted  a8 
to  discharge  the  debtor,  it  may  be  questioned 
whether  the  promise  does  not  become  original. 
33  Vt.  132. 

4.  Second,  the  promise  will  be  original  if 
made  in  consideration  of  some  new  benefit 
moving  from  the  promisee  to  the  promisor. 
3  Dutch.  N.  J.  371 ;  4  Cow.  N.  Y.  432 ;  2  Den. 
N.  Y.  45;  4  Barb.  N.  Y.  131;  29  id.  610;  4 
Johns.  N.  Y.  422;  12  id.  291;  Buller,  Nisi  P. 
281., 

5.  Third,  the  promise  is  original  wnere 
the  consideration  is  some  loss  to  the  promisee 
or  principal  creditor;  but  it  is  held  in  many 
such  cases  that  the  loss  must  also  work  f  onio 


SURETYSHIP 


564 


SURETYSHIP 


benefit  to  the  promisor.  6  Ad.  &  E.  564;  2 
East,  '325;  3  Strobh.  Eq.  So.  C.  177;  10  Wend. 
N\  Y.  401 ;  24  id.  260;  4  Cow.  N.  Y.  432;  10 
J'  hns.  N.  Y.  412;  18  id.  12;  20  N.  Y.  268; 

2  Bosw.  N.  Y.  392.  As  to  merely  refraining 
from  giving  an  execution  to  the  slieriff,  14 
Me.  140. 

So  the  loss  of  a  lien.  7  Johns.  N.  Y.  463; 
Lai.  N.  Y.  251;  Addison,  Contr.  38;  Burge, 
Sur.  26;  Fell,  Guar.  c.  ii.  II  7,  8.  It  would 
seem  that  a  surrender  of  a  lien  merely  is  not 
a  sufficient  consideration,  3  Mete.  Mass.  396; 
but  it  must  appear  that  the  surrender  is  in 
some  way  beneficial  to  the  promisor. 

The  rule  is  well  settled  that  when  the  lead- 
ing object  of  a  promisor  is  to  induce  a  pro- 
misee to  forego  some  lien,  interest,  or  advan- 
tage, and  thereV)y  to  confer  on  the  promisor  a 
privilege  or  benefit  which  he  would  not  other- 
wise possess  or  enjoy,  an  agreement  made 
under  such  circumstances  and  upon  such  a 
consideration  is  a  new,  origin.al,  and  binding 
contract,  although  the  effect  of  it  may  be  to 
assume  the  debt  and  discharge  the  liability 
of  another.  Bigelow,  C.  J.,  2  All.  xMass.  417; 

3  Burr.  1886;  6  Maule  &  S.  204;  2  Barnew. 
&  Aid.  613;  1  Gray,  Mass.  391;  1  All.  Mass. 
405.  The  advantage  relinquished  by  the  pro- 
misee must  directly  enure  to  the  benefit  of 
the  promisor,  so  as  in  eflPect  to  make  it  a  par- 
chase  by  the  promisor.  5  Gush.  Mass.  488;  2 
Wils.  94;  12  Johns.  N.  Y.  291. 

6.  Fourth,  the  promise  is  original  if  made 
on  a  consideration  moving  from  the  debtor  to 
the  promisor.  10  Johns.  N.  Y.  412 ;  12  id.  291 ; 
5  Wend.  N.  Y.  235;  Browne,  Stat.  Fr.  1 170; 

4  Cow.  N.  Y.  432;  9  id.  639;  2  Den.  N.  Y. 
45  ;  8  Johns.  N.  Y.  39 ;  9  Cal.  92 ;  30  Ala.  n.  s. 
599;  1  E.  D.  Smith,  N.  Y.  5;  2  id.  124;  16 
Barb.  N.  Y.  645 ;  5  Me.  31 ;  1  Gray,  Mass.  391. 

For  the  rule  in  a  class  of  cases  quite  ana- 
logous, see9Ill.40;  3  Conn.  272;  21  Me.  410; 

1  South.  N.  J.  219 ;  1  Speers,  So.  C.  4 ;  2  Bosw. 
N.  Y,  392;  13  Ired.  No.  C.  86;  5  Cranch,  666. 

K,  Where  the  guaranty  relates  to  a  con- 
temporaneous or  future  obligation,  the  pro- 
mise is  original,  and  not  suretyship,  (a)  if 
credit  is  given  exclusively  to  the  promisor, 
[h)  4f  the  promise  is  merely  to  indemnify. 

8.  In  the  first  of  these  cases  the  question 
to  whom  credit  was  given  must  be  ultimately 
for  the  jury  in  each  case.  If  there  is  any 
primary  liability,  and  the  creditor  resorts  to 
the  principal  debtor  first,  the  promise  is  colla- 
teral. Thus,  if  the  promisor  says,  "  Deliver 
goods  to  A,  and  I  will  pay  you,  there  is  no 
primary  obligation  on  the  part  of  A,  and  the 
promise  is  original.  3  Mete.  Mass.  396.  But 
if  he  says,  "I  will  see  you  paid,''  or,  "I  pro- 
mise you  that  he  will  pay,"  or,  "If  he  do  not 
pay,  I  will,"  the  promise  would  be  collateral. 

2  term,  80;  1  II.  Blackst.  120;  3  All.  Mass. 
540;  5  id.  370;  13  Gray,  Mass.  613;  Browne, 
Stat.  Fr.  §  195. 

9.  A  promise  merely  to  indemnify  against 
contingent  loss  from  another's  default  ia  ori- 
ginal. 15  Johns.  N.  Y.  425;  4  Wend.  N.  Y. 
057.  A  doubt  is  expressed  by  Mr.  Browne, 
Stat,  of  Frauds,  I  158,  whether  the  fact  that 


mere  indemnity  is  intended  makes  pr<»- 
mise  original,  because  in  many  cases — those 
where  the  indemnity  is  against  the  u;  fault 
of  a  third  person — there  is  an  implied  labil- 
ity of  that  person,  and  the  promise  is  coUfiteral 
thereto.  Now,  there  are  three  classes  of  ^ases. 
First,  it  is  clear  that  M'here  the  indemnity  is 
against  the  promisor's  default  of  debt  he  is 
already  liable  without  his  promise;  and  to  use 
this  as  a  defence  and  make  the  promise  colla- 
teral thereto  would  be  using  the  law  as  a 
cover  to  a  fraud.  1  Conn.  519 ;  16  id.  549 :  46 
Me.  41;  6  Bingh.  506;  10  Johns.  N.  Y.  42; 
17  id.  113  ;  2  Johns.  Cas.  N.  Y.  52;  17  Pick. 
Mass.  538.  Second,  so  where  the  only  debt 
against  which  indemnity  is  promised  is  the 
promisee's,  this,  being  not  the  debt  of  another, 
but  of  the  promisee,  is  clearly  not  within  the 
statute,  but  the  promise  is  original.  And 
even  if  the  execution  of  such  a  promise  would 
discharge  incidentally  some  other  liability, 
this  fact  does  not  make  the  promise  collateral. 
11  Ad.  &  E.  446  ;  13  Mees.  &  W.  Exch.  561 ; 
17  Mass.  229  ;  17  Pick.  Mass.  538 ;  1  Gray, 
Mass.  391 ;  9  id.  76  ;  25  Wend.  N.  Y.  243  ;  2 
Den.  N.  Y.  45  ;  10  Gill  &  J.  Md.  404 ;  22 
Conn.  317  ;  23  Miss.  430  ;  34  N.  H.  414  ;  31 
Vt.  142.  Third,  but  where  there  is  a  liability 
implied  in  another  person,  and  the  promise 
refers  to  his  liability  or  default^  and  if  executed 
will  discharge  such  liability  or  default,  the 
promise  would  seem  on  reason  to  be  collateral 
and  binding  like  a  suretyship  for  future  ad- 
vances,— that  is,  when  accepted.  9  Ired.  No.C. 
10 ;  1  Speers,  So.  C.  4 ;  1  Ala.  1  ;  1  Gill  &  J. 
Md.  424 ;  6  Md.  78  ;  10  Ad.  &  E.  453  ;  6  La. 
N.  s.  605;  4  Barb.  N.  Y.  131 ;  5  Hill,  N.  Y. 
483.  But  in  many  cases  the  rule  is  broadly 
stated  that  a  promise  to  indemnify  merely  is 
original,  8 Barnew.  &  C.  728  [overruled,  10 Ad. 
&  E.  453] ;  1  Gray,  Mass.  391 ;  10  Johns.  N,  Y. 
242;  4  Wend.  N.  Y.  657  [overruled,  4  Barb. 
N.  Y.  131];  1  Ga.  294;  5  B.  Monr.  Ky.  382 ; 
20  Vt.  205  ;  10  N.  II.  175  ;  1  Conn.  519 ;  5 
Me.  504.  In  other  cases  the  distinction  is 
made  to  rest  on  the  fact  that  the  engagement 
is  made  to  the  debtor,  9  Gray,  Mass.  76 ;  11  Ad. 
&  E.  438 ;  and  in  other  cases,  on  the  futurity 
of  the  risk  or  liability.     12  Mass.  297. 

The  last  ground  is  untenable ;  future  gua- 
ranties binding  when  accepted  or  acted  upon, 
and  those  against  torts,  are  expressly  to  the 
contrary.  The  first  ground  is  too  broad,  as 
shown  above ;  and  the  second  seems  to  ignore 
the  clear  primary  liability  of  the  principal 
debtor. 

lO.  When  the  principal  obligation  is  void, 
voidable,  not  enforceable,  or  unascertained,  the 
promise  is  original,  there  being  in  this  case 
no  principal  obligation  to  sustain  the  promise 
as  collateral.  Browne,  Stat.  Fr.  §  156.  It 
may  be  questionable,  however,  whether  the 
promise  will  in  such  cases  be  original  unless 
the  promisor  knows  the  principal  liability  to 
be  void  or  voidable,  Burge,  Surety.  6-10;  but 
this  question  may  be  settled  by  the  principle 
that  where  credit  is  given  to  the  principal, 
notwithstanding  his  obligation  is  void  or  void- 
able, the  promise  of  the  surety  is  collateral. 


SURETYSHIP 


565 


SURETYSHIP 


4  Bingh.  470;  7  N.  II.  368;  but  if  no  such 
credit  is  given  or  implied,  the  promise  is  col- 
lateral. j;ee  34  Barb.  N.  Y.  208  ;  1  N.  Y.  113; 
15  id.  570 ;  33  Ala.  n.  s.  100 ;  0  Gray,  Mass. 
90.  Such  would  be  the  guaranty  of  an  in- 
I  fant's  promise,  7  N.  II.  308  ;  and  this  is  ac- 
I  cordingly  so  held,  20  Pick.  Mass.  407  ;  4  Me. 
621 ;  though  a  distinction  has  been  made  in 
the  case  of  a  married  woman,  4  Bingh.  470 ; 
but  the  promise  is  collateral  where  tlie  mar- 
ried woman  has  separate  property  which  she 
can  charge  with  the  payment  of  her  debts,  and 
the  credit  is  given  exclusively  to  her.  G  Ga. 
14. 

So  where  the  liability  is  unascertained  at 
the  time  of  the  promise,  the  promise  is  origi- 
nal; as  the  liabilities  must  concur  at  the  time 
of  the  undertaking  to  make  a  guaranty. 
Browne,  Stat.  Fr.  ^  190 ;  1  Salk.  27 :  contra, 
Ambl.  330.  Under  this  head  would  come  a 
promise  to  pay  a  liability  for  tort,  there  being 
no  principal  liability  until  judgment,  1  Wils. 
305 ;  or  where  the  liability  rests  upon  a  future 
award,  2  All.  Mass.  417;  and  liability  upon 
indefinite  executory  contracts  in  general. 

The  promise  is  clearly  original  where  the 
promisor  undertakes  for  his  ow^n  debt.  The 
rule  is,  unless  the  promisor  himself  or  his 
property  is  ultimately  to  be  made  liable  in  de- 
fault of  the  principal  debtor,  the  statute  does 
not  apply.  Browne,  Stat.  Fr.  ^  177.  Thus,  an 
engagement  by  one  w^ho  owes  the  principal 
debtor  to  retain  the  principal  debt,  so  that  it 
may  be  attached  by  trustee  or  garnishee  pro- 
cess, is  not  a  collateral  promise.  9  Pick. 
Mass.  306  ;  20  Conn.  486  ;  1  Bingh.  n.  r.  103. 

UNDER  THE  STATUTE  OF  FRAUDS. 

11.  At  common  law%  a  contract  of  guaranty 
or  suretyship  could  be  made  by  parol;  but  by 
the  Statute  of  Frauds,  29  Car.  II.  c.  3,  "no 
action  shall  be  brought  whereby  to  charge 
the  defendant  upon  any  special  promise  to 
answer  for  the  debt,  default,  or  miscarriage 
of  another  person,  .  .  .  unless  the  agree- 
ment upon  which  such  action  shall  be  brought, 
or  some  memorandum  or  note  thereof,  shall  i 
be  in  writing  and  signed  by  the  party  to  be 
charged  therewith,  or  by  some  person  there- 
unto lawfully  authorized:"  so  that  under  the 
statute  all  contracts  of  guaranty  and  surety- 
ship must  be  in  writing  and  signed.  The 
words  debt  and  default  in  the  statute  refer  to 
contracts,  2  East,  325,  per  Lord  EUenborough ; 
and  debt  includes  only  pre-existing  liability, 
12  Mass.  297 ;  miscarriage  refers  to  torts.  2 
Barnew.  &  Aid.  613.  Torts  are  accordingly 
within  the  statute,  and  may  be  guarantied 
against,  2  Barnew.  &  Aid.  613;  2  Day,  Conn. 
457;  though  this  is  doubted  in  regard  to 
future  torts.  1  Wils.  305.  Perhaps  a  guaranty 
against  future  torts  might  be  open  to  objec- 
tions on  the  ground  of  public  policy. 

12.  The  doctrine  that  a  future  contingent 
liability  on  the  part  of  the  principal  is  not 
within  the  statute,  1  Salk.  27;  12  Mass.  297, 
is  not  tenable;  and  it  is  clear,  both  by  analogy 
and  on  authority,  that  such  a  liability  may  ' 
support  a  guaranty,  although  such  cases  must 
be  confined  within  very  narrow  limits,  and  j 


the  mere  fact  of  the  contingency  is  a  very 
strong  presumption  that  the  pnnnise  is  ori- 
ginal. Browne,  Stat.  Fr.  ^  190;  6  Vt.  606. 

Where  the  promise  is  made  to  the  debtor, 
it  is  not  within  the  statute.  7  Kalst.  N.  J.  188 ; 
2  Den.  N.  Y.  102;  Browne,  Stat.  Fr.  §  188, 
and  cases  cited.  "We  are  of  opinion  that  the 
statute  api)lies  only  to  promises  made  to  the 
person  to  whom  another  is  answerable."  11 
Ad.  &  E.  440 ;  3  Perr.  &  D.  282 ;  1  Gray,  Mass. 
391.  The  word  another  in  the  statute  must 
be  understood  as  referring  to  a  third  person, 
and  not  to  a  debt  due  from  either  of  the  con- 
tracting parties.  0  Cush.  Mass.  552  ;  7  id.  136; 
5  All.  Mass.  370.  False  and  deceitful  repre- 
sentations of  the  credit  or  solvency  of  third 
persons  are  not  within  the  statute.  Browne, 
Stat.  Fr.  181-184 ;  3  Term,  51  ;  4  Campb. 
1.  See,  also,  5  Bos.  &  P.  241 ;  6  Cow.  N.  Y. 
346 :  4  Gray,  Mass.  156. 

13.  In  New  York,  the  consideration  must 
be  expressed.  This  was  so  held  before  the 
revision  of  the  statutes,  and  is  now  expressly 
provided  by  statute.  2  Rev.  St.  135 ;  20  N.  Y. 
331;  21  id.  316;  3  Johns.  N.  Y.  210;  24 
Wend.  N.  Y.  35  ;  7  id.  246 ;  29  Barb.  N.  Y. 
486  ;  5  Den.  N.  Y.  484.  The  rule  is  the  same 
in  New  Hampshire.  36  N.  II.  73.  For  the 
English  doctrine,  see  5  East,  10. 

But  in  applying  this  rule  the  courts  lay  hold 
of  any  language  which  implies  a  considera- 
tion, 21  N.  Y.  315:  the  delivery  of  goods  is 
presumed  without  being  expressly  stated,  as 
w^here  the  promise  was,  "I  guaranty  the  pay- 
ment of  any  goods  which  A  delivers  to  B,"  9 
East,  348  ;  or  in  the  case  of  an  ofier  to  become 
security  "for  silver  put  into  A's  hands  for  the 
purpose  of  manufacturing."  12  Wend.  N.  Y. 
520.  So  on  a  promise  "to  hold  A  harmless 
for  any  indorsement  to  be  made,"  4  Den.  N.  Y. 
559,  or  on  a  guaranty  of  payment  of  drafts 
to  be  issued,  3  N.  Y.  203,  the  court  infers  the 
consideration.  And  see  13  N.  Y.  232;  24 
Wend.  N.  Y.  82;  4  Hill,  N.  Y.  200;  3  Den. 
N.  Y.  312.  So  w^here  the  guaranty  and  the 
[  matter  guarantied  are  one  simultaneous  trans- 
action, both  wall  be  construed  in  connection, 
and  the  consideration  expressed  in  the  latter 
applied  to  the  support  of  the  former,  if  there 
are  words  of  reference  in  the  guarantv.  3 
N.  Y.  203;  10  Wend.  N.  Y.  209;  11  Johns. 
N.  Y.  221 ;  36  N.  H.  73. 

FORMATION  OF  THE  OBLIGATION. 

14.  In  construing  the  language  of  the  con 
tract  to  decide  whether  it  constitutes  an  ori- 
ginal promise  or  a  guaranty,  it  is  difiicult  to 
lay  down  a  general  rule:  the  circumstances 
of  particular  cases  var}'^  widely.  The  word 
guaranty  or  surety  may  or  may  not  indicate 
correctly  the  contract,  and  the  circumstances 
of  the  case  may  make  an  indorser  liable  as  a 
guarantor  or  surety,  without  any  words  to  in- 
dicate the  obligation.    24  Wen(i.  N.  Y.  456. 

In  general,  if  a  promissory  note  is  signed 
or  indorsed  w^hen  made  by  a  stranger  to  the 
note,  he  becomes  a  joint  promisor  and  liable 
■  on  the  note,  44  Me.  433  ;  9  Cush.  Mass.  104; 
;  6  Me.  478  ;  14  Tex.  275  ;  10  Rich.  Law  So.  C. 
I  17  ;  20  Mo.  571;  and  this  wull  be  true  if 


SURETYSHIP 


5G6 


SURETYSHIP 


indorsed  after  delivery  to  the  payee  in  pur- 
suance of  an  agreement  made  before  the  de- 
livery, 7  Gray,  Mass.  284;  9  Mass.  314;  11 
Penn.  St.  482  ;  19  id.  260  ;  but  parol  evidence 
may  le  introduced  to  shov^'  that  he  is  a  surety 
or  guarantor.  23  Ga.  368  ;  18  111.  548.  If  the 
third  party  indorses  after  delivery  to  the  payee 
without  any  previous  agreement,  he  is  merely 
a  second  indorser,  11  Penn.  St.  466;  28  id. 
147,  189,  193 ;  and  he  is  liable  as  a  maker  to 
an  innocent  holder.  20  Mo.  591.  But  it  was 
held  otherwise  where  the  signature  was  on 
the  face  of  the  note,  19  N.  H.  572 ;  and  the 
same  is  held  where  he  signs  an  inception  of 
the  note,  in  pursuance  of  a  custom,  leaving  a 
blank  for  the  payee's  signature  above  his 
name.  12  La.  Ann.  517.  In  Connecticut,  such 
an  indorser  is  held  to  guaranty  that  the  note 
shall  be  collectible  when  due.  5  Conn.  595  : 
14  id.  479  ;  25  id.  576.  The  time  of  signing 
may  be  shown  by  parol  evidence.  9  Ohio,  139 ; 
12  id.  228. 

It  has  been  held  that  a  third  person  in- 
dorsing in  blank  at  the  making  of  the  note 
may  show  his  intention  by  parol,  11  Mass. 
436  ;  13  Ohio,  228 ;  but  not  if  he  describes 
himself  as  guarantor,  or  if  the  law  fixes  a 
precise  liability  to  indorsements  in  blank.  2 
Hill,  N.  Y.  80  ;  4  id.  420.  But  this  has  been 
doubted.  33  Eng.  L.  &  Eq.  282.  In  New  York 
the  cases  seem  to  take  the  broad  ground  that 
an  indorser  in  blank,  under  all  circumstances, 
is  an  indorser  merely,  and  cannot  be  made  a 
guarantor  or  surety.  4Du.  N.  Y.  45 ;  7  Hill, 
N.  Y.  416;  1  N.  Y.  324;  2  id.  548. 

15.  In  regard  to  the  consideration  neces- 
sary to  sustain  the  contract  of  guaranty  or 
suretyship,  it  need  not  necessarily  be  a  con- 
sideration distinct  from  that  of  the  principal 
contract.  Where  the  two  contracts  are  simul- 
taneous, the  guaranty  may  share  the  con- 
sideration of  the  other.  8  Johns.  N.  Y.  29;  1 
.Paine,  C.  C.  580  ;  24  Wend.  N.  Y.  246  ;  2  Pet. 
176  ;  3  Mete.  Mass.  396 ;  36  N.  H.  73  ;  3  Kent, 
Comm.  122. 

The  giving  of  new  credit  where  a  debt 
already  exists  has  been  held  a  sufficient  con- 
sideration to  support  a  guaranty  of  the  old 
and  new  debt,  15  Pick.  Mass.  159 ;  15  Ga. 
321;  but  the  weight  of  authority  would  seem 
to  require  that  there  should  be  some  further 
consideration.  Browne,  Stat.  Fr.  1 191 ;  2  Wils. 
94 ;  7  Term,  201 ;  5  East,  10 ;  1  Pet.  476 ;  3 
Johns.  N.  Y.  211 ;  20  Me.  28  ;  24cid.  Ill;  29 
id.  79  ;  7  Harr.  &  J.  Md.  457  ;  R.  M.  Charlt. 
Ga.  311. 

Forbearance  to  sue  the  debtor  is  a  good 
consideration,  if  definite  in  time,  Hardr.  71; 
I  Kibl.  114  ;  or  even  if  of  considerable,  Croke 
Jac.  683,  or  reasonable  time.  3  Bulstr.  206; 
Burge,  Suret.  12.  But  there  must  be  an 
actual  forbearance,  and  the  creditor  must  have 
had  a  power  of  enforcement.  4  East,  465  ;  3 
Term,  17;  Willes,  482.  But  the  fact  that  it 
is  doubtful  whether  such  a  power  exists  does 
not  injure  the  consideration.  5  Barnew.  &  Ad. 
123.  A  short  forbearance,  or  the  deferment 
of  a  remedy,  as  postponement  of  a  trial,  or 
Vostponeraent  of  arrest,  may  be  a  good  con- 


sideration ;  and  perhaps  an  agreement  tt 
defer  indefinitely  mav  support  a  guaranty. 
Browne,  Stat.  Fr.  I  190;  1  Cow.  N.'Y.  99;  4 
Johns.  N.  Y.  257;  2  Rich.  So.  C.  113  ;  6  Cimn. 
81 ;  5  Jones,  No.  C.  329.  A  mere  agreement 
not  to  push  an  execution  is  too  vague  to  be  a 
consideration,  4  McCord,  So.  C.  409-  and  a 
postponement  of  a  remedy  must  be  made  by 
agreement  as  well  as  in  fact.  3  Cush.  Mass. 
85;  11  Mete.  Mass.  170;  6  Conn.  81;  7  id. 
523;  11  C.  B.  172. 

16.  The  contract  of  suretyship  may  be  en- 
tered into  absolutely  and  without  conditions, 
or  its  formation  may  be  made  to  depend  on 
certain  conditions  precedent.  But  there  are 
some  conditions  implied  in  every  contract  of 
this  kind,  however  absolute  on  its  face.  In 
the  case  of  bonds,  as  in  other  contracts  of 
suretyship,  it  is  essential  that  there  should 
be  a  principal,  and  a  bond  executed  by  the 
surety  is  not  valid  until  executed  by  the  prin- 
cipal also.  One  case,  10  Coke,  100  6,  some- 
times cited  to  the  contrary,  is  not  clear  to  the 
point.  The  argument  that  the  surety  is  bound 
by  his  recital  under  seal  fails,  especially  in 
all  statute  bonds,  where  one  important  requi- 
site of  the  statute,  that  the  bond  should  be 
executed  by  the  principal,  fails.  17  Mass.  591 ; 
2  Pick.  Mass.  24 ;  4  Beav.  Ch.  383 ;  11  id.  265 ; 
14  Cal.  421. 

Where  the  surety's  undertaking  is  condi- 
tional on  others  joining,  he  is  not  liable  until 
they  do  so,  4  Barnew.  &  Ad.  440;  4  Cranch, 
219:  contra,  if  the  obligee  is  ignorant  of  the 
condition.  2  Mete.  Ky.  608.  So  the  surety  is 
not  bound  if  the  signatures  of  his  co-sureties 
are  forged,  although  he  has  not  made  his  sig- 
nature expressly  conditional  on  theirs.  2  Am. 
Law  Reg.  349.  ^ 

17.  The  acceptance  of  the  contract  by  the 
promisee  by  words  or  by  acts  under  it  is  often 
made  a  condition  precedent  to  the  attaching 
of  the  liability  of  the  surety.  The  general 
rule  is  that  where  a  future  guaranty  is  given, 
absolute  and  definite  in  amount,  no  notice 
of  acceptance  is  necessary;  but  if  it  is  con- 
tingent and  indefinite  in  amount,  notice  must 
be  given.  4  Me.  521 ;  1  Mas.  C.  C.  324,  371 ; 
8  Conn.  438;  16  Johns.  N.  Y.  67;  5  All. 
Mass.  47 ;  but  the  promisee  has  a  reasonable 
time  to  give  such  notice.  8  Gray,  Mass.  211. 
And  see,  on  this  last  point,  21  Ala.  n.  s.  721. 

A  distinction  is  to  be  made  between  a  gua- 
ranty and  an  ofier  to  guaranty.  No  notice 
of  acceptance  is  requisite  when  a  guaranty 
is  absolute,  3  N.  Y.  212:  2  Mich.  511 ;  but  an 
offer  to  guaranty  must  have  notice  of  accept- 
ance. Burge,  Suretyship ;  32  Penn.  St.  10. 
And  where  acceptance  is  required,  it  may  be 
as  well  implied  by  acts  as  by  words ;  as,  by 
receiving  the  written  guaranty  from  the  pro- 
misor, 8  Gray,  Mass.  211 ;  or  by  actual  know- 
ledge of  the  amount  of  sales  under  a  guaranty 
of  the  purchase-money.  28  Vt.  160. 

EXTENT  OF  OBLIGATION. 

18.  The  liability  of  a  surety  cannot  exceed, 
in  any  event,  that  of  the  principal,  though  it 
may  be  less.  The  same  rule  does  not  apply 
to  the  remedies,  which  may  be  greater  against 


SURETYSHIP 


567 


SURETYSHIP 


she  surety.  But,  whatever  may  be  the  lia- 
bility imposed  upon  the  surety,  it  is  clear  that 
it  cannot  be  extended  by  implication  beyond 
the  terms  of  the  contract.  Ilis  obligation  is 
strictissimi  juris,  and  cannot  be  extended  be- 
yond the  precise  terras  of  the  contract.  10 
Johns.  N.  Y.  180;  2  Penn.  27;  15  Pet.  187. 
The  rule  is  thus  laid  down  by  the  United 
States  Supreme  Court:  sureties  are  never  held 
responsible  beyond  the  clear  and  al)solute 
terms  and  meaning  of  their  undertakings, 
and  presumptions  and  equities  are  never  al- 
lowed to  enlarge,  or  in  any  degree  to  change, 
their  legal  obligations.  21  How.  6G.  And  this 
rule  has  been  repeatedly  reafl&rmed.  3  Kent, 
Comm.  10th  ed.  183;  5  Hill,  N.  Y.  635;  11 
N.  Y.  598  ;  29  Penn.  St.  460 ;  6  How.  296 ;  2 
Wall.  235. 

The  remedies  against  the  surety  may  be 
more  extensive  than  those  against  the  prin- 
cipal, and  there  may  be  defences  open  to  the 
principal  but  not  to  the  surety, — as,  infancy  or 
coverture  of  the  principal, — which  must  be  re- 
garded as  a  part  of  the  risks  of  the  surety. 
30  Vt.  122. 

The  liability  of  the  surety  extends  to  and 
includes  all  securities  given  to  him  by  the 
principal  debtor,  the  converse  of  the  rule 
stated  below  in  the  case  of  collateral  security 
given  to  the  creditor.  26  Vt.  308.  Thus, 
in  Missouri  a  creditor  is  entitled  in  equity 
to  the  benefit  of  all  securities  given  by  the 
principal  debtor  for  the  indemnity  of  his 
surety.  18  Mo.  136 ;  19  Ala.  n.  s.  798  ;  22 
Miss.  87.  If  the  surety  receives  money  from 
the  principal  to  discharge  the  debt,  he  holds 
it  as  trustee  of  the  creditor.    6  Ohio,  80. 

19.  In  general,  the  obligations  of  a  surety 
are  the  same  as  the  obligations  of  the  prin- 
cipal, within  the  scope  of  the  contract ;  but 
the  principal  maybe  under  obligations  not  im- 
posed by  the  contract,  but  yet  coming  so  close 
as  to  render  the  distinction  a  matter  of  some 
diflBculty.  The  obligation  must,  therefore, 
be  limited  as  to  its  subject-matter  in  time, 
and  in  amount  may  be  limited  in  its  opera- 
tion to  a  single  act,  or  be  continuous,  and 
may  include  only  certain  liabilities. 

In  the  common  case  of  bonds  given  for  the 
faithful  discharge  of  the  duties  of  an  office, 
it  is  of  course  the  rule  that  the  bond  covers 
only  the  particular  term  of  office  for  which  it 
is  given,  and  it  is  not  necessary  that  this 
should  be  expressly  stated;  nor  will  the  time 
be  extended  by  a  condition  to  be  bound 
"  during  all  the  time  A  (the  principal)  con- 
tinues," if  after  the  expiration  of  the  time  A 
holds  over  merely  as  an  acting  officer,  without 
a  valid  appointment.  3  Sandf.  N.  Y.  403. 
The  circumstances  of  particular  cases  may  ex- 
tend the  strict  rule  stated  above,  as  in  the  case 
of  officers  annually  appointed.  Here,  although 
the  bond  recites  the  appointment,  if  it  is  condi- 
tioned upon  his  faithful  accounting  for  money 
received  before  his  appointment,  the  surety 
may  be  held.  9  Barnew.  &  C.  35 ;  9  Mass.  267. 
But  the  intention  to  extend  the  time,  either  by 
includingpastor  future  liabilities,  mustclearly 
i-pf  ear,  and  the  condition  of  the  bond  in  this 


particular  is  sometimes  restrained  by  the  re- 
cital. 4  Bos.  &  P.  175  ;  4  Taunt.  503.  Gene- 
rally the  recital  cannot  be  enlarged  and  ex- 
tended by  the  condition.  Theol>ald,  Surety, 
66,  n.  [b].  And  where  the  recital  sots  forth 
an  employment  for  twelve  months,  this  time 
is  not  controlled  by  a  condition,  "from  time 
to  time  annually,  and  at  all  times  thereafter 
during  the  continuance  of  this  employment," 
although  the  employment  is  actually  con- 
tinued beyond  the  year.  6  East,  507 ;  2 
Campb.  39  ;  3  id.  52;  2  Barnew.  &  Aid.  431  ; 
2  Saund.  403  ;  2  Bingh.  32;  Theobald,  Surety. 
72  ;  8  Mass.  275  ;  7  Gray,  Mass.  1 ;  1  Ail. 
Mass.  340. 

So  the  obligation  may  cease  by  a  change  in 
the  character  of  the  office  or  employment,  as 
where  the  principal  who  has  given  a  bond  for 
faithful  discharge  of  the  duties  of  clerk,  is 
taken  into  partnership  by  the  obligee,  3  Wils, 
530 ;  but  an  alteration  in  the  character  of  the 
obligees,  by  taking  in  new  partners,  does  not 
necessarily  terminate  the  obligation.  10 
Barnew.  &  C.  122.  But  where  an  essential 
change  takes  place,  as  the  death  of  the  obli- 
gee, the  obligation  is  terminated,  although 
the  business  is  carried  on  by  the  executors. 
1  Term,  18.  Where  one  becomes  surety  for 
two  or  either  of  them,  the  obligation  is  ter- 
minated by  the  death  of  one  of  the  principals, 
1  Bingh.  452 ;  but  this  is  where  the  obliga- 
tion is  essentially  personal ;  and  where  a  bond 
for  costs  was  given  by  two  as  "defendants," 
the  surety  was  not  discharged  by  the  death 
of  one.    5  Barnew.  &  Aid.  261. 

So  a  surety  for  a  lessee  is  not  liable  for  rent 
after  the  term,  although  the  lessee  holds  over, 
1  Pick.  Mass.  332. 

If  the  law  provides  that  a  public  officer 
shall  hold  over  until  a  successor  is  appointed, 
the  sureties  on  the  official  bond  are  liable 
during  such  holding  over.  37  Miss.  518  ;  2 
Mete.  Mass.  522:  contra,  in  the  case  of  officers 
of  corporations.  7  Gray,  Mass.  1 ;  1  All.  Mass. 
340.  And  this  provision  is  not  controlled  by  an 
alteration  of  the  law  extending  the  term  but 
leaving  the  provision  intact.    15  Gratt.  Va.  1. 

20.  In  bonds,  the  penalty  is  the  extreme 
amount  of  liability  of  the  surety  ;  but  various 
circumstances  may  reduce  the  liability  below 
this.  2  South.  N.  J.  498 ;  3  Cow.  N.  Y.  151 ; 
5  id.  424;  2  H.  Blackst.  1190;  6  Term,  303. 
If  the  engagement  of  the  surety  is  general, 
the  surety  is  understood  to  be  obliged  to  the 
same  extent  as  his  principal,  and  his  liability 
extends  to  all  the  accessories  of  the  principal 
obligation.  Theobald,  Surety.  90;  14  La. 
Ann.  183. 

It  is  said  by  Ellenborough,  J.,  that  a  recital 
only  for  bills  to  a  certain  amount  accepted  by 
the  plaintiff,  is  extended  by  a  condition  to  be 
liable  "  for  that  or  any  other  account  there- 
after to  subsist.''  2  Campb.  39. 

A  continuing  guaranty  up  to  a  certain 
amount  covers  a  constant  liability  of  that 
amount ;  but  if  the  guaranty  is  not  continu- 
ing, the  liability  ceases  after  the  execution 
of  the  contract  to  the  amount  limited.  3 
Barnew.  &  Aid.  593 ;  6  Bingh.  276. 


SURETYSHIP 


568 


SURETYSHIP 


21.  A  guaranty  may  be  continuing  or  may 
be  exhausted  by  one  act ;  but  in  drawing  dis- 
tinctions on  this  point,  each  case  must  rest  1 
upon  its  own  circumstances.  The  general 
principle  may  be  thus  stated :  when  by  the 
terms  of  the  undertaking,  by  the  recitals  in 
the  instrument,  or  by  a  reference  to  the  cus- 
tom and  course  of  dealing  between  the  parties, 
it  appears  that  the  guaranty  looked  to  a  future 
course  of  dealing  for  an  indefinite  time,  or  a 
succession  of  credits  to  be  given,  it  is  to  be 
deemed  a  continuing  •  guaranty,  and  the 
amount  expressed  is  to  limit  the  amount  for 
which  the  guarantor  is  to  be  responsible,  and 
not  the  amount  to  which  the  dealing  or  whole 
credit  given  is  to  extend.  7  Pet.  113;  2 
Tyrwh.  86  ;  3  Barnew.  &  Aid.  593.  Thus,  a 
guaranty  for  any  goods  to  one  hundred  pounds 
is  continuous,  12  East,  227  ;  or  for  "any  debts 
not  exceeding,"  &c.,  2  Campb.  413 ;  or,  "  I 
will  undertake  to  be  answerable  for  any 
tallow  not  exceeding,"  &c.,  but  *'  without  the 
word  any  it  might  perhaps  have  been  confined 
to  one  dealing.''  3  Campb.  220,  per  Ellen- 
borough,  C.  J.  The  words,  *'  I  do  hereby 
agree  to  guaranty  the  payment  of  goods  ac- 
cording to  the  custom  of  their  trading  with 
you,  in  the  sum  o/'<£200,"  are  held  to  consti- 
tute a  continuing  guaranty,  6  Bingh.  244  ;  so 
of  the  words,  "  I  agree  to  be  responsible  for 
the  price  of  goods  purchased  at  any  time,  to 
the  amount  of,"  &c.  1  Mete.  Mass.  24.  The 
words  "  answerable  for  the  amount  of  five 
sacks  of  flour"  are  clearly  not  continuous. 
6  Bingh.  276.    See  6  Maule  &  S.  239. 

22.  Where  the  surety  is  bound  for  the 
acts  of  the  principal  in  a  certain  capacity  or 
office,  the  obligation  ceases,  as  we  have  seen 
above,  on  the  termination  of  the  office.  But, 
besides  being  limited  in  point  of  time  to  the 
duration  of  the  particular  employment,  it  is 
essential,  to  bind  the  surety,  that  the  liabilities 
of  the  principal  should  be  of  such  a  character 
as  may  fairly  be  covered  by  the  contract.  In 
official  bonds,  the  liability  of  the  surety  is 
limited  to  the  acts  of  the  principal  in  his 
official  capacity:  e.g.  a  surety  on  a  cashier's 
bond  is  not  liable  for  money  collected  by  the 
cashier  as  an  attorney-at-law,  and  not  ac- 
counted for  to  the  bank.  4  Pick.  Mass.  314. 
So  also  where  one  was  surety,  and  the  bond 
was  conditioned  on  the  accounting  by  the 
principal  for  money  received  by  him  in  virtue 
of  his  office  as  parish  overseer,  the  surety  was 
held  not  lial)le  for  money  borrowed  by  the 
principal  for  parochial  purposes.  7  Barnew. 
&  C.  491.  On  the  other  hand,  a  surety  on  a 
collector's  bond  is  liable  for  his  principal's 
neglect  to  collect,  as  well  as  failure  to  pay 
over,    6  Carr.  &  P.  106. 

As  the  surety  is  only  liable  to  the  obliga- 
tions fairly  intended  at  the  execution  of  the 
bond,  he  cannot  be  held  for  a  V)reach  of  new 
duties  attached  to  his  principal's  office,  Theo- 
bald, Surety.  72 ;  4  Pick.  Mass.  314,  or  if  any 
material  change  is  made  in  the  duties.  2 
Pick.  Mass.  223.^ 

If  one  guaranties  payment  for  services,  and 
Uie  promisee  partly  performs  the  services,  but 


fails  of  completing  them  from  no  fault  of  his 
own,  the  guarantor  is  liable  to  the  amount 
of  the  part-performance.  12  Gray,  Mass. 
445. 

A  bond  for  faithful  performance  of  duties 
renders  the  sureties  responsible  for  ordinary 
skill  and  diligence,  as  well  as  for  integrity. 
12  Pick.  Mass.  303. 

23.  The  contracts  of  guaranty  and  surety- 
ship are  not  negotiable  or  assignable,  and  in 
general  can  be  taken  advantage  of  only  by 
those  who  were  included  as  obligees  at  the 
formation  of  the  contract.  3  McLean,  279  ; 
4  Cranch,  224.  Accordingly,  the  contract  is 
terminated  by  the  death  of  one  of  several 
obligees,  4  Taunt.  673  ;  8  East,  484 ;  7  Term, 
354,  or  by  material  change,  as  incorporation. 
3  Bos.  &  P.  34.  But  where  a  bond  is  given 
to  trustees  in  that  capacity,  their  successors 
can  take  advantage  of  it.  12  East,  399.  The 
fact  that  a  stranger  has  acted  on  a  guaranty 
does  not  entitle  him  to  the  benefits  of  the  con- 
tract, 20  Vt.  499 ;  and  this  has  been  held  in 
the  case  of  one  of  two  guarantees  who  acted 
on  the  guaranty.    3  Tex.  199. 

It  is  stated  that  a  guaranty  addressed  to 
no  one  in  particular  may  be  acted  on  by  any 
one,  1  Parsons,  Contr.  567 ;  22  Vt.  160  ;  but 
the  true  rule  would  seem  to  be  that  in  such 
cases  a  party  who  had  acted  on  the  contract 
might  show,  as  in  other  contracts,  that  he  was 
a  party  to  it  within  the  intention  at  the 
making;  the  mere  fact  that  no  obligee  is 
mentioned  does  not  open  it  to  everybody. 

ENFORCEMENT  OF  OBLIGATION. 

24.  As  the  surety  cannot  be  bound  to  any 
greater  extent  than  the  principal,  it  follows 
that  the  creditor  cannot  pursue  the  surety  until 
he  has  acquired  a  full  right  of  action  against 
the  principal  debtor.  A  surety  for  the  per- 
formance of  any  future  or  executory  contract 
cannot  be  called  upon  until  there  is  an  actual 
breach  by  the  principal.  A  surety  on  a  pro- 
missory note  cannot  be  sued  until  the  note 
has  matured,  as  there  is  no  debt  until  that 
time.  All  conditions  precedent  to  a  right  of 
action  against  the  principal  must  be  complied 
with.  Where  money  is  payable  on  demand, 
there  must  have  been  a  demand  and  refusal. 
But  it  is  not  necessary  that  the  creditor 
should  have  exhausted  all  the  means  of  ob- 
taining his  debt.  In  some  cases,  which  will 
be  treated  of  in  detail,  it  may  be  requisite  to 
notify  the  surety  of  the  default  of  the  debtor, 
or  to  sue  the  debtor ;  but  this  depends  upon 
the  particular  conditions  and  circumstances 
of  each  case,  and  cannot  be  considered  a  con- 
dition precedent  in  all  cases.  Even  where 
the  creditor  has  a  fund  or  other  security  to 
resort  to,  he  is  not  obliged  to  exhaust  this 
before  resorting  to  the  surety ;  he  may  elect 
either  remedy,  and  pursue  the  surety  first. 
But  if  the  surety  pay  the  debt,  he  is  entitled 
to  claim  that  the  creditor  should  proceed 
against  such  fund  or  other  security  for  his 
benefit.  15  Md.  308 ;  4  Jones,  Eq.  No.  C. 
212 ;  33  Ala.  n.  s.  261 ;  2  Head,  Tenn.  549. 

And  if  the  creditor,  having  received  such 
collateral  security,  avail  himself  of  it,  he  la 


SURETYSHIP 


5G'J 


SURETYSHIP 


bound  to  preserve  the  original  debt ;  for  in 
equity  the  surety  will  be  entitled  to  subroga- 
tion. 38  Peiin.  St.  98.  In  Kentucky,  a  judg- 
ment against  the  principal  may  be  assigned 
to  the  surety  upon  payment  of  the  debt.  1 
Mete.  Ky.  489.  So  in  North  Carolina,  4 
Jones,  Eq.  No.  C,  202.  But  an  assignment  of 
the  debt  must  be  for  the  whole:  the  surety 
oannot  pay  a  part  and  claim  an  assignment 
pro  tanto.    39  N.  H.  150. 

25.  In  general,  it  is  not  requisite  that 
notice  of  the  default  of  the  principal  should 
be  given  to  the  surety,  especially  when  the 
engagement  is  absolute  and  for  a  definite 
amount.  Theobald,  Surety.  137 ;  14  East,  514. 
Laches  in  giving  notice  to  the  surety  upon  a 
draft  of  the  default  of  the  principal  can  only 
be  set  up  as  a  defence  in  an  action  against  the 
surety,  in  cases  where  he  has  suffered  damage 
thereby,  and  then  only  to  the  extent  of  that 
damage,  3  N.  Y.  203  ;  it  is  no  defence  to  an 
action  against  a  surety  on  a  bond  that  the 
plaintiff  knew  of  the  default  of  the  principal, 
and  delayed  for  a  long  time  to  notify  the 
surety  or  to  prosecute  the  bond.  1  Zabr. 
N.  J.  100. 

If  after  a  joint  judgment  against  a  prin- 
cipal and  his  surety  on  their  joint  and  several 
bond,  the  surety  die,  the  obligee  has  no  re- 
medy in  equity  against  his  executor.  9  How. 
83. 

DISCHARGE  OF  OBLIGATION. 

26.  The  obligation  may  be  discharged  by 
acts  of  the  principal,  or  by  acts  of  the  cre- 
ditor. Payment,  or  tender  of  payment,  by  the 
one,  and  any  act  which  would  deprive  the 
creditor  of  remedies  which  in  case  of  default 
would  enure  to  the  benefit  of  the  surety,  are 
instances  of  discharge.  In  the  first  place,  a 
payment  by  the  debtor  would  of  course 
operate  to  discharge  the  liability.  The  only 
questions  which  can  arise  upon  this  point  are, 
whether  the  payment  is  applicable  to  the 
payment  in  question,  and  as  to  the  amount, 
upon  the  first  of  these,  this  contract  is  gov- 
erned by  the  general  rule  that  the  debtor 
can  apply  his  payment  to  any  debt  he  chooses. 
The  surety  has  no  power  to  modify  or  direct 
the  application,  but  is  bound  by  the  election 
of  the  principal.  9  Bingh.  544;  2  Bingh. 
N.  c.  7.  If  no  such  election  is  made  by  the 
debtor,  the  creditor  may  apply  the  payment 
to  whichever  debt  he  sees  fit.  7  Wheat.  20 ; 
9  id.  720;  5  Pet.  161 ;  9  Cow.  N.  Y.  409,  747  ; 
1  Pick.  Mass.  336.  This  power,  however, 
only  applies  to  voluntary  payments,  and  not 
to  payments  made  by  process  of  law.  10  Pick. 
Mass.  129.  A  surety  on  a  promissory  note  is 
discharged  by  the  payment,  and  the  note 
cannot  be  again  put  in  circulation.  12  Cush. 
Mass.  163  ;  7  Pick.  Mass.  88.  Whatever  will 
discharge  the  surety  in  equity  will  be  a  de- 
fence at  law.  7  Johns.  N.  Y.  337  ;  2  Ves.  Ch. 
542;  2  Pick.  Mass.  223;  8  id.  128;  21  id. 
488;  16  Serg.  &  R.  Penn.  252;  5  Wend. 
N.  Y.  85. 

27.  A  release  of  the  principal  debtor  ope- 
rates as  a  discharge  of  the  surety  ;  though  the 
converse  is  not  t-ue,  17  Tex.  128,  unless  the 


obligation  is  such  that  the  liability  is  joint 
only,  and  cannot  be  severed.  See,  on  this 
point,  Fell,  Guar.  c.  ii. ;  8  Penn.  St.  205. 

28.  Any  material  alteration  in  the  con- 
tract without  the  assent  of  the  surety,  or 
change  in  the  circumstances,  will  discharge 
the  surety.  Such  are  the  cases  where  the 
sureties  on  a  bond  for  faithful  performance 
are  released  by  a  change  in  the  em[)loyment 
or  office  of  the  principal,  6  C.  B.  n.  s.  550; 
and  it  makes  no  difference  whether  the  change 
is  prejudicial  to  the  surety  or  not.  30  Vt.  122; 
32  N.  II.  550;  3  Barnew.  &  C.  605,  per  Tin- 
dal,  C.  J. ;  9  Wheat.  080,  per  Story,  J. ;  Paine, 
C.C.  305;  3  Binn.  Penn.  520;  3* Wash.  C.  C. 
70.  If  the  principal  and  obligee  change  the 
terms  of  the  obligation  without  the  consent 
of  the  surety,  the  latter  is  discharged.  4 
Wash.  C.  C.  26. 

29.  If  the  creditor  without  the  assent  of 
the  surety  gives  time  to  the  principal,  the 
surety  is  discharged.  Burge,  Suret.  203 ;  3 
Mer.  Ch.  272 ;  2  Browne,  Ch.  579 ;  3  Young 
&  C.  187  ;  2  Ves.  Ch.  540  ;  10  Bligh,  n.  s.  548  ; 
4  Taunt.  456 ;  2  Bos.  &  P.  61 ;  3  Madd.  Ch. 
221 ;  2  Swanst.  Ch.  539  ;  7  Price,  Exch.  223 ; 

8  Bingh.  156. 

The  contract  must  be  effectual,  binding  the 
creditor  as  well  as  the  debtor ;  and  it  is  not 
enough  that  the  creditor  merely  forbears  to 
press  the  debtor.  2  Ad.  &  E.  528  ;  5  Gray, 
Mass.  457;  2  Pick.  Mass.  581;  15  Ind.  45. 
See,  also,  17  Johns.  N.  Y.  176 ;  6  Ves.  Ch. 
734;  10  East,  34;  1  Bos.  &  P.  419;  1  Gall. 
C.  C.  35  ;  2  Caines,  Cas.  N.  Y.  30 ;  5  Cal.  173 ; 

9  Tex.  615  ;  9  Clark  &  F.  Hou.  L.  45. 

The  receipt  of  interest  on  a  promissory 
note,  after  the  note  is  overdue,  is  not  sufficient 
to  discharge  the  surety.  8  Pick.  Mass.  458; 
6  Gray,  Mass.  319. 

And  as  a  requisite  to  the  binding  nature 
of  the  agreement,  it  is  necessary  that  there 
should  be  some  consideration,  2  Dutch.  N.  J. 
191 ;  6  Md.  113,  461 ;  30  Miss.  424;  but  a  part- 
payment  by  the  principal  is  held  not  to  be 
such  a  consideration.  31  Miss.  664.  Prepay- 
ment of  interest  is  a  good  consideration,  30 
Miss.  432;  but  not  an  agreement  to  pay  usu- 
rious interest,  where  the  whole  sum  paid  can 
be  recovered  back,  10  Md.  227;  though  it 
would  seem  to  be  otherwise  if  the  contract  is 
executed,  and  the  statutes  only  provide  for  a 
recovery  of  the  excess.  2  Patt.  &  II.  Va.  504. 
See,  also,  8  B.  Monr.  Ky.  382;  23  Vt.  142. 

It  has  been  questioned  how  far  the  receipt 
of  interest  in  advance  shows  an  agreement  to 
extend  the  time:  it  may  undoubtedly  be  a 
good  consideration  for  such  an  agreement, 
but  does  not  of  itself  constitute  it.  At  the 
most  it  may  be  said  to  be  prima  facie  evi- 
dence of  the  agreement.  30  Vt.  711;  15 
N.  H.  119. 

The  surety  is  not  discharged  if  he  has  given  " 
his  assent  to  the  extension  of  the  time.  6  Bosw. 
N.Y.  600;  2  McLean,  C.  C.  99 ;  16  Penn.  St. 
112.  Such  assent  by  one  surety  does  not  bind 
his  co-surety,  10  N.  H.  318;  and  subsequent 
assent  given  by  the  surety  without  new  con- 
sideration, after  he  has  been  discharged  by  a 


SURETY  SHIP  5; 


valid  aojreement  for  delay,  will  not  bind  him. 

12  N.  H.  320.  He  need  not  show  notice  to 
the  creditor  of  his  dissent.    12  Ga.  271. 

Where  an  execution  against  a  principal  is 
not  levied  on,  or  a  levy  is  postponed  without 
the  consent  of  the  surety,  he  is  discharged 
from  his  liability  as  surety,  unless  he  has 
property  of  the  principal  in  his  hands^at  the 
time;  if  he  has  property  in  his  hands  liable 
for  the  principal's  debts,  the  creditors  of  the 
principal  may  insist  on  an  application  of  the 
property  to  the  payment  of  their  debts.  9  B. 
Monr.  Ky.  235. 

30.  If  the  creditor  releases  any  security 
which  he  holds  against  the  debtor,  the  surety 
will  be  discharged,  7  Mo.  497;  8  Serg.  &  R. 
Penn,  452;  but  if  the  security  only  covers  a 
part  of  the  debt,  it  would  seem  that  the  surety 
will  be  released  only  pro  tanto.  9  Watts  &  S. 
Penn.  36.  Nor  will  it  matter  if  the  security 
is  received  after  the  contract  is  made.  A  cre- 
ditor who  has  the  personal  contract  of  his 
debtor,  with  a  surety,  and  has  also  or  takes 
afterwards  property  from  the  principal  as  a 
pledge  or  security  for  his  debt,  is  to  hold  the 
property  fairly  and  impartially  for  the  benefit 
of  the  surety  as  well  as  himself,  and  if  he  parts 
with  it  without  the  knowledge  or  against  the 
will  of  the  surety  he  shall  lose  his  claim 
against  the  surety  to  the  amount  of  the  pro- 
perty so  surrendered  in  equity,  43  Me.  381 ; 
8  Pick.  Mass.  121 ;  4  Johns.  Ch.  N.Y.  129;  4 
Ves.  829;  2  Cox,  86;  5  N.  H.  353;  Theobald, 
Surety.  142 ;  or  at  law.  8  Serg.  &  R.  Penn.  457; 

13  id.  157.  The  fact  that  other  security,  as 
good  as,  or  better  than,  that  surrendered,  was 
substituted  for  it,  will  not  preclude  the  surety 
from  availing  himself  of  the  discharge.  15 
N.  H.  119. 

31.  But  a  surety  is  not  discharged  by  the 
fact  that  the  creditor  has  released  or  com- 
pounded with  his  co-surety  ;  much  less  if  his 
co-surety  has  been  released  by  process  of 
law.  The  only  effect  of  such  a  release  or 
composition  is  that  the  surety  is  then  not 
liable  for  the  proportion  which  would  pro- 
perly fall  on  his  co-surety.  6  Ves.  605,  per 
Lord  Eldon.  This  at  least  is  the  doctrine  in 
equity ;  although  it  may  be  questioned  whether 
it  would  apply  at  law  where  the  obligation  is 
joint.    4  Ad.  &  E.  675.^   See  4  Ga.  397. 

But  if  the  obligation  is  joint  and  several,  a 
surety  is  not  released  from  his  proportion  by 
such  discharge  of  his  co-surety.  31  Penn.  St. 
460. 

RIGHTS  OF  SURETY  AGAINST  PRINCIPAL. 

312.  Until  default,  the  surety  has,  in  gene- 
ral, no  rights  against  the  principal,  except  the 
passive  right  to  be  discharged  from  the  obli- 
gation on  the  conditions  stated  before.  But 
after  default  on  the  part  of  the  principal,  and 
before  the  surety  is  called  upon  to  pay,  the 
latter  has  a  remedy  against  the  further  con- 
tinuance of  the  obligation,  and  he  cannot  in 
all  cases,  as  we  shall  see  below,  compel  the 
creditor  to  proceed  against  the  debtor;  but 
the  English  courts  in  equity  allow  him  to 
bring  a  bill  against  the  debtor,  requiring  him 
to  exonerate  him.    2  Brown,  Ch.  579. 


SUREIYSHIP 


So,  in  this  country,  a  surety  for  a  deLC 
which  the  creditor  neglects  or  refuses  to  en 
force  by  proper  proceedings  for  that  purpose 
may,  by  bill  in  equity,  bring  both  debtor  and 
creditor  before  the  court,  and  have  a  decree 
to  compel  the  debtor  to  make  payment  and 
discharge  the  surety,  5  Sneed,  Tenn.  86;  3 
E.  D.  Smith,  N.Y.  432;  and  in  courts  having 
full  equity  powers  there  can  be  no  doubt  of 
the  right  of  a  surety,  after  a  debt  has  become 
due,  to  file  a  bill  to  compel  the  principal 
debtor  to  pay,  whether  the  surety  has  himself 
been  sued  or  not.  2  Md.  Ch.  Dec.  442.  4 
Johns.  Ch.  N.Y.  123. 

33.  The  surety,  after  payment  of  the  debt, 
may  recover  the  amount  so  paid  of  the  prin- 
cipal, the  process  varying  according  to  the 
practice  of  different  courts.  2  Term,  104; 
4  Me.  200;  1  Pick.  Mass.  121 ;  1  Mete.  Mass. 
389;  3  id.  169;  13  111.  68.  The  liability  as- 
sumed by  the  surety  is  held  to  be  a  good  con- 
sideration to  sustain  another  contract.  21 
Pick.  Mass.  241. 

And  such  payment  refers  back  to  the  ori- 
ginal undertaking,  and  overrides  all  inter- 
mediate equities,  as  of  the  assignee  of  a  claim 
against  the  surety  assigned  by  the  principal 
before  payment.    28  Vt.  391. 

The  payment  must  not  be  voluntary,  or 
made  in  such  a  manner  as  to  constitute  a 
purchase;  for  the  surety,  by  purchasing  the 
claim,  would  take  the  title  of  the  creditor,  and 
must  claim  under  that,  and  not  on  his  own  im- 
plied contract  of  the  principal.  By  an  invo- 
luntary payment  is  intended  only  a  payment 
of  a  claim  against  which  the  surety  cannot 
defend.  It  is  not  necessary  that  a  suit  should 
be  brought.  But  a  surety  who  pays  money 
on  a  claim  which  is  absolutely  barred  has  no 
remedy  against  the  principal.  3  Rand.  Va. 
490;  3  N.  H.  270. 

A  surety,  having  in  his  hands  funds  or  se- 
curities of  the  principal,  may  apply  them  to 
the  discharge  of  the  debt,  10  Rich.  Eq.  So.  C. 
557 ;  but  where  the  fund  is  held  by  one  surety 
he  must  share  the  benefit  of  it  with  his  co- 
surety. 3  Jones,  Eq.  No.  C.  170;  28  Vt.  65. 
But  a  surety  who  has  security  for  his  liability 
may  sue  the  principal  on  his  implied  promise 
all  the  same,  unless  it  was  agreed  that  he 
should  look  to  the  security  only.  4  Pick. 
Mass.  444. 

Payment  of  a  note  by  a  surety  by  giving 
new  note  is  sufficient  payment,  even  if  the 
new  note  has  not  been  paid  when  the  suit  is 
commenced,  4  Pick.  Mass.  444;  id.  286; 
2  Mete.  Mass.  561 ;  2  All.  Mass.  474;  3  N.  II. 
366:  contra,  where  judgment  had  been  ren- 
dered against  the  surety.  3  Md.  47 ;  or  by 
conveyance  of  land.  11  Mass.  494;  9  Cush. 
Mass.  213. 

If  the  surety  pays  too  much  by  mistake,  he 
can  recover  only  the  correct  amount  01  the 
principal.  1  Dane,  Abr.  Mass.  197.  If  a 
surety  pays  usurious  interest  to  obtain  time 
to  pay  the  debt  of  the  principal,  he  cannot 
recover  it  of  the  principal.    1  Mich.  193. 

Extraordinary  expenses  of  the  surety,  which 
might  have  been  avoided  by  payment  of  the 


SURETYSHIP 


571 


SURETYSHIP 


numej.  or  remote  and  unexpected  conse- 
quences, are  never  considered  as  coming 
within  the  contract.  17  Mass.  109;  5  Rawle, 
Penn.  106.  Costs  incurred  and  paid  by  the 
surety  in  litigating  in  good  faith  the  claim 
of  the  creditor  can  be  recovered  of  the  prin- 
cipal, 30  Vt.  467 ;  5  Barb.  N.  Y.  398 ;  but  not 
so  if  the  litigation  is  in  bad  faith,  24  Barb. 
N.  Y.  546,  or  where  the  surety,  being  in- 
demnified for  his  liability,  incurred  expenses 
in  defending  a  suit  contrary  to  the  expressed 
wishes  of  the  principal  and  after  being  no- 
tified by  him  that  there  was  no  defence  to 
such  action.    22  Conn.  299. 

Joint  sureties  who  pay  the  debt  of  the 
principal  may  sue  jointly  for  reimbursement, 
3  Mete.  Mass.  169;  and  if  each  surety  has 
paid  a  moiety  of  the  debt,  they  have  several 
rights  of  action  against  the  principal.  20 
N.  H.  418. 

RIGHTS  OF  SURETY  AGAINST  CREDITOR. 

3-4.  It  is  not  quite  clear  whether  a  surety 
can  enforce  any  remedies  on  the  part  of  the 
creditor  before  actual  payment  by  the  surety; 
and,  of  course,  as  connected  with  this,  what 
is  the  effect  of  a  request  by  the  surety  to  the 
creditor  to  proceed  against  the  debtor,  and 
neglect  or  refusal  to  comply  by  the  creditor. 
The  objection  to  discharging  the  surety  on 
account  of  such  neglect  is  the  fact  that  the 
surety  may  pay  the  debt  and  at  once  become 
subrogated  to  all  the  rights  of  the  creditor. 
6  Md.  210.  But  where  there  are  courts  in 
the  exercise  of  full  equity  powers,  the  surety 
may  insure  a  prompt  prosecution  either  by 
discharging  the  obligation  and  becoming  by 
substitution  entitled  to  all  the  remedies  pos- 
sessed by  the  creditor,  or  he  may  coerce  the 
creditor  to  proceed  by  an  application  to  a 
court  of  equity,  2  Johns.  Ch.  N.  Y.  554; 
though  in  the  latter  case  he  would  probably 
be  required  to  indemnify  the  creditor  against 
the  consequences  of  risk,  delay,  and  expense. 
2  Md.  Ch.  Dec.  442.  The  same  indemnity 
would  in  general  be  required  where  a  request 
is  njade ;  but  it  has  been  held  that  a  simple 
request  to  sue  the  principal  debtor,  without 
a  tender  of  expenses,  or  a  stipulation  to  pay 
them,  or  an  offer  to  take  the  obligation  and 
bring  suit,  is  sufficient  to  discharge  the 
surety,  unless  the  creditor  at  the  time  of  the 
notice  expressly  puts  his  refusal  to  sue  on 
the  ground  of  the  trouble  and  expense,  and 
offers  to  proceed  if  that  objection  be  removed. 
18  Penn.  St.  460.  A  creditor  is  not  bound 
to  make  use  of  active  diligence  against  a 
principal  debtor  on  the  mere  request  of  a 
surety.    13  111.  376. 

35.  The  surety  who  pays  the  debt  of  the 
principal  in  full  is  entitled  to  have  every  ad- 
vantage which  the  creditor  has  in  pursuing  the 
debtor,  and  for  this  purpose  may  have  an  as- 
signment of  the  debt,  or  be  subrogated  either 
in  law  or  equity.  15  N.  H.  119;  39  id.  150. 
Whether  the  remedy  will  be  by  subrogation, 
or  whether  the  suit  must  be  in  the  name  of 
the  creditor,  will  depend  upon  the  rules  of 
practice  in  the  different  states.  38  Penn. 
St.  98.    The  right  of  subrogation  does  not 


depend  upon  any  contract  or  request  by  th«i 
principal  debtor,  but  rests  upon  principles  of 
justice  and  equity,  1  N.  Y.  595  ;  4  Ga.  343, 
and,  though  originating  in  courts  of  equity, 
is  now  fully  recognized  as  a  legal  right.  11 
Barb.  N.  Y.  159. 

RIGHTS  OF  SURETY  AGAINST  CO-SCRETY. 

36.  The  co-sureties  are  bound  to  contri- 
bute equally  to  the  debt  th(!y  becon)e  liable 
to  pay  when  their  undertaking  is  joint,  or 
joint  and  several,  not  separate  and  suc- 
cessive, 3  Pet.  470;  but  the  creditor  m.ay  re- 
cover the  whole  amount  of  one  surety,  and 
leave  him  to  his  remedy  by  contribution  from 
the  others  and  reimbursement  from  the 
principal.  1  Dan.  Ky.  355.  To  support  the 
right  of  contribution,  it  is  not  necessary  that 
the  sureties  should  be  bound  by  the  same  in- 
strument. 2  Swanst.  Ch.  185 ;  14  Ves.  Ch, 
160.  But  where  two  sureties  are  bound  by 
separate  and  distinct  agreements  for  distinct 
amounts,  although  for  equal  portions  of  the 
same  debt,  there  is  no  right  of  contribution 
between  them.  1  Turn.  &  R.  Ch.  426 ;  3  Pet. 
470.  The  right  of  contribution,  however, 
does  not  arise  out  of  any  contract  or  agree- 
ment between  co-sureties  to  indemnify  each 
other,  but  rests  on  the  principle  of  equity, 
which  courts  of  law  will  enforce,  that  where 
two  persons  are  subject  to  a  common  burden 
it  shall  be  borne  equally  between  them.  In 
such  cases  the  law  raises  an  implied  promise 
from  the  mutual  relation  of  the  parties.  3 
All.  Mass.  566. 

It  is  not  necessary  that  the  co-sureties 
should  know  of  the  agreements  of  each  other, 
as  the  principle  of  contribution  rests  only  on 
the  equality  of  the  burden,  and  not  on  any 
privity.  1  Cox,  318;  2  Bos.  &  P.  270;  4 
Young  &  C.  424 ;  23  Penn.  St.  294. 

37.  A  surety  may  compel  contribution  for 
the  costs  and  expenses  of  defending  a  suit,  if 
the  defence  were  made  under  such  circum- 
stances as  to  be  regarded  as  prudent.  23  Vt. 
581.  And  where  the  suit  is  defended  at  the 
instance  or  request  of  the  co-surety,  costs 
would  be  a  subject  of  contribution,  both  on 
equitable  grounds  and  on  the  implied  promise. 
1  Mood.  &  M.  406. 

A  claim  for  contribution  extends  to  all  se- 
curities given  to  one  surety.  30  Barb.  N.  Y. 
403  ;  3  Jones,  Eq.  No.  C.  170.  If  one  of 
several  sureties  takes  collaterals  from  the  prin- 
cipal, they  will  enure  to  the  benefit  of  all. 
28  Vt.  65 ;  3  Dutch.  N.  J.  503.  Where  one  of 
several  sureties  is  secured  by  mortgage,  he  is 
not  bound  to  enforce  his  mortgage  before  he 
pays  the  debt  or  has  reason  to  apprehend  that 
he  must  pay  it,  unless  the  mortgagor  is  wast- 
ing the  estate ;  and  if  the  mortgagor  be  squan- 
dering the  mortgaged  property,  and  the  surety 
secured  by  the  mortgage  fails  to  enforce  his 
rights,  he  is  chargeable  between  himself  and 
his  co-sureties  with  the  fair  vendible  value  of 
the  mortgaged  property  at  a  coercive  sale.  11 
B.  Monr.  Ky.  399.  The  surety  in  a  suit  for 
contribution  can  recover  only  the  amount 
which  he  has  actually  paid.  Any  reduction 
which  he  has  obtained  must  be  regarded  a? 


SURETYSHIP 


57: 


'2 


SURGEON 


for  the  benefit  of  all  the  co-sureties.  12  Gratt. 
Va.  642.   And  see  11  B.  Monr.  Ky.  297. 

38.  The  right  of  contribution  may  be  con- 
trolled by  particular  circumstances:  thus, 
where  one  becomes  surety  at  the  request  of 
another,  he  cannot  be  called  on  to  contribute 
by  the  person  at  whose  request  he  entered  into 
the  security.  2  Esp.  N.  P.  Gas.  478 ;  37  N.  H. 
567.  The  agreement  between  the  first  surety 
and  the  second  in  such  a  case  is  not  within 
the  Statute  of  Frauds.    4  Zabr.  N.  J.  812. 

A  surety  who  is  fully  indemnified  by  his 
principal  cannot  recover  contribution  from 
his  co-surety  for  money  paid  by  him,  but 
must  indemnify  himself  out  of  the  means 
placed  in  his  hands.    21  Ala.  n.  s.  779. 

39.  The  remedy  for  contribution  may  be 
either  in  equity  or  at  law.  The  law  raises 
an  implied  promise,  as  we  have  seen,  and 
clearly  gives  the  right  of  action,  and  the 
remedy  at  law  is  ancient,  writs  of  contribu- 
tion being  found  in  the  Register,  fo.  176,  an  i 
in  Fitzherbert,  Nat.  Brev.  162.  But  the  ma- 
jority of  the  cases  are  in  equity,  whose  rules 
of  practice  are  much  better  suited  to  the  pro- 
ceeding, especially  where  the  accounts  are 
(jomplicated  or  the  sureties  numerous.  The 
result  reached  either  in  law  or  in  equity  is 
tJae  same,  with  one  important  exception;  in 
the  case  of  the  insolvency  of  one  of  the 
sureties.  In  such  cases  the  law  takes  no 
notice  of  the  insolvency,  but  awards  the  pay- 
ing surety  his  due  proportion  as  if  all  were 
solvent.  But  equity  takes  no  notice  of  the 
surety  who  is  insolvent,  but  avs^ards  contribu- 
tion as  if  he  had  never  existed.  1  Chanc.  Rep. 
34 ;  1  Chanc.  Cas.  246  ;  6  Barnew.  &  C.  689 ; 
4  Gratt.  Va.  267.  One  surety  cannot  by  injunc- 
tion arrest  the  proceedings  at  law  of  his  co- 
surety against  him  for  contribution,  unless  he 
tenders  the  principal  and  interest  due  such  co- 
surety, who  has  paid  the  principal,  or  alleges 
that  he  is  ready  and  willing  to  bring  the  same 
into  court  to  be  paid  to  him  as  a  condition  of 
the  court's  interference.  4  Gill,  Md.  225. 
"Where  a  surety  has  been  compelled  to  pay  the 
debt  of  his  principal,  and  one  of  his  co-sureties 
is  out  of  the  jurisdiction  of  the  court,  and 
others  are  within  it,  the  surety  who  has  paid  is 
at  liberty  to  proceed  in  a  suit  in  equity  for  con- 
tribution against  those  co-sureties  only  who 
are  within  the  jurisdiction,  by  stating  the  fact 
in  his  bill,  and  the  defendants  will  be  required 
to  make  contribution  without  regard  to  the 
share  of  the  absent  co-surety.  6  Ired.  Eq. 
No.  C.  115. 

CONFLICT  OF  LAWS. 

40.  The  contract  of  suretyship,  like  other 
contracts,  is  governed  by  the  lex  loci  con- 
tractus ;  but  the  locus  is  not  necessarily  the 
same  as  that  of  the  principal  contract.  Thus, 
the  contract  made  by  the  indorser  of  a  note 
is,  not  to  pay  the  note  where  it  is  payable, 
but  that  if  not  paid  there  he  will  pay  it  at 
the  place  where  the  indorsement  is  made.  5 
East,  124;  12  Johns.  N.  Y.  142;  3  Mass.  77; 
13  id.  20;  11  Mart.  La.  23;  16  id.  606;  4 
Barnew.  &  Aid.  654;  8  Pick.  Mass.  194; 
Story,  Confl.  L.  ^  317.    The  lex  loci  applies 


as  well  to  the  interest  as  to  the  principal 
amount.  A  question  has  been  made  in  the 
case  of  bonds  for  faithful  performance  given 
by  public  officers  ;  and  in  these  it  has  been 
held  that  the  place  of  performance  is  to  be 
regarded  as  the  place  of  making  the  contract, 
and  sureties  are  bound  as  if  they  made  the 
contract  at  the  seat  of  the  government  to 
which  the  bonds  are  given.  And  under  this 
rule  the  obligation  of  all  on  the  bond  is  gov- 
erned by  the  same  law,  although  the  prin- 
cipal and  sureties  may  sign  in  different  states. 
Story,  Confl.  L.  291 ;  6  Pet.  172 ;  7  id.  435. 
A  letter  of  guaranty  written  in  the  United 
States  and  addressed  to  a  person  in  England 
must  be  construed  according  to  the  laws  of 
England.    1  How.  161. 

Consult  Bond;  Guaranty;  Promissory 
Notes  ;  Burge,  Ross,  Theobald,  on  Suretyship ; 
Fell,  on  Guaranty;  Pitman,  on  Principal  and 
Surety;  Browne,  Statute  of  Frauds;  Addi- 
son, Chitty,  Newland,  Parsons,  Shaw,  Smith, 
Story,  Verplanck,  on  Contracts;  Burge,  Story, 
Conflict  of  Laws;  Adams,  Story,  Eq.  Jur. ; 
Dixon,  Subrogation;  Bouvier,  Institutes; 
Blackstone,  Kent,  Commentaries. 

SURGEON.  One  who  applies  the  prin- 
ciples of  the  healing  art  to  external  diseases 
or  injuries,  or  to  internal  injuries  or  mal- 
formations, requiring  manual  or  instrumental 
intervention.    One  who  practises  surgery. 

This  definition  is  imperfect,  it  being  impossible 
to  define  the  term  surgeon  or  surgery.  The  term 
surgery,  or  chirurgery,  comes  from  two  Greek  words 
signifying  the  hand  and  work,  meaning  a  manual 
procedure  by  means  of  instruments,  or  otherwise, 
in  the  healing  of  injuries  and  the  cure  of  disease. 
The  practice  of  medicine,  in  contradistinction  to 
the  practice  of  surgery,  denotes  the  treatment  of 
disease  by  the  administration  of  drugs  or  other 
sanative  substances.  There  cannot  be  a  complete 
separation  between  the  practice  of  medicine  and 
surgery  as  they  are  developed  by  modern  science 
and  understood  by  the  most  learned  in  the  pro- 
fession of  medicine :  the  principles  of  both  are  the 
same  throughout,  and  no  one  is  qualified  to  practise 
either  who  does  not  completely  understand  the 
fundamental  principles  of  both. 

2.  The  general  principles  of  law  defining 
the  civil  responsibilities  of  physicians  and  sur- 
geons are  the  same  as  those  that  apply  to 
and  govern  the  conduct  of  lawyers,  engineers, 
machinists,  ship-builders,  brokers,  and  other 
classes  of  men  whose  employment  requires 
them  to  transact  business  demanding  special 
skill  and  knowledge.  Elwell,  Malp.  19 ;  27 
N.  H.  468.  The  surgeon  does  not  warrant 
or  insure  as  to  the  result,  ordinarily.  7  Carr. 
&  P.  81 ;  Elwell,  Malp.  20.  The  surgeon  or 
physician  may  bind  himself  by  an  express 
contract  to  cure.  Elwell,  Malp.  21 ;  Chitty, 
Contr.  629,  630;  27  N.  H.  468 ;  Jones,  Bailm. 
22,  23,  62,  97,  120;  2  Ld.  Raym.  909;  1 
Bell,  Comm.  459,  5th  ed.;  3  Blackstone, 
Comm.  122. 

3.  Lord-chief-justice  Tindall  says.  Every 
person  who  enters  into  a  learned  profession 
undertakes  to  bring  to  the  exercise  of  it  a 
reasonable,  fair,  and  competent  degree  of 
skill.  8  Carr.  &  P.  475.  This  degree  of  skill 
is  what  is  usually  termed  ordinary  and  roason- 


SURNAME 


573 


SURRENDEROR 


nl)le.  Story,  Bailm.  433  ;  Elwell,  Malp.  22,  | 
23.  In  addition  to  the  application  of  ordi- 
nary skill  in  the  treatment  of  disease  and 
injuries,  the  phj^sician  and  surgeon  undertake 
to  give  to  their  cases  ordinary  care  and  dili- 
gence and  the  exercise  of  their  best  judg- 
ment. Elwell,  Malp.  26;  5  Barnew.  &  Aid. 
820  ;  15  East,  62 ;  15  Greenl.  Me.  97.  See 

PUYSICIAN. 

SURNAME.  A  name  which  is  added  to 
the  Christian  name.  In  modern  tiznes  these 
have  become  family  names. 

Tliey  are  called  surnames,  because  originally 
chey  were  written  over  the  name  in  judicial  writings 
and  contracts.  They  were  and  are  still  used  for 
the  purpose  of  distinguishing  persons  of  the  same 
name.  They  were  taken  from  something  attached 
to  the  persons  assuming  them  :  as,  John  Carpenter, 
Joseph  Black,  Samuel  Little,  etc.    See  Name. 

SURPLUS.  That  which  is  left  from  a 
fund  which  has  been  appropriated  for  a  par- 
ticular purpose  ;  the  remainder  of  a  thing  ; 
the  overplus;  the  residue.  See  18  Ves.  Ch. 
466. 

SURPLUSAGE.     In  Accounts.  A 

greater  disbursement  than  the  charges  amount 
to.    A  balance  over.    1  Lew.  219. 

In  Pleading.  Allegations  of  matter  wholly 
foreign  and  impertinent  to  the  cause.  All 
matter  beyond  the  circumstances  necessary 
to  constitute  the  action  is  surplusage.  Cowp. 
683 :  5  East,  275  ;  10  id.  205  ;  2  Johns.  Cas. 
N.  T.  52:  1  Mas.  C.  C.  57;  16  Tex.  656. 
Generally,  matter  of  surplusage  will  be  re- 
jected and  will  not  be  allowed  to  vitiate  the 
pleading.  Coke,  Litt.  303  b;  2  Saund.  306, 
n.  14 ;  7  Johns.  N.  Y.  462 ;  13  id.  80  ;  3  Dougl. 
472 ;  1  Root,  Conn.  456 ;  1  Pet.  18  ;  2  Mass. 
283  ;  8  Serg.  &  R.  Penn.  124;  1  Pet.  18;  1 
Ala.  326 ;  1  Hempst.  Ark.  221 ;  21  N.  H. 
535,  as  new  and  needless  matter  stated  in 
an  innuendo,  9  East,  95  ;  7  Johns.  N.  Y.  272, 
even  if  repugnant  to  what  precedes,  10  East, 
142  ;  see  16  Tex.  656 ;  but  if  it  shows  that 
the  plaintiflF  has  no  cause  of  action,  demur- 
rer will  lie.  1  Salk.  363  ;  3  Taunt.  139  ;  2 
East,  451;  4  id.  400 ;  Dougl.  667;  2  W. 
Blackstone,  842 ;  3  Cranch,  193  ;  2  Dall.  300; 
1  Wash.  C.  C.  257.  Where  the  whole  of  an 
allegation  is  immaterial  to  the  plaintiff's 
right  of  action,  it  may  be  struck  out  as  sur- 
plusage. 1  Mas.  C.  C.  57.  Matter  laid  under 
a  videlicet,  inconsistent  with  what  precedes, 
may  be  rejected  as  surplusage,  4  Johns.  N. 
Y.  450 ;  2  Blackf.  Ind.  143  ;  and  when  the 
unnecessary  matter  is  so  connected  with  what 
is  material  that  it  cannot  be  separated,  the 
whole  matter  may  be  included  in  the  traverse, 
Dy.  365  ;  2  Saund.  206  a,  n.  21-24  ;  and  the 
whole  must  be  proved  as  laid.  1  Ohio,  483  ; 
1  Brev.  No.  C.  11. 

SURPRISE.  In  Equity  Practice.  The 

act  by  which  a  party  who  is  entering  into  a 
contract  is  taken  unawares,  by  which  sudden 
confusion  or  perplexity  is  created,  which  ren- 
ders it  proper  that  a  court  of  equity  should 
relieve  the  party  so  surprised.  2  Brown,  Ch. 
i50  ;  1  Story,  Eq.  Jur.  ^  120,  note. 


The  situation  in  which  a  party  is  placed, 
without  any  default  of  his  own,  which  will 
be  injurious  to  his  interests.  8  Mart,  La. 
N.  s.  407. 

Mr.  Jeremy,  Eq.  Jur.  366,  383,  note,  seems  to 
think  that  the  word  surprise  is  a  technical  expres- 
sion, and  nearly  synonymous  with  fraud.  It  ia 
sometimes  used  in  this  sense  when  it  is  deemed 
presumptive  of,  or  approaching  to,  fraud.  1  Fon- 
blanque,  Eq.  123;  3  Chanc.  Cas.  56,  74,  103,  114. 
See  6  Ves.  Ch.  327,  338  ;  16  id.  81,  86,  87 ;  2  Brown, 
Ch.  326;  1  Cox,  Ch.  340. 

SURREBUTTER.    In  Pleading.  The 

plaintifi'^s  answer  to  the  defendant's  rebutter. 
It  is  governed  by  the  same  rules  as  the  repli- 
cation.   See  6  Comyns,  Dig.  185  ;  7  id.  389. 

SURREJOINDER.  In  Pleading.  The 

plaintiff's  answer  to  the  defendant's  rejoin- 
der. It  is  governed  in  every  respect  by  tho 
same  rules  as  the  replication.  Stephen,  Plead. 
77  ;  Archbold,  Civ.  Plead.  284 ;  7  Comyns, 
Dig.  389. 

SURRENDER.  A  yielding  up  of  an 
estate  for  life  or  years  to  him  who  has  an  im- 
mediate estate  in  reversion  or  remainder,  by 
which  the  lesser  estate  is  merged  in  the 
greater  by  mutual  agreement.  Coke,  Litt. 
337  b. 

The  deed  by  which  the  surrender  is  made. 

A  surrender  is  of  a  nature  directly  opposite  to  a 
release ;  for,  as  the  latter  operates  by  the  greater 
estate  descending  upon  the  less,  the  former  is  the 
falling  of  a  less  estate  into  a  greater,  by  deed.  A 
surrender  immediately  divests  the  estate  of  the 
surrenderer,  and  vests  it  in  the  surrenderee,  even 
without  the  assent  of  the  latter.  Sheppard,  Touchst. 
300,  ,301. 

The  technical  and  proper  words  of  this 
conveyance  are,  surrender  and  yield  up ;  but 
any  form  of  words  by  which  the  intention  of 
the  parties  is  sufficiently  manifested  will  ope- 
rate as  a  surrender.  Perkins,  ^  607;  1  Term, 
441 ;  Comyns,  Dig.  Surrender  (A). 

The  surrender  may  be  express  or  implied. 
The  latter  is  when  an  estate  incompatible 
with  the  existing'  estate  is  accepted,  or  the 
lessee  takes  a  new  lease  of  the  same  lands. 
16  Johns.  N.  Y.  28  ;  2  Wils.  26  ;  1  Bamew. 
&  Aid.  50  ;  2  id.  119;  5  Taunt.  518.  And  see 
6  East,  86 ;  9  Barnew.  &  C.  288 ;  7  Watts, 
Penn.  123 ;  Cruise,  Dig.  tit.  32,  c.  7 ;  Comyns, 
Dig.;  4  Kent,  Comm.  102;  Rolle,  Abr.;  11 
East,  317,  n. 

SURRENDER  OF  CRIMINALS.  The 

act  by  which  the  public  authorities  deliver  a 
person  accused  of  a  crime,  and  who  is  found 
in  their  jurisdiction,  to  the  authorities  with- 
in whose  jurisdiction  it  is  alleged  the  crime 
has  been  committed.  See  Extradition  ; 
Fugitives  from  Justice. 

SURRENDEREE,  One  to  whom  a  sur- 
render has  been  made. 

SURRENDEROR.  One  who  makes  a 
surrender:  as,  when  the  tenant  gives  up  the 
estate  and  cancels  his  lease  before  the  ex- 
piration of  the  term.  One  who  yields  up 
a  freehold  estate  for  the  purpose  of  convey 
ing  it. 


SURREPTITIOUS 


574 


SUSPENSION 


SURREPTITIOUS.  That  which  is  done 
iti  a  fraudulent,  stealthy  manner. 

SURROG-ATE  (Lat.  surrogatns,  from 
subrogare,  or  sim-ogare,  to  substitute).  In 
English  Law.  A  deputy  or  substitute  of 
the  chancellor,  bishop,  ecclesiastical  or  ad- 
miralty judge,  appointed  by  him.  He  must 
take  an  oath  of  office.  He  can  grant  licenses, 
hold  courts,  and  adjudicate  cases,  to  the  same 
extent  and  with  the  same  authority  as  his 
principal,  provided  his  grant  of  powers  has 
been  coextensive  with  those  possessed  by  his 
principal.  The  office  has  arisen  by  usage, 
but  is  sanctioned  by  canon  128,  and  recog- 
nized by  Stat.  26  Geo.  II.  c.  33,  56  Geo.  III. 
c.  82,  and  10  Geo.  IV.  c.  53,  by  which  latter 
act  it  was  provided  that  the  surrogates  of  the 
arches  and  consistory  of  London  are  to  con- 
tinue after  the  death  of  the  judges  of  those 
courts  till  new  appointments  are  made.  1 
Phill.  Eccl.  205  ;  3  Burn,  Eccl.  Law,  667. 

Id  American  Law.  A  term  used  in  some 
statcG  to  denote  the  judge  to  whom  jurisdic- 
tion of  the  probate  of  wills,  the  grant  of  ad- 
ministration and  of  guardianship  is  confided. 
\n  other  states  he  is  called  surrogate,  in 
others,  judge  of  probate,  register,  judge  of 
the  orphans'  court,  etc.  He  is  ordinarily  a 
county  officer,  with  a  local  jurisdiction  limited 
tG  his  county. 

SURROGATE'S  COURT.  In  Ame- 
rican Law.  In  the  United  States,  a  state 
tribunal,  with  similar  jurisdiction  to  the  court 
of  ordinary,  court  of  probate,  etc.,  relating 
to  matters  of  probate,  etc.  See  above  titles; 
2  Kent,  Comm.  409,  note  6;  New  York. 

SURVEY.  The  act  by  which  the  quan- 
tity of  a  piece  of  land  is  ascertained ;  the 
paper  containing  a  statement  of  the  courses, 
distances,  and  quantity  of  land  is  also  called 
a  survey. 

A  survey  made  by  authority  of  law,  and 
duly  returned  into  the  land  office,  is  a  matter 
of  record,  and  of  equal  dignity  with  the 
patent.  3  A.  K.  Marsh.  Ky.  226 ;  2  J.  J. 
Marsh.  Ky.  160.  See  3  Me.  126;  5  id.  24; 
14  Mass.  149  ;  1  Harr.  &  J.  Md.  201 ;  1  Ov. 
Tenn.  199 ;  1  Dev.  &  B.  No.  C.  76. 

By  survey  is  also  understood  an  examination : 
as,  a  survey  has  been  made  of  your  house,  and 
now  the  insurance  company  will  insure  it. 

SURVIVOR.  The  longest  liver  of  two 
or  more  persons. 

2.  In  cases  of  partnership,  the  surviving 
partner  is  entitled  to  have  all  the  effects  of 
the  partnership,  and  is  bound  to  pay  all  the 
debts  owing  by  the  firm.  Gow,  Partn.  157 ; 
Watson,  Partn.  364.  He  is,  however,  bound 
to  account  for  the  surplus  to  the  representa- 
tives of  his  deceased  partners,  agreeably  to 
their  respective  rights.    See  Partnership. 

3.  A  surviving  trustee  is  generally  vested 
with  all  the  powers  of  all  the  trustees,  and 
the  surviving  administrator  is  authorized  to 
act  for  the  estate  as  if  he  had  been  sole  ad- 
ministrator. As  to  the  presumption  of  sur- 
vivorship, when  two  or  more  persons  have 
perished  by  the  same  event,  see  Death  ; 


Fearne,  Cont.  Rem.  4;  2  Pothier,  Obi.  Evani 
ed.  346;  8  Ves.  Ch.  10  ;   14  id.  578  ;  17  id: 
482;  6  Taunt.  213;  Cowp.  257. 

4.  The  right  of  survivorship  among  joint- 
tenants  has  been  abolished,  except  as  to  es- 
tates held  in  trust,  in  Pennsylvania,  New 
York,  Kentucky,  Virginia,  Indiana,  Mis- 
souri, Tennessee,  Alabama,  Georgia,  North 
and  South  Carolina.  See  Estates  in  Joint- 
Tenancy.  In  Connecticut  it  never  existed, 
1  Swift,  Dig.  102;  AYashburn,  Real  Prop 
As  to  survivorship  among  legatees,  see  1 
Turn.  &  R.  Ch.  413  ;  1  Brown,  Ch.  574;  3 
Russ.  Ch.  217. 

SUS'  PER  COLL'.  In  English  Law. 
In  the  English  practice,  a  calendar  is  made 
out  of  attainted  criminals,  and  the  judge 
signs  the  calendar  with  their  separate  judg- 
ments in  the  margin.  In  the  case  of  a  capitai 
felony  it  is  written  opposite  the  prisoner's 
name,  "  let  him  be  hanged  by  the  neck," 
which,  when  the  proceedings  were  in  Latin, 
was  "  suspendatur  per  collum,"  or,  in  the 
abbreviated  form,  "  sus'  per  coU'."  4  Black- 
stone,  Comm.  403. 

SUSPENDER.  In  Scotch  Law.  He 
in  whose  favor  a  suspension  is  made. 

In  general,  a  suspender  is  required  to  give 
caution  to  pay  the  debt  in  the  event  it  shall 
be  found  due.  Where  the  suspender  cannot, 
from  his  low  or  suspected  circumstances,  pro- 
cure unquestionable  security,  the  lords  ad- 
mit juratory  caution;  but  the  reasons  of 
suspension  are  in  that  case  to  be  considered 
with  particular  accuracy  at  passing  the  bill. 
Act.  S.  8  Nov.  1682 ;  Erskine,  Inst.  4.  3.  6. 

SUSPENSE.  When  a  rent,  profit  d 
prendre,  and  the  like,  are,  in  consequence  of 
the  unity  of  possession  of  the  rent,  etc.  of 
the  land  out  of  which  they  issue,  not  m  esse 
for  a  time,  they  are  said  to  be  in  suspense, 
tunc  dormiunt;  but  they  may  be  revived  or 
awakened.    Coke,  Litt.  313  a. 

SUSPENSION.  A  temporary  stop  of  a 
right,  of  a  law,  and  the  like. 

In  times  of  war  the  habeas  corpus  act  may 
be  suspended  by  lawful  authority. 

There  may  be  a  suspension  of  an  officer's 
duties  or  powers  when  he  is  charged  with 
crimes.    Wood,  Inst.  510. 

Suspension  of  a  right  in  an  estate  is  a 
partial  extinguishment,  or  an  extinguish- 
ment for  a  time.  It  differs  from  an  extin- 
guishment in  this:  a  suspended  right  may 
be  revived  ;  one  extinguished  is  absolutely 
dead.    Bacon,  Abr.  Extinguishment  (A). 

The  suspension  of  a  statute  for  a  limited 
time  operates  so  as  to  prevent  its  operation 
for  the  time ;  but  it  has  not  the  effect  of  a 
repeal.    3  Dall.  Penn.  365. 

In  Scotch  Law.  That  form  of  law  by 
which  the  effect  of  a  sentence-condemnatory, 
that  has  not  yet  received  execution,  is  stayed 
or  postponed  till  the  cause  be  again  con- 
sidered. Erskine,  Inst.  4.  3.  5.  Suspension 
is  competent  also,  even  where  there  is  no 
decree,  for  putting  a  stop  to  any  illegal  ac/ 
whatsoever.    Erskine,  Inst.  4.  3.  7 


SUSPENSION  OF  ARMS 


575 


SYNOD 


Letters  of  suspension  bear  the  form  of  a 
.ummons,  which  contains  a  warrant  to  cite 
che  charo;er. 
In   Ecclesiastical  Law.     An  ecclcsi- 
i    astical  censure,  by  which  a  spiritual  person 
'    is  either  interdicted  the  exercise  of  his  eccle- 
!    siastical  function  or  hindered  from  receiving 
the  profits  of  his  benefice.    It  may  be  partial 
or  total ;  fi>r  a  limited  time,  or  forever,  when 
it  is  called  deprivation  or  amotion.  Ayliff'e, 
Parerg.  501. 

SUSPENSION  OF  ARMS.  An  agree- 
ment between  belligerents,  made  for  a  short 
time  or  for  a  particular  place,  to  cease 
hostilities  between  them.  See  Armistice  ; 
Truce. 

SUSPENSION  OP  A  RIGHT.  The 

act  by  which  a  party  is  deprived  of  the  exer- 
cise of  his  right  for  a  time. 

When  a  right  is  suspended  by  operation 
of  law,  the  right  is  revived  the  moment  the 
bar  is  removed ;  but  when  the  right  is  sus- 
pended by  the  act  of  the  party,  it  is  gone 
forever.  See  1  Rolle,  Abr.  Extinguishment 
(L,  M). 

SUSPENSIVE   CONDITION.  One 

which  prevents  a  contract  from  going  into 
operation  until  it  has  been  fulfilled :  as,  if  I 
promise  to  pay  you  one  thousand  dollars  on 
condition  that  the  ship  Thomas  Jefferson  shall 
arrive  from  Havre,  the  contract  is  suspended 
until  the  arrival  of  the  ship.  1  Bouvier,  Inst, 
n.  731. 

SUTLER.  A  man  whose  employment  is 
to  sell  provisions  and  liquor  to  a  camp. 

By  the  articles  of  war,  art.  29,  no  sutler 
is  permitted  to  sell  any  kind  of  liquor  or 
victuals,  or  to  keep  his  house  or  shop  open 
for  the  entertainment  of  soldiers,  after  nine 
at  night,  or  before  the  beating  of  the  reveil- 
16e,  or  upon  Sundays  during  divine  service 
or  sermon,  on  penalty  of  being  dismissed  all 
future  sutling.  And,  by  art.  60,  all  sutlers 
are  to  be  subject  to  orders  according  to  the 
rules  and  discipline  of  war. 

SUUS  H^RES  (Lat.).  In  Civil  Law. 
The  proper  heir,  as  it  were,  not  called  in 
from  outside. 

Those  descendants  who  were  under  the 
pOAver  of  the  deceased  at  the  time  of  his 
death,  and  who  are  most  nearly  related  to 
him.    Calvinus,  Lex. 

SUZERAIGN  (Norman  Fr.  suz,  under, 
and  re  or  reij,  king).  A  lord  who  possesses 
a  fief  whence  other  fiefs  issue.  Diet,  de 
i' Academic  Fran9aise.  A  tenant  in  capite 
or  immediately  under  the  king.  Note  77  of 
Butler  &  Hargrave's  notes.  Coke,  Litt.  1.  3. 

SWAIN-GEMOTE.    See  Court  of 

SvVEINMOTE. 

SWEAR.  To  take  an  oath  administered 
by  some  officer  duly  empowered.  See  Affirm- 
ation ;  Oath. 

To  use  such  profane  language  as  is  for- 


bidden by  law.  This  is  generally  punished 
by  statutory  provisions  in  the  several  states. 

SWINDLER.  A  cheat ;  one  guilty  of 
defrauding  divers  persons.  1  Term,  748;  2 
II.  Blackst.  531;  Starkie,  Sland.  135. 

Swindling  is  usually  applied  to  a  transac- 
tion where  the  guilty  party  pn)cu)'e8  the 
delivery  to  him,  under  a  pretended  contract, 
of  the  personal  property  of  another,  with 
the  felonious  design  of  appropriating  it  tc 
his  own  use.  2  Russell,  Crimes,  130  ;  Ali- 
son, Crim.  Law  of  Scotland,  250 ;  2  Mass, 
406. 

The  terms  cheat  and  swindler  are  not 
actionable  unless  spoken  of  the  plaintiff  in 
relation  to  his  business.  6  Cush.  Mass.  185. 
The  words  "you  are  living  by  imposture," 
spoken  of  a  person  with  the  intention  of  im- 
puting that  he  is  a  swindler,  are  not  action- 
able per  se.    8  C.  B.  142. 

SYMBOLIC  DELIVERY.  The  de- 
livery of  some  thing  as  a  representation  or 
sign  of  the  delivery  of  some  other. 

Where  an  actual  delivei-y  of  goods  cannot 
be  made,  a  symbolical  delivery  of  some  par- 
ticular thing,  as,  a  halfpenny,  will  vest  the 
property  equally  with  an  actual  delivery. 
L(mg,  Sales,  162 ;  8  How.  399 ;  6  Md.  10 ; 
19  N.  H.  419;  39  Me.  496;  11  Cush.  Mass. 
282;  3  Cal.  140. 

SYNALLAGMATIC  CONTRACT. 
In  Civil  Law.  A  contract  by  which  each 
of  the  contracting  parties  binds  himself  to 
the  other :  such  are  the  contracts  of  sale, 
hiring,  etc.    Pothier,  Obi.  9. 

SYNDIC.  In  French  Law.  The  as- 
signee of  a  bankrupt. 

One  who  is  chosen  to  conduct  the  aflairs 
and  attend  to  the  concerns  of  a  body  corpo- 
rate or  community.  In  this  sense  the  word 
corresponds  to  director  or  manager.  Rod- 
man, Notes  to  Code  de  Com.  p.  351 ;  La. 
Civ.  Code,  art.  429 ;  Dalloz,  Diet.  Syndic. 

SYNDICUS  (Gr.  ovv,  with,  Sm^,  cause). 
One  chosen  by  a  college,  municipality,  etc. 
to  defend  its  cause.  Calvinus,  Lex.  See 
Syndic. 

SYNGRAPH  (Gr.  avv,  with,  ypatpu,  to 
write).  A  deed,  bond,  or  other  instrument 
of  writing,  under  the  hand  and  seal  of  all 
the  parties.  It  was  so  called  because  the 
parties  wrote  together. 

Formerly  such  writings  were  attested  by  the 
subscription  and  crosses  of  the  witnesses ;  after- 
wards, to  prevent  frauds  and  concealments,  they 
made  deeds  of  mutual  covenant  in  a  script  and 
rescript,  or  in  a  part  and  counterpart,  and  in  the 
middle  between  the  two  copies  they  wrote  the  word 
fiyngraphxts'm  large  letters,  which, being  cut  through 
the  parchment  and  one  being  delivered  to  each 
party,  on  being  afterwards  put  together  proved 
their  authenticity. 

Deeds  thus  made  were  denominated  si/ngraphg  by 
the  canonists,  and  by  the  common-lawyers  chiro- 
graphs.   2  Blackstone,  Comm.  296. 

SYNOD.    An  ecclesiastical  assembly. 


TABELLA 


576 


TACKING 


T. 


TABELLA  (Lat.).    In  Civil  Law.  A 

small  table  on  which  votes  were  often  written. 
Cicero,  in  Rull.  2.  2.  Three  tablets  were  given 
to  the  judges,  one  with  the  letter  A  for  Ab- 
solutio,  one  with  C  for  Condemnatio,  and  one 
with  N.  L.  iov  Non  Liquet,  not  proven.  Cal- 
vinus,  Lex. 

TABELLIO  (Lat.).  In  Roman  Law. 
An  officer  among  the  Rojnans,  who  reduced 
to  writing,  and  into  proper  form,  agreements, 
contracts,  wills,  and  other  instruments,  and 
witnessed  their  execution. 

The  term  tabellio  is  derived  from  the  Latin 
tabula,  sea  tabdla,  which,  in  this  sense,  signified 
those  tables  or  plates  covered  with  wax  which  were 
then  used  instead  of  paper.  8  TouUier,  n.  53; 
Delauriere,  sur  Ragneau,  Notaire. 

Tabelliones  differed  from  notaries  in  many  re- 
spects :  they  had  judicial  jurisdiction  in  some 
cases,  and  from  their  judgments  there  were  no 
appeals.  Notaries  were  then  the  clerks  or  aiders 
of  the  tabelliones  ;  they  received  the  agreements  of 
the  parties,  which  they  reduced  to  short  »o<e8  ,•  and 
these  contracts  were  not  binding  until  they  were 
written  in  extemo,  which  was  done  by  the  tabel- 
liones. Encyclopedic  de  M.  D'Alembert,  Tabellion  ; 
Jacob,  Law  Diet.  Tabellion;  Merlin,  Repert.  No- 
taire, ^  1  ;  3  Giannone,  Istoria  di  Napoli,  p.  86. 

TABLE-RENTS.  Rents  paid  to  bishops 
and  other  ecclesiastics,  appropriated  to  their 
table  or  housekeeping.    Jacob,  Law  Diet. 

TABLEAU  OF  DISTRIBUTION.  In 

Louisiana.  A  list  of  creditors  of  an  insol- 
vent estate,  stating  what  each  is  entitled  to. 
4  Mart.  La.  n.  s.  535. 

TABLES.  A  synopsis  in  which  many 
particulars  are  brought  together  in  a  general 
view :  as,  genealogical  tables,  which  are  com- 
posed of  the  names  of  persons  belonging  to  a 
family.  As  to  the  law  of  the  Twelve  Tables, 
see  Code,  ^  27 ;  2  Bouvier,  Inst.  nn.  1963, 
1964. 

TABULA  IN  NAUFRAGIO  (Lat.  a 
plank  in  a  wreck).    In  English  Law,  A 

figurative  term  used  to  denote  the  power  of 
a  third  mortgagee,  who,  having  obtained  his 
mortgage  without  any  knowledge  of  a  second 
mortgage,  may  acquire  the  first  incumbrance, 
and  squeeze  out  and  have  satisfaction  before 
the  second.  2  Ves.  Ch.  573;  2  Fonblanque, 
Eq.  b.  3,  c.  2,  ^  2;  2  Yentr.  337  ;  1  Chanc. 
Cas.  162;  1  Story,  Eq.  ^  414,  415;  Tack- 
ing. 

TABUL-Sj.  In  Civil  Law.  Contracts 
and  written  instruments  of  all  kinds,  espe- 
cially wills.  So  called  because  originally 
written  on  tablets  and  with  wax.  Calvinus, 
Lex. 

TAG.  A  kind  of  customary  payment  by 
a  tenant.    Blount,  Ten.  155. 

TAG  FREE.  Free  from  payments,  etc.: 
e.g.  'Hac  free  de  omnibus  propriis  jyorcis  suis 
infra  metas  de  C"  i.e.  paying  nothing  for 


his  hogs  running  within  that  limit.  Jacob, 
Law  Diet. 

T  AGIT  (from  Lat.  taceo,  to  be  silent).  That 

which,  although  not  expressed,  is  understood 
from  the  nature  of  the  thing  or  from  the 
provision  of  the  law  ;  implied. 

TAGIT  LAW.  A  law  which  derives  its 
authority  from  the  common  consent  of  the 
people  without  any  legislative  enactment.  1 
Bouvier,  Inst.  120, 

TAGIT  RELOCATION.  In  Scotch 
Law.  The  tacit  or  implied  renewal  of  a 
lease  when  the  landlord  instead  of  warning 
a  tenant  has  allowed  him  to  continue  without 
making  a  new  agreement.  Bell,  Diet.  Re- 
location. 

TAGIT  TAGK.    See  Tacit  Relocation. 

TAGK.  In  Scotch  Law.  A  contract 
of  location  by  which  the  use  of  land  or  any 
other  immovable  subject  is  set  to  the  lessee 
or  tacksman  for  a  certain  yearly  rent,  either 
in  money,  the  fruits  of  the  ground,  or  ser- 
vices. Erskine,  Inst,  2.  6.  8.  This  word  ie 
nearly  synonymous  with  lease. 

TAGKING.     In  English  Law.  The 

union  of  securities  given  at  difterent  times, 
so  as  to  prevent  any  intermediate  purchaser's 
claiming  title  to  redeem  or  otherwise  dis- 
charge one  lien,  which  is  prior,  without  re- 
deeming or  discharging  other  liens  also  which 
are  subsequent,  to  his  own  title.  Jeremv,  Eq. 
Jur.  b.  1,  c.  2,  I  1,  pp.  188-191 ;  1  Story,  Eq. 
Jur.  HI 2. 

2.  It  is  an  established  doctrine  in  the  Eng. 
lish  chancery  that  a  bond  fide  purchaser  and 
without  any  notice  of  a  defect  in  his  title  at 
the  time  of  the  purchase  may  lawfully  buy 
any  statute,  mortgage,  or  incumbrance,  and 
if  he  can  defend  by  those  at  law  his  adver- 
sary shall  have  no  help  in  equity  to  set  those 
incumbrances  aside,  for  equity  will  not  dis- 
arm such  a  purchaser.  And  as  mortgagee? 
are  considered  in  equity  as  purchasers  pre 
tanto,  the  same  doctrine  has  extended  to 
them,  and  a  mortgagee  who  has  advanced 
his  money  without  notice  of  any  prior  in- 
cumbrance may,  by  getting  an  assignment 
of  a  statute,  judgment,  or  recognizance,  pro- 
tect himself  from  any  incumbrance  subsequent 
to  such  statute,  judgment,  or  recognizance, 
though  prior  to  his  mortgage  ;  that  is,  he  will 
be  allowed  to  tack  or  unite  his  mortgage  to 
such  old  security,  and  will  by  that  means  bo 
entitled  to  recover  all  moneys  for  which  such 

I  security  was  given,  together  with  the  money 
due  on  his  mortgage,  before  the  prior  mort- 
gagees are  entitled  to  recover  any  thing.  2 
Fonblanque,  Eq.  306  ;  2  Cruise,  Dig.  t.  15,  c. 
5,  s.  27  ;  Powell,  Mortg.  Index ;  1  Vern.  Ch. 
LS8;  Maddock,  Chanc.  Index. 

3.  This  doctrine  is  inconsistent  with  the 


TAIL 


577 


TANISTRy 


laws  of  the  several  states,  which  require  the 
record! no;  of  mortgages.  1  Caines,  Cas.  N.  Y. 
112;  1  Hopk.  Ch.  N.  Y.  231 ;  2  Pick.  MasH. 
517  ;  3  u^.  50;  12  Conn.  lOr, ;  14  Ohio,  318;  11 
Serg.  &  R.  Penn.  208;  8  Dan.  Ky.  82;  1 
White  &  T.  Lead.  Cas.  Am.  ed.  400. 

The  doctrine  of  lacking  seems  to  have  been 
acknowledged  in  the  civil  law.  Code,  8.  27.  1. 
But  see  Dig.  13.  7.  8  ;  and  see  7  Toullier,  110. 
But  this  tacking  could  not  take  place  to  the 
injurl  of  intermediate  incumbrancers.  Story, 
Eq.  Jur.  ^  1010,  and  the  authorities  cited  in 
the  note. 

TAIL.    See  Estate  Tail. 

TAKE.  A  technical  expression  which 
signifies  to  be  entitled  to:  as,  a  devisee  will 
take  under  the  will. 

To  seize :  as,  to  take  and  carry  away,  either 
lawfully  or  unlawfully. 

To  choose :  e.g.  ad  capiendas  assisas,  to 
choose  a  jury. 

To  obtain :  e.g.  to  take  a  verdict  in  court, 
to  get  a  verdict. 

TAKING.    In  Criminal  Law,  Torts. 

The  act  of  laying  hold  upon  an  article,  with 
or  without  removing  the  same.  A  felonious 
taking  is  not  sufficient,  without  a  carrying 
away,  to  constitute  the  crime  of  larceny.  See 
Dearsl.  Cr.  Cas.  621.  And  when  the  taking 
has  been  legal,  no  subsequent  act  will  make 
it  a  crime.    1  Mood.  Cr.  Cas.  160. 

2.  The  taking  is  either  actual  or  con- 
structive. The  former  is  when  the  thief 
takes,  without  any  pretence  of  a  contract,  the 
property  in  question. 

A  constructive  felon  ious  taking  occurs  when, 
under  pretence  of  a  contract,  the  thief  ob- 
tains the  felonious  possession  of  goods:  as, 
when  under  the  pretence  of  hiring  he  had  a 
felonious  intention,  at  the  time  of  the  pre- 
tended contract,  to  convert  the  property  to 
his  own  use. 

When  property  is  left  through  inadvert- 
ence with  a  person,  and  he  conceals  it  animo 
furandi,  he  is  guilty  of  a  felonious  taking 
and  may  be  convicted  of  larceny.  17  Wend. 
N.  Y.  460. 

3.  But  when  the  owner  parts  with  the 

Eroperty  willingly,  under  an  agreement  that 
e  is  never  to  receive  the  same  identical 
property,  the  taking  is  not  felonious:  as, 
when  a  person  delivered  to  the  defendant  a 
sovereign  to  get  it  changed,  and  the  de- 
fendant never  returned  either  with  the  sove- 
reign or  the  change,  this  was  not  larceny.  9 
Carr.  &  P.  741.  See  1  Mood.  Cr.  Cas.  179, 
185;  1  Hill,  N.  Y.  94;  2  Bos.  &  P.  508;  2 
East,  PI.  Cr.  554;  I'Hawkins,  PI.  Cr.  c.  33, 
P.  8;  1  Hale,  PI.  Cr.  507;  Coke,  3d  Inst.  408; 
Larceny;  Robbery. 

4.  The  w^rongful  taking  of  the  personal 
property  of  another,  when  in  his  actual  pos- 
session, or  such  taking  of  the  goods  of  an- 
other who  has  the  right  of  immediate  posses- 
sion, subjects  the  tort-feasor  to  an  action. 
For  example,  such  wrongful  taking  will  be 
evidence  of  a  conversion,  and  an  action  of 
trover  may  be  maintained.    2  Saund.  47;  3 

Vol.  II.— 37 


Willes,  55.  Trespass  is  a  concurrent  remedy 
in  such  a  case.  6  Wils.  330.  Replevin  may 
be  supported  by  the  unlawful  taking  of  a 
personal  chattel.  See  Conversion  ;  Trespass, 
Trover;  Replevin. 

TALE.  In  Common  Law.  A  denomi- 
nation of  money  in  China.  In  the  computa- 
tion of  the  ad  valorem  duty  on  goods,  etc.,  it 
is  computed  at  one  dolhir  and  forty-eight 
cents.  Act  of  March  2,  1799,  s.  61 ;  I  Story, 
U.  S.  Laws,  626.    See  Foreign  Coin. 

In  English  Law.  The  ancient  name  of 
the  declaration  or  count.  3  Blackstone, 
Comm.  293. 

TALES  (Lat.  talis,  such,  like).  In  Prac- 
tice. A  number  of  jurors  added  to  a  defi 
cient  panel  sufficient  to  supply  the  deficiency. 

A  list  of  such  jurymen  as  were  of  the  tales, 
kept  in  the  king's  bench  office  in  England. 

TALES  DE  CIRCUMSTANTIBUS 
(Lat.  a  like  number  of  the  bystanders).  A 
sufficient  number  of  jurors  selected  from  the 
bystanders  to  supply  a  deficiency  in  the  panel. 

The  order  of  the  judge  for  taking  such  by- 
standers as  jurors. 

Whenever  from  any  cause  the  panel  of 
jurors  is  insufficient,  the  judge  may  issue  the 
above  order,  and  the  officer  immediately  exe- 
cutes it.  See  2  Hill,  So.  C.  381 ;  2  Penn.  412; 
Coxe,  N.  J.  283;  1  Blackf.  Ind.  63;  2  Harr. 
&  J.  Md.  426;  1  Pick.  Mass.  43,  n.  The 
number  to  be  drawn  on  successive  panels  is 
in  the  discretion  of  the  court.    17  Ga.  497. 

TALLAGE  (Fr.  tailhr,  to  cut).  In  Eng- 
lish Law.  A  term  used  to  denote  subsidies, 
taxes,  customs,  and,  indeed,  any  imposition 
w^hatever  by  the  government  for  the  purpose 
of  raising  a  revenue.  Bacon,  Abr.  Smyg- 
gling,  etc.  (B);  Fortescue,  De  Laud.  26; 
Maddock,  h]xch.  c.  17;  Coke,  2d  Inst.  531, 
532;  Spelman,  Gloss. 

TALLAGIUM  (perhaps  from  Fr.  taille, 
cutoff).  A  term  including  all  taxes.  Coke, 
2d  Inst.  532;  Stat,  de  tal.  non  concedendo, 
temp.  Edw.  I.;  Stow,  Annals,  445;  1  Shars- 
wood,  Blackst.  Comm.  311*.  Chaucer  haa 
talaigiers  for  "tax-gatherers.'' 

TALLY  (Fr.  tailler;  It.  tagliare,  i.e. 
scindere,  to  cut  off).  A  stick  cut  into  two 
parts,  (m  each  whereof  is  marked,  with 
notches  or  otherwise,  what  is  due  between 
debtor  and  creditor.  Hence  the  tallier  of 
the  exchequer  is  now  called  the  teller.  Lex, 
Constit.  205 ;  Cowel.  One  party  must  have 
one  part,  and  the  other  the  other,  and  they 
must  match.  Tallies  in  the  exchequer  are 
abolished  by  2d  Geo.  III.  c.  82.  There  was 
the  same  usage  in  France.  Diet,  de  I'Acad. 
Francj.;  Pothier,  Obi.  pt.  4,  c.  1,  art.  2,  g  8. 

TALZIE,  TAILZIE.    In  Scotch  Law. 

Entail. 

TANGIBLE  PROPERTY.  That 

which  may  be  felt  or  touched  :  it  must  neces 
sarily  be  corporeal,  but  it  may  be  real  or 
personal. 

TANISTRY  [a  tJianis).  In  Irish  Law 
A  species  of  tenure  founded  on  immemorial 


TARDE  YENIT  578 


usag;e,  by  which  lands,  etc.  descended  seniori 
et  dignissimo  viri  sanguinis  et  cognominis,  i.e. 
to  the  oldest  and  worthiest  man  of  the  blood 
and  name.    Jacob,  Law  Diet. 

TARDE  VENIT  (Lat.).  In  Practice. 
The  name  of  a  return  made  by  the  sheriff  to 
a  writ,  when  it  came  into  his  hands  too  late 
to  be  executed  before  the  return-day. 

The  sheriff  is  required  to  show  that  he  has 
yielded  obedience  to  the  writ,  or  give  a  good 
excuse  for  his  omission;  and  he  may  say, 
quod  breve  adeo  tarde  venit  quod  exequi  non 
possunt.  It  is  usual  to  return  the  writ  with 
an  indorsement  of  tarde  venit.  Comyns,  Dig. 
Retorn  (D  1). 

TARE.  An  allowance  in  the  purchase 
and  sale  of  merchandise  for  the  weight  of 
the  box,  bag,  or  cask,  or  other  thing,  in  which 
the  goods  are  packed.  It  is  also  an  allowance 
made  for  any  defect,  waste,  or  diminution  in 
the  weight,  quality,  or  quantity  of  goods. 
It  differs  from  Tret,  which  see. 

TARIFF.  Customs,  duties,  toll,  or  tri- 
bute payable  upon  merchandise  to  the  gene- 
ral government  is  called  tariff;  the  rate  of 
customs  etc.  also  bears  this  name,  and  the 
list  of  articles  liable  to  duties  is  also  called 
the  tariff. 

TAVERN.  A  place  of  entertainment;  a 
house  kept  up  for  the  accommodation  of 
strangers.  Webster,  Diet.  Originally,  a  house 
for  the  retailing  of  liquors  to  be  drunk  on 
the  spot.  Webster,  Diet. 

In  almost  all  the  states  the  word  has  come 
to  mean  the  same  as  inn,  with  no  particular 
reference  to  the  sale  of  liquors.  See  2  Kent, 
Comm.  9th  ed.  597*,  note  a. 

These  are  regulated  by  various  local  laws. 
For  the  liability  of  tavern-keepers,  see  Story, 
Bailm.  11;  2  Kent,  Comm.  ^58;  J  2  Mod. 
487;  Jones,  Bailm.  94;  1  Blackstone,  Comm. 
430;  1  Rolle,  Abr.  (3  F);  Bacon,  Abr.  Inn, 
etc. ;  1  Bouvier,  Inst.  1015  et  seq.;  Inn;  Inn- 
keeper. 

TAX.  A  contribution  imposed  by  govern- 
ment on  individuals  for  the  service  of  the 
state.  It  is  distinguished  from  a  subsidy,  as 
being  certain  and  orderly,  which  is  shown  in 
its  derivation  from  Greek  ra^ig,  ordo,  order  or 
arrangement.   Jacob,  Law  Diet.  See  Taxes. 

A  direct  tax,  as  distinguished  from  duties, 
imposts,  and  excises. 

The  eighth  section  of  art.  1  of  the  constitu- 
tion of  the  United  States  provides  that  "con- 
gress shall  have  power  to  lay  and  collect  taxes, 
duties,  imposts,  and  excises,  to  pay,"  etc. 
But  all  duties,  imposts,  and  excises  shall  be 
uniform  throughout  the  United  States.  In 
this  sense  taxes  are  usually  divided  into  two 
great  classes, — those  which  are  direct  and 
those  which  are  indirect.  Under  the  former 
denomination  are  included  taxes  on  land  or 
real  property,  and  under  the  latter  taxes  on 
articles  of  consumption.  5  Wheat.  317.  See, 
generally,  Story,  Const,  c.  14;  1  Kent,  Comm. 
254;  3  Dall.  Penn.171 ;  1  Sharswood,  Blackst. 
Comm.  308. 


TAX  SALE 


TAX  DEED.  An  instrument  whereby 
the  officer  of  the  law  undertakes  to  convey 
the  title  of  the  rightful  proprietor  to  the  pur- 
chaser at  the  tax  sale,  or  sale  of  the  land  for 
non-payment  of  taxes. 

This  deed,  according  to  the  principles  of  the 
common  law,  is  simply  a  link  in  the  chain  of 
the  grantee's  title.  Itdoesnot?^5o yac^o  trans- 
fer the  title  of  the  owner,  as  in  grants  from  the 
government  or  deeds  between  man  ancLman. 
The  operative  character  of  it  depends  upon  the 
regularity  of  the  anterior  proceedings.  The 
deed  is  not  the  title  itself,  nor  even  evidence 
of  it.  Its  recitals  bind  no  one.  It  creates  no 
estoppel  upon  the  former  owner.  No  presump- 
tion arises  upon  the  mere  production  of  the 
deed  that  the  facts  upon  which  it  is  based  had 
any  existence.  When  it  is  shown,  however, 
that  the  ministerial  officers  of  the  law  have 
performed  every  duty  which  the  law  imposed 
upon  them,  every  condition  essential  in  its  cha- 
racter, then  the  deed  becomes  conclusive  evi- 
dence of  the  title  in  the  grantee,  according  to 
its  extent  and  purport.  See  Blackwell,  Tax 
Titles,  430;  2  Washburn,  Real  Prop.  542. 

TAX  SALE.  A  sale  of  lands  for  the 
non-payment  of  taxes  assessed  thereon. 

2.  The  power  of  sale  does  not  attach  until 
every  prerequisite  of  the  law  has  been  com- 
plied with.  9  Miss.  627.  The  regularity  of 
the  anterior  proceedings  is  the  basis  upon 
which  it  rests.  Those  proceedings  must  be 
completed  and  perfected  before  the  authority 
of  the  officer  to  sell  the  land  of  the  delinquent 
can  be  regarded  as  consummated.  The  land 
must  have  been  duly  listed,  valued,  and 
taxed,  the  assessment  roll  placed  in  the  hands 
of  the  proper  officer  with  authority  to  collect 
the  tax,  the  tax  demanded,  all  collateral  re- 
medies for  the  collection  of  the  tax  exhausted, 
the  delinquent  list  returned,  a  judgment  ren- 
dered when  judicial  proceedings  intervene, 
the  necessary  precept,  warrant,  or  other  au 
thority  delivered  to  the  officers  intrusted 
with  the  power  of  sale,  and  the  sale  adver- 
tised in  due  form  of  law,  before  a  sale  can  be 
made.  Blackwell,  Tax  Titles,  294 ;  4  Wheat. 
78;  6  id.  119;  7  Cow.  N.  Y.  88;  6  Mo.  64; 
12  Miss.  627 ;  5  Serg.  &  R.  Penn.  332. 

3.  There  are  important  details  connected 
with  the  auction  itself  and  the  duties  of  the 
officer  intrusted  with  the  conducting  thereof. 

The  sale  must  be  a  public,  and  not  a^n- 
vate,  one.  The  sale  must  take  place  at  the 
precise  time  fixed  by  the  law  or  notice,  other- 
wise it  will  be  void. 

It  is  equally  important  that  the  sale  should 
be  made  at  the  place  designated  in  the  adver- 
tisement. • 

The  sale  to  be  valid  must  be  made  to  the 
"highest  bidder,"  which  ordinarily  means 
the  person  who  offers  to  pay  for  the  land  put 
up  the  largest  sum  of  money.  This  is  the 
rule  in  Pennsylvania;  but  in  most  of  the 
states  the  highest  bidder  is  he  who  will  pay 
the  taxes,  interest,  and  costs  due  upon  the 
tract  offered  for  sale  for  the  least  quantity 
of  it. 

The  sale  must  be  for  cash. 


TAXATION 


579  TEMPORIS  EXCEPTIO 


:  Where  a  part  of  the  land  sold  is  liable  to 
sale  and  the  residue  is  not,  the  sale  is  void 
in  toto. 

The  sale  must  be  according  to  the  parcels 
and  descriptions  contained  in  the  list  and  the 
other  proceedings,  or  it  cannot  be  sustained. 

When  a  tract  of  land  is  assessed  against 
tenants  in  common,  and  one  of  them  pays 
the  tax  on  his  share,  the  interest  of  the  other 
may  be  sold  to  satisfy  the  residue  of  the 
assessment. 

Where  several  parcels  of  land  belonging 
to  the  same  person  are  separately  assessed, 
each  parcel  is  liable  for  its  own  specific  tax 
and  no  more. 

The  quantity  of  land  that  may  be  sold  by 
the  officer  depends  upon  the  phraseology  of 
each  particular  statute. 

Where,  after  an  assessment  is  made,  the 
county  in  which  the  proceedings  were  had  is 
divided,  the  collector  of  the  old  county  has 
power  to  sell  land  lying  in  the  territory  in 
the  newly-created  county.  4  Pet.  349,  362 ;  4 
Ycrg.  Tenn.  307;  11  How.  414;  5  Ired.  & 
R.  No.  0.  129;  24  Me.  283  ;  26  id.  306;  13 
111.  253:  9  Ohio,  43;  13  Pick.  Mass.  492;  21 
N.  II.  400:  9  Watts  &  S.  Penn.  80.  See 
Blackwell,  Tax  Titles;  Washburn,  Real  Prop. 
540. 

TAXATION.  The  process  of  taxing  or 
imposing  a  tax.    Webster,  Diet. 

In  Practice.  Adjustment.  Fixing  the 
amount:  e.g.  taxation  of  costs.  3  Chitty,  Gen. 
Pract.  602. 

TAXATION  OP  COSTS.  In  Prac- 
tice. Fixing  the  amount  of  costs  to  which  a 
party  is  entitled. 

It  is  a  rule  that  the  jury  must  assess  the 
d.images  and  costs  separately,  so  that  it  may 
appear  to  the  court  that  the  costs  were  not 
considered  in  the  damages;  and  when  the 
jury  give  costs  in  an  amount  insufficient  to 
answer  the  costs  of  the  suit,  the  plaintiff  may 
pray  that  the  officer  may  tax  the  costs,  and 
such  taxation  is  inserted  in  the  judgment. 
This  is  said  to  be  done  ex  assensu  of  the 
plaintiff,  because  at  his  prayer.  Bacon,  Abr. 
Cods  (K).  The  costs  are  taxed  in  the  first 
instance  by  the  prothonotary  or  clerk  of  the 
court.  See  2  Wend.  N.Y.244;  1  Cow.  N.  Y. 
591 ;  7  id.  412;  2  Yerg.  Tenn.  245,  310;  6  id. 
412;  Harp.  So.  C.  326;  1  Pick.  Mass.  211; 
10  Mass.  26;  16  id.  370.  A  bill  of  costs 
having  been  once  submitted  to  such  an  officer 
for  taxation,  cannot  be  withdrawn  from  him 
and  referred  to  another.    2  Wend.  N.  Y.  252. 

TEAMSTER.  One  who  drives  horses  in 
a  wagon  for  the  purpose  of  carrying  goods 
for  hire.  He  is  liable  as  a  common  carrier. 
Story,  Bailm.  ^  496.    See  Carrier. 

TECHNICAL.  That  which  properly 
belongs  to  an  art. 

In  the  construction  of  contracts  it  is  a  general 
rule  that  technical  words  are  to  be  taken  according 
to  their  approved  and  known  use  in  the  trade  in 
which  the  contract  is  entered  into  or  to  which  it 
relates,  unless  they  have  manifestly  been  under- 
stood in  another  sense  by  the  parties.    2  Bos.  &  P. 


164;  6  Term,  320;  .3  Starkie,  Ev.  10.36;  and  th* 
article  Constiiuctio.v. 

Words  which  do  not  of  themselves  denote  that 
they  arc  used  in  a  technical  sense  are  to  hiive 
their  plain,  popular,  obvious,  and  natural  mean- 
ing.   6  Watts  &  S.  Penn.  114. 

The  law,  like  other  professions,  has  a  technical 
language.  "When  a  mechanic  speaks  to  im\  of  the 
instruments  and  ofjcrations  of  his  trade,"  says  Mr, 
Wynne,  Eunom.  Dial.  2,  s.  5,  "I  i-hall  be  as  un- 
likely to  comprehend  him  as  he  would  me  in  tho 
language  of  my  profession,  though  we  both  of  ua 
spoke  English  all  the  while.  Is  it  wonderful,  then, 
if  in  systems  of  law,  and  especially  among  the 
hasty  recruits  of  commentators,  you  meet  (tn  use 
Lord  Coke's  expression)  with  a  whole  army  of 
words  that  cannot  defend  themselves  in  a  gram- 
matical war?  Technical  language,  in  all  ca-es,  ia 
formed  from  the  mo.st  intimate  knowledge  nf  any 
art.  One  word  stands  for  a  great  many,  as  it  is 
always  to  be  resolved  into  many  ideas  by  defini- 
tions. It  is,  therefore,  unintelligible  because  it  is 
concise,  and  it  is  useful  for  the  same  reason."  See 
Language. 

TEIND  COURT.    In  Scotch  Law.  A 

court  which  has  jurisdiction  of  matters  re- 
lating to  the  augmentation  of  stipends  and 
the  valuation  and  sale  of  tithes. 

It  is  held  before  justices  of  the  court  of 
sessions  organized  as  a  separate  court,  with 
distinct  clerks  and  ministerial  oflficers.  Bell, 
Diet. 

TEINDS.  In  Scotch  Law.  That  liquid 
proportion  of  the  rents  or  goods  of  the  people 
which  is  due  to  churchmen  for  performing 
divine  service  or  exercising  the  other  spiritual 
functions  proper  to  their  several  offices.  Er- 
skine,  lust.  2.  10.  2. 

TELLER  [tallier,  one  who  keeps  a  tally). 
An  officer  in  a  bank  or  other  institution.  A 
person  appointed  to  receive  votes.  A  name 
given  to  certain  officers  in  the  English  exche- 
quer. 

The  duties  of  tellers  in  banks  in  this  coun- 
try consist  of  the  receiving  of  all  sums  of 
money  paid  into  the  bank,  and  the  pa\'ing  of 
all  sums  drawn  out.  In  large  institutions 
there  are  generally  three, — the  first  or  paying 
teller,  the  second  or  receiving  teller,  and  the 
third  or  note  teller.  It  is  the  duty  of  the 
first  teller  to  pay  all  checks  drawn  on  the 
bank,  and,  where  the  practice  of  certification 
is  in  use,  to  certify  those  that  are  presented 
for  that  purpose.  The  position  ranks  next  in 
importance  to  that  of  cashier.  The  second 
teller  receives  the  deposits  made  in  the  bank, 
and  also  payment  for  bills  that  may  be  drawn 
on  other  places.  The  third  teller  receives 
payment  of  bills  and  notes  held  by  the  bank. 
The  receiving  teller  often  does  the  duty  of 
the  note  teller.    Sewell,  Bank. 

TEMPORALITIES  (L.  Lat.  tempora- 
lia).  Revenues,  lands,  tenements,  and  lay 
fees  which  bishops  have  from  livery  of  tho 
king,  and  in  virtue  of  which  they  sit  in  par 
liament.    1  Rolle,  Abr.  881. 

TEMPORARY.  Which  is  to  last  for  a 
limited  time.    See  Statute. 

TEMPORIS  EXCEPTIO  (Lat.).  In 
Civil  Law.    A  plea  of  lapse  of  time  in  lar 


TEMPUS  580  TENANT 


of  an  action,  like  our  statute  of  limitations. 

Dig.  de  diver  sis  temporalihus  actionihus. 

TEMPUS  (Lat.).  In  Civil  and  Old 
English  Law.  Time  in  general.  A  time 
limited;  a  season:  e.g.  tempus  pessonis  mast 
time  in  the  forest. 

TEMPUS  CONTINUUM  (Lat.).  In 
Civil  Law.  A  period  of  time  which  runs 
continually  having  once  begun,  feast-days 
being  counted  as  well  as  ordinary  days,  and 
it  making  no  difference  whether  the  person 
against  whom  it  runs  is  present  or  absent. 
Calvinus,  Lex. 

TEMPUS  UTILE  (Lat.).  In  Civil 
Law.  A  period  of  time  which  runs  benefi- 
cially: i.e.  feast-days  are  not  included,  nor 
does  it  run  against  one  absent  in  a  foreign 
country,  or  on  business  of  the  republic,  or 
detained  by  stress  of  weather.  But  one  de- 
tained by  sickness  is  not  protected  from  its 
running;  for  it  runs  where  there  is  power  to 
act  by  an  agent  as  well  as  where  there  is 
power  to  act  personally;  and  the  sick  man 
might  have  deputed  his  agent.  Calvinus, 
Lex. 

TENANCY.  The  state  or  condition  of  a 
tenant ;  the  estate  held  by  a  tenant. 

TENANT  (Lat.  teneo,  tenere,  to  hold). 
One  who  holds  or  possesses  lands  or  tene- 
ments by  any  kind  of  title,  either  in  fee,  for 
life,  for  years,  or  at  will.  In  a  popular  sense, 
he  is  one  who  has  the  temporary  use  and  oc- 
cupation of  lands  or  tenements  which  belong 
to  another,  the  duration  and  other  terms  of 
whose  occupation  are  usually  defined  by  an 
agreement  called  a  lease,  while  the  parties 
thereto  are  placed  in  the  relation  of  landlord 
and  tenant.  See  Landlord  and  Tenant  ;  5 
Mann.  &  G.  54 ;  Bouvier,  Inst.  Index. 

Tenants  in  Common  are  such  as  hold  lands 
and  tenements  by  several  and  distinct  titles, 
and  not  by  a  joint  title,  but  occupy  in  com- 
mon, the  only  unity  recognized  between  them 
being  that  of  possession.  They  are  account- 
able to  each  other  for  the  profits  of  the  estate ; 
and  if  one  of  them  turns  another  out  of  pos- 
session, an  action  of  ejectment  will  lie  against 
him.  They  may  also  have  reciprocal  actions 
of  waste  against  each  other.  2  Blackstone, 
Comm.  191.  See  Estate  in  Common;  7 
Cruise,  Dig.;  Bacon,  Abr.  Joint  Tenants, 
and  Tenants  in  Common;  Comyns,  Dig. 
Abatement  (E  10,  F  6),  Chancery  (3  V  4j, 
Devise  (N  8),  Estates  (K  8,  K  2) ;  1  Vern. 
Ch.  353  ;  Archbold,  Civ.  Plead.  53,  73. 

Tenant  by  the  Curtesy  is  a  species  of 
life  tenant  who  on  the  death  of  his  wife 
seized  of  an  estate  of  inheritance,  after  having 
issue  by  her  which  is  capable  of  inheriting 
her  estate,  holds  her  lands  for  the  period  of 
his  own  life:  after  the  birth  of  such  a  child, 
the  tenant  is  called  tenant  by  the  curtesy 
initiate,  Coke,  Litt.  29  «;  2  Blackstone, 
Comm.  12G  ;  but  to  consummate  the  tenancy 
the  marriage  must  be  lawful,  the  wife  must 
have  possession,  and  not  a  mere  right  of  pos- 
•session,  the  issue  must  be  born  alive,  during 


the  lifetime  of  the  mother,  and  the  husband 
must  survive  the  wife.    See  Curtesy. 

Tenant  of  the  Demesne.  One  who  is  ten- 
ant of  a  mesne  lord:  as,  where  A  is  tenant 
of  B,  and  C  of  A ;  B  is  the  lord,  A  the  mesne 
lord,  and  C  tenant  of  the  demesne,  Ilam- 
mond.  Nisi  P.  392,  393. 

Tenant  in  Dower  is  another  species  of 
life  tenant,  occurring  where  the  husband  of 
a  woman  is  seized  of  an  estate  of  inheritance 
and  dies,  and  the  wife  thereby  becomes  en- 
titled to  hold  the  third  part  of  all  the  lands 
and  tenements  of  which  he  was  seized  at 
any  time  during  the  coverture  to  her  own  use, 
for  the  term  of  her  natural  life.  See  Dower; 
2  Blackstone,  Comm.  129 ;  Comyns,  Dig. 
Dower  (A). 

Tenant  in  Fee,  under  the  feudal  law,  held 
his  lands  either  immediately  or  derivatively 
from  the  sovereign,  in  consideration  of  the 
military  or  other  services  he  was  bound  to 
perform.  If  he  held  directly  from  the  king 
he  was  called  a  tenant  in  fee,  in  capite.  With 
us,  the  highest  estate  which  a  man  can  have 
in  land  has  direct  reference  to  his  duty  to  the 
state:  from  it  he  ultimately  holds  his  title,  to 
it  he  owes  fealty  and  service,  and  if  he  fails 
in  his  allegiance  to  it,  or  dies  without  heirs 
upon  whom  this  duty  may  devolve,  his  lands 
revert  to  the  state  under  which  he  held. 
Subject  to  this  qualification,  however,  a  ten- 
ant in  fee  has  an  absolute  unconditional 
ownership  in  land,  which  upon  his  death 
vests  in  his  heirs;  and  hence  he  enjoys  what 
is  called  an  estate  of  inheritance.  See  Es- 
tate ;  2  Sharswood,  Blackst.  Comm.  81; 
Litt.  §  1 ;  Plowd.  555. 

Joint-Tenants  are  two  or  more  persons 
to  whom  lands  or  tenementshave been  granted 
to  hold  in  fee-simple,  for  life,  for  years,  or  at 
will.  In  order  to  constitute  an  estate  in  joint- 
tenancy,  the  tenants  thereof  must  have  one 
and  the  same  interest,  arising  by  the  same 
conveyance,  commencing  at  the  same  time, 
and  held  by  one  and  the  same  undivided  pos- 
session. 2  Blackstone,  Comm.  180.  The 
principal  incident  to  this  estate  is  the  right 
of  survivorship,  by  which  upon  the  death  of 
one  joint-tenant  the  entire  tenancy  remains 
to  the  surviving  co-tenant,  and  not  to  the 
heirs  or  other  representatives  of  the  deceased, 
the  last  survivor  taking  the  whole  estate.  It 
is  an  estate  which  can  only  be  created  by  tho 
acts  of  the  parties,  and  never  by  operation  of 
law.  Coke,  Litt.  184  b;  2  Cruise,  Dig.  43; 
4  Kent,  Comm.  358  ;  2  Blackstone,  Comm. 
179;  7  Cruise,  Dig.  Joiiit  Tenaricy ;  Preston, 
Est. 

Tenant  for  Life  has  a  freehold  interest 
in  lands,  the  duration  of  which  is  confined  to 
the  life  or  lives  of  some  particular  person  or 
persons,  or  to  the  happening  or  not  happen- 
ing of  some  uncertain  event.  1  Cruise,  70. 
When  he  holds  the  estate  by  the  life  of 
another,  he  is  usually  called  tenant  pur  autrt 
vie.  2  Blackstone,  Comm.  120;  Ccmyns, 
Dig.  Estates  (P  1).  See  Estate  for  Life; 
Emblements. 

Tenant  by  the  Manner.    One  who  has 


TENANT 


581 


TENDER 


a  less  estate  than  a  fee  ia  land,  which  re- 
mains in  the  reversioner.  lie  is  so  called 
because  in  avowries  and  other  pleadings  it 
is  specially  shown  in  what  manner  he  is  ten- 
ant of  the  land,  in  contradistinction  to  the 
veray  tenant,  who  is  called  simply  tenant. 
See  Veray. 

Tenant  Paravail.  The  tenant  of  a  ten- 
ant, lie  is  so  called  because  he  has  the 
avails  or  profits  of  the  land. 

Tenant  in  Severalty  is  he  who  holds 
lands  and  tenements  in  his  own  right  only, 
without  any  other  person  being  joined  or 
connected  with  him  in  point  of  interest  during 
his  estate  therein.  2  Blackstone,  Comm. 
179. 

Tenant  at  Sufferance  is  he  who  comes 
into  possession  by  a  lawful  demise,  but  after 
his  term  is  ended  continues  the  possession 
wrongfully  by  holding  over.  lie  has  only  a 
naked  possession,  stands  in  no  privity  to  the 
landlord,  and  may,  consequently,  be  removed 
without  notice  to  quit.  Coke,  Litt.  57  6;  2 
Leon.  46  ;  3  id.  153  ;  1  Johns.  Cas.  N.  Y.  123  ; 
4  Johns.  N.  Y.  150,  312;  5  id.  128. 

Tenant  in  Tail  is  one  who  holds  an 
estate  in  fee,  which  by  the  instrument  creating 
it  is  limited  to  some  particular  heirs,  exclu- 
sive of  others:  as,  to  the  heirs  of  his  body,  or 
to  the  heirs,  male  or  female,  of  his  body. 
The  whole  system  of  entailment,  rendering 
estates  unalienable,  is  so  directly  opposed  to 
the  spirit  of  our  republican  institutions  as  to 
have  become  very  nearly  extinct  in  the  United 
States.  Most  of  the  states  at  an  early  period 
of  our  independence  passed  laws  declaring 
such  estates  to  be  estates  in  fee-simple,  or 
provided  that  the  tenant  and  the  remainder- 
man might  join  in  conveying  the  land  in  fee- 
simple.  In  New  Hampshire,  chancellor  Kent 
says,  entails  may  still  be  created ;  while  in 
some  of  the  states  they  have  not  been  ex- 
pressly abolished  by  statute,  but  in  practice 
they  are  now  almost  unknown.  See  Entails  ; 
2  Blackstone,  Comm.  113;  2  Kent,  Comm.; 
2  Washburn,  Real  Prop. 

Tenant  at  Will  is  where  a  person  holds 
rent-free  by  permission  of  the  owner,  or 
where  he  enters  under  an  agreement  to  pur- 
chase, or  for  a  lease,  but  has  not  paid  rent. 
Formerly  all  leases  for  uncertain  periods  were 
considered  to  be  tenancies  at  will  merely ; 
but  in  modern  times  they  are  construed  into 
tenancies  from  year  to  year;  and,  in  fact,  the 
general  language  of  the  books  now  is  that 
the  former  species  of  tenancy  cannot  exist 
without  an  express  agreement  to  that  effect. 
8  Cow.  N.  Y.  75  ;  4  Ired.  No.  C.  291 ;  3  Dan. 
Ky.  66  ;  12  Mass.  325  ;  23  Wend.  N.  Y.  616; 
12  N.  Y.  346,  The  great  criterion  by  which 
to  distinguish  between  tenancies  from  year 
to  year,  and  at  will,  is  the  payment  or  reser- 
vation of  rent.    5  Bingh.  361 ;  2  Esp.  718. 

A  tenancy  at  will  must  always  be  at  the  will 
of  either  party,  and  such  a  tenant  may  be 
ejected  at  any  time,  and  without  notice  ;  but 
as  soon  as  he  once  pays  rent  he  becomes  ten- 
ant from  year  to  year.  1  Watts  &  S.  Penn. 
90;  TayJor,  Landl.  &  Ten.  ^  c6;  Coke,  Litt. 


55  ;  2  Lilly,  Reg.  555  ;  2  Blackstone,  Comm. 
145.  See  Comyns,  Dig.  Estates  (H  1);  12 
Mass.  325  ;  17  id.  282;  1  Johns.  Cas.  N.  Y. 
33;  2  Caines,  Cas.  N.  Y.  314;  2  Caines, 
N.  Y.  169  ;  9  Johns.  N.  Y.  13,  235,  331. 

Tenant  for  Years  is  he  to  whom  another 
has  let  lands,  tenements,  or  hereditaments, 
for  a  certain  number  of  years,  agreed  upon 
between  them,  and  the  tenant  enters  thereon. 
Before  entry  he  has  only  an  inchoate  right, 
which  is  called  an  interesse  termini;  and  it  is 
of  the  essence  of  this  estate  that  its  com- 
mencement as  well  as  its  termination  be 
fixed  and  determined,  so  that  the  lapse  of 
time  limited  for  its  duration  will,  ipso  facto, 
determine  the  tenancy;  if  otherwise,  the  oc- 
cupant will  be  tenant  from  year  to  year,  or 
at  will,  according  to  circumstances.  See 
Lease  ;  Taylor,  Landl.  &  Ten.  g  54 ;  2  Black- 
stone, Comm.  140. 

Tenant  from  Year  to  Year  is  where  lands 
or  tenements  have  been  let  without  any  par- 
ticular limitation  for  the  duration  of  the  ten- 
ancy :  hence  any  general  occupation  with 
permission,  whether  a  tenant  is  holding  over 
after  the  expiration  of  a  lease  for  years,  or 
otherwise,  becomes  a  tenancy  from  vear  to 
year.  3  Burr.  1609  ;  1  Term,  163  ;  3  East, 
451  ;  3  Barnew.  &  C.  478  ;  9  Johns.  N.  Y. 
330;  3Zabr.  N.  J.311.  The  principal  feature 
of  this  tenancy  is  that  it  is  not  determinable 
even  at  the  end  of  the  current  year,  unless  a 
reasonable  notice  to  quit  is  served  by  the 
party  intending  to  dissolve  the  tenancy  upon 
the  other.  4  Cow.  N.  Y.  349;  3  Hill,  N.  Y. 
547;  11  Wend.  N.  Y.  616;  8  Term,  3;  5 
Bingh.  185.    See  Landlord  and  Tenant. 

TENANT  RIGHT.  In  leases  from  the 
crown,  corporations,  or  the  church,  it  is  usual 
to  grant  a  further  term  to  the  old  tenants  in 
preference  to  strangers ;  and,  as  this  expecta- 
tion is  seldom  disappointed,  such  tenants  are 
considered  as  having  an  ulterior  interest  be- 
yond their  subsisting  term  ;  and  this  interest 
is  called  the  ienarit  right.  Bacon,  Abr.  Leases 
and  Terms  for  Years  (U). 

TENDER  (Lat.  tendere,  to  extend,  to 
offer).  An  offer  to  deliver  something,  made 
in  pursuance  of  some  contract  or  obligation, 
under  such  circumstances  as  to  require  no 
further  act  from  the  party  making  it  to  com- 
plete the  transfer. 

Legal  tender,  money  of  a  character  which 
by  law  a  debtor  may  require  his  creditor  to 
receive  in  payment,  in  the  absence  of  any 
agreement  in  the  contract  or  obligation  itself. 
See  Legal  Tender. 

In  Contracts.  It  may  be  either  of  money 
or  of  specific  articles". 

2.  Tender  of  money  must  be  made  by  some 
person  authorized  by  the  debtor.  Coke,  Litt. 
206  ;  Croke  Eliz.  48,  132 ;  2  Maule  &  S.  86, 
to  the  creditor,  or  to  some  person  properly 
authorized,  and  who  must  have  capacity  to 
receive  it,  1  Campb.  477 ;  Dougl.  632 ;  5 
Taunt.  307  ;  1  Esp.  349  ;  6  id.  95  ;  3  Term, 
683  ;  1  Nev.  &  M.  398  ;  4  Barnew.  &  C.  29 ; 
1  Carr.  «&  P.  365  ;   3  id.  453 ;    1  Mees.  &  W. 


TENDER 


582 


TENDER 


Exch.  310  ;  Mood.  &  M.  238  ;  14  Serg.  &  R. 
Penn.  307;  11  Me.  475  ;  1  Gray,  Mass.  600 ; 
13  La.  Ann.  529 ;  2  Parsons,  Contr.  151,  in 
lawful  coin  of  the  country,  5  Coke,  114;  13 
Mass.  235  ;  4  N.  H.  295,  or  paper  money 
which  has  been  legalized  for  this  purpose,  2 
Mas.  C.  C.  1,  or  foreign  coin  made  current 
by  law,  2  Nev.  &  M.  519  ;  but  a  tender  in 
bank-notes  will  be  good  if  not  objected  to  on 
that  account,  3  Term,  554  ;  2  Bos.  &  P.  526; 
9  Pick.  Mass.  539  ;  1  Johns.  N.  Y.  476 ;  1 
Bay,  So.  C.  115  ;  5  Yerg.  Tenn.  199  ;  8  Ohio, 
172 ;  1  Rawle,  Penn.  408 ;  6  Harr.  &  J.  Md. 
53  ;  7  Mo.  556 ;  6  Ala.  n.  s.  226 ;  19  N.  H. 
569  ;  3  Humphr.  Tenn.  162 ;  or  by  a  check. 
Dowl.  Pract.  Cas.  442 ;  7  Ohio,  257.  See  16 
111.  262.  As  to  what  has  been  held  objection, 
see  2  Gaines,  N.  Y.  116  ;  13  Mass.  235  ;  5  N. 
H.  296  ;  10  Wheat.  333.  The  exact  amount 
due  must  be  tendered,  3  Campb.  70;  6  Taunt. 
336 ;  2  Esp.  710 ;  2  Dowl.  &  R.  305  ;  5  C.  B. 
365;  5  Mass.  365;  2  Conn.  659;  though 
more  may  be  tendered,  if  the  excess  is  not  to 
be  handed  back,  5  Coke,  114  ;  3  Term,  683 ; 
4  Barnew.  &  Ad.  546  ;  5  Mees.  &  W.  Exch. 
306  ;  and  asking  change  does  not  vitiate  un- 
less objection  is  made  on  that  account,  6 
Taunt.  336  ;  1  Campb.  70;  5  Dowl.  &  R.  289; 
and  the  offer  must  be  unqualified.  2  Term, 
305  ;  1  Campb.  131 ;  3  id.  70  ;  4  id.  156  ;  1 
Mees.  &  W.  Exch.  310;  2  Dowl.  &  R.  305;  9 
Mete.  Mass.  162;  20  Wend.  N.  Y.  47;  23  id. 
842  ;  18  Vt.  224  ;  1  Wise.  141. 

3.  It  is  said  that  the  amount  must  be 
stated  in  making  the  offer.  30  Vt.  577.  See 
31  Miss.  599.  It  must  be  made  at  the  time 
agreed  upon,  5  Taunt.  240;  7  id.  487;  8  East, 
168 ;  1  Saund.  33  a,  n.;  5  Pick.  Mass.  187, 
240 ;  8  Wend.  N.  Y.  562 ;  4  Ark.  450,  but 
may  be  given  in  evidence  in  mitigation  of 
damages,  if  made  subsequently,  before  suit 
brought,  1  Saund.  33  a,  n. ;  at  a  suitable  hour 
of  the  day,  during  daylight,  7  Me.  31 ;  19 
Vt.  587 ;  at  the  ])lace  agreed  upon,  or,  if  no 
place  has  been  agreed  upon,  wherever  the 
person  authorized  to  receive  payment  may  be 
found,  20  Eng.  L.  &  Eq.  498 ;  2  Mees.  &  W. 
Exch.  223  ;  2  Brod.  &  B.  165  ;  2  Maule  &  S. 
120 ;  and,  in  general,  all  the  conditions  of 
the  obligation  must  be  fulfilled.  The  money 
must  have  been  actually  produced  and  offered, 
unless  the  circumstances  of  the  refusal 
amount  to  a  waiver,  10  East,  101  ;  7  J.  B. 
Moore,  59  ;  3  Carr.  &  P.  342 ;  8  Me.  107 ;  15 
Wend.  N.  Y.  637;  6  Md.  37 ;  6  Pick.  Mass. 
356;  1  Wise.  141,  or  at  least  be  in  the 
debtor's  possession,  ready  for  delivery.  5  N. 
II.  440  ;  7  id.  535  ;  3  Penn.  St.  381.  As  to 
what  circumstances  may  constitute  a  waiver, 
see  2  Maule  &  S.  86  ;  1  Scott,  70  ;  2  Parsons, 
Contr.  154,  n.;  lTyl.Vt.381;  1  A.  K.  Marsh. 
Ky.  321.  Presence  of  the  debtor  with  the 
money  ready  for  delivery  is  enough,  if  the 
creditor  be  absent  from  the  appointed  place 
at  the  appointed  time  of  payment,  4  Pick. 
Mass.  258;  7  Cush.  Mass.  391,  or  if  the  ten- 
der is  refused.    3  Penn.  St.  381 ;  18  Conn.  18. 

4.  Tender  of  specific  articles  must  be  made 
to  a  proper  person,  by  a  proper  person,  at  a 


proper  time.  2  Parsons,  Contr.  158.  Th^plaa 
of  delivery  is  to  be  determined  by  the  con- 
tract, or,  in  the  absence  of  specific  agreement, 
by  the  situation  of  the  parties  and  circum- 
stances of  the  case,  7  Barb.  N.  Y.  472 :  for 
example,  at  the  manufactory  or  store  of  the 
seller  on  demand,  2  Den.  N.  Y.  145;  at  the 
place  where  the  goods  are  at  the  time  of  sale, 
7  Me.  91;  20  id.  325  ;  3  Watts  &  S.  Penn. 
295  ;  7  Barb.  N.  Y.  472  ;  5  Cow.  N.  Y.  518  : 

6  Ala.  N.  s.  326 ;  Hard.  Ky.  80,  n.;  1  Wash'. 
C.  C.  328  ;  the  creditor's  place  of  abode, 
when  the  articles  are  portable,  like  cattle,  and 
the  time  fixed.  8  Johns.  N.  Y.  474 ;  4  Wend. 
N.  Y.  377 ;  3  Watts  &  S.  Penn.  295  ;  2  Penn. 
St.  63;  1  Me.  120.  When  the  goods  are 
cumbrous,  it  is  presumed  that  the  creditor 
was  to  appoint  a  place,  5  Me.  192 ;  20  id. 
325  ;  3  Dev.  No.  C.  78 ;  or,  if  he  fails  to  do 
so  upon  request,  the  debtor  may  appoint  a 
place,  giving  notice  to  the  creditor,  if  pos- 
sible. 13  Wend.  N.  Y.  95  ;  1  Me.  120 ; 
Chipman,  Contr.  51-56.  Whether  a  request 
is  necessary  if  the  creditor  be  M'ithout  the 
state,  see  5  Me.  192;  2  Greenleaf,  Ev.  g 
611.  The  articles  must  be  set  apart  and  dis- 
tinguished so  as  to  admit  of  identification  by 
the  creditor.  7  Me.  91 ;  24  id.  316 ;  32  id. 
31  ;  5  Johns.  N.  Y.  119  ;  4  Cow.  N.  Y.  452 ; 

7  Conn.  110  ;  1  Miss.  401.  See  4  Mass.  474; 
14  N.  H.  459.  It  must  be  made  during  day- 
light, and  the  articles  must  be  at  the  place 
till  the  last  hour  of  the  day,  5  Yerg.  Tenn. 
410  ;  3  Wash.  C.  C.  140  ;  19  Vt.  587  ;  5  T. 
B.  Monr.  Ky.  372,  unless  waived  by  the 
parties.    See  2  Scott,  n.  s.  485. 

5.  In  Pleading.  If  made  before  action 
brought,  5  Pick.  Mass.  106  ;  1  Parsons,  Contr. 
148 ;  1  Moore,  200 ;  3  Sharswood,  Blackst. 
Comm.  303,  tender  may  be  pleaded  in  excuse, 

3  Taunt.  95  ;  2  Bos.  &  P.  550;  5  Bingh.  31 ; 

4  Barnew.  &  Ad.  132 ;  5  Pick.  Mass.  291 ;  6 
id.  340 ;  that  it  must  be  on  the  exact  day  of 
performance.  8  East,  168  ;  5  Taunt.  240  ;  1 
Saund.  33  a,  n.  It  cannot  be  made  to  an 
action  for  general  damages  when  the  amount 
is  not  liquidated,  1  Parsons,  Contr.  149  ;  3 
Sharswood,  Blackst.  Comm.  303,  n. ;  2  Burr, 
1120  ;  2  Ad.  &  E.  82  ;  19  Vt.  592  :  as,  upon 
a  contract,  1  Ventr.  356  ;  2  W\  Blackst.  837; 
2  Bos.  &  P.  234;  3  id.  14;  covenant  other 
than  for  the  payment  of  money,  7  Taunt. 
486;  5  Mod.  18;  12  *d  376 ;  2  H.  Blackst. 
837  ;  1  Ld.  Raym.  566  ;  tort,  2  Strange,  787; 
or  trespass,  2  Wils.  115.  See  3  Sharswood, 
Blackst.  Comm.  303,  n.  It  may  be  pleaded, 
however,  to  a  quantum  meruit,  1  Parsons, 
Contr.  149,  n. ;  1  Strange,  576,  accidental  or 
involuntary  trespass,  in  the  United  States, 
13  Wend.  N.  Y.  390  ;  2  Conn.  659  ;  36  Me. 
407  ;  covenant  to  pay  money.  7  Taunt.  486; 
F.  Moore,  200. 

6.  The  effect  of  a  tender  is  to  put  a  stop 
to  accruing  d.amages  and  interest,  5  C.  B. 
365  ;  3  Bingh.  290  ;  9  Cow.  N.  Y.  641 ;  12 
Johns.  N.  Y.  274;  3  Johns.  Cas.  N.  Y.  243; 
17  Mass.  389;  10  Serg.  &  R.  Penn.  14; 
Wright,  Ohio,  336;  9  Mo.  697;  and  it  may 

,  be  of  effect  to  prevent  interest  accruing, 


TENEMENT 


583 


TENNESSEE 


though  not  a  technical  tender.  5  Pick.  Mass. 
106;  2  Cush.  Mass.  475. 

It  admits  the  phiintiff's  right  of  action  as 

I  to  the  amount  tendered.    1  Bihb,  Ky.  272; 

I  14  Wend.  N.  Y.  221 ;  G  Watts,  Penn.  74;  2 
Dall.  Penn.  190;  1  Barb.  N.  Y.  114.  The 
benefit  may  be  lost  by  a  subsequent  demand 
and  refusal  of  the  amount  due,  1  Campb.  181 ; 
5  Barnew.  &  Ad.  030 ;  5  C.  B.  305  ;  Kirb. 
Conn.  293  ;  24  Pick.  Mass.  108  ;  but  not  by 
a  demand  for  more  than  the  sum  tendered, 
22  Vt.  440,  or  due.  5  C.  B.  378  ;  3  Q.  B. 
915  ;  11  Mees.  &  W.  Exch.  350. 

TENEMENT  (from  Lat.  teneo,  to  hold). 
Every  thing  of  a  permanent  nature  which 
may  be  holden. 

House,  or  homestead.  Jacob,  Law  Diet. 
Rooms  let  in  houses. 

In  its  most  extensive  signification,  tenement 
comprehends  every  thing  which  may  be  holden, 
provided  it  be  of  &  permanent  nature;  and  not  only 
lands  and  inheritances  which  are  holden,  but  also 
rents  and  profits  d  prendre  of  which  a  man  has  any 
frank-tenement,  and  of  which  he  may  be  seized  ut 
de  lihero  tenemento,  are  included  under  this  term. 
Coke,  Litt.  6  rr ;  Perkins,  114;  2  Blackstone, 
Comm.  17;  1  Washburn,  Real  Prop.  10.  But  the 
word  tenements  simply,  without  other  circumstances, 
has  never  been  construed  to  pass  a  fee.  10  AVheat. 
204  :  1  Preston,  Est.  8.  See  4  Bingh.  293  ;  1  Term, 
358;  3  id.  Ill',  3  East,  113;  5  id.  239;  J  Barnew. 
A  Ad.  161;  Comyns,  Di?.  Grant  (E  2),  Trenpam 
(A  2);  Wood,  Inst.  120;  Babington,  Auct.  211,  212; 
1  Washburn,  Real  Prop.  10. 

Its  original  meaning,  according  to  some,  was 
house  or  homestead.  Jacob.  In  modern  use  it 
also  signifies  rooms  let  in  houses.  Webster,  Diet.; 
10  Wheat.  204. 

Bracton  says  that  tenements  acquired  by  a 
villein  were  as  to  the  lord  in  the  same  condition 
as  chattels,  because  bought  with  the  chattels  which 
rightfully  belong  to  the  lord.    Bracton,  26. 

TENENDAS  (Lat.).    In  Scotch  Law. 

The  name  of  a  clause  in  charters  of  heritable 
rights,  which  derives  its  name  from  its  first 
words,  fmendas  prcedicias  terras,  and  ex- 
presses the  particular  tenure  by  which  the 
lands  are  to  be  holden.  Erskine,  Inst.  b.  2, 
t.  3,  n.  10. 

TENENDUM  (Lat.).  That  part  of  a  deed 
which  was  formerly  used  in  expressing  the 
tenure  by  which  the  estate  granted  was  holden ; 
but  since  all  freehold  tenures  were  converted 
into  socage,  the  tenendum  is  of  no  further  use 
even  in  England,  and  is  therefore  joined  to 
the  habendum  in  this  manner, — to  have  and 
to  hold.  The  words  "  to  hold"  have  now  no 
meaning  in  our  deeds.  2  Blackstone,  Comm. 
298.    See  Habendum. 

TENERI  (Lat.).  In  Contracts.  That 
part  of  a  bond  where  the  obligor  declares 
himself  to  be  held  and  firmly  bound  to  the 
obligee,  his  heirs,  executors,  administrators, 
and  assigns,  is  called  the  ieneri.  3  Call,  Va. 
350. 

TENET  (Lat.  he  holds).    In  Pleading. 

A  term  used  in  stating  the  tenure  in  an 
action  for  waste  done  during  tenancy. 
When  the  averment  is  in  the  tenet,  the 


plaintifi"  on  obtaining  a  verdict  will  recover 
the  place  wasted,  namely,  that  part  of  the 
premises  in  which  the  waste  was  exclusively 
done,  if  it  were  done  in  a  part  only,  together 
with  treble  damages.  But  when  the  aver- 
ment is  in  the  tenuit,  the  tenancy  being  at 
an  end,  he  will  have  judgment  for  his  dam- 
ages only.    2  Grecnleaf,  Ev.  I  052. 

TENNESSEE.  The  name  of  one  of  the 
United  States  of  America. 

2.  It  was  originally  a  part  of  North  Carolina. 
In  April,  1784,  the  legislature  of  North  Carolina 
passed  an  act  ceding  to  the  United  States,  upon 
certain  conditions,  all  her  territory  west  of  the 
Api)alacliian  or  Alleghany  mountains.  Before  the 
cession  was  accepted  by  congress,  it  was  re[>ealed 
by  another  act  passed  in  October,  1784.  In  the 
mean  time,  movements  had  been  set  on  foot  by  the 
people  to  constitute  themselves  an  independent 
state.  They  iicted  upon  the  assumed  but  erroneous 
ground  that  North  Carolina  had  by  the  cession 
abdicated  her  sovereignty,  and,  as  the  congress  had 
not  accepted  it,  and  might  not  upon  the  conditions 
proposed,  they  were  left  without  any  regular  gov- 
ernment, and  therefore  had  an  inherent  right  to 
provide  one  for  themselves.  They  consummated 
their  design  after  the  cession  act  was  repealed,  and 
gave  to  their  new  state  the  name  of  The  State  of 
Franklin. 

This  revolutionary  state  maintained  its  existence 
for  about  three  years,  when  it  was  suppressed  and 
the  rightful  dominion  of  North  Carolina  reinstated. 
In  December,  1789,  the  legislature  again  ceded  the 
territory  to  the  United  States;  and  the  cession  was 
accepted  by  congress  by  an  act  approved  April  2, 
1790.  North  Carolina  made  it  a  fundamental  con- 
dition of  the  cession  that  the  territory  so  ceded 
shall  be  laid  out  and  formed  into  a  state  or  states, 
containing  a  suitable  extent  of  territory,  the  in- 
habitants of  which  shall  enjoy  all  the  privileges, 
benefits,  and  advantages  set  forth  in  the  ordinance 
of  the  late  congress  for  the  government  of  the 
western  territory  of  the  United  States :  provided, 
altcays,  that  no  regulations  made  or  to  be  made  by 
congress  shall  tend  to  emancipate  slaves.  One  of 
the  privileges  thus  secured  to  the  territory  was  that 
when  the  number  of  its  inhabitants  should  amount 
to  sixty  thousand  it  should  be  entitled  to  admission 
into  the  Union  upon  an  equality  with  the  original 
states.  Under  the  authority  of  the  territorial  legis- 
lature, the  census  was  taken  in  1795,  and,  the 
necessary  number  of  inhabitants  being  found  in 
the  territory,  a  convention  was  called,  and  a  consti- 
tution established  on  February  6,  1796.  The  legal 
name  of  the  territory  while  in  a  colonial  condition 
was  The  Territory  of  the  United  Stares  south  of 
the  river  Ohio.  But  in  the  constitution  the  people 
adopt  the  name  of  The  State  of  Tennessee. 

3.  As  congress  had  not  previously  decided 
whether  the  territory  should  constitute  one  state  or 
more  than  one,  and  had  not  itself  authorized  the 
enumeration  of  the  inhabitants  or  the  formation 
of  a  constitution,  there  was  a  strong  minority 
against  the  admission  of  Tennessee  into  the  Union. 
1  Benton,  Debates,  154-159.  But  she  was  admitted 
by  an  act  approved  June  1,  1796.  Prior  to  tl  !■? 
time  a  governmi  nt  legislature  had  been  elected  and 
the  state  government  organized  and  many  import- 

I  ant  laws  enacted. 

It  was  -a  part  of  the  avowed  object  of  the  cession 

made  by  North  Carolina  to  the  United  States  to 
j  furnish  "  further  means  of  hastening  the  extin- 
'  guishment  of  the  national  debt."    This  object  has 

wholly  failed.  The  land  was  to  be  first  subject  to 
;  the  satisfaction  of  the  claims  which  had  originated 

against  it  under  the  laws  of  North  Carolina.  These 

claims  ultimately  absorbed  nearly  all  the  land  thai 


TENNESSEE 


584 


TENSE 


was  fit  for  cultivation.  Congress  from  time  to  time 
ceded  the  refuse  lands  to  Tennessee,  and  finally,  by 
an  act  passed  August  7,  1846,  surrendered  to  her 
the  last  remnant  to  which  the  right  of  the  United 
States  had  been  previously  reserved. 

The  constitution  of  1796  was  not  submitted  to 
the  people  for  ratification.  The  authority  of  the 
convention  established  it  as  the  constitution  of  the 
state.  The  present  constitution  is  the  work  of  a 
convention  assembled  in  1834  to  revise  and  amend 
the  first.  It  was  submitted  to  the  people,  and  rati- 
fied by  popular  vote,  in  1835.  The  government  was 
reorganized  in  1835-36,  in  accordance  with  its  pro- 
visions. 

The  Legislative  Power, 

4.  The  legislature  is  styled  *'  the  General  Assem- 
bly." It  consists  of  a  senate  and  house  of  representa- 
tives. The  number  of  senators  is  not  to  exceed  one- 
third  the  number  of  representatives.  The  number  of 
representatives  is  not  to  exceed  seventy-five,  until 
the  population  of  the  state  is  a  million  and  a  half, 
and  never  to  exceed  ninety-nine.  A  representative 
must  be  twenty-one  years  old,  and  a  senator  thirty. 
In  all  other  respects  their  qualifications  are  the 
same.  They  are — citizenship  of  the  United  States, 
three  years'  residence  in  the  state,  and  one  year's 
residence  in  the  county  or  district  represented.  Art. 
2,  §^  9,  10.  They  are  elected  by  ballot  biennially, 
every  odd  year,  on  the  first  Tuesday  in  August.  The 
sessions  of  the  assembly  are  also  biennial,  com- 
mencing on  the  first  Monday  in  October  next 
ensuing  the  election.    Art.  2,      7,  8. 

An  elector  for  members  of  the  general  assembly 
and  other  civil  officers  must  be  a  free  white  man, 
twenty-one  years  of  age,  a  citizen  of  the  United 
States,  a  citizen  of  the  county  wherein  he  may 
oflFer  his  vote  six  months  next  preceding  the  day 
of  election.  A  freeman  of  color  who  is  four  genera- 
tions removed  from  negro  ancestry  may  vote.  Art. 

The  Executive  Power, 

5.  The  Governor  is  to  be  thirty  years  of  age,  a 
citizen  of  the  United  States,  and  a  citizen  of  the 
state  seven  years  next  before  his  election.  The 
supreme  executive  power  is  vested  in  him.  He  is 
elected  at  the  times  and  places  of  electing  members 
of  the  general  assembly,  and  by  the  same  electors. 
A  plurality  of  votes  elects  either  a  governor  or 
member  of  assembly.  Art.  3,  1,  2.  He  holds 
his  office  for  two  years  and  until  his  successor  is 
elected  and  qualified.  He  is  not  eligible  more  than 
six  years  in  any  term  of  eight.  ^  4.  The  power  of 
appointment  to  subordinate  executive  offices  is  not 
vested  in  him.  He  has  no  negative  on  the  acts 
and  resolutions  of  the  general  assembly.  In  other 
respects  he  has  the  ordinary  powers  of  the  chief 
executive  magistrate  of  the  American  states.  His 
compensation  can  neither  be  increased  nor  dimi- 
nished during  the  term  for  which  he  is  elected. 
Art.  3,  §g  1-7. 

The  Judicial  Power, 
The  judicial  power  is  vested  in  one  supreme 
court,  in  such  inferior  courts  as  the  legislature  may 
establish,  and  in  the  judges  thereof,  and  injustices 
of  the  peace,  and  corporation  courts. 

6.  The  Supreme  Court  is  composed  of  three 
judg«3,  one  of  whom  must  reside  in  each  of  the 
grand  divisions  of  the  state.  Its  jurisdiction  is 
appellate  only,  with  a  few  inconsiderable  excep- 
tions. It  is  held  at  one  place  only  in  each  of  the 
grand  divisions  of  the  state.  ^  2.  Its  sessions  are 
held  annually,  at  Knoxville,  Nashville,  and  Jackson. 
The  judges  are  elected  for  eight  years,  by  the  quali- 
fied voters  of  the  state  at  large.  They  must  be 
thirty-five  years  of  age. 

The  fourt  of  general  original  jurisdiction  is  the 
Circuit  '^ourt.    The  state  is  divided  into  sixteen 


judicial  circuits;  and  three  terms  of  the  court  are 
held  annually  in  every  county  in  the  state.  The 
people  of  each  circuit  elect  the  judge  thereof,  for  the 
term  of  eight  years.  The  only  qualification  re- 
quired by  the  constitution  is  that  he  shall  be  thirty 
years  of  age.  Art.  6,  ^  4.  An  appeal  lies  from  every 
decision  of  the  circuit  court  to  the  supreme  court. 
Constitution,  art.  6,  1-4;  Code,  §3  3155,  3172, 
8176. 

The  Chancery  Court  has  general  original  jurisdic- 
tion of  all  cases  of  an  equitable  nature  where  the 
demand  exceeds  fifty  dollars.  Code,  ^  4280.  There 
are  some  cases  of  an  equitable  nature  in  which  the 
circuit  and  county  courts  have  concurrent  jurisdic- 
tion with  the  chancery  courts.  The  state  is  divided 
into  seven  chancery  districts,  in  each  of  which  a 
chancellor  is  elected,  by  the  people,  for  eight  years. 
In  nearly  every  county  in  the  state  two  terms  of 
the  chancery  court  are  held  annually.  An  appeal 
lies  to  the  supreme  court  from  all  its  decisions. 

T.  The  County  Court  has  a  very  extensive  mis- 
cellaneous jurisdiction,  mostly,  however,  of  matters 
of  police.  It  is  held  monthly  by  the  justices  of 
the  peace,  with  the  exception  of  a  few  counties 
which  have  a  county  judge;  and  in  them  the 
justices  of  the  peace  hold  quarterly  terms.  It  has 
original  jurisdiction  of  the  probate  of  uncontested 
wills,  the  granting  of  administrations,  the  appoint- 
ment of  guardians,  and  the  general  administration 
of  decedents'  estates.  There  are  some  cases  in 
which  its  jurisdiction  is  concurrent  with  the  circuit 
and  chancery  courts.  Code,  4201-4205.  An  ap- 
peal lies  from  its  decisions  to  the  circuit  court  in 
all  cases,  and  in  some  to  the  supreme  court.  Code, 
^  3147-3154. 

Justices  of  the  Peace  have  jurisdiction  in  cases 
to  an  extent  varying  from  fifty  to  five  hundred 
dollars,  according  to  the  nature  of  the  demand. 
An  appeal  lies  from  their  decisions  to  the  circuit 
court. 

These  five  tribunals  constitute  the  general  court 
system  of  Tennessee.  There  are  besides  these  a  few 
special  courts  established  in  particular  localities, 
and  a  variety  of  special  and  inferior  jurisdictions, 
which  are  subject  to  the  general  supervision  of  the 
circuit  courts,  as  such  tribunals  are  to  the  king's 
bench  in  England. 

An  Attorney -General  and  Reporter  is  elected  by 
the  people  of  the  state  at  large,  for  the  term  of  six 
years.  His  business  is  to  report  the  decisions  of 
the  supreme  court,  and  to  prosecute  all  the  pleas 
of  the  state  in  that  court. 

By  the  constitution  of  1796,  these  judicial  oflBcers 
were  elected  by  the  general  assembly,  and  held 
their  offices  during  good  behavior.  By  the  consti- 
tution of  1834,  they  were  elected  by  the  general  as- 
sembly for  a  term  of  years.  By  an  amendment  of 
the  constitution  in  1853,  they  are  elected  by  the 
people,  as  above  set  forth.  The  executive  officers 
for  the  state  at  large,  such  as  the  secretary  of  state, 
the  treasurer,  and  the  comptroller  of  the  treasury, 
are  still  elected  by  the  general  assembly.  All  the 
important  county  officers  are  elected  by  the  people, 
for  terms  varying  from  one  to  four  years. 

TENOR.  In  Pleading.  A  term  used 
to  denote  that  an  exact  copy  is  set  out.  2 
Phillipps,  Ev.  99 ;  2  Russell,  Crim.  3G5 ;  1 
Chitty,  Crim.  Law,  235  ;  1  Mass.  203 ;  1 
East,  180,  and  the  cases  cited  in  the  notes. 

In  Chancery  Pleading.  A  certified 
copy  of  records  of  other  courts  removed  into 
chancery  by  certiorari.    Gresley,  Ev.  309. 

TENSE.    A  term  used  in  grammar  to 

denote  the  distinction  of  time. 

The  acts  of  a  court  of  justice  ought  to  be 
in  the  Dresent  tense :  as,  prceceptum  est,  not 


TENurr 


585 


TENURE 


pra  :eptii7n  fuit ;  but  the  acts  of  the  party 
iiiay  be  in  the  prctcrperfect  tense:  as,  venit 

prof  y lit  hie  in  curia  quandum  querelum  suam, 
and  the  continuances  are  in  tlie  preterperfect 
tense:  as,  venerant,  not  veniunt.    1  Mod.  81. 

Tlie  contract  of  marriage  should  be  made 
in  hmguage  of  the  present  tense.  G  Binn. 
Tcnn.  405.    See  1  Saund.  393,  n.  1. 

TENUIT  (Lat.  he  held).  In  Pleading. 
A  term  used  in  stating  the  tenure  in  an 
action  for  waste  done  after  the  termination 
of  the  tenancy.    See  Tenet. 

TENURE  (from  Lat.  tenere,  to  hold). 
The  mode  by  which  a  man  holds  an  estate  in 
lands. 

Such  a  holding  as  is  coupled  with  some 
service,  which  the  holder  is  bound  to  perform 
60  long  as  he  continues  to  hold. 

2.  The  thing  held  is  called  a  tenement;  the  oc- 
cupant, a  tenant;  and  the  manner  of  his  holding  oon- 
etitutes  the  tenure.  Upon  common-law  principles, 
all  lands  within  the  state  are  held  directly  or  indi- 
rectly from  the  king,  as  lord  paramount  or  supreme 
proprietor.  To  him  every  occupant  of  land  owes 
fidelity  and  service  of  some  kind,  as  the  necessary 
condition  of  his  occupation.  If  he  fails  in  either 
respect,  or  dies  without  heirs  upon  whom  this  duty 
may  devolve,  his  lar>d  reverts  to  the  sovereign  as 
ultimate  proprietor.  In  this  country,  the  people 
in  their  corporate  capacity  represent  the  state 
eovercignty ;  and  every  man  must  bear  true  alle- 
giance to  the  state,  and  pay  his  share  of  the  taxes 
required  for  her  support,  as  the  condition  upon 
which  alone  he  may  hold  land  within  her  bounda- 
ries. Coke,  Litt.  65  a;  2  Blackstone,  Comm.  105; 
3  Kent,  Comm.  487. 

3.  In  the  earlier  ages  of  the  world  the  condition 
of  land  was  probably  allodial,  that  is,  without  sub- 
jection to  any  superior, — every  man  occupying 
ss  much  land  as  his  necessities  required  and  which 
he  found  unappropriated.  Over  this  he  exercised 
an  unqualified  dominion;  and  when  he  parted  with 
his  ownership  the  possession  of  his  successor  was 
equally  free  and  absolute.  An  estate  of  this  cha- 
racter necessarily  excludes  the  idea  of  any  ten- 
ure, since  the  occupant  owes  no  service  or  alle- 
giance to  any  superior  as  the  condition  of  his  oc- 
cupation. But  when  the  existence  of  an  organized 
society  became  desirable,  to  secure  certain  bless- 
ings only  by  its  means  to  be  acquired,  there  fol- 
lowed the  establishment  of  governments,  and  a  new 
relation  arose  between  each  government  and  its 
citizens, — that  of  protection  on  the  one  hand  and 
dependence  on  the  other, — necessarily  involving 
the  idea  of  service  to  the  state  as  a  condition  to 
the  use  and  enjoyment  of  land  within  its  bound- 
aries. This  relation  was  of  course  modified  accord- 
ing to  the  circumstances  of  particular  states ;  but 
throughout  Europe  it  early  took  the  form  of  the 
feudal  system.    See  Allodium. 

4.  Some  writers  suggest  that  the  image  of  a  feudal 
policy  may  be  discovered  in  almost  every  age  and 
quarter  of  the  globe;  but,  if  so,  its  traces  are  very 
indistinct,  and,  in  fact,  we  have  nothing  reliable  on 
the  subject  until  we  come  to  the  history  of  the  Gothic 
conquerors  of  the  Roman  empire.  The  military 
ooiupation  of  the  country  was  their  established 
policy,  and  enabled  them  more  effectually  to  secure 
their  conquests.  The  commander-in-chief,  as  head 
of  the  conquering  nation,  parcelled  out  the  con- 
quered lands  among  his  principal  followers,  and 
they  in  turn  granted  portions  of  it  to  their  vassals ; 
but  all  grants  were  upon  the  same  condition  of 
fealty  and  service.  The  essential  element  of  a 
feudal  grant  was  that  it  did  not  create  an  estate 
of  absolute  ownership,  but  the  grantee  was  merely 


a  tenant  or  holder  of  the  land,  on  condition  of  cer* 
tain  services  to  be  rendered  by  him,  the  neglect  of 
which  caused  a  forfeiture  to  the  grantor.  Har- 
grave's  note  to  Coke,  Litt.  01  a;  Wright,  Ten.  7; 
Spelman,  Feuds,  c.  2;  1  llailam.  Mid.  Ages,  83;  6 
Cranch,  87;  12  Johns.  N.  Y.  ;^>65. 

5.  The  introduction  of  feudal  tenures  into  Eng- 
land is  usually  attributed  to  the  Normans,  but  it  evi- 
dently existed  there  before  their  arrival.  It  appears 
from  the  hiAvs  of  the  Saxuns  that  a  considerable 
portion  of  land  was  held  under  their  lords  by  per- 
sons of  a  greater  or  less  degree  of  bondage,  who 
owed  services  of  either  a  civil,  military,  or  agricul- 
tural character.  A  largo  quantity  of  the  lands  which 
were  entered  in  the  Conqueror's  celebrated  Domes- 
day book  were  then  held  by  the  same  tenure  and  sub- 
jected to  the  same  services  as  they  had  been  in  the 
time  of  Edward  the  Confessor.  The  Normans  pro- 
bably introduced  some  new  provisions,  and  at- 
tempted to  re-establish  more,  which  had  become 
obsolete,  and  we  know  there  were  many  severe 
contests  between  the  Normans  and  the  English 
with  respect  to  their  restoration ;  but  the  general 
system  of  their  laws  remained  much  the  same 
under  the  new  dynasty  of  the  Normans  as  it  was 
under  that  of  the  Saxons.  Hale,  Hist.  Com.  Law, 
120 ;  Stevens,  Const.  Eng.  22. 

6.  The  principal  species  of  tenure  which 
grew  out  of  the  feudal  system  was  the  tenure 
by  knight's  service.  This  was  essentially  mili- 
tary in  its  character,  and  required  the  pos- 
session of  a  certain  quantity  of  land,  called  a 
knight's  fee, — the  measure  of  which,  in  the 
time  of  Edward  I.,  was  estimated  at  twelve 
ploughlands,  of  the  value  of  twenty  pounds 
per  annum.  He  who  held  this  portion  of 
land  was  bound  to  attend  his  lord  to  the 
wars  forty  days  in  every  year,  if  called  upon. 
It  seems,  however,  that  if  he  held  but  half  a 
knight's  fee  he  was  only  bound  to  attend 
twenty  days.  Many  arbitrary  and  tyrannical 
incidents  or  lordly  privileges  were  attached 
to  this  tenure,  which  at  length  became  so 
odious  and  oppressive  that  the  whole  system 
was  destroyed  at  a  blow  by  the  statute  of 
Charles  II.  c.  24,  which  declared  that  all  such 
lands  should  thenceforth  be  held  in  free  and 
common  socage, — a  statute,  says  Blackstone, 
which  was  a  greater  acquisition  to  the  civil 
property  of  this  kingdom  than  even  Magna 
Charta  itself ;  since  that  only  pruned  the 
luxuriances  which  had  grow^n  out  of  military 
tenures,  and  thereby  preserved  them  in  vigor, 
but  the  statute  of  king  Charles  extirpated 
the  whole,  and  demolished  both  root  and 
branches.  See  Feudal  Law  ;  Coke,  Litt. 
69  ;  Stat.  Westm.  1,  c.  36. 

■y.  Tenure  in  socage  seems  to  have  been  a 
relic  of  Saxon  liberty  w^hich,  up  to  the  time 
of  the  abolition  of  military  tenures,  had  been 
evidently  struggling  with  the  innovations  of 
the  Normans.  Its  great  redeeming  quality 
was  its  certaintjjr ;  and  in  this  sense  it  is  by 
the  old  law-writers  put  in  opposition  to  the 
tenure  by  knight's  service,  where  the  tenure 
was  altogether  precarious  and  uncertain. 
Littleton  defines  it  to  be  where  a  tenant 
holds  his  tenement  by  any  certain  service,  in 
lieu  of  all  other  services,  so  that  they  be  not 
services  of  chivalry  or  knight's  service :  as, 
to  hold  by  fealty  and  twenty  shillings  rent, 
or  by  homage,  fealty,  and  twenty  shillingH 


TENURE 


5«6 


TERM 


rent,  or  by  homage  and  fealty  without  any 
rent,  or  by  fealty  and  a  certain  specified  ser- 
vice, as,  to  plough  the  lord's  land  for  three 
days.  Littleton.  117;  2  Sharswood,  Blaekst. 
Comm.  79.    See  Socage. 

8.  Other  tenures  have  grown  out  of  the 
two  last-mentioned  species  of  tenure,  and  are 
still  extant  in  England,  although  some  of 
ihem  are  fast  becoming  obsolete.  Of  these  is 
the  tenure  by  grand  serjeanty,  which  consists 
in  some  service  immediately  respecting  the 
person  or  dignity  of  the  sovereign  :  as,  to 
carry  the  king's  standard,  or  to  be  his  con- 
stable or  marshal,  his  butler  or  chamberlain, 
or  to  perform  some  similar  service.  While 
the  tenure  by  petit  sericanty  requires  some 
inferior  service,  not  strictly  military  or  per- 
sonal, to  the  king  :  as,  the  annual  render  of 
a  bow  or  sword.  The  late  duke  of  Wellington 
annually  presented  his  sovereign  with  a  ban- 
ner, in  acknowledgment  of  his  tenure.  There 
are  also  tenures  by  copyhold  and  in  frank- 
almolgne,  in  burgage  and  of  gavelkind;  but 
their  nature,  origin,  and  history  are  explained 
in  the  several  articles  appropriated  to  those 
terms.  2  Sharswood,  Blaekst.  Comm.  66 ; 
Coke,  2d  Inst.  233. 

9.  Tenures  were  distinguished  by  the  old 
common-law  writers,  according  to  the  quality 
of  the  service,  into  free  or  bane :  the  Ibrmer 
were  such  as  were  not  unbecoming  a  soldier 
or  a  freeman  to  perform,  as,  to  serve  the  lord  in 
the  wars;  while  thelatter  were  only  considered 
fit  for  a  peasant,  as,  to  plough  the  land,  and 
the  like.  They  were  further  distinguished 
with  reference  to  the  person  from  whom  the 
land  was  held :  as,  a  tenure  in  capite,  where 
the  holding  was  of  the  person  of  the  king, 
and  tenure  in  gross,  where  the  holding  was 
of  a  subject.  Before  the  statute  of  Quia  Emp- 
tores,  18  Edw.  I.,  any  person  might  by  a  grant 
of  land  have  created  an  estate  as  a  tenure 
of  his  person  or  of  his  house  or  manor ;  and 
although  by  Magna  Charta  a  man  could  not 
alienate  so  much  of  his  land  as  not  to  leave 
enough  to  answer  the  services  due  to  the 
superior  lord,  yet,  as  that  statute  did  not  re- 
medy the  evil  then  complained  of,  it  was 
provided  by  the  statute  above  referred  to, 
that  if  any  tenant  should  alien  any  part  of 
his  land  in  fee,  the  alienee  should  hold  imme- 
diately of  the  lord  of  the  fee,  and  should  be 
charged  with  a  proportional  part  of  the  ser- 
vice due  in  respect  to  the  quantity  of  land 
held  by  him.  The  consequence  of  which  was 
that  upon  every,  such  alienation  the  services 
upon  which  the  estate  was  originally  granted 
became  due  to  the  superior  lord,  and  not  to 
the  immediate  grantee.  4  Term,  443;  4  East, 
271 ;  Crabb,  Real  Prop.  ^  735. 

10.  The  remote  position  of  the  United 
States,  as  well  as  the  genius  of  its  institutions, 
has  preserved  its  independence  of  these  em- 
barrassing tenures.  With  scarce  an  excep- 
tion, its  present  condition  includes  no  tenure 
but  that  which,  as  we  have  intimated,  is  ne- 
cessarily incident  to  all  governments.  Every 
estate  in  fee-simple  is  held  as  absolutely  and 
unconditionally  as  is  compatible  with  the 


state's  right  of  eminent  domain.  Many  grants; 
of  land  made  by  the  British  government 
prior  to  the  revolution  created  socage  tenures, 
Avhich  were  subsequently  abolished  or  modi- 
fied by  the  legislatures  of  the  different  states. 
Thus,  by  the  charter  of  Pennsylvania,  the 
proprietary  held  his  estate  of  the  crown  in 
free  and  common  socage,  his  grantees  being 
thereby  also  authorized  to  hold  of  him  direct, 
notwithstanding  the  statute  of  Quia  Emptores. 
The  act  of  Pennsylvania  of  November  27, 
1779,  substituted  the  commonwealth  in  place 
of  the  proprietaries  as  the  ultimate  propri- 
etor of  whom  lands  were  held.  In  New  York 
there  was  supposed  to  have  been  some  spe- 
cies of  military  tenure  introduced  by  the 
Dutch  previous  to  their  surrender  to  the  Eng- 
lish, in  10G4;  but  the  legislature  of  that 
state  in  1787  turned  them  all  into  a  tenure 
in  free  and  common  socage,  and  finally,  in 
1830,  abolished  this  latter  tenure  entirely, 
and  declared  that  all  lands  in  that  state 
should  thenceforth  be  held  upon  a  uniform 
allodial  tenure.  On  this  subject,  consult 
Bracton;  Glanville ;  Coke,  Litt.  ;  Wright, 
Tenures ;  Maddox,  Hist.  Exch. ;  Sullivan, 
Lect. ;  Craig,  de  Feud. ;  DuCange ;  Reeve, 
Hist,  of  Eng.  Law;  Kent,  Commentaries; 
Sharswood's  Lecture  before  the  Law  Aca- 
demy of  Philadelphia,  at  the  opening  session 
of  1855-56 ;  Washburn,  Real  Property. 

TERCE.    In  Scotch  Law.    A  life-rent 

competent  by  law  to  widows  who  have  not 
accepted  of  special  provisions  in  the  third 
part  of  the  heritable  subjects  in  which  the 
husband  died  infeft. 

The  terce  takes  place  only  where  the  mar- 
riage has  subsisted  for  a  year  and  a  day,  oi 
where  a  child  has  been  born  alive  of  it.  No 
terce  is  due  out  of  lands  in  which  the  hus- 
band was  not  infeft,  unless  in  case  of  a 
fraudulent  omission.  Craig,  Inst.  423,  §  28. 
The  terce  is  not  limited  to  lands,  but  extends 
to  teinds,  and  to  servitudes  and  other  burdens 
affecting  lands.  Erskine,  Inst.  2.  9.  26 ; 
Burge,  Confl.  of  Laws,  429-435. 

TERM.  In  Construction.  Word  ;  ex- 
pression ;  speech. 

Terms  are  words  or  characters  by  which 
we  announce  our  sentiments,  and  make 
known  to  others  things  with  which  we  are 
acquainted.  These  must  be  properly  con- 
strued or  interpreted  in  order  to  understand 
the  parties  using  them.  See  Construction  ; 
Interpretation  ;  Word. 

In  Contracts.  The  space  of  time  granted 
to  a  debtor  for  discharging  his  obligation : 
these  are  express  terms,  resulting  from  the 
positive  stipulations  of  the  agreement,  as, 
where  one  undertakes  to  pay  a  certain  sum 
on  a  certain  day,  and  also  terms  which 
tacitly  result  from  the  nature  of  the  things 
which  are  the  object  of  the  engagement,  or 
from  the  place  where  the  act  is  agreed  to  be 
done.  For  instance,  if  a  builder  engage  to 
construct  a  house  for  me,  I  must  allow  a  rea- 
sonable time  for  fulfilling  his  engagement. 
1  Wise.  314. 


TERM  PROBATORY 


587 


TERROR 


In  Estates  Tlic  limitation  of  an  estate  : 
as,  a  term  tor  years,  for  life,  and  the  like. 
The  word  ienn  does  not  merely  signify  the 
time  specified  in  the  lease,  but  the  estate, 
also,  and  interest  that  passes  by  that  lease: 
and  therefore  the  term  may  expire  during 
the  continuance  of  the  time:  as,  by  surren- 
der, forfeiture,  and  the  like.  2  Blackstone, 
Comm.  145  ;  8  Pick.  Mass.  339. 

In  Practice.  The  space  of  time  during 
■which  a  court  holds  a  session.  Sometimes 
the  term  is  a  monthly  at  others  it  is  a  quar- 
terly period,  according  to  the  constitution  of 
the  court. 

The  whole  terra  is  considered  as  but  one 
day:  so  that  the  judges  may  at  any  time 
during  the  term  revise  their  judgments.  In 
the  computation  of  the  term,  all  adjournments 
are  to  be  included.  9  Watts,  Penn.  200. 
Courts  are  presumed  to  know  judicially  w^hen 
their  terms  are  required  to  be  held  by  public 
law.  4  Dev.  No.  C.  427.  See,  generally, 
1  Peck,  Tenn.  82  ;  6  Yerg.  Tenn.  395  ;  7  id. 
365  ;  6  Rand.  Va.  704  ;  1  Cow.  N.  Y.  58  ;  2  id. 
445;  5  Binn.  Penn.  389;  4  Serg.  &  R.  Penn. 
507 ;  5  Mass.  195,  435. 

TERM  PROBATORY.  The  time 
during  w^hich  evidence  may  be  taken  in  a 
cause. 

TERM  FOR  YEARS.  An  estate  for 
years  and  the  time  during  which  such  estate 
is  to  be  held  are  each  called  a  term:  hence 
the  term  may  expire  before  the  time,  as,  by 
a  surrender.  Coke,  Litt.  45.  See  Estate  for 
Years. 

TERMINUM  (Lat.).    In  Civil  Law. 

A  day  set  to  the  defendant.  Spelman.  In 
this  sense  Bracton,  Glanville,  and  some  others 
sometimes  use  it.  Reliquiae  Spelmanianse, 
p.  71;  Beames,  Glanville,  27,  n. 

TERMINUS  (Lat.).  A  boundary  or 
limit,  either  of  space  or  time.  A  bound,  goal, 
or  borders  parting  one  man's  land  from  an- 
other's. Est  inter  eos  non  de  ierminis,  sed 
tota  possessione  contentio.  Cic.  Acad.  4,  43. 
It  is  used  also  for  an  estate  for  a  term  of 
years:  e.^.  ''interesse  termini.*'  2  Sharswood, 
Blackst.  Comm.  143.    See  Term. 

Terminus  a  quo  (Lat.).  The  starting-point 
of  a  private  way  is  so  called.  Hammond, 
Nisi  P.  196. 

Terminus  ad  quern  (Lat.).  The  point  of 
termination  of  a  private  way  is  so  called. 

TERMOR.  One  who  holds  lands  and 
tenements  for  a  term  of  years,  or  life.  Lit- 
tleton, nOO;  4  Tyrwh.  561. 

TERRE-TENANT  (improperly  spelled 
ier-tenant).  One  who  has  the  actual  posses- 
sion of  land;  but,  in  a  more  technical  sense, 
he  who  is  seised  of  the  land;  and  in  the 
latter  sense  the  owner  of  the  land,  or  the 
person  seised,  is  the  terre-tenant,  and  not  the 
lessee.  4  Watts  &  S.  Penn.  256;  Bacon, 
Abr.  Uses  and  Trusts.  It  has  been  holden 
that  mere  occupiers  of  the  land  are  not  terre- 
tenants.    See  16  Serg.  &  R.  Penn.  432;  3 


Penn.  229;  2  Saund.  7,  n.  4;  2  Blackstone, 
Comm.  91,  328. 

TERRIER.    In  English  Law.    A  roll, 

catalogue,  or  survey  of  laiidK,  belonging  either 
to  a  single  person  or  a  town,  in  which  are 
stated  the  quantity  of  acres,  the  names  of  the 
tenants,  and  the  like. 

By  the  ecclesiastical  law,  an  inquiry  is 
directed  to  be  made  from  time  to  time  of  the 
temporal  rights  of  the  clergyman  of  every 
parish,  and  to  be  returned  into  the  registry 
of  the  bishop:  this  return  is  denominated  a 
terrier.    1  Phillipps,  Ev.  002,  603. 

TERRITORIAL  COURTS.  The  courts 
established  in  the  territories  of  the  United 
States.    See  Courts  of  the  United  States. 

TERRITORY.  A  part  of  a  country 
separated  from  the  rest  and  subject  to  a  par- 
ticular jurisdiction. 

The  word  is  derived  from  terren,  and  is  said  to 
be  so  called  because  the  magistrate  within  bis  juris- 
diction has  the  power  of  inspiring  a  salutary  fear. 
Dictum  est  ab  eo  qtiod  mayiatratits  intra  Jines  ejus 
terendi  /it«  habet.  Henrion  de  Pansy,  Auth.  Judi- 
ciaire,  98.  In  speaking  of  the  ecclesiastical  juris- 
dictions, Francis  Duaren  observes  that  the  ecclesi- 
astics are  said  not  to  have  territory,  nor  the  power 
of  arrest  or  removjil,  and  are  not  unlike  the  Roman 
magistrates  of  whom  Gellius  says  vocationem  hubc' 
bant  lion  prehetisionem.  De  Sacris  Eccles.  Minist. 
lib.  1,  cap.  4. 

In  American  Law.  A  portion  of  the 
country  subject  to  and  belonging  to  the 
United  States  which  is  not  within  the  bound- 
ary of  any  of  the  states. 

2.  The  constitution  of  the  United  States, 
art.  4,  s.  3,  provides  that  the  congress  shall 
have  power  to  dispose  of,  and  make  all  need- 
ful rules  and  regulations  respecting,  the  ter- 
ritory or  other  property  of  the  United  States; 
and  nothing  in  this  constitution  shall  be  con- 
strued so  as  to  preclude  the  claims  of  the 
United  States  or  of  any  state. 

3.  Congress  possesses  the  power  to  erect 
territorial  governments  within  the  territory 
of  the  United  States:  the  power  of  congress 
over  such  territory  is  exclusive  and  universal, 
and  their  legislation  is  subject  to  no  control, 
unless  in  the  case  of  ceded  territory,  as  far  aa 
it  may  be  affected  by  stipulations  in  the  ces- 
sions, or  by  the  ordinance  of  1787,  under 
which  any  part  of  it  has  been  settled.  Story, 
Const.  I  1322  ;  Rawle,  Const.  237  ;  1  Kent, 
Comm.  243,  359  ;  1  Pet.  511,  512,  517.  See 
the  articles  on  the  various  territories. 

TERROR  (Lat.).  That  state  of  the 
mind  which  arises  from  the  event  or  pheno- 
menon that  may  serve  as  a  prognostic  of  some 
catastrophe ;  affright  from  apparent  danger. 

One  of  the  constituents  of  the  offence  of 
riot  is  that  the  acts  of  the  persons  engaged 
in  it  should  be  to  the  terror  of  the  people,  as 
a  show  of  arms,  threatening  speeches,  or  tur- 
bulent gestures;  but  it  is  not  requisite  in 
order  to  constitute  this  crime  that  personal 
violence  should  be  committed.  3  Campb. 
369 ;  1  Hawkins,  PI.  Cr.  c.  65,  s.  5  ;  4  Carr. 
&  P.  373.  538.  See  Rolle,  109 ;  Dalton,  Just 
c.  186 ;  Viner,  Abr.  Biots  (A  8). 


'lERTIUS  INTERVENIENS 


588 


TESTAMENT 


To  constitute  a  forcible  entry,  1  Russell, 
Crimes.  287,  the  act  must  be  accompanied  with 
circumstances  of  violence  or  terror;  and  in 
order  to  make  the  crime  of  robbery  there 
must  be  violence  or  putting  in  fear;  but  both 
these  circumstances  need  not  concur.  4 
Binn.  Penn.  379.  See  Riot;  Robbery; 
Putting  in  Fear. 

TERTIUS  INTERVENIENS  (Lat.). 
In  Civil  Law.  One  who,  claiming  an  in- 
terest in  the  subject  or  thing  in  dispute  in 
action  between  other  parties,  asserts  his  right 
to  act  with  the  plaintiff,  to  be  joined  with 
him,  and  to  recover  the  matter  in  dispute, 
because  he  has  an  interest  in  it;  or  to  join 
the  defendant,  and  with  him  oppose  the  in- 
terest of  the  plaintiff,  which  it  is  his  interest 
to  defeat.  He  differs  from  the  intervener,  or 
he  who  interpleads  in  equity.  4  Bouvier, 
Inst.  n.  3819,  note. 

TEST.  Something  by  which  to  ascertain 
the  truth  respecting  another  thing.  7  Penn. 
St.  428  ;  6  Whart.  Penn.  284. 

TEST  ACT.    The  act  of  25  Car.  II.  c. 

2,  by  which  it  was  enacted  that  all  persons 
holding  any  office,  civil  or  military  (except- 
ing some  very  inferior  ones),  or  receiving 
pay  from  the  crown,  or  holding  a  place  of 
trust  under  it,  should  take  the  oath  of  alle- 
giance and  supremacy,  and  subscribe  a  de- 
claration against  transubstantiation,  and  re- 
ceive the  sacrament  according  to  the  usage 
of  the  Church  of  England,  under  a  penalty 
of  £500  and  disability  to  the  office.  4 
Sharswood,  Blackst.  Comm.  59.  Abolished, 
9  Geo.  IV.  c.  17,  so  far  as  taking  sacrament  is 
concerned,  and  new  form  of  declaration  sub- 
stituted.   Encyc.  Brit. 

TEST-PAPER.  A  paper  submitted  to 
the  jury  as  a  test  or  standard  by  which  to 
determine  the  genuineness  of  other  writings. 
7  Penn.  St.  428  ;  6  Whart.  Penn.  284.  Only 
admissible  when  no  collateral  issue  can  be 
raised  concerning  it.  See  14  N.  Y.  439;  1 
Greenleaf,  Ev.  §  581. 

TESTAMENT.    In  Civil  Law.  The 

appointment  of  an  executor  or  testamentary 
heir,  according  to  the  formalities  prescribed 
by  law.    Domat,  liv.  1,  tit.  1,  s.  1. 

At  first  there  were  only  two  sorts  of  testaments 
among  the  Romans, — that  called  calatia  coinitiis, 
and  another  called  in  jprociHciit.  (See  below.)  In 
the  course  of  time,  these  two  sorts  of  testament  hav- 
ing become  obsolete,  a  third  form  was  introduced, 
called  per  m  et  libram.  which  was  a  fictitious  sale 
of  the  inheritance  to  the  heir  apparent.  The  in- 
conveniences which  were  experienced  from  these 
fictitious  sales  again  changed  the  form  of  testa- 
ments; and  the  prajtor  introduced  another,  which 
required  the  seal  of  seven  witnesses.  The  emperors 
naving  increased  the  solemnity  of  these  testaments, 
they  were  called  written  or  solemn  testaments,  to 
distinguish  them  from  nuncupative  testaments, 
which  could  be  made  without  writing.  Afterwards 
military  testaments  were  introduced,  in  favor  of 
soldiers  actually  engaged  in  military  service. 

A  testament  calatis  comUiis,  or  made  in  the 
comitia, — that  is,  the  assembly  of  the  Roman 
people, — was  an  ancient  manner  of  making 


wills  used  in  times  of  peace  among  the 
Romans.  The  comitia  met  twice  a  year  for 
this  purpose.  Those  who  wished  to  make 
such  testaments  caused  to  be  convoked  the 
assembly  of  the  people  by  these  words,  calatis 
coniitiis.  None  could  make  such  wills  that 
were  not  entitled  to  be  at  the  assemblies  of 
the  people.  This  form  of  testament  was  re- 
pealed by  the  law  of  the  Twelve  Tables. 

A  cioil  testament  is  one  made  according 
to  all  the  forms  prescribed  by  law,  in  contra- 
distinction to  a  military  testament,  in  making 
which  some  of  the  forms  may  be  dispensed 
with.  Civil  testaments  are  more  ancient 
than  military  ones;  the  former  w?re  in  use 
during  the  time  of  Romulus,  the  latter  were 
introduced  during  the  time  of  Coriolanus. 
See  Hist,  de  la  Jurisp.  Rom.  de  M.  Terrason, 
p.  119. 

A  common  testament  is  one  which  is  made 
jointly  by  several  persons.  Such  testaments 
are  forbidden  in  Louisiana,  Civ.  Code  of  La. 
art.  1565,  and  by  the  laws  of  France,  Code 
Civ.  968,  in  the  same  words,  namely:  "A 
testament  cannot  be  made  by  the  same  act, 
by  two  or  more  persons,  either  for  the  benefit 
of  a  third  person,  or  under  the  title  of  a  re- 
ciprocal or  mutual  disposition." 

A  testament  ab  irato  is  one  made  in  a 
gust  of  passion  or  hatred  against  the  pre- 
sumptive heir,  rather  than  from  a  desire  to 
benefit  the  devisee.  When  the  facts  of  un- 
reasonable anger  are  proved,  the  will  is  an- 
nulled as  unjust  and  as  not  having  been 
freely  made.    See  Ab  Irato. 

A  mystic  testament  (called  a  solemn  testa- 
ment, because  it  requires  more  formality 
than  a  nuncupative  testament)  is  a  form  of 
making  a  will  which  consists  principally  in 
enclosing  it  in  an  envelope  and  sealing  it  in 
the  presence  of  witnesses. 

This  kind  of  testament  is  used  in  Louisiana. 
The  following  are  the  provisions  of  the  Civil  Code 
of  that  state  on  the  subject,  namely  :  the  mystic  or 
secret  testament,  otherwise  called  the  close  testa- 
ment, is  made  in  the  following  manner :  the  testa- 
tor must  sign  his  dispositions,  whether  he  has  writ- 
ten them  himself,  or  has  caused  them  to  be  written 
by  another  person.  The  paper  containing  these  dis- 
positions, or  the  paper  serving  as  their  envelope, 
must  be  closed  and  sealed.  The  testator  shall  pre- 
sent it  thus  closed  and  sealed  to  the  notary  and  to 
seven  witnesses,  or  he  shall  cause  it  to  be  closed 
and  sealed  in  their  presence ;  then  he  shall  declare 
to  the  notary  in  the  presence  of  the  witnesses  that 
that  paper  contains  his  testament  written  by  him- 
self, or  by  another  by  his  direction,  and  signed  by 
him,  the  testator.  The  notary  shall  then  draw  up 
the  act  of  superscription,  which  shall  be  written  on 
that  paper,  or  on  the  sheet  that  serves  as  its  enve- 
lope, and  that  act  shall  be  signed  by  the  testator 
ami  by  the  notary  and  the  witnesses.  5  Mart.  La. 
182.  All  that  is  above  prescribed  shall  be  done 
without  interruption  or  turning  aside  to  other  acts  ; 
and  in  case  the  testator,  by  reason  of  any  hindrance 
that  has  happened  since  the  signing  of  the  testa- 
ment, cannot  sign  the  act  of  superscription,  men- 
tion shall  be  made  of  the  declaration  made  by  him 
thereof,  without  its  being  necessary  in  that  case  to 
increase  the  number  of  witnesses.  Those  who  know- 
not  how  or  are  not  able  to  write,  and  those  who 
know  not  how  or  are  not  able  to  sign  their  names, 
cannot  make  dispositions  in  the  form  of  the  mystio 


TESTAMENTARY 


589 


TEXAS 


will.  If  any  one  of  the  witnesses  to  the  act  of  super- 
scription knows  not  how  to  sign,  express  mention 
•hall  be  made  thereof.  In  all  cases  the  act  must 
be  signed  bv  at  least  two  witnesses.  La.  Civ.  Code, 
art.  1677-1580. 

A  nuncupative  testament  was  one  made  verb- 
ally, in  the  presence  of  seven  -witnesses :  it 
was  not  necessary  that  it  sliould  have  been 
in  writing ;  the  proof  of  it  was  by  parol 
evidence.    See  Nuncupative. 

In  Louisiana,  testaments,  whether  nuncupative 
or  mystic,  must  be  drawn  up  in  writing,  either  by 
the  testator  himself,  or  by  some  other  person  under 
his  dictation.  The  custom  of  making  verbal  state- 
ments, that  is  to  say,  resulting  from  the  mere  depo- 
sition of  witnesses  who  were  present  when  the 
testator  made  known  to  them  his  will,  without  his 
having  committed  it  or  caused  it  to  be  committed  to 
writing,  is  abrogated.  Nuncupative  testaments 
may  be  made  by  public  act,  or  by  act  under  private 
Bignature.    La.  Civ.  Code,  art.  1568-1570. 

An  olographic  testament  is  one  which  is 
written  wholly  by  the  testator  himself.  In 
order  to  be  valid,  it  must  be  entirely  written, 
dated,  and  signed  by  the  hand  of  the  testator. 
It  is  subject  to  no  other  form.  See  La.  Civ. 
Code,  art.  1581. 

TESTAMENTARY.  Belonging  to  a 
testament :  as,  a  testamentary  gift ;  a  testa- 
mentary guardian,  or  one  appointed  by  will 
or  testament ;  letters  testamentary,  or  a 
writing  under  seal,  given  by  an  officer  law- 
fully authorized,  granting  power  to  one  named 
as  executor  to  execute  a  last  will  or  testa- 
ment. 

TESTAMENTARY  CAUSES.  In 
English  Law.  Causes  relating  to  probate 
of  testaments  and  administration  and  ac- 
counts upon  the  same.  They  are  enumerated 
among  ecclesiastical  causes  by  Lord  Coke. 
5  Coke,  1,  and  Table  of  Cases  at  the  end  of 
the  part.  Over  these  causes  probate  court 
has  now  exclusive  jurisdiction,  by  20  &  21 
Vict.  c.  77,  amended  by  21  &  22  Vict.  c.  95. 

TESTAMENTARY  GUARDIAN.  A 

guardian  appointed  by  last  will  of  a  father 
to  have  custody  of  his  child  and  his  real  and 
personal  estate  till  he  attains  the  age  of  twenty- 
one.  In  England,  the  poAver  to  appoint  such 
guardian  was  given  by  12  Car.  II.  c.  24.  The 
principles  of  this  statute  have  been  generally 
adopted  in  the  United  States,  12  N.  H.  437 ; 
but  not  in  Connecticut.    1  Swift,  Dig.  48. 

TESTATE.  The  condition  of  one  who 
leaves  a  valid  will  at  his  death. 

TESTATOR  (Lat.).  One  who  has  made 
a  testament  or  will. 

In  general,  all  persons  may  be  testators. 
But  to  this  rule  there  are  various  exceptions. 
First,  persons  who  are  deprived  of  under- 
standing cannot  make  wills:  idiots,  lunatics, 
and  inftmts  are  among  this  class.  /Second, 
persons  who  have  understanding,  but  being 
under  the  power  of  others  cannot  freely 
exercise  their  will ;  and  this  the  law  presumes 
to  be  the  case  with  a  married  woman,  and 
therefore  she  cannot  make  a  will  without  the 
express  consent  of  her  husband  to  the  par- 


ticular will.  When  a  woman  make«?  a  will 
under  some  general  agreement  on  the  part  of 
the  husband  that  she  shall  make  a  will,  the 
instrument  is  not  properly  a  will,  but  a 
writing  in  the  nature  of  a  will  or  testament. 
Third,  persons  who  are  deprived  of  their  free 
will  cannot  make  a  testament:  as,  a  person 
in  duress.  2  Blackstone,  Comm.  497  ;  2 
Bouvier,  Inst.  n.  21(J2  et  seq.  See  Devisor  ; 
Duress;  Feme  Covert;  Idiot;  Wife; 
Will. 

TESTATRIX  (Lat.).  A  woman  who 
makes  a  will  or  testament. 

TESTATUM  (Lat.).  In  Practice.  The 

name  of  a  writ  which  is  issued  by  the  court 
of  one  county  to  the  sheriff  of  another  county 
in  the  same  state,  when  the  defendant  can- 
not be  found  in  the  county  where  the  court  is 
located:  for  example,  after  a  judgment  has 
been  obtained,  and  a  ca.  sa.  has  been  issued, 
which  has  been  returned  7ion  est  invaitus,  a 
testatum  ca.  sa.  may  be  issued  to  the  sheriff 
of  the  county  where  the  defendant  is.  See 
Viner,  Abr.  Testatum,  259. 

In  Conveyancing.  That  part  of  a  deed 
which  commences  with  the  words  "this  in- 
denture witnesseth." 

TESTE  OF  A  WRIT  (Lat.).  In  Pr.ic- 
tice.  The  concluding  clause,  commencing 
with  the  word  witness,  etc.  A  signature  in 
attestation  of  the  fact  that  a  writ  is  issued 
by  authority. 

The  act  of  congress  of  May  8,  1792,  1 
Story,  U.  S.  Laws,  227,  directs  that  all  writs 
and  process  issuing  from  the  supreme  or  a 
circuit  court  shall  bear  teste  of  the  chief 
justice  of  the  supreme  court,  or,  if  that  office 
be  vacant,  of  the  associate  justice  next  in 
precedence ;  and  that  all  writs  or  process  is- 
suing from  a  district  court  shall  bear  teste 
of  the  judge  of  such  court,  or,  if  the  said 
office  be  vacant,  of  the  clerk  therfof.  See 
Sergeant,  Const.  Law,  Index;  20  Virer,  Abr. 
262;  Stephen,  Plead.  25. 

TESTES.  Witnesses. 

TESTIFY.  To  give  evidence  according 
to  law;  the  examination  of  a  witness  who 
declares  his  knowledge  of  facts. 

TESTIMONIAL  PROOF.  In  Civil 
Law.  A  term  used  in  the  same  set  -e  as 
parol  evidence  is  used  at  common  la\\  and 
in  contradistinction  to  literal  proof,  whi  ;h  is 
written  evidence. 

TESTIMONIES.    In  Spanish  Law. 

An  attested  copy  of  an  instrument  by  a 
notary.  Newman  k  Barretti,  Diet. ;  Tex. 
Dig. 

TESTIMONY.  The  statement  made  by 
a  witness  under  oath  or  affirmation. 

TESTMOIGNE.  This  is  an  old  and 
barbarous  French  word,  signifying,  in  the  old 
books,  evidence.    Comyns,  Dig.  Testmoiyne. 

TEXAS.    The  name  of  one  of  the  new 

states  of  the  American  Union. 

2.  Under  the  name  of  Coahuila  and  Texas,  it  was 
a  province  of  Mexico  until  1836,  when  the  inhabit- 


TEXAS  590 


ants  established  a  separate  republic.  On  the  first 
day  of  March,  1845,  the  congress  of  the  United 
States,  by  a  joint  resolution,  submitted  to  the  new 
republic  a  proposition  providing  for  the  erection  of 
the  territory  of  Texas  into  a  new  state,  and  for  its 
annexation  to  that  country  under  the  name  of  the 
istate  of  Texas.  This  proposition  was  accepted  by 
the  existing  government  of  Texas  on  the  2'Ad  of 
June,  1846,  and  was  ratified  by  the  people  in  con- 
vention on  the  6th  of  July.  On  the  29th  of  De- 
cember following,  by  a  joint  resolution  of  congress, 
the  new  state  was  formally  admitted  into  the  Union. 

The  state  constitution  was  adopted  by  a  conven- 
tion of  the  people,  at  Austin,  on  the  27th  of  August, 
1845.  It  provides  for  the  distribution  of  the  powers 
of  the  government  among  three  distinct  depart- 
ments,— the  legislative,  the  executive,  and  the  judi- 
cial. 

Every  free  male  person  who  has  attained  the 
age  of  twenty-one  years,  and  who  is  a  citizen  of 
the  United  States,  or  who  was  at  the  time  of  the 
adoption  of  the  constitution  by  the  congress  of  the 
United  States  a  citizen  of  the  republic  of  Texas, 
and  who  has  resided  in  the  state  one  year  next  pre- 
ceding an  election,  and  the  last  six  months  within 
the  district,  county,  city,  or  town  in  which  he  offers 
to  vote,  and  every  free  male  person  over  the  age  of 
twenty-one  years  who  had  resided  six  months  in 
^exas  immediately  preceding  the  acceptance  of 
the  constitution  by  the  congress  of  the  United 
States  (Indians  not  taxed,  Africans,  and  the  de- 
scendants of  Africans,  excepted)  is  deemed  a  quali- 
fied elector;  and  should  such  qualified  elector 
happen  to  be  in  any  other  county  situated  in  the 
district  in  which  he  resides  at  the  time  of  an  elec- 
tion, he  is  permitted  to  vote  for  any  district  officer: 
Provided,  That  the  qualified  electors  shall  be  per- 
mitted to  vote  anywhere  in  the  state  for  state  ofii- 
cers  :  And  prqvided,  further,  That  no  soldier,  sea- 
man, or  marine,  in  the  army  or  navy  of  the  United 
States,  shall  be  entitled  to  vote  at  any  election 
created  by  the  constitution.    Const,  art.  2,  ^  1,  2. 

The  Legislative  Poioer. 

3.  The  legislative  department  is  composed  of 
the  senate  and  house  of  representatives.  The 
regular  sessions  of  the  legislature  take  place  bien- 
nially. Extra  sessions  may  be  called  by  the  exe- 
cutive at  any  time. 

The  third  article  of  the  constitution  contains 
the  customary  pi-ovisions  for  securing  the  organiza- 
tion of  the  two  houses,  choice  of  ofiicers,  qualifica- 
tion of  members,  power  of  expulsion  and  punish- 
ment of  members,  privilege  from  arrest,  preserva- 
tion and  publication  of  proceedings,  and  open 
sessions.    Const,  art.  3,  12-18. 

Senators  are  chosen  by  the  qualified  electors, 
for  four  years,  at  such  times  and  places  as  are  or 
may  herealter  be  designated  by  law.  No  person 
can  be  a  senator  unless  he  is  a  citizen  of  the  United 
States,  or  was  at  the  time  of  the  acceptance  of  the 
constitution  by  the  congress  of  the  United  States 
a  citizen  of  the  republic  of  Texas,  and  has  been  an 
inhabitant  of  the  state  three  years  next  preceding 
the  election,  and  for  the  last  year  thereof  a  resi- 
dent of  the  district  for  which  he  is  chosen,  and 
must  have  attained  the  age  of  thirty  years. 

The  House  of  Representatives  is  composed  of  mem- 
b«»:s  chosen  by  the  qualified  electors  for  the  term 
of  two  years  from  the  day  of  the  general  election, 
at  such  times  and  places  as  are  now,  or  may  here- 
after be,  designated  by  law.  Const,  art.  3,  5-7. 
No  person  can  be  a  representative  unless  he  is  a 
citizen  of  the  United  States,  or  was  at  the  time  of 
the  adoption  of  this  constitution  a  citizen  of  the 
republic  of  Texas,  and  has  been  an  inhabitant  of 
this  state  two  years  next  preceding  his  election, 
and  the  last  year  thereof  a  citizen  of  the  county, 
9ity,  or  town  for  which  he  shall  be  chosen ;  and  he 


TEXAS  • 


must  have  attained  the  age  of  twenty-one  yetrs  at 
the  time  of  his  election. 

2'he  JExectitive  Power. 

4,  The  Governor  is  elected  by  the  qualified  e'lec* 
tors  of  the  state,  at  the  time  and  places  of  elec- 
tions for  members  of  the  legislature.  Art.  5,  §  2. 
He  holds  his  ofiice  for  two  years  t'rnm  the  regular 
time  of  installation,  and  until  his  successor  has 
been  duly  qualified,  but  is  not  eligible  for  move 
than  four  years  in  any  term  of  six  years.  Art.  o, 
^  4.  He  must  be  at  least  thirty  years  of  age,  a 
citizen  of  the  United  States  or  of  Texas  at  the 
time  of  the  adoption  of  the  constitution,  and  have 
resided  in  the  same  three  years  next  immediately 
preceding  his  election.  Art.  5,  ^  4.  He  is  com- 
mander-in-chief of  the  army  and  navy  of  the 
state,  may  require  information  from  ofiicers  of  the 
executive  department,  may  convene  the  legisla- 
ture, or  adjourn  the  same  when  the  houses  cannot 
agree,  may  recommend  measures  to  the  legisla- 
ture, must  cause  the  laws  to  be  executed. 

A  Lieutenant-iiocertior  is  chosen  at  every  election 
for  governor,  by  the  same  persons  and  in  the  same 
manner,  continues  in  ofiice  lor  the  same  time,  and 
must  possess  the  same  qualifications.  In  voting  for 
governor  and  lieutenant-governor,  the  electors  are 
to  distinguish  for  whom  they  vote  as  governor  and 
for  whom  as  lieutenant-governor.  The  lieutenant- 
governor,  by  virtue  of  his  ofiice,  is  president  of  the 
senate,  and  has,  when  in  committee  of  the  whole,  a 
right  to  debate  and  vote  on  all  questions,  and,  when 
the  senate  is  equally  divided,  to  give  the  casting 
vote.  In  case  of  the  death,  resignation,  removal 
from  office,  inability  or  refusal  of  the  governor  to 
serve,  or  of  his  impeachment  or  absence  from  the 
state,  the  lieutenant-governor  exercises  the  power 
and  authority  appertaining  to  the  office  of  governor 
until  {mother  is  chosen  at  the  periodical  election  and 
is  duly  qualified,  or  until  the  governor  impeached, 
absent,  or  disabled  is  acquitted,  returns,  or  his  dis- 
ability is  removed.    Const,  art.  5,  ^  12. 

The  Judicial  Power. 

5.  The  judicial  power  is  vested  in  one  supreme 
court,  in  district  courts,  and  in  such  inferior  courts 
as  the  legislature  may  Irum  time  to  time  ordain 
and  establish  ;  and  such  jurisdiction  may  be  vested 
in  corporation  courts,  as  may  be  deemed  necessary 
and  be  directed  by  law.  Const,  art.  4,  ^  1.  The 
governor  nominates  and,  by  and  with  the  advice 
and  consent  of  two-thirds  of  the  senate,  appoints 
the  judges  of  the  supreme  and  district  courts;  and 
thev  hold  their  offices  for  six  years.    Const,  art. 

2'ke  Supreme  Court  consists  of  a  chief  justice 
and  two  associates,  any  two  of  whom  form  a  quorum. 
Art.  4,  ^  2.  It  .appoints  its  own  clerk.  The  supreme 
court  has  appellate  jurisdiction  only,  coextensive 
with  the  limits  of  the  state,  but  in  criminal  cases, 
and  in  appeals  from  interlocutory  judgments,  with 
such  exceptions  and  under  such  regulations  aa 
the  legislature  may  make;  and  the  supreme  court 
and  judges  thereof  have  power  to  issue  the  writ  of 
habeas  corpus,  and,  under  such  regulations  as  may 
be  prescribed  by  law,  may  issue  writs  of  manda- 
mus, and  such  other  writs  as  may  be  necessary  to 
enforce  its  own  jurisdiction ;  and  may  also  compel  a 
judge  of  the  district  court  to  proceed  to  trial  and 
judgment  in  a  cause.  The  supreme  court  holds  its 
sessions  once  every  year,  between  the  months  of 
October  and  June  inclusive,  at  Austin,  Galveston, 
and  Tyler. 

The  District  Courts,  of  which  there  are  eom» 
twenty  in  the  state,  holding  semi-annual  terms, 
have  original  jurisdiction  of  all  criminal  actions, 
and  power  to  inquire,  through  the  intervention  of 
a  grand  jury,  into  all  offences  committed  or  triable 
within  their  respective  jurisdictions;  to  hear  and 
determine  all  prosecutions  in  the  name  of  the  etateti 


TEXAS 


591 


TEXAS 


by  indictment  or  information  ;  to  inquire  into  the 
cause  of  the  detention  of  persons  imprisoned  in  the 
jails  of  their  respective  districts,  and  make  all  orders 
necessary  for  their  recommitment,  discharge,  or  ad- 
mission to  bail,  by  the  writ  of  habeas  corpus,  or  in 
such  other  manner  as  may  be  prescribed  by  law ;  and 
to  exercise  all  other  powers  conferred  by  the  code  of 
criminal  procedure.  In  civil  cases  the  district  courts 
have  original  jurisdiction  of  all  suits  in  behalf  of 
the  state  to  recover  penalties,  forfeitures,  and  es- 
cheats;  of  all  cases  of  divorce;  of  all  suits,  com- 
plaints, and  pleas  whatever,  without  regard  to 
uny  distinction  between  law  and  equity,  when  the 
matter  in  controversy  is  valued  at  ot:  amounts  to 
one  hundred  dollars,  exclusive  of  interest.  They 
have  original  jurisdiction  in  probate  matters  when 
the  judge  or  clerk  of  the  county  court  is  interested 
therein.  The  district  courts  and  the  judges  thereof 
nave  power  to  grant  all  remedial  writs  known  to 
the  law,  and  to  issue  all  writs  ftecessary  to  enforce 
their  own  jurisdiction  and  to  give  them  a  general 
superintendence  and  control  over  the  courts  of  in- 
ferior jurisdiction. 

6.  The  pleading  and  practice  of  the  district 
court  are  peculiar,  and  deserve  some  attention. 
Prior  to  the  revolution  which  severed  Texas  from 
the  Mexican  confederacy,  the  Spanish  civil  law, 
modified  to  some  extent  by  local  statutes,  was  in 
force.  The  common  law  was  introduced  at  an  early 
period  after  the  declaration  of  independence  5  but 
the  old  system  left  behind  it  distinct  traces,  and 
some  of  its  features  are  apparent  in  the  existing 
laws.  Amid  the  changes  which  followed  the  revo- 
lution, when  the  body  of  the  civil  law  was  abro- 
gated, and  the  common  law  was  adopted  in  its  ap- 
plication to  juries  and  to  evidence,  and  as  a  rule 
of  decision,  where  not  inconsistent  with  the  consti- 
tution and  laws,  the  system  of  pleading  previously 
in  use  was  carefully  preserved.  That  system  is 
still  in  force,  except  where  it  has  been  expressly 
changed  by  subsequent  legislation  altering  or  esta- 
blishing the  course  of  proceedings  in  the  courts, 
or  where  it  has  been  necessarily  modified  by  the 
introduction  of  the  trial  by  jury, — a  mode  of  trial 
wholly  unknown  to  the  civil  law, — and  with  it,  to 
a  great  extent,  the  practice  peculiar  to  the  common- 
law  courts,  the  analogies  of  which  are  constantly 
consulted  by  the  Texas  practitioner. 

The  system  of  pleading  formerly  in  force,  and 
which  has  impressed  its  character  on  that  now 
practised,  consisted  in  written  allegations  by  the 
parties  on  either  side. 

As  defined  by  the  Spanish  law-writers,  an  action 
was  the  legal  method  of  demanding  in  a  court  of 
justice  that  which  is  our  own  and  is  withheld  from 
us.  They  were  divided  into  real  and  personal, — 
the  former  having  reference  to  the  right  which  we 
have  in  a  thing,  the  latter,  to  the  obligation  which 
one  has  assumed  to  perform  a  certain  duty.  The 
defence  to  an  action  was  called  an  exception.  It 
embraced  every  allegation  and  defence  used  to  de- 
feat a  recovery  by  the  plaintiff.  Exceptions  were 
either  dilatory,  when  they  delayed  or  suspended 
the  action,  and  peremptory,  when  they  destroyed  it 
and  prevented  further  litigation. 

T.  The  first  step  in  the  progress  of  the  action 
was  the  demand,  which  was  a  written  petition 
adapted  to  the  nature  of  the  action,  and  must  have 
*ontained  the  following  requisites  : — first,  the  name 
of  the  judge  to  whom  it  was  addressed;  second,  the 
name  of  the  plaintiff";  third,  the  name  of  the  de- 
fendant; fourth,  the  statement  of  the  cause  of  ac- 
tion ;  fifth,  the  ground  of  the  demand,  or  the  right 
by  which  the  relief  was  sought. 

The  demand  concluded  with  the  word  ''juro," 
which  signified  that  the  party  had  taken  an  oath 
that  his  action  was  begun  in  good  faith,  and  the 
words  "cZ  oficiode  vmd.  implora,"  by  which  the  in- 
terposition of  Iho  judge  was  invoked. 


The  citation  followed  the  demand.  This  wa» 
the  process  by  which  the  defendant  was  brought 
into  court  to  answer  the  demand. 

Then  followed  the  contestation,  which  was  ih« 
answer  made  by  the  defendant,  either  confessing 
or  denying  the  plaintiff's  right. 

To  this  the  plaintiff  might  present  a  replica,  or  re 
plication  ;  and  the  defendant  might  add  a  diiplica, 
or  rcjoin(ier.  Here  the  pleadings  originally  tnded, 
and  new  facts  could  only  be  presented  upon  tifida 
vit  that  they  had  but  just  come  to  the  knowledge 
of  the  party  pleading  them. 

8.  The  history  of  a  lawsuit  in  the  present  dis- 
trict courts  of  the  state  will  give  the  reader  an  in- 
sight into  their  system  of  pleading  and  practice, 
and  show  how  far  the  ancient  form  of  the  [)lea(ling8 
has  been  preserved,  and  wherein  it  has  been  modi- 
fied. 

It  will  be  recollected  that  the  district  courts  have 
jurisdiction  in  all  cases  without  regard  to  any  dis- 
tinction between  law  and  equity.  There  is  no  dif- 
ference in  the  mode  of  proceeding  in  the  apj)lica- 
tion  of  legal  and  equitable  remedies,  nor  are  there 
any  forms  of  action  adapted  to  different  injuries. 
The  pleadings  in  all  cases  consist  of  the  petition 
and  answer.  Demands  entitling  a  party  to  legal 
and  equitable  relief  can  be  united  in  the  same  ac- 
tion :  an  equitable  defence  can  be  opposed  to  a 
legal  demand.  The  court  may  so  frame  its  judg- 
ment as  to  afford  all  the  relief  required  by  the  na- 
ture of  the  case  and  which  could  be  granted  by  a 
court  of  law  or  equity,  and  may  also  grant  all  such 
orders,  writs,  and  process  as  may  be  necessary  to 
make  the  relief  granted  eff"ectual. 

There  being  no  forms  of  action,  the  rules  of 
pleading  known  to  the  common-law  and  equity 
systems  are  only  applicable  so  far  as  they  are  the 
rules  of  sound  logic  and  conduce  to  a  clear  and 
methodical  statement  of  the  cause  of  action  or 
ground  of  defence.  No  rule  of  pleading  which  is 
purely  technical  and  has  reference  to  the  form  of 
proceeding  has  any  place  in  the  system.  The 
pleadings  are  the  same  in  cases  of  legal  and  equi- 
table cognizance,  and  the  application  of  legal  or 
equitable  principles  to  the  decision  of  the  case  pre- 
sented depends  upon  the  facts,  and  not  upon  the 
manner  of  stating  them, 

9.  Every  suit  is  commenced  by  the  filing  of  the 
petition,  which  is  a  written  statement  of  the  cause 
of  action,  and  of  the  relief  sought  by  the  plaintiflF. 
The  petition  should  contain  certain  formal  but  es- 
sential parts,  the  omission  of  any  of  which  would 
render  it  defective.    They  are — 

The  marginal  venue:   "The  State  of  Texas, 

County  of  ;"  the  term  of  the  court:  "District 

Court,   Term,  A,D.  18—;"  the  address:  "To 

the  District  Court  of  said  County  ;"  the  commence- 
ment, consisting  of  the  names  and  residences  of  the 
parties;  the  statement  of  the  cause  of  action,  which 
should  be  a  clear,  logical,  and  succinct  statement 
of  the  facts  which,  upon  the  general  denial,  the 
plaintiff"  would  be  bound  to  prove,  and  which  if 
admitted  will  entitle  him  to  a  judgment;  the 
statement  of  the  nature  of  the  relief  sought ;  the 
signature  of  the  party  or  his  attorney.  The  peti- 
tion must  be  filed  with  the  elerk  of  the  proper 
county,  whose  duties  are  the  same  as  at  oDmmon 
law,  to  indorse  upon  it  the  day  on  which  it  was 
filed,  together  with  its  proper  file-number.  The 
clerk  must  also  make  an  entry  of  the  case  in  his 
docket. 

Next  follows  the  citation,  or  writ,  which  is  issued 
by  th«  clerk,  .oad  dated,  tested,  and  signed  by  him. 
Its  style  is,  "The  State  of  Texas."  It  is  ad- 
dressed to  the  sheriff  of  the  county  in  which  the 
defendant  is  alleged  to  be  found,  and  commands 
him  to  summon  the  defendant  to  appear  at  the  next 
term  of  the  court  to  answer  the  plaintiff's  petition, 
a  certified  copy  of  which  accompanies  the  writ 


TEXAS 


592 


THALER 


The  citatio  1  is  executed  by  the  sheriff  like  an  ori- 
ginal writ. 

10.  There  are  certain  auxiliary  writs,  which  may 
be  sued  out  at  the  commencement  or  during  the  pro- 
^•Tess  of  the  suit,  whereby  the  effects  of  the  de- 
fendant or  the  property  in  controversy  may  be  seized 
by  the  sheriff  and  held  until  replevied  until  the 
final  termination  of  the  suit,  so  that  it  may  be  sub- 
ject to  the  judgment  rendered  therein,  or  the  de- 
fendant is  restrained  from  the  commission  of  some 
act  until  the  question  of  right  between  the  parties 
shall  be  determined.  These  are  the  writs  of  attach- 
ment, (jarniahment,  nequestration,  and  injunction.  But 
there  is  no  peculiarity  in  these  writs  under  the 
Texas  practice  which  renders  it  necessary  to  ex- 
plain them  here. 

•  When  the  citation  has  been  served,  the  defend- 
ant is  in  court,  and  must  file  his  answer  within  the 
time  prescribed  by  law  for  pleading.  In  those 
counties  in  which  the  term  of  the  court  is  limited 
to  one  week,  the  answer  must  be  filed  on  or  before 
the  fourth  day  of  the  terra  ;  if  the  term  is  not  so 
limited,  the  answer  must  be  filed  on  or  before  the 
fifth  day ;  and  this  is,  accordingly,  called  the  ap- 
pearance-day. 

Upon  the  morning  of  the  appearance-day  the 
cases  upon  the  appearance  docket  are  called  over 
by  the  judge  in  the  order  in  which  they  have  been 
filed.  If  the  defendant  in  any  suit  has  failed  to 
appear  by  his  answer,  a  final  judgment  by  default 
may  be  rendered  against  him,  and  a  short  entry  to 
that  effect  is  made  upon  the  judge's  docket.  If 
the  cause  of  action  is  liquidated,  and  established 
by  an  in.^trument  in  writing,  the  amount  due  may 
be  computed  by  the  clerk,  or  may  be  found  by  a 
jury,  upon  a  writ  of  inquiry,  if  asked  for  by  either 
party.  Where  the  cause  of  action  is  unliquidated, 
the  damages  must  be  assessed  by  a  jury  upon  the 
writ  of  inquiry  when  the  case  is  reached  on  the 
regular  call  of  the  docket.  When  the  damages 
have  been  assessed  by  the  clerk,  or  jury,  as  the 
case  may  be,  judgment  is  accordingly  entered  upon 
the  minutes. 

11.  The  defendant,  if  he  does  not  intend  to  re- 
sist the  suit,  may  appear  and  confess  judgment ;  or, 
if  he  has  pleaded,  he  may  withdraw  his  answer, 
and  suffer  judgment  by  nil  dicit, — in  either  of 
which  cases  the  appearance  is  a  waiver  of  all 
errors.  If  the  defendant  intends  to  resist  the 
plaintiff's  recovery,  he  must,  within  the  time  pre- 
scribed for  pleading,  file  his  answer. 

The  amwer  includes  all  defensive  pleading,  and 
may  consist  of  as  many  several  matters,  whether 
of  law  or  of  fact,  as  the  defendant  may  deem  ne- 
cessary for  his  defence  and  which  may  be  pertinent 
to  the  cause.  They  must  all  be  filed  at  the  same 
time,  and  in  the  due  order  of  pleading. 

The  answer  may  be  by  demurrer,  usually  termed 
an  exception,  or  hy  plea,  or  by  both.  The  demurrer 
is  either  general  or  special;  and  its  office  is  the  same 
as  under  the  common-law  system  of  pleading.  It  is 
not,  however,  an  admission  of  the  allegations  of  ftxct, 
but  simply  calls  upon  the  court  to  say  whether, 
granting  all  the  facts  to  be  as  the  plaintiff  states  them, 
any  cause  of  action  is  shown  requiring  an  answer. 

A  plea  is  an  answer  either  denying  the  truth  of 
the  matter  alleged  in  the  petition,  or  admitting  its 
truth,  and  showing  some  new  matter  to  avoid  its 
effect. 

The  exception  or  plea  may,  as  at  common  law, 
be  either  dilatory  or  peremptory. 

The  due  order  of  pleading  above  referred  to  is 
the  ancient  and  what  is  said  to  be  the  natural  order 
of  i)leading.    See  Pleadixg. 

12.  The  answer  may  embrace  one  or  all  of  the 
grounds  of  defence,  provided  only  that  they  be 
presented  in  the  due  order  of  pleading. 

The  defendant  may  also,  by  a  plea  in  reconven- 
tion, which  i.s  analogous  to  the  cross-bill  of  the 
equity  system,  show  that  he  has  a  claim  against 


the  plaintiff  similar  in  Its  nature  to  that  set  out  ia 
the  petition,  and  pray  for  judgment  over  against 
the  plaintift";  and,  upon  the  trial,  judgment  will  b« 
given  for  that  party  who  may  establish  the  largest 
claim,  for  the  excess  of  his  claim  over  that  of  hii 
opponent. 

The  pleading  may  proceed  one  step  further 
the  plaintiff  may,  by  a  replication,  set  up  new  mat- 
ter in  avoidance  of  that  relied  upon  by  the  de- 
fendant in  his  answer;  or  he  may,  as  at  common 
law,  demur  to  the  answer. 

No  formal  joinder  in  demurrer  or  in  issue  is  ne- 
cessary. The  demurrer  is  to  be  decided  by  the 
court  before  the  questions  of  fact  are  submitted  to 
the  jury.  The  party  against  whom  judgment  is 
rendered  sustaining  the  demurrer  may  abide  by 
his  pleadings, — in  which  case  judgment  final  will 
be  given  against  him ;  or  he  may,  under  leave  of 
the  court,  remove  the  objection  by  amendment. 

The  questions  of  Jaw  having  been  thus  disposed 
of,  the  issues  of  fact  arising  upon  the  pleadings  are 
submitted  to  the  jury  in  the  same  manner  as  at 
common  law,  who  may  respond  thereto  by  a  general 
or  special  verdict,  upon  which  the  judgment  of  the 
court  is  then  rendered. 

13.  The  County  Court,  of  which  there  is  one  for 
each  county,  sitting  as  a  court  of  probate,  has 
power  to  take  probate  of  wills,  to  appoint  guard- 
ians, to  grant  letters  testamentary  and  of  adminis- 
tration, to  settle  the  accounts  of  executors,  adminis- 
trators, and  guardians,  and  to  transact  all  business 
appertaining  to  the  estates  of  deceased  persons, 
minors,  idiots,  lunatics,. -and  persons  of  unsound 
mind,  and  the  settlement,  partition,  and  distribu- 
tion of  the  estates  of  decedents.  The  court  sits 
once  in  each  month.  The  pleadings  are  committed 
to  writing,  but  generally  without  any  regard  to 
form  ;  and  no  uniform  system  has  been  adopted. 

Justices  of  the  Peace,  of  whom  there  are  a  con- 
venient number  in  each  county,  have  jurisdiction 
to  try  and  determine  criminal  actions  against  per- 
sons accused  of  the  following  offences :  simple 
assaults  and  batteries ;  affrays ;  violations  of  th« 
penal  laws  against  gaming,  where  the  highest  pen- 
alty does  not  exceed  one  hundred  dollars;  viola- 
tions of  the  laws  prohibiting  the  sale  of  liquor  to 
slaves  and  free  persons  of  color,  and  trading  with 
slaves,  concurrently  with  the  district  courts;  and 
of  petty  offences  committed  by  slaves  and  free  per- 
sons of  color;  and  cases  of  vagrants  and  disorderly 
persons  exclusively. 

14.  In  civil  cases  they  have  jurisdiction  of 
suits  and  actions  in  behalf  of  the  state,  or  any 
county  thereof,  or  any  individual,  to  recover  penal- 
ties, fines,  and  forfeitures  not  exceeding  one  hundred 
dollars  in  amount;  of  suits  in  behalf  of  the  state, 
or  of  any  county,  for  any  violation  of  the  revenue 
laws,  where  the  matter  in  controversy  does  not 
exceed  one  hundred  dollars.  They  have  jurisdic- 
tion of  suits  and  actions  for  the  recovery  of  money 
on  any  account,  bill,  bond,  note,  or  other  instru- 
ment in  writing  ;  of  suits  for  the  recovery  of  speci- 
fied articles,  or  the  value  thereof;  of  suits  for  torts, 
trespasses,  and  other  injuries  to  person  or  property, 
where  the  amount  claimed,  or  the  value  of  the 
articles,  or  the  damages  sosight  to  be  recovered,  do 
not  exceed  one  hundred  dollars,  exclusive  of  inte- 
rest and  costs;  of  actions  for  forcible  entry  and 
detainer,  and  for  the  recovery  of  rent  and  distress. 

They  hold  monthly  terms.  The  pleadings  con- 
sist of  oral  altercations,  which  are  taken  down  in 
brief  by  the  justice  and  entered  in  a  docket  to  be 
kept  by  him  for  that  purpose. 

THAINLAND.   In  Old  English  Law. 

The  land  which  was  granted  by  the  Saxon 
kings  to  their  thains  or  thanes  was  so  called. 
Crabb,  Comm.  Law,  10. 

THALER.    A  silver  coin  of  Germany. 


THANE 


593 


THREAD 


The  composition  and  value  of  this  piece  for- 
merly varied  considerably  in  different  portions 
of  the  country, — the  value  rangin;^  from  95 
to  105  cents.  But  the  convention  of  the 
German  states  in  1838  fixed  the  vreight  of 
the  thaler  at  343.8  grains  troy,  and  the  fine- 
ness at  750  thousandths,  vrhich  is  the  only 
standard  now  in  use.  The  value,  at  this  rate, 
is  72  cents.  The  name  (thaler)  is  supposed 
fco  have  originated  from  the  Gorman  word 
ihal,  a  dale,  or  valley, — the  first  thalers  having 
been  coined  in  the  valley  of  Joachim,  from 
which  it  obtained  the  name  of  "Joachim's 
thaler."  From  this  coin  the  word  dollar, 
as  applied  to  Spanish  and  American  coins,  is 
derived.    See  Dollar. 

THANE  (Sax.  thenian,  to  serve).  In 
Saxon  Law.  A  word  which  sometimes 
signifies  a  nobleman,  at  others  a  freeman,  a 
magistrate,  an  officer,  or  minister.  A  tenant 
of  the  part  of  the  king's  lands  called  the 
king's  "thaneage."    Termes  de  la  Ley. 

THEFT.    A  popular  term  for  larceny. 

In  Scotch  Law.  The  secret  and  felonious 
abstraction  of  the  property  of  another  for  sake 
of  lucre,  without  his  consent.  Alison,  Crim. 
Law,  250. 

THEFT-BOTE.  The  act  of  receiving  a 
man's  goods  from  the  thief,  after  they  had 
been  stolen  by  him,  with  the  intent  that  he 
shall  escape  punishment. 

This  is  an  offence  punishable  at  common 
law  by  fine  and  imprisonment.  Hale,  PI. 
Cr.  130.    See  Compounding  a  Felony. 

THEOCRACY.  A  species  of  govern- 
ment which  claims  to  be  immediately  directed 
by  God. 

La  religion^  qui,  dans  Vantiquite,  s'aaaocia  souvent 
au  despotisme,  pour  regner  par  son  bras  ou  d  son  om- 
brage,  a  quelquefois  teufe  de  rigner  seule.  C'est  ce 
qu'elle  appelait  le  regne  de  Dieu,  la  th^ocratie. 
Matter,  De  I'lnfluence  des  Moeurs  sur  les  Lois,  et  de 
rinfluence  des  Lois  sur  les  Mceurs,  189.  (Religion, 
which  in  former  times  frequently  associated  itself 
with  despotism,  to  reign  by  its  power  or  under  its 
shadow,  has  sometimes  attempted  to  reign  alone ; 
and  this  she  has  called  the  reign  of  God, — theo- 
cracy.) 

THIEF.  One  who  has  been  guilty  of  lar- 
ceny or  theft. 

THINGS.  By  this  word  is  understood 
every  object,  except  man,  which  may  become 
an  active  subject  of  right.  Code  du  Canton 
de  Berne,  art.  332.  In  this  sense  it  is  op- 
posed, in  the  language  of  the  law,  to  the 
word  persons.    See  Property  ;  Res. 

THIRD-BOROW.  In  Old  English 
Law.  A  constable.  Lambard,  Duty  of 
Const.  6 ;  28  Hen.  VIII.  c.  10. 

THIRD  PARTIES.  A  term  used  to  in- 
clude all  persons  who  are  not  parties  to  the 
contract,  agreement,  or  instrument  of  writing 
by  which  their  interest  in  the  thing  conveyed 
is  sought  to  be  affected.  1  Mart.  La.  n.  s. 
384.    See,  also,  2  La.  425  ;  6  Mart.  La.  528. 

But  it  is  difficult  to  give  a  very  definite 
idea  of  third  persons;  for  sometimes  those 
vrho  are  not  parties  to  the  contract,  ":>ut  who 

Vol.  II.— 38 


represent  the  rights  of  the  original  parties, 
as  executors,  are  not  to  be  considered  third 
persons.  See  1  Bouvier,  Inst.  n.  13.'i5  el  snq, 
THIRD  PENNY.  In  Old  English 
Law.  Of  the  fines  and  other  profits  of  the 
county  courts  (originally,  when  those  courts 
had  superior  jurisdiction,  before  other  courts 
were  created)  two  parts  were  reserved  to 
the  king,  and  a  third  part,  or  penny,  to  the 
earl  of  the  county.  See  Denarius  Tertius 
CoMiTATUs;  Kennett,  Paroch.  Antiq.  418; 
Cowel. 

THIRLAGE.     In  Scotch  Law.  A 

servitude  by  which  lands  are  astricted  or 
thirled  to  a  particular  mill,  and  the  possessors 
bound  to  grind  their  grain  there,  for  the  pay- 
ment of  certain  multures  and  sequels  as  the 
agreed  price  of  grinding.  Erskine,  Inst.  2, 
9.  18. 

THOROUGHFARE.  A  street  or  way 
opening  at  both  ends  into  another  street  or 
public  highway,  so  that  one  can  go  through 
and  get  out  of  it  without  returning.  It 
differs  from  a  cul  de  sac,  which  is  open  only 
at  one  end. 

Whether  a  street  which  is  not  a  thorough- 
fare is  a  highway  seems  not  fully  settled. 
1  Ventr.  Ch.  189 ;  1  Hawkins,  PI.  Cr.  c.  76, 
^1.  In  a  case  tried  in  1790,  where  the  locus 
in  quo  had  been  used  as  a  common  street  for 
fifty  years,  but  was  no  thoroughfare.  Lord 
Kenyon  held  that  it  would  make  no  difference ; 
for  otherwise  the  street  would  be  a  trap  to 
make  people  trespassers.  11  East,  375.  This 
decision  in  several  subsequent  cases  was 
much  criticized,  though  not  directly  over- 
ruled. 5  Taunt.  126 ;  5  Barnew.  &  Aid. 
456  ;  3  Bingh.  447  ;  1  Campb.  260  ;  4  Ad.  & 
E.  698.  But  in  a  recent  English  case  the 
decision  of  Lord  Kenyon  was  affirmed  by  the 
unanimous  opinion  of  the  court  of  queen'? 
bench.  The  doctrine  established  in  the  latter 
case  is  that  it  is  a  question  for  the  jury,  ou 
the  evidence,  M'hether  a  place  which  is  not  a 
thoroughfare  is  a  highway  or  not.  14  Eng. 
L.  &  Eq.  69.  And  see  28  id.  30.  In  the 
United  States  there  are  but  few  cases  in 
which  this  question  has  been  discussed ; 
though  in  Rhode  Island  it  has  been  deter- 
mined that  a  street  terminating  upon  private 
land  and  extending  neither  to  another  way, 
a  mill,  a  market,  nor  other  public  place,  is 
incapable  of  dedication  to  the  public  as  a 
highway.  2  R.  I.  172.  And  a  similar  de- 
cision has  been  made  in  New  York.  23 
N.  Y.  103.  And  see  23  N.  H.  331 ;  7  Johns. 
N.  Y.  106. 

THOUGHT.  The  operation  of  the  mind. 
No  one  can  be  punished  for  his  mere  thoughts, 
however  wicked  they  may  be.  Human  laws 
cannot  reach  them, — first,  because  they  are 
unknown  ;  and  secondly,  unless  made  mani- 
fest by  some  action,  they  are  not  injurious  to 
any  one ;  but  when  they  manifest  themselves, 
then  the  act  which  is  the  consequence  mav 
be  punished.    Dig.  50.  16.  225. 

THREAD.  A  figurative  expression  used 
to  signify  the  central  line  of  a  stream  or 


THREAT 


594 


TIDE-WATER 


watercourse.  Hargrave,  Law  Tracts,  5  ;  4 
Mas.  C.  0.  397 ;  Holt,  490.  See  Filum  Aqu^  ; 
Island  ;  Watercourse  ;  River. 

THREAT.     In  Criminal  Law.  A 

menace  of  destruction  or  injury  to  the  lives, 
character,  or  property  of  those  against  whom 
it  ^8  made. 

ciending  threatening  letters  to  persons  for 
tiie  purpose  of  extorting  money  is  said  to  be 
a  misdemeanor  at  common  law.  Hawkins, 
PI.  Cr.  b.  1,  c.  53,  s.  1;  2  Russell,  Crimes, 
575  ;  2  Chitty,  Crim.  Law,  841 ;  4  Blackstone, 
Comm.  126.  To  be  indictable,  the  threat 
must  be  of  a  nature  calculated  to  overcome 
a  firm  and  prudent  man  ;  but  this  rule  has 
reference  to  the  general  nature  of  the  evil 
threatened,  and  not  to  the  probable  eflfect  of 
the  threat  on  the  mind  of  the  particular  party 
addressed.  1  Den.  Cr.  Cas.  512.  The  party 
who  makes  a  threat  may  be  held  to  bail  for 
his  good  behavior.  See  Corny ns,  Dig.  Bat- 
tery (D). 

in  Evidence.  Menace. 

When  a  confession  is  obtained  from  a  per- 
son accused  of  crime,  in  consequence  of  a 
threat,  evidence  of  such  confession  cannot 
be  received,  because,  being  obtained  by  the 
torture  of  fear,  it  comes  in  so  questionable 
a  shape  that  no  credit  ought  to  be  given  to 
it.  1  Leach,  Cr.  Cas.  263.  This  is  the  gene- 
ral principle ;  but  what  amounts  to  a  threat  is 
not  so  easily  defined.  It  is  proper  to  observe, 
however,  that  the  threat  must  be  made  by  a 
person  having  authority  over  the  prisoner,  or 
oy  another  in  the  presence  of  such  author 
ized  person  and  not  dissented  from  by  the 
latter.    8  Carr.  &  P.  733.    See  Confession. 

THREE-DOLLAR  PIECE.  A  gold 
coin  of  the  United  States,  of  the  value  of 
three  dollars. 

The  three-dollar  piece  was  authorized  by  the 
Beventh  section  of  the  act  of  Feb.  21,  1853.  10 
U.  S,  Stat,  at  Large.  It  is  of  the  same  fineness 
as  the  other  gold  coins  of  the  United  States.  The 
weight  of  the  coin  is  77.4  grains.  The  devices 
upon  this  coin,  and  upon  the  gold  dollar  also,  are 
not  authoritatively  fixed  by  act  of  congress,  as  is 
the  case  with  all  the  other  gold  coins  of  the  United 
States  ;  and  hence  greater  latitude  was  allowed  to 
the  treasury  department  and  the  officers  of  the 
mint  in  fixing  these  devices.  The  obverse  of  the 
piece  presents  an  ideal  head,  emblematic  of  Ame 
rica,  enclosed  within  the  national  legend;  on  the 
reverse  is  a  wreath  composed  of  wheat,  cotton, 
corn,  and  tobacco,  the  staple  productions  of  the 
United  States ;  within  the  wreath  the  value  and 
date  of  the  coin  are  given. 

The  three-dollar  piece  is  a  legal  tender  in  pay 
ment  of  any  amount. 

THROAT.  In  Medical  Jurisprudence 

The  anterior  part  of  the  neck.  Dunglison 
Med.  Diet.;  Cooper,  Diet;  2  Good,  Study  of 
Med.  302;  1  Chitty,  Med.  Jur.  97,  n. 

The  word  throat,  in  an  indictment  which 
charged  the  defendant  with  murder  by  cut- 
ting the  throat  of  the  deceased,  does  not 
mean,  and  is  not  to  be  confined  to,  that  part 
of  the  neck  which  is  scientifically  called  the 
throat,  but  signifies  that  which  is  commonly 
called  the  throat.    6  Carr.  &  P.  401. 


TICK.  Credit:  as,  if  a  servant  usually' 
buy  for  the  master  upon  tick,  and  the  servant 
buy  something  without  the  master's  order, 
yet  if  the  master  were  trusted  by  the  trader 
he  is  liable.  1  Show.  95  ;  3  Kebl.  625  ;  10 
Mod.  Ill;  3  Esp.  214;  4  id.  174. 

TIDE.    The  ebb  and  flow  of  the  sea. 

The  law  takes  notice  of  three  kinds  of 
tides,  viz.:  the  high  spring  tides,  which  are 
the  fluxes  of  the  sea  at  those  tides  which 
happen  at  the  two  equinoctials;  the  spring 
tides,  which  happen  twice  every  month,  at 
the  full  and  change  of  the  moon ;  the  neap 
or  ordinary  tides,  which  happen  between  the 
full  and  change  of  the  moon,  twice  in  twenty- 
four  hours.  Angell,  Tide-Wat.  68.  The 
changeable  condition  of  the  tides  produces, 
of  course,  corresponding  changes  in  the  line 
of  high-water  mark.  Now,  inasmuch  as  the 
soil  of  all  tidal  waters  up  to  the  limit  of  high- 
water  mark,  at  common  law,  is  in  the  crown, 
or,  in  this  country,  in  the  state,  it  is  import- 
ant to  ascertain  what  is  high-water  mark, 
in  legal  contemplation,  considered  as  the 
boundary  of  the  royal  or  public  ownership. 
In  a  recent  English  case  this  ownership  has 
been  held  to  be  limited  by  the  average  of  the 
medium  high  tides  between  the  spring  and 
the  neap  in  each  quarter  of  a  lunar  revolu- 
tion during  the  year,  excluding  only  extraor- 
dinary catastrophes  or  overflows.  4  DeGex, 
M.  &  G.  206.  See,  also,  3  Barnew.  &  Aid. 
967;  5  id.  268;  2  Dougl.  629;  7  Pet.  324 ;  1 
Pick.  Mass.  180;  2  Johns.  N.  Y.  357 ;  River. 

TIDE-WATER.  Water  which  flows 
and  reflows  with  the  tide.  All  arms  of  the 
sea,  bays,  creeks,  coves  or  rivers,  in  which 
the  tide  ebbs  and  flows,  are  properly  denomi- 
nated tide-waters. 

2.  The  term  tide-water  is  not  limited  to 
water  which  is  salt,  but  embraces,  also,  so 
much  of  the  water  of  fresh  rivers  as  is  pro- 
pelled backwards  by  the  ingress  and  pressure 
of  the  tide.  5  Coke,  107;  2  Dougl.  441;  6 
Clark  &  F.  Hou.  L.  628  ;^  7  Pet.  324.  The 
supreme  court  of  the  United  States  has  de- 
cided that,  although  the  current  of  the  river 
Mississippi  at  New  Orleans  may  be  so 
strong  as  not  to  be  turned  backwards  by  the 
tide,  yet  if  the  efi"ect  of  the  tide  upon  the 
current  is  so  great  as  to  occasion  a  regular 
rise  and  fall  of  the  water,  it  might  properly 
be  said  to  be  within  the  ebb  and  flow  of  the 
tide.  7  Pet.  324.  The  flowing,  however,  of 
the  waters  of  a  lake  into  a  river,  and  their 
reflowing,  being  caused  by  the  occasional 
swell  and  subsidence  of  the  lake,  and  not  by 
the  ebb  and  flow  of  regular  tides,  do  not  con 
stitute  such  a  river  a  tidal  or,  technically,  navi 
gable  river.  20  Johns.  N.  Y.  98.  And  see 
17  Johns.  N.  Y.  195 ;  2  Conn.  481 ;  Woolrych, 
Waters,  c.  ii. ;  Angell,  Tide-Wat.  c.  iii. 

3.  The  bed  or  soil  of  all  tide-waters 
belongs,  in  England,  to  the  crown,  and  in 
this  country  to  the  state  in  which  they  lie; 
and  the  waters  themselves  are  public:  so 
that  all  persons  may  use  the  same  for  the 
purposes  of  navigation  and  fishery,  unlesi 


TIE 


595 


TIME 


restrained  by  law.  5  Barnew  &  A.  304  ;  1 
Macq.  IIou.  L.  49  ;  27  Eng.  L.  &  Eq.  242 ;  4 
Ad.  &  E.  384;  8  id.  329 ;  Angell.Watercourses, 
c.  iii.,  xiii.  In  England,  the  power  of  parlia- 
ment to  restrain  or  improve  these  rights  is 
held  to  be  absolute.  4  Barnew.  &  C.  598.  In 
this  country,  such  a  power  is  subject  to  the 
limitations  of  the  federal  constitution  ;  and 
while  both  the  general  and  state  governments 
may  adopt  measures  for  the  improvement  of 
navigation,  7  Pick.  Mass.  209;  6  Rand.  Va. 
245  ;  14  Serg.  &  R.  Penn.71 ;  4  Rawle,  Penn.  9  ; 
9  Watts,  Penn,  1 19 ;  9  Conn.  436,  and  the  states 
may  grant  private  rights  in  tide-waters,  pro- 
vided they  do  not  conflict  with  the  public 
right  of  navigation,  21  Pick.  Mass.  344; 
23  id.  360,  yet  neither  the  general  nor  the 
state  governments  have  the  power  to  destroy 
or  materially  impair  the  right  of  navigation. 
The  state  governments  have  no  such  power, 
because  its  exercise  would  be  in  collision 
with  the  laws  of  congress  regulating  com- 
merce, 9  Wheat.  1 :  the  general  government 
has  no  such  power,  because  the  states  have 
never  relinquished  to  it  such  a  power  over  the 
waters  within  their  jurisdictional  limits.  2 
Pet.  245.  And  see  Bridge.  As  to  the  power 
of  the  state  to  regulate  the  public  fisheries, 
see  Fishery.  And  see,  generally.  River; 
Wharf. 

TIE.  When  two  persons  receive  an  equal 
number  of  votes  at  an  election,  there  is  said 
to  be  a  tie. 

In  that  case  neither  is  elected.  When  the 
votes  are  given  on  any  question  to  be  decided 
by  a  deliberative  assembly,  and  there  is  a 
tie,  the  question  is  lost.    See  Majority. 

TIEL.  An  old  manner  of  spelling  tel: 
such  as,  nul  tiel  record,  no  such  record. 

TIEMPO  INHABIL  (Span.).  In 
Louisiana.  A  time  when  a  man  is  not 
able  to  pay  his  debts. 

A  man  cannot  dispose  of  his  property,  at 
such  a  time,  to  the  prejudice  of  his  creditors. 
4  Mart.  La.  n.  s.  292;  3  Mart.  La.  270;  10 
id.  70 

TIERCE.  A  liquid  measure,  contain- 
ing the  third  part  of  a  pipe,  or  forty-two 
gallons. 

TIGNI IMMITTENDI  (Lat.).  In  Civil 
Law.  A  servitude  which  confers  the  right 
of  inserting  a  beam  or  timber  from  the  wall 
of  one  house  into  that  of  a  neighboring  house, 
in  ordef  that  it  may  rest  on  the  latter  and 
that  the  wall  of  the  latter  may  bear  this 
weight.    Dig.  8.  2.  36  ;  8.  5.  14. 

TIMBER-TREES.  Oak,  ash,  elm,  and 
such  other  trees  as  are  commonly  used  for 
building.  2  Blackstone,  Comm.  28.  But  it 
aas  been  contended,  arguendo,  that  to  make 
]t  timber  the  trees  must  be  felled  and  severed 
from  the  stock.  6  Mod.  23 ;  Stark ie,  Slander, 
9.  See  12  Johns.  N.  Y.  239 ;  2  Belt,  Suppl. 
Ves.  Jr. ;  Waste. 

TIME.  The  measure  of  duration.  Lapse 
of  time  often  furnishes  a  presumption,  strong-er 


or  weaker  according  to  the  length  of  time 
which  has  passed,  of  the  truth  of  coriain 
facts,  such  as  the  legal  title  to  righls,  pay- 
ment of  or  release  from  debts.  See  Pre- 
scription; Limitations. 

Generally,  in  computing  time,  one  day  is 
included  and  one  excluded,  2  P.  A.  Browne, 
Penn.  18;  4  T.  B.  Monr.  Ky.  404;  Ala. 
N.  s.  547 ;  see  2  Harr.  Del.  461 ;  5  Blackf. 
Ind.  319  ;  16  Ohio,  408;  10  Rich.  So.  C.  395; 
excluding  the  day  on  which  an  act  is  done, 
when  the  computation  is  to  be  made  from  -luch 
I  an  act,  15  Ves.  Ch.  248 ;  1  Ball  &  B.  Ch.  Jr.  196 ; 
I  16  Cow.  N.  Y.  059;  11  Mass.  204;  1  Pick. 
I  Mass.  485;  1  Mete.  Mass.  127;  Anth.  179; 
3  Den.  N.  Y.  12;  1  Mod.  8;  27  Ala.  n.  s. 
311;  19  Mo.  60;  see  18  Conn.  18;  inclu- 
ding it,  according  to  Dougl.  463;  Ilob.  139; 
3  Term,  623 ;  3  East,  417 ;  2  P.  A.  Browne, 
Penn.  18;  15  Mass.  193;  4  Blackf.  Ind.  320; 
18  How.  151 ;  except  where  the  exclusion  will 
prevent  forfeiture.  Hob.  139;  2  Camp)).  294; 
Cowp.  714;  4  Me.  298.  See  2  Sharswood, 
Blackst.  Comm.  140,  n.  3 ;  13  Viner,  Abr.  52, 
499;  15  id.  554;  20  id.  266;  Comyns,  Dig. 
Temps;  1  Roper,  Leg.  518;  Graham,  Pract. 
185;  2  Pothier,  Obi.  Evans  ed.  50.  Time 
from  and  after  a  given  day  excludes  that 
day.  1  Pick.  Mass.  485  ;  7  J.  J.  Marsh.  Ky. 
202:  1  Blackf.  Ind.  392;  9  Cranch,  104;  4 
N.  II.  267;  3  Penn.  200;  1  Nott  &  M'C.  So. 
C.  565.    But  see  9  Cranch,  104. 

In  Pleading.  A  point  in  or  space  of 
duration  at  or  during  which  some  fact  is 
alleged  to  have  been  committed. 

In  criminal  actions,  both  the  day  and  the 
year  of  the  commission  of  the  offence  must 
appear;  but  there  need  not  be  an  express 
averment,  if  they  can  be  collected  from  the 
whole  statement.  Comyns,  Dig.  Indicirnent 
(G  2);  5  Serg.  &  R.  Penn.  315.  The  pro- 
secutor may  give  evidence  of  an  offence  com- 
mitted on  any  day  which  is  previous  to  the 
finding  of  the  indictment,  Archbold.  Crim. 
PI.  95;  Phillipps,  Ev.  203;  9  East,  157;  5 
Serg.  &  R.  Penn.  316;  but  a  day  subsequent 
to  the  trial  must  not  be  laid.  Add.  Penn.  36. 

In  mixed  and  real  actions,  no  particular 
day  need  be  alleged  in  the  declaration.  3 
Chitty,  Plead.  620-635 ;  Gould,  Plead,  c.  3, 1 
99;  Stephen,  Plead.  314;  Mete.  Yelv.  182  a, 
n. ;  Croke  Jac.  311. 

In  personal  actions,  all  traversable  affirma- 
tive facts  should  be  laid  as  occurring  on 
some  day,  Gould,  Plead,  c.  3,  §  63;  Stephen, 
Plead.  292;  Yelv.  94;  but  no  day  need  be 
alleged  for  the  occurrence  of  negative  matter, 
Comyns,  Dig.  Pleader  (C  19);  Plowd.  24  a; 
and  a  failure  in  this  respect  is,  in  general, 
aided  after  verdict.  13  East,  407.  Where  the 
cause  of  action  is  a  trespass  of  a  permanent 
nature  or  constantly  repeated,  it  should  be 
laid  with  a  continiiando,  which  title  see. 
The  day  need  not,  in  general,  be  the  actual 
day  of  commission  of  the  fact,  2  Saund.  5  a; 
Coke,  Litt.  283  a:  12  Johns  N.  Y.  287;  3 
N.  II.  299:  if  the  actual  day  is  not  stated,  it 
should  be  laid  under  a  videlicet.  Gould,  Plead, 
c.  3,  §  63.    The  exact  time  may  become  ma- 


TIPPLING-HOUSE  596 


torial,  and  must  then  be  correctly  laid,  Cowp. 
671;  4  Esp.  152;  6  Term,  463;  10  Barnew. 
&  C.  215 ;  1  Crompt.  &  J.  Exch.  391 ;  4  Serg. 
&  R.  Penn.  576;  7  id.  405;  1  Stor.  C.  C. 
528  :  as,  the  time  of  execution  of  an  execu- 
tory written  document.  Gould,  Plead,  c.  3, 
§  67.  The  defence  must  follow  the  time 
laid  in  the  declaration,  if  time  is  not  ma- 
terial, IChitty,  Plead.  509;  1  Saund,  14,  82; 
need  not  when  it  becomes  material,  2  Saund. 
5  a,  6  (n.  3),  or  in  pleading  matter  of  dis- 
charge, 2  Burr.  944;  2  Wils.  150;  Plowd. 
46;  2  Strange,  944,  or  a  record.  Gould, 
Plead,  c.  3,  f  83. 

TIPPLING-HOUSE.  A  place  where 
spirituous  liquors  are  sold  and  drunk  in  vio- 
lation of  law.  Sometimes  the  mere  selling 
is  considered  as  evidence  of  keeping  a  tippling- 
house. 

TIPSTAFF.  An  officer  appointed  by 
the  marshal  of  the  court  of  king's  bench, 
to  attend  upon  the  judges  with  a  kind  of  rod 
or  staff  tipped  with  silver. 

In  the  United  States,  the  courts  sometimes 
appoint  an  officer  who  is  known  by  this  name, 
whose  duty  it  is  to  wait  on  the  court  and 
serve  its  process, 

TITHES.  In  English  Law.  A  right 
to  the  tenth  part  of  the  produce  of  lands,  the 
stocks  upon  lands,  and  the  personal  industry 
of  the  inhabitants.  These  tithes  are  raised 
for  the  support  of  the  clergy. 

Fortunately,  in  the  United  States,  the 
clergy  can  be  supported  by  the  zeal  of  the 

Eeople  for  religion,  and  there  are  no  tithes, 
ee  Cruise,  Dig.  tit.  22;   Ayliffe,  Parerg. 
604. 

TITHING.  In  English  Law.  For- 
merly, a  district  containing  ten  men,  with 
their  families.  In  each  tithing  there  was  a 
tithingman,  whose  duty  it  was  to  keep  the 

Eeace,  as  a  constal)le  now  is  bound  to  do. 
t.  Armand,  in  his  Historical  Essay  on  the 
Legislative  Power  of  England,  p.  70,  ex- 
presses an  opinion  that  the  tithing  was  com- 
posed not  of  ten  common  families,  but  of  ten 
families  of  lords  of  a  manor. 

TITHINGMAN.    In  Saxon  Law. 

The  head  or  chief  of  a  decennary  of  ten 
families:  he  was  to  decide  all  lesser  causes 
between  neighbors.  Now  tithingmen  and 
constables  are  the  same  thing.  Jacob,  Law 
Diet. 

In  New  England,  a  parish  officer  to  keep 
good  order  in  church.    AVebster,  Diet. 

TITLE.  Estates.  The  means  whereby 
the  owner  of  lands  hath  the  just  possession 
of  his  property.  Coke,  Litt.  345 ;  2  Black- 
stone,  Comm.  105.  See  1  Ohio,  349.  This 
is  the  definition  of  title  to  lands  only. 

A  had  title  is  one  which  conveys  no  pro- 
perty to  the  purchase  of  an  estate. 

A  doubtful  title  is  one  which  the  court 
docs  not  consider  to  be  so  clear  that  it  will 
enforce  its  acceptance  by  a  purchaser,  nor  so 
defective  as  to  declare  it  a  bad  title,  but  only 
subject  to  80  much  doubt  that  a  purchaser 


TITLE 


ought  not  to  be  compelled  to  accept  it.  1 
Jac.  &  W.  Ch.  568;  9  Cow.  N.  Y.  344. 

A  good  title  is  that  which  entitles  a  man 
by  right  to  a  property  or  estate,  and  to  the 
lawful  possession  of  the  same. 

A  marketable  title  is  one  which  a  court  of 
equity  considers  to  be  so  clear  that  it  will 
enforce  its  acceptance  by  a  purchaser. 

The  ordinary  acceptation  of  the  term  mnrkei- 
able  title  would  convey  but  a  very  imperfect  notion 
of  its  legal  and  technical  import.  To  common 
prehension,  unfettered  by  the  technical  and  c  n- 
ventional  distinction  of  lawyers,  all  titles  betng 
either  good  or  bad,  the  former  would  be  consiO-^.ed 
marketable,  the  latter  non-marketable.  But  ihis 
is  not  the  way  they  are  regarded  in  courtT  of 
equity,  the  distinction  taken  there  being,  not 
between  a  title  which  is  absolutely  good  or  abso- 
lutely bad,  but  between  a  title  which  the  court 
considers  to  be  so  clear  that  it  will  enforce  its  ac- 
ceptance by  a  purchaser,  and  one  which  the  court 
will  not  go  so  far  as  to  declare  a  bad  title,  but  only 
that  it  is  subject  to  so  much  doubt  that  a  purchaser 
ought  not  to  be  compelled  to  accept  it.  1  Jac.  <b 
W.  Ch,  568.  In  short,  whatever  may  be  the  private 
opinion  of  the  court  as  to  the  goodness  of  the 
title,  yet  if  there  be  a  reasonable  doubt  either  as 
to  a  matter  of  law  or  fact  involved  in  it,  a  pur- 
chaser will  not  be  compelled  to  complete  his  pur- 
chase; and  such  a  title,  though  it  may  be  perfectly 
secure  and  unimpeachable  as  a  holding  title,  is 
said,  in  the  current  language  of  the  day,  to  be  un- 
marketable.   Atkins,  Tit.  2. 

The  doctrine  of  marketable  titles  is  purely  equi- 
table and  of  modern  origin.  Id.  26.  At  law  every 
title  not  bad  is  marketable.  5  Taunt.  625 ;  6  id. 
263;  1  Marsh.  258.  See  2  Penn.  Law  Journ. 
17. 

St.  There  are  several  stages  or  degrees  re- 
quisite to  form  a  complete  title  to  lands  and 
tenements.  The  lowest  and  most  imperfect 
degree  of  title  is  the  mere  possession,  or  actual 
occupation  of  the  estate,  without  any  appa- 
rent right  to  hold  or  continue  such  possession : 
this  happens  when  one  man  disseises  another. 
The  next  step  to  a  good  and  perfect  title  is 
the  rigJit  of  possession,  which  may  reside  in 
one  man  while  the  actual  possession  is  not 
in  himself  but  in  another.  This  right  of 
possession  is  of  two  sorts :  an  apparent  right 
of  possession,  which  may  be  defeated  by 
proving  a  better,  and  an  actual  right  of  pos- 
session, which  will  stand  the  test  against  all 
opponents.  The  mere  right  of  property,  the 
jus  proprietatis,  without  either  possession  or 
the  right  of  possession.  2  Sharswood,  Blackst. 
Comm.  195. 

3.  Title  to  real  estate  is  acquired  by  two 
methods,  namely,  by  descent  and  purchase 
See  these  words. 

Title  to  personal  property  may  accrue  in 
three  different  ways :  by  original  acquisition; 
by  transfer  by  act  of  law ;  by  transfer  by 
act  of  the  parties. 

Title  by  original  acquisition  is  acquired 
by  occupancy,  see  Occupancy  ;  by  accession, 
see  Accession  ;  by  intellectual  labor.  Seo 
Patent  ;  Copyright. 

The  title  to  personal  property  is  acquired 
and  lost  by  transfer  by  act  of  law,  in  various 
ways:  hy  forfeiture;  succession;  marriage: 
judgment ;  insolvency ;  intestacy.  See  those 
,  titles. 


TITLE 


597 


TOKEN 


Title  is  acquired  and  lost  by  transfer  hy 
the  act  of  the  party,  by  gift,  hy  contract  or 
sale. 

4.  In  general,  possession  constitutes  the 
criterion  of  title  of  personal  property,  because 
no  other  means  exist  by  which  a  knowledge 
of  the  fact  to  whom  it  belongs  can  be  at- 
tained. A  seller  of  a  chattel  is  not,  therefore, 
required  to  show  the  origin  of  his  title,  nor, 
in  general,  is  a  purchaser,  without  notice  of 
the  claim  of  the  owner,  compellable  to  make 
restitution ;  but  it  seems  that  a  purchaser 
from  a  tenant  for  life  of  personal  chattels 
will  not  be  secure  against  the  claims  of  those 
entitled  in  remainder.  Cowp.  432;  1  Brown, 
Ch.  274;  2  Terra,  376;  3  Atk.  Ch.  44  ;  3  Vcs. 
&  B.  Ch.  Ir.  16. 

As  an  exception  to  the  rule  that  possession 
is  the  criterion  of  title  of  property  may  be 
mentioned  the  case  of  ships,  the  title  of  which 
can  be  ascertained  by  the  register.  15  Ves. 
Ch.  60 ;  17  id.  251 ;  8  Price,  Exch.  256,  277. 

5.  To  convey  a  title,  the  seller  must  him- 
self have  a  title  to  the  property  which  is  the 
subject  of  the  transfer.  But  to  this  general 
rule  there  are  exceptions.  The  lawful  coin 
of  the  United  States  will  pass  the  property 
along  with  the  possession.  A  negotiable  in- 
strument indorsed  in  blank  is  transferable 
by  any  person  holding  it,  so  as  by  its  de- 
livery to  give  a  good  title  "to  any  person 
honestly  acquiring  it."  3  Barnew.  &  C.  47: 
3  Burr.  1516;  5  Term,  683;  7  Bingh.  284;  7 
'launt.  265,  278;  13  East,  509. 

In  Legislation.  That  part  of  an  act  of  the 
legislature  by  which  it  is  known  and  distin- 
guished from  other  acts;  the  name  of  the 
act. 

6.  A  practice  has  prevailed,  of  late  years, 
to  crowd  into  the  same  act  a  mass  of  hete- 
rogeneous matter,  so  that  it  is  almost  impos- 
sible to  describe  or  even  to  allude  to  it  in  the 
title  of  the  act.  The  practice  has  rendered 
the  title  of  little  importance;  yet  in  some 
cases  it  is  material  in  the  construction  of  an 
act.  7  East,  132,  134 ;  2  Cranch,  386.  See 
Ld.  Raym.  77  ;  Hardr.  324;  Barrington,  Stat. 
499,  n. 

In  Literature.  The  particular  division 
of  a  subject,  as  a  law,  a  book,  and  the  like: 
for  example.  Digest,  book  1,  title  2.  For  the 
law  relating  to  bills  of  exchange,  see  Bacon, 
Abr.  Merchant. 

Personal  Relations.  A  distinctive  ap- 
pellation denoting  the  rank  to  which  the  in- 
dividual belongs  in  society. 

The  constitution  of  the  United  States 
forbids  the  grant  by  the  United  States  or  any 
state  of  any  title  of  nobility.  Titles  are  be- 
stowed by  courtesy  on  certain  officers:  the 
president  of  the  United  States  sometimes  re- 
ceives the  title  of  excellency;  judges  and 
members  of  congress,  that  of  honorable;  and 
members  of  the  bar  and  justices  of  the  peace 
are  called  esquires.  Cooper,  Just.  Inst.  416; 
Brackenridge,  Law  Misc. 

Titles  are  assumed  by  foreign  princes,  and 
among  iheir  subjects  they  may  exact  these 
marks  of  honor;  but  in  their  intercourse  with 


foreign  nations  they  are  not  entitled  to  them 
as  a  matter  of  right.  Wheaton,  Int.  Law,  pt. 
2,  (!.  3,  P,,  6. 

In  Pleading.  The  right  of  action  which 
the  plaintiff  has.  The  declaration  must  show 
the  plaintiff  's  title,  and  if  such  title  be  not 
shown  in  that  instrument  the  defect  cannot 
be  cured  by  any  of  the  future  pleadings, 
Bacon,  Abr.  Pleas,  etc.  (B  1). 

In  Rights.  The  name  of  a  newspaper,  a 
book,  and  the  like. 

The  owner  of  a  newspaper  having  a  par- 
ticular title  has  a  right  to  such  title;  and  an 
injunction  will  lie  to  prevent  its  use  unlaw- 
fully by  another.  8  Paige,  Ch.  N.  Y.  75. 
See  Pardessus,  n.  170. 

TITLE-DEEDS.  Those  deeds  which 
are  evidences  of  the  title  of  the  owner  of  an 
estate. 

The  person  who  is  entitled  to  the  inherit- 
ance has  a  right  to  the  possession  of  the  title- 
deeds.    1  Carr.  &  M.  653. 

TITLE  OP  A  DECLARATION.  In 

Pleading.  At  the  top  of  every  declaration 
the  name  of  the  court  is  usually  stated,  with 
the  term  of  M'hich  the  declaration  is  filed, 
and  in  the  margin  the  venue — namely,  the 
city  or  county  where  the  cause  is  intended  to 
be  tried — is  set  down.  The  first  two  of  these 
compose  what  is  called  the  title  of  the  de- 
claration.   1  Tidd,  Pract.  366. 

TO  WIT.  That  is  to  say;  namely; 
scilicet ;  videlicet. 

TOPT.  A  place  or  piece  of  ground  on 
which  a  house  formerly  stood,  which  hfis 
been  destroyed  by  accident  or  decay :  it  also 
signifies  a  messuage. 

TOGATI(Lat.).  In  Roman  Law.  Under 
the  empire,  when  the  toga  had  ceased  to  be 
the  usual  costume  of  the  Romans,  advocates 
were  nevertheless  obliged  to  wear  it  when- 
ever they  pleaded  a  cause.  Hence  they 
were  called  togati.  This  denomination  re- 
ceived an  official  or  legal  sense  in  the  impe- 
rial constitutions  of  the  fifth  and  sixth  cen- 
turies ;  and  the  words  togati,  consortium 
[corpus,  ordo,  collegium)  togaiorum,  fre- 
quently occur  in  those  acts. 

TOKEN.  A  document  or  sign  of  the  ex- 
istence of  a  fact. 

Tokens  are  either  public  or  general,  or  privy 
tokens.  They  are  either  true  or  false.  When 
a  token  is  false  and  indicates  a  general  intent 
to  defraud,  and  is  used  for  that  purpose,  it 
will  render  the  offender  guilty  of  the  crime 
of  cheating,  12  Johns.  N.  Y.  292 ;  but  if  it 
is  a  mere  privy  token,  as,  counterfeiting  a 
letter  in  another  man's  name,  in  order  to 
cheat  but  one  individual,  it  would  not  be  in- 
dictable. 9  Wend.  N.  Y.  182;  1  Dall.  Penn. 
47 ;  2  Const.  So.  C.  139 ;  2  Va.  Cas.  65 ;  4 
Hawks,  No.  C.  348 :  6  Mass.  72;  12  Johns. 
N.  Y.  293 ;  2  Dev.  No.  C.  199 ;  1  Rich.  So.  C. 
244. 

In  Common  Law.  In  England,  this 
name  is  given  to  pieces  of  metal,  made  in 
the  shape  of  money,  passing  among  private 


TOLERATION 


598 


TONNAGE 


persons  by  consent  at  a  certain  value.  2 
Ohitty,  Comm.  Law.  182. 

TOLERATION  (Lat.).  In  some  coun- 
tries, where  religion  is  established  by  law, 
certain  sects  who  do  not  agree  with  the  esta- 
blished religion  are  nevertheless  permitted  to 
exist;  and  this  permission  is  called  tolera- 
tion. They  are  permitted  and  allowed  to 
remain  rither  as  a  matter  of  favor  than  a 
matter  of  right. 

In  the  United  States  there  is  no  such 
thing  as  toleration  ;  all  men  have  an  equal 
right  to  worship  God  according  to  the  dictates 
of  their  consciences.  See  Christianity  ; 
Conscience  ;  Religious  Test. 

TOLL.  In  Contracts.  A  sum  of  money 
for  the  use  of  something,  generally  applied  to 
the  consideration  which  is  paid  for  the  use  of 
a  road,  bridge,  or  the  like,  of  a  public  nature. 

The  compensation  paid  to  a  miller  for 
grinding  another  person's  grain. 

The  rate  of  taking  toll  for  grinding  is  regu- 
lated by  statute  in  most  of  the  states.  See 
2  Washburn,  Real  Prop. ;  6  Q.  B.  31. 

In  Real  Law.  To  bar,  defeat,  or  take 
away:  as,  to  toll  an  entry  into  lands  is  to 
deny  or  take  away  the  right  of  entry. 

TOLLS.  In  a  general  sense,  tolls  signify 
any  manner  of  customs,  subsidy,  prestation, 
imposition,  or  sum  of  money  demanded  for 
exporting  or  importing  of  any  wares  or  mer- 
chandise, to  be  taken  of  the  buyer.  Coke,  2d 
Inst.  58. 

TON.  Twenty  hundredweight,  each  hun- 
dfedweight  being  one  hundred  and  twelve 
pounds  avoirdupois.  See  act  of  congress  of 
Aug.  30,  1842,  c.  270,  s.  20. 

TONNAGE.  The  capacity  of  a  ship  or 
vessel. 

2.  This  term  is  most  usually  applied  to  the  capa- 
city of  a  vessel  in  tons  as  determined  by  the  legal 
mode  of  measurement ;  and,  as  a  general  rule,  in  the 
United  States  the  oificial  tonnage  of  a  vessel  is 
considerably  below  the  actual  capacity  of  the  vessel 
to  carry  freight. 

For  the  rule  for  determining  the  tonnage  of 
British  vessels  under  the  law  of  England,  see  Mc- 
CuUoch,  Com.  Diet.  Tonnage;  English  Merchant 
Shipping  Act  of  1854,  20-29. 

The  duties  paid  on  the  tonnage  of  a  ship 
or  vessel. 

These  duties  are  altogether  abolished  in  rela- 
tion to  American  vessels  by  the  act  of  May  31, 
1830,  s.  1.  And,  by  the  second  section  of  the 
same  act,  all  tonnage-duties  on  foreign  vessels  are 
abolished,  provided  the  president  of  the  United 
States  shall  be  satisfied  that  the  discriminating  or 
countervailing  duties  of  such  foreign  nation,  so  far 
as  they  operate  to  the  disadvantage  of  the  United 
States,  have  been  abolished. 

The  constitution  of  the  United  States  provides, 
art.  1,  s.  10,  n.  2,  that  no  state  shall,  without  the 
consent  of  congress,  lay  any  duty  on  tonnage. 

3.  By  act  of  congress,  approved  May  6, 
1864,  it  is  provided  that  the  registered  ton- 
nage of  a  vessel  shall  be  her  entire  internal 
cubic  capacity,  in  tons  of  one  hundred  cubic 
feet  each,  to  be  ascertained  as  follows. 
Measure  the  length  of  the  vessel  in  a  straight 


line  along  the  upper  side  of  the  tonnage  deck, 
from  the  inside  of  the  inner  plank  (average 
thickness)  at  the  side  of  the  stem  to  the 
inside  of  the  plank  on  the  stern  timbers  (ave- 
rage thickness),  deducting  from  this  length 
what  is  due  to  the  rake  of  the  bow  in  the 
thickness  of  the  deck,  and  what  is  due  to 
the  rake  of  the  stern  timber  in  the  thick- 
ness of  the  deck,  and  also  what  is  due  to  the 
rake  of  the  stern  timber  in  one-third  of  the 
round  of  the  beam ;  divide  the  length  so 
taken  into  the  number  of  equal  parts  required 
by  the  following  table,  according  to  the  class 
in  such  table  to  which  the  vessel  belongs. 

Table  of  Classes, 

Class  I. — Vessels  of  which  the  tonnage- 
length,  according  to  the  above  measurement, 
is  fifty  feet  or  under,  into  six  equal  parts. 

Class  II. — Vessels  of  which  the  tonnage- 
length,  according  to  the  above  measurement, 
is  above  fifty  feet  and  not  exceeding  one  hun- 
dred feet  long,  into  eight  equal  parts. 

Class  III. — Vessels  of  which  the  tonnage- 
length,  according  to  the  above  measurement, 
is  above  one  hundred  feet  long  and  not  ex- 
ceeding one  hundred  and  fifty  feet  long,  into 
ten  equal  parts. 

Class  IV. — Vessels  of  which  the  tonnage- 
length,  according  to  the  above  measurement, 
is  above  one  hundred  and  fifty  feet  and  not 
exceeding  two  hundred  feet  long,  into  twelve 
equal  parts. 

Class  V. — Vessels  of  which  the  tonnage- 
length,  according  to  the  above  measurement, 
is  above  two  hundred  feet  and  not  exceeding 
two  hundred  and  fifty  feet  long,  into  fourteen 
equal  parts. 

Class  VI. — Vessels  of  which  the  tonnage- 
length,  according  to  the  above  measurement, 
is  above  two  hundred  and  fifty  feet  long,  into 
sixteen  equal  parts. 

4.  Then,  the  hold  being  sufficiently  cleared 
to  admit  of  the  required  depths  and  breadths 
being  properly  taken,  find  the  transverse  area 
of  such  vessel  at  each  point  of  division  of  the 
length,  as  follows.  Measure  the  depth  at 
each  point  of  division  from  a  point  at  a 
distance  of  one-third  of  the  round  of  the 
beam  below  such  deck,  or,  in  case  of  a  break, 
below  a  line  stretched  in  continuation  thereof, 
to  the  upper  side  of  the  floor-timber,  at  the 
inside  of  the  limber-strake,  after  deducting 
the  average  thickness  of  the  ceiling  which  is 
between  the  bilge-planks  and  limber-strake  ; 
then,  if  the  depth  at  the  midship  division  of 
the  length  do  not  exceed  sixteen  feet,  divide 
each  depth  into  four  equal  parts ;  then  measure 
the  inside  horizontal  breadth  at  each  of  the 
three  points  of  division,  and  also  at  the  upper 
and  lower  points  of  the  depth,  extending  each 
measurement  to  the  average  thickness  of  that 
part  of  the  ceiling  which  is  between  the  points 
of  measurement ;  number  these  breadths 
from  above  (numbering  the  upper  breadth 
one,  and  so  on  down  to  the  lowest  breadth) ; 
multiply  the  second  and  fourth  by  four,  and 
the  third  by  two ;  add  these  products  together, 
and  to  the  sum  add  the  first  breadth  and 


TONNAGE 


599       TOOK  AND  CARRIED  AWAY 


the  last  or  fifth  ;  multiply  the  quantity  thus 
obtained  by  one-third  the  interval  between 
the  breadths,  and  the  product  shall  be  deemed 
the  transverse  area ;  but  if  the  midship 
depth  exceed  sixteen  feet,  divide  each  depth 
into  six  equal  parts,  instead  of  four,  and 
measure  as  before  directed  the  horizontal 
breadths  at  the  five  points  of  division  and 
also  at  the  upper  and  lov^-er  points  of  the 
depth ;  number  them  from  above,  as  before, 
multiply  the  second,  fourth,  and  sixth  by 
four,  and  the  third  and  fifth  by  tveo;  add 
these  products  together,  and  to  the  sum  add 
the  first  breadth  and  the  last  or  seventh  ; 
multiply  the  quantity  thus  obtained  by  one- 
third  of  the  common  interval  between  the 
breadths,  and  the  product  shall  be  deemed 
the  transverse  area. 

Having  thus  ascertained  the  transverse 
area  at  each  point  of  division  of  the  length 
of  the  vessel,  as  required  above,  proceed  to 
ascertain  the  register-tonnage  of  the  vessel, 
in  the  following  manner: — 

Number  the  areas  successively  one,  two, 
three,  etc.,  number  one  being  at  the  extreme 
limit  of  the  length  at  the  bow,  and  the  last 
number  at  the  extreme  limit  of  the  length  at 
the  stern ;  then,  whether  the  length  be  di- 
vided according  to  table  into  six  or  sixteen 
parts,  as  in  classes  one  and  six,  or  into  any 
intermediate  number,  as  in  classes  two,  three, 
four,  and  five,  multiply  the  second  and  every 
even-numbered  area  by  four,  and  the  third 
and  every  odd-numbered  area  (except  the 
first  and  last)  by  two ;  add  these  products 
together,  and  to  the  sum  add  the  first  and 
last,  if  they  yield  any  thing ;  multiply  the 
quantities  thus  obtained  by  one-third  of  the 
common  interval  between  the  areas,  and  the 
product  will  be  the  cubical  contents  of  the 
space  under  the  tonnage-deck ;  divide  this 
product  by  one  hundred,  and  the  quotient, 
being  the  tonnage  under  the  tonnage-deck, 
shall  be  deemed  the  register-tonnage  of  the 
vessel,  subject  to  the  additions  hereinafter 
mentioned. 

5.  If  there  be  a  break,  a  poop,  or  any  other 
permanent  closed-in  space  on  the  upper  decks 
or  the  spar-deck  available  for  cargo  or  stores 
or  for  the  berthing  or  accommodation  of  pass- 
engers or  crew,  the  tonnage  of  such  space 
shall  be  ascertained  as  follows  : — 

Measure  the  internal  mean  length  of  such 
space  in  feet,  and  divide  into  an  even  number 
of  equal  parts  of  which  the  distance  asunder 
shall  be  most  nearly  equal  to  those  into  which 
the  length  of  the  tonnage-deck  has  been  di- 
vided ;  measure  at  the  middle  of  its  height 
the  inside  breadths, — namely,  one  at  each 
end  and  at  each  of  the  points  of  division, — 
numbering  them  successively  one,  two,  three, 
etc. ;  then  to  the  sum  of  the  end  breadths  add 
four  times  the  sum  of  the  even-numbered 
breadths  and  twice  the  sum  of  the  odd- 
numbered  breadths,  except  the  first  and  last, 
and  multiply  the  whole  sum  by  one-third  of 
the  common  interval  between  the  breadths; 
the  product  will  give  the  mean  horizontal 
area  of  such  space ;  then  measure  the  mean 


height  between  the  planks  of  the  decks,  and 
multiply  it  by  the  mean  horizontal  area; 
divide  the  product  by  one  hundred,  and  the 
quotient  shall  be  deemed  to  be  the  tonnage 
of  such  space,  and  shall  be  added  to  tlio 
tonnage  under  the  tonnage-deck  ascertained 
as  aforesaid. 

6.  If  the  vessel  has  a  third  deck,  or  spar- 
deck,  the  tonnage  of  the  space  between  it 
and  the  tonnage-deck  shall  be  ascertained  as 
follows : — 

Measure  in  feet  the  inside  length  of  the 
space,  at  the  middle  of  its  height,  from  the 
plank  at  the  side  of  the  stem  to  the  phmk  on 
the  timbers  at  the  stern,  and  divide  the  length 
into  the  same  number  of  equal  parts  into 
which  the  length  of  the  tonnage-deck  is  di- 
vided;  measure  (also  at  the  middle  of  its 
height)  the  inside  breadth  of  the  space  at 
each  of  the  points  of  division,  also  the  breadth 
of  the  stem  and  the  breadth  at  the  stern ; 
number  them  successively  one,  two,  three, 
and  so  forth,  commencing  at  the  stem  ;  multi- 
ply the  second  and  all  other  even-numbered 
breadths  by  four,  and  the  third  and  all  other 
odd-numbered  breadths  (except  the  first  and 
last)  by  two;  to  the  sum  of  these  products 
add  the  first  and  last  breadths  ;  multiply  the 
whole  sum  by  one-third  of  the  common  inter- 
val between  the  breadths,  and  the  result  will 
give,  in  superficial  feet,  the  mean  horizontal 
area  of  such  space  ;  measure  the  mean  height 
between  the  plank  of  the  two  decks,  and 
multiply  it  by  the  mean  horizontal  area,  and 
the  product  will  be  the  cubical  contents  of 
the  space ;  divide  this  product  by  one  hun- 
dred, and  the  quotient  shall  be  deemed  to  be 
the  tonnage  of  such  space,  and  shall  be  added 
to  the  other  tonnage  of  the  vessel  ascertained 
as  aforesaid.  And  if  the  vessel  has  more 
than  three  decks,  the  tonnage  of  each  space 
between  decks  above  the  tonnage-deck  shall 
be  severally  ascertained  in  the  manner  above 
described,  and  shall  be  added  to  the  tonnage 
of  the  vessel  ascertained  as  aforesaid. 

In  ascertaining  the  tonnage  of  open  vessels, 
the  upper  edge  of  the  upper  strake  is  to 
form  the  boundary-line  of  measurement,  and 
the  depth  shall  be  taken  from  an  athwartship 
line  extending  from  the  upper  edge  of  said 
strake  at  each  division  of  the  length. 

TONTINE.    In  French  Law.  The 

name  of  a  partnership  composed  of  creditors 
or  recipients  of  perpetual  or  life  rents  or 
annuities,  formed  on  the  condition  that  the 
rents  of  those  who  may  die  shall  accrue  to 
the  survivors,  either  in  whole  or  in  part. 

This  kind  of  partnership  took  its  name  from 
Tonti,  an  Italian,  who  first  conceived  the  idea  and 
put  it  in  practice.  Merlin  Repert. ;  Dalloz,  Diet.;  5 
Watts,  Penn.  351. 

TOOK  AND  CARRIED  AWAY.  In 

Criminal  Pleading.  Technical  words  neces- 
sary in  an  indictment  for  simple  larceny. 
Bacon,  Ahr.  Indictment  (G  1) ;  Comyns,  Dig. 
Indictment  (G  6) ;  Croke  Car.  37  ;  1  Chitty, 
Grim.  Law%  244.     See  Capit  et  Asporta- 

VIT. 


TOOLS 


600 


TORT 


TOOLS.  Those  implements  which  are 
c  uiim  illy  used  by  the  hand  of  one  man  in 
gome  manual  labor  necessary  for  his  subsist- 
ence. 

The  apparatus  of  a  printing-office,  such  as 
types,  presses,  etc.,  are  not,  therefore,  included 
under  the  term  tools.  13  Mass.  82  ;  10  Pick. 
Mass.  423  ;  3  Vt.  133.  And  see  2  Pick.  Mass. 
80  ;  5  Mass.  313. 

By  the  forty-sixth  section  of  the  act  of 
March  2,  1789,  1  Story,  U.  S.  Laws,  612,  the 
tools  or  implements  of  a  mechanical  trade  of 
persons  who  arrive  in  the  United  States  are 
free  and  exempted  from  duty. 

TORT  (Fr.  tort,  from  Lat.  torquere,  to 
twist,  tortus,  twisted,  wrested  aside).  A 
private  or  civil  wrong  or  injury.  A  wrong 
independent  of  contract.    1  Hilliard,  Torts,  1. 

The  commission  or  omission  of  an  act  by 
one  without  right  whereby  another  receives 
some  injury,  directly  or  indirectly,  in  person, 
property,  or  reputation. 

2.  As  recognized  by  the  law  for  the  en- 
forcement of  rights  and  redress  of  injuries, 
torts  may  be  distinguished  from  contracts  by 
these  qualities :  that  parties  jointly  com- 
mitting torts  are  severally  liable  without  right 
to  contribution  from  each  other ;  that  the 
death  of  either  party  destroys  the  right  of 
action  ;  that  persons  under  personal  disabili- 
ties to  contract  are  liable  for  their  torts  ;  that 
attachment,  arrest,  and  imprisonment  are 
allowed  on  claims  arising  under  contracts. 
1  Hilliard,  Torts,  3.  A  tort,  however,  may 
grow  out  of,  or  make  part  of,  or  be  coincident 
with,  a  contract :  as  in  the  familiar  case  of  a 
fraudulent  sale  or  fraudulent  recommenda- 
tion of  a  third  person.  Indeed,  the  wrong 
of  fraud  almost  necessarily  implies  an  ac- 
companying contract.  In  these  cases  the 
law  often  allows  the  party  injured  an  elec- 
tion of  remedies:  that  is,  he  may  proceed 
against  the  other  party  either  as  a  debtor  or 
contractor,  or  as  a  wrong-doer.  10  Hilliard, 
Torts,  28  ;  10  C.  B.  83  ;  24  Conn.  392.  Where 
personal  property  has  been  tortiously  taken 
and  turned  into  money  or  money's  worth,  the 
party  injured  may  proceed  upon  the  sup- 
position of  a  contract  implied  by  law  in  his 
favor.  In  such  cases  he  is  said  to  waive  the 
tort.  1  Chitty,  Plead.  88  ;  10  Mass.  435  ;  1 
Gray,  Mass.  509  ;  2  Greenleaf,  Ev.  §  108. 

3.  As  distinguished  from  crimes,  the  same 
act  may  constitute  a  public  wrong  (crime) 
and  a  private  wrong  (tort),  and,  either  at 
the  same  time  or  at  different  times,  be  the 
subject  of  a  criminal  prosecution  and  a  pri- 
vate action  for  damages.  1  Bos.  &  P.  191 ; 
3  Sharswood,  Blackst.  Comm.  122.  The  Eng- 
lish doctrine  that  the  private  tort  is  merged 
in  a  felony  is  not  generally  recognized  in  the 
United  States.  1  Gray,  Mass.  83  ;  6  N.  H. 
454  ;  2  Root,  Conn.  90;  1  Miles,  Penn.  312; 
1  Coxe,  N.  J.  113  ;  16  Miss.  77  ;  3  Bland,  Ch. 
Mich.  114;  6  Rand.  Va.  223  ;  3  Hawks,  No. 
C.  251 ;  4  Ohio,  376  ;  15  Ga.  349 ;  6  Humphr. 
Tenn.  433;  6  B.  Monr.  Ky.  38;  22  Wend. 
N.  Y.  285,  n.;  1  Hilliard,  Torts,  71  et  seq. 
See  22  Ala.  n.  s.  613 ;  1  Bishop,  Crim.  Law, 


329.  Such  an  action  might  perhaps  be  for- 
bidden by  public  policy  in  some  instances. 
The  private  action  is  entirely  distinct  from 
the  public  prosecution,  8  Rich.  So.  C.  144? 
17  111.  413  ;  18  C.  B.  599 ;  37  Eng.  L.  &  Eq. 
406 ;  and  the  private  action  must  be  for  some 
special  injury  sustained  by  the  plaintiff  apart 
from  the  injury  to  the  public  generally,  as  in 
case  of  public  nuisance.  1  Hilliard,  Torts, 
2  ;  1  Starkie,  Ev,  199  ;  1  Cush.  Mass.  477  :  1 
Gray,  Mass.  83  ;  1  Sandf.  N.  Y.  1 ;  25  Ala. 
N.  s.  201 ;  12  East,  413  ;  Mete.  Yelv.  90  a,  n. 
2 ;  1  Bishop,  Crim.  Law.  329.  In  reference 
to  the  nature  of  the  act,  manual  taking, 
interference,  or  removal  is  not  necessary  to 
constitute  a  tort.  Any  act  of  a  party  who 
has  come  rightfully  into  the  possession  of 
property  in  excess  of  or  contrary  to  his 
authority  over  it,  and  which  negatives  or  is 
inconsistent  with  the  rights  of  the  owner, 
constitutes  a  tort.  23  Wend.  N.  Y.  422 ;  1 
Ga.  381 ;  4  McLean,  C.  C.  378 ;  2  Harr.  Del. 
71 ;  8  Pick.  Mass.  543  ;  15  Mees.  &  W.  Exch. 
448. 

4.  A  wrongful  or  malicious  intent  is  an 
essential  element  in  many  torts :  as,  for  ex- 
ample, assault,  fraud,  slander,  and  malicious 
prosecution.  In  general,  however,  it  may  be 
stated  as  a  prominent  distinction  between 
torts  and  crimes  that  in  the  former  the 
party's  intent  is  immaterial,  while  in  a  prose- 
cution for  the  latter  a  criminal  purpose  must 
always  be  alleged  and  proved.  On  the  other 
hand,  an  act  which  does  not  amount  to  a 
legal  injury  and  violates  no  legal  right  is 
not  actionable  because  done  with  a  bad  inten- 
tion. 13C.B.285;  28Vt.49.  It  has  been  some- 
times held  that  the  intention  of  the  party  is  to 
determine  the  form  of  action,  trespass  being 
the  form  for  wilful,  and  case  for  a  negligent, 
injury.  This,  however,  is  not  the  prevailing 
rule.  11  Mass.  1137  ;  18  Vt.  605  ;  1  R.  L 
474;  9  Watts  &  S.  Penn.  32. 

A  tort  may  consist  in  the  violation  of  a 
statute,  2  Ld.  Raym.  953,  or  the  abuse  of  a 
privilege  given  by  a  statute.  10111.425.  And, 
in  general,  though  a  party's  original  act  or 
conduct  may  have  been  right  and  lawful,  there 
may  be  such  an  abuse  of  the  powers  and 
privileg*»s  which  the  law  confers  upon  him 
as  will  render  him  liable  to  an  action  as 
for  a  trespass  in  the  first  instance,  or  make 
him  a  trespasser  ab  initio.  2  Greenleaf,  Ev. 
I  615;  8  Coke,  145;  11  Barb.  N.  Y.  390. 
Acts  lawful  and  innocent  in  themselves  may 
also  become  wrongful  when  done  without 
just  regard  for  the  rights  of  others,  and 
without  suitable  reference  to  the  time,  place, 
or  manner  of  performing  them.  4  Const. 
110. 

5.  But  an  action  cannot  be  maintained  for 
annoyance  received  from  acts  done  on  land 
adjoining  plaintiff's  which  the  proprietor 
might  lawfully  do  in  the  exercise  of  his 
dominion  over  his  own.  5  Rich.  So.  C.  583, 
A  tort  may  be  an  injury  to  the  person  or  body, 
including  assault  and  battery,  also  imprison- 
ment and  injuries  to  health.  See  these  seve- 
ral titles.     Torts  may  also  be  committed 


TORT 


601 


TORTFEASOR 


against  character  or  reputation,  including 
slander  and  libel,  and  malicious  prosecution. 
See  these  titles.  Another,  and  the  most 
comprehensive  and  various,  class  of  torts  con- 
sists of  wrongs  to  property.  See  PROPERTy. 
In  general,  possession  alone  is  sufficient  to 
maintain  an  action  for  tort;  while  property 
alone  is  not  sufficient  without  possession  or 
th-e  right  of  possession.  1  Term,  475 ;  1 
Dutch.  N.  J.  443  ;  22  N.  H.  408  ;  15  Vt.  1 19  ; 

15  Mo.  403  ;  6  Nev.  &  M.  422.  Even  a  wrong- 
ful possessor  may  maintain  an  action  against 
a  third  person  in  the  title ;  and  a  title  of  a 
third  person,  unless  the  defendant  claims 
under  him,  is  no  defence.  22  N.  II.  468  ;  39 
Me.  451 ;  1  Strange,  505 ;  11  Johns.  N.  Y.  529 ; 

16  Mass.  125  ;  8  Blackf.  Ind.  175 ;  25  Me. 
453  ;  9  Gill,  Md.  7.  But  where  no  one  is  in 
actual  possession,  the  title  is  sufficient  con- 
structive possessioiQ  to  maintain  an  action : 
more  especially  possession  of  part  gives  con- 
structive possession  of  the  whole.  1  Hill, 
N.  Y.  312;  6  Dowl.  &  R.  572;  5  Md.  540; 
14  Wend,  N.  Y.  239,  And  title  is,  generally, 
a  good  defence  to  an  action  founded  upon 
mere  possession.  8  Humphr.  Tenn.  412;  18 
Ga.  539 ;  5  Mete.  Mass.  599  ;  S  Zabr.  N.  J. 
155. 

6.  The  most  comprehensive  injury  to  pro- 
perty is  that  termed  nuisance.  See  Nui- 
sance. This  embraces  all  wrongs  in  their 
nature  indirect  or  remote,  or  affecting  rights 
which  are  not  specific  or  tangible,  but  inci- 
dent to  or  growing  out  of  corporeal  property, 
such  as  watercourses,  lights,  patents,  and 
copyrights.  See  these  titles.  The  remedy 
for  wrongs  of  this  class  is  an  action  on  the 
case.  See  Case;  Hilliard,  Torts,  Nuisance 
and  subsequent  chapters.  Other  injuries  to 
property  are  trespass,  see  Trespass  ;  con- 
version, see  Conversion  ;  Trover,  see  Trover  ; 
waste,  see  Waste  ;  and  fraud.  See  Fraud. 
Hilliard,  Torts.  Torts  may  be  committed 
against  relative  as  well  as  absolute  rights. 
Such  rights  may  grow  out  of  public  relations 
involving  the  privileges  and  obligations  of 
judicial  and  ministerial  officers.  See  Officer  ; 
Judge  ;  Sheriff  ;  Attachment  ;  Execution  ; 
Bail;  Arrest.  Torts  may  also  be  committed 
by  or  against  parties  mutually  related  by  a 
joint  interest,  including  corporations.  Hil- 
liard, Torts,  Joint  Torts,  and  subsequent  chap- 
ters. Torts  may  also  be  committed  in  case  of  the 
private  relations  of  master  and  servant,  hus- 
band and  wife,  parent  and  child,  bailor  and 
bailee,  landlord  and  tenant,  mortgagor  and 
mortgagee.  See  these  several  titles.  Hilliard, 
Torts,  Master  and  Servant,  and  subsequent 
chapters. 

The  liability  to  make  reparation  for  an 
injury  rests  upon  an  original  moral  duty.  3 
Ohio  St.  172.  And  an  action  on  the  case 
lies,  in  general,  where  one  man  sustains  an 
injury  by  the  misconduct  or  negligence  of 
another  for  which  the  law  has  provided  no 
other  adequate  remedy.    20  Vt.  151, 

But  to  justify  an  action  there  must  be  a 
loss  as  well  as  a  wrong :  damnum  absque  in- 
juria, and  injuria  absque  damno,  are  alike 


regarded  as  beyond  the  reach  of  legal  redress. 
But  in  a  variety  of  cases,  a  wrong  being 
proved,  consequent  damage  will  be  presumed. 
1  Hilliard,  Torts,  82 ;  36  Me.  322 ;  Broom, 
Comm.  76  ;  16  Pick.  Mass.  64  ;  1  Gray,  Mass. 
186;  2  Ld.  Raym.  948. 

In  order  to  maintain  an  action,  the  relation 
of  cause  and  effect  must  be  shown  between 
the  act  and  the  injury,  12  Barb.  N.  Y.  657; 
and  the  damage  must  not  be  remote  or  indi- 
rect, 11  Mete.  Mass.  290:  although  every 
person  who  does  a  wrong  is  responsible  for 
all  the  mischievous  consequences  that  ma^ 
reasonably  be  expected  to  result  under  ordi- 
nary circumstances  for  such  misconduct.  5 
Exch.  243,  And  while  trespass  vi  et  armia 
is  the  remedy  for  immediate  injuries,  trespass 
on  the  case  is  also  provided  for  indirect  or 
consequent  injuries.  2  Greenleaf,  Ev.  ^  224 ; 
1  Chitty,  Plead,  115-120;  17  111.580. 

8.  In  general,  courts  can  enforce  only 
local  obligations  and  redress  injuries  to  local 
rights,  12  La.  Ann,  255.  Hence  the  legality 
or  illegality  of  an  act  may  sometimes  deter- 
mine whether  it  is  to  be  viewed  as  a  tort.  In 
general,  if  a  party  in  the  exercise  of  a  legal 
right,  more  especially  if  conferred  by  express 
statute,  does  an  injury  to  another's  property, 
he  is  not  liable  for  damages  unless  caused 
by  the  want  of  ordinary  care  and  skill.  24 
Miss.  93  ;  2  Stockt.  N.  J.  352.  And  this  con- 
sideration may  affect  the  form  of  action,  it 
being  generally  held  that  where  an  act  is 
lawful,  and  merely  the  consequences  of  it 
injurious,  the  proper  form  of  action  is  tres- 
pass on  the  case.    1  Strange,  634. 

In  general,  no  right  of  action  can  arise 
from  an  illegal  transaction.  11  Cush.  Mass. 
322 ;  10  Mete.  Mass.  363  ;  12  id.  24  ;  2  Conn. 
13,  501 ;  9  J.  B.  Moore,  586.  But  the  rule 
has  been  held  not  to  interfere  with  the  right 
of  property  even  in  articles  the  sale  of  which 
is  forbidden  by  law.  1  Gray,  Mass.  1 ;  20 
N.  H.  181.  A  party  may  be  debarred  from  an 
action  by  a  license,  by  estoppel,  or  by  a  waiver. 
8  Mete.  Mass.  34  :  7  Bingh.  682  :  10  Ad.  & 
E.  90 ;  18  Barb.  N.  Y.  599  ;  7  Watts,  Penn 
337  ;  19  Ala.  n.  s.  252. 

9.  In  general,  a  party  injured  cannot 
maintain  an  action  for  the  injury  if  caused 
in  any  degree  by  his  own  neglect  or  wrong. 
1  Hilliard,  Torts,  c.  4;  6  Hill,  N.  Y.  592;  9 
Md.  160 ;  19  Conn.  507  ;  4  Zabr.  N.  J.  824 ; 
35  Me.  422;  3  C.  B.  1.  Various  and  nice 
distinctions,  however,  are  made  upon  this 
general  subject,  involving  the  degree  of 
neglect  or  wrong  on  the  part  of  the  plaintiff, 
which  will  debar  him  from  maintaining  an 
action,  and  its  nature,  as  being  the  proximate 
or  only  the  remote  cause  of  injurv.  16  Penn. 
St.  463 ;  5  Du.  N.  Y.  21 ;  12  C.  B!  742  ;  16  id. 
179;  2  Taunt.  314;  11  Cush.  Mass.  364;  3  Mees. 
&  W.  Exch.  248  :  6  Ind.  82  ;  1  Den.  N.  Y.  91. 
In  general,  the  whole  question  is  for  the 
jury.  19  Conn.  566  ;  28  Eng.  L.  &  Eq.  48  ; 
30  id.  473  ;  3  Mann.  &  G.  59  :  12  Ad.  &  E.  439 ; 
16  III.  277 ;  7  Mete.  Mass.  274. 

TORTFEASOR.  A  wrong-doer;  one 
who  commits  or  is  guilty  of  a  tort. 


TORTURE 


602 


TOUCH  AND  STAY 


TORTURE.  The  rack,  or  question,  or 
other  mode  of  examination  by  violence  to  the 
person,  to  extort  a  confession  from  supposed 
criminals,  and  a  revelation  of  their  asso- 
ciates. 

2.  It  is  to  be  distinguished  from  punishment, 
which  usually  succeeds  a  conviction  for  offences,  as 
it  was  inflicted  in  limine,  and  as  part  of  the  intro- 
ductory process  leading  to  trial  and  judgment. 

It  was  wholly  unknown  to  the  common  and 
statute  law  of  England,  and  was  forbidden 
by  Magna  Charta,  ch.  29.  Coke,  2d  Inst. 
48 ;  4  Sharswood,  Blackst.  Comm.  326. 

It  prevailed  in  Scotland,  where  the  civil  law 
obtained  which  allowed  it.  Dig.  48.  18.  It 
was,  however,  declared  contrary  to  the  claim 
of  right,  and  was  expressly  prohibited,  7 
Anne,  c.  21,  ^  5,  a.d.  1708.  Several  instances 
of  its  infliction  may  be  found  in  1  Pitcairn's 
Criminal  Trials  of  Scotland,  215,  217,  219, 
375,  376,  401 ;  3  id.  170,  196,  220,  222,  238 
et  seq. 

3.  Sir  John  Kelynge,  in  the  time  of  Hale, 
says,  persons  standing  mute  were  also  com- 
pelled to  answer,  by  tying  their  thumbs  to- 
gether with  a  whip-cord,  and  that  this  was 
said  to  be  the  "  constant  practice  at  New- 
gate.''   Kely.  27. 

Although  torture  was  confessedly  contrary 
to  the  common  law  of  England,  it  was,  never- 
theless, often  employed  as  an  instrument 
of  state  to  wring  confessions  from  prominent 
criminals, — especially  in  charges  of  treason. 
It  was  usually  inflicted  by  warrant  from  the 
privy  council.  Jardine,  Torture,  7,  15,42; 
1  Rush.  Coll.  638. 

4.  In  1596  a  warrant  was  issued  to  the 
attorney-general  (Sir  Edward  Coke),  the 
solicitor-general  (Sir  Thomas  Fleming),  Mr. 
Francis  Bacon,  and  the  recorder  of  London, 
to  examine  four  prisoners  "  upon  such  arti- 
cles as  they  should  think  meet,  and  for  the 
better  boulting  forth  of  the  truth  of  their  in- 
tended plots  and  purposes,  that  they  should 
be  removed  to  Bridewell  and  put  to  the  mana- 
cles and  torture.'"'  Mr.  Jardine  proves  from 
the  records  of  the  privy  council  that  the 
practice  was  not  unfrequent  during  the  time 
of  Elizabeth,  and  continued  to  the  close  of 
the  reign  of  the  first  two  Stuarts.  There  is 
positive  evidence  that  Guy  Fawkes  was  di- 
rected to  be  tortured  in  regard  to  the  Gun- 
powder Plot,  in  the  warrant  in  the  king's 
handwriting  authorizing  the  commissioners, 
of  whom  Coke  was  one,  to  examine  him  upon 
the  rack,  *'  using  the  gentler  tortures  first,  et 
sic  per  gradus  ad  ima  tenditur."  1  Jardine, 
Crim.  Trials,  Int.  17  ;  2  id.  106. 

This  absurd  and  cruel  practice  has  never 
obtained  in  the  United  States;  for  no  man  is 
bound  to  accuse  himself.  An  attempt  to  tor- 
ture a  person  to  extort  a  confession  of  crime 
is  a  criminal  ofi'ence.  2  Tyl.  Vt.  380.  See 
Question  ;  Peine  Forte  et  Dure. 

TOTAL  LOSS.  In  Insurance.  A  total 
loss  in  marine  insurance  is  either  the  absolute 
destruction  of  the  insured  subject  by  the  direct 
action  of  the  perils  insured  against,  or  a  con- 
structive— sometimes  called  technical — total 


loss,  in  which  the  assured  is  deprived  of  the  pos* 
session  of  the  subject,  still  subsisting  in  specie, 
or  where  there  may  be  remnants  of  it  or  claims 
subsisting  on  account  of  it,  and  the  assured, 
by  the  express  terms  or  legal  construction  of 
the  policy,  has  the  right  to  recover  its  value 
from  the  underwriters,  so  far  as,  and  at  the 
rate  at  which,  it  is  insured,  on  abandonment 
and  assignment  of  the  still  subsisting  sub- 
ject or  remnants  or  claims  arising  out  of 
it.  2  Phillips,  Ins.  ch.  xvii. ;  2  Johns.  N.  Y 
286. 

2.  A  constructive  total  loss  may  be  by 
capture ;  seizure  by  unlawful  violence .  as, 
piracy,  1  Phillips,  Ins.  g  1106;  2  Eng.  L  & 
Eq.  85  ;  or  damage  to  ship  or  goods  over 
half  of  the  value  at  the  time  and  place  of 
loss,  2  Phillips,  Ins.  ^  1608;  1  Curt.  C.  C. 
148;  9  Cush.  Mass.  415;  5  Den.  N.  Y.  342; 
6  id.  282  ;  19  Ala.  n.  s.  108;  1  Johns.  Cas. 
N.  Y.  141 ;  6  Johns.  N.  Y.  219 ;  or  loss  of 
the  voyage,  2  Phillips,  Ins.  ^§  1601,  1606, 
1619  ;  4  Me.  431 ;  24  Miss.  461 ;  19  N.  Y. 
272;  1  Mart.  La.  221 ;  though  the  ship  or  goods 
may  survive  in  specie,  but  so  as  not  to  be  fit 
for  use  in  the  same  character  for  the  same 
service  or  purpose,  2  Phillips,  Ins.  §  1605  ;  2 
Caines,  Cas.  N.  Y.  324 ;  Valin,  tom.  2,  tit. 
Ass.  a.  46 ;  or  by  jettison,  2  Phillips,  Ins.  §g 
1616,1617;  1  Caines,  N.  Y.  196 ;  or  by  ne- 
cessity to  sell  on  account  of  the  action  and 
effect  of  the  peril  insured  against,  2  Phillips, 
Ins.  g  1623 ;  5  Gray,  Mass.  154 ;  1  Cranch, 
202  ;  or  by  loss  of  insured  freight  consequent 
on  the  loss  of  cargo  or  ship.  2  Phillips,  Ins. 
U  1642,  1645  ;  18  Johns.  N.  Y.  208. 

3.  There  may  be  a  claim  for  a  total  loss 
in  addition  to  a  partial  loss.  2  Phillips,  Ins. 
0743 ;  17  How.  595.  A  total  loss  of  the 
ship  is  not  necessarily  such  of  cargo,  2  Phil- 
lips, Ins.  ^  1601  et  seq.,  1622;  3  Binn.  Penn. 
287  ;  nor  is  submersion  necessarily  a  total 
loss,  2  Phillips,  Ins.  g  1607 ;  7  East,  38  ;  nor 
is  temporary  delay  of  the  voyage.  2  Phil- 
lips, Ins.  1618,  1619 ;  5  Barnew.  &  Aid. 
597. 

A  constructive  total  loss,  and  an  abandon- 
ment thereupon  of  the  ship,  is  a  constructive 
total  loss  of  freight;  and  a  constructive  total 
loss  and  abandonment  of  cargo  has  a  like 
effect  as  to  commissions  or  profits  thereon ;  and 
the  validity  of  the  abandonment  will  depend 
upon  the  actual  facts  at  the  time  of  the  aban- 
donment, as  the  same  may  subsequently  prove 
to  have  been.  2  Phillips,  Ins.  §  1630  et  seq.; 
3  Johns.  Cas.  N.  Y.  93. 

TOTIDEM  VERBIS  (Lat.).  In  so  many 
words. 

TOTIES  QUOTIES  (Lat.).  As  often 
as  the  thing  shall  happen. 

TOUCH  AND  STAY.  Words  fre- 
quently introduced  in  policies  of  insurance, 
giving  the  party  insured  the  right  to  stop  and 
stay  at  certain  designated  points  in  the  course 
of  the  voyage.  A  vessel  which  has  the  power 
to  touch  and  stay  at  a  place  in  the  course  of 
the  voyage  must  confine  herself  strictly  to 
the  terms  of  the  liberty  so  given;  for  any 


TOUJOURS  ET  UNCORE  PRIST  603 


TRADE-MARK 


attempt  to  trade  at  such  a  port  durino^  such 
a  stay,  as,  by  shipping  or  hmding  goods,  will 
amount  to  a  species  of  deviation  which  will 
discharge  the  underwriters,  unless  the  ship 
have  also  liberty  to  trade  as  well  as  to  touch 
and  stav  at  such  a  place.  1  Marshall,  Ins. 
275;  1  Esp.  GIO;  5  id.  DG. 

TOUJOURS  ET  UNCORE  PRIST 

(L.  Fr.).  Always  and  still  ready.  This  is 
the  name  of  a  plea  of  tender :  a«,  where  a 
man  is  indebted  to  another,  and  he  tenders 
the  amount  due,  and  afterwards  the  creditor 
brings  a  suit,  the  defendant  may  plead  the 
tender,  and  add  that  he  has  always  been  and 
is  still  ready  to  pay  what  he  owes,  w^hich 
may  be  done  by  the  formula  ioujours  etuncore 
prist.  He  must  then  pay  the  money  into 
court ;  and  if  the  issue  be  found  for  him  the 
defendant  will  be  exonerated  from  costs,  and 
the  plaintiff  made  justly  liable  for  them. 
3  Bouvier,  Inst.  n.  2923.  See  Tout  Temps 
Prist. 

TOUR  D'ECHELLE.  In  French  Law. 

A  right  which  the  owner  of  an  estate  has  of 
placing  ladders  on  his  neighbor's  property  to 
facilitate  the  reparation  of  a  party-wall  or 
of  buildings  which  are  supported  by  that 
wall.  It  is  a  species  of  servitude.  Lois  des 
Bat.  part  1,  c.  3,  sect.  2,  art.  9,  ^  1. 

The  space  of  ground  left  unoccupied  around 
a  building  for  the  purpose  of  enabling  the 
owner  to  repair  it  with  convenience:  this  is 
not  a  servitude,  but  an  actual  corporeal  pro- 
perty. 

TOUT  TEMPS  PRIST  (L.  Fr.  always 
ready). 

In  Pleading.  A  plea  by  which  the  de- 
fendant signifies  that  he  has  always  been 
ready  to  perform  what  is  required  of  him. 
The  object  of  the  plea  is  to  save  costs:  as, 
for  example,  where  there  has  been  a  tender 
and  refusal.  3  Blackstone,  Comm.  303 ; 
Comyns,  Dig.  Pleader,  2  Y  5.  So,  in  a  writ 
of  dower,  where  the  plea  is  detinue  of  char- 
ters, the  demandant  might  reply,  always 
ready.  Rastell,  Entr.  229  h;  Stearns,  Real 
Act.  310.    See  Uncore  Prist. 

TOWAGE.  The  act  of  towing  or  draw- 
ing ships  and  vessels,  usually  by  means  of  a 
small  steamer  called  a  tug. 

That  which  is  given  for  towing  ships  in 
rivers.  Guidon  de  la  Mer,  c.  16 ;  Pothier, 
Des  Avaries,  n.  147  ;  2  Chitty,  Comm.  Law, 
16. 

TOWN.  A  term  of  somewhat  varying 
signification,  but  denoting  a  division  of  a  coun- 
try next  smaller  in  extent  than  a  county. 

In  Pennsylvania  and  some  other  of  the 
Middle  states,  it  denotes  a  village  or  city.  In 
the  New  England  states,  it  is  to  be  considered 
for  many  purposes  as  the  unit  of  civil  organ- 
ization,— the  counties  being  composed  of  a 
number  of  towns.  Towns  are  regarded  as 
corporations  or  quasi-coY^orni\on».  13  Mass. 
193.  In  New  York  and  AVisconsin,  towns 
are  subdivisions  of  counties  ;  and  the  same  is 
irue  of  the  townships  of  most  of  the  Western 


states.  In  Ohio,  Michigan,  Illinois,  and  Iowa, 
they  are  called  townships.  In  England,  the 
term  town  or  vill  comprehends  under  it  the 
several  species  of  cities,  bonnighs,  and  com- 
mon towns.  1  Blackstone,  Comm.  114. 

TOWN-PLAT.  The  acknowledgment  and 
recording  of  a  town-plat  vests  tiie  legal  title 
to  the  ground  embraced  in  the  streets  and 
alleys  in  the  corporation  of  the  town  :  there- 
fore it  is  held  that  the  proprietor  who  has 
thus  dedicated  the  streets  and  alleys  to  the 
public  cannot  maintain  trespass  for  an  injury 
to  the  soil  or  freehold.  The  corporation  alone 
can  seek  redress  for  such  injury.  11  III.  554; 
13  id.  54,  308.  This  is  not  so,  however,  with 
a  highway:  the  original  owner  of  the  fee 
must  bring  his  action  for  an  injury  to  the 
soil.  13  III.  54.  See  Highway.  If  the  streets 
or  alleys  of  a  town  are  dedicated  by  a  differ- 
ent mode  from  that  pointed  out  by  the  statute, 
the  fee  remains  in  the  proprietor,  burdened 
with  the  public  easement.    13  III.  312. 

TOWNSHIP.  The  public  lands  of  the 
United  States  are  surveyed  first  into  tracts 
called  townships,  being  in  extent  six  miles 
square.  The  subdivisions  of  a  township  are 
called  sections,  each  a  mile  square  and  con- 
taining six  hundred  and  forty  acres ;  these 
are  subdivided  into  quarter-sections,  and 
from  that  into  lots  of  forty  acres  each.  This 
plan  of  subdividing  the  public  lands  was 
adopted  by  act  of  congress  of  May  18,  1796. 
See  Brightly,  Dig.  U.  S.  Laws,  493. 

TRADE.  Any  sort  of  dealings  by  way 
of  sale  or  exchange.  The  dealings  in  a  par- 
ticular business :  as,  the  Indian  trade  ;  the 
business  of  a  particular  mechanic :  hence 
boys  are  said  to  be  put  apprentices  to  learn 
a  trade :  as,  the  trade  of  a  carpenter,  shoe- 
maker, and  the  like.  Bacon,  Abr.  Master 
and  Servant  (D  1).    Trade  differs  from  art. 

It  is  the  policy  of  the  law^  to  encourage 
trade ;  and  therefore  all  contracts  which  re- 
strain the  exercise  of  a  man's  talents  in  trade 
are  detrimental  to  the  commonwealth  and 
therefore  void ;  though  he  may  bind  himself 
not  to  exercise  a  trade  in  a  particular  place ; 
for  in  this  last  case,  as  he  may  pursue  it  in 
another  place,  the  commonwealth  has  the 
benefit  of  it.  8  Mass.  223  ;  9  id.  522.  See 
Ware,  Dist.  Ct.  257,  260 ;  Comyns,  Dig.  Trade; 
Viner,  Abr.  Trade. 

TRADE-MARK.  A  symbol,  emblem, 
or  mark,  which  a  tradesman  puts  upon  or 
wraps  or  attaches  in  some  way  to  the  goods 
he  manufactures  or  has  caused  to  be  manu- 
factured. 

2.  It  may  be  in  any  form  of  letters,  words, 
vignettes,  or  ornamental  design.  Newly-re- 
cognized words  may  form  a  trade-mark.  Bur- 
nett V.  Phalon,  New  York  Superior  Court, 
April,  1859.  A  common  name  of  an  article 
and  of  a  place  may,  by  combination,  become 
a  trade-mark.    2  Bosw.  N.  Y.  1. 

In  some  of  the  adjudged  cases  it  has  been 
said  that  there  is  no  property  in  a  trade- 
mark; while  in  others  it  is  stated  positively 
that  there  is;  and  although  perhaps  the  right 


TRADE-MARK 


604 


TRADER 


is  best  termed  "an  exclusive  right  arising 
from  first  use,"  yet  it  is  submitted  that  the 
right  of  property  may  be  a  correct  one. 

Courts  of  equity  have  not  interfered  by  in- 
junction in  cases  of  alleged  infringement  of 
trade-marks,  except  in  aid  of  a  legal  right; 
and  if  the  fact  of  a  plaintiflfs  property  in  the 
trade-mark  or  of  the  defendant's  interference 
with  it  has  appeared  even  at  all  doubtful,  the 
plaintiff  has  been  left  to  establish  his  case 
first  by  an  action  at  law.  4  E.  D.  Smith, 
N.  Y.  387. 

8.  Alien  merchants  and  traders  have  the 
same  right  of  protection,  in  regard  to  their 
trade-marks  as  citizens.  2  Woodb.  &  M.  C. 
C.  1 ;  3  Kay  &  J.  Ch.  423,  428 ;  4  Jur.  n.  s. 
865. 

Although  there  may  be  a  similarity  of  marks, 
a  court  will  not  interfere  where  a  plaintiff's 
article  is  put  forth  to  the  world  under  false- 
hood. This  falsehood  may  consist  in  untruth 
as  to  its  ingredients.  6  Beav.  Rolls,  67;  8 
Sim.  Ch.  477;  4  Abb.  Pract.  N.  Y.  144. 

No  property  can  be  acquired  in  words, 
marks,  or  devices  which  denote  the  mere 
nature,  kind,  and  quality  of  articles.  17 
Barb.  N.  Y.  608.  _ 

4.  In  the  examination  of  conflicting  trade- 
marks, the  courts  will  judge  as  would  the 
public.    18  Beav.  Rolls,  164. 

Mere  variations  of  arrangement  of  a  trade- 
mark, wdth  secondary  additions  and  omis- 
sions, will  justify  an  injunction.  Coats  v. 
Piatt,  N.  Y.  Superior  Court^  ^ay,  1860. 

While  there  may  be  striking  differences  in 
trade-marks,  yet  if  in  the  Mst  made  there  is 
an  ingenuity  which  would  deceive,  the  court 
will  interfere.    10  Beav.  Rolls,  297. 

Where  injury  is  not  probable,  an  injunc- 
tion will  not  be  granted ;  nor  will  damages 
be  given  where  no  sales  of  goods  covered 
by  a  forged  trade-mark  have  taken  place. 
Monlun  v.  West,  N.  Y.  Superior  Court. 

Although  a  defendant  may  deny  all  wrong- 
ful intent,  yet  if  it  appears  from  circum- 
stances the  court  will  act.    10  Jur.  106. 

A  simulated  article  may  be  equal  in  value 
to  that  covered  by  the  true  mark,  but  still  it 
will  be  enjoined  while  it  is  covered  by  an 
imitation  mark.    2  Woodb.  &  M.  C.  C.  1. 

5.  Although  intermediate  buyers  may 
know  the  difference  between  true  and  false, 
yet  if  retailers  will  be  deceived  an  injunc- 
tion and  damages  may  be  had,  2  Sandf. 
Ch.  N.  Y.  5-86.  Where  conflicting  partners 
claim  ownership  in  a  trade-mark,  there  will 
be  no  injunction,  5  McLean,  C.  C.  256;  but 
the  writ  has  been  granted  where  there  has 
been  a  dissolution  and  the  old  style  of  part- 
nership is  ue5ed  by  either  partner  in  a  new 
business.    4  Abb.  Pract.  N.  Y.  394. 

Where  goods,  with  a  false  mark,  are  made 
for  a  foreign  market,  an  injunction  will  stop 
them.  6  Beav.  Rolls,  69,  n. ;  4  Mann.  &  G. 
359 ;  4  Jur.  n.  s.  865. 

The  cunning  of  fraud  has  been  used  in  re- 
gard to  committing  wrong  on  trade-marks: 
thuB,  there  has  been  a  remctval  of  labels  of  a 
lower  grade  of  number  from  an  inferior 


genuine  article,  and  those  of  a  higher  class 
put  thereon.  3  Du.  N.  Y.  624.  Genuine 
wrappers  have  been  obtained  and  used  about 
other  goods.  4  Barnew.  &  Ad.  410.  True 
labels  have  been  wrongfully  printed  and  sold 
as  true  labels.  1  Kay  &  J.  Ch.  509 ;  6  P^Gex, 
M.  &G.  214. 

6.  Injunctions  have  been  granted  w^here 
there  have  been  parties  of  the  same  name 
and  the  similarity  of  trade-marks  carried 
the  conclusion  of  simulation.  7  Beav.  Rolls, 
84;  23  Law  Jour.  n.  s.  255;  25  Barb.  N.  Y. 
76;  3  DeGex,  M.  &  G.  896. 

A  party  runs  a  chance  of  affecting  his 
right  to  a  trade-mark  by  non-use,  by  a  for- 
bearance in  suing  protectively,  and  by  adopt- 
ing a  new  one. 

See  Edwards,  Trade-Marks ;  2 Kent,  Comm. 
484,  n. ;  1  Western  Law  Jour.  New  Series, 
no.  8 ;  25  Am.  Jur.  279 ;  4  Mann.  &  G.  357 ;  3 
Barnew.  &  C.  541;  5  Dowl.  &  R.  292;  2 
Keen.  Rolls,  213 ;  Deceit. 

TRADER.  One  who  makes  it  his  business 
to  buy  merchandise,  or  goods  and  chattels,  and 
to  sell  the  same  for  the  purpose  of  making  a 
profit.  The  quantum  of  dealing  is  immaterial, 
when  an  intention  to  deal  generally  exists.  3 
Stark.  56;  2  Carr.  &  P.  135;  1  Term,  572. 

2.  Questions  as  to  who  is  a  trader  most 
frequently  arise  under  the  bankrupt  laws; 
and  the  most  difficult  among  them  are  those 
cases  where  the  party  follows  a  business 
which  is  not  that  of  buying  and  selling 
principally,  but  in  which  he  is  occasionally 
engaged  in  purchases  and  sales. 

A  farmer  who,  in  addition  to  his  usual 
business,  occasionally  buys  a  horse  not  cal- 
culated for  his  usual  occupation,  and  sells 
him  again  to  make  a  profit,  and  who  in  the 
course  of  two  years  had  so  bought  and  sold 
five  or  six  horses,  two  of  which  had  been 
sold,  after  he  had  bought  them,  for  the  sake 
of  a  guinea  profit,  was  held  to  be  a  trader. 
1  Term,  537,  n. ;  1  Price,  Exch.  20.  Another 
farmer,  who  bought  a  large  quantity  of  pota- 
toes, not  to  be  used  on  his  farm,  but  merely 
to  sell  again  for  a  profit,  was  also  declared 
to  be  a  trader.  1  Strange,  513.  See  7  Taunt. 
409;  5  Bos.  &  P.  78;  11  East,  274. 

3.  A  butcher  who  kills  only  such  cattle  as 
he  has  reared  himself  is  not  a  trader,  but 
if  he  buy  them  and  kill  and  sell  them  with 
a  view  to  profit,  he  is  a  trader.  4  Burr.  21, 
47.  See  2  Rose,  Bank.  38;  3  Campb.  233; 
Cooke,  Bank.  Law,  48,  73;  2  Wils.  Ch.  169; 
1  Atk.  Ch.  128;  Cowp.  745. 

A  brickmaker  who  follows  the  business 
for  the  purpose  of  enjoying  the  profits  of 
his  real  estate  merely  is  not  a  trader ;  but 
when  he  buys  the  earth  bj  the  load  or  other- 
wise, and  manufactures  it  into  bricks  and 
sells  them  with  a  view  to  profit,  he  is  a  trader, 
Cooke,  Bank.  Law,  52,  63;  7  East,  442;  3  Carr. 
&  P.  500;  Mood.  &  M.  263;  2  Rose,  Bank. 
422;  2  Glyn  &  J.  183  ;  1  Brown,  Ch.  173. 

For  further  examples  the  reader  is  referred 
to  4  Mann.  &  R.  486 ;  9  Barnew.  &  C.  577; 

1  Term,  34;  1  Rose,  Bank,  316;  2  Taunt.  178; 

2  Marsh.  236;  3  Moore  &  S.  761;  10  Bingh. 


TRADITIO  BREVIS  MANUS 


G05 


TRANSITORY  ACTION 


292;  Peake,  70;  1  Ventr.  270;  3  Brod.  &  B. 
2;  C  Moore,  56. 

TRADITIO  BREVIS  MANUS  (Lat.). 
In  Civil  Law.  The  delivery  of  a  thing  by 
the  mere  consent  of  the  parties:  as,  when 
Peter  holds  the  property  of  Paul  as  bailee, 
and  afterwards  he  buys  it,  it  is  not  neces- 
sary that  Paul  should  deliver  the  property 
to  Peter  and  he  should  re-deliver  it  to  Paul : 
the  mere  consent  of  the  parties  transfers  the 
title  to  Paul.  1  Duverg.  n.  252 ;  21  Me.  231 ; 
Pothier,  Pand.  lib.  50,  cdlxxiv.;  1  Bouvier, 
Inst.  n.  944. 

TRADITION  (Lat.  trans,  over,  do,  dare, 
to  give).  In  Civil  Law.  The  act  by  which 
a  thing  is  delivered  by  one  or  more  persons 
to  one  or  more  others. 

The  delivery  of  possession  by  the  proprie- 
tor with  an  intention  to  transfer  the  property 
to  the  receiver.  Two  things  are,  therefore, 
requisite  in  order  to  transmit  property  in  this 
way:  the  intention  or  consent  of  the  former 
owner  to  transfer  it,  and  the  actual  delivery 
in  pursuance  of  that  intention. 

Tradition  is  either  real  or  symbolical. 
Real  tradition  takes  place  where  the  ipsa 
corpora  of  movables  are  put  into  the  hands 
of  the  receiver.  Symbolical  tradition  is  used 
where  the  thing  is  incapable  of  real  delivery, 
as,  in  immovable  subjects,  such  as  lands  and 
houses,  or  such  as  consist  in  jure  (things  in- 
corporeal), as,  things  of  fishing,  and  the  like. 
The  property  of  certain  movables,  though 
they  ate  capable  of  real  delivery,  may  be 
transferred  by  symbol.  Thus,  if  the  subject 
be  under  lock  and  key,  the  delivery  of  the 
key  is  considered  as  a  legal  tradition  of  all 
that  is  contained  in  the  repository.  Cujas, 
Observations,  liv.  11,  ch.  10;  Inst.  2.  1. 
40 ;  Dig.  41.  1.  9  ;  Erskine,  Inst.  2.  1.  10. 
11 ;  La.  Civ.  Code,  art.  2452  et  seq.  See  De- 
livery. 

TRAFriC.  Commerce ;  trade ;  sale  or  ex- 
change of  merchandise,  bills,  money,  and  the 
like. 

TRAITOR.  One  guilty  of  treason.  See 
charge  of  Judge  Sprague,  Dist.  Ct.  of  Mass. 
1862;  Bishop,  Crimes. 

The  punishment  of  a  traitor  is  death. 

TRAITOROUSLY.  In  Pleading.  A 
technical  word,  which  is  essential  in  an  in- 
dictment for  treason  in  order  to  charge  the 
crime,  and  which  cannot  be  supplied  by  any 
other  word  or  any  kind  of  circumlocution. 
Having  been  well  laid  in  the  statement  of  the 
treason  itself,  it  is  not  necessary  to  state  every 
overt  act  to  have  been  traitorously  committed. 
See  Bacon,  Abr.  Indictment  (G  1);  Comyns, 
Dig.  Indictment  (G  6) ;  Hawkins,  PI.  Cr.  b.  2, 
c.  25,  s.  55 ;  1  East,  PI.  Cr.  115 ;  2  Hale,  PI.  Cr. 
172,  184;  4  Blackstone,  Comm.  307;  3  Insi 
15;  CrokeCar.37;  Carth.  319;  2  Salk.  683;  4 
Hargrave,  St.  Tr.  701 ;  2  Ld.  Raym.  870 ;  Comb. 
259  ;  2  Chitty,  Cr.  Law,  104,  note  (6). 

TRANSACTION  (from  Lat.  trans  and 
a^o,  to  carry  over).  In  Civil  Law.  An  agree- 
ment Detween  two  or  more  persons,  who,  for 


the  purpose  of  preventing  or  putting  an  end 
to  a  lawsuit,  adjust  tlioir  difference,  by  mutual 
consent,  in  the  manner  which  they  agree  on. 
In  Louisiana  this  contract  must  be  reduced 
to  writing.    La.  Civ.  Code,  art.  3038. 

Transactions  regulate  only  the  differences 
which  appear  to  be  clearly  comprehended  in 
them  by  the  intentions  of  the  parties,  whether 
they  be  explained  in  a  general  or  particular 
manner,  unless  it  be  the  necessary  consBi- 
quence  of  what  is  expressed;  and  they  do 
not  extend  to  differences  which  the  parties 
never  intended  to  include  in  them.  La.  Civ. 
Code,  art.  3040. 

To  transact,  a  man  must  have  the  capacity 
to  dispose  of  the  things  included  in  the 
transaction.  1  Domat,  Lois  Civiles,  1,  13,  1 ; 
Dig.  2.  15.  1 ;  Code,  2.  4.  41.  In  the  common 
law  this  is  called  a  compromise.  See  Com- 
promise. 

TRANSCRIPT  (Lat.).  A  copy  of  an 
original  writing  or  deed. 

TRANSFER  (Lat.  trans,  over, /ero,  to 
bear  or  ^arry).  The  act  by  which  the  owner 
of  a  thing  delivers  it  to  another  person,  with 
the  intent  of  passing  the  rights  which  he  has 
in  it  to  the  latter. 

TRANSFEREE.  He  to  whom  a  trans- 
fer is  made. 

TRANSFERENCE.  In  Scotch 
Law.  The  name  of  an  action  by  which  a  suit 
which  was  pending  at  the  time  the  parties 
died  is  transferred  from  the  deceased  to  his 
representatives,  in  the  condition  in  which  it 
stood  formerly.  If  it  be  the  pursuer  who  is 
dead,  the  action  is  called  a  transference  active; 
if  the  defender,  it  is  a  transference  passive, 
Erskine,  Inst.  4.  1.  32. 

TRANSFEROR.  One  who  makes  a 
transfer. 

TRANSGRESSION  (Lat.  trans,  over, 
gressio,  a  step).    The  violation  of  a  law. 

TRANSHIPMENT.  In  Maritime 
Law.  The  act  of  taking  the  cargo  out  of 
one  ship  and  loading  it  in  another. 

When  this  is  done  from  necessity,  it  does 
not  affect  the  liability  of  an  insurer  on  the 
goods.  1  Marshall,  Ins.  166 ;  Abbott,  Shipp. 
240.  But  when  the  master  tranships  goods 
without  necessity,  he  is  answerable  for  the 
loss  of  them  by  capture  by  public  enemies. 
1  Gall.  C.  C.  443. 

TRANSIRE.     In  English  Law.  A 

warrant  for  the  custom-house  to  let  goods 
pass ;  a  permit.  See,  for  a  form  of  a  transire, 
Hargrave,  Law  Tr.  104. 

TRANSITORY  ACTION.  In  Prac- 
tice. An  action  the  cause  of  which  might 
have  arisen  in  one  place  or  county  as  well  as 
another. 

In  general,  all  personal  actions,  whether 
ex  contractu,  5  Taunt.  25  ;  6  East,  352 ;  2 
Johns.  Cas.  N.  Y.  335 ;  2  Caines,  N.  Y.  374; 
3  Serg.  &  R.  Penn.  500;  1  Chitty,  Plead. 
243,  or  ex  delicto,  1  Chitty,  Plead.  243,  are 
transitory. 


TRANSITUS 


006 


TREASON 


Such  an  action  may  at  common  law  be 
brought  in  any  county  which  the  phiintifif 
elects;  but,  by  statute,  in  many  states  of  the 
United  States  provision  is  made  limiting  the 
right  of  the  plaintiff  in  this  respect  to  a 
county  in  which  some  one  or  more  of  the 
parties  has  his  domicil. 

TRANSITUS  (Lat.).    A  transit.  See 

Stoppage  in  Transitu. 

TRANSLATION.  The  reproduction  in 
one  language  of  what  has  been  written  or 
spoken  in  another. 

In  pleading,  when  a  libel  or  an  agreement  written 
in  a  foreign  language  must  be  averred,  it  is  necessary 
that  a  translation  of  it  should  also  be  given. 

In  evidence,  when  a  witness  is  unable  to  speak 
the  English  language  so  as  to  convey  his  ideas,  a 
translation  of  his  testimony  must  be  made.  In  that 
case  an  interpreter  should  be  sworn  to  translate 
to  him,  on  oath,  the  questions  propounded  to  him, 
and  to  translate  to  the  court  and  jury. 

The  bestowing  of  a  legacy  which  had  been 
given  to  one,  on  another:  this  is  a  species 
of  ademption ;  but  it  differs  from  it  in  this, 
that  there  may  be  an  ademption  without  a 
translation,  but  there  can  be  no  translation 
vrithout  an  ademption.  Bacon,  Abr.  Lega- 
cies (C). 

The  transfer  of  property;  but  in  this  sense 
it  is  seldom  used.  2  Blackstone,  Comm.  294. 
See  Interpreter. 

In  Ecclesiastical  Law.  The  removal 
from  one  place  to  another:  as,  the  bishop 
was  translated  from  the  diocese  of  A  to  that 
of  B.  In  the  civil  law,  translation  signifies 
the  transfer  of  property.    Clef  des  Lois  Rom. 

TRANSMISSION  (from Lat.  trans,  over, 
mitto^  to  send).  In  Civil  Law.  The  right 
which  heirs  or  legatees  may  have  of  passing 
to  their  successors  the  inheritance  or  legacy 
to  which  they  were  entitled,  if  they  happen 
to  die  without  having  exercised  their  rights. 
Domat,  liv.  3,  t.  1,  s.  10;  4  Toullier,  n.  186; 
Dig.  50.  17.  54;  Code,  6.  51. 

TRANSPORTATION  (from  Lat.  trans, 
over,  beyond,  -porio,  to  carry).  In  English 
Law.  A  punishment  inflicted  by  virtue  of 
sundry  statutes:  it  was  unknown  to  the  com- 
mon law.  2  H.  Blackst.  223.  It  is  a  part  of 
the  judgment  or  sentence  of  the  court  that 
the  party  shall  be  transported  or  sent  into 
exile.  1  Chitty,  Crim.  Law,  789-796 ;  Princ. 
of  Pen.  Law,  c.  4,  \  2. 

TRAVAIL.    The  act  of  child-bearing. 

A  woman  is  said  to  be  in  her  travail  from 
the  time  the  pains  of  child-bearing  commence, 
until  her  delivery.  5  Pick.  Mass.  63 ;  6  Me. 
460. 

In  some  states,  to  render  the  mother  of  a 
bastard  child  a  competent  witness  in  the 

Erosecution  of  the  alleged  father,  she  must 
ave  accused  him  of  being  the  father  during 
the  time  of  her  travail.  1  Root,  Conn.  107; 
2  id.  490 ;  2  Mass.  443 ;  5  id.  518 ;  6  Me.  460 ; 
8  id.  163;  3  N.  II.  135.  But  in  Connecticut, 
when  the  state  prosecutes,  the  mother  is 
competent  although  she  did  not  accuse  the 
father  during  her  travail.    1  Day,  Conn.  278. 


TRAVERSE  (L.  Fr.  traverser,  to  turn 
over,  to  deny).    To  deny;  to  put  off. 

In  Civil  Pleading.  To  deny  or  c(mtrovert 
any  thing  which  is  alleged  in  the  previous 
pleading.  Lawes,  PI.  116.  A  denial.  Willes, 
224.  A  direct  denial  in  formal  words: 
"Without  this,  that,  etc."  (absque  hoc).  1 
Chitty,  Plead.  523,  n.  a.  A  traverse  may  deny 
all  the  facts  alleged,  1  Chitty,  Plead,  525,  or 
any  particular  material  fact.  20  Johns.  N. 
Y.  406. 

A  common  traverse  is  a  direct  denial,  in 
common  language,  of  the  adverse  allegations, 
without  the  absque  hoc,  and  concluding  to 
the  country.  It  is  not  preceded  by  an  induce- 
ment, and  hence  cannot  be  used  where  an 
inducement  is  requisite.   1  Saund.  103  6,  n.  1. 

A  general  traverse  is  one  preceded  by  a 
general  inducement  and  denying  all  that  is 
last  before  alleged  on  the  opposite  side,  in 
general  terms,  instead  of  pursuing  the  words 
of  the  allegation  which  it  denies.  Gould, 
Plead,  vii.  5,  6.  Of  this  sort  of  traverse  the 
replication  de  injuria  sua  propria  absque  tali 
causa,  in  answer  to  a  justification,  is  a  familar 
example.  Bacon,  Abr.  Pleas  (II  1) ;  Stephen, 
Plead.  171 ;  Gould,  Plead,  c.  7,  ^  5 ;  Arch- 
bold,  Civ.  Plead.  194. 

A  special  traverse  is  one  which  commences 
with  the  words  absque  hoc,  and  pursues  the 
material  portion  of  the  words  of  the  allega- 
tion which  it  denies.  Lawes,  Plead.  116-120. 
It  is  regularly  preceded  by  an  inducement 
consisting  of  new  matter.  Gould,  Plead,  c. 
7,  ^§  6,  7  ;  Stephen,  Plead.  188.  A  special 
traverse  does  not  complete  an  issue,  as  does  a 
common  traverse.  20  Viner,  Abr.  339  ;  Yelv. 
147,  148  ;  1  Saund.  22,  n.  2.  ^ 

A  traverse  upon  a  traverse  is  one  growing  . 
but  of  the  same  point  or  subject-matter  as 
is  embraced  in  a  preceding  traverse  on  the 
other  side.  Gould,  Plead,  c.  7,  §  42,  n.  It  is 
a  general  rule  that  a  traverse  well  intended 
on  one  side  must  be  accepted  on  the  other. 
And  hence  it  follows,  as  a  general  rule,  that 
there  cannot  be  a  traverse  upon  a  traverse 
if  the  first  traverse  is  material.  The  mean- 
ing of  the  rule  is  that  when  one  party  has 
tendered  a  material  traverse  the  other  can- 
not leave  it  and  tender  another  of  his  own  to 
the  same  point  upon  the  inducement  of  the  first 
traverse,  but  must  join  in  that  first  tendered  ; 
otherwise  the  parties  might  alternately  tender 
traverses  to  each  other  in  unlimited  succes- 
sion, without  coming  to  an  issue.  Gould, 
Plead,  c.  7,  ^  42.  The  rule,  however,  does 
not  supply  where  the  first  traverse  is  immate- 
rial; nor  where  it  is  material  if  the  plaintiff 
would  thereby  be  ousted  of  some  right  or 
liberty  which  the  law  allows.  Poph.  101 ; 
F.  Moore,  350;  Hob.  104;  Croke  Eliz.  99, 
418;  Comyns,  Dig.  Pleader  (G  18) ;  Bacon, 
Abr.  Pleas  (H  4) ;  Bouvier,  Inst.  Index. 

In  Criminal  Practice.  To  put  off  or 
delay  the  trial  of  an  indictment  till  a  suc- 
ceeding term.  More  properly,  to  deny  or  take 
issue  upon  an  indictment.  Dick.  Sess.  151 ; 
4  Sharswood,  Blackst.  Comm.  351. 

TREASON.    In  Criminal  Law.  This 


TREASURE  TROVE  607 


TREATY 


word  imports  a  betraying,   treachery,  or 
breach  of  allegiance    4  Sharsw^od,  Blackst. 
I  Comm.  75. 

I  2.  The  constitution  of  the  United  States, 
art.  3,  8.  3,  defines  treason  against  the  United 

}  States  to  consist  only  in  levying  war  against 
them,  or  in  adhering  to  their  enemies,  giving 

!  them  aid  or  comfort.    This  oifence  is  pun- 

!  ishod  with  death.    Act  of  April  30,  1790, 

1  Story,  U.  S.  Laws,  83.  By  the  same  article 
of  the  constitution,  no  person  shall  be  con- 
victed of  treason  unless  on  the  testimony  of 
two  witnesses  to  the  same  overt  act,  or  on 
confession  in  open  court.  See,  generally,  3 
Story,  Const.  39,  p.  667  ;  Sergeant,  Const,  c. 
30 ;  United  States  vs.  Fries,  Pamph. ;  1  Tucker, 
Blackst.  Comm.  App.  275,  276;  3  Wilson, 
Law  Lect.  96-99  ;  Foster,  Disc.  (I) ;  Burr's 
Trial ;  4  Cranch,  126,  469-508  ;  1  Dall.  35  ; 

2  id.  246,  355  ;  3  Wash.  C.  C.  234 ;  1  Johns. 
N.  Y.  553  ;  11  id.  549  ;  Comyns,  Dig.  Justices 
(K);  1  East,  PI.  Cr.  37-158:  2  Chitty,  Crim. 
Law,  60-102 ;  Archbold,  Crim.  Plead.  378- 
387. 

TREASURE  TROVE.  Found  treasure. 

This  name  is  given  to  such  money  or  coin,  gold, 
eilver,  plate,  or  bullion,  which,  having  been  hidden 
or  concealed  in  the  earth  or  other  private  place  so 
long  that  its  owner  is  unknown,  has  been  dis- 
covered by  accident.  Should  the  owner  be  found, 
it  must  be  restored  to  him ;  and  in  case  of  not 
finding  him,  the  propertj-^,  according  to  the  Eng- 
lish law,  belongs  to  the  king.  In  the  latter  case, 
by  the  civil  law,  when  the  treasure  was  found  by 
the  owner  of  the  soil  he  was  considered  as  entitled 
to  it  by  the  double  title  of  owner  and  finder;  when 
found  on  another's  property,  one-half  belonged  to 
the  owner  of  the  estate  and  the  other  to  the  finder; 
when  found  on  public  property,  it  belonged  one- 
half  to  the  public  treasury  and  the  other  to  the 
finder.  Lepons  du  Dr.  Rom.  350-352.  This  in- 
cludes not  only  gold  and  silver,  but  whatever  may 
constitute  riches:  as,  vases,  urns,  statues,  etc. 

The  Roman  definition  includes  the  same  things 
under  the  word/>ecnHm/  but  the  thing  found  must 
have  a  commercial  value;  for  ancient  tombs  would 
not  be  considered  a  treasure.  The  thing  must  have 
been  hidden  or  concealed  in  the  earth,  and  no  one 
must  be  able  to  establish  his  right  to  it.  It  must 
be  found  by  a  pure  accident,  and  not  in  conse- 
quence of  search.  Dalloz,  Diet.  Propriete,  art.  3, 
8.  3. 

According  to  the  French  law,  le  tresor  est  toute 
chose  cachee  ou  enfouie,  sur  laquelle  personne  ne 
peut  justifier  sa  propriete,  et  qui  est  decouverte 
par  le  pur  eflfet  du  hasard.  Code  Civ.  716.  See  4 
TouUier,  n.  34.  See,  generally,  20  Viner,  Abr.  414 ; 
7  Comyns,  Dig.  649 ;  1  Brown,  Civ.  Law,  237 ;  1 
Blackstone,  Comm.  295 ;  Pothier,  Traite  du  Droit 
de  Propriete,  art.  4. 

TREASURER.  An  officer  intrusted 
with  the  treasures  or  money  either  of  a  pri- 
vate individual,  a  corporation,  a  company,  or 
A  state. 

It  is  his  duty  to  use  ordinary  diligence  in 
'  the  performance  of  his  ojffice,  and  to  account 
with  those  whose  money  he  has. 

TREASURER  OF  THE  MINT.  An 
officer  created  by  the  act  of  January  18, 1837, 
whose  duties  are  prescribed  as  follows :  The 
treasurer  shall  receive  and  safely  keep  all 
moneys  which  shall  be  for  the  use  and  sup- 
port of  the  mint,  shall  keep  all  the  current 


accounts  of  the  mint,  and  pay  all  moneys  due 
by  the  mint,  on  warrants  from  the  director, 
lie  shall  receive  all  bullion  brought  to  the 
mint  for  coinage,  shall  be  the  keeper  of  all 
bullion  and  coin  in  the  mint  except  while  the 
same  is  legally  placed  in  the  hands  of  other 
officers,  and  shall,  on  warrants  from  the  di- 
rector, deliver  all  coins  struck  at  the  mint  to 
the  persons  to  whom  they  shall  be  legally 
payable.  And  he  shall  keep  regular  and 
faithful  accounts  of  all  the  transactions  of 
the  mint,  in  bullion  and  coins,  both  with  the 
officers  of  the  mint  and  the  depositors,  and 
shall  present  quarter-yearly  to  the  treasury  de- 
partment of  the  United  States,  according  to 
such  forms  as  shall  be  prescribed  by  that 
department,  an  account  of  the  receipts  and 
disbursements  of  the  mint,  for  the  purpose 
of  being  adjusted  and  settled. 

This  officer  is  required  to  give  bond  to  the 
United  States,  with  one  or  more  sureties,  to 
the  satisfaction  of  the  secretary  of  the  trea- 
sury, in  the  sum  of  ten  thousand  dollars. 

TREASURER  OP  THE  UNITED 
STATES.  Before  entering  on  the  duties 
of  his  office,  the  treasurer  is  required  to  give 
bond,  with  sufficient  sureties,  approved  by 
the  secretary  of  the  treasury  and  the  first 
comptroller,  in  the  sum  of  one  hundred  and 
fifty  thousand  dollars,  payable  to  the  United 
States,  with  condition  for  the  faithful  per- 
formance of  the  duties  of  his  office  and  for 
the  fidelity  of  the  persons  by  him  employed. 
Act  of  2d  September,  1789,  s.  4. 

His  principal  duties  are — to  receive  and 
keep  the  moneys  of  the  United  States,  and 
disburse  the  same  by  warrants  drawn  by  the 
secretary  of  the  treasury,  countersigned  by 
^the  proper  officer,  and  recorded  according  to 
law,  id.  s.  4 ;  to  take  receipts  for  all  moneys 
paid  by  him ;  to  render  his  account  to  the 
comptroller  quarterly,  or  oftener  if  required, 
and  transmit  a  copy  thereof,  when  settled,  to 
the  secretary  of  the  treasury ;  to  lay  before 
each  house,  on  the  third  day  of  each  session 
of  congress,  fair  and  accurate  copies  of  all 
accounts  by  him  from  time  to  time  rendered 
to  and  settled  with  the  comptroller,  and  a 
true  and  perfect  account  of  the  state  of  the 
treasury ;  to  submit  at  all  times  to  the  secre- 
tary of  the  treasury  and  the  comptroller,  or 
either  of  them,  the  inspection  of  the  moneys 
in  his  hands.    Id.  s.  4. 

TREASURY.  The  place  where  treasure 
is  kept ;  the  office  of  a  treasurer.  The  term 
is  more  usually  applied  to  the  public  than 
to  a  private  treasury.    See  Department. 

TREATY.    In  International  Law.  A 

treaty  is  a  compact  made  between  two  or 
more  independent  nations  with  a  view  to  the 
public  welfare.  Treaties  are  for  a  perpetuity, 
or  for  a  considerable  time.  Those  matters 
which  are  accomplished  by  a  single  act  and 
are  at  once  perfected  in  their  execution  are 
called  agreements,  conventions,  and  pactions. 

Personal  treaties  relate  exclusively  to  the 
persons  of  the  contracting  parties,  such  as 
1  family  alliances,  and  treaties  guaranteeing 


TREATY  OF  PEACE  608 


TRESPASS 


the  throne  to  a  particular  sovereign  and  his 
family.  As  they  relate  to  the  persons,  they 
expire  of  course  on  the  death  of  the  sovereign 
or  the  extinction  of  his  family. 

Real  treaties  relate  solely  to  the  subject- 
matters  of  the  convention,  independently  of 
the  persons  of  the  contracting  parties,  and 
continue  to  bind  the  state  although  there 
may  be  changes  in  its  constitution  or  in  the 
persons  of  its  rulers.  Vattel,  Law  of  Nat. 
b.  2,  c.  12,  U  183-197. 

2.  On  the  part  of  the  United  States,  trea- 
ties are  made  by  the  president,  by  and  with 
the  consent  of  the  senate,  provided  two-thirds 
of  the  senators  present  concur.  Const,  art.  2, 
8.  2,  n.  2. 

No  state  shall  enter  into  any  treaty,  alli- 
ance, or  confederation.  Const,  art.  1,  s.  10,  n. 
1 ;  nor  shall  any  state,  without  the  consent 
of  congress,  enter  into  any  agreement  or  com- 
pact with  another  state  or  with  a  foreign 
power.  Id.  art.  1,  sec.  10,  n.  2 ;  3  Story,  Const. 
I  1395. 

3.  A  treaty  is  declared  to  be  the  supreme 
law  of  the  land,  and  is,  therefore,  obligatory 
on  courts,  1  Cranch,  103 ;  1  Wash.  C.  C.  322  ; 
1  Paine,  C.  C.  55,  whenever  it  operates  of 
itself  without  the  aid  of  a  legislative  pro- 
vision ;  but  when  the  terms  of  the  stipula- 
tion import  a  contract,  and  either  of  the  par- 
ties engages  to  perform  a  particular  act,  the 
treaty  addresses  itself  to  the  political,  not  to 
the  judicial,  department,  and  the  legislature 
must  execute  the  contract  before  it  can  be- 
come a  rule  of  the  court.  2  Pet.  314.  See 
Story,  Const.  Index  ;  Sergeant,  Const.  Law, 
Index;  4  Hall,  Law  Journ.  461 ;  6  Wheat. 
161 ;  3  Dall.  199 ;  1  Kent,  Comm.  165,  284. 

TREATY  OF  PEACE.  A  treaty  of 
peace  is  an  agreement  or  contract  made  by 
belligerent  powers,  in  which  they  agree  to 
lay  down  their  arms,  and  by  which  they 
stipulate  the  conditions  of  peace  and  regulate 
the  manner  in  which  it  is  to  be  restored  and 
supported.    Vattel,  b.  4,  c.  2,  g  9. 

TREBLE  COSTS.  In  English  Prac- 
tice. The  taxed  costs  and  three-fourths  the 
same  added  thereto.  It  is  computed  by  add- 
ing one-half  for  double  costs,  and  in  addition 
one-half  of  one-half  for  treble  costs.  1  Chitty, 
Bail.  137  ;  1  Chitty,  Pract.  27. 

In  American  Law.  In  Pennsylvania  the 
rule  is  different:  when  an  act  of  assembly 
gives  treble  costs,  the  party  is  allowed  three 
times  the  usual  costs,  with  the  exception 
that  the  fees  of  the  officers  are  not  to  be 
trebled  when  they  are  not  regularly  or  usually 
payable  by  the  defendant.  2  Rawle,  Penn. 
201. 

And  in  New  York  the  directions  of  the 
statute  are  to  be  strictly  pursued,  and  the 
costs  are  to  be  trebled.  2  Dunlop,  Pract. 
731. 

TREBLE  DAMAGES.  In  actions 
arising  ex  contractu,  some  statutes  give  treble 
damages ;  and  these  statutes  have  been  libe- 
rally construed  to  mean  actually  treble  dam- 
•gen:  for  example,  if  the  jury  give  twenty 


dollars  damages  for  a  forcible  entry,  the 
court  will  award  forty  dollars  more,  an 
to  make  the  total  amount  of  damages  sixty 
dollars.    4  Barnew.  &  C.  154;  M'Clel.  5(37. 

SJ.  The  construction  on  the  words  treble 
damages  is  different  from  that  which  has 
been  put  on  the  words  treble  costs.  See  6 
Serg.  &  R.  Penn.  288  ;  1  Browne,  Penn.  9  ; 

1  Cow.  N.  Y.  160,  175,  176,  584;  8  id.  115. 

TREBXJCKET.  The  name  of  an  engina 
of  punishment,  said  to  be  synonymous  with 
iunibrel. 

TREE.  A  woody  plant,  which  in  respect 
of  thickness  and  height  grows  greater  than 
any  other  plant. 

*Z.  Trees  are  part  of  the  real  estate  while 
growing  and  before  they  are  severed  from 
the  freehold ;  but  as  soon  as  they  are  cut 
down  they  are  personal  property. 

Some  trees  are  timber-trees,  while  others 
do  not  bear  that  denomination.   See  Timber  ; 

2  Blackstone,  Comm.  281. 

Trees  belong  to  the  owner  of  the  land 
where  they  grow  ;  but  if  the  roots  go  out  of 
one  man's  land  into  that  of  another,  or  the 
branches  spread  over  the  adjoining  estates, 
such  roots  or  branches  may  be  cut  off  by  the 
owner  of  the  land  into  which  they  thus  grow. 
Rolle,  394 ;  3  Bulstr.  198 ;  Viner,  Abr.  Trees 
(E),  Nuisance  (W  2) ;  1  Suppl.  to  Ves.  Jr. 
138;  2  Suppl.  Ves.  Ch.  162,  448  ;  6  Ves.  Ch. 
109. 

3.  When  the  roots  grow  into  the  adjoining 
land,  the  owner  of  such  land  may  lawfully 
claim  a  right  to  hold  the  tree  in  common  with 
the  owner  of  the  land  where  it  was  planted ; 
but  if  the  branches  only  overshadow  the  ad- 
joining land^  and  the  roots  do  not  enter  it,  the 
tree  wholly  belongs  to  the  owner  of  the  estate 
where  the  roots  grow.  1  Ld.  Raym.  737.  See 
1  Pick.  Mass.  224 ;  13  id.  44 ;  4  Mass.  266  ;  6 
N.  H.  430;  3  Day,  Conn.  476;  7  Conn.  125 ;  11 
id.  177;  11  Coke,  50;  Hob.  310 ;  2  Rolle,  141 ; 
Mood.  &  M.  112  ;  8  East,  394 ;  5  Barnew.  & 
Aid.  600  ;  1  Chitty,  Gen.  Pract.  625  ;  2  Phil- 
lipps,  Ev.  138;  Washburn,  Easem. ;  Code  Civ. 
art.  671 ;  Pardessus,  T)-.  des  Servitudes,  297; 
Broke,  Abr.  Demand,  20 :  Dalloz,  Diet.  Servi- 
tudes, art.  3,  §  8 ;  2  P.  Will.  606 ;  F.  Moore, 
812;  Hob.  219;  Plowd.  470;  5  Barnew.  & 
C.  897.  When  the  tree  grows  directly  on  the 
boundary-line,  so  that  the  line  passes  through 
it,  it  is  the  property  of  both  owners,  whether 
it  be  marked  as  a  boundary  or  not.  12  N.  H. 
454. 

TRESAILE,  or  TRESAYLE.  The 

grandfather's  grandfather.  1  Blackstone, 
bmm.  186. 

TRESPASS.  Any  misfeasance  or  act 
of  one  man  whereby  another  is  injuriously 
treated  or  damnified.  3  Blackstone,  Comm. 
208  ;  7  Conn.  125. 

Any  unlawful  act  committed  with  violence, 
actual  or  implied,  to  the  person,  property,  or 
rights  of  another. 

Any  unauthorized  entry  upon  the  realty 
of  another  to  the  damage  thereof. 


TRESPASS 


G09        TRESPASS  DE  BONIS,  ETC. 


The  w  ird  is  used  ofteiier  in  the  last  two  some- 
what restricted  significations  than  in  the  first  sense 
here  given.  In  determining  the  nature  of  the  act, 
neither  the  amount  of  violence  or  the  intent  with 
which  it  is  offered,  nor  the  extent  of  the  damage 
accomplished  or  the  purpose  for  which  the  act  was 
committed,  are  of  any  importance:  since  a  person 
who  enters  upon  the  land  of  another  without  leave, 
to  lead  off  his  own  runaway  horse,  and  who  breaks 
a  blade  of  grass  in  so  doing,  commits  a  trespass. 
2  Humphr.  Tenn.  325  ;  6  Johns.  N.  Y.  5. 

It  is  said  that  some  damage  must  be  committed 
to  make  an  act  a  trespass.  It  is  undoubtedly  true 
that  damage  is  required  to  constitute  a  trespass 
for  which  an  action  will  lie;  but,  so  far  as  the  tort 
itself  is  concerned,  it  seems  more  than  doubtful  if 
the  mere  commission  of  an  act  affecting  another, 
without  legal  authority,  does  not  constitute  trespass, 
though  until  damage  is  done  the  law  will  not  re- 
gard it,  inasmuch  as  the  law  does  not  regard  trifles. 

The  distinction  between  the  different  classes  of 
trespass  is  of  importance  in  determining  the  nature 
of  the  remedy. 

A  trespass  committed  with  force  ivS  said  to 
be  done  vi  et  armis;  one  committed  by  entry 
upon  the  realty,  by  hi'eaking  the  close. 

In  Practice.  A  form  of  action  which 
lies  to  recover  damao;es  for  the  injury  sus- 
tained by  the  plaintiff,  as  the  immediate  con- 
sequence of  some  wrong  done  forcibly  to  his 
person  or  property,  against  the  person  com- 
mitting the  same. 

The  action  lies  for  injuries  to  the  person 
of  the  plaintiff :  as,  by  assault  and  battery, 
wounding,  imprisonment,  and  the  like.  9  Vt. 
352 ;  6  Blackf.  Ind.  375. 

It  lies,  also,  for  forcible  injuries  to  the  per- 
son of  another,  whereby  a  direct  injury  is 
done  to  the  plaintiff  in  regard  to  his  rights 
as  parent,  master,  etc.  2  Aik.  Vt.  465  ;  2 
Caines,  N.  Y.  292;  8  Serg.  &  R.  Penn.  36. 
It  does  not  lie  for  mere  non-feasance,  nor 
where  the  matter  affected  was  not  tangible. 

The  action  lies  for  injuries  to  personal  pro- 
perty, which  may  be  committed  by  the  seve- 
ral acts  of  unlawfully  striking,  chasing  if 
alive,  and  carrying  away  to  the  damage  of 
the  plaintiff,  a  personal  chattel,  IWms.  Saund. 
84,  nn.  2,  3;  Fitzherbert,  Nat.  Brev.  86: 
Brooke,  Abr.  Trespass,  pi.  407;  Croke  Jac. 
362,  of  which  another  is  the  owner  and  in 
possession,  2  Root,  Conn.  209 ;  5  Vt.  97,  and 
for  the  removal  or  injury  of  inanimate  per- 
sonal property,  1  Me.  117:  12  id.  122;  13 
Pick.  Mass.  139  ;  5  Johns.  N.  Y.  348,  of  which 
another  has  the  possession,  actual  or  con- 
structive, 11  Pick.  Mass.  382;  21  id.  369; 
13  Johns.  N.  Y.  141 ;  1  N.  II.  110  ;  4  J.  J. 
Marsh.  Ky.  18;  2  Bail.  So.  C.  466  ;  4  Munf. 
Va.  444;  6  Blackf.  Ind.  136;  4  111.  9  ;  6  Watts 
&  S.  Penn.  323,  without  the  owner's  assent. 
A  naked  possession  or  right  to  immediate 
possession  is  sufficient  to  support  this  action. 

I  Term,  480  ;  7  Johns.  N.  Y.  535  :  8  id.  432 ; 

II  id.  377  ;  5  Vt.  274;  1  Penn.  St.  238 ;  17 
Serg.  &  R.  Penn.  251 ;  11  Mass.  70  ;  11  Vt. 
521 ;  1  Ired.  No.  C.  163  ;  10  Vt.  165.  See 
Trespasser. 

The  action  lies  also  for  injuries  to  the  realty 
consequent  upon  entering  without  right  upon 
another  man's  land  (breaking  his  close). 
Tne  inclosure  may  be  purely  imaginary,  3 

Vol.  II.— 39 


Blackstone,  Comm.  209  ;  1  Dev.  &  B.  No. 
371,  but  reaches  to  the  sky  and  to  the  ceiitre 
of  the  earth.    J 9  Johns.  N.  Y.  381. 

3*  The  plaintiff  must  be  in  possession  with 
some  title,  5  East,  485  ;  9  J(.hns.  N.  Y.  61 ; 

11  id.  140,  385  ;  12  id.  183 ;  1  Nott  &  M'C. 
So.  C.  356  ;  2  id.  68  ;  10  Conn.  225  ;  11  id, 
60  ;  6  Rand.  Va.  8,  556  ;  4  Watts,  Penn. 
377  ;  4  Pick.  Mass.  305  ;  15  id.  32 ;  4  Bibb, 
Ky.  218  ;  2  Hill,  So.  C.  466  ;  1  Ilarr.  &  J. 
Md.  295;  31  Penn.  St.  304;  5  llarr.  Del. 
320;  11  Ired.  417;  though  mere  title  is  sufifi- 
cient  where  no  one  is  in  possession,  2  Ala. 
229;  1  Wend.  N.  Y.  466:  1  Vt.  485  ;  8  Pick. 
Mass.  333  ;  4  Dev.  &  B.  No.  C.  68,  as  iu 
case  of  an  owner  to  the  centre  of  a  highway, 
4  N.  H.  36 ;  1  Penn .  St.  336 ;  see  17  Pick.  Mass. 
357;  and  mere  possession  is  sufficient  against 
a  wrong-doer,  9  Ala.  82  ;  1  Rice,  So.  C.  368; 
23  Ga.  590;  see  22  Pick,  Mass.  295;  and  the 
possession  may  be  by  an  agent,  3  M'Cord, 
So.  C.  422 ;  but  not  by  a  tenant,  8  Pick. 
Mass.  235  ;  1  Hill,  So.  C.*260;  see  13  Ind.  64, 
other  than  a  tenant  at  will.  15  Pick.  Mass. 
102. 

An  action  will  not  lie  unless  some  damage 
is  committed;  but  slight  damage  only  is  re- 
quired. 2  Johns.  N.  Y.  357;  9  id.  113,  377; 
2  Mass.  127 ;  4  id.  266. 

4r*  Some  damage  must  have  been  done  to 
sustain  the  action,  2  Bay,  So.  C.  421 ;  though 
it  may  have  been  very  slight :  as,  breaking 
glass.    4  Mass.  140. 

The  action  will  not  lie  where  the  defendant 
has  a  justification  sufficient  to  excuse  the  act 
committed,  though  he  acted  without  author- 
ity from  the  owner  or  the  person  affected.  8 
Law  Rep.  77.  See  Justification;  Tres- 
passer. Accident  may  in  some  cases  excuse 
a  trespass.    7  Vt.  62 ;  4  M'Cord,  So.  C.  61 ; 

12  Me.  67. 

The  declaration  must  contain  a  concise 
statement  of  the  injury  complained  of,  whe- 
ther to  the  person,  personal  or  real  property, 
and  it  must  allege  that  the  injury  was 
committed  vi  et  armis  and  contra  pacem.  See 

CONTINUANDO;   PeR  QuOAD. 

The  plea  of  not  guilty  raises  the  general 
issue,  and  under  it  the  defendant  may  give  in 
evidence  any  facts  which  show  that  the  pro- 
perty was  not  in  possession  of  the  plaintiff 
rightfully  as  against  the  defendant  at  the 
time  of  the  injury,  or  that  the  injury  was  not 
committed  by  the  defendant  with  force. 

Other  matters  must,  in  general,  be  pleaded 
specially.  See  Trespass  Quare  Clausdm. 
Matters  in  justification,  as,  authority  by 
law,  3  Hill,  N.  Y.  619  ;  4  Mo.  1,  defence  of 
the  defendant's  person  or  property,  taking  a 
distress  on  premises  other  than  those  de- 
mised, etc.,  1  Chitty,  Plead.  439,  custom  to 
enter,  4  Pick.  Mass.  145,  right  of  way,  7 
Mass.  385,  etc.,  must  be  specially  pleaded. 

Judgment  is  for  the  damages  assessed  by 
the  jury  when  for  the  plaintiff,  and  for  costa 
when  for  the  defendant. 

TRESPASS  DE  BONIS  ASPORTA- 
TIS  (Lat,  de  bonis  asportatis,  for  goods  "w  hich 
have  been  carried  away). 


TRESPASS  FOR  MESNE,  ETC. 


610 


TRESPASSER 


In  Practice.  A  form  of  action  brought 
by  the  owner  of  goods  to  recover  damages 
for  unhiwfully  taking  and  carrying  them 
away.    1  Me.*  117. 

It  is  no  answer  to  the  action  that  the  de- 
fendant has  returned  the  goods.  1  Bouvier, 
Inst.  n.  36  (H). 

TRESPASS  FOR  MESNE  PRO- 
PITS.  A  form  of  action  supplemental  to 
an  actici  of  ejectment,  brought  against  the 
tenant  in  possession  to  recover  the  profits 
which  he  has  unlawfully  received  during  the 
time  of  his  occupation.  3  Blackstone,  Comm. 
205  ;  4  Burr.  1668.  The  person  who  actually 
received  the  profits  is  to  be  made  defendant, 
whether  defendant  to  the  ejectment  or  not. 
11  Wheat.  280.  It  lies  after  a  recovery  in 
ejectment,  5  Cow.  N.  Y.  33  ;  11  Serg.  &  R. 
Penn.  55,  or  entry,  6  N.  H.  391,  but  not 
trespass  to  try  title,  Const.  So.  C.  102 ;  1 
M'Cord,  So.  C.  264 ;  and  the  judgment  in 
ejectment  is  conclusive  evidence  against  the 
defendant  for  all  profits  which  have  accrued 
since  the  date  of  the  demise  stated  in  the 
declaration  in  ejectment,  1  Blackf.  Ind.  56 ; 

2  Rawle,  Penn.  49  ;  but  suit  for  any  ante- 
cedent profits  is  open  to  a  new  defence,  and 
the  tenant  may  plead  the  statute  of  limita- 
tions as  to  all  profits  accruing  beyond  the 
period  fixed  by  law.  3  Sharswood,  Blackst. 
Comm.  205,  n. ;  2  Root,  Conn.  440. 

TRESPASS   ON   THE   CASE.  In 

Practice.  The  form  of  action  by  which  a 
person  seeks  to  recover  damages  caused  by 
an  injury  unaccompanied  with  force  or  which 
results  indirectly  from  the  act  of  the  defend- 
ant. It  is  more  generally  called,  simply, 
case.  See  Case  ;  3  Bouvier,  lust.  nn.  3482- 
3509. 

TRESPASS  QUARE  CLAUSUM 
FREG-IT  {Lilt,  quare  clausum /regit,  because 
he  has  broken  the  close). 

In  Practice.  The  form  of  action  which 
lies  to  recover  damages  for  injuries  to  the 
realty  consequent  upon  entry  without  right 
upon  the  plaintiff's  land. 

Mere  possession  is  sufficient  to  enable  one 
having  it  to  maintain  the  action,  5  Johns. 
N.  Y.  66 ;  12  Wend.  N.  Y.  488 ;  14  Pick. 
Mass.  297  ;  3  A.  K.  Marsh.  Ky.  331  ;  1  Harr. 
N.  J.  335  ;  22  Me.  350 ;  5  Blackf.  Ind.  465  ; 
1  Hawks,  No.  C.  485  ;  7  Gill  &  J.  Md.  321 ; 
see  1  Halst.  N.  J.  1,  except  as  against  one 
claiming  under  the  rightful  owner,  6  Halst. 
N.  J.  197  ;  6  N.  H.  9  ;  2  111.  181 ;  7  Mo.  333  ; 

3  Mete.  Mass.  239  ;  and  no  one  but  the  tenant 
can  have  the  action,  13  Me.  87  ;  19  Wend. 
N.  Y.  507  ;  9  Vt.  383  ;  11  id.  433,  except  in 
case  of  tenancies  at  will  or  by  a  less  secure 
holding.  8  Pick.  Mass.  333  ;  15  id.  102 ;  7 
Mete.  Mass.  147  ;  1  Dev.  No.  C.  435. 

The  action  lies  where  an  animal  of  the  de- 
fendant's breaks  the  plaintiff's  close  to  his 
injury.  7  Wrttts  &  S.  Penn.  367  ;  31  Penn. 
St.  525. 

TRESPASS  VI  ET  ARMIS  (Lat.  vi  et 

armis,  with  force  and  arras). 

In  Practice.    The  form  of  action  which 


lies  to  recover  damages  for  an  injury  which 
is  the  immediate  consequence  of  a  forcible 
wrongful  act  done  to  the  person  or  personal 
property.  2  Const.  So.  C.  294.  It  is  dis- 
tinguished from  case  in  this,  that  the  injury 
in  case  is  the  indirect  result  of  the  act  done. 
See  Case,  and  4  Bouvier,  Inst.  n.  3583. 

TRESPASS  TO  TRY  TITLE.  The 

name  of  the  action  used  in  South  Carolina 
for  the  recovery  of  the  possession  of  real 
property  and  damages  for  any  trespass  com- 
mitted upon  the  same  by  tlie  defendant. 

It  was  substituted  by  the  act  of  1791  in  place  of 
the  action  of  ejectment,  and  is  in  form  an  action  of 
trespass  qnare  clausuni  /regit,  with  the  single  ex- 
ception that  upon  the  writ  of  capias  ad  respon- 
dendum and  the  copy  writ  a  notice  must  be  in- 
dorsed that  "  the  action  is  brought  to  try  the  title 
as  well  as  for  damages."  The  action  must  be 
brought  in  the  name  of  the  real  owner  of  the  land; 
and  he  can  only  recover  on  the  strength  of  his 
own  title,  and  not  on  the  weakness  of  his  adver- 
sary's. It  is  usual  to  appoint  one  or  more  sur- 
veyors, who  furnish  at  the  trial  a  map  or  plot  of  the 
land  in  dispute;  and  with  reference  to  that  the 
verdict  is  rendered  by  the  jury.  A  trespass  must 
be  proved  to  have  been  committed  by  the  defend- 
ant or  his  agent;  and  the  plaintiff,  if  he  recovers 
at  all,  is  entitled  to  a  verdict  for  the  value  of  the 
rent  down  to  the  time  of  the  trial.  The  judgment 
for  the  plaintiff  is  only  for  the  damages;  but  upon 
that  he  is  entitled  to  a  writ  of  habere  facias  posses- 
sionem. 

TRESPASSER.  One  who  does  an  un- 
lawful act,  or  a  lawful  act  in  an  unlawful 
manner,  to  the  injury  of  the  person  or  pro- 
perty of  another. 

Any  act  which  is  injurious  to  the  property 
of  another  renders  the  doer  a  trespasser,  un- 
less he  has  authority  to  do  it  from  the  owner 
or  custodian,  14  Me.  44;  5  Blackf.  Ind.  237; 
8  N.  H.  220 ;  18  Pick.  Mass.  110,  or  by  law, 
2  Conn.  700;  3  Binn.  Penn.  215  ;  10  Johns. 
N.  Y.  138;  6  Ohio,  144;  12  Ala.  257;  1  N. 
H.  339  ;  4  id.  527  ;  13  Me.  250  ;  16  id.  132 ; 
6  111.  401,  411  ;  1  Humphr.  Tenn.  272;  and 
in  this  latter  case  any  defect  in  his  authority, 
as,  want  of  jurisdiction  by  the  court,  11  Conn. 
95  ;  3  Cow.  N.  Y.  206,  defective  or  void  pro- 
ceedings, 16  Me.  33  ;  12  N.  II.  148  ;  12  Vt. 
661 :  2  Dev.  No.  C.  370,  misapplication  of 
process,  6  Monr.  Ky.  296;  14  Me.  312;  17 
Vt.  412,  renders  him  liable  as  a  trespasser. 

So,  too,  the  commission  of  a  legal  act  in 
an  illegal  manner,  as,  the  execution  of  legal 
process  illegally,  2  Johns.  Cas.  N.  Y.  27  ;  5 
Me.  291 ;  6  Pick.  Mass.  455,  abuse  of  legal 
process,  1  Chitty,  Plead.  183-187 ;  Breese,  111. 
143 ;  16  Ala.  67,  exceeding  authority  conferred 
by  the  owner,  13  Me.  115,  or  by  law,  13  Mass. 
520 ;  10  Serg.  &  R.  Penn.  399 ;  17  Vt.  609, 
renders  a  man  a  trespasser. 

In  all  these  cases,  where  a  man  begins  an 
act  which  is  legal  by  reason  of  some  author- 
ity given  him,  and  then  becomes  a  trespasser 
by  subsequent  acts,  he  is  held  to  be  a  tres- 
passer from  the  beginning  [ab  initio).  13 
Mass.  520  ;  14  Pick.  Mass.  356  ;  1  Gilm.  Va, 
221 ;  10  Johns.  N.  Y.  253  ;  20  id.  427  ;  11  N. 
II.  363  ;  16  Vt.  393  ;  2  Ark.  45. 

A  person  may  be  a  trespasser  by  ordering 


TRESPASSER  AB  INITIO  611 


TRIAL 


such  an  act  done  as  makes  the  doer  a  tres- 
passer, U  Johns.  N.  Y.  400  ;  16  Ov.  Tenn.  13  ; 
lU  Pick.  Mass.  543  ;  or  by  subsequently  as- 
sentinj^,  in  some  cases,  1  Rawle,  Penn.  121  ; 
1  B.  Monr.  Ky.  96;  or  assisting,  though  not 
present.    2  Litt.  Ky.  240. 

TRESPASSER  AB  INITIO.  A  term 
applied  to  denote  that  one  who  has  com- 
menced a  lawful  act  in  a  proper  manner  has 
performed  some  unlawful  act,  or  some  lawful 
act  in  an  unlawful  manner,  so  connected 
with  the  previous  act  that  he  is  to  be  regarded 
as  having  acted  unlawfully  from  the  begin- 
ning. See  8  Coke,  146  ;  5  Taunt.  198  ;  7  Ad. 
&  E.  176;  11  Mees.  &  W.  Exch.  740;  15 
Johns.  N.  Y.  401.    See  Ab  Initio. 

TRET.  An  allowance  made  for  the  water 
or  dust  that  may  be  mixed  with  any  com- 
modity.   It  diifers  from  tare. 

TRIAL.  In  Practice.  The  examina- 
tion before  a  competent  tribunal,  according 
to  the  laws  of  the  land,  of  the  facts  put  in 
issue  in  a  cause,  for  the  purpose  of  deter- 
mining such  issue.    4  Mas.  C.  C.  232. 

Trial  by  certificate  is  a  mode  of  trial  allowed 
by  the  English  law  in  those  cases  where  the 
evidence  of  the  person  certifying  is  the  only 
proper  criterion  of  the  point  in  dispute.  For, 
when  the  fact  in  question  lies  out  of  the 
cognizance  of  the  court,  the  judges  must 
rely  on  the  solemn  averments  or  information 
of  persons  in  such  station  as  affords  them  the 
most  clear  and  complete  knowledge  of  the 
truth. 

As,  therefore,  such  evidence,  if  given  to  a 
jury,  must  have  been  conclusive,  the  law,  to 
save  trouble  and  circuity,  permits  the  fact 
to  be  determined  upon  such  certificate  merely. 
3  Blackstone,  Comm.  333 ;  Stephen,  Plead. 
122. 

Trial  by  grand  assize  is  a  peculiar  mode  of 
trial  allow^ed  in  writs  of  right.  See  Assize  ; 
Grand  Asslze. 

58.  Trial  by  inspection  or  examination  is  a 
form  of  trial  in  which  the  judges  of  the 
court,  upon  the  testimony  of  their  own  senses, 
decide  the  point  in  dispute. 

This  trial  takes  place  when,  for  the  greater 
expedition  of  a  cause,  in  some  point  or  issue 
being  either  the  principal  question  or  arising 
collaterally  out  of  it,  being  evidently  the 
object  of  sense,  the  judges  of  the  court,  upon 
the  testimony  of  their  own  senses,  shall  de- 
cide the  point  in  dispute.  For  where  the 
affirmative  or  negative  of  a  question  is  mat- 
ier  of  such  obvious  determination,  it  is  not 
ihought  necessary  to  summon  a  jury  to  de- 
cide it, — who  are  properly  called  in  to  inform 
che  conscience  of  the  court  in  respect  of 
dubious  facts;  and,  therefore,  when  the  fact 
from  its  nature  must  be  evident  to  the  court 
either  from  ocukr  demonstration  or  other 
irrefragable  proof,  there  the  law  departs  from 
its  usual  resort,  the  verdict  of  twelve  men, 
and  relies  on  the  judgment  alone.  For  ex- 
Ample,  if  a  defendant  pleads  in  abatement 
of  the  suit  that  the  plaintiff  is  dead,  and  one 
appears  and  calls  himself  the  plaintiff,  which 


the  defendant  denies,  in  this  case  the  judges 
shall  determine  by  inspection  and  examina- 
tio'..  whether  he  be  the  plaintiff  or  not.  9 
Coke,  30  ;  3  Blackstone,  Comm.  331 ;  Stephen, 
Plead.  123. 

Judges  of.  courts  of  equity  frequently  de- 
cide lacts  upon  mere  inspection.  The  most 
familiar  examples  are  tlujse  of  cases  where 
the  plaintiff  prays  an  injunction  on  an  alle- 
gation of  piracy  or  infringement  of  a  patent 
or  copyright.  '5  Ves.  Ch.  709 ;  12  id.  270, 
and  the  cases  there  cited.  And  see  2  Atk. 
Ch.  141;  2  Barnew. &C.80;  4  Ves."Ch.  081 ; 
2  Russ.  Ch.  385 ;  1  Ves.  &  B.  Ch.  Ir.  67  ;  Croke 
Jac.  230 ;  1  Dall.  166. 

3.  Trial  by  jury  is  that  form  of  trial  in 
which  the  facts  are  determined  by  twelve 
men  impartially  selected  from  the  body  of 
the  county.    See  Jury. 

To  insure  fairness,  this  mode  of  trial  must 
be  in  public :  it  is  conducted  by  selecting  a 
jury  in  the  manner  prescribed  by  the  local 
statutes,  w^ho  must  be  sworn  to  try  the  matter 
in  dispute  according  to  law  and  the  evidence. 
Evidence  is  then  given  by  the  party  on  whom 
rests  the  onus  probandi  or  burden  of  the 
proof :  as  the  witnesses  are  called  by  a  party 
they  are  questioned  by  him,  and  after  they 
have  been  examined,  which  is  called  an  ex- 
amination in  chief,  they  are  subject  to  a  cross- 
examination  by  the  other  party  as  to  every 
part  of  their  testimony.  Having  examined 
all  his  witnesses,  the  party  who  supports  the 
affirmative  of  the  issue  closes ;  and  the  other 
party  then  calls  his  witnesses  to  explain  his 
case  or  support  his  part  of  the  issue:  these 
are  in  the  same  manner  liable  to  a  cross-ex- 
amination. 

4.  In  case  the  parties  should  differ  as  to 
what  is  to  be  given  in  evidence,  the  judge 
must  decide  the  matter,  and  his  decision  is 
conclusive  upon  the  parties  so  far  as  regards 
the  trial ;  but  bill  of  exceptions  maybe  taken, 
motion  in  arrest  of  judgment  made,  or  other 
proper  means  adopted,  so  that  the  matter 
may  be  examined  before  another  tribunal. 
When  the  evidence  has  been  closed,  the  coun- 
sel for  the  party  who  supports  the  affirmative 
of  the  issue  then  addresses  the  jury,  by 
recapitulating  the  evidence  and  applying  the 
law  to  the  facts  and  showing  on  what  par- 
ticular points  he  rests  his  case.  The  oppo- 
site counsel  then  addresses  the  jury,  en- 
forcing in  like  manner  the  facts  and  the  law 
as  applicable  to  his  side  of  the  case ;  to 
which  the  other  counsel  has  a  right  to  reply. 
It  is  then  the  duty  of  the  judge  to  sum  up 
the  evidence  and  explain  to  the  jury  the  law 
applicable  to  the  case :  this  is  called  his 
charge.  See  Charge.  The  jurors  then  re- 
tire to  deliberate  upon  their  verdict,  and, 
after  having  agreed  upon  it,  they  come  into 
court  and  deliver  it  in  public. 

5.  In  case  they  cannot  agree,  they  may, 
in  cases  of  necessity,  be  discharged ;  but  it 
is  said  in  capital  cases  they  cannot  be.  See 
Discharge  of  a  Jury.  Yery  just  and  merited 
encomiums  have  been  bestowed  on  this  mode 
of  trial,  particularly  in  criminal  cases.  Liv- 


TRIAL 


612 


TRIBUNAL 


ingston,  Rep.  on  the  Plan  of  a  Penal  Code, 
13 ;  3  Story,  Const.  §  1773. 

A  trial  by  jury  in  criminal  cases  does  not 
essentially  diifer  from  the  trial  of  a  civil 
action ;  but  the  accused  is  entitled  to  some 
privileges  in  the  selection  of  jurors  vrho  are 
to  try  him,  in  the  former  case,  which  do  not 
exist  in  the  latter.  Of  these  the  right  of 
challenge,  or  of  taking  exception  to  the  jurors, 
is  much  the  most  extensive.  See  Challenge. 
He  has  a  right  to  be  distinctly  informed  of 
the  nature  of  the  charge  against  him,  with  a 
copy  of  the  indictment.  He  is  also  entitled 
to  a  list  of  the  jurors  who  are  to  pass  upon 
his  case,  and  of  the  names  of  the  witnesses 
who  will  testify,  a  certain  number  of  days 
before  the  trial.  And  the  jury  must  delibe- 
rate and  decide  upon  the  principle  that  every 
man  is  to  be  presumed  innocent  until  he  is 
proved  to  be  guilty;  and,  as  a  necessary  con- 
sequence, they  cannot  convict  him  if  they 
have  any  reasonable  doubt  of  his  guilt.  See 
Worthington,  Juries;  Archbuld,  Nisi  Prius; 
Graham  ..&  W.  New  Trials ;  3  Blackstone, 
Comm.  c.  22 ;  15  Serg.  &  R.  Penn.  61 ;  Due 
Process  of  Law;  Jury. 

6.  Trial  at  nisi  prius.  Originally,  a  trial 
before ajustice  in  eyre.  Afterwards,  by  Westm. 
2,  13  Edw.  I.  c.  30,  before  ajustice  of  assize. 
3  Sharswood,  Blackst.  Comm.  353.  See  Nisi 
Prius.  At  nisi  prius  there  is,  generally,  only 
one  judge,  sometimes  more.  3  Chitty,  Gen. 
Pract.39.  In  the  United  States,  a  trial  before 
a  single  judge. 

Trial  hy  the  record.  This  trial  applies  to 
cases  where  an  issue  of  nul  tiel  record  is 
joined  in  any  action.  If  on  one  side  a  re- 
cord be  asserted  to  exist,  and  the  opposite 
party  deny  its  existence  under  the  form  of 
traverse,  that  there  is  no  such  record  remain- 
ing in  court,  as  alleged,  and  issue  be  joined 
thereon,  this  is  called  an  issue  of  nut  tiel 
record  ;  and  the  court  awards,  in  such  case,  a 
trial  by  inspection  and  examination  of  the 
record.  Upon  this  the  party  affirming  its 
existence  is  bound  to  produce  it  in  court  on 
a  day  given  for  the  purpose,  and  if  he  fail  to 
do  so  judgment  is  given  for  his  adversary. 

'7.  The  trial  by  record  is  not  only  in  use 
when  an  issue  of  this  kind  happens  to  arise 
for  decision,  but  it  is  the  only  legitimate 
mode  of  trying  such  issue;  and  the  parties 
cannot  put  themselves  upon  the  country. 
Stephen,  Plead.  122 ;  2  Sharswood,  Blackst. 
Comm.  330. 

Trial  bij  wager  of  battel.  In  the  old  Eng- 
lish la^,  this  was  a  barbarous  mode  of  trying 
facts,  among  a  rude  people,  founded  on  the 
supi  osition  that  heaven  would  always  inter- 
pose and  give  the  victory  to  the  champions 
of  truth  and  innocence.  This  mode  of  trial 
was  abolished  in  England  as  late  as  the  stat. 
59  Geo.  III.  c.  46,  a.d.  1818.  It  never  was  in 
force  in  the  United  States.  See  3  Sharswood, 
Blackst.  Comm.  337 ;  1  Hale,  Hist.  Comm. 
Law,  188.  See  a  modern  case,  1  Barnew.  & 
Aid.  405. 

8.  Trial  hrj  wager  of  law.  This  mode  of 
►rial  has  fallen  into  complete  disuse ;  but,  in 


point  of  law,  it  seems  in  England  to  be  still 
competent  in  most  cases  to  which  it  anciently 
applied.  The  most  important  and  best-esta- 
blished of  these  cases  is  the  issue  of  nil  dehety 
arising  in  action  of  debt  on  simple  contract, 
or  the  issue  of  non  detinet,  in  an  action  of 
detinue.  In  the  declaration  in  these  actions, 
as  in  almost  all  others,  the  plaintiff  concludes 
by  offering  his  suit  (of  which  the  ancient 
meaning  was  followers  or  witnesses,  though 
the  words  are  now  retained  as  mere  form)  to 
prove  the  truth  of  his  claim.  On  the  other 
hand,  if  the  defendant,  by  a  plea  of  nil  debet 
or  non  detinet,  deny  the  debt  or  detention,  he 
may  conclude  by  offering  to  establish  the 
truth  of  such  plea  "  against  the  plaintiff  and 
his  suit,  in  such  manner  as  the  court  shall 
direct."  Upon  this  the  court  awards  the 
wager  of  law,  Coke,  Ent.  119  a;  Lilly,  Ent. 
467  ;  3  Chitty,  Plead.  479  ;  and  the  form  of 
this  proceeding,  when  so  awarded,  is  that  the 
defendant  brings  into  court  with  him  eleven 
of  his  neighbors  and  for  himself  makes  oath 
that  he  does  not  owe  the  debt  or  detain  the 
property  alleged ;  and  then  the  eleven  also 
swear  that  they  believe  him  to  speak  the 
truth  ;  and  the  defendant  is  then  entitled  to 
judgment.  3  Blackstone,  Comm.  343;  Ste- 
phen, Plead.  124.  Blackstone  compares  this 
mode  of  trial  to  the  canonical  purgation  of 
the  catholic  clergy,  and  to  the  decisory  oath 
of  the  civil  law.    See  Oath,  Decisory. 

9.  Trial  hy  witnesses  is  a  species  of  trial  by 
witnesses,  or  per  testes,  without  the  interven- 
tion of  a  jury. 

This  is  the  only  method  of  trial  known  to 
the  civil  law,  in  which  the  judge  is  left  to 
form  in  his  own  breast  his  sentence  upon 
the  credit  of  the  witnesses  examined ;  but 
it  is  very  rarely  used  in  the  common  law, 
which  prefers  the  trial  by  jury  in  almost  every 
instance. 

In  England,  when  a  widow  brings  a  writ 
of  dower  and  the  tenant  pleads  that  the  hus- 
band is  not  dead,  this,  being  looked  upon  as  a 
dilatory  plea,  is  in  favor  of  the  widoAv,  and, 
for  greater  expedition,  allowed  to  be  tried  by 
witnesses  examined  before  the  judges;  and 
so,  says  Finch,  shall  no  other  case  in  our  law. 
Finch,  Law,  423.  But  Sir  Edward  Coke 
mentioYjs  others:  as,  to  try  whether  the  ten- 
ant in  a  real  action  was  duly  summoned  ;  or, 
the  validity  of  a  challenge  to  a  juror :  so  that 
Finch's  observation  must  be  confined  to  the 
trial  of  direct  and  not  collateral  issues.  And, 
in  every  case,  Sir  Edward  Coke  lays  it  down 
that  the  affirmative  must  be  proved  by  two 
witnesses  at  least.  3  Blackstone,  Comm.  336. 

TRIAL  LIST.  A  list  of  cases  marked 
down  for  trial  for  any  one  term. 

TRIBUNAL.  The  seat  of  a  judge  ;  the 
place  where  he  administers  justice.  The 
whole  body  of  judges  who  compose  a  juris- 
diction. The  jurisdiction  which  the  judges 
exercise. 

The  term  is  Latin,  and  derives  its  origin 
from  the  elevated  seat  where  the  tribune* 
administered  justice. 


TRIBUTE 


613 


TROVER 


TRIBUTE.  A  contribution  which  is 
sometimes  raised  hy  the  sovereign  from  his 
subjects  to  sustain  tlie  expenses  of  tlie  state. 
It  is  also  a  sum  of  money  paid  by  one  nation 
to  another  under  some  pretended  right.  Wolft', 
2  1145. 

TRINEPOS  (Lat.).    In  Roman  Law. 

Great-grandson  of  a  grandchild. 

TRINEPTIS  (Lat.).  Great-granddaugh- 
ter of  a  grandchihl. 

TRINITY  TERM.     In  English  Law. 

One  of  the  four  terms  of  the  courts :  it 
begins  on  the  22d  day  of  May  and  ends  on 
the  12th  of  June.  Stat.  11  Geo,  IV.,  and  1 
WilL  IV.  c.  70.  It  was  formerly  a  movable 
term. 

TRINODA  NECESSITAS(Lat.). 

The  threefold  necessary  public  duties  to  which 
all  lands  were  liable  by  Saxon  law, — viz.,  for 
repairing  bridges,  for  maintaining  castles  or 
garrisons,  and  for  expeditions  to  repel  inva- 
sions. In  the  immunities  enumerated  in 
kings'  grants,  these  words  were  inserted, 
*'  except  is  his  trihus,  expeditione,  ponfis  et  arcis 
construct ione."  Kennett,  Paroch.  Antiq.  4G  ; 
1  Sharswood,  Blackst.  Comm.  2G3. 

TRIORS.  In  Practice.  Persons  ap- 
pointed according  to  law  to  try  whether  a 
person  challenged  to  the  favor  is  or  is  not 
qualified  to  serve  on  the  jury.  They  do  not 
exceed  two  in  number,  %vithout  the  consent 
of  the  prosecutor  and  defendant,  or  unless 
some  special  case  is  alleged  by  one  of  them, 
or  when  only  one  juror  has  been  sworn  and 
two  triors  are  appointed  with  him.  Coke, 
Litt.  158  a;  Bacon,  Abr.  Juries  (E  12). 

The  method  of  selecting  triors  is  thus 
explained.  Where  the  challenge  is  made  to 
the  first  juror,  the  court  will  appoint  two 
indifferent  persons  to  be  triors :  if  they  find 
him  indifferent,  he  shall  be  sworn  and  join 
the  triors  in  determining  the  next  challenge. 
But  when  two  jurors  have  been  found  im- 
partial and  have  been  sworn,  then  the  office 
of  the  triors  will  cease,  and  every  subsequent 
challenge  will  be  decided  upon  by  the  jury- 
men. If  more  than  two  jurymen  have  been 
sworn,  the  court  may  assign  any  two  of  them 
to  determine  the  challenges.  *To  the  triors 
thus  chosen  no  challenges  can  be  admitted. 

The  triors  examine  the  j  uryraan  challenged, 
and  decide  upon  his  fitness.  3  Park.  Cr. 
Cas.  N.  Y.  467  ;  5  Cal.  347  ;  1  Mich.  451 ;  10 
Ired.  No.  C.  295.  Their  decision  is  final. 
They  are  liable  to  punishment  for  misbeha- 
vior in  office.  4  Sharswood,  Blackst.  Comm. 
353,  n.  8  ;  1  Chitty,  Crim.  Law,  549  ;  15  Serg. 
&  R.  Penn.  150 ;  21  Wend.  N.  Y.  509 ;  2 
Green,  N.  J.  195.  The  office  is  abolished  in 
many  of  the  states,  the  judge  acting  in  their 
place.  Colby,  Pract.  236  ;  23  Ga.  57  ;  43  Me. 
11.    See  13  Ark.  720. 

TRIPARTITE.  Consisting  of  three 
farts:  as.  a  deed  tripartife.  between  A  of  the 
first  pa'  t,  B  of  the  second  part,  and  C  of  the 
third  1  art. 

TRIPLICATIO  (Lat.)     In  Civil  Law. 


The  reply  of  the  plaintiff  [actor]  to  the  re- 
joinder {duplicatio)  of  the  defendant  {reus). 
It  corresponds  to  the  surrejoinder  of  common 
law.    Inst.  4.  14 ;  Bracton,  1.  5,  t.  5,  c.  1. 

TRITAVUS  (Lat.).    In  Roman  Law. 

The  njale  ascendant  in  the  i^ixth  degree.  For 
the  female  ascendant  in  the  same  degree  the 
term  is  tritavia.  In  forming  genealogical 
tables  this  convenient  term  is  still  used. 

TRITHING  (Sax.  trithinga).  The  third 
part  of  a  county,  consisting  of  three  or  four 
iiundreds. 

A  court  within  the  circuit  of  the  trithing, 
in  the  nature  of  a  court-leet,  but  inferior  to 
the  county  court.  Camd.  102.  The  ridings 
of  Yorkshire  are  only  a  corruption  of  try- 
things.  1  Sharswood,  Blackst.  Comm.  116: 
Spelman,  Gloss.  52 ;  Cowel. 

TRIUMVIRI  CAPITALES,  or  TRE- 
VIRI,  or  TRESVIRI  (Lat.).  In  RomaD 
Law.  Officers  who  had  charge  of  the  prison, 
through  whose  intervention  punishments  were 
inflicted.  Sallust,  in  Caiilin.  They  had  eight 
lictors  to  execute  their  orders.  Vicat,  Voc. 
Jur. 

TRIVIAL.  Of  small  importance.  It  is 
a  rule  in  equity  that  a  demurrer  will  lie  to  a 
bill  on  the  ground  of  the  triviality  of  the  mat- 
ter in  dispute,  as  being  below  the  dignity  of  the 
court.  4  Bouvier,  Inst.  n.  4237.  See  Hopk. 
112;  4  Johns.  Ch.  N.  Y.  183;  4  Paige,  Ch. 
N.  Y.  304.    See  Maxims,  De  minimis. 

TRONAGE.  In  English  Law.  A  cus- 
tomary duty  or  toll  for  weighing  atooI:  so 
called  because  it  was  weighed  by  a  common 
trona,  or  beam.    Fleta,  lib.  2,  c.  12. 

TROVER  (Fr.  trouver,  to  find).  In  Prac- 
tice. A  form  of  action  which  lies  to  recover 
damages  against  one  who  has,  without  right, 
converted  to  his  own  use  goods  or  personal 
chattels  in  which  the  plaintiff  has  a  general  or 
special  property. 

The  action  was  originally  an  action  of  trespass 
on  the  case  where  goods  were  foinid  by  the  defend- 
ant and  retained  against  the  plaintiff's  rightful 
claim.  The  manner  of  gaining  possession  soon 
came  to  be  disregarded,  as  the  substantial  part  of 
the  action  is  the  conversion  to  the  defendant's  use: 
so  that  the  action  lies  whether  the  goods  cnme  into 
the  defendant's  possession  by  Jiuding  or  otherwise, 
if  he  fails  to  deliver  them  up  on  the  rightful  claim 
of  the  plaintiff.  It  differs  from  detinue  and  reple- 
vin in  this,  that  it  is  brought  for  damages  and  nut 
for  the  specific  articles;  and  from  trespass  in  this, 
that  the  injury  is  not  necessarily  a  forcible  one,  as 
trover  may  be  brought  in  any  case  where  trespass 
for  injury  to  personal  property  will  lie ;  but  the 
converse  is  not  true.  In  case  possession  was  gained 
by  a  trespass,  the  plaintiff  by  bringing  his  action 
in  this  form  waives  his  right  to  damages  for  the 
taking,  and  is  confined  to  the  injury  resulting  from 
the  conversion.  17  Pick.  Mass.  1 ;  21  id.  559  ;  17 
Me.  434;  7  T.  B.  Monr.  Ky.  209. 

2.  The  action  lies  for  one  who  has  a  gene 
ral  or  absolute  propertv,  BuUer,  Nisi  P.  33  ; 
2  Hill,  So.  C.  587  :  25  Me.  220  :  7  Ired.  No. 
C.  418;  23  Ga.  484;  22  Mo.  495,  together 
with  a  right  to  immediate  possession.  15 
East,  607  ;  7  Term,  12 ;  1  Ry.  &  M.  99 ;  5 


TilOVER 


614 


TRUCE  OF  GOD 


Pick.  Mass.  185  ;  9  id.  156  ;  22  id.  585  ;  15 
Wend.  N.  Y.  474;  6  Blackf.  Ind.  470;  7  id. 
361  ;  9  Yer^i.  Tenn.  262  ;  1  Bfev.  So.  C.  495  ; 
4  Dev.  No.  C.  20 ;  4  Dev.  &  B.  No.  C.  323 ;  2 
Penn.  St.  318;  5  id.  466;  11  Ala.  859;  42 
Me.  197  ;  19  N.  H.  419,  as,  for  example,  a 
vendor  of  property  sold  upon  condition  not 
fulfilled,  2  Brev.  So.  C.  324 ;  1  Meigs,  Tenn. 
76;  19  Vt.  371;  see  11  Vt.  388;  as  to  the 
effect  of  an  intervening  lien,  see  7  Term,  12 ; 
2  Crompt.  M.  &  R.  Exch.  659  ;  1  Wash.  C.  C. 
174;  1  Hayw.  No.  C.  193  ;  15  Mass.  242;  6 
Serg.  &  R.  Penn.  300  ;  2  N.  H.  319  ;  6  Wend. 
N.  Y.  60'3  ;  or  a  special  property,  including 
actual  possession  as  against  a  stranger ;  2 
Saund.  47  ;  1  Barnew.  &  Ad.  159  ;  11  East, 
626  ;  2  Bingh.  173  ;  34  Eng.  L.  &  Eq.  122 : 

6  Johns.  N.  Y.  195  ;  11  tcZ.  285  ;  12  irf.  403  ; 

7  Cow.  N.  Y.  297  ;  13  Wend.  N.  Y.  63 ;  15 
Mass.  242 ;  1  Pick.  Mass.  389 ;  9  id.  304 ; 

2  N.  H.  66,  319 ;  5  id.  237  ;  11  Vt.  351 ;  4 
Blackf.  Ind.  395,  as,  for  example,  a  sheriff 
holding  under  rightful  process,  1  Pick.  Mass. 
232,  389  ;  9  id.  164 ;  1  N.  H.  289  ;  7  Johns. 
N.  Y.  32 ;  4  Vt.  81 ;  5  id.  181 ;  15  id.  464  ; 
12  Me.  328  ;  2  Murph.  No.  C.  19  ;  a  mort- 
gagee in  possession,  5  Covr.  N.  Y,  323  ;  Const. 
So.  C.  141 ;  6  Harr.  &  J.  Md.  100;  3  Brev. 
No.  C.  68 ;  and  see  12  N.  H.  382 ;  31  Ala. 
N.  s.  447  ;  23  Conn.  70;  a  simple  bailee,  15 
Mass.  242;  Wright,  Ohio,  744,  or  even  a 
finder  merely,  9  Cow.  N.  Y.  670  ;  2  Ala.  320; 

3  Bibb,  Ky.  284;  3  Harr.  Del.  608  ;  and 
including  lawful  custody  and  a  right  of  de- 
tention as  against  the  general  owner  of  the 
goods  or  chattels.  2  Taunt.  268  ;  7  Cow.  N. 
Y.  329 ;  8  Wend.  N.  Y.  445  ;  3  Blackf.  Ind. 
419  ;  2  Rich.  So.  C.  13.  An  executor  or  ad- 
ministrator is  held  an  absolute  owner  by 
relation  from  the  death  of  the  decedent,  2 
Greenleaf,  Ev.  ^  641  ;  8  East,  410 ;  9  Mete. 
Mass.  504;  2  Ga.  119;  1  Rice,  So.  C.  264, 
285  ;  3  Sneed,  Tenn.  484 ;  see  4  Barnew.  & 
Aid.  744 ;  and  he  may  maintain  an  action 
for  a  conversion  in  the  lifetime  of  the  de- 
cedent, T.  U.  P.  Charlt.  Ga.  261  ;  1  Root, 
Conn.  289  ;  6  Mass.  394,  and  is  liable  for  a 
conversion  by  the  decedent.  1  Hayw.  No.  C. 
21,  308,  362. 

3.  The  property  affected  must  be  some  per- 
sonal chattel,  3  Serg.  &  R.  Penn.  513 ;  3  N. 
H.  484;  2  D.  Chipm.Vt.  116,  specifically  set 
off  as  the  plaintiff's,  4  Taunt.  648 ;  4  Barnew. 
&  C.  948  ;  5  id.  857  ;  6  id.  360 ;  3  Pick.  Mass. 
38  ;  7  Ired.  No.  C.  370 ;  5  Jones,  No.  C.  16  ; 
20  Vt.  144  ;  including  title-deeds,  2  Yeates, 
Penn.  537  ;  a  copy  of  a  record,  Hardr.  Ill ; 
11  Pick.  Mass.  492;  money,  though  not  tied 
up,  4  Taunt.  24;  4  E.  D.  "Smith,  N.  Y.  162; 
see  1  Mo.  64;  negotiable  securities,  4  Barnew. 
&  Aid.  1 ;  3  Barnew.  &  C.  45 ;  4  Tyrwh. 
Exch.  485  ;  3  Johns.  N.  Y.  432  ;  1  Root,  Conn. 
125,  221 ;  15  Mass.  389 :  1  Pick.  Mass.  503  ; 
3  Vt.  99  ;  9  id.  216  ;  5  Blackf.  Ind.  419  ;  17 
Ala.  218  ;  27  Ala.  n.  s.  228  ;  animals  ferce 
naturas,  but  reclaimed,  10  Johns.  N.  Y.  102; 
trees  and  crops  severed  from  the  inheritance, 
I  Term,  55  ;  3  Mo.  137,  393  ;  7  Cow.  N.  Y. 
15  Mass..  204;  8  Penn.  St.  244;  9  id. 


343  ;  4  Cal.  184.  It  will  not  lie  for  property 
in  custody  of  the  law,  9  Johns.  N.  Y.  381, 
if  rightfully  held,  see  2  Ala.  576 ;  1  Add. 
Penn. 376,  or  to  which  the  title  must  be  deter- 
mined by  a  court  of  peculiar  jurisdiction 
only,  1  Cam.  &  N.  No.  C.  115  ;  see  14  Johns. 
N.  Y.  273  ;  or  where  the  bailee  has  lost  the 
property,  had  it  stolen,  or  it  has  been  de- 
strojred  by  want  of  due  care.  2  Ired.  No.  C. 
98.    See  Conversion. 

There  must  have  been  a  conversion  of  the 
property  by  the  defendant.  5  T.  B.  Monr. 
Ky.  89  ;  8  Ark.  204.  And  a  waiver  of  such 
conversion  will  defeat  the  action.  20  Pick. 
Mass.  90.  For  what  constitutes  a  conversion, 
see  Conversion. 

The  declaration  must  state  a  rightful  pos- 
session of  the  goods  by  the  plaintiff,  1 
Hempst.  C.  C.  160;  must  describe  the  goods 
with  convenient  certainty,  though  not  so 
accurately  as  in  detinue,  Buller,  Nisi.  P.  32; 
5  Gray,  Mass.  12 ;  must  formally  allege  a 
finding  by  the  defendant,  and  must  aver  a 
conversion.  12  N.  Y.  313.  It  is  not  indis- 
pensable to  state  the  price  or  value  of  the 
thing  converted.    2  Wash.  Va.  192. 

The  plea  of  not  guilty  raises  the  general 
issue. 

Judgment  when  for  the  plaintiff  is  that  he 
recover  his  damages  and  costs,  or,  in  some 
states,  in  the  alternative,  that  the  defendant 
restore  the  goods  or  pay,  etc.,  19  Ga.  579; 
when  for  the  defendant,  that  he  recover  hia 
costs.  The  measure  of  damages  is  the  value 
of  the  property  at  the  time  of  the  conversion, 
with  interest.  17  Pick.  Mass.  1;  1  Mete. 
Mass.  172 ;  7  T.  B.  Monr.  Ky.  209 ;  8  Dan. 
Ky.  192;  38  Me.  174;  17  Ala.  191 ;  26  Ala. 
N.  s.  213  ;  2  Hill,  N.  Y.  132;  4  Cow.  N.  Y. 
53  ;  21  Barb.  N.  Y.  92 ;  30  Vt.  307  ;  19  Mo. 
467  ;  22  id.  394. 

TROY  WEIGHT.  A  weight  less  pon- 
derous than  the  avoirdupois  weight,  in  the 
proportion  of  seven  thousand  for  the  latter 
to  five  thousand  seven  hundred  and  sixty  tO 
the  former.    Dane,  Abr.    See  Weights. 

TRUCE.  In  International  Law.  An 
agreement  between  belligerent  parties  by 
which  they  mutually  engage  to  forbear  all 
acts  of  hostility  against  each  other  for  some 
time,  the  war  still  continuing.  Burlamaqui, 
N.  &  P.  Law,  pt.  4,  c.  II,  g  1. 

Truces  are  of  several  kinds:  general,  ex- 
tending to  all  the  territories  and  dominions 
of  both  parties;  and ^aWicwZar, restrained  to 
particular  places:  as,  for  example,  by  sea, 
and  not  by  land,  etc.  Id.  part  4,  c.  11,  ^  5. 
They  are  also  absolute,  indeterminate,  and 
general ;  or  limited  and  determined  to  certain 
things:  for  example,  to  bury  the  dead.  Ih. 
idem.  See  1  Kent,  Comm.  159 ;  Ilalleck, 
Int.  Law,  654;  Wheaton,  Int.  Law%  682. 

TRUCE  OF  GOD  (Law  L.ireuzaDet; 
Sax.  trenge  or  trewa,  from  Germ,  treu ;  Fr. 
trhve  deDieu).  In  the  middle  ages,  a  limita- 
tion of  the  right  of  private  warfare  intro- 
duced by  the  church.  This  truce  provided 
that  hostilities  should  cease  on  holidays,  from 


TRUE  BILL 


615 


TRUST 


Thursday  evening  to  Sunday  evening  of  each 
week,  the  v^'hole  season  of  Advent  and  Lent, 
and  the  octaves  of  great  festivals.  The 
penalty  for  breach  of  the  truce  was  excom- 
munication. The  protection  of  this  truce  was 
also  extended  constantly  to  certain  places, 
as,  churches,  convents,  hospitals,  etc.,  and 
certain  persons,  as,  clergymen,  peasants  in 
the  field,  crusaders,  Clermont,  1095,  and,  in 
general,  all  defenceless  persons.  It  was  first 
introduced  into  Acquitaine  in  1077,  and  into 
England  under  William  the  Conqueror.  Encyc. 
Amer. 

TRUE  BILL.  In  Practice.  Words  in- 
dorsed on  a  bill  of  indictment  when  a  grand 
jury,  after  having  heard  the  witnesses  for 
the  government,  are  of  opinion  that  there  is 
sufficient  cause  to  put  the  defendant  on  his 
trial.  Formerly  the  indorsement  was  Billa 
vera  when  legal  proceedings  were  in  Latin  ; 
it  is  still  the  practice  to  write  on  the  back  of 
the  bill  Ignoramus.  When  the  jury  do  not 
find  it  to  be  a  true  bill,  the  better  opinion 
IS  that  the  omission  of  the  words  a  true  bill 
does  not  vitiate  an  indictment.  11  Cush. 
Mass.  473  ;  13  N.  H.  488.  See  5  Me.  432, 
and  Bennett's  note  ;  Grand  Jury. 

TRUST.  A  right  of  property,  real  or 
personal,  held  by  one  party  for  the  benefit 
of  another. 

The  party  holding  is  called  the  trustee,  and  the 
party  for  whose  benefit  the  right  is  held  is  called  the 
cestui  que  trust,  or,  using  a  better  term,  the  bene- 
ficiary. 

Sometimes  the  equitable  title  of  the  beneficiary, 
sometimes  the  obligation  of  the  trustee,  and,  again, 
the  right  held,  is  called  the  trust. 

But  the  right  of  the  beneficiary  is  in  the  trust ; 
the  obligation  of  the  trustee  results  from  the  trust; 
and  the  right  held  is  the  subject-matter  the  trust. 
Neither  of  them  is  the  trust  itself.  All  together 
they  constitute  the  trust. 

Professor  Parker,  MS.  Lectures  in  the  Law  School 
of  Harvard  College. 

An  equitable  right,  title,  or  interest  in  pro- 
perty, real  or  personal,  distinct  from  its  legal 
ownership. 

A  personal  obligation  for  paying,  deliver- 
ing, or  performing  any  thing  where  the  person 
trusting  has  no  real  right  or  security,  for  by 
that  act  he  confides  altogether  to  the  faith- 
fulness of  those  intrusted. 

An  obligation  upon  a  person,  arising  out  of 
a  confidence  reposed  in  him,  to  apply  pro- 
perty faithfully  and  according  to  such  con- 
fidence. Willis,  Trust.  1;  4  Kent,  Comm. 
295  ;  2  Fonblanque,  Eq.  1 ;  1  Saunders,  Uses 
and  Tr.  6 ;  Cooper,  Eq.  Plead.  Introd.  27  ;  3 
Blackstone,  Comm.  431. 

The  Roman  fidei-commissa  were,  under  the  name 
of  uses,  first  introduced  by  the  clergy  into  Eng- 
land in  the  reign  of  Richard  II.  or  Edward  III., 
and,  while  perseveringly  prohibited  by  the  clergy 
and  wholly  discountenanced  by  the  courts  of  com- 
mon law,  they  grew  into  public  favor,  and  gradually 
developed  into  something  like  a  regular  branch  of 
law,  as  the  court  of  chancery  rose  into  importance 
and  power.  For  along  timethe  beneficiary,  orreniui 
que  trust,  was  without  adequate  protection  ;  but  the 
Statute  of  Uses,  passed  in  27  Henry  VIII.,  gave  ade- 
quate protection  to  the  interests  of  the  c-stui  que 


trust.  Prior  to  this  statute  the  terms  use  and  truat 
were  used,  if  not  indi.«criminately,  at  least  without 
accurate  distinction  between  them.  The  distinction, 
so  far  Ji.«  there  was  one,  was  between  passive  uses, 
where  the  feofi'ee  had  no  active  duties  imposed  on 
him,  and  active  trusts,  where  the  feofi'ee  had  some- 
thing to  do  in  connection  with  the  estate.  The  Stat- 
ute of  Uses  sought  to  unite  the  seisin  with  the  use, 
making  no  di.stinction  between  uses  and  trusts,  the 
result  being  that,  by  a  strict  construction,  both  usea 
and  trusts  were  finally  taken  out  of  its  intended  opera- 
tion and  were  both  included  under  the  term  trust. 
The  statute  was  passed  in  1638 ;  but  trusts  did  not 
become  settled  on  their  present  basis  till  Lord  Not- 
tingham's time,  in  1676.  2  Washburn,  Real  Prop. 
Index,  Trust ;  I  Greenleaf,  Cruise,  Dig.  338. 

Active  trusU  arc  those  in  which  the  trustee 
has  some  duty  to  perform,  so  that  the  legal 
estate  must  remain  in  him  or  the  trust  be 
defeated. 

An  executed  trust  is  one  where  the  legal  or 
equitable  estate  passes  to  the  trustee  at  its 
creation.    1  Preston,  Est.  190. 

An  executor)/  trust  is  one  which  is  to  be 
perfected  at  a  future  period  by  a  conveyance 
or  settlement:  as,  in  case  of  a  conveyance  to 
B  in  trust  to  convey  to  C. 

Express  trusts  are  those  which  are  created 
in  express  terms  in  the  deed,  writing,  or 
will.  The  terms  to  create  an  express  trust 
will  be  sufficient  if  it  can  be  fairly  collected 
upon  the  face  of  the  instrument  that  a  trust 
was  intended.  Express  trusts  are  usually 
found  in  preliminary  sealed  agreements,  such 
as  marriage  articles,  or  articles  for  the  pur- 
chase of  land  ;  in  formal  conveyances,  such 
as  marriage  settlements,  terms  for  years, 
mortgages,  assignments  for  the  payment  of 
debts,  raising  portions,  or  other  purposes ; 
and  in  wills  and  testaments,  when  the  be- 
quests involve  fiduciary  interests  for  private 
benefit  or  public  charity.  They  may  be  created 
even  by  parol.    C  Watts  &  S.  Penn.  97. 

Implied  trusts  are  those  which,  without 
being  expressed,  are  deducible  from  the  nature 
of  the  transaction  as  matters  of  intent,  or 
which  are  superinduced  upon  the  transaction 
by  operation  of  law,  as  matters  of  equity, 
independently  of  the  particular  intention  of 
the  parties.  The  term  is  used  in  this  gene- 
ral sense,  including  constructive  and  resulting 
trusts,  see  these  titles,  and  also  in  a  more 
restricted  sense,  excluding  those  classes. 

A  passive  or  dry  trust  is  one  which  requires 
the  performance  of  no  duty  by  the  trustee  to 
carry  out  the  trust,  but  by  force  of  which 
the  legal  title  merely  rests  in  the  trustee. 

ii.  A  trust  arises  when  property  has  been 
conferred  upon  one  person  and  accepted  by 
him  for  the  benefit  of  another.  The  former 
is  a  trustee,  and  holds  the  legal  title,  and  the 
latter  is  called  the  cestui  que  trust,  or  bene- 
ficiary. In  order  to  originate  a  trust,  two 
things  are  essential,— ^r*^,  that  the  owner- 
ship conferred  be  connected  with  a  right,  or 
interest,  or  duty  for  the  benefit  of  another; 
and,  second,  that  the  property  be  accepted  on 
these  conditions. 

Before  the  Statute  of  Frauds,  29  Car.  II.  c. 
3,  ^§  7,  9,  a  trust,  either  in  regard  to  real  or 
personal  estate,  might  have  been  "reated  by 


TRUSTEE 


616 


TRUSTEE 


parol  as  well  as  bj  writing.  That  statute 
i'e(iuired  all  trusts  as  to  real  estate  to  be  in 
writing.  4  Kent,  Comm.  305  ;  Adams,  Eq. 
£7,  28;  5  Johns.  N.  Y.  1;  15  Vt.  525. 

No  particular  form  of  words  is  requisite  to 
create  a  trust.  The  court  will  determine  the 
intent  from  the  general  scope  of  the  lan- 
guage. 10  Johns.  N.  Y.  496  :  4  Kent,  Comm. 
306. 

The  facts,  however,  to  warrant  the  inference 
of  a  trust,  must  be  more  than  loose  and 
general  declarations  ;  but,  on  the  other  hand, 
parol  declaration  will  not  be  received  to 
contradict  the  inference  of  a  trust  in  land 
fairly  deducible  from  written  declarations. 
5  Johns.  Ch.  N.  Y.  2. 

A  trust,  as  to  personal  property,  may  be 
proved  by  parol  evidence.  1  Bail.'  Ch.  So.  C. 
510  ;  1  Hare,  Ch.  158  ;  Adams,  Eq.  28  ;  3 
Sharswood,  Blackst.  Comm.  431. 

If  a  trustee  dies,  or  fails  or  refuses  to  exe- 
cute or  accept  the  trust,  or  no  trustee  is 
named,  the  trust  does  not  for  that  reason  fail. 
It  is  a  settled  rule  that  the  court  of  chancery 
will  provide  a  trustee  or  attend  to  the  execu- 
tion of  the  trust.  2  Vern.  Ch.  97  ;  4  Ves. 
CIk  108 ;  10  Sim.  Ch.  256  ;  Adams,  Eq.  36. 

Trusts  are  interpreted  by  the  ordinary 
rules  of  law,  unless  the  contrary  is  expressed 
in  the  language  of  the  trust.  15  Ind.  269  ; 
3  Des.  So.  C.  256.  Most  of  the  states  have 
epecial  legislation  upon  the  subject,  making 
the  systems  of  the  different  states  too  various 
for  fuller  development  here.  See  4  Kent, 
Comm,  290-295;  Hill,  Trustees;  Lewin, 
Trusts;  Greenleaf,  Cruise,  Dig.;  Washburn, 
Real  Prop.;  Story,  Eq.  Jur. ;  Spence,  Eq. 
Jur. ;  Adams,  Eq.;  Constructive  Trusts; 
Implied  Trusts  ;  Resulting  Trusts. 

TRUSTEE.    A  person  in  whom  some 
estate,  interest,  or  power  in  or  affecting  pro- 
erty  of  any  description  is  vested  for  the 
enefit  of  another. 
One  to  whom  property  has  been  conveyed 
to  be  held  or  managed  for  another. 

2.  To  a  certain  extent,  executors,  adminis- 
trators, guardians,  and  assignees  are  trustees, 
and  the  law  of  trusts  so  far  is  applicable  to 
them  in  their  capacity  of  trustees.  Hill, 
Trust.  49. 

Trusts  are  not  strictly  cognizable  at  com- 
mon law,  but  solely  in  equity.    16  Pet.  25. 

A  trustee  after  having  accepted  a  trust 
cannot  discharge  himself  of  his  trust  or  re- 
f-ponsibility  by  resignation  or  a  refusal  to 
perform  the  duties  of  the  trust ;  but  he  must 
procure  his  discharge  either  by  virtue  of  the 
provisions  of  the  instrument  of  his  appoint- 
ment, or  by  the  consent  of  all  interested,  or 
by  an  order  of  a  competent  court.  4  Kent 
Comm.  311 ;  11  Paige,  Ch.  N.  Y.  314. 

Trustees  are  not  allowed  to  speculate  with 
the  trust-property,  or  to  retain  any  profits 
made  by  the  use  of  the  some,  or  to  become 
the  purchasers  upon  its  sale.  If  beneficial  to 
the  parties  in  interest,  the  purchase  by  the 
trustee  may  be  retained  or  confirmed  by  the 
court.  And  the  trustee  may  be  compeired  to 
account  for  and  jay  o\qv  to  the  cesivi  que 


trust  all  profits  made  by  any  use  of  the  trust 
property.  4  Kent,  Comm.  438  ;  2  Juhn.s.  Cli. 
N.  Y.  252  ;  4  How.  503. 

A  court  of  equity  never  allows  a  trust  t«i 
fail  for  want  of  a  trustee.  5  Paige,  Ch.  N.  Y. 
46  ;  6  Whart  Penn.  571 ;  5  B.  Monr.  Ky. 
1 13. 

3.  Whenever  it  becomes  necessary,  the 
court  will  appoint  a  new  trustee,  and  this 
though  the  instrument  creating  the  trust 
contain  no  power  for  making  such  appoint- 
ment. The  power  is  inherent  in  the  court. 
7  Ves.  Ch.  480  ;  2  Sandf.  Ch.  N.  Y.  336  ;  1 
Beav.  Rolls,  467.  So  the  court  may  create  a 
new  trustee  on  the  resignation  of  the  former 
trustee.  11  Paige,  Ch.  N.  Y.  314:  3  Barb. 
Ch.  N.  Y.  76;  Hill,  Trust.  190. 

The  mere  naming  a  person  trustee  does 
not  constitute  him  such.  There  must  be  an 
acceptance,  express  or  implied.  But  if  the 
person  named  trustee  does  not  wish  to  be 
held  responsible  as  such,  he  should,  before 
meddling  with  the  duties  of  a  trustee,  for- 
mally disclaim  the  trust.  7  Gill  &  J.  Md.  157 ; 
1  Pick.  Mass.  370 ;  Hill,  Trust.  214. 

Ordinarily,  no  writing  is  necessary  to  con 
stitute  the  acceptance  of  even  a  trust  in 
writing.    12  N.  H.  432. 

4.  The  oflBce  and  duties  of  trustees  being 
matters  of  personal  confidence,  they  are  not 
allowed  to  delegate  these  powers  unless  such 
a  power  is  expressly  given  by  the  authority 
by  which  they  were  created  ;  and  where  one 
of  several  trustees  dies,  the  trust,  as  a  gene- 
ral rule,  in  the  United  States,  will  devolve 
on  the  survivor,  and  not  on  the  ^eirs  of  the 
deceased.    Hill,  Trust.  175  ;  2  Moll.  Ch.  276 ; 

3  Mer.  Ch.  412;  11  Paige,  Ch.  N.  Y.  314. 
While  the  law  allows  any  person  named  as 

trustee  to  disclaim  or  renounce,  he  cannot,  if 
he  has  by  any  means  accepted  and  entered 
upon  the  trust,  rid  himself  of  the  duties  and 
responsibilities  after  such  acceptance,  except 
by  a  legal  discharge  by  competent  authority. 

4  Johns.  Ch.  N.  Y.  136  ;  11  Paige,  Ch.  N.  Y. 
314;  1  Mylne&  K.  Ch.  195. 

5.  The  trustee  is  in  law  generally  regarded 
as  the  owner  of  the  property,  whether  the 
same  be  real  or  personal.  Hill,  Trust.  229. 
Yet  this  rule  is  subject  to  material  qualifica- 
tions when  taken  in  connection  with  the 
doctrines  of  powers  and  uses,  and  the  legisla- 
tion of  the  several  states.  2  Atk.  Ch.  223  ; 
1  How.  134 ;  4  Kent,  Comm.  321 ;  Cruise, 
Dig.  tit.  12,  c.  1,  §  25  :  Sugden,  Pow.  174, 
6th  ed.;  Hill,  Trust.  229-239. 

The  quality  and  continuance  of  the  estate 
of  a  trustee  will  be  determined  by  the  pur- 
pose and  exigency  of  the  trust,  rather  than 
by  the  phraseology  employed  in  the  descrip- 
tion of  the  estate  conveyed;  and,  therefore, 
if  the  language  be  that  the  estate  goes  to  the 
trustee  and  his  heirs,  it  may  be  limited  to  a 
shorter  period  if  thereby  the  purposes  of  the 
creation  of  the  tiust  are  satisfied.  8  Hare 
Ch.  150  :  4  Den.  N.  Y.  385  ;  2  Exch.  693  ;  11 
B.  Monr.  Ky.  233. 

6.  Wheie  there  ore  several  trustees,  they 
are  held  to  h(  Id  as  joint-tenants,  and  on  the 


TRUSTEE 


617 


TUNGREVE 


death  of  any  one  the  property  remains  vested 
in  the  survivor  or  survivors ;  and  on  the 
death  of  the  last  the  property,  if  personal  (at 
common  law),  went  to  the  heir  or  personal 
representative  of  the  last-deceased  trustee. 
But  the  rule  as  to  trust-property  ^oing  to 
heirs  and  executors  is  changed  in  most  of  the 
states,  so  that  in  theory  the  court  of  chancery 
assumes  the  control  and  it  appoints  a  new 
trustee  on  the  decease  of  former  trustees. 
Hill,  Trust.  305  ;  13  Sim.  Ch.  91 ;  4  Kent, 
Comm.  311;  11  Paige,  Ch.  N.  Y.  13;  10  Mo. 
755  ;  16  Ves.  Ch.  27. 

Each  trustee  has  equal  interest  in  and 
control  over  the  trust  estate ;  and  hence,  as  a 
general  rule,  they  cannot  (as  executors  may) 
act  or  bind  the  trust  separately,  but  must  act 
jointly.  4  Ves.  Ch.  97  ;  3  Atk.  Ch.  384  ;  8 
Cow.  N.  Y.  544 ;  20  Me.  504 ;  11  Barb.  N.  Y. 
527. 

One  trustee  may  be  held  responsible  for 
losses  which  he  has  enabled  a  co-trustee  to 
cause,  though  there  was  no  actual  participa- 
tion by  him.  18  Ohio,  509  ;  5  How.  233  ;  10 
Penn.  St.  149 ;  3  Sandf.  Ch.  N.  Y.  99. 

Where  the  legal  estate  is  vested  in  trustees, 
all  actions  at  law  relative  to  the  trust-pro- 
perty must  be  brought  in  their  name,  but  the 
trustee  must  not  exercise  his  legal  powers  to 
the  prejudice  of  a  cestui  que  trust,  and  third 
persons  must  take  notice  of  this  limitation  of 
the  legal  rights  of  a  trustee.  2  Vern.  Ch. 
197;  Hill,  Trust.  503. 

•y.  The  trustee  (and  his  personal  repre- 
sentatives and  heirs  to  the  extent  of  any 
property  received  from  the  trustee)  is  re- 
sponsible in  suit  for  any  breach  of  trust,  and 
will  be  compelled  to  compensate  what  his 
negligence  has  lost  of  the  trust  estate.  He 
is  not  only  chargeable  with  the  principal  and 
income  of  the  trust-property  he  has  received, 
but  is  liable  for  an  amount  equal  to  what, 
with  good  management,  he  might  have  re- 
ceived; and  this  includes  interest  on  sums 
he  has  needlessly  allowed  to  remain  where  it 
earned  no  interest.  11  Ves.  Ch.  60  ;  2  Beav. 
Rolls,  430;  4  Russ.  Ch.  195  ;  15  Eng.  L.  & 
Eq.  591;  2  Johns.  Ch.  N.  Y.  62;  1  Bradf. 
Surr.  N.  Y.  325  ;  Hill,  Trust.  522. 

TRUSTEE.    In  Scotch  Law.    He  who 

creates  a  trust. 

TRUSTEE  PROCESS.    In  Practice. 

A  means  of  reaching  goods,  property,  and 
credits  of  a  debtor  in  the  hands  of  third 
persons,  for  the  benefit  of  an  attaching  cre- 
ditor. 

It  is  a  process,  so  called,  in  the  New  England 
states,  and  similar  to  the  garnishee  process  of 
others.  It  is  a  process  given  by  statute  15  of  the 
statutes  of  Massachusetts.  All  goods,  efifects,  and 
credits  so  intrusted  or  deposited  in  the  hands  of 
others  that  the  same  cannot  be  attached  by  ordi- 
nary process  of  law,  may  by  an  original  writ  or 
process,  the  form  of  which  is  given  by  the  statute, 
be  attached  in  whose  hands  or  possession  soever 
they  may  be  found,  and  they  shall,  from  the  service 
of  the  writ,  stand  bound  and  be  held  to  satisfy 
Ruch  judgment  as  the  plaintiff  may  recover  against 
the  principal  defendant.    Gushing,  Trustee  Pro.  2. 

The  trustees  on  sueing  out  and  service  of  the 


process,  according  to  statute,  and  its  entry  in  court, 
may  come  into  court  and  be  examined  on  oath  as 
to  pro[»erty  of  the  principal  in  their  hands.  If  the 
plaintiff  recovers  against  the  principal,  and  there 
are  any  trustees  who  have  not  discharged  them- 
selves under  oath,  he  shall  have  execution  against 
them.  Gushing,  Trustee  Process,  4;  2  Kent,  Comm. 
8th  ed.  497,  note. 

TRUTH.    The  actual  state  of  things. 

In  giving  his  testimony,  a  witness  is  required 
to  tell  the  truth,  the  whole  truth,  and  nothinsj 
but  the  truth ;  for  the  object  in  the  examina- 
tion of  matters  of  fact  is  to  ascertain  truth. 

In  actions  for  slander  and  libel,  the  truth 
of  the  statements  may  be  given  in  evidence  in 
some  cases.  The  matter  has  been  made  the 
subject  of  statutory  regulation.  See  Heard, 
Libel  &  S. 

TUB.  In  Mercantile  Law.  A  measure 
containing  sixty  pounds  of  tea,  and  from  fifty" 
six  to  eighty-six  pounds  of  camphor.  Jacob, 
Law  Diet. 

TUB-MAN.     In   English   Law.  A 

barrister  who  has  a  pre-audience  in  the  ex- 
chequer, and  also  one  who  has  a  particular 
place  in  court,  is  so  called. 

TUMBREL.  An  instrument  of  punish- 
ment made  use  of  by  the  Saxons,  chiefly  for 
the  correction  of  scolding  women  by  ducking 
them  in  water,  consisting  of  a  stool  or  chair 
fixed  to  the  end  of  a  long  pole. 

2.  In  Domesday  it  is  called  cathedra  stercoria, 
and  is  described  as  cathedra  iu  quo  rixoae  mulierea 
scdeuies  aquis  demeryehantur,  and  seems  to  be  no 
other  than  what  has  more  recently  been  called  a 
ducking  or  cucking  stool.  Bracton  writes  it  tym- 
hurella,  of  which  perhaps  tumbrel  is  a  corruption. 
It  was  sometimes  also  called  a  trcbucket,  from  the 
stool  or  bucket  in  which  the  prisoner  was  placed 
when  put  down  into  the  water  being  fixed  to  the 
end  of  a  tree  or  piece  of  timber.  Lord  Goke,  how- 
ever, says  it  properly  signifies  a  dung-cart,  and 
that  every  lord  of  a  leet  or  market  ought  to  have 
a  pillory  and  tumbrel,  and  that  the  leet  could  be 
forfeited  for  the  want  of  either. 

3.  This  antique  punishment  was  also  inflicted 
upon  bakers,  brewers,  and  other  transgressors  of 
the  sumptuary  laws,  who  were  placed  upon  such  a 
stool  and  immerged  in  stercure, — that  is,  in  filthy 
water.  By  a  statute  of  Henry  III.,  in  the  year 
1250,  entitled  the  statute  of  the  pillory  and  tum- 
brel, a  baker  or  brewer  offending  against  the 
assize  of  bread  or  of  malt  shall  suffer  bodily  punish- 
ment; that  is,  a  baker  in  the  pillory  and  a  brewer 
to  the  tnmhrel,  pistor  patiatur  collistriyium  bracia- 
trix  trebucetHm. 

The  last  attempt  on  record,  by  legal  process, 
seems  to  have  been  on  the  27th  of  April,  1745,  of 
which  we  find  the  following  account  in  the  London 
Evening  Post  of  that  day.  Last  week  a  woman 
that  keeps  the  Queen's  Head  alehouse,  at  Kingston 
in  Surrey,  was  ordered  by  the  court  to  be  ducked  for 
scolding,  and  was  accordingly  placed  in  a  chair  and 
ducked  in  the  river  Thames,  under  Kingston  bridge, 
in  the  presence  of  two  thousand  or  three  thousand 
people."  The  statute  authorizing  such  punish- 
ments was  finally  repealed  by  a  statute  of  1  Victoria, 
in  1837. 

TUN.  A  measure  of  wine  or  oil,  contain- 
ing four  hogsheads. 

TUNGREVE  (Sax.  iungaraeva,  i.e.  viU<E 
prcepositus).  A  reeve  or  bailifif.  Spelman, 
Gloss. ;  Cowel. 


TURBARY 


618 


TUTELA 


One  who  in  estates,  which  we  call  manors, 
sustains  the  character  of  master,  and  in  his 
stead  disj3oses  and  arranges  every  thing.  Qui 
in  villis  [quce  dicimus  maneriis)  domini  per- 
sonam snstinet,  ejusque  vice  omnia  disponit 
atque  moderatur, 

TURBARY.  In  English  Law.  A  right 
to  dig  turf;  an  easement. 

TURNKEY.  A  person  under  the  super- 
intendence of  a  jailer,  whose  employment  is 
to  open  and  fasten  the  prison-doors  and  to 
prevent  the  prisoners  from  escaping. 

It  is  his  duty  to  use  due  diligence;  and  he 
may  be  punished  for  gross  neglect  or  wilful 
misconduct  in  permitting  prisoners  to  escape. 

TURNPIKE.  A  gate  set  across  a  road, 
to  stop  travellers  and  carriages  until  toll  is 
paid  for  passage  thereon.  In  the  United 
States,  turnpike-roads  are  often  called  turn- 
pikes: just  as  mail-coach,  hackney-coach, 
stage-coach,  are  shortened  to  mail,  hack,  and 
stage.    Encyc.  Am. 

TURNPIKE-ROAD.  A  road  or  high- 
way over  which  the  public  have  the  right  to 
travel  upon  payment  of  toll,  and  on  which 
the  parties  entitled  to  such  toll  have  the 
right  to  erect  gates  and  bars  to  insure  its 
payment.  6  Mees.  &  W.  Exch.  428 ;  1  Railw. 
Cas.  665;  22  Eng.  L.  &  Eq.  113;  16  Pick. 
Mass.  175. 

2.  Turnpike-roads  are  usually  made  by 
corporations  under  legislative  authority ;  and, 
the  roads  being  deemed  a  public  use,  such 
corporations  are  usually  armed  with  the 
power  to  take  private  property  for  their  con- 
struction, upon  making  just  compensation. 
In  the  execution  of  this  power,  they  are 
bound  to  a  strict  compliance  with  the  terms 
upon  which  it  is  given,  and  are  subject  to 
the  rules  which  govern  the  exercise  of  the 
right  of  eminent  domain  under  the  constitu- 
tions of  the  several  states.  7  Dan.  Ky.  81 ; 
3  Ilumphr.  Tenn.  456;  6  Ohio,  15;  10  id. 
396  ;  25  Penn.  St.  229  ;  18  Ga.  607  ;  19  id. 
427.  In  estimating  the  damages  to  be 
awarded  for  lands  taken  for  a  turnpike-road, 
the  rule  is  to  allow  the  value  of  the  land  and 
its  improvements,  deducting  therefrom  the 
benefits  from  the  road  and  the  additional 
value  given  by  it  to  the  remaining  property. 
20  Penn.  St.  91,  95,  97.  The  legislature  may 
authorize  the  conversion  of  an  existing  high- 
way into  a  turnpike-road,  11  Vt.  198;  18 
Conn.  32 ;  3  Barb.  N.  Y.  459  ;  4  Humphr. 
Tenn.  407,  without  any  pecuniary  equivalent 
to  the  owner  of  the  fee,  such  road  still  re- 
maining a  public  highway.  2  Ohio  St.  419. 
Under  the  power  to  take  land  for  this  pur- 
pose, the  corporation  may  take  land  for  a 
toll-house  and  a  cellar  under  it  and  a  well 
for  the  use  of  the  family  of  the  toll-keeper. 
9  Pick.  Mass.  109.  A  turnpike-road  being 
a  highway,  any  obstruction  placed  thereon 
renders  the  author  of  it  liable  as  for  a  public 
nuisance.  16  Pick.  Mass.  175  ;  8  Wend.  N.  Y. 
655. 

3.  Turnpike  companies,  so  long  as  they 


continue  to  take  toll,  are  bound  to  use  ordi 
nary  care  in  keeping  their  roads  in  suitable 
repair,  and  for  any  neglect  of  this  duty  are 
liable  to  an  action  on  the  case  for  the  dam- 
ages to  any  person  specially  injured  thereby, 
6  Johns.  N.  Y.  90 ;  7  Conn.  86 ;  11  Wend. 
N.  Y.  597  ;  11  Ohio,  197 ;  6  N.  H.  147  ;  10 
Pick.  Mass.  35  ;  18  id.  357 ;  9  Penn.  St.  20 ; 

5  Ind.  286;  11  Vt.  531;  22  id.  119;  2S  id. 
104 ;  24  id.  480  ;  1  Spence,  N.  J.  323  ;  and 
to  an  indictment  on  the  part  of  the  public. 
11  Wend.  N.  Y.  597;  10  Yerg.  Tenn.  525 ;  4 
Ired.  No.  C.  16  ;  10  Humphr.  Tenn.  97  ;  26 
Ala.  N.  s.  88  ;  1  Harr.  N.  J.  222 ;  9  Barb.  N. 
Y.  161 ;  2  Gray,  Mass.  58. 

The  law  of  travel  upon  turnpike-roads  ia 
the  same  as  upon  ordinary  roads,  except  as 
regards  the  payment  of  tolls.  If  there  be 
any  ambiguity  in  the  authority  granted  to  a 
turnpike  company  to  take  toll,  it  will  be  con- 
strued rather  in  favor  of  the  public  than  of 
the  grantee.    2  Barnew.  &  Ad.  792  ;  2  Mann. 

6  G.  134.  Travellers  are  liable  for  toll  though 
they  avoid  the  gates,  2  Root,  Conn.  524 ;  10 
Vt.  197  ;  but  not  for  travel  between  the  gates 
without  passing  the  same.  2  B.  Monr.  Ky. 
30  ;  10  Ired.  No.  C.  30 ;  11  Vt.  381.  Exemp- 
tions  from  toll  are  construed  most  liberally 
in  favor  of  the  community.  Angell,  Highw. 
§  359. 

4.  A  road  or  turnpike  Jaid  out  by  an  indi- 
vidual or  by  the  selectmen  of  the  town  to 
facilitate  the  evasion  of  toll  by  travellers 
upon  a  turnpike-road  will  entitle  the  turnpike 
company  to  an  action  on  the  case  for  the 
damages,  or  to  an  injunction  ordering  the 
same  to  be  closed.  10  N.  H.  133  ;  13  id.  28 ; 
18Conn.451;  8  Humphr.  Tenn.  286;  IJohns. 
Ch.  N.  Y.  315 ;  12  Barb.  N.  Y.  553.  And 
see  4  Johns.  Ch.  N.  Y.  150 ;  5  id.  101.  And 
such  company  is  entitled  to  compensation  for 
the  injury  to  their  franchise  by  a  highway 
which  intersects  their  road  at  two  distinct 
points  and  thereby  enables  travellers  to  evade 
the  payment  of  tolls,  though  such  highway 
be  regularly  established  by  the  proper  au- 
thorities to  meet  the  necessities  of  public 
travel.  1  Barb.  N.  Y.  286.  But  see  2  N.  H. 
199  ;  10  id.  133  ;  12  La.  Ann.  649. 

If  a  turnpike  company  abuses  its  powers, 
or  fails  to  comply  with  the  terms  of  its  char- 
ter, it  is  liable  to  be  proceeded  against  by 
quo  warranto  for  the  forfeiture  of  its  fran- 
chise. 23  Wend.  N.  Y.  193,  223,  254 ;  1  Zabr 
N.  J.  9 ;  2  Swann,  Tenn.  282. 

TURPIS  CAUSA  (Lat.).  A  base  or 
vile  consideration,  forbidden  by  law,  which 
makes  the  contract  void :  as,  a  contract  the 
consideration  of  which  is  the  future  illegal 
cohabitation  of  the  obligee  with  the  obligor. 

TURPITUDE  (Lat.  turpitudo,  from  turpis^ 
base).  Every  thing  done  contrary  to  justice, 
honesty,  modesty,  or  good  morals,  is  said  t( 
be  done  with  turpitude. 

TUTELA  (Lat.).  A  power  given  by  the 
civil  law  over  a  free  person  to  defend  him 
when  by  reason  of  his  age  he  is  unal  le  to 
defend  himself.    Women  by  the  evil  law 


TUTOR 


619 


ULTIMATUM 


could  only  be  tutors  of  their  own  children. 
A  child  under  the  power  of  his  father  was 
not  subject  to  lutelage,  because  not  a  free 
person,  caput  liberum.    J),  lib.  20,  tit.  1,  if.  <Ie 
tutelis  ;  Inst.  lib.  1,  tit.  13,  de  tuielis  ;  Inst,  j 
lib.  3,  tit.  28,  de  ohlujationilms  qiice  ex  quasi 
cont.  nascuniur.    Novellae,  72.  94.  155.  118.  I 
Legitima  lutela  was  where  the  tutor  was  I 
appointed  by  the  magistrate.   Leg.  1,  D.  If.  de 
Utj.  tut. 

Testamentaria  tutela  was  where  the  tutor 
was  appointed  by  will.  D.  lib.  26,  tit.  2,  If. 
de  iestanieut.  tut. ;  C.  lib.  5,  tit.  28,  de  testa- 
ment, tut.;  Inst.  lib.  1,  tit.  14,  qui  testamento 
tutoi'es  dari  possunt. 

TUTOR.  In  Civil  Law.  One  who  has 
been  lawfully  appointed  to  the  care  of  the 
person  and  property  of  a  minor. 

By  the  laws  of  Louisiana,  minors  under 
the  age  of  fourteen  years,  if  males,  and 
under  the  age  of  twelve  years,  if  females, 
are,  both  as  to  their  persons  and  their  estates, 
placed  under  the  authority  of  a  tutor.  La. 
Civ.  Code,  art.  263.  Above  that  age,  and 
until  their  majority  or  emancipation,  they 
are  placed  under  the  authority  of  a  curator. 
Id. 

TUTOR  ALIENUS  (Lat.).  In  Eng- 
lish Law.  The  name  given  to  a  stranger 
who  enters  into  the  lands  of  an  infant  within 
the  age  of  fourteen,  and  takes  the  profits. 

He  may  be  called  to  an  account  by  the  in- 
fant and  be  charged  as  guardian  in  socage. 
Littleton,  s.  124  ;  Coke,  Litt.  89  b,  90  a;  Har- 
grave,  Tracts,  n.  1. 

TUTOR  PROPRIUS  (Lat. ).  The  name 
given  to  one  who  is  rightly  a  guardian  in 
socage,  in  contradistinction  to  a  tutor  alienus. 

TUTORSHIP.  The  power  which  an 
individual,  sui  juris,  has  to  take  care  of  the 
person  of  one  who  is  unable  to  take  care  of 
himself.  Tutorship  differs  from  curatorship. 
See  Procurator  ;  Protutor. 

TUTRIX  (Lat.).  A  woman  who  is  ap- 
pointed to  the  office  of  a  tutor. 

TWELVE   TABLES,  LAWS  OF 


THE.  Laws  of  ancient  Rome,  comp»  «ed  in 
part  from  those  of  Solon  and  other  Greek 
legislators,  and  in  part  from  the  unwritten 
laws  and  customs  of  the  Romans. 

These  laws  first  appeared  in  the  year  of  Rome 
o03,  inscribed  on  ten  plates  of  brass.  The  follow- 
in;^  year  two  others  were  added,  and  the  entire  cod© 
bore  the  name  nf  the  Laws  of  the  Twelve  Tables. 
The  principles  they  contained  were  the  germ  of  all 
the  Roman  law,  the  original  source  of  the  juris- 
prudence of  the  greatest  part  of  Europe. 

See  a  fragment  of  the  Law  of  the  Twelve  Tables 
in  Coop.  Justinian,  666;  Gibbon,  Rome,  c.  44; 
CODK,  ^  21. 

TWELVEMONTH,  in  the  singular, 
includes  the  whole  year,  but  in  the  plural 
twelve  months  of  twenty-eight  days  each.  6 
Coke,  62;  2  Sharswood,  Blackst.  Comm. 
140,  n. 

TWICE  IN  JEOPARDY.  See  Jeo- 
pardy. , 

TYBURN  TICKET.  In  English  Law. 

A  certiticate  given  to  the  prosecutor  of  a  felor 
to  conviction. 

By  the  10  &  11  Will.  III.  c.  23,  the  original 
proprietor  or  lirst  assignee  of  such  certiticate 
is  exempted  from  all  and  all  manner  of 
parish  and  ward  offices  within  the  parish  or 
ward  where  the  felony  shall  have  been  com- 
mitted.   Bacon,  Abr.  Constable  (C). 

TYRANNY.  The  violation  of  those 
laws  which  regulate  the  division  and  the 
exercises  of  the  sovereign  power  of  the  state. 
It  is  a  violation  of  its  constitution. 

TYRANT.  The  chief  magistrate  of  the 
state,  whether  legitimate  or  otherwise,  who 
violates  the  constitution  to  act  arbitrarily, 
contrary  to  justice.    TouUier,  tit.  prel.  n.  32. 

The  terms  tyrant  and  usurper  are  sometimes  used 
as  synonymous,  because  usurpers  are  almost  always 
tyrants :  usurpation  is  itself  a  tyrannical  act,  but, 
i  properly  speaking,  the  words  usurper  and  tyrant 
I  convey  different  ideas.    A  king  may  become  a 
I  tyrant,  although  legitimate,  when  he  acts  despotic- 
ally;  while  a  usurper  may  cease  to  be  a  tyrant  by 
governing  according  to  the  dictates  of  justice. 

This  term  is  sometimes  applied  to  persons  in  au- 
thority who  violate  the  laws  and  act  arbitrarily  to- 
wards others.    See  Despotism. 


U. 


UBERRIMA  FIDES  (Lat.  most  perfect 
good  faith).  A  phrase  used  to  express  the 
perfect  good  faith,  concealing  nothing,  with 
which  a  contract  must  be  made :  for  example, 
in  the  case  of  insurance,  the  insured  must 
observe  the  most  perfect  good  faith  towards 
the  insurer.  1  Story,  Eq.  Jur.  ^  317  ;  3  Kent, 
Comm.  283,  4th  ed. 

UK  A  AS,  UKASE.    The  name  of  a 


law  or  ordinance  emanating  from  the  czar  of 
Russia. 

ULLAGE.   In  Commercial  Law.  Tho 

amount  wanting  when  a  cask  on  being  gauged 
is  found  only  partly  full. 

_  ULTIMATUM  (Lat.).  The  last  proposi- 
tion made  in  making  a  contract,  a  treaty,  and 
the  like:  as,  the  government  of  the  United 
States  has  given  its  ultimatum,  has  made  the 


aLTIMUM  SUPPLICIUM 


620 


UNANIMITY 


last  proposition  it  will  make  to  complete  the 
proposed  treaty.  The  word  also  meaus  the 
result  of  a  negotiation,  and  it  comprises  the 
final  determination  of  the  parties  concerned 
in  the  object  in  dispute. 

ULTIMUM  SUPPLICIUM  (Lat.).  The 

last  or  extreme  punishment;  the  penalty  of 
death. 

ULTIMUS  H-aiRES  (Lat.).  The  last 
or  remote  heir ;  the  lord.  So  called  in  con- 
tradistinction to  the  liceres  proximus  and 
the  hceres  remotior.  Dalrymple,  Feud.  Princ. 
110. 

ULTRA  VIRES  (Lat.).  The  modern 
technical  designation,  in  the  law  of  corpora- 
tions, of  acts  beyond  the  scope  of  their  powers, 
as  defined  by  their  charters  or  acts  of  incor- 
poration. 

2.  As  a  general  rule,  such  acts  are  void, 
and  impose  no  obligations  upon  tHe  corpora- 
tion although  they  assume  the  form  of  con- 
tracts; inasmuch  as  all  persons  dealing  with 
a  corporation,  especially  in  the  state  or  country 
in  which  and  under  whose  laws  it  was  cre- 
ated, are  chargeable  with  notice  of  the  extent 
of  its  chartered  powers.  It  is  otherwise  as 
to  laws  imposing  restraints  upon  it  not  con- 
tained in  its  charter  where  the  contract  is 
made  or  the  transaction  takes  place  without 
the  limits  of  the  state  or  country  under  whose 
laws  the  corporation  exists.  8  Barb.  N.  Y. 
233. 

If,  however,  the  corporation  receives  any 
money  or  other  valuable  consideration  under 
such  a  transaction  or  contract,  it  is  not  doubted 
that  upon  rescinding  or  repudiating  the  act 
or  contract  under  which  it  was  paid  or  de- 
livered it  could  be  recovered  back  in  an 
appropriate  action.  22  N.  Y.  25  ;  14  Penn. 
St.  81. 

3.  So,  too,  the  artificial  body — the  corpora- 
tion— is  liable  to  be  proceeded  against  by  quo 
warranto  for  the  usurpation  of  powers  in  its 
name  by  its  officers  and  agents,  and  its  char- 
ter may  be  taken  away  as  a  penalty  for  per- 
mitting such  acts, — the  defence  of  a  want  of 
power  to  bind  the  corporation  not  being  avail- 
able in  such  cases,  since  it  would  lead  to 
entire  corporate  irresponsibility.  7  Wend. 
N.  Y.  31 ;  1  Blackf.  Ind.  267. 

Many  of  the  adjudged  cases  have  held  that 
contracts  beyond  the  powers  of  a  corporation 
were  not  only  void  for  that  reason,  but  illegal 
and  incapable  of  being  enforced  at  law  or  in 
equity,  as  against  public  policy  ;  but  the  au- 
thorities are  not  uniform.  11  C.  B.  775  ;  4 
Ell.  &  B.  397  ;  5  Hou.  L.  Cas.  331  ;  22  Conn. 
502 ;  21  How.  442 ;  22  N.  Y.  277. 

The  more  general  opinion  would  seem  to 
be  that  such  contracts  cannot  be  enforced  by 
action,  or  in  virtue  of  the  equity  jurisdiction 
to  compel  a  specific  performance.  See  Opinion 
of  Selden,  J.,  in  the  case  last  cited. 

4.  A  court  of  equity,  at  the  suit  of  the 
stockholders  of  the  corporation,  will  restrain 
the  cora:nission  of  acts  beyond  the  corporate 
power,  by  injunction  operating  upon  the  indi- 
vidual ofl&cers  and  directors  as  well  as  the 


corporation.  This  is  now  an  acknowledged 
head  of  equity  jurisdiction.  Redfield,  Railw. 
400,  §  4 ;  4  Railw.  Cas.  513  ;  6  id.  289  ;  10 
Beav.  Rolls,  1 ;  12  id.  339. 

Acquiescence  for  any  considerable  time  in 
the  exercise  of  excessive  powers,  after  they 
come  to  the  knowledge  of  the  stockholders, 
would,  however,  be  a  decisive  objection  to 
such  a  remedy.    19  Eng.  L.  &  Eq.  7. 

Upon  the  general  subject  see,  also,  21  Eng. 
L.  &  Eq.  319  ;  22  Law  Journ.  Q.  B.  69  ;  Shel- 
ford,  Railw.  246,  251  et  seq.;  Pierce,  Rail- 
road Law,  395  et  seq. 

ULTRONEUS  WITNESS.  In 
Scotch  Law.  A  witness  who  offers  his 
testimony  without  being  regularly  cited.  The 
objection  only  goes  to  his  credibility,  and 
may  be  removed  by  a  citation  at  any  time 
before  the  witness  is  sworn.  See  Bell,  Diet. 
JEvidence. 

UMPIRAGE.  The  decision  of  an  um- 
pire. This  word  is  used  for  the  judgment 
of  an  umpire,  as  the  word  award  is  employed 
to  designate  that  of  arbitrators. 

UMPIRE.  A  person  selected  by  two  or 
more  arbitrators  who  cannot  agree  as  to  tho 
subject-matter  referred  to  them,  for  the  pur- 
pose of  deciding  the  matter  in  dispute.  Some- 
times the  term  is  applied  to  a  single  arbi- 
trator selected  by  the  parties  themselves. 
Kyd,  Awards,  6,  75,  77  ;  Caldwell,  Abr.  38  ; 
Dane,  Abr.  Index  ;  3  Viner,  Abr.  93 ;  Co- 
rny ns,  Dig.  Arbitrament  (F) ;  4  Dall.  271,  432 ; 
4  Scott,  N.  s.  378 ;  Bouvier,  Inst.  Index.  The 
jurisdiction  of  the  umpire  and  arbitrators 
cannot  be  concurrent:  if  the  arbitrators 
make  an  award,  it  is  binding;  if  not,  the 
award  of  the  umpire  is  binding.  T.  Jones, 
167.  If  the  umpire  sign  the  award  of  the 
arbitrators,  it  is  still  their  award,  and  vice 
versa.  6  Ilarr.  &  J.  Md.  403,  Arbitrators 
may  appoint  an  umpire  after  their  term  of 
service  has  expired,  if  the  time  is  not  gone 
within  which  the  umpire  was  to  make  his 
award.  2  Johns.  N.  Y.  57.  Subsequent 
dissent  of  the  parties,  without  just  cause, 
will  have  no  effect  upon  the  appointment ;  but 
they  should  have  notice.  11  East,  367;  12 
Mete.  Mass.  293  ;  1  Harr.  &  J.  Md.  362,  note. 
If  an  umpire  refuse  to  act,  another  may  be 
appointed  tofies  quoties.  11  East,  367.  See 
2  Saund.  133  a,  note. 

UNA  VOCE  (Lat.).  With  one  voice; 
unanimously. 

UNALIENABLE.  Incapable  of  being 
sold. 

Things  which  are  not  in  commerce,  as, 
public  roads,  are  in  their  nature  unalienable. 
Some  things  are  unalienable  in  consequence 
of  particular  provisions  in  the  law  forbidding 
their  sale  or  transfer:  as,  pensions  granted  b^ 
the  government.  The  natural  rights  of  life 
and  liberty  are  unalienable. 

UNANIMITY  (Lat.  unus,  one,  ani- 
mus, mind).  The  agreement  of  all  the  per- 
sons concerned  in  a  thing,  in  defagn  and 
opinion. 


UNCERTAINTY 


621         UNILATERAL  CONTRACT 


Generally,  a  simple  majoriti/  of  any  num- 
ber of  persons  is  sufficient  to  do  such  acts  as 
the  whole  number  can  do:  for  example,  a 
majority  of  the  le^ijislature  can  pass  a  law ; 
but  there  are  some  eases  in  w4iich  unanimity 
is  required:  for  example,  a  traverse  jury 
composed  of  twelve  individuals  cannot  de- 
cide an  issue  submitted  to  them  unless  they 
are  unanimous. 

UNCERTAINTY.  That  which  is  un- 
known or  vague.    See  Certainty. 

UNCIA  TERR^  (Lat.).  This  phrase 
often  occurs  in  charters  of  the  British  kings, 
and  denotes  some  quantity  of  land.  It  w^as 
twelve  modii,  each  modivs  possibly  one  hun- 
dred feet  square.  Mon.  Angl.  torn.  3,  pp. 
198,  205. 

The  twelfth  part  of  the  Roman  as.  Dess. 
Diet,  du  Dig.  As.  The  as  was  used  to  express 
an  integral  sum:  hence  tincia  for  one-twelfth 
of  any  thing,  comm(mly  one-twelfth  of  a 
pound,  i.e.  an  ounce.  Id.;  2  Sharswood, 
Blackst.  Comm.  462,  note  m. 

UNCONSCIONABLE  BARGAIN. 

A  contract  which  no  man  in  his  senses,  not 
under  delusion,  would  make,  on  the  one 
hand,  and  which  no  fair  and  honest  man 
would  accept,  on  the  other.  4  Bouvier,  Inst, 
n.  3848. 

UNCONSTITUTIONAL.  That  which 
is  contrary  to  the  constitution. 

When  an  act  of  the  legislature  is  repugnant 
or  contrary  to  the  constitution,  it  is,  ipso  facto, 
void.  2  Pet.  522 ;  12  Wheat.  270 ;  3  Dall.  286 ; 
4  id.  18. 

The  courts  have  the  power,  and  it  is  their 
duty,  when  an  act  is  unconstitutional,  to  de- 
clare it  to  be  so ;  but  this  will  not  be  done 
except  in  a  clear  case  ;  and,  as  an  additional 
guard  against  error,  the  supreme  court  of  the 
United  States  refuses  to  take  up  a  case  in- 
volving constitutional  questions,  when  the 
court  is  not  full.    9  Pet.  85. 

UNCORE  PRIST  (L.  Fr.  still  ready). 
In  Pleading.  A  plea  or  replication  that  the 
party  pleading  is  still  ready  to  do  wdiat  is 
required.  Used  in  connection  with  the  wwds 
(out  temps  prist,  the  whole  denotes  that  the 
party  always  has  been  and  still  is  ready  to  do 
what  is  required,  thus  saving  costs  where  the 
whole  cause  is  admitted,  or  preventing  delay 
where  it  is  a  replication,  if  the  allegation 
is  made  out.  3  Sharswood,  Blackst.  Comm. 
303. 

UNDE  NIHIL  HABET.    See  Dower. 

UNDERLEASE.  An  alienation  by  a 
tenant  of  a  part  of  his  lease,  reserving  to 
himself  a  reversion :  it  differs  from  an  as- 
signment, which  is  a  transfer  of  all  the  ten- 
ant's interest  in  the  lease.  3  Wils.  234  ;  W. 
Blackst.  706.  And  even  a  conveyance  of  the 
whole  estate  by  the  lessee,  reserving  to  him- 
self the  rent,  WMth  a  power  of  re-entry  for 
non-payment,  was  held  to  be  not  an  assign- 
ment, but  an  underlease.  Strange,  405.  In 
Ohio  it  has  been  decided  that  the  transfer 


of  a  part  only  of  the  lands,  though  for  tho 
whole  term,  is  an  underlease.  2  Ohio,  216. 
In  Kentucky,  such  a  transfer,  on  the  con- 
trary, is  considered  as  an  assignment.  4 
Bibb,  Ky.  538.    See  Lease;  Assignment. 

UNDER-TENANT.  One  who  holds  by 
virtue  of  an  underlease.    See  Sub-Tenant. 

UNDERTAKING-.  An  engagement  by 
one  of  the  parties  to  a  contract  to  the  other, 
and  not  the  mutual  engagement  of  the  par- 
ties to  each  other  ;  a  promise.  5  East,  17  ;  2 
Leon.  224,  225  ;  4  Barnew.  &  Aid.  595. 

UNDERTOOK.    Assumed ;  promised. 

This  is  a  technical  word  which  ought  to  be 
inserted  in  every  declaration  of  assumpsit 
charging  that  the  defendant  undertook  to 
perform  the  promise  which  is  the  foundation 
of  the  suit ;  and  this  though  the  promise  be 
founded  on  a  legal  liability  or  would  be  im- 
plied in  evidence.  Bacon,  Abr.  Assumpsit 
(F) ;  1  Chitty,  Plead.  88,  note  p. 

UNDER-TUTOR.    In  Louisiana.  In 

every  tutorship  there  shall  be  an  under-tutor 
whom  it  shall  be  the  duty  of  the  judge  to 
appoint  at  the  time  letters  of  tutorship  are 
certified  for  the  tutor. 

It  is  the  duty  of  the  under-tutor  to  act 
for  the  minor  whenever  the  interest  of  the 
minor  is  in  opposition  to  the  interest  of  the 
tutor.  La.  Civ.  Code,  art.  300,  301 ;  1  Mart. 
La.  N.  s.  462  ;  9  Mart.  La.  643  ;  11  La.  189 ; 
Pothier,  Des  Personnes,  partie  prem.  tit.  6,  s. 
5,  art.  2.    See  Procurator  ;  Protutor. 

UNDERWRITER.    In  Insurance. 

The  party  who  agrees  to  insure  another  on 
life  or  property,  in  a  policy  of  insurance  He 
is  also  called  the  insurer. 

UNDIVIDED.  Held  by  the  same  title 
by  tw^o  or  more  persons,  whether  their  rights 
are  equal  as  to  value  or  quantity,  or  un- 
equal. 

Tenants  in  common,  joint-tenants,  and  part- 
ners hold  an  undivided  right  in  their  re- 
spective properties  until  partition  has  been 
made.  The  rights  of  each  owner  of  an  un- 
divided thing  extend  over  the  whole  and 
every  part  of  it,  totnm  in  toio,  et  totitm  in 
qualibet  parte.  See  Partition  ;  Per  My  et 
PER  Tout. 

UNICA  TAXATIO  (Lat.).  In  Prac- 
tice. The  ancient  language  of  a  special  award 
of  venire,  where  of  several  defendants  one 
pleads,  and  one  lets  judgment  go  by  default, 
whereby  the  jury  who  are  to  try  and  assess 
damages  on  the  issue  are  also  to  assess  dam- 
ages against  the  defendant  suffering  judg- 
ment by  default.    Lee,  Diet. 

UNIFORMITY  OF  PROCESS.  In 
English  Law.  An  act  providing  for  uni- 
formity of  process  in  personal  actions  in  his 
majestv's  courts  of  law  at  Westminster.  2 
Will.  IV.  c.  39,  23d  May,  1832;  3  Chitty, 
Stat.  494. 

UNILATERAL  CONTRACT.  In 
Civil  Law.    When  the  party  to  whom  an 


UNINTELLIGIBLE 


622     UNITED  STATES  OF  AMERICA 


engagement  is  made  makes  no  express  agree- 
ment on  his  part,  the  contract  is  called  uni- 
lateral, even  in  cases  where  the  law  attaches 
certain  obligations  to  his  acceptance.  La. 
Civ.  Code,  art.  1758;  Code  Nap.  1103.  A  loan 
of  money  and  a  loan  for  use  are  of  this  kind. 
Pothier,  Obi.  part  1,  c.  1,  s.  1,  art.  2 ;  Le9. 
Ei6men.  g  781. 

UNINTELLIGIBLE.  That  which  can- 
not be  understood. 

When  a  law,  a  contract,  or  will  is  unintel- 
ligible, it  has  no  effect  whatever.  See  Con- 
struct! OxV,  and  the  authorities  there  re- 
ferred to. 

UNIO  PROLIUM  (Lat.  union  of  off- 
spring). A  species  of  adoption  used  among 
the  Germans,  which  takes  place  when  a 
widower  having  children  marries  a  widow 
who  also  has  children.  These  parents  then 
agree  that  the  children  of  both  marriages 
shall  have  the  rights  to  their  succession,  as 
those  which  may  be  the  fruits  of  their  mar- 
riage.   Lecj.  Elem.  ^  187. 

UNION.  A  popular  term  for  the  United 
States  of  America:  as,  the  Union  must  and 
shall  be  preserved. 

UNITED  STATES  OF  AMERICA. 
The  nation  occupying  the  territory  between 
British  America  on  the  north,  Mexico  on  the 
south,  the  Atlantic  Ocean  and  Gulf  of  Mexico 
on  the  east,  and  the  Pacific  Ocean  on  the  west ; 
being  the  republic  whose  organic  law  is  the 
constitution  adopted  by  the  people  of  the 
thirteen  states  which  declared  their  inde- 
pendence of  the  government  of  Great  Britain 
on  the  fourth  day  of  July,  1776. 

2.  When  they  are  said  to  constitute  one  nation, 
this  must  be  understood  with  proper  qualifications. 
Our  motto,  E  pluribua  unum,  expresses  the  true 
nature  of  that  composite  body,  by  which  foreign 
nations  are  regarded  and  in  which  they  look  on  us. 
No  state  can  enter  into  a  treaty,  nor  make  a  com- 
pact with  any  foreign  nation,  nor  grant  letters  of 
marque  or  reprisal.  Art.  1,  ^  10;  art.  4,  ^  4.  To 
foreigners  we  present  a  compact  unity,  an  undi- 
vided sovereignty.  No  state  can  do  a  national  act 
nor  legally  commit  the  faith  of  the  Union. 

In  our  inter-state  and  domestic  relations  we  are 
far  more  a  complex  body.  In  these  we  are  for 
some  purposes  one.  We  are  so  as  far  as  our  con- 
stitution makes  us  one,  and  no  further;  and  under 
this  we  are  so  far  a  unity  that  one  state  is  not 
foreign  to  another.  Art.  4,  §  2.  A  constitution, 
according  to  the  original  meaning  of  the  word,  is 
an  organic  law.  It  includes  the  organization  of 
the  government,  the  grant  of  powers,  the  distri- 
bution of  these  powers  into  legislative,  executive, 
and  judicial,  and  the  names  of  the  officers  by  whom 
these  are  exercised.  And  with  these  provisions  a 
eonstitution,  properly  so  called,  terminates.  But 
ours  goes  further.  It  contains  restrictions  on  the 
powers  of  the  government  which  it  organizes. 

The  migration  or  importation  of  any  description 
of  persons  (and  this  relates  purely  to  the  importa- 
tion of  slaves  from  Africa)  shall  not  be  prohibited 
prior  to  the  year  1808. 

The  writ  of  habeas  corpus,  the  great  instrument 
in  defence  of  personal  liberty  against  the  encroach- 
ment of  the  government,  shall  not  be  suspended 
Dut  in  case  of  rebellion  or  invasion,  and  when  the 
public  safety  requires  it.  No  bill  of  attainder  or 
•X  pt-et  facto  law  shall  be  passed;  no  money  shall 


be  drawn  from  the  treasury  where  there  is  not  a 
regular  appropriation  ;  no  title  of  nobility  shall  be. 
granted  ;  and  no  person  holding  office  shall  receive 
a  present  from  any  foreign  government.  Art  1,  § 
9.  To  these,  which  are  in  the  original  constitu- 
tion, may  be  added  the  eleven  first  amendments. 
These,  as  their  character  clearly  shows,  had  their 
origin  in  a  jealousy  of  the  powers  of  the  general 
government.  All  are  designed  more  effectually  to 
guard  the  rights  of  the  people,  and  would  properly, 
together  with  the  restrictions  in  the  original  con- 
stitution, have  a  place  in  a  bill  of  rights.  Any  act 
or  law  of  the  United  States  in  violation  of  these, 
with  whatever  formality  enacted,  would  be  null 
and  void,  as  an  excess  of  power. 

3.  The  restrictions  on  state  sovereignty,  besides 
those  which  relate  to  foreign  nations,  are  that  no 
state  shall  coin  money,  emit  bills  of  credit,  make 
any  thing  but  gold  and  silver  a  tender  in  the  pay- 
ment of  debts,  pass  any  bill  of  attainder  or  ex 
prist  facto  law,  or  law  impairing  the  obligation  of 
contracts,  or  grant  any  title  of  nobility.  These 
prohibitions  are  absolute.  But  without  the  consent 
of  congress  no  state  shall  lay  any  duties  on  imports 
or  exports,  or  any  duty  on  tonnage,  or  keep  troops 
or  ships  of  war  in  time  of  peace,  or  enter  into  any 
agreement  or  compact  with  another  state,  or  engage 
in  war  unless  actually  invaded  or  in  imminent 
danger  of  being  so. 

What  constitutes  a  duty  on  exports  or  imports 
has  been  a  matter  of  grave  doubt  in  the  supreme 
court.  Whether  a  tax  on  passengers  introduced 
from  foreign  countries,  7  How.  286,  or  pilot  laws 
enacted  by  a  state,  12  How.  299,  be  an  interference 
with  the  exclusive  power  of  the  United  States  to 
regulate  commerce,  may  be  a  subject  on  which  men 
may  pause.  But  whatever  these  restrictions  are, 
they  operate  on  all  states  alike,  and  if  any  state 
law  violates  them  the  law  is  void.  Of  these  viola- 
tions we  have  various  examples  j  and  without  any 
legislation  of  congress  the  supreme  court  has  de- 
clared them  so.  6  Cranch,  100  j  4  Wheat.  122,  316, 
618;  16  How.  304. 

The  United  States  have  certain  powers,  the 
principal  of  which  arc  enumerated  in  art.  1,  §  8, 
running  into  seventeen  specific  powers.  Others  are 
granted  to  particular  branches  of  the  government : 
as,  the  treaty-making  power  to  the  president  and 
senate.  These  have  an  equal  eftect  in  all  the  states, 
and  so  far  as  an  authority  is  vested  in  the  govern- 
ment of  the  Union  or  in  any  department  of  it,  and 
so  far  as  the  states  are  prohibited  from  the  exorcise 
of  certain  powers,  so  far  in  our  domestic  affairs  we 
are  a  unity. 

Within  these  granted  powers  the  sovereignty  of 
the  United  States  is  supreme.  The  constitution, 
and  the  laws  made  in  pursuance  of  it,  and  all 
treaties,  are  the  supreme  law  of  the  land.  Art.  6. 
And  they  not  only  govern  in  their  words,  but  in 
their  meaning.  If  the  sense  is  .  ambiguous  or 
dcibtful,  the  United  States,  through  their  courts, 
in  xll  cases  where  the  rights  of  an  individual  are 
co»  cerned,  are  the  rightful  expositors.  For  with- 
out the  authority  of  explaining  this  meaning  the 
United  States  would  not  be  sovereign. 

4.  lu  these  matters,  particularly  in  the  limita- 
tion put  on  the  sovereignty  of  the  states,  it  has 
been  sometimes  said  that  the  constitution  executes 
itself.  This  expression  may  be  allowed  ;  but  with 
as  much  propriety  these  may  be  said  to  be  laws 
which  the  people  have  enacted  themselves,  and  no 
laws  of  congress  can  either  take  from,  add  to,  or 
confirm  them.  They  are  rights,  privileges,  or  im- 
munities which  are  granted  by  the  people,  and  are 
beyond  the  power  of  congress  or  state  legislatures; 
and  they  require  no  law  to  give  them  force  or 
efficiency.  The  members  of  congress  are  exempted 
from  arrest,  except  for  treason,  felony,  and  breach 
of  the  peace,  in  going  to  and  returning  from  -iio 


UNITED  STATES  OF  AMERICA     623      UNITED  STATES  OF  AMERICA 


seat  of  government.  Art.  1,  ^  6.  It  is  obvious 
that  no  law  can  affect  this  immunity.  On  these 
subjects  all  laws  are  purely  nugatory,  because  if 
they  go  beyond  or  fall  short  of  the  provisions  of 
the  constitution,  that  may  always  be  a])peale(l  to. 
An  individual  has  just  what  that  gives  him, — no 
less  and  no  more.  It  may  be  laid  down  as  a 
universal  rule,  admitting  of  no  exception,  that  when 
the  constitution  has  established  a  disability  or  im- 
munity, a  privilege  or  a  right,  these  are  precisely 
as  that  instrument  has  fixed  them,  and  can  be 
neithei-  nttgnientcd  nor  curtailed  by  any  act  or  law 
cither  of  congress  or  a  state  legislature.  We  are 
more  particular  in  stating  this  principle  because  it 
has  sometimes  been  forgotten  both  by  legislatures 
and  theoretical  expositors  of  the  constitution. 

It  has  been  justly  thought  a  matter  of  import- 
ance to  determine  from  what  source  the  United 
States  derive  their  authority.  4  Wheat.  402.  When 
the  constitution  was  framed,  the  people  of  this 
country  were  not  an  unformed  mass  of  individuals. 
They  were  united  into  regular  communities  under 
state  governments,  and  to  these  had  confided  the 
whole  mass  of  sovereign  power  which  they  chose 
to  intrust  out  of  their  own  hands.  The  question 
here  proposed  is  whether  our  bond  of  union  is  a 
compact  entered  into  by  the  states,  or  the  constitu- 
tion is  an  organic  law  established  by  the  peoiile. 
To  this  question  the  preamble  gives  a  decisive 
answer :  We,  the  people,  ordain  and  establish  this 
constitution.  The  members  of  the  convention  which 
formed  it  were  indeed  appointed  by  the  states.  But 
the  government  of  the  states  had  only  a  delegated 
power,  and,  if  they  had  an  inclination,  had  no  au- 
thority to  transfer  the  allegiance  <>f  the  people 
from  one  sovereign  to  another.  The  great  men 
who  formed  the  constitution  were  sensible  of  this 
want  of  power,  and  recommended  it  to  the  people 
themselves.  They  assembled  in  their  own  con- 
ventions and  adopted  it,  acting  in  their  original 
capacity  as  individuals,  and  not  as  representing 
states.  The  state  governments  are  passed  by  in 
silence.  They  had  no  part  in  making  it,  and,  though 
they  have  certain  duties  to  perform,  as,  the  ap- 
pointment of  senators,  are  properly  not  parties  to 
it.  The  people  in  their  capacity  as  sovereign  made 
and  adopted  it;  and  it  binds  the  state  governments 
without  their  consent.  The  United  States  as  a 
whole,  therefore,  emanates  from  the  people,  and  not 
from  the  states,  and  the  constitution  and  laws  of 
the  states,  whether  made  before  or  since  the  adop- 
tion of  that  of  the  United  States,  are  subordinate 
to  it  and  the  laws  made  in  pursuance  of  it. 

5.  It  has  very  truly  been  said  that  out  of  the 
mass  of  sovereignty  intrusted  to  the  states  was 
carved  a  part  and  deposited  with  the  United  States. 
But  this  was  taken  by  the  people,  and  not  by  the 
states  as  organized  communities.  The  people  are 
the  fountain  of  sovereignty.  The  whole  was  ori- 
ginally with  them  as  their  own.  The  state  govern- 
ments were  but  trustees  acting  under  a  derived  au- 
thority, and  had  no  power  to  delegate  what  was 
delegated  to  them.  But  the  people,  as  the  original 
fountain,  might  take  away  what  they  had  lent  and 
intrust  it  to  whom  they  pleased.  They  had  the 
whole  title,  and,  as  absolute  proprietors,  had  the 
right  of  using  or  abusing, — -Juh  utendi  et  ahutendi. 

A  consequence  of  great  importance  flows  from 
this  fact.  The  laws  of  the  United  States  act 
directly  on  individuals,  and  they  are  directly  and 
not  mediately  responsible  through  the  state  gov- 
ernments. This  is  the  most  important  improve- 
ment made  by  our  constitution  over  all  previous 
confederacies.  A.s  a  corollary  from  this,  if  not  more 
properly  a  part  ,)f  it,  the  laws  act  only  on  states 
through  individuals.  They  are  supreme  over  per- 
sons and  cases,  but  do  not  touch  the  states  but 
through  them.  1  Wheat.  368.  If  a  state  passes 
R,D  ex  post  facto  law,  or  passes  a  law  impairing  the 


obligation  of  contracts,  or  makes  any  thing  but 
gold  or  silver  a  tender  in  payment  of  debts,  con- 
gress passes  no  law  which  touches  the  state:  it  is 
sufficient  that  these  laws  are  void,  and  when  a  case 
is  brou;j;ht  before  court  it,  without  any  law  of  con- 
gress, will  declare  them  void.  They  give  no  per- 
son an  immunity,  nor  dei)rive  any  of  a  right. 
Again  :  should  a  state  pass  a  law  declaring  war 
against  a  foreign  nation,  grant  letters  of  marque 
and  reprisals,  arm  troops  or  keep  ships  of  war  in 
time  of  [)eace,  individuals  acting  under  such  laws 
would  be  responsible  to  the  United  States.  They 
might  be  tieated  and  punished  as  traitors  or  pirates. 
But  congress  would  and  could  pass  no  law  against 
the  state;  and  for  this  simple  reason,  because  the 
state  is  sovereign.  And  it  is  a  maxim  consecrated 
in  public  law  as  well  as  common  sense  and  the 
necessity  of  the  case,  that  a  sovereign  is  answer- 
able for  his  acts  only  to  his  God  and  to  his  own 
conscience. 

The  eonstitution  and  laws  made  in  pursuance 
of  it, — that  is,  laws  within  their  granted  powers, — 
and  all  treaties,  are  the  supreme  law  of  the  land, 
art.  6;  and  the  judicial  power,  art.  3,  ^  1,  gives 
to  the  supreme  court  the  right  of  interpreting  them. 
But  this  court  is  but  another  name  for  the  United 
States,  and  this  power  ne(  essarily  results  from  their 
sovereignty  ;  for  the  United  States  would  not  be 
truly  sovereign  without  their  interpretation  as  well 
as  the  letter  of  the  law  governed.  But  this  power  of 
the  court  is  confined  to  cases  brought  before  them, 
and  does  not  embrace  principles  independent  of  these 
cases.  They  have  no  power  analogous  to  that  of 
the  Roman  praetor  of  declaring  the  meaning  of 
the  constitution  by  edicts.  Any  opinion,  however 
strongly  expressed,  has  no  authority  beyond  the 
reasoning  by  which  it  is  supported,  and  binds  no 
one.  But  the  point  embraced  in  the  case  is  as 
much  a  part  of  the  law  as  though  embraced  in  the 
letter  of  the  law  or  constitution,  and  it  binds 
public  functionaries,  whether  of  the  states  or  United 
States,  as  well  as  private  persons;  and  this  of 
necessity,  as  there  is  no  authority  above  a  sove- 
reign to  which  an  appeal  can  be  made. 

a.  Another  question  of  great  practical  import- 
ance arose  at  an  early  period  of  our  government. 
Tlie  natural  tendency  of  all  concentrated  power  is 
to  augment  itself.  Limitations  of  authority  are 
not  to  be  expected  from  those  to  whom  power  is 
intrusted ;  and  such  is  the  infirmity  of  human 
nature  that  those  who  are  most  jealous  when  out 
of  power  and  seeking  office  are  quite  as  ready 
practically  to  usurp  it  as  any  other.  A  general  abro- 
gation commonly  precedes  a  real  usurpation,  to  lull 
suspicion  if  for  no  other  purpose.  When  the  con- 
stitution was  new,  and  before  it  had  been  fully 
considered,  this  diversity  of  opinion  was  not  un- 
natural, and  was  the  subject  of  earnest  argument, 
but  is,  we  think,  now  settled,  and  rightly,  both  on 
technical  reasoning  and  on  that  of  expediency.  It 
is  between  incidental  and  constructive  or  implied 
powers.  The  government  of  the  United  States  is 
one  of  delegated  power.  No  general  words  are 
used  from  which  a  general  power  can  be  inferred. 
Incidental  and  implied  are  sometimes  used  as 
synonymous ;  but  in  accurate  reasoning  there  is  a 
plain  distinction  between  them,  and  the  latter  in 
common  use  comes  nearer  to  constructive  than  to 
incidental. 

The  interpretation  of  powers  is  familiar  to  courts 
of  justice,  as  a  great  part  of  landed  property  in 
England  and  much  in  this  country  is  held  undei 
powers.  A  more  frequent  example  is  that  of  com- 
mon agency,  as  every  agent  is  created  by  a  power. 
Courts  whose  professed  object  is  to  carry  inta 
effect  the  intentions  of  parties  have,  on  this  subject, 
established  general  rules.  Among  these  no  one  is 
more  immovably  fixed  than  this,  that  the  inter- 
pretation is  strict  and  not  liberal.    2  Keut,<Comm 


UNITED  STATES  OF  AMERICA     624     UNITED  STATES  OF  AMERICA 


617;  4:  id.  330.  But  this  strictness  does  not  ex- 
clude incidental  powers.  These  are  included  in  a 
general  and  express  power,  both  in  the  common  and 
technical  use  of  language.  To  take  a  familiar 
example.  A  merchanc  of  Philadelphia  or  Boston 
has  a  cargo  of  tea  arrive  at  New  York,  and  by 
letter  authorizes  his  correspondent  to  sell  it.  This 
is  the  whole  extent  of  the  power.  But  it  neces- 
sarily and  properly  includes  that  of  advertising, 
of  removing  and  exhibiting  the  goods,  etc.  But  it 
would  not  authorize  the  sale  of  sugar,  a  horse,  and 
much  less  a  store  or  real  estate.  These  powers  are 
not  incidental  to  the  general  power,  nor  included  in 
it.  Or  we  may  take  an  example  directly  from  the 
constitution  itself.  The  United  States  has  power 
"to  lay  and  collect  taxes,  duties,  imposts,  and 
excises,  to  pay  the  debts  and  provide  for  the  com- 
mon defence  and  general  welfare  of  the  United 
States."  This  includes  the  power  to  create  and 
appoint  all  inferior  officers  and  to  do  all  subordi- 
nate acts  necessary  and  proper  to  execute  the  gene- 
ral power :  as,  to  appoint  assessors,  collectors,  keepers 
and  disbursers  of  the  public  treasures.  Without 
these  subordinate  powers  the  general  power  could 
not  be  executed.  And  when  there  is  more  than 
one  mode  by  which  this  general  power  may  be 
executed,  it  includes  all.  The  agent  is  not  con- 
fined to  any  one,  unless  a  particular  mode  is  pointed 
out.  4  Wheat.  410.  All  that  the  constitution 
requires  is  that  it  should  be  necessary  and  proper. 
One  consequence  of  this  doctrine  is  that  there  must 
be  a  power  expressly  granted  as  a  stock  to  bear 
this  incidental  power,  or  otherwise  it  would  be 
ingrafted  on  nothing. 

7.  A  constructive  power  is  one  that  is  inferred, 
not  from  an  express  power,  but  from  the  general 
objects  to  be  obtained  from  the  grant,  and,  perhaps, 
in  private  powers  sometimes  from  the  general 
language  in  which  they  are  granted.  The  broad 
distinction  between  them  may  be  illustrated  by  two 
cases  that  came  before  the  United  States  Court. 
The  first  is  one  we  have  already  quoted,  2  Wheat. 
317.  The  question  in  that  case  was  whether  the 
act  incorporating  the  Bank  of  the  United  States 
was  constitutional,  or  whether  it  lay  beyond  the 
limits  of  the  delegated  powers  and  was,  therefore, 
merely  void  as  usurped  or  an  excess  of  power. 
The  authority  to  create  a  corporation  is  nowhere 
expressly  given,  and  if  it  exists  it  must  be  sought 
as  incidental  to  some  power  that  is  specifically 
granted.  The  court  decided  that  it  was  incidental 
to  that  of  laying  taxes  as  a  keeper  and  disburser 
of  the  public  treasure.  This  power  could  be  exe- 
cuted only  by  the  appointment  of  agents;  and  the 
United  States  might  as  well  create  an  agent  for 
receiving,  keeping,  and  disbursing  the  public  money 
as  appoint  a  natural  person  or  an  artificial  one 
already  created.  In  the  case  of  Osborne  vs.  The 
United  States  Bank,  9  Wheat.  859,  860,  the  general 
question  was  presented  again,  and  reargued,  and  the 
court  reaffirmed  their  former  decision,  but,  more  dis- 
tinctly than  before,  added  an  important  qualifica- 
tion. They  might  not  only  create  an  artificial 
person,  but  clothe  it  with  such  powers  and  qualities 
as  would  enable  it  with  reasonable  convenience  to 
perform  its  specific  duties.  The  taxes  are  collected 
at  one  end  of  the  country  and  paid  out  at  another, 
and  the  bank  instead  of  removing  the  specie  might 
pay  it  where  collected,  and  repay  themselves  by 
purchasing  a  bill  of  exchange  in  another  place, 
and  this  could  be  conveniently  and  economically 
done  only  by  a  power  of  dealing  in  exchange 
generally,  which  when  reduced  to  its  last  analysis 
is  merely  buying  specie  at  one  place  and  paying 
for  it  at  another.  It  is  in  this  way,  and  this  only, 
that  the  bank  gets  its  general  power  of  dealing  in 
exchange. — that  it  is  essential  and  proper  to  enable 
it  to  perform  its  principal  duty,  that  of  transferring 
♦he  futidg  of  the  United  States.    Thus,  the  author- 


ity to  create  a  bank  is  incidental  to  that  of  receiv- 
ing, keeping,  and  paying  out  the  taxes,  and  is  com- 
prehended under  the  specific  power.  The  argu- 
ment is  principally  derived  from  Hamilton's  report 
on  a  bank,  which  proved  satisfactory  to  Washington, 
as  that  of  Chief-Justice  Marshall  has  to  the  public 
at  large. 

8.  This  is  very  different  from  a  constructive 
power  which  is  inferred  not  as  included  in  any 
special  grant,  but  from  the  general  tenor  of  the 
power  and  the  general  objects  to  be  obtained.  The 
objects  of  the  constitution  are  stated  in  the  pre- 
amble, and  they  are  to  promote  the  common  weal. 
But  this  is  followed  by  the  grant  of  specific  powers. 
And  it  is  the  dictate  of  common  sense  as  well  as 
technical  reasoning  that  this  object  is  to  be  ob- 
tained by  the  due  exercise  of  these  powers.  Where 
these  fall  short,  none  are  granted ;  and  if  they  are 
inadequate,  the  same  consequence  follows.  No  one 
would  infer  from  a  power  to  sell  a  ship  one  to  sell 
a  store,  though  the  interest  of  the  principal  would 
thereby  be  promoted.  The  general  power  to  regu- 
late commerce  is  useful,  and  it  is  given,  and  it  may 
be  carried  to  its  whole  extent  by  having  incidental 
powers  ingrafted  upon  it.  A  general  power  to 
regulate  the  descent  and  distribution  of  intestate 
estates  and  the  execution  and  proofs  of  wills 
would  be  on  many  accounts  useful,  but  it  is  not 
granted.  The  utility  of  a  power  is  never  a  ques- 
tion. It  must  be  expressly  granted,  or  incidental 
to  an  express  power, — that  is,  necessary  and  proper 
to  carry  into  execution  one  expressly  granted, — or 
it  does  not  exist. 

The  other  illustrative  case  is  that  of  16  Pet.  607 
-679.  It  will  be  found  on  a  careful  examination 
that  in  this  a  constructive  power  only  is  claimed. 
The  only  point  involved  in  the  case  was  the  con- 
stitutionality of  the  statute  of  Pennsylvania  undei 
which  Prigg  was  indicted  as  a  kidnapper.  The 
court  decided  this  to  be  unconstitutional;  and  here 
its  judicial  functions  properly  terminated.  But  to 
arrive  at  this  conclusion  it  was  deemed  necessary 
to  determine  that  the  general  power  of  arresting 
and  returning  fugitives  from  labor  and  service  was 
intrusted  to  the  United  States.  It  was  not  pretended 
that  this  power  was  expressly  given,  nor  that  it  was 
incidental  to  any  that  was  expressly  given, — that 
is,  conducive  or  proper  to  the  execution  of  such  a 
power.  The  court  say  that  "  in  the  exposition  of 
this  part  of  the  constitution  we  shall  limit  our- 
selves to  the  considerations  which  appropriately 
and  exclusively  belong  to  it,  without  laying  down 
any  rules  of  interpretation  of  a  more  general  na- 
ture." 16  Pet.  610.  They  do  not,  as  in  McCul- 
loch's  case,  quote  the  express  authority  to  which 
this  is  incidental ;  but  a  general  argument  is  offered 
to  prove  that  this  power  is  most  safely  lodged  with 
the  United  States,  and  that,  therefore,  it  has  been 
placed  there  exclusively.  If  the  canon  of  criticism 
which  we  have  endeavored  to  establish,  and  which 
is  generally  admitted,  is  correct,  the  existence  of 
such  a  power  cannot  be  inferred  from  its  utility. 

9.  It  will  be  seen,  also,  that  this  case  stands  in 
strong  contrast  with  that  of  Martin  vs.  Hunter,  1 
Wheat.  304-326,  in  which  the  opinion  was  delivered 
by  the  same  judge.  This  was  on  the  validity  of 
the  twenty-fifth  section  of  the  judiciary  act,  author- 
izing an  appeal  from  a  final  judgment  of  a  state 
court  to  the  supreme  court  of  the  United  gtates; 
and  perhaps  in  no  case  has  the  extent  of  the  powers 
granted  by  the  constitution  been  more  fully  and 
profoundly  examined.  In  this  case  the  court  say 
that  "  the  government  of  the  United  States  can 
claim  no  powers  which  are  not  granted  by  the  con- 
stitution ;  and  the  powers  actually  granted  must 
be  such  as  are  expressly  given,  or  given  by  nectssary 
implication  ;" — that  is,  as  the  reasoning  of  the  court 
in  the  whole  opinion  proves,  such  as  are  included 
in  the  express  powers, '  and  are  necessary,  aro 


* 


UNITED  STATES  OF  AMERICA  625 


UNITY  OF  POSSESSION 


proper  to  carry  that  into  execution.  And  such  is 
the  uniform  language  of  the  court  whenever  this 
question  has  been  presented.  We  think  it  may  bo 
averred  as  a  principle  that  admits  of  no  exception, 
sanctioned  at  once  by  the  supremo  court,  by  the 
artificial  reason  of  the  law,  and  by  common  sense, 
that  the  United  States  exercise  only  a  delegated 
and  have  no  cuuHtructive  power,  and  that  these  must 
be  sought  in  an  express  grant  or  be  necessarily 
incidental  to  it. 

10.  We  have  seen  that  the  constitution  of  tho 
United  States  and  the  laws  made  in  pursuance 
of  it  are  the  supreme  law  of  the  land,  and  that  of 
the  true  meaning  of  these  the  supreme  court,  which 
is  nothing  else  than  the  United  States,  is  the  right- 
ful expositor.  This  necessarily  results  from  their 
sovereignty.  But  the  United  States  government 
is  one  of  delegated  powers;  and  nothing  ie  better 
established,  both  by  technical  reasoning  and  com- 
mon sense,  than  this, — that  a  delegate  can  exercise 
only  that  power  which  is  delegated  to  him.  All 
acts  beyond  are  simply  void,  and  create  no  obliga- 
tion. It  is  a  maxim  also  of  constitutional  law  that 
the  powers  of  sovereignty  not  delegated  to  the  United 
States  are  reserved  to  the  states.  But  in  so  complex 
an  affair  as  that  of  government,  controversies  will 
arise  as  to  what  is  given  and  what  is  reserved, — 
doubts  as  to  the  dividing  line.  When  this  is  the 
case,  who  is  to  decide?  This  is  a  ditficulty  which 
the  convention  did  not  undertake  to  settle. 

To  avoid  all  controversy  as  far  as  possible,  the 
plainest  words  in  granting  powers  to  the  United 
States  were  used  which  the  language  affords.  Still 
further  to  preclude  doubts,  the  convention  added, 
at  the  close  of  the  seventeen  powers  expressly 
given,  this  clause  :  To  make  all  laws  which  shall 
be  necessary  and  proper  for  carrying  into  execution 
the  foregoing  powers,  and  all  other  powers  vested 
by  this  constitution  in  the  government  of  the  United 
States  or  in  any  department  or  officer  thereof.'^ 
Art.  1,  ^  8.  This  clause  contains  no  grant  of  power. 
But  in  the  Articles  of  Confederation,  which  was  a 
compact  between  the  states  as  independent  sove- 
reignties, the  word  expressly  was  used;  and  a 
doubt  troubled  congress  how  far  incidental  powers 
were  included.  Articles  of  Confederation,  art.  2. 
This  clause  was  introduced  to  remove  that  doubt. 
It  covered  incidental,  but  not  constructive,  powers. 

11.  Strange  as  it  may  appear,  those  who  wanted 
larger  powers  granted  to  the  United  States,  and,  in 
the  language  of  that  day,  thought  that  things  must 
be  worse  before  they  could  be  better,  and  those  who 
honestly  feared  that  too  much  power  was  granted, 
both  fixed  their  eyes  on  this  clause;  and  perhaps 
no  part  of  the  constitution  gave  greater  warmth  to 
the  controversy  than  this.  To  disarm  the  design- 
ing and  counteract  the  fears  of  the  timid,  the 
tenth  amendment  was  offered  by  the  friends  of  the 
constitution.  But  so  jealous  were  parties  of  each 
other  that  it  was  oflFered  in  the  convention  of 
Massachusetts  by  Governor  Hancock,  who  favored 
and  had  the  confidence  of  the  opposition,  though  it 
was  in  the  handwriting  of  Mr.  Parsons,  after- 
wards chief-justice.  Life  of  Chief-Justice  Parsons. 
That  amendment  is  iu  these  words:  "The  powers 
not  djlegated  to  the  United  States  by  the  constitu- 
tion, nor  prohibited  to  the  states,  are  reserved  to 
the  states  respectively,  or  the  people."  Were  the 
Words  of  the  original  constitution  and  the  amend- 
ment both  stricken  out,  it  would  leave  the  true 
construction  unaltered.  Story,  Const.  ^  1232.  Both 
are  equally  nugatory  in  fact;  but  they  have  an 
important  popular  use.  The  amendment  formally 
admits  that  oertain  rights  are  reserved  to  the  states, 
and  these  rights  must  be  sovereign. 

We  h  ive  seen  that,  within  their  limited  powers, 
the  United  States  are  the  natural  expositors  of  the 
constitution  and  laws;  that  when  a  case  aflfcoting 
individual  rights  arises,  the  supreme  court  stands 

Vol.  II.— 40 


for  the  United  States,  and  that  they  have  the  sole 
right  to  explain  and  enforce  the  laws  and  constitu- 
tion. But  their  power  is  confined  to  the  facti 
before  them,  and  they  have  no  power  to  explain 
them  in  the  form  of  an  edict  to  affect  other  rights 
and  cases.  Beyond  these  pr)wers  the  states  are 
sovereign,  and  their  acts  are  ecjually  unexaniinable. 
Of  the  separating  line  between  the  powers  ^'ranted 
and  the  powers  withheld,  the  constitution  provides 
no  judge.  Between  sovereigns  there  can  be  no 
common  judge  hut  an  arbiter  mutually  agreed 
upon.  If  that  i)ower  is  given  to  one  i)arty,  that 
may  draw  all  power  to  itself,  and  it  establishes  a 
relation  not  of  equal  sovereignties,  but  of  sovereign 
and  subject.  On  this  subject  the  c<»n8titution  ia 
silent.  The  great  men  who  formed  it  did  not  under- 
take to  solve  a  question  that  in  its  own  nature 
is  insoluble.  Between  equals  it  made  neither 
superior,  but  trusted  to  the  mutual  forbearance  of 
both  parties.  A  larger  confidence  was  placed  in 
an  enlijihtened  public  opinion  as  the  final  umpire, 
'i'he  peo|»ie  parcelled  out  the  rights  of  sovereignty 
between  the  states  and  the  United  States,  and  they 
have  a  natural  right  to  determine  what  was  given 
to  one  party  and  what  to  tho  other.  To  this  en- 
lightened public  opinion  an  appeal  may  be  made, 
and  a  peaceful  solution  of  the  question  may  be 
obtained  without  recourse  to  the  ultima  ratio  regum. 

UNITY.  An  agreement  or  coincidence 
of  certain  qualities  in  the  title  of  a  joint- 
estate  or  an  estate  in  common. 

In  a  joint-estate  there  must  exist  four 
unities:  that  of  interest,  for  a  joint-tenant 
cannot  be  entitled  to  one  period  of  duration  or 
quantity  of  interest  in  lands,  and  the  other  to 
a  different;  one  cannot  be  tenant  for  life  and 
the  other  for  years :  that  of  title,  and,  there- 
fore, their  estates  must  be  created  by  one  and 
the  same  act ;  that  of  time,  fur  their  estates 
must  be  vested  at  one  and  the  same  period, 
as  well  as  by  one  and  the  same  title ;  and, 
lastly,  the  unity  of  possession:  hence  joint- 
tenants  are  seised  per  my  et  per  tout,  or  bj 
the  half  or  moiety  and  by  all :  that  is,  each 
of  them  has  an  entire  possession  as  well  of 
every  parcel  as  of  the  whole.  2  Blackstone, 
Comm.  179-182 ;  Coke,  Litt.  188. 

Coparceners  must  have  the  unities  of  inte- 
rest, title,  and  possession. 

In  tenancies  in  common,  the  unity  of 
possession  is  alone  required.  2  Sharswood, 
Blackst.Comm.  192;  2  Bouvier,  Inst.  nn.  1861 
-1883.  See  Estate  in  Common  ;  Estate  in 
Joint-Tenancy  ;  Joint-Tenants  ;  Tenant  in 
Common;  Tenants,  Joint. 

UNITY  or  POSSESSION.  This  term 
is  used  to  designate  the  possession  by  one 
person  of  several  estates  or  rights.  For  ex- 
ample, a  right  to  an  estate  to  which  an 
easement  is  attached,  or  the  dominant  estate, 
and  to  an  estate  which  an  easement  incum- 
bers, or  the  servient  estate,  in  such  case  the 
easement  is  extinguished.  3  Mas.  C.  C.  172  ; 
Poph.  166;  Latch,  153.  And  see  Croke  Jac. 
121.  But  a  distinction  has  been  made  be 
tween  a  thing  that  has  being  by  preserip 
tion,  and  one  that  has  its  being  ex  Jure  nor 
turce:  in  the  former  case  unity  of  possession 
will  extinguish  the  easement ;  in  the  latter,  for 
example,  the  case  of  a  watercourse,  the  unity 
Avill  not  extinguish  it,    Pothier,  Contr.  106 


UNIVERSAL  LEGACY 


626 


UNSOLEMN  WAR 


By  the  Civil  Code  of  Louisiana,  art.  801, 
every  servitude  is  extinguished  when  the 
estate  to  which  it  is  due  and  the  estate 
owing  it  are  united  in  the  same  hands. 
But  it  is  necessary  that  the  whole  of  the  two 
estates  should  belong  to  the  same  proprietor; 
for  if  the  owner  of  one  estate  only  acquires 
the  other  in  part  or  in  common  with  another 
person,  confusion  does  not  take  effect.  See 
Merger. 

UNIVERSAL  LEGACY.  In  Civil 
Law.  A  testamentary  disposition  by  which 
the  testator  gives  to  one  or  several  persons 
the  whole  of  the  property  which  he  leaves  at 
his  decease.  La.  Civ.  Code,  art.  1599  ;  Code 
Civ.  art.  1003  ;  Pothier,  Donations  testamen- 
taires,  c.  2,  s.  1,  ^  1. 

UNIVERSAL  PARTNERSHIP.  The 
name  of  a  species  of  partnership  by  which 
all  the  partners  agree  to  put  in  common  all 
their  property,  universorum  bonorum,  not  only 
what  they  then  have,  but  also  what  they 
shall  acquire.  Pothier,  Du  Contr.  de  Soci6t6, 
n.  29. 

In  Louisiana,  universal  partnerships  are 
allowed ;  but  property  which  may  accrue  to 
one  of  the  parties  after  entering  into  the 
partnership,  by  donation,  succession,  or  legacy, 
does  not  become  common  stock,  and  any 
stipulation  to  that  effect,  previous  to  the  ob- 
taining the  property  aforesaid,  is  void.  La. 
Civ.  Code,  art.  2800.    See  Partnership. 

UNIVERSAL  REPRESENTATION. 
In  Scotch  Law.  The  heir  universally 
represents  his  ancestor,  i.e.  is  responsible  for 
his  debts.  Originally,  this  responsibility  ex- 
tended only  to  the  amount  of  the  property  to 
which  he  succeeded  ;  but  afterwards  certain 
acts  on  part  of  the  heir  were  held  sufficient 
to  make  him  liable  for  all  the  debts  of  the 
ancestor.    Bell,  Diet.  Passive  Titles. 

UNIVERSITAS  JURIS  (Lat.).  In 
Civil  Law.  A  quantity  of  things  of  vari- 
ous kinds,  corporeal  and  incorporeal,  taken 
together  as  a  whole,  e.g.  an  estate.  It  is  used 
in  contradistinction  to  universitas  facti,  which 
is  a  whole  made  up  of  corporeal  units.  Mack- 
eldey.  Civ.  Law,  ^  149. 

UNIVERSITAS  RERUM  (Lat.).  In 
Civil  Law.  Several  things  not  mechanically 
united,  but  which,  taken  together,  in  some 
legal  respects  are  regarded  as  one  whole. 
Mackcldey,  Civ.  Law,  §  149 ;  fr.  30,  pr.  D. 
41.  3. 

UNIVERSITY.  The  name  given  to 
certain  societies  or  corporations  which  are 
seminaries  of  learning  where  youth  are  sent 
to  finish  their  education.  Among  the  civi- 
lians, by  this  term  is  understood  a  corpora- 
tion. 

UNJUST.  That  which  is  done  against 
the  perfect  rights  of  another ;  that  which  is 
against  the  established  law;  that  which  is 
opposed  to  a  law  which  is  the  test  of  right 
and  wrong.  1  Toullier,  tit.  pr61.  n.  5  ;  Aust. 
Jur.  276,  n. ;  Hein.  Leij.  El.  ^  1080. 

UNKNOWN.    When  goods  have  been 


stolen  from  some  person  unknown,  they  muj 
be  so  described  in  the  indictment;  but  if  the 
owner  be  really  known,  an  indictment  alleg- 
ing the  property  to  belong  to  some  person 
unknown  is  improper.  2  East,  PI.  Cr.  651 ; 
1  Hale,  PI.  Cr.  512  ;  Holt,  596  ;  8  Carr.  &  P. 
773 ;  14  Mass.  218  ;  12  Pick.  Mass.  174.  See 
Indictment. 

UNLAW.  In  Scotch  Law.  A  wit- 
ness was  formerly  inadmissible  who  was  rot 
worth  the  king's  unlaw, — i.e.  the  sum  of  £10 
Scots,  then  the  common  tine  for  absence 
from  court  and  for  small  delinquencies.  Bell, 
Diet. 

UNLAWFUL.  That  which  is  contrary 
to  law. 

There  are  two  kinds  of  contracts  which  are 
unlawful, — those  which  are  void,  and  those 
which  are  not.  When  the  law  expressly  pro- 
hibits the  transaction  in  respect  of  which 
the  agreement  is  entered  into,  and  declares 
it  to  be  void,  it  is  absolutely  so.  3  Binn. 
Penn.  533.  But  when  it  is  merely  pro- 
hibited, without  being  made  void,  although 
unlawful  it  is  not  void.  12  Serg.  &  R.  Penn. 
237  ;  Chitty,  Contr.  230 ;  23  Am.  Jur.  1-23  ; 
1  Mod.  35  ;  8  East,  236,  237  ;  3  Taunt.  244 ; 
Hob.  14.    See  Condition  ;  Void. 

UNLAWFUL  ASSEMBLY.  In 
Criminal  Law.  A  disturbance  of  the  public 
peace  by  three  or  more  persons  who  meet 
together  with  an  intent  mutually  to  assist 
each  other  in  the  execution  of  some  unlawful 
enterprise  of  a  private  nature,  with  force  and 
violence.  If  they  move  forward  towards  its 
execution,  it  is  then  a  rout ;  and  if  they  actu- 
ally execute  their  design,  it  amounts  to  a  riot. 
4  Blackstone,  Comm.  140 ;  1  Russell,  Crimes, 
254 ;  Hawkins,  PI.  Cr.  c.  65,  s.  9  ;  Comyns, 
Dig.  Forcible  Entry  (D  10) ;  Viner,  Abr. 
Riots,  etc.  (A). 

UNLAWFULLY.  In  Pleading.  This 
word  is  frequently  used  in  indictments  in  the 
description  of  the  oflfence:  it  is  necessary 
when  the  crime  did  not  exist  at  common  law, 
and  when  a  statute,  in  describing  an  offence 
which  it  creates,  uses  the  word,  1  Mood.  Cr. 
Cas.  339  ;  but  it  is  unnecessary  whenever  the 
crime  existed  at  common  law  and  is  mani- 
festly illegal.  1  Chitty,  Crim.  Law,  *241; 
Hawkins,  b.  2,  c.  25,  s.  96  ;  2  Rolle,  Abr.  82  : 
Bacon,  Abr.  Indictment  (G  1) ;  1  111.  199;  2 
id.  120. 

UNLIQUIDATED  DAMAGES.  Such 
damages  as  are  unascertained.  In  general, 
such  damages  cannot  be  set  off.  No  interest 
will  be  allowed  on  unliquidated  damages.  1 
Bouvier,  Inst.  n.  1108.  See  Liquidated  Dam- 
ages. 

UNQUES  (L.  Fr.).  Still;  yet.  This 
barbarous  word  is  frequently  used  in  pleas : 
as,  Ne  unques  executor,  Ne  unques  guardian, 
Ne  unques  accouple ;  and  the  like. 

UNSOLEMN  WAR.  That  war  which 
is  not  carried  on  by  the  highest  power  in  the 
states  between  which  it  exists,  and  which 
lacks  the  formality  of  a  declaration,  (jto* 


UNSOUND  MIND 


627 


USANCE 


tius,  de  Jure  Bel.  et  Pac.  1.  1,  c.  3,  ^  4.  A 
formal  declaration  to  enemy  is  now  disused, 
but  tliere  must  be  a  formal  public  act  pro- 
ceeding; from  the  competent  source:  with  us, 
it  has  been  said,  it  must  be  an  act  of  con- 
gress. 1  Kent,  Comm.  55;  1  Hill,  N.  Y. 
409. 

UNSOUND  MIND,  UNSOUND 
MEMORY.  These  words  have  been  adopted 
in  several  statutes,  and  sometimes  indiscri- 
minately used,  to  signify  not  only  lunacy, 
which  is  periodical  madness,  but  also  a  per- 
manent adventitious  insanity  as  distinguished 
from  idiocy.  1  Ridg.  Pari.  Cas.  518  ;  3  Atk. 
Ch.  171. 

2.  The  term  unsound  mind  seems  to  have 
been  used  in  those  statutes  in  the  same  sense 
as  insane  ;  but  they  have  been  said  to  import 
that  the  party  was  in  some  such  state  as  was 
contradistinguished  from  idiocy  and  from 
lunacy,  and  yet  such  as  made  him  a  proper 
subject  of  a  commission  to  inquire  of  idiocy 
and  lunacy.  Shelford,  Lun.  5  ;  Ray,  Med. 
Jur.  pr61.  §  8  ;  8  Ves.  Ch.  66  ;  12  id.  447  ;  19 
id.  286  ;  1  Beck,  Med.  Jur.  573  ;  Coop.  Ch. 
Cas.  108;  2  Maddock,  Chanc.  Pract.  731, 
732. 

UNSOUNDNESS.     See  Crib-Biting  ; 

Roaring;  Soundness. 

UNWHOLESOME  FOOD.  Food  not 
fit  to  be  eaten  ;  food  which  if  eaten  would  be 
injurious. 

Although  the  law  does  not,  in  general,  con- 
sider a  sale  to  be  a  warranty  or  goo'dness 
of  the  quality  of  a  personal  chattel,  yet  it 
is  otherwise  with  regard  to  food  and  liquor 
when  sold  for  consumption.  1  Rolle,  Abr. 
90,  pi.  1,  2. 

UPLIFTED  HAND.  AVhen  a  man  ac- 
:used  of  a  crime  is  arraigned,  he  is  required 
o  raise  his  hand,  probably  in  order  to  iden- 
tify the  person  who  pleads.  Perhaps  for  the 
same  reason  when  a  witness  adopts  a  par- 
ticular mode  of  taking  an  oath,  as,  when  he 
iocs  not  swear  upon  the  gospel,  but  upon 
4.linighty  God,  he  is  requested  to  hold  up  his 
hand. 

UPPER  BENCH.  The  king's  bench 
*ras  so  called  during  Cromwell's  protectorate, 
Arhen  Rolle  was  chief-justice.  3  Sharswood, 
Blackst.  Comm.  202. 

URBAN.  Relating  zo  a  city  ;  relating  to 
houses. 

2.  It  is  used  in  this  latter  sense  in  the 
Civil  Code  of  Louisiana,  articles  706  and  707. 
All  servitudes  are  established  either  for  the 
ase  of  houses  or  for  the  use  of  lands.  Those 
)f  the  first  kind  are  called  urban  servitudes, 
(vhether  the  buildings  to  which  they  are  due 
be  situated  in  the  city  or  in  the  country. 
Those  of  the  second  kind  are  called  rural 
servitudes. 

3*  The  principal  kinds  of  urban  servitudes 
are  the  following:  the  right  of  support; 
that  of  drip  ;  that  of  drain,  or  of  preventing 
the  drain  ;  that  of  view  or  of  lights,  or  of 
preventing  the  view  or  lights  from  being  ob- 


structed; that  of  raising  buildings  or  walla, 
or  of  preventing  thorn  from  being  raised ; 
that  of  passage;  and  that  of  drawing  water. 
See  3  TouUier,  441;  Pothier,  Introd.  au  tit, 
13  de  la  Coutume  d'Orl^ans,  n.  2;  Introd. 
Id.  n.  2. 

URBS(Lat.).  In  Civil  Law.  Awalled 
city.  Often  used  for  (  ir/Uas.  Ainsworth,  Diet. 
It  is  the  same  as  opjndnm,  only  lai'ger.  UrbSy 
or  urbs  aurea,  meant  Rome.  DuCange.  In 
the  case  of  Rome,  urbs  included  the  suburbs. 
Dig.  50.  16.  2.  pr.  It  is  derived  from  nrbum^ 
a  part  of  the  plough  by  which  the  walls  of  a 
city  are  first  marked  out.    Ainsworth,  Diet. 

USAGE.    Long  and  uniform  practice. 

In  its  most  extensive  meaning,  this  term  includea 
custom  and  prescription,  though  it  differs  from 
them;  in  a  narrower  sense,  it  is  applied  to  the 
habits,  modes,  and  course  of  dealing  which  are 
observed  in  trade  generally,  as  to  all  mercantile 
transactions,  or  to  some  particular  branches  of 
trade. 

Usage  of  trade  does  not  require  to  be 
immemorial  to  become  established:  if  it  V)e 
known,  certain,  uniform,  reasonable,  and  not 
contrary  to  law,  it  is  sufficient.  But  evi- 
dence that  a  thing  has  been  done  in  fev? 
instances  does  not  establish  a  usage.  3  Watts, 
Penn.  178  ;  3  Wash.  C.  C.  150  ;  1  Gall.  C.  C. 
443;  5  Binn.  Penn.  287  ;  9  Pick.  Mass.  426; 
4  Barnew.  &  Aid.  210 ;  7  Pet.  1 ;  2  Wash. 
C.  C.  7. 

3.  The  usages  of  trade  afford  ground  upon 
which  a  proper  construction  may  be  given  to 
contracts.  JBy  their  aid  the  indeterminate 
intention  of  parties  and  the  nature  and  ex- 
tent of  their  contracts  arising  from  mere 
implications  or  presumptions,  and  acts  of  an 
equivocal  character,  may  be  ascertained  ;  and 
the  meaning  of  words  and  doubtful  expres- 
sions may  t3ecome  known.  2  Mete.  Mass. 
65  ;  13  Pick.  Mass.  182  ;  2  Sumn.  C.  C.  569  ; 
2  Gill  &  J.  Md.  136  ;  Story,  Ag.  g  77 ;  2  Kent, 
Comm.  662,  3d  ed. ;  5  Wheat.  326;  2  Carr. 
&  P.  525  ;  3  Barnew.  &  Aid.  728  ;  Park.  Ins. 
30;  1  Marshall,  Ins.  186,  n.  20 ;  1  Caines, 
N.  Y.  45  ;  Gilp.  356,  486 ;  1  Edw.  Ch.  N.  Y. 
146 ;  1  Nott  &  M'C.  So.  C.  519  ;  15  Mass. 
433  :  1  Hill,  So.  C.  270 ;  Wright,  Ohio,  573  • 
Pet.  C.  C.  230;  5  Ohio,  436;  1  Pet.  25,  89; 
2  id.  148  ;  6  id.  715  ;  15  Ala.  123  ;  1  Hall, 
N.  Y.  612 ;  9  Mass.  155  ;  9  Wheat.  582 ;  11 
id.  430. 

Courts  will  not  readily  adopt  these  usages, 
because  they  are  not  unfrequently  founded 
in  mistake.    2  Sumn.  C.  C.  377. 

See  3  Chitty,  Pr.  55  ;  Story,  Confl.  Laws, 
g  270  ;  1  Dall.  178  ;  Yaugh.  169,  383  ;  Bou 
vier,  Inst.  Index. 

USANCE.   In  Commercial  Law.  The 

time  which,  by  usage  or  custom,  is  allowed 
in  certain  countries  for  the  payment  of  a  bill 
of  exchange.  Pothier,  Contr.  du  Change, 
n.  15. 

The  time  of  one,  two,  or  three  months  after 
the  date  of  the  bill,  according  to  the  custom 
of  the  places  between  which  the  exchangea 
run. 


USE 


628 


USE  AND  OCCUPATION 


Double  or  treble  is  double  or  treble  the 
usual  time,  and  half  usance  is  half  the  time. 
Where  it  is  necessary  to  divide  a  month 
upon  a  half  usance  (which  is  the  case  when 
the  usance  is  for  one  month  or  three),  the 
division,  notwithstanding  the  difference  in 
the  length  of  the  months,  contains  fifteen 
days. 

USE.  A  confidence  reposed  in  another, 
y^  ho  was  made  tenant  of  the  land,  or  terre 
tenant,  that  he  would  dispose  of  the  land 
according  to  the  intention  of  the  cestui  que 
use,  or  him  to  whose  use  it  was  granted,  and 
suffer  him  to  take  the  profits.  Plowd.  352 ; 
Gilbert,  Uses,  1 ;  Bacon,  Law  Tr.  150,  306 ; 
Cornish,  Uses,  13  ;  1  Fonblanque,  Eq.  363;  2 
id.  7 ;  Saunders,  Uses,  2  ;  Coke,  Litt.  272  b; 
1  Coke,  121 ;  2  Blackstone,  Comm.  328  ;  2 
Bouvier,  Inst.  n.  1885  et  seq. 

A  right  in  one  person,  called  the  cestui  que 
use,  to  take  the  profits  of  land  of  which 
another  has  the  legal  title  and  possession, 
together  with  the  duty  of  defending  the  same 
and  of  making  estates  thereof  according  to 
the  direction  of  the  cestui  que  use. 

Uses  were  derived  from  the  Jidei  commissa  of  the 
Roman  law.  It  was  the  duty  of  a  Roman  magis- 
trate, the  prsetor  Jidei  commifiHanus,  whom  Bacon 
terms  the  particular  chancellor  for  uses,  to  enforce 
the  observance  of  this  confidence.  Inst.  2.  23.  2. 
They  were  introduced  into  England  by  the  ecclesi- 
astics in  the  reign  of  Edward  III.,  before  1377,  for 
the  purpose  of  avoiding  the  statutes  of  mortmain; 
and  the  clerical  chancellors  of  those  times  held 
them  to  be  fdei  commixsa,  and  binding  in  con- 
science. To  obviate  many  inconveniences  and 
difficulties  which  had  arisen  out  of  the  doctrine 
and  introduction  of  uses,  the  Statute  of  27  Henry 
VIII.  c.  10,  commonly  called  the  Statute  of 
Uses,  or,  in  conveyances  and  pleadings,  the  statute 
for  transferring  uses  into  possession,  was  passed. 
It  enacts  that  ''when  any  person  shall  be  seised  of^ 
lands,  etc.  to  the  use,  confidence,  or  trust  of  any 
other  person  or  body  politic,  the  person  or  corpora- 
tion entitled  to  the  use  in  fee-simple,  fee-tail,  for 
life,  or  years,  or  otherwise,  shall  from  thenceforth 
stand  and  be  seised  or  possessed  of  the  land,  etc. 
of  and  in  the  like  estate  as  they  have  in  the  use, 
trust,  or  confidence ;  and  that  the  estates  of  the 
persons  so  seised  to  the  uses  shall  be  deemed  to  be 
in  him  or  them  that  have  the  use,  in  such  quality, 
manner,  form,  and  condition  as  they  had  before  in 
the  use."  The  statute  thus  executes  the  use, — 
that  is.  it  conveys  the  possession  to  the  use,  and 
transfers  the  use  to  the  possession,  and,  in  this 
manner,  making  the  cestui  que  use  complete  owner 
of  the  lands  and  tenements,  as  well  at  law  as  in 
equity.  2  Blackstone,  Comm.  333;  1  Saund.  254, 
note  6. 

A  modern  use  has,  therefore,  been  defined  to  be 
a«  estate  of  right  which  is  acquired  through  the 
operation  of  the  statute  of  27  Ilenry  VIII.  c.  10  ; 
and  which,  when  it  may  take  effect  according  to 
the  rules  of  the  common  law,  is  called  the  legal 
estate,  and  when  it  may  not  is  denominated  a  use, 
with  a  term  descriptive  of  its  modification.  Cor- 
nish, Uses,  35. 

The  common-law  judges  decided,  in  the  con- 
struction of  this  statute,  that  -a  use  could  not  be 
ruiscd  upon  a  use,  Dy.  155  (A),  and  that  on  a 
feoffment  to  A  and  his  heirs  to  the  use  of  B  and 
his  heirs  in  trust  for  C  and  his  heirs,  the  statute 
executed  only  the  first  use,  and  that  the  second  was 
n  mere  nullity.  The  judges  also  held  that  as  the 
itatuto  mentioned  only  such  persons  as  were  seised 


to  the  use  of  others,  it  did  not  extend  to  a  term  of 
years,  or  other  chattel  interests,  of  which  a  termor 
is  not  seised  but  only  possessed.  Bacon,  Law  Tr. 
335;  Poph.  76;  Dy.  369;  2  Blackstone,  Comm. 
336.  The  rigid  literal  construction  of  the  statute 
by  the  courts  of  law  again  opened  the  doors  of 
the  chancery  courts.  1  Maddock,  Chanc.  Pract. 
448,  450. 

Uses  and  trusts  are  often  spoken  of  together  by 
the  older  and  some  modern  writers,  the  distinction 
being  those  trusts  which  were  of  a  permanent 
nature  and  required  no  active  duty  of  the  trustee 
being  called  uses;  those  in  which  the  trustee  had 
an  active  duty  to  perform,  as,  the  payment  of 
debts,  raising  portions,  and  the  like,  being  called 
special  or  active  trusts,  or  simply  trusts.  1  Spence, 
Eq.  Jur.  448. 

For  the  creation  of  a  use,  a  consideration 
either  valuable,  as,  money,  or  good,  as  rela- 
tionship in  certain  degrees,  was  necessary, 
Crompt.  49  6;  3  Swanst.  Ch.  591  ;  7  Coke, 
40  ;  Plowd.  298  ;  17  Mass.  257  ;  4  N.  H.  229, 
397  ;  14  Johns.  N.  Y.  210.  See  Resulting 
Use.  The  property  must  have  been  in  esse, 
and  such  that  seisin  could  be  given.  Crabb, 
Real  Prop.  ^  1610-1612;  Croke  Eliz.  401. 
Uses  were  alienable,  although  in  many  re- 
spects resembling  choses  in  action,  which 
were  not  assignable  at  common  law,  Cornish, 
Uees,  19;  2  Blackstone,  Comm.  331:  when 
once  raised,  it  might  be  granted  or  devised  in 
fee,  in  tail,  for  life,  or  for  years.  1  Spence, 
Eq.  Jur.  455. 

The  effect  of  the  Statute  of  Uses  was  much 
restricted  by  the  construction  adopted  by  the 
courts:  it  practically  resulted,  it  has  been 
said,  in  the  addition  of  these  words,  to  the 
use,  to  every  conveyance.  Williams,  Real 
Prop.  133.  The  intention  of  the  statute  was 
to  destroy  the  estate  of  the  feoffee  to  use,  and 
to  transfer  it  by  the  very  act  which  created 
it  to  the  cestui  que  use,  as  if  the  seisin  or 
estate  of  the  feoffee,  together  with  the  use, 
had,  uno  ffatu,  passed  from  the  feoffor  to  the 
cestui  que  use.  A  very  full  and  clear  account 
of  the  history  and  present  condition  of  the 
law  of  uses  is  given  by  Professor  Washburn, 
2  Real  Prop.  91-156,  which  is  of  particular 
value  to  the  American  student.  Consult, 
also,  Spence,  Eq.  Jur. ;  Cornish,  Uses ;  Bacon, 
Law  Tracts;  Greenleaf,  Cruise,  Dig. 

In  Civil  Law.  A  right  of  receiving  so 
much  of  the  natural  profits  of  a  thing  as  is 
necessary  to  daily  sustenance.  It  differs  from 
usufruct,  which  is  a  right  not  only  to  use,  but 
to  enjoy.  1  Browne,  Civ.  Law,  184;  Lemons 
E16m.  du  Dr.  Civ.  Rom.  |g  414,  416. 

USE  AND  OCCUPATION.  When  a 
contract  has  been  made,  either  by  express  or 
implied  agreement,  for  the  use  of  a  house  or 
other  real  estate,  where  there  was  no  amount 
of  rent  fixed  and  ascertained,  the  landlord 
can  recover  a  reasonable  rent  in  an  action  of 
assumpsit  for  use  and  occupation.  1  Munf. 
Va.  407  ;  2  Aik.  Vt.  252  ;  7  J.  J.  Marsh.  Ky. 
6  ;  4  Day,  Conn.  228  ;  13  Johns.  N.  Y.  240, 
297  ;  4  Hen.  &  M.  Va.  161 ;  15  Mass.  270;  2 
Whart.  Penn.  42  ;  10  Serg.  &  R.  Penn.  251. 

The  action  for  use  and  occupation  is  founded 
not  on  a  y)rivity  of  estate,  but  on  a  privity  of 
contract,  3  Serg.  &  R.  Penn  500;  Cam.  &  N. 


USEFUL 


C29 


USURY 


No.  C.  19  :  tlierefore  it  will  not  lie  where  the 
possession  is  tortious.  2  Nott  &  M'C.  So.  C. 
156  :  3  Serg.  &  R.  Penn.  500  ;  6  N.  H.  298  ; 
6  Ohio,  371 ;  14  Mass.  95. 

USEFUL.  That  which  may  be  put  into 
beneficial  practice. 

The  Patent  Act  of  Congress  of  July  4, 1836, 
sect.  6,  in  describing  the  subjects  of  patents, 
mentions  "  new  and  useful  art,"  and  '*  new 
and  useful  improvement."  To  entitle  the 
inventor  to  a  patent,  his  invention  must,  to 
a  certain  extent,  be  beneficial  to  the  com- 
munit3%  and  not  be  for  an  unlawful  object, 
or  frivolous,  or  insignificant.  1  Mas.  C.  C.  182  ; 
1  Pet.  C.  C.  322  ;  Baldw.  C.  C.  303  ;  14  Pick. 
Mass.  217  ;  Paine,  C.  C.  203.    See  Patent. 

USHER.  This  word  is  said  to  be  derived 
from  huissier,  and  is  the  name  of  an  inferior 
officer  in  some  English  courts  of  law.  Arch- 
bold,  Piact.  25. 

USQUE  AD  MEDIUM  PILUM  VliE 
(Lat.).  To  the  middle  thread  of  the  way. 
See  Ad  Medium  Filum;  7  Gray,  Mass.  22,  24. 

USUCAPTION.     In  Civil  Law.  The 

manner  of  acquiring  property  in  things  by 
the  lapse  of  time  required  by  law. 

It  differs  from  prescription,  which  has  the  same 
sense,  and  means,  in  addition,  the  manner  of 
acquiring  and  losing,  by  the  effect  of  time  regu- 
lated by  law,  all  sorts  of  rights  and  actions.  Mer- 
lin, Repert.  Prescnptt'on  ;  Ayliffe,  Pand,  320;  Wood, 
Inst.  165 ;  Legons  Elem.  du  Dr.  Rom.  ^  437 ;  1 
Browne,  Civ.  Law,  264,  n.;  Vattel,  b.  2,  c.  2,  §  140. 

USUFRUCT.  In  Civil  Law.  The  right 
of  enjoying  a  thing  the  property  of  which  is 
Vested  in  another,  and  to  draw  from  the  same 
all  the  profit,  utility,  and  advantage  which  it 
may  produce,  provided  it  be  Mdthout  altering 
the  substance  of  the  thing. 

Perfect  usufruct  is  of  things  which  the 
usufructuary  can  enjoy  without  altering  their 
substance,  though  their  substance  may  be 
diminished  or  deteriorated  naturally  by  time 
or  by  the  use  to  which  they  are  applied :  as, 
a  house,  a  piece  of  land,  animals,  furniture, 
and  other  movable  effects. 

Imperfect  or  quasi  usufruct  is  of  things 
which  would  be  useless  to  the  usufructuary 
if  he  did  not  consume  and  expend  them  or 
change  the  substance  of  them :  as,  money, 
grain,  liquors.  In  this  case  the  alteration 
may  take  place.  La.  Civ.  Code,  art.  525  et 
teg.;  1  Browne,  Civ.  Law,  184;  Pothier,  Tr. 
du  Douaire,  n.  194;  Ayliffe,  Pand.  319; 
Pothier,  Pand.  tom.  6,  p.  91  ;  Lemons  El.  du 
Dr.  Civ.  Rom.  g  414 ;  Inst.  lib.  2,  t.  4 ;  Dig. 
lib.  7,  t.  1,  1.  1 ;  Code,  lib.  3,  t.  33. 

USUFRUCTUARY.  In  CivU  Law. 
One  who  has  the  right  and  enjoyment  of  a 
usufruct. 

Domat,  with  his  usual  clearness,  points  out 
the  duties  of  the  usufructuary,  which  are — 
to  make  an  inventory  of  the  things  subject  to 
the  usufruct,  in  the  presence  of  those  having 
Hn  interest  in  them  ;  to  give  s ecu7- it i/ for  their 
restitution  when  the  usufruct  shall  be  at  an 
end;  io  fake  good  care  of  the  things  subject 
to  the  usufruct ;  to  pay  all  taxes  and  claims 


which  arise  while  the  thing  is  in  his  posses- 
sion as  a  ground-rent;  and  to  keep  the  thing 
in  repair  at  his  own  expense.  Lois  Civ.  liv. 
1,  t.  11,  8.  4.    See  Estate  for  Life. 

USURPATION.  Torts.  The  unlawful 
assumption  of  the  use  of  property  which  be- 
longs to  another ;  an  interruption  or  the  dis- 
turbing a  man  in  his  right  and  possession. 
Tom  1  in,  Law  Diet. 

According  to  Lord  Coke,  there  are  two 
kinds  of  usurpation :  frst,  when  a  stranger, 
without  right,  presents  to  a  church  and  his 
clerk  is  admitted  ;  and,  second,  when  a  sul> 
ject  uses  a  franchise  of  the  king  Mathout  law- 
ful authority.    Coke,  Litt.  277  b. 

In  Governmental  Law.  The  tyrannical 
assumption  of  the  government  by  force,  con- 
trary to  and  in  violation  of  the  constitution 
of  the  country. 

USURPED  POWER.    In  Insurance. 

An  invasion  from  abroad,  or  an  internal  re- 
bellion, where  armies  are  drawn  up  against 
each  other,  when  the  laws  are  silent,  and 
when  the  firing  of  towns  becomes  unavoid- 
able. These  words  can  not  mean  the  power 
of  a  common  mob.  2  Marshall,  Ins.  390. 
By  an  article  of  the  printed  proposals  which 
are  considered  as  making  a  part  of  the  con- 
tract of  insurance,  it  is  provided  that  "  no 
loss  of  damage  by  fire,  happening  by  any 
invasion,  foreign  enemy,  or  any  military  or 
usurped  power  whatsoever,  will  be  made  good 
by  this  company." 

USURPER.  One  who  assumes  the  right 
of  government  by  force;  contrary  to  and  in 
violation  of  the  constitution  of  the  country, 
TouUier,  Droit  Civ.  n.  32. 

USURY.  The  excess  over  the  legal  rate 
charged  to  a  borrower  for  the  use  of  money. 
Originally,  the  word  was  applied  to  all  inte- 
rest reserved  for  the  use  of  money;  and  in 
the  early  ages  taking  such  interest  was  not 
allowed. 

2.  There  must  be  a  loan  in  contemplation 
of  the  parties,  7  Pet.  109  ;  1  Iowa,  252 ;  22 
Barb.  N.  Y.  118;  14  N.  Y.  93  ;  6  Ind.  232, 
and  if  there  be  a  loan,  however  disguised, 
the  contract  will  be  usurious,  if  it  be  so  in 
other  respects.  Where  a  loan  was  made  of 
depreciated  bank-notes,  to  be  repaid  in  sound 
funds,  to  enable  the  borrower  to  pay  a  debt 
he  owed,  dollar  for  dollar,  it  was  considered 
as  not  being  usurious.  1  Meigs,  Tenn,  585. 
The  bond  fde  sale  of  a  note,  bond,  or  other 
security  at  a  greater  discount  than  would 
amount  to  legal  interest  is  not,  per  se,  a  loan, 
although  the  note  may  be  indorsed  by  tlie 
seller  and  he  remains  responsible.  9  Per. 
103  ;  1  Iowa,  30  ;  6  Ohio  St.  19  ;  29  Miss.  212  ; 
10  Md.  57.  But  if  a  note,  bond,  or  other  se- 
curity be  made  with  a  view  to  evade  the 
laws  of  usury,  and  afterwards  sold  for  a  less 
amount  than  the  interest,  the  transaction 
will  be  considered  a  loan,  2  Johns.  Cas. 
N.  Y.  60  ;  3  id.  66 ;  15  Johns.  N.  Y.  44 ;  2  Dall. 
Penn.  92;  12  Serg.  &  R.  Penn.  40;  6  Ohio 
St.  19  ;  4  Jones,  No.  C.  399 ;  and  a  sale  of  a 
man's  own  note  indorsed  by  himself  will  be 


USUKl 


530 


considered  a  loan.  It  is  a  oreneral  rule  that 
a  contract  which  in  its  inception  is  un- 
affected by  usury  can  never  be  invalidated 
by  any  subsequent  usurious  transaction.  7 
Pet.  109;  10  Md.  57.  On  the  contrary, 
when  the  contract  was  originally  usurious, 
and  there  is  a  substitution  by  a  new  contract, 
the  U\tter  will  generally  be  considered  usuri- 
ous.   15  Mass.  96. 

3.  There  must  be  a  contract  for  the  return 
of  the  money  at  all  events ;  for  if  the  return 
of  the  principal  with  interest,  or  the  principal 
only,  depend  upon  a  contingency,  there  can 
be  no  usury  ;  but  if  the  contingency  extend 
only  to  interest,  and  the  principal  be  beyond 
the  reach  of  hazard,  the  lender  will  be  guilty 
of  usury  if  he  receive  interest  beyond  the 
amount  allowed  by  law.  As  the  principal  is 
put  to  hazard  in  insurances,  annuities,  and 
bottomry,  the  parties  may  charge  and  receive 
greater  interest  than  is  allowed  by  law  in 
common  cases,  and  the  transaction  will  not 
be  usurious.  Ord,  Usury,  23,  39,  64 ;  2  Pet. 
537. 

To  constitute  usury,  the  borrower  must  not 
only  be  obliged  to  return  the  principal  at  all 
events,  but  more  than  lawful  interest :  this 
part  of  the  agreement  must  be  made  with 
full  consent  and  knowledge  of  the  contract- 
ing parties.  3  Bos.  &  P.  154.  When  the 
contract  is  made  in  a  foreign  country,  the  rate 
of  interest  allowed  by  the  laws  of  that  country 
may  be  charged,  and  it  will  not  be  usurious, 
although  greater  than  the  amount  fixed  by 
law  in  this.    Story,  Confl.  of  Laws,  |  292. 

4.  The  ordinary  commissions  allowed  by 
the  usages  of  trade  may  be  charged  without 
tainting  a  contract  with  usury  ;  but  it  must 
plainly  appear  that  the  commissions  are 
charged  for  other  services,  and  are  not  merely 
a  device  to  evade  the  law.  2  Pat.  &  H.  Va. 
110.  Commission  may  be  charged  by  a  mer- 
chant for  accepting  a  bill,  18  Ark.  456 ;  but 
a  commission  charged  in  addiiion  to  interest 
for  advancing  money  is  usurious.  12  La. 
Ann.  660.  Where  a  banker  discounts  a  bill 
payable  in  a  distant  place,  he  may  charge  the 
usual  rate  of  exchange  on  that  place  ;  but  if 
such  charge  be  an  excess  of  the  usual  rate 
it  will  be  considered  a  device  to  cover  usuri- 
ous interest.  3  Ind.  53.  Where  the  pay- 
ment of  usurious  interest  depends  upon  the 
will  of  the  borrower,  as,  where  he  may  dis- 
charge himself  from  it  by  prompt  payment 
of  the  principal,  it  is  considered  in  the  light 
of  a  penalty,  but  does  not  make  the  contract 
usurious.  6  Cow.  N.  Y.  653  ;  9  Paige,  Ch. 
N.  Y.  339.  Where  a  gratuity  is  given  to 
influence  the  making  of  a  loan,  it  will  be  con- 
sidered usurious.  7  Ohio  St.  387.  Where  a 
bank  which  by  its  charter  is  prohibited  from 
making  loans  at  over  six  per  cent,  makes  one 
at  seven,  such  a  contract  being  prohibited, 
the  courts  will  not  assist  the  bank  in  enforcing 
it.  26  Barb.  N.  Y.  595.  The  burden  of 
proof  is  on  the  person  pleading  usury.  22 
Ga.  193.  Usury  is  a  personal  defence,  and 
cannot  be  set  up  by  any  other  person  than 
the  borrower  or  his  heirs.    8  Ind.  352.  A 


mere  mistake  in  the  calculation  of  interest 
will  not  be  considered  usury.  Hill  &  D.  N. 
Y.  34.  Where  parties  exchange  their  notes 
for  mutual  accommodation,  and  both  or  either 
are  sold  at  a  higher  than  the  legal  rate,  they 
are  usurious.    Hill  &  D.  N.  Y.  65. 

The  common  practice  of  reserving  the  inte- 
rest on  negotiable  paper  at  the  time  of  making 
the  loan,  although  its  effect  is  to  cause  the 
borrower  to  pay  more  than  the  legal  rate,  is 
very  ancient,  having  been  practised  by  the 
Athenian  bankers,  and  is  sanctioned  by  law. 
Sewell,  Banking. 

See,  generally,  Comyns,  Big. ;  Bacon,  Abr.; 
Lilly,  Reg. ;  Dane,  Abr. ;  Petersdorff,  Abr. ; 
Viner,  Abr. ;  Comyns,  Usury,  passim ;  \ 
Pet.  Index ;  Sewell,  Banking ;  Blydenburg, 
Usury;  Parsons,  Notes  &  Bills;  Interest. 

UTAH.  One  of  the  territories  of  the 
United  States.  The  act  establishing  the  ter- 
ritory was  approved  Sept.  9,  1850.  The  ter- 
ritory consists  of  that  portion  of  the  territory 
of  the  United  States  "  bounded  west  by  the 
state  of  California,  on  the  north  by  the  terri- 
tory of  Oregon,  on  the  east  by  the  summit 
of  the  Rocky  Mountains,  on  the  south  by  the 
thirty-seventh  parallel  of  north  latitude."  It 
is  provided  in  the  organic  act  that  the  United 
States  may  divide  the  territory  into  two  or 
more,  and  that  when  admitted  as  a  state 
the  territory,  or  any  portion  of  it,  shall  be 
received  into  the  Union  with  or  without  sla- 
very, as  their  constitution  may  provide  at  the 
time  of  their  admission.  9  U.  S.  Stat,  at 
Large,  453.  The  distribution  of  powers  under 
the  act  is  precisely  the  same  as  in  the  case  of 
New  Mexico.    See  New  Mexico. 

UTERINE  (Lat.  uter).  Born  of  the  same 
mother. 

UTI  POSSIDETIS  (Lat.  as  you  possess). 
In  International  Law.  A  phrase  used  to 
signify  that  the  parties  to  a  treaty  are  to  re- 
tain possession  of  what  they  have  acquired 
by  force  during  the  war. 

UTRUBI.  In  Scotch  Law.  An  inter- 
dict as  to  movables,  by  which  the  colorable 
possession  of  a  bond  Jide  holder  is  continued 
until  the  final  settlement  of  a  contested  right: 
corresponding  to  uti possidetis  as  to  heritable 
property.    Bell,  Diet. 

UTTER.    In  Criminal  Law.    To  offer ; 

to  publish. 

To  utter  and  publish  a  counterfeit  note  is 
to  assert  and  declare,  directly  or  indirectly, 
by  words  or  actions,  that  the  note  offered  is 
good.  It  is  not  necessary  that  it  should  be 
pass-ed  in  order  to  complete  the  offence  of 
uttering.  2  Binn.  Penn.  338.  It  seems  that 
reading  out  a  document,  although  the  party 
refuses  to  show  it,  is  a  sufficient  uttering. 
Jebb,  Cr.  Cas.  Ir.  282.  See  1  East,  PI.  Cr.  179 ; 
2  id.  974 ;  Leach,  Cr.  Cas.  251 ;  2  Starkie, 
Ev.  378  ;  1  Mood.  Cr.  Cas.  166 ;  Russ.  &  R. 
Cr.  Cas.  113  ;  1  Phillipps,  Ev.  Index  ;  Ros- 
coe,  Crim.  Ev.  301.  The  merely  showing  a 
false  instrument  with  intent  to  gain  a  credit, 
when  there  was  no  intention  or  attempt  made 
to  pass  it,  it  seems,  would  not  amount  to  an 


UTTER 


631  VALOR  BENEFICIORUM 


ittenng.  Russ.  &  R.  Cr.  Cas.  200.  And 
where  the  defendant  placed  a  forged  receipt 
for  poor-rates  in  the  hands  of  the  prosecutor, 
for  the  puipose  of  inspection  only,  in  order, 
by  representing  himself  as  a  person  who  had 
paid  his  poor-rates  fraudulently,  to  induce  the 
prosecutor  to  advance  money  to  a  third  person 
for  whom  the  defendant  proposed  to  become 
a  surety  for  its  repayment,  this  was  held  to 
be  an  uttering  within  the  statute.  2  Den. 
Cr.  Cas.  475.  And  the  rule  there  laid  down 
is  that  a  using  of  the  forged  instrument  in 


some  way,  in  order  to  get  money  or  credit  upon 
it,  or  by  means  of  it,  is  sufl&cient  to  constitute 
an  uttering. 

UTTER  BARRISTER.  In  English 
Law.  Those  barristers  who  plead  without 
the  bar,  and  are  distinguished  Irom  benchers, 
or  those  who  have  been  readers  and  who  are 
allowed  to  plead  within  the  bar,  as  the  king's 
counsel  are.  The  same  as  ouster  barrister. 
See  Barrister. 

UXOR  (Lat.).  In  Civil  Law.  A  wo- 
man lawfully  married. 


V. 


VACANCY.  A  place  which  is  empty. 
The  term  is  principally  applied  to  cases  where 
an  office  is  not  filled. 

By  the  constitution  of  the  United  States, 
the  president  has  the  power  to  fill  up  vacan- 
cies that  may  happen  during  the  recess  of 
the  senate.  Whether  the  president  can  create 
an  office  and  fill  it  during  the  recess  of  the 
senate,  seems  to  have  been  much  questioned. 
Story,  Const.  §  1553.  See  Sergeant,  Const. 
Law,  c.  31 ;  1  III.  70. 

VACANT  POSSESSION.  A  term 
applied  to  an  estate  which  has  been  aban- 
doned by  the  tenant :  the  abandonment  must 
be  complete  in  order  to  make  the  possession 
vacant,  and,  therefore,  if  the  tenant  have 
goods  on  the  premises  it  will  not  be  so  con- 
sidered. 2  Chitty,  Bail.  177 ;  2  Strange, 
1064 ;  BuUer,  Nisi  P.  97  ;  Comyn,  Landl.  & 
Ten.  507,  517. 

VACANT  SUCCESSION.  An  inherit- 
ance for  which  the  heirs  are  unknown. 

VACANTIA  BONA  (Lat.).  In  Civil 
Law.  Goods  without  an  owner.  Such  goods 
escheat. 

VACATE.  To  annul;  to  render  an  act 
void :  as,  to  vacate  an  entry  which  has  been 
made  on  a  record  when  the  court  has  been 
imposed  upon  by  fraud  or  taken  by  sur- 
orise. 

VACATION.  That  period  of  time  be- 
tween the  end  of  one  term  and  beginning  of 
another.  During  vacation,  rules  and  orders 
are  made  in  such  cases  as  are  urgent,  by  a 
judge  at  his  chambers. 

VACCARIA  (from  Lat.  vacca,  a  cow). 
In  Old  English  Law.  A  dairy-house.  Coke, 
Litt.  5  b. 

VADIUM  MORTUUM  (Lat.).  Amort- 
gage  or  dead  pledge :  it  is  a  security  given  by 
the  borrower  of  a  sum  of  money,  by  which  he 
grants  to  the  lender  an  estate  in  fee,  on  con- 
dition that  if  the  money  be  not  repaid  at  the 
time  appointed,  the  estate  so  put  in  pledge 
shall  continue  to  the  lender  as  dead  or  gone 


from  the  mortgagor.  2  Blackstone,  Comm. 
257  ;  1  Powell,  Mortg.  4. 

VADIUM  yiVUM  (Lat.).  A  species  of 
security  by  which  the  borrower  of  a  sum  of 
money  made  over  his  estate  to  the  lender  until 
he  had  received  that  sum  out  of  the  issues  and 
profits  of  the  land :  it  was  so  called  because 
neither  the  money  nor  the  lands  were  lost, 
and  were  not  left  in  dead  pledge,  but  this 
was  a  living  pledge,  for  the  profits  of  the 
land  were  constantly  paying  off  the  debt. 
Littleton,  ^  206  ;  1  Powell,  Mortg.  3  ;  Termes 
de  la  Ley. 

VAGABOND.  One  who  wanders  about 
idly,  who  has  no  certain  dwelling.  The  or- 
donnances  of  the  French  define  a  vagabond 
almost  in  the  same  terms.  Dalloz,  Diet. 
Vagabondage.    See  Vattel,  liv.  1,  §  219,  n. 

VAGRANT.  A  person  who  lives  idly, 
without  any  settled  home.  A  person  who 
refuses  to  work,  or  goes  about  begging.  This 
latter  meaning  is  the  common  one  in  statutes 
punishing  vagrancy.  See  1  Wils.  331 ;  5 
East,  339  ;  8  Term,  26. 

VAGRANT  ACT.  In  English  Law. 
The  statute  5  Geo.  IV.  c.  83,  which  is  an  act 
for  the  punishment  of  idle  and  disorderly 
persons.    2  Chitty,  Stat.  145. 

VAGUENESS.  Uncertaint3^ 

Certainty  is  required  in  contracts,  wills, 
pleadings,  judgments,  and,  indeed,  in  all  the 
acts  on  which  courts  have  to  give  a  judgment, 
and  if  they  be  vague  so  as  not  to  be  under 
stood,  they  are,  in  general,  invalid.  5  Barnew. 
&  C.  583  ;  1  Russ.  &  M.  116  ;  1  Chitty,  Pract. 
123.  A  charge  of  frequent  intemperance 
and  habitual  indolence  is  vague  and  too  gene- 
ral. 2  Mart.  La.  n.  s.  530.  See  Certainty  ; 
Nonsense  ;  Uncertainty. 

VALID  (Lat. validus).  Strong ;  effectual ; 
of  binding  force.  An  act,  deed,  will,  and  ihe 
like,  which  has  received  all  the  lormalitiea 
required  by  law,  is  said  to  be  valid  or  good 
in  law. 

VALOR  BENEFICIORUM  (Lat.).  In 


I 


VALOR  MARITAGII  632 


VAVASOUR 


Ecclesiastical  Law.  The  value  of  every 
ecclesiastical  benefice  and  preferment,  accord- 
ing to  which  the  first-fruits  and  tenths  are 
collected  and  paid.  The  valuation  by  which 
the  clerg;y  are  at  present  rated  was  made  26 
Hen.  VIII.,  and  is  commonly  called  The 
King's  Books.  1  Sharswood,  Blackst.  Comm. 
284*,  note  5. 

VALOR   MARITAGII  (Lat.).  The 

amount  forfeited  under  the  ancient  tenures 
by  a  ward  to  a  guardian  who  had  ofiered  her 
a  marriage  without  disparagement,  which 
she  refused.  It  was  so  much  as  a  jury  would 
assess,  or  as  any  one  would  give  bo7id  Jide, 
for  the  \alue  of  the  marriage.  Littleton, 
110. 

A  writ  which  lay  against  the  ward,  on 
coming  of  full  age,  for  that  he  was  not  mar- 
ried by  his  guardian,  for  the  value  of  the 
marriage,  and  this  though  no  convenient 
marriage  had  been  offered.  Termes  de  la 
Ley. 

VALUABLE  CONSIDERATION.  An 

equivalent  in  money  or  value  for  a  thing  pur- 
chased.   See  Consideration. 

VALTTATION.  The  act  of  ascertaining 
the  worth  of  a  thing.  The  estimated  worth 
of  a  thing. 

It  difters  from  price,  which  does  not  always 
afford  a  true  criterion  of  value ;  for  a  thing 
may  b<»  bought  very  dear  or  very  cheap.  In 
some  contracts,  as  in  the  case  of  bailments 
or  insurances,  the  thing  bailed  or  insured  is 
sometimes  valued  at  the  time  of  making  the 
contra-ct,  so  that,  if  lost,  no  dispute  may  arise 
as  to  the  amount  of  the  loss.  2  Marshall, 
Ins.  620  :  1  Caines,  N.  Y.  80 ;  2  id.  30 ;  Story, 
Bailm.  l\  253,  254 ;  Park,  Ins.  98  ;  Weskett, 
Ins. ;  Phillipps,  Ins.    See  Policy. 

VALUE.  The  utility  of  an  object.  The 
worth  of  an  object  in  purchasing  other  goods. 
The  first  may  be  called  value  in  use ;  the  latter, 
value  in  exchange. 

Value  differs  from  price.  The  latter  is  applied 
to  l»ve  cattle  and  animals:  in  a  declaration,  there- 
fore, for  taking  cattle,  they  ought  to  be  said  to  be 
of  such  a  price;  and  in  a  declaration  for  taking 
deM  chattels,  or  those  which  never  had  life,  it 
ought  to  lay  them  to  be  of  such  a  value.  2  Lilly, 
Abr.  629. 

VALUE  RECEIVED.  A  phrase  usu- 
ally employed  in  a  bill  of  exchange  or  pro- 
missory note,  to  denote  that  a  consideration 
has  been  given  for  it. 

The  expression  value  received,  when  put 
in  a  bill  of  exchange,  will  bear  two  inter- 
pretations :  the  drawer  of  the  bill  may  be 
presumed  to  acknowledge  the  fact  that  he 
has  received  value  of  the  payee,  3  Maule  & 
S  351 ;  or  when  the  bill  has  been  made  pay- 
able to  the  order  of  the  drawer,  it  implies 
that  value  has  been  received  by  the  acceptor. 
5  Maule  &  S.  65.  In  a  promissory  note,  the 
expression  imports  value  received  from*  the 
payee.  5  Barnew.  &  C.  360.  See  Parsons, 
Notes  &  B. 

VALUED  POLICY.  A  valued  policy 
18  one  where  the  value  has  been  set  on  the 


ship  or  goods  insured,  and  this  value  has 
been  inserted  in  the  policy  in  the  nature  of 
liquidated  damages,  to  save  the  necessity  of 
proving  it  in  case  of  loss.  1  Bouvier,  Inst.  n. 
1230.    See  Policy. 

VANCOUVER'S  ISLAND.  An  island 
situated  on  the  western  coast  of  North  Ame^ 
rica,  and  constituting  one  of  the  colonial  pos- 
sessions of  England. 

It  is  situated  between  the  parallels  of  48°  17' 
and  50°  55'  north  latitude,  and  123°  10'  and  128« 
30'  west  longitude.  By  a  charter  dated  Januarj 
13,  1849,  it  was  granted  to  the  Hudson  Bay  Com- 
pany in  fee,  with  a  privilege  of  re-purchase,  in  con- 
sideration of  the  yearly  payment  of  seven  shillings. 

The  government  of  the  island  is  administered  by 
a  governor  appointed  by  the  crown  on  the  nomina- 
tion of  the  Hudson  Bay  Company,  aided  by  a 
council  of  seven  members  likewise  so  appointed. 
The  governor  is  empowered  to  divide  the  island 
into  electoral  districts,  and  to  convene  an  assembly, 
fixing  also  the  number  of  representatives,  who  are 
to  be  elected  by  the  inhabitant  freeholders  of  twenty 
acres.    Mills,  Col.  Const.  219. 

VARIANCE.  In  Pleading  and  Prac- 
tice. A  disagreement  or  difierence  between 
two  parts  of  the  same  legal  proceeding  which 
ought  to  agree  together.  Variances  are  be- 
tween the  writ  and  the  declaration,  and  be- 
tween the  declaration,  or  bill  in  equity,  and 
the  evidence. 

Variance  in  matter  of  substance  is  fatal 
to  the  action,  4  Ala.  319 ;  1  Harr.  Del. 
474;  7  B.  Monr.  Ky.  271;  1  Ohio,  504;  10 
Johns.  N.  Y.  141,  and  is  ground  for  demurrer 
or  arrest  of  judgment;  3  Den.  N.  Y.  356;  3 
Brev,  No.  C.  42;  7  T.  B.  Monr.  Ky.  290; 
see  12  N.  H.  396 ;  but  if  in  matter  of  form 
merely,  must  be  pleaded  in  abatement,  1  111. 
298 ;  1  McLean,  C.  C.  319 ;  3  Brev.  No.  C. 
42  ;  3  Ala.  741 ;  4  Ark.  71,  74,  or  s{>ecial  de- 
murrer, 2  Hill,  So.  C.  585 ;  and  a  variance 
between  the  allegations  and  evidence  upon 
some  material  points  only  is  as  fatal  as  if  upon 
all,  7  Taunt.  385,  but,  if  it  be  merely  formal 
or  immaterial  matter,  will  be  disregarded.  7 
Cranch,  408  ;  11  Ala.  542  ;  Hard.  Ky.  505  ; 
2  Hill,  So.  C.  413.  Slight  variance  from  the 
terms  of  a  written  instrument  which  is  pro- 
fessedly set  out  in  the  words  themselves  is 
fatal.  *  1  Hempst.  Ark.  294. 

VASSAL.  In  Feudal  Law.  The  name 
given  to  the  holder  of  a  fief  bound  to  perform 
feudal  service :  this  word  was  then  always 
correlative  to  that  of  lord,  entitled  to  such 
service. 

The  vassal  himself  might  be  lord  of  some 
other  vassal. 

In  after-times,  this  word  was  used  to  signify 
a  species  of  slave  who  owed  servitude  and 
was  in  a  state  of  dependency  <m  a  superior 
lord.  2  Blackstone,  Comm.  53  ;  Merlin,  Ru- 
pert, 

VAVASOUR  (diminutive  from  vasahis, 
or,  according  to  Bracton,  from  vas  sortitua  ad 
valitudinem).  One  who  was  in  dignity  next 
to  a  baron.  Britton,  109 ;  Bracton,  lib.  1, 
c.  8.  One  who  held  of  a  baron  Eucyo 
Brit. 


VECTIGALIA 


633  VENTRE  INSPICIENDO 


VECTIGALIA  ( Lat. ) .  In  Roman  Law. 

Duties  which  were  paid  to  the  prince  for  the 
importation  and  exportation  of  certain  mer- 
chandise. They  dinered  from  tribute,  which 
was  a  tax  paid  by  each  individual.  Code,  4. 
61.  5.  13. 

VEJOURS.  An  obsolete  word,  which 
Bignitied  viewers  or  experts. 

VENAL.  Something  that  is  bought.  The 
term  is  generally  applied  in  a  bad  sense :  as, 
a  venal  office  is  an  office  which  has  been  pur- 
chased. 

VENDEE.    A  purchaser;  a  buyer. 

VENDITION.   A  sale ;  the  act  of  selling. 

VENDITIONI  EXPONAS  (Lat). 
That  you  expose  to  sale. 

In  Practice.  The  name  of  a  writ  of  exe- 
cution, directed  to  the  sheriff,  commanding 
him  to  sell  goods  or  chattels,  and  in  some 
states  lands,  which  he  has  taken  in  execution 
by  virtue  of  Sijieri  facias^  and  which  remain 
unsold. 

Under  this  writ  the  sheriff  is  bound  to  sell 
the  property  in  his  hands,  and  he  cannot  re- 
turn a  second  time  that  he  can  get  no  buyers. 
Cowp.  406.  And  see  2  Saund.  47, 1 ;  2  Chitt. 
Bail,  390;  Comyns,  Dig.  Execution  (C  8); 
Graham,  Pract.  359;  3  Bouvier,  Inst.  n.  3395. 

VENDITOR  REGIS  (Lat.).  In  Old 
English  Law.  The  king's  salesman,  or  per- 
son w^ho  exposed  to  sale  goods  or  chattels 
seized  or  distrained  to  answer  any  debt  due 
to  the  king.  Cowel.  This  office  was  granted 
by  Edw.  I.  to  Philip  de  Lordiner,  but  was 
seized  into  king's  hands  for  abuse  thereof. 
2  Edw.  II. 

VENDOR.  The  seller;  one  who  disposes 
of  a  thing  in  consideration  of  money. 

VENDOR'S  LIEN.  An  equitable  lien 
allowed  the  vendor  of  land  sold  for  the  pur- 
chase-money, where  the  deed  expresses,  con- 
trary to  the  fact,  that  the  purchase-money  is 
paid.  Unless  waived,  the  lien  remains  till 
the  whole  purchase-money  is  paid.  16  Ves. 
Ch.  329  ;  4  Russ.  Ch.  336  ;  1  W.  Blackst.  123  ; 
2  P.  Will.  Ch.  291;  1  Jac.  &  W.  Ch.  234;  1 
Vern.  Ch.  267. 

The  lien  exists  against  all  the  world  except 
hond  fide  purchasers  without  notice.  1 J ohns. 
Ch.  N.  ¥.'308;  9  Ind.  490;  2  Rob.  Va.  475. 
If  security  is  taken  for  the  purchase-money, 
the  court  will  look  into  the  substance  of  the 
transaction  and  see  if  it  was  taken  in  lieu  of 
the  purchase-money.  3  Russ.  Ch.  488.  As  a 
general  rule,  the  lien  does  not  prevail  against 
creditors  of  purchaser.  7  Wheat.  46 ;  10  Barb. 
N.  Y.  626.  This  lien  is  recognized  in  New 
York,  New  Jersey,  Maryland,  Mississippi, 
Missouri,  Alabama,  Arkansas,  California, 
Georgia,  Florida,  Illinois,  Indiana,  Michigan, 
Kentucky,  Tennessee,  Texas,  Virginia.  But 
to  have  effect  it  must  be  expressly  reserved 
in  Ohio,  and  courts  of  the  United  States.  In 
Pennsylvania,  North  and  South  Carolina,  it 
has  been  exploded ;  in  Vermont,  abolished 
by  statute.    In  Connecticut,  Delaware,  and 


Massachusetts,  the  question  is  in  doubt.  1 
Washburn,  Real  Prop.  508,  n.  6.    See  Lien. 

VENIRE  FACIAS  (Lat.).    That  you 

cause  to  come. 

In  Practice.  According  to  the  English 
law,  the  proper  process  to  be  issued  on  an  in- 
dictment for  any  petit  misdemeanor,  on  a 
penal  statute,  is  a  writ  called  venire  facias. 

It  is  in  tiie  nature  of  a  summons  to  cause 
the  party  to  appear.  4  BlacksUme,  Comm.  18 ; 
1  Chitty,  Crim.  Law,  351. 

VENIRE   FACIAS  JURATORES 

(Lat.).    (Frequently  called  venire  simply.) 

In  Practice.  The  name  of  a  writ  directed  to 
the  sheriff,  commanding  him  to  cause  to  come 
from  the  body  of  the  county,  before  the  court 
from  which  it  issued,  on  some  day  certain  and 
therein  specified,  a  certain  number  of  quali- 
fied citizens  w^ho  are  to  act  as  jurors  in  the 
said  court.  Stephen,  Plead.  104;  2  Graydon, 
Forms,  314.  And  see  6  Serg.  &  R.  Penn.  414; 
Comyns,  Dig.  Enquest  (C  1),  etc..  Pleader  (2 
S  12,  3  0  20),  Process  (D  8);  3  Chitty,  Pract. 
797.    See  Jury. 

VENIRE  FACIAS  DE  NOVO  (Lat.). 
In  Practice.  Theuameof  anew  writ  of  venire 
facias:  this  is  awarded  when,  by  reason  of 
some  irregularity  or  defect  in  the  proceeding 
on  the  first  venire,  or  the  trial,  the  proper 
effect  of  the  venire  has  been  frustrated,  or 
the  verdict  become  void  in  law :  as,  for  ex- 
ample, when  the  jury  has  been  improperly 
chosen,  or  an  uncertain,  ambiguous,  or  de- 
fective verdict  has  been  rendered.  Stephen, 
Plead.  120;  1  Sellon,  Pract.  150. 

VENTE  A  REMERE.  In  French  Law. 

A  sale  made,  reserving  a  right  to  the  seller 
to  repurchase  the  property  sold  by  returning 
the  price  paid  for  it. 

The  term  is  used  in  Canada  and  Louisiana. 
The  time  during  w^hich  a  re-purchase  may  be 
made  cannot  exceed  ten  years,  and,  if  by  the 
agreement  it  so  exceed,  it  shall  be  reduced 
to  ten  years.  The  time  fixed  for  redemption 
must  be  strictly  adhered  to,  and  cannot  be 
enlarged  by  the  judge,  nor  exercised  after- 
wards.   La.  Civ.  Code,  art.  1545-15'19. 

The  following  is  an  instance  of  a  vente  ct 
rim4ri.  A  sells  to  B,  for  the  purpose  of  se- 
curing B  against  indorsements,  with  a  clause 
that  "whenever  A  should  relieve  B  from  such 
indorsements,  without  B's  having  recourse 
on  the  land,  then  B  would  reconvey  the  same 
to  A  for  A's  own  use."  This  is  a  vente  a  rim4r6^ 
and  until  A  releases  B  from  his  indorsements 
the  property  is  B's,  and  forms  no  part  of  A's 
estate.  7  Mart.  La.  n.  s.  278.  See  1  Mart. 
La.N.s.528;  3  La.  153;  4iU  142;  Troplong, 
Vente,  ch.  6;  6  TouUier,  p.  257. 
^  VENTER,  VENTRE  (Lat.  the  belly). 
The  wife:  for  example,  a  man  has  three 
children  by  the  first  and  one  by  the  second 
venter.  A  child  is  said  to  be  in  ventre  sa  mere 
before  it  is  born;  while  it  is  a  foetus. 

VENTRE  INSPICIENDO  (Lat.).  In 
English  Law.  A  writ  directed  to  the  sheriff, 
commanding  him  that,  in  the  presence  of 


VENUE 


634 


VERBAL  PROCESS 


twelve  men,  and  as  many  women,  he  cause 
examination  to  be  made  whether  a  woman 
therein  named  is  with  child  or  not,  and  if  with 
child,  then  about  what  time  it  will  be  born, 
and  that  he  certify  the  same.  It  is  granted  in  a 
case  when  a  widow,  whose  husband  had  lands 
in  fee-simple,  marries  again  soon  after  her 
husband's  death,  and  declares  herself  preg- 
nant by  her  first  husband,  and,  under  that 
pretext,  withholds  the  lands  from  the  next 
heir.    Croke  Eliz.  506;  Fleta,  lib.  1,  c.  15. 

VENUE  (L.  Lat.  visnetum,  neighbor- 
hood. The  word  was  formerly  spelled  visne. 
Coke,  Litt.  125  a). 

In  Practice.  The  county  in  which  the 
facts  are  alleged  to  have  occurred,  and  from 
which  the  jury  are  to  come  to  try  the  issue. 
Gould,  Plead,  c.  3,  g  102 ;  Archbold,  Civ.  Plead. 
86;  Cowp.  176;  1  How.  241.  Some  certain 
place  must  be  alleged  as  the  place  of  occur- 
rence for  each  traverseable  fact.  Comyns, 
Dig.  Pleader  (C  20).  Generally,  in  modern 
pleading,  in  civil  practice,  no  special  allega- 
tion is  needed  in  the  body  of  the  declaration, 
the  venue  in  the  margin  being  understood  to 
be  the  place  of  occurrence  till  the  contrary  is 
shown.  1  Hempst.  236.  See  statutes  and 
rules  of  court  of  the  various  states,  and  Reg. 
Gen.  Hil.  T.  4  Hen.  IV. 

2.  In  local  actions  the  true  venue  must  be 
laid ;  that  is,  the  action  must  be  brought  in 
the  county  where  the  cause  of  action  arose, 
being  that  where  the  property  is  situated,  in 
actions  afi'ecting  real  property,  2  Zabr.  N. 
J.  204 ;  and  see  18  Ga.  719 ;  and  there  can  be 
no  change  of  venue  in  such  cases.  3  N.  Y. 
204.  Thus,  in  actions  on  a  lease  at  common 
law,  founded  on  priority  of  contract,  as  debt 
or  covenant  by  lessor  or  lessee,  1  Saund.  241 
6;  3  Serg.  &  R.  Penn.  500,  venue  is  tran- 
sitory, but  when  founded  in  privity  of  estate, 
as  in  case  of  assignment,  the  venue  is  local. 
1  Saund.  257.  By  various  early  statutes, 
however,  actions  on  leases  have  become  gene- 
rally transitory.  In  such  action,  some  par- 
ticular place,  as,  a  town,  village,  or  parish, 
must  formerly  have  been  designated.  Coke, 
Litt.  125.  But  it  is  said  to  be  no  longer  ne- 
cessary except  in  replevin.  2  East,  503  ;  1 
Chitty,  Plead.  251.  As  to  where  the  venue  is 
to  be  laid  in  case  of  a  change  of  county  lines, 
see  18  Ga.  690 ;  16  Penn.  St.  3. 

In  transitory  actions  the  venue  may  be  laid 
in  any  county  the  plaintiff  chooses;  that  is,  he 
may  bring  suit  wherever  he  may  find  the  de- 
fendant, and  lay  his  cause  of  action  to  have 
arisen  there,  even  though  the  cause  of  action 
arose  in  a  foreign  jurisdiction.  1  Chittv, 
Plead.  244  ;  Stephen,  Plead.  306  ;  Archbold, 
Civ.  Plead.  86  ;  18  Ga.  690  ;  1  How.  241 ;  17 
Pet.  245.  In  case  the  cause  was  to  be  tried 
in  a  different  county  from  that  in  which  the 
matter  actually  arose,  the  venue  was  anciently 
laid  by  giving  the  place  of  occurrence,  with 
a  scilicet  giving  the  place  of  trial.  1  Chitty, 
Plead.  250;  1  How.  241 ;  3  Zabr.  N.  J.  279. 
See  1  Taunt.  380.  In  some  cases,  however, 
by  statutes,  the  venue  in  transitory  actions 
must  be  laid  in  the  county  where  the  matter 


occurred  or  where  certain  parties  reside.  ? 
Sharswood,  Blackst.  Comm.  294.  And  gene- 
rally, by  statute,  it  must  be  in  the  county 
where  one  of  the  parties  resides,  when  be- 
tween citizens  of  the  same  state. 

3.  In  criminal  proceedings  the  venue  must 
be  laid  in  the  county  where  the  occurrence 
actually  took  place,  2  Russell,  Crimes,  800; 
4  Carr.  &  P.  363,  and  the  act  must  be  proved 
to  have  occurred  in  that  jurisdiction.  2 
HaM^kins,  PI.  Cr.  c.  25, 1  84 ;  Archbold,  Crim. 
Plead.  40,  95  ;  1  Starkie,  Ev.  466 ;  26  Penn 
St.  513 ;  4  Tex.  450 ;  6  Cal.  202  ;  6  Yerg.  Tonn. 
364.  Statement  of  venue  in  the  margin  and 
reference  thereto  in  the  body  of  an  indictment 
is  a  sufficient  statement  of  venue,  39  Me.  78; 
4  Ind.  141 ;  8  Mo.  283  ;  and  see  20  Mo.  411 ; 
39  Me.  291 ;  and  the  venue  need  not  be  stated 
in  the  margin  if  it  appears  from  the  indict- 
ment. 5  Gray,  Mass.  478;  25  Conn.  48;  2 
McLean,  C.  C.  580. 

Want  of  any  venue  is  cause  for  demurrer. 
1  Lutw.  235;  5  Mass.  94;  or  abatement, 
Comyns,  Dig.  Abatement  (H  13) ;  Archbold, 
Civ.  Plead.  78  ;  or  arrest  of  judgment.  4  Tex. 
450.  So  defendant  may  plead  or  demur  to  a 
wrong  venue.  13  Me.  130.  Change  of  venue 
may  be  made  by  the  court  to  prevent,  and 
not  to  cause,  a  defeat  of  justice,  3  Sharswood, 
Blackst.  Comm.  294:  32  Eng.  L.  &  Eq.  358; 
20  Mo.  400;  2  Wise.  397  ;  20  111.  259;  3  Zabr. 
N.  J.  63;  3  Green,  N.  J.  63;  both  in  civil,  7 
Ind.  110;  31  Miss.  490;  27  N.  H.  428,  and 
criminal  cases,  7  Ind.  160;  28  Ala.  n.  s.  28  ;  4 
Iowa,  505  ;  5  Ilarr.  Del.  512;  and  such  change 
is  a  matter  of  right  on  compliance  with  the 
requirements  of  the  law.  9  Tex.  358 ;  7  Ind. 
110;  2Wisc.419;  15  111.511 ;  8  Mo.  606.  That 
such  change  Ts  a  matter  of  discretion  with  the 
court  below,  see  28  Ala.  n.  s.  28;  31  Miss. 
490;  3  Cal.  410;  8  Ind.  439;  11  id.  481;  5 
Ilarr.  Del.  512  ;  13  La.  Ann.  191. 

VERAY.  An  ancient  manner  of  spelling 
vrai,  true. 

In  the  English  law  there  are  three  kinds 
of  tenants :  veray,  or  true  tenant,  who  is  one 
who  holds  in  fee-simple ;  tenant  by  the  man- 
ner {q.  v.),  who  is  one  who  has  a  less  estate 
than  a  fee  which  remains  in  the  reversioner; 
veray  tenant  by  the  maimer,  who  is  the  same 
as  tenant  by  the  manner,  with  this  difference 
only,  that  the  fee-simple,  instead  of  remain- 
ing in  the  lord,  is  given  by  him  or  by  the  law 
to  another.    Hammond,  Nisi  P.  394. 

VERBAL.  Parol;  by  word  of  mouth:  as, 
verbal  agreement;  verbal  evidence.  Some- 
times incorrectly  used  for  oral. 

VERBAL  NOTE.  In  diplomatic  lan- 
guage, a  memorandum  or  note  not  signed, 
sent  when  an  affair  has  continued  a  long  time 
M'ithout  any  reply,  in  order  to  avoid  the  ap- 
pearance of  an  urgency  which  perhaps  the 
affair  does  not  require,  and,  on  the  other 
hand,  not  to  afford  any  ground  for  supposing 
that  it  is  forgotten,  or  that  there  is  no  inten- 
tion of  prosecuting  it  any  further,  is  called 
a  vei'bal  note. 

VERBAL  PROCESS.    In  Louisiana. 


VERDEROR 


635 


VERIFICATION 


A  written  account  of  any  proceeding  or  ope- 
ration required  by  law,  signed  l)y  the  person 
commissioned  to  perform  the  duty,  and  at- 
tested by  the  signature  of  witnesses.  See 
Proces  Verbal. 

VERDEROR  (fr.  French  verdeur,  fr.  vert 
OTverd,  green  ;  Law  L.  viridarius).  An  officer 
in  king's  forest ;  whose  office  is  properly  to 
look  after  the  vert,  for  food  and  shelter  for  the 
deer.  He  is  also  sworn  to  keep  the  assizes 
of  the  forest,  and  receive  and  enroll  the  at- 
tachments and  presentments  of  trespasses 
within  the  forest,  and  certify  them  to  the 
Bwainmoteor  justice-seat.  Cowel ;  Burn,Eccl. 
Law ;  Man  wood.  For.  Law,  part  1,  p.  332. 

VERDICT.  In  Practice.  The  unani- 
mous decision  made  by  a  jury  and  reported 
to  the  court  on  the  matters  lawfully  submitted 
to  them  in  the  course  of  a  trial  of  a  cause. 

A  general  verdict  is  one  by  which  the  jury 
pronounce  at  the  same  time  on  the  fact  and 
the  law,  either  in  favor  of  the  plaintiff  or 
defendant.  Coke,  Litt.  228;  4  Blackstone, 
Comm.  4G1.  The  jury  may  find  such  a  ver- 
dict whenever  they  think  fit  to  do  so. 

A  partial  verdict  in  a  criminal  case  is  one 
by  which  the  jury  acquit  the  defendant  of  a 

Eart  of  the  accusation  against  him,  and  find 
im  guilty  of  the  residue. 

The  following  are  examples  of  this  kind  of  a  ver- 
dict, namely:  when  they  acquit  the  defendant  on 
one  count  and  find  him  guilty  on  another,  which  is 
indeed  a  specie^  of  general  verdict,  as  he  is  gene- 
rally acquitted  on  one  charge  and  generally  con- 
victed on  another  ;  when  the  charge  is  of  an  offence 
of  a  higher,  and  includes  one  of  an  inferior  degree, 
the  jury  may  convict  of  the  less  atrocious  by  find- 
ing a  partial  verdict.  Thus,  upon  an  indictment 
for  burglary,  the  defendant  mny  be  convicted  of 
larceny  and  acquitted  of  the  nocturnal  entry ;  upon 
an  indictment  for  murder,  he  may  be  convicted  of 
manslaughter;  robbery  may  be  softened  to  simple 
larceny  ;  a  battery  into  a  common  assault.  1  Chitty, 
Crim.  Law,  638,  and  the  cases  there  cited. 

A  privy  verdict  is  one  delivered  privily  to 
a  judge  out  of  court.  A  verdict  of  this  kind 
is  delivered  to  the  judge  after  the  jury  have 
agreed,  for  the  convenience  of  the  jury,  w^ho, 
after  having  given  it,  separate.  This  verdict 
is  of  no  force  whatever;  and  this  practice, 
being  exceedingly  liable  to  abuse,  is  seldom 
if  ever  allowed  in  the  United  States.  The 
jury,  hoAvever,  are  allowed  in  some  states,  in 
certain  cases,  to  seal  their  verdict  and  return 
it  into  court,  as,  for  example,  where  a  verdict 
is  agreed  upon  during  the  adjournment  of  the 
court  for  the  day. 

A  public  verdict  is  one  delivered  in  open 
court.  This  verdict  has  its  full  effect,  and 
unless  set  aside  is  conclusive  on  the  facts,  and, 
when  judgment  is  rendered  upon  it,  bars  all 
future  controversy,  in  personal  actions.  A 

f>rivate  verdict  must  afterwards  be  given  pub- 
icly  in  order  to  give  it  any  effect. 

A  special  verdict  is  one  by  which  the  facts 
of  the  case  are  put  on  the  record,  and  the  law 
is  submitted  to  the  judges.  1  Litt.  Ky.  376; 
1  Jer.  176;  4  Rand.  Va.  504;  1  Hen.  &  M. 
Va.  235 ;  1  Wash.  C.  C.  499;  2  Mas.  C.  C. 
El. 


The  jury  have  an  option,  instead  of  finding  the 
negative  or  affirmative  of  the  issue,  as  in  a  general 
verdict,  to  find  all  the  facts  of  the  case  as  disclosed 
by  the  evidence  before  them,  and,  after  so  hotting 
them  forth,  to  conclude  to  the  following  effect :  "that 
they  are  ignorant,  in  point  of  law,  on  which  side 
they  ought  upon  those  facts  to  find  the  issue;  that 
if  upon  the  whole  matter  the  court  shall  be  of  opinion 
that  the  issue  is  proved  for  the  plaintiff,  they  find 
for  the  plaintiff  accordingly,  and  assess  the  dainagei 
at  such  a  sum,  etc.;  but  if  the  court  are  of  an  op- 
posite opinion,  then  they  find  vice  versS."  Thig 
form  of  finding  is  called  a  special  verdict.  In 
pr;ictice  they  have  nothing  to  do  with  the  formal 
preparation  of  the  special  verdict.  When  it  is 
agreed  that  a  verdict  of  that  kind  is  to  be  given, 
the  jury  merely  declare  their  opinion  as  to  any  fact 
remaining  in  doubt,  and  then  the  verdict  is  adjusted 
without  their  further  interference.  It  is  settled, 
under  the  correction  of  the  judge,  by  the  counsel 
and  attorneys  on  either  side,  acconling  to  the  state 
of  the  facts  as  found  by  the  jury,  with  respect  to  all 
particulars  on  which  they  have  delivered  an  opinion, 
and,  with  respect  to  other  particulars,  according  to 
the  state  of  facts  which  it  is  agreed  that  they  ought 
to  find  upon  the  evidence  before  them.  The  special 
verdict,  when  its  form  is  thus  settled,  is,  together 
with  the  whole  proceedings  on  the  trial,  then  en- 
tered on  record ;  and  the  question  of  law,  arising  on 
the  facts  found,  is  argued  before  the  court  in  banc, 
and  decided  by  that  court  as  in  case  of  a  demurrer. 
If  either  party  be  dissatisfied  with  their  decision,  ho 
may  afterwards  resort  to  a  court  of  error.  Stephen, 
Plead.  118;  1  Archbold,  Pract.  189;  .3  Blackstone, 
Comm.  377;  Bacon,  Abr.  Verdict  (D,  E). 

There  is  another  method  of  finding  a  special  ver- 
dict:  this  is  when  the  jury  find  a  verdict  generally 
for  the  plaintiff,  but  subject  nevertheless  to  the 
opinion  of  the  judges  or  the  court  above  on  a  special 
case,  stated  by  the  counsel  on  both  sides,  with  regard 
to  a  matter  of  law.  3  Blackstone,  Comm.  378.  And 
see  10  Mass.  64 ;  11  id.  358.  See,  generally,  Bouvier, 
Inst.  Index. 

VERIFICATION  (Lat.  verum,  true, facio, 
to  make).  In  Pleading.  An  averment  by 
the  party  making  a  pleading  that  he  is  pre- 
pared to  establish  the  truth  of  the  facts  which 
he  has  pleaded. 

2.  Whenever  new  matter  is  introduced  on 
either  side,  the  plea  must  conclude  with  the 
verification  or  averment,  in  order  that  the 
other  party  may  have  an  opportunity  of  an- 
swering it.  Carth.  337 ;  1  Lutw.  20 1 ;  2  Wils. 
66;  Dougl.  60;  2  Term,  576;  1  Saund.  103,  n. 
1;  Comyns,  Dig.  Pleado'  (E).  This  applies 
only  to  pleas.  Replications  and  subsequent 
proceedings  for  counts  and  avowries  need  not 
be  verified.    Coke,  Litt.  362  h. 

3.  In  one  instance,  however,  new  matter 
need  not  conclude  with  a  verification,  and  then 
the  pleader  may  pray  judgment  without  it: 
for  example,  when  the  matter  pleaded  is 
merely  negative.  Willes,  5 ;  Lawes,  Plead. 
145.  The  reason  of  it  is  evident:  a  negative 
requires  no  proof;  and  it  would,  therefore,  be 
impertinent  or  nugatory  for  the  pleader,  who 
pleads  a  negative  matter,  to  declare  his  readi- 
ness to  prove  it. 

The  usual  form  of  verification  of  a  plea  con- 
taining matter  of  fact  is,  "  And  this  he  is  ready 
to  verify:'  etc.  See  1  Chittv,  Plead.  537,  616 ; 
Lawes,  Civ.  Plead.  144:  1  *Saund.  103,  n.  1; 
Willes,  5;  3  Blackstone,  Comm.  309. 

In  Practice.  The  examination  of  the  truth 


VERMONT 


636 


YERMONT 


of  a  writing ;  the  certificate  that  the  writing 
is  true.    See  Authentication. 

VERMONT.  The  name  of  one  of  the 
new  states  of  the  United  States  of  America. 

2.  It  was  admitted  by  virtue  of  "An  act  for  the 
admission  of  the  State  of  Vermont  into  this  Union," 
approved  February  18,  1791,  1  Story,  U.  S.  Laws, 
169,  by  which  it  is  enacted  that  the  state  of  Ver- 
mont having  petitioned  the  congress  to  be  admitted 
a  member  of  the  United  States,  on  the  fourth  day 
of  March,  one  thousand  seven  hundred  and  ninety- 
cue,  the  said  state,  by  the  name  and  style  of  "the 
Btate  of  Vermont,"  shall  be  received  and  admitted 
into  this  Union  as  a  new  and  entire  member  of  the 
United  States  of  America. 

The  history  of  Vermont  before  its  incorporation 
into  the  Union  is  of  interest,  because  the  soil  of 
this  state  never  composed  a  royal  province,  and 
was  not  governed  as  a  territory  of  the  United  States. 
The  territory  which  composes  the  present  state  of 
Vermont  was  claimed  by  both  New  York  and  New 
Hampshire;  but,  though  lands  were  granted  within 
the  limits  of  the  debatable  ground  by  both  pro- 
vinces, yet  the  conflict  of  jurisdiction  between  them 
left  the  people  of  the  New  Hampshire  Grants,  New 
Connecticut,  or  Vermont  (for  the  tract  of  country 
in  question  was  known  by  these  names  indifferently), 
virtually  independent  of  both,  and  they  were  self- 
governed  from  almost  the  commencement  of  the 
settlement  of  the  Grants  until  the  admission  of  the 
State  into  the  Union  in  1791.  On  the  15th  of  Janu- 
ary, 1777,  they  declared  their  territory  to  be  "a 
free  independent  jurisdiction,  or  state,"  and  on  the 
2d  of  July  in  the  same  year  a  convention  of  dele- 
gates was  assembled  to  frame  a  constitution. 

3.  A  constitution  was  accordingly  drawn  up  and 
approved  by  the  convention,  but  was  revised  by  the 
Same  body  in  the  following  December,  and  went 
immediately  into  effect.  It  was  amended  in  1786, 
1793,  1828,  1836,  and  1850.  The  freemen  of  the 
Btate  elect,  every  seven  years,  by  general  ticket,  a 
council  of  censors,  consisting  of  thirteen  persons, 
whose  duty  it  is  to  inquire  whether  the  constitution 
has  been  preserved  inviolate  during  the  last  sep- 
tenary, to  propose  such  amendments  to  the  con- 
stitution as  they  may  deem  necessary,  and  to  call 
a  convention  to  determine  upon  the  expediency  of 
adopting  such  amendments  as  may  be  proposed  by 
the  council  of  censors.  No  other  mode  of  amend- 
ing the  constitution  is  provided.    Const.  ^  43. 

4.  Every  man  of  the  full  age  of  twenty-one 
years,  wh*^  ^as  resided  in  the  state  for  the  space  of 
one  whole  year  next  before  the  election  of  repre- 
sentatives, is  of  a  quiet  and  peaceable  behavior, 
will  take  the  oath  of  allegiance  to  the  state,  and. 
Art.  Amend.  ^  1,  is  a  natural  born-citizen  of  any 
of  the  United  States,  or  is  naturalized,  is  entitled 
to  all  the  privileges  of  a  freeman  of  the  state. 
Const.  ^  21. 

The  writ  of  habeas  corpus  is  issuable  of  right, 
and  cannot  be  suspended.    Art.  Amend.  §  12. 

By  ^  1  of  the  Bill  of  Rights  prefixed  to  the 
frame  of  government,  which  by  §  42  of  the  con- 
stitution is  declared  to  be  a  part  of  that  instrument, 
it  is  provided,  among  other  things,  that  no  male 
person  born  in  this  country,  or  brought  from  over 
sea,  ought  to  be  holden  by  law  to  serve  any  per- 
son as  a  servant,  slave,  or  apprentice,  after  he  ar- 
rives at  the  age  of  twenty-one  years,  nor  female,  in 
like  manner,  after  she  arrives  at  the  age  of  eighteen 
years,  unless  they  are  bound  by  their  own  consent 
after  they  arrive  at  such  age,  or  bound  by  law  for 
the  payment  of  debt,  damages,  fines,  costs,  or  the 
like.  This  clause  is  held  by  the  courts  to  make 
females  of  full  age,  for  all  purposes  whats  oever,  at 
the  age  of  eighteen  years. 

5.  Absolute  liberty  of  conscience  and  of  worship, 
and  ab»'  lute  equality  of  rights,  are  secured  to  all 


persons  without  distinction  of  religious  belief. 
Bill  of  Rights,  §  3. 

6.  The  supreme  legislative  power  is  exercised  by 
a  senate  and  the  house  of  representatives,  styled, 
collectively,  "the  General  As.sembly  of  the  state  of 
Vermont."  The  senate  and  the  house  of  repre- 
sentatives have  the  like  powers  in  all  acts  of  legisla- 
tion, and  no  "bill,  resolution,  or  other  thing"  passed 
by  the  one  can  have  the  effect  of  a  law  without  the 
concurrence  of  the  other.  Revenue  bills  must  origin- 
ate in  the  house,  but  amendments  may  be  proposed 
in  the  senate.  Neither  house  can,  without  the  con- 
sent of  the  other,  adjourn  for  more  than  three  days, 
nor  to  any  other  place  than  that  where  the  two 
houses  are  sitting ;  and  in  case  of  disagreement 
between  the  two  houses  respecting  adjournment, 
the  governor  may  adjourn  them  to  such  time  as  he 
thinks  proper.    Art.  Amend.  3. 

T.  The  senate  is  composed  of  thirty  members,  of 
the  freemen  of  the  county  for  which  they  are 
elected,  who  must  have  attained  the  age  of  thirty 
years,  and  who  are  annually  elected,  by  ballot,  by 
the  freemen  of  each  county  respectively,  according 
to  an  apportionment  upon  the  basis  of  population, 
to  be  made  by  the  legislature  after  each  census  of 
the  United  States,  or  state  census  taken  for  that 
purpose;  but  every  county  is  to  have  at  least  one 
senator.    Art.  Amend.  23. 

It  has  like  powers  as  the  house  of  representatives 
with  respect  to  election,  qualification,  and  expul- 
sion of  its  members,  election  of  its  own  ofiicers, 
and  making  its  own  rules.  A  majority  constitutes 
a  quorum.  The  lieutenant-governor  is  president 
of  the  senate;  but  when  he  exercises  the  oflSce  of 
governor,  or  is  absent,  or  the  oflBce  of  lieutenant- 
governor  is  vacant,  the  senate  appoints  one  of  its 
own  numbers  president  joro  tempore.  The  president 
of  the  senate  has  a  casting  vote,  bnt  no  other. 

It  tries  impeachments,  and  convicts  upon  the 
concurrence  of  two-thirds  of  the  members  present. 
Judgment  in  case  of  impeachment  cannot  extend 
further  than  to  removal  from  office  and  disqualifi- 
cation to  hold  oflBce  of  honor,  trust,  or  profit  under 
the  state ;  but  such  judgment  is  not  a  bar  to  trial, 
judgment,  and  punishment  according  to  law.  Art. 
Amend.  §  7. 

8«  The  house  of  representatives  "consists  of  per- 
sons most  noted  for  wisdom  and  virtue"  (Const, 
art.  2,  §  8,  7),  who  are  chosen  by  ballot,  by  the 
freemen  of  every  town  in  the  state,  on  the  first 
Tuesday  of  September  annually,  one  representative 
being  chosen  by  each  town,  without  regard  to  num- 
ber of  population.  It  has  power  to  choose  its  own 
speaker  and  other  officers,  to  sit  on  its  own  adjourn- 
ments, except  as  above  limited,  to  judge  of  the 
qualifications  of  its  own  members,  expel  members, 
but  not  for  causes  known  to  their  constituents  be- 
fore their  election,  administer  oaths  and  aflfirma- 
tions  in  matters  depending  before  it,  and  impeach 
state  criminals.    Const,  pt.  2,  §  9  and  Amend. 

The  legislative  powers  of  the  two  houses  extend 
to  the  preparation  of  bills  and  the  enactment  of 
the  same  into  laws;  the  redress  of  grievances;  the 
granting  of  acts  of  incorporation;  the  constituting 
of  towns,  boroughs,  cities,  and  counties;  the  elec- 
tion of  major-generals  and  brigadier-generals,  sec- 
retary of  state,  and  other  ofiicers  not  otherwise  pro- 
vided for;  and  they  possess,  generally,  all  other 
powers  necessary  for  the  legislature  of  a  free  and 
sovereign  state ;  but  they  have  no  power  to  alter, 
abolish,  or  infringe  any  part  of  the  constitution. 

9.  Every  bill  which  has  passed  both  houses  is 
presented  to  the  governor,  and  signed  by  him,  if 
approved;  if  not,  it  is  returned  by  him,  with  big 
objections  in  writing,  to  the  house  in  which  it  ori- 
ginated, which  shall  proceed  to  reconsider  the  same. 
If  passed  again  by  a  majority  of  that  house,  it  is  sent, 
with  the  objections,  to  the  other  house,  and  if  ap- 
proved by  a  majority  of  the  men  bers,  it  becomes  a 


VERMONT 


637 


VETERA  STATUTA 


law.  But  if  the  governor  docs  not  return  a  bill 
within  five  days  after  it  is  presented  to  him,  it  be- 
comes a  law.  unless  the  two  houses,  by  adjourning 
within  three  days  after  such  presentation,  prevent 
its  return ;  in  which  case  it  docs  not  become  a  law. 
Art.  Amend,  g  11. 

10.  The  supreme  executive  power  of  the  state  is 
exercised  by  the  governor,  or,  in  <?ase  of  his  absence 
or  disability,  by  the  lieutenant-governor.  The  du- 
ties of  the  executive  are  as  follows:  Const,  pt.  2, 

11,  27;  Art.  Amend.  §  8.  To  commission  all 
officers,  and  appoint  officers  where  provision  is  not 
made  by  law  or  the  constitution;  to  supply  vacan- 
cies in  offices ;  to  correspond  with  other  states, 
transact  business  with  officers  of  government,  civil 
and  military,  and  to  prepare  such  business  as  may 
appear  necessary  to  lay  before  the  general  assembly  ; 
to  grant  pardons,  and  remit  fines,  in  all  cases  what- 
soever, except  in  treason  and  murder,  in  which  it 
shall  have  power  to  grant  reprieves,  but  not  to  par- 
don, until  after  the  end  of  the  next  session  of  the 
assembly,  and  except  in  cases  of  impeachment,  in 
which  there  shall  be  no  remission  or  mitigation  of 
punishment  but  by  act  of  the  legislature ;  to  take  care 
that  the  laws  be  faithfully  executed ;  to  expedite 
the  execution  of  such  measures  as  may  be  resolved 
upon  by  the  general  assembly ;  to  draw  upon  the 
treasury  for  such  sums  as  may  be  appropriated  by 
the  house  of  representatives ;  to  lay  embargoes,  or 
prohibit  the  exportation  of  any  commodity,  for  any 
time  not  exceeding  thirty  days,  in  the  recess  of  the 
legislature  only ;  to  grant  such  licenses  as  shall  be 
directed  by  law ;  and  to  call  together  the  general 
assembly,  when  necessary,  before  the  day  to  which 
it  shall  stand  adjourned.  The  governor  shall  be 
cnplcV.n-general  and  commander-in-chief  of  the 
forces  of  the  state,  but  shall  not  command  in  per- 
son, except  advised  thereto  by  the  senate,  and  then 
only  so  long  as  they  shall  approve  thereof.  And 
the  lieutenant-governor  shall,  by  virtue  of  his 
office,  be  lieutenant-geHeral  of  all  the  forces  of  the 
state. 

77ie  Judiciary  Power. 

11.  Courts  of  justice  are  maintained  in  every 
county  of  the  state.  All  judicial  officers  are  elected 
annually  [the  justice  of  the  supreme  court,  at 
present,  by  the  legislature];  assistant  judges  of 
the  county  court,  by  the  freemen  of  their  respective 
counties,  Const,  pt.  2,  ^  4;  Art.  Amend,  g  14; 
judges  of  probate,  by  the  freemen  of  their  respect- 
ive districts.  Art.  Amend.  ^  16;  and  justices  of  the 
peace,  by  the  freemen  of  their  respective  towns. 
Art.  Amend,  5,  13,  15,  16,  18;  Const,  pt.  2,  g  8, 
10.  SherifiFs  and  high-bailiffs,  and  state's  attorneys, 
are  elected  annually  by  the  freemen  of  the  state, 
and  the  respective  counties  and  towns,  by  ballot, 
on  the  first  Tuesday  in  September. 

12.  7'he  Supreme  Court  consists  of  one  chief  and 
two  associate  justices. 

It  has  exclusive  jurisdiction  of  all  such  petitions 
not  triable  by  jury  as  may  by  law  be  brought  be- 
fore such  court,  and  has  power  to  issue  and  de- 
termine all  writs  of  error,  certiorari,  mandamus, 
prohibition,  and  qno  warranto,  and  writs  to  courts 
of  inferior  jurisdiction  that  may  be  necessary,  and 
has  appellate  jurisdiction  of  all  questions  of  law 
removed  from  the  county  courts. 

7'he  Couutji  Court  consists  of  a  chief  judge,  elected 
by  the  general  assembly  annually,  one  for  each  of 
the  four  circuits  into  which  the  state  is  divided  for 
the  purpose,  and  two  assistant  judges,  elected  in 
each  county  for  the  county.  It  has  original  and 
exclusive  jurisdiction  of  all  civil  actions,  except 
those  cognizable  by  a  justice  of  the  peace,  original 
jurisdiction  of  all  criminal  actions,  and  appellate 
jurisdiction  in  certain  cases  from  justices  of  the 
peace.  An  action  may  be  reviewed  once  at  the  next 
teim  of  the  court. 


13.  Justieen  of  the  peace  are  elected  by  th« 
people  of  the  various  towns,  for  the  term  of  one 
year.  Every  town  may  have  one,  and  the  larger 
towns  more,  thor-c  having  a  population  of  fifteen 
thousand  or  more  being  entitled  to  fifteen.  They 
have  jurisdiction  in  civil  cases  where  the  debt  is 
not  over  one  hundred  dollars,  in  actions  of  trespass 
where  the  damages  are  not  over  twenty  dollars, 
and  in  criminal  matters  where  the  fine  is  not  moro 
than  ten  dollars. 

Probate  courts  are  held  by  judges  elected  for  cue 
year  by  the  electors  of  each  of  the  probate  districts. 
They  have  jurisdiction  of  the  settlement  of  estates, 
appointment  of  guardians,  granting  letters  of  ad- 
ministration, admitting  wills  to  probate,  and  the 
like.  There  is  an  appellate  jurisdiction  from  this 
court  to  the  county  court,  and  in  matters  of  law  to 
the  supreme  court. 

A  court  of  chancery  is  held  by  the  circuit  jurj^e 
of  each  circuit,  with  the  powers  generally  of  the 
English  court  of  chancery.  Two  stated  tern|8  are 
held  annually  in  each  county. 

VERSUS.  Against:  as,AB  versus  C  D. 
This  is  usually  abbreviated  v.  or  vs. 

VERT.  Every  thing  bearing  green  leaves 
in  a  forest.  Bacon,  Abr.  Courts  erf  the  Forest  \ 
Manvrood,  For.  Law,  146. 

VESSEL.  In  Maritime  Law*  A  ship, 
brig,  sloop,  or  other  craft  used  in  navigation. 
1  Boulay-Paty,  tit.  1,  p.  100.  See  Ship  ;  Part- 
Owner. 

By  an  act  of  congress,  approved  July  29,  1850, 
it  is  provided  that  any  person,  not  being  an  owner, 
who  shall  on  the  high  seas,  wilfully,  with  intent  to 
burn  or  destroy,  set  fire  to  any  ship  or  other  vessel, 
or  otherwise  attempt  the  destruction  of  such  ship 
or  other  vessel,  being  the  property  of  any  citizen  or 
citizens  of  the  United  States,  or  procure  the  same 
to  be  done,  with  the  intent  aforesaid,  and  being 
thereof  lawfully  convicted,  shall  suffer  imprison- 
ment to  hard  labor  for  a  term  not  exceeding  ten 
years  nor  less  than  three  years,  according  to  the 
aggravation  of  the  offence. 

VEST.  To  give  an  immediate  fixed  right 
of  present  or  future  enjoyment.  An  estate  is 
vested  in  possession  when  there  exists  a  right 
of  present  enjoyment;  and  an  estate  is  vested 
in  interest  when  there  is  a  present  fixed  right 
of  future  enjoyment.  Fearne,  Cont.  Rem.  2. 
See  Roper,  Leg.  757 ;  Comyns,  Dig.  Vest , 
Vern.  Ch.  323,  n.;  5  Ves.  Ch.  511. 

VESTED  REMAINDER.  An  estate 
by  which  a  present  interest  passes  to  the 
party,  though  to  be  enjoyed  in  futuro,  and  by 
which  the  estate  is  invariably  fixed  to  remain 
to  a  determinate  person  after  the  particular 
estate  has  been  spent.  2  Bouvier,  Inst.  n. 
1831.    See  Remainder. 

VESTURE  OP  LAND.  A  phrase  In- 
cluding all  things,  trees  excepted,  which  grow 
upon  the  surface  of  the  land  and  clothe  it 
externally. 

He  who  has  the  vesture  of  land  has  a  right, 
generally,  to  exclude  others  from  entering 
upon  the  superficies  of  the  soil.  Coke,  Litt. 
4  h;  Hammond,  Nisi  P.  151.  See  7  East, 
200 ;  1  Ventr.  393  ;  2  Rolle,  Abr.  2. 

VETERA  STATUTA  (Lat.).   The  name 

of  Vetera  statuta — ancient  statutes — has  been 
given  to  the  statutes  commencing  with  Magna 


VETITUM  NAMIUM 


G38 


VEXATIOUS  SUIT 


*^1iartji,  and  ending  -with  those  of  Edward  II. 
Orabb,  Eng.  Law,  222. 

VETITUM  NAMIUM  (Law  Lat.  ve- 
titum,  forbidden,  namium,  taking).  Where 
the  bailiff  of  a  lord  distrains  beasts  or  goods  of  \ 
another,  and  the  lord  forbids  the  bailiff  to 
deliver  them  when  the  sheriff  comes  to  make 
replevin,  the  owner  of  the  cattle  may  de- 
mand satisfaction  in  placitum  de  vetito  namio. 
Coke,  2d  Inst.  140 ;  Record  in  Thesaur.  Scacc. ; 
2  Shaiswood,  Blackst.  Comm.  148. 

VETO  (Lat.  I  forbid).  A  term  in- 
cluding the  refusal  of  the  executive  officer 
whose  assent  is  necessary  to  perfect  a  law 
which  has  been  passed  by  the  legislative  body, 
and  the  message  which  is  usually  sent,  stating 
Buch  refusal  and  the  reasons  therefor. 

By  the  constitution  of  the  United  States  govern- 
ment, the  president  has  a  power  to  prevent  the 
enactment  of  any  law,  by  refusing  to  sign  the  same 
after  its  passage,  unless  it  be  subsequently  enacted 
by  a  vote  of  two-thirds  of  each  house.  U.  S.  Const, 
art.  1,  ^  7.  When  a  bill  is  engrossed,  and  has  re- 
ceived the  sanction  of  both  houses,  it  is  transmitted 
to  the  president  for  his  approbation.  If  he  ap- 
proves of  ^,  he  signs  it.  If  he  does  not,  he  sends 
it,  with  his  objections,  to  the  house  in  which  it 
originated,  and  that  house  enter  the  objections  on 
their  journal  and  proceeds  to  reconsider  the  bill. 
See  Story,  Const,  g  878;  1  Kent,  Comm.  239. 
Similar  powers  are  possessed  by  the  governors  of 
many  of  the  states. 

The  veto  power  of  the  British  sovereign  has  not 
been  exercised  for  more  than  a  century.  It  was 
exercised  once  during  the  reign  of  Queen  Anne. 
10  Edinburgh  Rev.  ill;  Parke,  Lect.  126.  But 
anciently  the  king  frequently  replied,  Le  roy  s'avi- 
sera,  which  was  in  effect  withholding  his  assent.  In 
f^rance  the  king  had  the  initiative  of  all  laws, 
but  not  the  veto.  See  1  Toullier,  nn.  39,  42,  52, 
note  3. 

VEXATION.  The  injury  or  damage 
which  is  suffered  in  consequence  of  the  tricks 
of  another. 

VEXATIOUS  SUIT.  Torts.  A  suit 
which  has  been  instituted  maliciously,  and 
without  probable  cause,  whereby  a  damage 
has  ensued  to  the  defendant. 

2.  The  suit  is  either  a  criminal  prosecution, 
a  conviction  before  a  magistrate,  or  a  civil 
action.  The  suit  need  not  be  altogether  with- 
out foundation  :  if  the  part  which  is  ground- 
less has  subjected  the  party  to  an  inconve- 
nience to  which  he  would  not  have  been 
exposed  had  the  valid  cause  of  complaint 
alone  have  been  insisted  on,  it  is  injurious. 
4  Taunt.  616;  4  Coke,  14;  1  Pet.  C.  C.  210; 
4  Serg.  &  R.  Penn.  19,  23.  * 

To  make  it  vexatious,  the  suit  must  have 
been  instituted  maliciously.  As  malice  is 
not  in  any  case  of  injurious  conduct  necessa- 
rily to  be  inferred  from  the  total  absence  of 
probable  cause  for  exciting  it,  and  in  the 
present  instance  the  law  will  not  allow  it  to 
be  inferred  from  that  circumstance,  for  fear 
of  being  mistaken,  it  casts  upon  the  suffering 
party  the  onus  of  proving  express  malice.  2 
Wills.  307 ;  2  Bos.  &  P.  129 ;  Carth.  417.  But 
Bee  what  Gibbs,  C.  J.,  says,  in  Berley  v.  Bc- 
tbune.5Taunt.583;  see,  also,  1  Pet.C.C.  210; 


2  Browne,  Penn.  Apx.  42,  49;  Add.  Penn. 
270. 

3.  It  is  necessary  that  the  prosecution 
should  have  been  carried  on  without  probahU 
cause.  The  Jaw  presumes  that  probable 
cause  existed  until  the  party  aggrieved  can 
show  to  the  contrary.  Hence  he  is  bound  to 
show  the  total  absence  of  probable  cause.  5 
Taunt.  580;  1  Camp.  199.  See  3  Dowl.  Pari. 
Cas.  160;  1  Term,  520;  Buller,  Nisi  P.  14;  4 
Burr.  1974;  2  Barnew.  <5b  C.  693;  4  Dowl.  & 
R.  107;  1  Gow,  20;  1  Wils.  232 ;  Crokc  Jac. 
194.  He  is  also  under  the  same  obligation 
when  the  original  proceeding  was  a  civil 
action.    2  Wils.  307. 

4.  The  damage  which  the  party  injured 
sustains  from  a  vexatious  suit  for  a  crime  ia 
either  to  his  person,  his  reputation,  his  estate, 
or  his  relative  rights.  First,  whenever  im- 
prisonment is  occasioned  by  a  malicious  un- 
founded criminal  prosecution,  the  injury  ia 
complete  although  the  detention  may  have 
been  momentary  and  the  party  released  on 
bail.  Carth.  416.  Second,  when  the  bill  of 
indictment  contains  scandalous  aspersions 
likely  to  impair  the  reputation  of  the  accused, 
the  damage  is  complete.  See  12  Mod.  210; 
2  Barnew.  &  Aid.  494;  3  Dowl.  &  R.  669. 
Third,  notwithstanding  his  person  is  left  at 
liberty,  and  his  character  is  unstained  by  the 
proceedings  (as,  where  the  indictment  is  for 
a  trespass,  Carth.  416),  yet  if  he  necessarily 
incurs  expense  in  defending  himself  against 
the  charge,  he  has  a  right  to  have  his  losses 
made  good.  10  Mod.  148,  214;  Gilb.  185. 
Fourth,  if  a  master  loses  the  services  and 
assistance  of  his  domestics  in  consequence 
of  a  vexatious  suit,  he  may  claim  a  compen- 
sation.   Hammond,  Nisi  P.  275. 

5.  With  regard  to  a  damage  resulting  from 
a  civil  action,  when  prosecuted  in  a  court  of 
competent  jurisdiction,  the  only  detriment  the 
party  can  sustain  is  the  imprisonment  of  his 
person,  or  the  seizure  of  his  property ;  for,  as 
to  any  expense  he  may  be  put  to,  this,  in  con- 
templation of  law,  has  been  fully  compensated 
to  him  by  the  costs  adjudged.  4  Taunt.  7;  1 
Mod.  4 ;  2  id.  306.  But  where  the  original 
suit  was  coram  non  judice,  the  party,  as  the 
law  formerly  stood,  necessarily  incurred  ex- 
pense without  the  power  of  remuneration, 
unless  by  this  action  ;  because  any  award  of 
costs  the  court  might  make  would  have  been 
a  nullity.  However,  by  a  late  decision,  such 
an  adjudication  was  holden  unimpeachable, 
and  that  the  party  might  well  have  an  action 
of  debt  to  recover  the  amount.  1  Wils.  316. 
So  that  the  law,  in  this  respect,  seems  to  have 
taken  a  new  turn  ;  and  perhaps  it  would  now 
be  decided  that  no  action  can  under  any 
other  circumstances  but  imprisonment  of  the 
person  or  seizure  of  the  property  be  main- 
tained for  suing  in  an  improper  court.  See 
Carth.  189. 

See,  in  general,  Bacon,  Abr.  Action  on 
the  Case  (II);  Viner,  Abr.  Actions  (II  c) ; 
Comyns,  Dig.  Action  upon  the  Case  upon 
Deceit;  5  Am.  Law  Journ.  514;  Yelv.  105  a, 
note  2 ;  Buller,  Nisi  P.  13  j  3  Selwyn,  Nisi 


VEXED  QUESTION 


639 


VICE-PRESIDENT,  ETC. 


P.  535  ;  Co.  Litt.  Day's  ed.  IGl,  n. ;  1  Saund. 
230,  n.  4 ;  3  Sharswood,  Blackst.  Comm.  120, 
n. ;  Malicious  Prosecution. 

VEXED  QUESTION.  A  question  or 
point  of  law  often  discussed  or  agitated,  but 
not  determined  or  settled. 

VI  ET  ARMIS  (Lat.).  With  force  and 
arms.    See  Trespass. 

VIA  (Lat.).  A  cart-way, — which  also  in- 
cludes a  foot-way  and  a  horse-way.  See 
Way. 

VIABILITY  (from  the  French  vie). 
Capability  of  living.  A  term  used  to  denote 
the  power  a  new-born  child  possesses  of  con- 
tinuing its  independent  existence. 

2.  That  a  child  may  be  viable,  it  is  neces- 
sary that  not  only  the  organs  should  be  in  a 
normal  state,  but  likewise  all  the  physiolo- 
gical and  pathological  causes  which  are 
capable  of  opposing  the  establishment  or 
prolongation  of  its  life  be  absent. 

Although  a  child  may  be  born  with  every 
appearance  of  health,  yet,  from  some  malform- 
ation, it  may  not  possess  the  physical  power 
to  maintain  life,  but  which  must  cease  from  . 
necessity.  Under  these  circumstances,  it  can- 
lot  be  said  to  exist  but  temporarily, — no 
longer,  indeed,  than  is  necessary  to  prove  that 
a  continued  existence  is  impossible. 

It  is  important  to  make  a  distinction 
between  a  viable  and  a  non-viable  child, 
although  the  latter  may  outlive  the  former. 
The  viable  child  may  die  of  some  disease  on 
the  day  of  its  birth,  while  a  non-viable  child 
may  live  a  fortnight.  The  former  possesses 
the  organs  essential  to  life,  in  their  integrity ; 
while  the  latter  has  some  imperfection  which 
prevents  the  complete  establishment  of  life. 

As  it  is  no  evidence  of  non-viability  that  a 
child  dies  within  a  few  hours  of  its  birth, 
neither  is  it  a  proof  of  viability  if  a  child  ap- 
pears to  be  well  and  the  function  of  respira- 
tion be  fully  established. 

3.  There  are  many  affections  which  a  child 
may  have  at  birth,  that  are  not  necessarily 
mortal:  such  as  transposition  of  some  of 
the  organs,  and  other  malformations.  There 
are  also  many  diseases  which,  without  being 
necessarily  mortal,  are  an  impediment  to  the 
establishment  of  independent  life,  affecting 
different  parts  of  the  system:  such  as  inflam- 
mation, in  addition  to  many  malformations. 
There  is  a  third  class,  in  which  are  many  af- 
fections that  are  necessarily  mortal :  such  as 
a  general  softening  of  the  mucous  membrane 
of  the  stomach  and  intestines,  developed 
before  birth,  or  the  absence  of  the  stomach, 
*nd  a  number  of  other  malformations.  These 
distinctions  are  of  great  importance ;  for  chil- 
dren affected  by  peculiarities  of  the  first  order 
must  be  considered  as  viable ;  affections  of 
the  second  may  constitute  extenuating  cir- 
cumstances in  questions  of  infanticide  ;  while 
those  of  the  third  admit  of  no  discussion  on 
the  subject  of  their  viability. 

The  question  of  viability  presents  itself  to 
the  medical  jurist  under  two  aspects :  ^V^^, 


with  respect  to  infanticide,  and  second,  Avith 
respect  to  testamentary  grants  and  inherit- 
ances. Billard  on  Infajits,  translation  by 
James  Stewart,  M.D.,  Appendix;  Briand, 
M6d.  L6g.  l^re  partie,  c.  G,  art.  2.  See  2 
Savigny,  Dr.  Rom.  Append.  III.,  for  a  learned 
discussion  of  this  subject. 

VIABLE  (Lat.  vitce  hahilis,  capable  of 
living).  A  term  applied  to  a  child  who  is 
born  alive  in  such  an  advanced  state  of  form- 
ation as  to  be  capable  of  living.  Unless  he 
is  born  viable,  he  acquires  no  rights,  and  can- 
not transmit  them  to  his  heirs,  and  is  con- 
sidered as  if  he  had  never  been  born. 

VICARAGE.    In  Ecclesiastical  Law. 

The  living  or  benefice  of  a  vicar:  usually 
consisting  of  the  small  tithes.  1  Burn,  Ecci. 
Law,  75,  79. 

VICE.  A  term  used  in  the  civil  law  and 
in  Louisiana,  by  which  is  meant  a  defect  in  a 
thing;  an  imperfection.  For  example,  epi- 
lepsy in  a  slave,  roaring  and  crib-biting  in  a 
horse,  are  vices.  Redhibitory  vices  are  those 
for  which  the  seller  wi'll  be  compelled  to 
annul  a  sale  and  take  back  the  thing  sold. 
Pothier,  Vente,  203  ;  La.  Civ.  Code,  art.  2498 
-2507. 

VICE-ADMIRAL.  The  title  of  an  officer 
in  the  navy :  the  next  in  rank  after  the  ad- 
miral. In  the  United  States  we  have  no 
officer  by  this  name. 

VICE-CHANCELLOR.  A  judge,  as- 
sistant to  the  chancellor.  He  holds  a  sepa- 
rate court,  and  his  decrees  are  liable  to  be 
reversed  by  the  chancellor.  He  was  first 
appointed  53  Geo.  III.  In  1841  two  addi- 
tional vice-chancellors  were  appointed  ;  and 
now  there  are  three  vice-chancellor's  courts. 
3  Sharswood,  Blackst.  Comm.  54,  n. 

VICE-CONSUL.  An  officer  who  per- 
forms the  duties  of  a  consul  within  a  part  of 
the  district  of  a  consul,  or  who  acts  in  the 
place  of  a  consul.    See  1  Phillipps,  Ev.  306. 

VICE-PRESIDENT  OF  THE 
UNITED  STATES.  The  title  of  the  second 
officer,  in  point  of  rank,  in  the  government  of 
the  United  States.  He  is  to  be  elected  in  the 
manner  pointed  out  under  the  article  Presi- 
dent of  the  United  States.  See,  also,  3  Story, 
Const.  §  1447  et  seq.  His  office  in  point  of 
duration  is  coextensive  with  that  of  the  pre- 
sident. The  fourth  clause  of  the  third  sec- 
tion of  the  first  article  of  the  constitution  of 
the  United  States  directs  that  "the  vice- 
president  of  the  United  States  shall  be  pre- 
sident of  the  senate,  but  shall  have  no  vote 
unless  they  be  equally  divided."  And  by 
article  2,  s.  1,  clause  6,  of  the  constitution,  it 
is  provided  that  "  in  case  of  the  removal  of 
the  president  from  office,  or  of  his  death,  re 
signation,  or  inability  to  discharge  the  powers} 
and  duties  of  the  said  office,  the  same  shall 
devolve  on  the  vice-president." 

When  the  vice-president  exercises  the  office 
of  president,  he  is  called  the  President  of  the 
United  States. 


640  VILLEIN  REGARDANT 


VIGE  VERSA 


VICE  VERSA  (Lat.).   On  the  contrary  ; 
m  opposite  sides. 
VICECOMES  (Lat.).    The  sheriff. 
VICECOMES  NON  MISIT  BREVE 

(Lat.  the  sheriff  did  not  send  the  writ).  An 
entry  made  on  the  record  when  nothing  has 
been  done  by  virtue  of  a  writ  which  has  been 
directed  to  the  sheriff. 

VICINAGE.  The  neighborhood;  the 
venue. 

VICINETUM  (Lat.).  The  neighborhood ; 
vicinage;  the  venue.    Coke,  Litt.  158  b 

VICONTIEL.    Belonging  to  the  sheriff. 

VIDELICIT  (Lat.).  A  Latin  adverb,  sig- 
nifying to  wit,  that  is  to  say,  namely  ;  scilicet. 
This  word  is  usually  abbreviated  viz. 

The  office  of  the  videlicet  is  to  mark  that 
the  party  does  not  undertake  to  prove  the 
precise  circumstances  alleged  ;  and  in  such 
cases  he  is  not  required  to  prove  them. 
Stephen,  Plead.  309;  7  Cow.  N.  Y.  42 ;  4 
Johns.  N.  Y.  450 ;  3  Term,  67,  643 ;  8  Taunt. 
107 ;  Greenleaf,  Ev.  g  60 ;  1  Litt.  Ky.  209.  See 
Yelv.  94 ;  3  Saund.  291  a,  note ;  4  Bos.  &  P. 
465  ;  Dane,  Abr.  Index ;  2  Pick.  Mass.  214, 
222 ;  16  Mass.  129. 

VIEW.    Inspection  ;  a  prospect. 

Every  one  is  entitled  to  a  view  frc«ii  his 
premises ;  but  he  thereby  acquires  no  right 
over  the  property  of  his  neighbors.  The  erec- 
tion of  buildings  which  obstruct  a  man's  view, 
therefore,  is  not  unlawful,  and  such  buildings 
cannot  be  considered  a  nuisance.  9  Coke,  58 
b.    See  Ancient  Lights;  Nuisance. 

VIEW,  DEMAND  OF.    In  Practice. 

In  most  real  and  mixed  actions,  in  order  to 
ascertain  the  identity  of  land  claimed  with 
that  in  the  tenant's  possession,  the  tenant  is 
allowed,  after  the  demandant  has  counted,  to 
demand  a  view  of  the  land  in  question,  or,  if 
the  subject  of  claim  be  rent,  or  the  like,  a 
view  of  the  land  out  of  which  it  issues.  Viner, 
Abr.  View;  Comyns,  Dig.  View;  Booth,  37; 
2  Saund.  45  b;  1  Reeve,  Hist.  Eng.  Law,  435. 

This  right,  however,  is  confined  to  real  or  mixed 
actions;  for  in  personal  actions  the  vijew  does  not 
lie.  In  the  action  of  dower  under  nihil  habet,  it  has 
been  much  questioned  whether  the  view  be  de- 
mandable  or  not,  2  Saund.  44,  n.  4;  and  there  are 
other  real  and  mixed  actions  in  which  it  is  not 
allowed.  The  view  being  granted,  the  course  of 
proceeding  is  to  issue  a  writ  commanding  the  sherifiF 
to  cause  the  defendant  to  have  a  view  of  the  land. 
It  being  the  interest  of  the  demandant  to  expedite 
the  proceedings,  the  duty  of  suing  out  the  writ  lies 
upon  him,  and  not  upon  the  tenant;  and  when,  in 
obedience  to  its  exigency,  the  sherifiF  causes  view  to 
be  made,  the  demandant  is  to  show  to  the  tenant, 
in  all  ways  possible,  the  thing  in  demand,  with  its 
metes  and  bounds.  On  the  return  of  the  writ  into 
court,  the  demandant  must  count  de  novo, — that  is, 
declare  again,  Comyns,  Dig.  P^eacfer  (2  Y  3);  Booth, 
40  ;  and  the  pleadings  proceed  to  issue. 

This  proceeding  of  demanding  view  is,  in  the 
present  rarity  of  real  actions,  unknown  in  practice. 

VIEW  OF  FRANKPLEDGE.  In 
English  Law.  An  examination  to  see  if 
every  freeman  within  the  district  had  taken 
the  oath  of  allegiance  and  found  nine  freemen 


pledges  for  his  peaceable  demeanor.  1  Reeve^ 
Hist.  Eng.  Law,  7.  It  took  place,  originally, 
once  in  each  year,  after  Michaelmas,  and  subr 
sequently  twice,  after  Easter  and  Michaelmas, 
at  the  sheriff's  tourn  or  court-leet  at  that 
season  held.     See  Court-Leet;  Sheriff'? 

ToURN. 

VIEWERS.  Persons  appointed  by  the 
courts  to  see  and  examine  certain  matters  and 
make  a  report  of  the  facts,  together  with 
their  opinion,  to  the  court.  In  practice,  they 
are  usually  appointed  to  lay  out  roads,  and 
the  like.    See  Experts. 

VIGILANCE.  Proper  attention  in  pror 
per  time. 

The  law  requires  a  man  who  has  a  claim 
to  enforce  it  in  proper  time,  while  the  adverse 
party  has  it  in  his  power  to  defend  himself  j 
and  if  by  his  neglect  to  do  so  he  cannot 
afterwards  establish  such  claim,  the  maxim 
vigilantibus  non  dormientibus  leges  subser- 
viunt  acquires  full  force  in  such  case.  For 
example,  a  claim  not  sued  for  within  the 
time  required  by  the  acts  of  limitation  will 
be  presumed  to  be  paid  ;  and  the  mere  pos-  . 
session  of  corporeal  real  property  as  if  ii^i 
fee-simple,  and  without  admitting  any  other 
ownership  for  sixty  years,  is  a  suflScient  title 
against  all  the  world,  and  cannot  be  im- 
peached by  any  dormant  claim.  3  Black- 
stone,  Comm.  196,  n. ;  4  Coke,  116. 

VILL.  In  England  this  word  was  used 
to  signify  the  parts  into  which  a  hundred  or. 
wapentake  was  divided.  Fortescue,  de  Laud, 
c.  24.  See  Coke,  Litt.  115  b.  It  also  signi- 
fies •a  town  or  city.    Barrington,  Stat.  133. 

VILLAIN.  An  epithet  used  to  cast  con- 
tempt and  contumely  on  the  person  to  whom 
it  is  applied. 

To  call  a  man  a  villain  in  a  letter  written 
to  a  third  person  will  entitle  him  to  an  action 
without  proof  of  special  damages.  1  Bos.  & 
P.  331. 

VILLEIN  [vilis,  base,  or  villa,  estate). 
A  person  attached  to  a  manor,  who  was  sub- 
stantially in  the  condition  of  a  slave,  who 
performed  the  base  and  menial  work  upon 
the  manor  for  the  lord,  and  was,  generally,  a 
subject  of  property  and  belonging  to  him.  1 
Washburn,  Real  Prop.  26. 

The  feudal  villein  of  the  lowest  order,  un- 
protected as  to  property,  and  subject  to  the 
most  ignoble  services.  But  his  circumstances 
were  very  different  from  the  slave  of  the 
Southern  states,  for  no  person  was  in  the  eye 
of  the  law  a  villein,  except  as  to  his  master ; 
in  relation  to  all  other  persons  he  was  a  free- 
man. Littleton,  Ten.  ss.  189,  190 ;  Ilallam, 
View  of  the  Middle  Ages,  vol.  I,  122,  124 ; 
vol.  2,  199. 

VILLEIN  IN  GRASS.  A  villein  an- 
nexed to  the  person  of  the  lord,  and  trans- 
ferable by  deed  from  one  person  to  another. 
Littleton,  g  181. 

VILLEIN  REGARDANT.    A  yiUein 

annexed  to  the  manor  or  land ;  a  serf. 


VILLEIN  SOCAGE  641 


VIRGINIA 


VILLEIN  SOCAGE  (Sax.  soc,  free,  or 
Lat.  soca,  a  plough).  The  villeins,  from 
living  on  one  piece  of  land,  came  at  last  to 
be  allowed  to  hold  it  by  tenure  of  villeinage, 
e.g.  uncertain  menial  services.  These  ser- 
vices at  last  became  fixed  ;  the  tenure  was 
then  called  villein  socage.  1  Washburn,  Real 
Prop.  26. 

VILLENOUS  JUDGMENT.  In  Old 
English  Law.  A  judgment  given  by  the 
common  law  in  attaint,  or  in  cases  of  con- 
spiracy. 

Its  eflfects  were  to  make  the  object  of  it 
lose  his  liberam  legem  and  become  infamous. 
He  forfeited  his  goods  and  chattels,  and  his 
lands  during  life  ;  and  this  barbarous  judg- 
ment further  required  that  his  lands  should 
be  wasted,  his  houses  razed,  his  trees  rooted 
up,  and  that  his  body  should  be  cast  into 
prison.  He  could  not  be  a  juror  or  wit- 
ness. Burr.  996, 1027 ;  4  Blackstone,  Comm. 
136. 

VINCULO   MATRIMONIL     See  A 

Vinculo  Matrimonii  ;  Divorce. 

VINDICATION.    In  Civil  Law.  The 

claim  made  to  property  by  the  owner  of  it. 
1  Bell,  Comm.  281,  5th  ed.    See  Revendica- 

TION. 

VIOLATION.  An  act  done  unlawfully 
and  with  force.  In  the  English  statute  of 
25  Edw.  III.  St.  5,  c.  2,  it  is  declared  to  be 
high  treason  in  any  person  who  shall  violate 
the  king's  companion  ;  and  it  is  equally  high 
treason  in  her  to  sufi'er  willingly  such  viola- 
tion. This  word  has  been  construed  under 
this  statute  to  mean  carnal  knowledge.  3 
Inst.  9;  Bacon,  Abr.  Treason  (E). 

VIOLENCE.  The  abuse  of  force.  Th6orie 
des  Lois  criminelles,  32.  That  force  which 
is  employed  against  common  right,  against 
the  laws,  and  against  public  liberty.  Merlin, 
Rupert. 

In  cases  of  robbery,  in  order  to  convict  the 
accused  it  is  requisite  to  prove  that  the  act 
was  done  with  violence ;  but  this  violence  is 
not  confined  to  an  actual  assault  of  the  per- 
son, by  beating,  knocking  down,  or  forcibly 
wresting  from  him  ;  on  the  contrary,  what- 
ever goes  to  intimidate  or  overawe,  by  the 
apprehension  of  personal  violence  or  by  fear 
of  life,  with  a  view  to  compel  the  delivery  of 
property,  equally  falls  within  its  limits.  Ali- 
son, Pr.  Cr.  Law  of  Scotl.  228;  4  Binn. 
Penn.  379 ;  2  Russell,  Crimes,  61 ;  1  Hale, 
PI.  Cr.  553.  When  an  article  is  merely 
snatched,  as,  by  a  sudden  pull,  even  though 
a  momentary  force  be  exerted,  it  is  not  such 
violence  as  to  constitute  a  robbery.  2  East, 
PI.  Cr.  702 ;  2  Russell,  Crimes,  68 ;  Dig.  4. 
2.  2.  3. 

VIOLENT  PROFITS.  In  Scotch 
Law.  The  gains  made  by  a  tenant  holding 
over  are  so  called.    Erskine,  Inst.  2.  6.  54. 

VIOLENTLY.     In   Pleading.  This 

word  was  formerly  supposed  to  be  necessary 
in  an  indictment,  in  order  to  charge  a  robbery 
from  the  person ;  but  it  has  been  holden  un- 
VoL.  II.— 41 


necessary.  2  East,  PI.  Cr.  784;  1  Cliitty, 
Crim.  Law,  '^244.  The  words  "  f(3loniously 
and  against  the  will,"  usually  introduced  in 
such  indictments,  seem  to  be  sufficient.  It  ia 
usual,  also,  to  aver  n  jruUing  in  fear;  th(mgh 
this  does  not  seem  to  be  requisite. 

VIRGA.  An  obsolete  word,  which  signi 
fies  a  rod  or  stalf,  such  as  sherifi's,  bailiffs, 
and  constables  carry  as  a  badge  or  ensign  of 
their  office. 

VIRGINIA.  One  of  the  thirteen  origi- 
nal United  States. 

2.  The  name  was  given  in  honor  of  queen  Eliza- 
beth, the  virgin  queen  of  England.  In  1600,  James 
I.  granted  letters  patent  for  planting  colonies  in 
Virginia.  These  grants  in  the  letters  patent  era- 
braced  a  country  extending  along  the  sea-coast 
between  .34°  and  45°  north  latitude,  and  were  made 
to  two  companies :  one  of  thcni  to  Sir  Thomas 
Gates  and  others, — named  the  First  Colony  of  Vir- 
ginia,— the  other  "to  Tho :  Ilariham  and  others, 
of  the  town  of  Plimouth,"  which  was  called  the 
Second  Colony  of  Virginia.  The  government  pre- 
scribed for  these  colonies  was  that  each  should 
have  a  council,  consisting  of  thirteen  pcrsonj*,  ap- 
pointed by  the  king,  to  govern  and  order  all  mat- 
ters according  to  laws  and  instructions  given  thenj 
by  the  king.  There  was  also  a  council  in  England, 
of  thirteen  persons,  appointed  by  the  crown  to 
have  the  supervising,  managing,  and  direction  of 
all  matters  that  should  concern  the  government  of 
the  colonies.  This  charter  was  followecl  by  royal 
instructions  dated  the  20th  November,  1606.  Seel 
Hening,  Va.  Stat.  76,  571.  Under  this  charter  a 
settlement  was  made  at  Jamestown  in  1607,  by  the 
first  colony.  Upon  the  petition  of  the  company, 
a  new  charter  was  granted  by  king  Jaiiies,  on 
the  23d  May,  1609,  to  the  treasurer  and  company 
of  the  first  (or  southern)  colony,  for  the  further 
enlargement  and  explanation  of  the  privileges  of 
that  company.    1  Hening,  Stat.  80. 

3.  This  charter  granted  to  the  company  in  abso- 
lute property  the  lands  extending  from  Cape  ox 
Point  Comfort  (at  the  mouth  of  James  River) 
along  the  sea-coast  two  hundred  miles  to  the  north- 
ward, and  from  the  same  point  along  the  sea-coast 
two  hundred  miles  to  the  southward,  and  up  into 
the  land  throughout,  from  sea  to  sea,  west  and 
northwest,  and,  also,  all  islands  lying  within  one 
hundred  miles  of  the  coast  of  both  seas  of  the  pre- 
cinct aforesaid.  A  new  council  in  England  was 
established,  with  power  to  the  company  to  fill  all 
vacancies  therein  by  election. 

On  the  12th  of  March,  16li,  king  James  granted 
a  third  charter  to  the  first  company,  enlarging  its 
domain  so  as  to  include  all  islands  within  three 
hundred  leagues  from  its  borders  on  the  coasts  of 
either  sea.  In  1612,  a  considerable  proportion  of 
lands  previously  held  and  cultivated  in  common 
was  divided  into  three-acre  lots  and  a  lot  appropri- 
ated in  absolute  right  to  each  individual.  Not  lung 
afterwards,  fifty  acres  were  surveyed  and  delivered 
to  each  of  the  colonists.  In  1618,  by  a  change  of 
the  constitution  of  the  colony,  burgesses  elected  by 
the  people  were  made  a  branch  of  the  legislature. 
Up  to  this  time  the  settlement  had  been  gradually 
increasing  in  number,  and  in  1624,  upon  a  writ  of 
qxio  warranto,  a  judgment  was  obtained  dissolving 
the  company  and  re-vesting  its  powers  in  the  crown. 
In  1651  the  plantation  of  Virginia  came,  by  formal 
act,  under  the  obedience  and  government  of  the  com- 
monwealth of  England,  the  colony,  however,  still  re- 
taining its  former  constitution.  A  new  charter  wag 
to  be  granted,  and  many  important  privileges  were 
secured.  In  1680  a  change  was  made  in  the  colonial 
government,  divesting  the  burgesses  of  the  exercise 
of  judicial  power  in  the  last  resort,  as  bad  before 


VIRGINIA 


642 


VIRGIJ^IA 


that  time  been  practised  by  that  body,  and  allow- 
ing appeals  from  judgments  of  the  general  courts, 
composed  of  the  governor  and  council,  to  the  king 
in  council,  where  the  matter  in  controversy  exceeded 
the  value  of  £300  sterling.  Marshall,  Col.  163 ;  1 
Campb.  337. 

4,  By  the  treaty  of  1763,  all  the  conquests  made 
by  the  French  in  North  America,  including  the 
territory  east  of  the  Mississippi,  were  ceded  to 
Great  Britain. 

The  constitution  of  the  colonial  government  of 
Virginia  seems  never  to  have  been  precisely  fixed 
and  accurately  adjusted  in  any  written  memorials 
that  are  now  accessible.  The  powers  exercised  by 
the  burgesses  varied  at  different  periods.  The 
periods  of  their  election  and  the  length  of  time  they 
continued  in  office  it  is  difficult  to  ascertain  from  the 
records  of  colonial  history,  and  the  qualifications 
of  voters  to  elect  them  varied  much  at  diflerent 
periods.  See  Rev.  Code,  38,  Leigh's  note;  2  Burk, 
App.  1.  On  the  12th  of  June,  1776,  was  unani- 
mously adopted  by  the  convention  a  declaration  of 
rights  pertaining  to  the  people,  as  a  basis  and 
foundation  of  government  was  adopted  by  the  con- 
vention. This  declaration  still  remains  a  part  of 
the  Virginia  Code.  On  the  29th  of  June,  1776, 
Virginia  adopted  a  constitution  by  a  unanimous 
vote  of  the  convention.  The  Articles  of  Confede- 
ration were  not  finally  adopted  by  congress  until 
the  15th  ot  November,  1777,  and  were  adopted, 
subject  to  the  ratification  of  the  states.  These 
articles  were  laid  before  the  Virginia  Assembly 
on  the  9th  of  December,  1777,  and  on  the  15th 
unanimously  assented  to.  In  compliance  with  the 
recommendation  of  congress,  by  a  resolution  of 
September  6,  1780,  Virginia,  by  an  act  passed  the 
2d  of  January,  1781,  proffered  a  cession  of  her 
western  lands.  The  cession  was  finally  completed 
and  accepted  in  1784.  Virginia  as  early  as  1785 
prepared  to  erect  Kentucky  into  a  state,  and  this 
was  finally  effected  in  June,  1792. 

5.  The  state  constitution  framed  and  adopted  by 
Virginia  in  1776  gave  way  to  a  second  that  was  framed 
in  convention,  adopted  by  the  people,  and  went  into 
operation  in  1830.  This  seconi  constitution  has 
been  superseded  by  a  third,  which  was  framed  in 
convention  of  1851,  and,  being  adopted  by  the 
people,  took  effect  in  1852.  Under  this  constitu- 
tion, every  white  male  citizen  of  the  commonwealth, 
of  the  age  of  twenty-one  years,  who  has  been  a 
resident  of  the  state  for  two  years  and  of  the 
county,  city,  or  town  where  he  offers  to  vote  for 
twelve  months  next  preceding  an  election,  and  no 
other  person,  shall  be  qualified  to  vote  for  members 
of  the  general  assembly  and  all  officers  elective  by 
the  people ;  but  no  person  in  the  military,  naval, 
or  marine  service  of  the  United  States  shall  be 
deemed  a  resident  of  this  state  by  reason  of  being 
stationed  therein.  And  no  person  shall  have  the 
right  to  vote  who  is  of  unsound  mind,  or  a  pauper, 
or  a  non-commissioned  officer,  soldier,  seaman,  or 
marine,  in  the  service  of  the  United  States,  or  who 
has  been  convicted  of  bribery  in  an  election,  or  of 
any  infamous  offence. 

Places  of  voting  are  to  be  established,  and  no 
person  is  to  be  allowed  to  vote  except  in  the  town 
or  city  and  ward  in  which  he  resides.  Such  voters 
are  exempt  from  military  duty,  except  in  time  of 
war  or  public  danger,  from  working  upon  the 
public  roads,  from  attendance  upon  court  in  any 
capacity,  and  from  arrest  under  civil  process,  during 
the  time  of  holding  any  election  at  which  he  is 
entitled  to  vote,  and  in  going  to  and  returning 
from  them.  Votes  are  to  be  given  openly,  or  viva 
voce;  except  that  dumb  persons  vote  by  ballot. 
Const,  art.  3. 

The  legislative,  executive,  and  judicial  depart- 
ments are  to  be  separate  and  distinct,  and  no  per- 
»on  may  exercise  the  functions  of  any  two  of  them. 


except  that  justices  of  the  peace  are  eligible  m 
members  of  either  house  of  assembly. 

6.  The  Legislature  is  composed  of  two  branches, 
the  house  of  delegates  and  the  senate,  which  to- 
gether are  called  the  general  assembly  of  Vir- 
ginia. 

The  members  of  both  houses  are  apportioned 
among  the  towns  nomination.  The  sessions  of  the 
assembly  are  to  continue  ninety  days,  but  may  be 
prolonged  thirty  days  by  the  concurrence  of  threu- 
tifths  of  the  members  of  both  branches.  They  aie 
to  meet  every  two  years  only,  except  when  called 
together  by  the  governor.  The  two  houses  elect, 
by  a  joint  vote,  a  secretary  of  the  commonwealth, 
treasurer,  and  auditor  of  the  public  accounts.  All 
other  officers  are  to  be  elected  by  the  people.  All 
officers,  whether  elected  or  appointed,  are  to  dis- 
charge their  duties  after  the  expiration  of  their 
terms  of  service,  till  their  successors  are  quali- 
fied. The  house  of  delegates  consists  of  one- 
hundred  and  fifty-two  members,  chosen  biennially. 
Any  person  may  be  elected  a  delegate  who  has 
attained  the  age  of  twenty-one  years  and  shall  b© 
actually  a  resident  within  the  city,  county,  town, 
or  election  district,  qualified  by  the  constitution  to 
vote  for  members  of  the  general  assembly ;  but  no 
person  holding  a  lucrative  office,  no  minister  of  the 
gospel,  or  priest  of  any  religious  denomination,  no 
salaried  officer  of  any  banking  corporation  or  com- 
pany, and  no  attorney  for  the  commonwealth,  can 
be  elected  a  member  of  either  house  of  assembly. 
The  removal  of  any  person  elected  to  either  branch 
of  the  general  assembly  from  the  county,  city, 
town,  or  district  for  which  he  was  elected,  shall 
vacate  his  office.    Art.  4,  s.  5,  §  7. 

The  senate  consists  of  fifty  members,  elected  for 
the  term  of  four  years ;  upon  the  assembling  of 
the  senators  so  elected  they  were  divided  into  two 
equal  classes  numbered  by  lot.  The  term  of  service 
of  the  senators  of  the  first  class  expired  with  that 
of  the  delegates  elected  under  the  constitution ; 
and  of  the  senators  of  the  second  class,  at  the 
expiration  of  two  years  thereafter;  and  this  alter- 
nation continues,  so  that  one-half  of  the  senators 
are  chosen  every  second  year.    Art.  4,  ^  3. 

Any  person  may  be  elected  a  senator  who  has 
attained  the  age  of  twenty-five  years  and  shall  be 
actually  a  resident  within  the  district  and  qualified 
to  vote  for  members  of  the  general  assembly.  The 
other  qualifications  are  the  same  as  those  for  dele- 
gates.   Art.  4,  s.  5,  §  7. 

T.  The  Chief  Executive  Power  of  the  common- 
wealth is  vested  in  a  governor.  He  holds  his  office 
for  the  term  of  four  years,  to  commence  on  the 

 day  of  next  succeeding  his  election,  and 

is  ineligible  to  the  same  office  for  the  term  next 
succeeding  for  which  he  was  elected,  and  to  any 
other  office  during  his  term  of  service.  He  is 
elected  by  the  voters  at  the  times  and  places  of 
choosing  members  of  the  general  assembly.  Re- 
turns of  the  election  are  to  be  transmitted  under 
seal  by  the  proper  officer  to  the  secretary  of  the 
commonwealth,  who  is  to  deliver  them  to  the 
speaker  of  the  house  of  delegates  on  the  first  day 
of  the  next  session  of  the  general  assembly.  The 
speaker  of  the  house  of  delegates  must  within  one 
week  thereafter,  in  the  presence  of  a  majority  of 
the  senate  and  house  of  delegates,  open  the  said 
returns;  and  the  votes  are  then  counted.  The  per- 
son having  the  highest  number  of  votes  is  to  be 
declared  elected  ;  but  if  two  or  more  shall  have  the 
hifrhest  and  an  equal  number  of  votes,  one  of 
them  is  to  be  chosen  governor  by  the  joint  vote  of 
the  two  houses  of  the  general  assembly.  Contested 
elections  for  governor  are  decided  by  a  like  vote; 
and  the  mode  of  proceeding  in  such  cases  is  pre- 
scribed by  law. 

8.  No  person  is  eligible  to  the  office  of  governor 
unless  he  has  attained  the  age  of  thirty  years,  is  a 


VIRGINIA 


643 


VIRGINIA 


native  citizen  of  the  United  States,  and  has  been  a 
citizen  of  Virginia  for  five  years  next  preceding  his 
election. 

The  governor  must  reside  at  the  seat  of  govern- 
ment, receives  five  thousand  dollars  for  each  year 
of  his  service,  and,  while  in  ofiice,  is  to  receive  no 
other  emolument  from  this  or  any  other  govern- 
ment. 

He  is  to  take  care  that  the  laws  be  faithfully 
executed  ;  communicate  to  the  general  assembly,  at 
every  session,  the  condition  of  the  commonwealth  ; 
recommend  to  their  consideration  such  measures  as 
he  may  deem  expedient ;  and  convene  the  general 
assembly,  on  application  of  a  majority  of  the  mem- 
bers of  both  houses  thereof,  or  when  in  his  opinion 
the  interest  of  the  commonwealth  may  require  it. 
He  is  commander-in-chief  of  the  land  and  naval 
forces  of  the  state;  has  power  to  embody  the  militia 
to  repel  invasion,  suppress  insurrection,  and  enforce 
the  execution  of  the  laws ;  conduct,  either  in  per- 
son or  in  such  other  manner  as  is  prescribed  by 
law,  all  intercourse  with  other  and  foreign  states  ; 
and,  during  the  recess  of  the  general  assembly, 
fill  pro  tempore  all  vacancies  in  those  ofiices  for 
which  the  constitution  and  laws  make  no  provision  : 
but  his  appointments  to  such  vacancies  are  by 
commissions  to  expire  at  the  end  of  thirty  days 
after  the  commencement  of  the  next  session  of  the 
general  assembly.  He  has  power  to  remit  fines  and 
penalties  in  such  cases  and  under  such  rules  and 
regulations  as  may  be  prescribed  by  law ;  and, 
except  when  the  prosecution  has  been  carried  on 
by  the  house  of  delegates,  or  the  law  shall  other- 
wise particularly  direct,  to  grant  reprieves  and 
pardons  after  conviction,  and  to  commute  capital 
punishment.  But  he  must  communicate  to  the 
general  assembly,  at  each  session,  the  particulars 
of  every  case  of  fine  or  penalty  remitted,  of  re- 
prieve or  pardon  granted,  and  of  punishment  com- 
muted, with  his  reasons  for  remitting,  granting,  or 
commuting  the  same. 

He  may  require  information  in  writing  from  the 
oflnicers  in  the  executive  department  upon  any  sub- 
ject relating  to  the  duties  of  their  respective  ofiices, 
and  may  also  require  the  opinion  in  writing  of  the 
attorney-general  upon  any  question  of  law  con- 
nected with  his  ofiicial  duties. 

Commissions  and  grants  run  in  the  name  of  the 
Commonwealth  of  Virginia,  and  must  be  attested 
by  the  governor,  with  the  seal  of  the  commonwealth 
annexed. 

A  Lieutenant-Oovernor  is  elected  itt  the  same  time, 
and  for  the  same  term,  as  the  governor;  and  his 
qualifications  and  the  manner  of  his  election  in  all 
respects  are  the  same. 

In  case  of  the  removal  of  the  governor  from 
office,  or  of  his  death,  failure  to  qualify,  resigna- 
tion, or  removal  from  the  state,  or  inability  to  dis- 
charge the  powers  and  duties  of  the  office,  the  said 
office,  with  its  compensation,  devolves  upon  the 
lieutenant-governor;  and  the  general  assembly  is 
to  provide  hy  law  for  the  discharge  of  the  execu- 
tive functions  in  other  necessary  cases. 

The  lieutenant-governor  is  president  of  the  senate, 
but  has  no  vote,  and,  while  acting  as  such,  receives 
a  compensation  equal  to  that  allowed  to  the  speaker 
of  the  house  of  delegates.    Art.  5,  1-10. 

9»  The  Judicial  Powers  are  regulated  by  the  sixth 
article  of  the  constitution. 

There  are  a  supreme  court  of  appeals,  district 
courts,  and  circuit  courts. 

The.  state  is  divided  into  twenty-one  judicial 
circuits,  ten  districts,  and  five  sections. 

The  general  assembly  may,  at  intervals  of  eight 
years  from  the  adoption  of  the  constitution,  re- 
arrange the  circuits,  districts,  and  sections,  and 
place  anj  number  of  circuits  in  a  district,  and  of 
districts  in  a  section ;  but  each  circuit  must  be 
Altogether  in  one  district,  and  each  district  in  one 


section;  and  there  must  not  be  les4  than  two  dls- 
tricts  and  four  circuits  in  a  section ;  and  the 
number  of  sections  shall  not  be  increased  or  di- 
minished. 

The  Supreme  Court  of  Appeals  consists  of  five 
judges,  elected  one  for  each  section  by  the  voters 
of  that  section,  to  serve  for  twelve  3ears,  unless 
sooner  removed  under  the  constitution.  The  judges 
must  be  thirty-five  years  old  at  the  time  of  their 
election,  and  reside  in  the  section  for  which  they  are 
elected  during  their  continuance  in  office.  Any  three 
of  the  five  may  hold  court.  The  court  has  appel- 
late jurisdiction  only,  except  in  cases  of  habeas 
corpus,  mandamus,  and  prohibition.  It  does  not 
have  jurisdiction  in  civil  causes  where  the  matter 
in  controversy,  exclusive  of  costs,  is  less  in  value 
or  amount  than  five  hundred  dollars,  except  in 
controversies  concerning  the  title  or  boundaries  of 
land,  the  probate  of  a  will,  the  appointment  or 
qualification  of  a  personal  representative,  guardian, 
committee,  or  curator,  or  concerning  a  mill,  load, 
way,  ferry,  or  landing,  or  the  right  of  a  corpora- 
tion or  of  a  county  to  levy  tolls  or  taxes ;  and 
except  in  cases  of  habeas  corpus,  mandamus,  and 
prohibition,  and  cases  involving  freedom  or  the 
constitutionality  of  a  law. 

Special  courts  of  appeals,  to  consist  of  not  less 
than  three  nor  more  than  five  judges,  may  be 
formed  of  the  judges  of  the  supreme  court  of 
appeals,  and  of  the  circuit  courts,  or  any  of  them, 
to  try  any  cases  remaining  on  the  dockets  of  the 
present  court  of  appeals  when  the  judges  thereof 
cease  to  hold  their  offices ;  or  to  try  any  cases 
which  may  be  on  the  dockets  of  the  supreme  court 
of  appeals  established  by  this  constitution,  in  re- 
spect to  which  a  majority  of  the  judges  of  said 
court  may  be  so  situated  as  to  make  it  improper  for 
them  to  sit  on  the  hearing  thereof. 

When  a  judgment  or  decree  is  reversed  or  af- 
firmed by  the  supreme  court  of  appeals,  the  rea- 
sons therefor  must  be  stated  in  writing,  and  pre- 
served with  the  record  of  the  case. 

lO.  A  Circuit  CouH  is  to  be  held  at  least  twice  a 
year  in  every  county  and  corporation  thereof  wherein 
a  circuit  court  is  now  or  may  hereafter  be  esta- 
blished, by  a  judge  elected  for  the  circuit  by  the 
voters  thereof  for  the  term  of  eight  years,  unless 
sooner  removed,  etc.  He  must  have  like  qualifica- 
tions as  to  age  and  residence  as  the  judges  of 
sections.  But  the  judges  in  the  same  district  may 
be  required  or  authorized  to  hold  the  courts  of 
their  respective  circuits  alternately,  and  a  judge  of 
one  circuit  to  hold  a  court  in  any  other  circuit. 

A  District  Court  must  be  held  at  least  once  a 
year  in  every  district,  by  the  judges  of  the  circuits 
constituting  the  section  and  the  judges  of  the 
supreme  court  of  appeals  for  the  section  of  which 
the  district  forms  a  part,  any  three  of  whom  may 
hold  a  court ;  but  no  judge  shall  sit  or  decide  upon 
any  appeal  taken  from  his  own  decision.  The 
judge  of  the  supreme  court  of  appeals  of  one  sec- 
tion may  sit  in  the  district  courts  of  another  sec- 
tion, when  required  or  authorized  by  law  to  do  so. 

This  court  does  not  have  original  jurisdiction 
except  in  cases  of  habeas  corpus,  mandamus,  and 
prohibition. 

Judges  are  commissioned  by  the  governfir.  receive 
fixed  and  adequate  salaries,  which  are  not  to  be 
diminished  during  their  continuance  in  office.  The 
salary  of  a  judge  of  the  supreme  court  of  appeals 
is  not  to  be  less  than  three  thousand  dollars,  and 
that  of  a  judge  of  a  circuit  court  not  less  than  two 
thousand  dollars  per  annum,  except  that  of  a  judge 
of  the  fifth  circuit,  which  is  not  to  be  less  than 
fifteen  hundred  dollars  per  annum ;  and  each  receives 
a  reasonable  allowance  for  necessary  travel.  No 
judge  during  his  term  of  service  can  hold  any 
other  office,  appointment,  or  public  trust;  and  the 
acceptance  thereof  vacates  his  judicial  office;  nor 


VIRILIA 


644  VIVARY 


is  he  during  such  term,  or  within  one  year  there- 
after, eligible  to  any  political  office.  No  election 
of  judge  can  be  held  within  thirty  days  of  the  time 
of  holding  any  election  of  electors  of  president 
and  vice-president  of  the  United  States,  of  mem- 
bers of  congress  or  of  the  general  assembly. 

11.  Judges  may  be  removed  from  office  by  a 
concurrent  vote  of  both  houses  of  the  general  as- 
sembly ;  but  a  majority  of  all  the  members  elected 
to  each  house  must  concur  in  such  vote;  and  the 
cause  of  removal  must  be  entered  on  the  jour- 
nal of  each  house.  The  judge  against  whom  the 
general  assembly  may  be  about  to  proceed  receives 
notice  thereof,  accompanied  by  a  copy  of  the  causes 
alleged  for  his  removal,  at  least  twenty  days  before 
the  day  on  which  either  house  of  the  general  as- 
sembly acts  thereupon. 

An  Attorney-General  is  elected  by  the  voters  of 
the  commonwealth  for  the  term  of  four  years,  at 
every  election  of  a  governor.  He  is  commissioned 
by  the  governor,  performs  such  duties  and  receives 
such  compensation  as  the  law  prescribes,  and  is 
removable  in  the  manner  prescribed  for  the  removal 
of  judges. 

Writs  run  in  the  name  of  the  Commonwealth  of 
Virginia,  and  are  attested  by  the  clerks  of  the 
several  courts.  Indictments  conclude  against  the 
peace  and  dignity  of  the  commonwealth. 

A  county  court  is  to  be  held  monthly  in  each 
county  of  the  commonwealth,  by  not  less  than 
three  nor  more  than  five  justices,  except  when  the 
law  requires  the  presence  of  a  greater  number. 
Each  county  is  laid  off  into  districts,  as  nearly 
equal  as  may  be  in  territory  and  population.  In 
each  district  there  are  elected,  by  the  voters  thereof, 
four  justices  of  the  peace,  who  are  to  be  com- 
missioned by  the  governor,  reside  in  their  respect- 
ive districts,  and  hold  their  office  for  the  term  of 
four  years.  The  justices  so  elected  choose  one  of 
their  own  body  to  be  the  presiding  justice  of  the 
county  court,  and  whose  duty  it  is  to  attend  each 
term  of  said  court.  The  other  justices  are  classi- 
fied by  law  for  the  performance  of  their  duties  in 
court. 

The  justices  receive  for  their  services  in  court  a 
per  diem  compensation,  ascertained  by  law  and 
paid  out  of  the  county  treasury,  and  do  not  re- 
ceive any  fee  or  emolument  for  other  judicial  ser- 
vices. 

VIRILIA  (Lat.).  The  privy  members  of 
a  man.    Bracton,  lib.  3,  p.  144. 

VIRTUTE  OFFICII  (Lat.).  By  virtue 
of  his  office.  A  sheriff,  a  constable,  and  some 
other  officers  may  virtute  officii  apprehend  a 
man  who  has  been  guilty  of  a  crime  in  their 
presence. 

VIS  (Lat.  force).  Any  kind  of  force, 
violence,  or  disturbance  relating  to  a  man's 
person  or  his  property. 

VIS  IMPRESSA  (Lat.).  Immediate 
force ;  original  force.  This  phrase  is  applied 
to  cases  of  trespass  when  a  question  arises 
whether  an  injury  has  been  caused  by  a  direct 
force  or  one  which  is  indirect.  When  the 
original  force,  or  vis  impressa,  had  ceased  to 
act  before  the  injury  commenced,  then  there 
is  no  force,  the  effect  is  mediate,  and  the 
proper  remedy  is  trespass  on  the  case. 

When  the  injury  js  the  immediate  conse- 
quence of  the  force,  or  vis  proxima,  trespass 
vi  et  armis  lies.  3  Bouvier,  Inst.  n.  3483  ;  4 
id.  n.  3583. 

VIS  MAJOR  (Lat.).  A  superior  force. 
In  law  it  signifies  inevitable  accident. 


This  term  is  used  in  the  civil  law  in  nearly 
the  same  way  that  the  words  act  of  God  {q.  v.) 
are  used  in  the  common  law.  Generally,  no 
one  is  responsible  for  an  accident  which  arises 
from  the  vis  major ;  but  a  man  may  be  so 
where  he  has  stipulated  that  he  would,  and 
when  he  has  been  guilty  of  a  fraud  or  deceit. 
2  Kent,  Comm.  448  ;  Pothier,  Prgt  a  Usage, 
n.  48,  n.  CO ;  Story,  Bailm.  ^  25. 

VISA.  In  Civil  Law.  The  formula 
put  upon  an  act ;  a  register ;  a  commercial 
book,  in  order  to  approve  of  it  and  authenti- 
cate it. 

VISCOUNT  (Lat.  vice-comes).  This  name 
was  made  use  of  as  an  arbitrary  title  of 
honor,  without  any  office  pertaining  to  it,  by 
Henry  VI.  for  the  first  time.  The  sheriff  or 
earl's  deputy  holds  the  office  of  vice-comes, 
of  which  viscount  is  a  translation,  but  used, 
as  we  have  just  seen,  in  a  different  sense. 
The  dignity  of  a  viscount  is  next  to  an  earl. 
1  Sharswood,  Blackst.  Comm.  397. 

VISITATION.  The  act  of  examining 
into  the  affairs  of  a  corporation. 

The  power  of  visitation  is  applicable  only 
to  ecclesiastical  and  eleemosynary  corpora- 
tions. 1  Blackstone,  Comm.  480  ;  2  Kyd, 
Corp.  174.  The  visitation  of  civil  corpora- 
tions is  by  the  government  itself,  through 
the  medium  of  the  courts  of  justice.  See  2 
Kent,  Comm.  240. 

VISITATION  BOOKS.  Compilations 
made  out  or  collected  by  the  heralds  in  the 
circuits  which  their  commissions  authorized 
them  to  make,  for  the  purpose  of  inquiring 
into  the  state  of  families  and  registering 
marriages  and  descents  which  were  verified 
to  them  by  oath.  They  are  good  evidence 
of  pedigree.  3  Sharswood,  Blackst.  Comm. 
105. 

VISITER.  An  inspector  of  the  govern- 
ment, of  corporations,  or  bodies  politic.  1 
Blackstone,  Cpmm.  482.  See  Dane,  Abr. 
Index  ;  7  Pick.  Mass.  303  ;  12  id.  244. 

VISNE.  The  neighborhood;  a  neigh- 
boring place ;  a  place  near  at  hand ;  the 
venue. 

Formerly  the  visne  was  confined  to  the  imme- 
diate neighborhood  where  the  cause  of  action  arose, 
and  many  verdicts  were  disturbed  because  the 
visne  was  too  large,  which  becoming  a  great  griev- 
ance, several  statutes  were  passed  to  remedy  the 
evil.  The  21  James  I.  c.  13,  gives  aid  after  verdict, 
where  the  visne  is  partly  wrong, — that  is,  where  it 
is  warded  out  of  too  many  or  too  few  places  in  the 
county  named.  The  16  &  17  Charles  II.  c.  8, 
goes  further,  and  cures  defects  of  the  visne  wholly, 
so  that  the  cause  is  tried  by  a  jury  of  the  proper 
county.    See  Venue. 

VIVA  VOCE  (Lat.  with  living  voicoj. 
Verbally.  It  is  said  a  witness  delivers  his 
evidence  viva  voce  when  he  does  so  in  open 
court:  the  term  is  opposed  to  deposition.  It 
is  sometimes  opposed  to  ballot:  as,  the  people 
vote  by  ballot,  but  their  representatives  in  the 
legislature  vote  viva  voce. 

VIVARY.    A  place  where  living  things 


VIVUM  VADIUM 


645       VOLUNTARY  CONVEYANCE 


are  kept:  as,  a  park  on  land  ;  or,  in  the  water, 
as  a  pond. 

VIVUM  VADIUM.    Sec  Vadium  Vi- 

VUM. 

VOCATIO  IN  JUS  (Lat).   In  Roman 
Law.    According  to  the  practice  in  the  legis 
actionesoi'  the  Roman  law,  a  person  having  a 
demand  against  another  verbally  cited  him  to 
go  with  him  to  the  pra3tor ;  in  jus  eamus  ;  in 
jus  te  voco.    This  was  denominated  vocalio  in  j 
jus.    If  a  person  thus  summoned  refused  to  [ 
go,  he  could  be  compelled  by  force  to  do  so,  | 
unless  he  founday<Wex, — that  is,  uprociira-  I 
tor,  or  a  person  to  undertake  his  cause.  When 
the  parties  appeared  before  the  prastor,  they 
■went  through  the  particular  formalities  re- 
quired by  the  action  applicable  to  the  cause. 
If  the  cause  was  not  ended  the  same  day,  the 
parties  promised  to  appear  again  at  another 
day,  which  was  called  vadimonium.  See 
Matt.  V.  25. 

VOID.   That  which  has  no  force  or  effect. 
Contracts,  bequests,  or  legal  proceedings 
may  be  void.    See  those  titles. 

VOIDABLE.  That  which  has  some  force 
or  efiect,  but  which,  in  consequence  of  some 
inherent  quality,  may  be  legally  annulled  or 
avoided. 

As  a  familiar  example,  may  be  mentioned 
tho  case  of  a  contract  made  by  an  infant 
with  an  adult,  which  may  be  avoided  or  con- 
firnicd  by  the  former  on  his  coming  of  age. 
See  Parties. 

Such  contracts  are,  generally,  of  binding 
force  until  avoided  by  the  party  having  a 
right  to  annul  them.  Bacon,  Abr.  Infancy 
(I  3)  ;  Comyns,  Dig.  Enfant;  Fonblanque, 
Eq.  b.  1,  c.  2,  §  4,  note  h ;  3  Burr.  1794 ;  1 
Nels.  Ch.  55  ;  1  Atk.  Ch.  354;  Strange,  937; 
Perkins,  ^  12. 

VOIR  DIRE.  A  preliminary  examina- 
tion of  a  witness  to  ascertain  whether  he  is 
competent. 

2.  When  a  witness  is  supposed  to  have  an 
interest  in  the  cause,  the  party  against  whom 
he  is  called  has  the  choice  to  prove  such  inte- 
rest by  calling  another  witness  to  that  fact, 
or  he  may  require  the  witness  produced  to  be 
sworn  on  his  voir  dire  as  to  whether  he  has 
an  interest  in  the  cause  or  not;  but  the  party 
against  whom  he  is  called  will  not  be  allowed 
to  have  recourse  to  both  methods  to  prove  the 
witness's  interest.  If  the  witness  answers  he 
has  no  interest,  he  is  competent,  his  oath  being 
conclusive ;  if  he  swears  he  has  an  interest, 
he  will  be  rejected. 

3.  Though  this  is  the  rule  established 
beyond  the  power  of  the  courts  to  change,  it 
seems  not  very  satisfactory.  The  witness  is 
sworn  on  his  voir  dire  to  ascertain  whether 
he  has  an  interest  which  would  disqualify  him, 
because  he  would  be  tempted  to  perjure  him- 
self if  he  testified  when  interested.  But 
when  he  is  asked  whether  he  has  such  an 
interest,  if  he  is  dishonest  and  anxious  to 
be  sworn  in  the  case,  he  will  swear  falsely 
te  has  none,  and,  his  answer  being  conclusive, 


he  will  be  admitted  as  competent;  if,  on  tho 
contrary,  he  swears  truly  he  has  an  interest, 
when  he  knows  that  will  exclude  him,  he  is 
told  that  for  being  thus  honest  he  must  be 
rejected. 

See,  generally,  1  Dall.  Penn.  375 ;  Dane, 
Abr.  Index;  Interest. 

VOLUNTARY.  Willingly  ;  done  with 
one's  consent ;  negligently.    Wolff,  ^  5. 

To  render  an  act  criminal  or  tortious,  it 
must  be  voluntary.  If  a  man,  therefore,  kill 
another  without  a  will  on  his  part,  while 
engaged  in  the  performance  of  a  lawful  act, 
and  having  taken  proper  care  to  prevent  it, 
he  is  not  guilty  of  any  crime.  And  if  he 
commit  an  injury  to  the  person  or  property 
of  another,  he  is  not  liable  for  damages,  un- 
less the  act  has  been  voluntary  or  through 
negligence:  as,  when  a  collision  takes  place 
between  two  ships  without  any  fault  in 
either.  2  Dods.  Adm.  83  ;  3  Hagg.  Adm.  320, 
414. 

When  the  crime  or  injury  happens  in  the 
performance  of  an  unlawful  act,  the  party 
will  be  considered  as  having  acted  volun- 
tarily. 

VOLUNTARY  CONVEYANCE.  The 

transfer  of  an  estate  made  without  any  ade- 
quate consideration  of  value. 

2.  Whenever  a  voluntary  conveyance  is 
made,  a  presumption  of  fraud  properly  arises^ 
upon  the  statute  of  27  Eliz.  c.  4,  which  pre- 
sumption may  be  repelled  by  showing  that 
the  transaction  on  which  the  conveyance  was 
founded  virtually  contained  some  conven- 
tional stipulations,  some  compromise  of  inte- 
rests, or  reciprocity  of  benefits,  that  point 
out  an  object  and  motive  beyond  the  indul- 
gence of  affection  or  claims  of  kindred,  and 
not  reconcilable  with  the  supposition  of  in- 
tent to  deceive  a  purchaser.  But,  unless  so 
repelled,  such  a  conveyance,  coupled  with  a 
subsequent  negotiation  for  sale,  is  conclusive 
evidence  of  statutory  fraud.  5  Day,  Conn. 
223,  341 ;  1  Johns.  Cas.  N.  Y.  161 ;  4  Johns. 
Ch.  N.  Y.  450 ;  3  Conn.  450  ;  4  /ti.  1 ;  4  Johns. 
N.  Y.  536  ;  15  id.  14 ;  2  Munf.  Va.  363. 

3.  A  distinction  has  been  made  between 
previous  and  subsequent  creditors:  such  a 
conveyance  is  void  as  to  the  former,  but  not 
as  to  the  latter.  8  Wheat.  229  ;  3  Johns.  Ch. 
N.  Y.  481.  And  see  6  Ala.  n.  s.  506 ;  9  id. 
937  ;  10  Conn.  69  ;  1  Md.  Ch.  Dec.  507  ;  2 
Gray,  Mass.  447.  And  a  conveyance  by  a 
father  who,  though  in  debt,  is  not  in  embar- 
rassed circumstances,  who  makes  a  reason- 
able provision  for  a  child,  leaving  property 
sufficient  to  pay  his  debts,  is  not  per  se 
fraudulent.  4  Wheat.  27;  6  Watts  &  S. 
Penn.  97  ;  4  Vt.  389  ;  6  N  H.  67  ;  11  Leigh. 
Va.  137  ;  5  Ohio,  121. 

4.  By  the  statute  of  3  Henry  YII.  c.  4, 
all  deeds  of  gifts  of  goods  and  chattels  in 
trust  for  the  donor  were  declared  void ;  and 
by  the  statute  of  13  Eliz.  c.  5,  gifts  of  good 
and  chattels,  as  well  as  of  lands,  by  writing 
or  otherwise,  made  with  intent  to  delay, 
hinder,  and  defraud  creditors,  were  rendered 


VOLUNTARY  DEx»OSIT 


646 


VOYAGE 


void,  as  against  the  person  to  whom  such 
frauds  would  be  prejudicial. 

5.  The  principles  of  these  statutes,  though 
they  may  not  have  been  substantially  re- 
jnacted,  prevail  throughout  the  United  States. 
3  Johns.  N.  Y.  481 ;  1  Halst.  N.  J.  450  ;  5 
Cow.  N.  Y.  87  ;  8  Wheat.  229  ;  11  id.  199  ; 
12  Serg.  &  R.  Penn.  448  ;  1  Rawle,  Penn. 
231  ;  9  Mass.  390 ;  11  id.  421 ;  4  Me.  52  ;  2 
Pick.  Mass.  411;  4  M'Cord,  So.  C.  294;  1 
Const.  So.  C.  180 ;  2  Nott  &  M'C.  So.  C.  334 ; 
Coxe,  N.  J.  56;  Hare  &  Wall.  Sel.  Dec.  33 
-69. 

6.  As  between  the  parties,  such  convey- 
ances are,  in  general,  good.  2  Rand.  Va. 
384  ;  1  Johns.  Ch.  329,  336  ;  1  Wash.  C.  C. 
274.  And  when  it  has  once  been  executed 
and  delivered,  it  cannot  be  recalled,  even 
where  an  unmarried  man  executes  a  volun- 
tary trust-deed  for  the  benefit  of  future  chil- 
dren ;  nor  can  he  relieve  himself  from  a  pro- 
vision in  the  conveyance  to  the  trustee,  under 
which  the  income  of  the  trust  property  is  to 
be  paid  to  him  at  the  discretion  of  a  third 
person.  2  Mylne  &  K.  496.  See  2  Moll.  Ch. 
257. 

VOLUNTARY  DEPOSIT.  In  Civil 
Law.  A  deposit  which  is  made  by  the  mere 
consent  or  agreement  of  the  parties.  1  Bou- 
vier,  Inst.  n.  1054. 

VOLUNTARY  ESCAPE.  The  giving 
to  a  prisoner  voluntarily  any  liberty  not 
authorized  by  law.  5  Mass.  310;  2  Chipm. 
Vt.  11 ;  3  Harr.  &  J.  Md.  559 ;  2  Harr.  &  G. 
Md.  106  ;  2  Bouvier,  Inst.  n.  2332.  See  Es- 
cape. 

VOLUNTARY  JURISDICTION.  In 

Ecclesiastical  Law.  That  kind  of  juris- 
diction which  requires  no  judicial  proceed- 
ings :  as,  the  granting  letters  of  administra- 
tion and  receiving  the  probate  of  wills. 

VOLUNTARY  NONSUIT.  In  Prac- 
tice. The  abandonment  of  his  cause  by  a 
plaintiff,  and  an  agreement  that  a  judgment 
for  costs  be  entered  against  him.  3  Bouvier, 
Inst.  n.  3306. 

VOLUNTARY  SALE.  One  made  freely, 
without  constraint,  by  the  owner  of  the  thing 
sold.    1  Bouvier,  Inst.  n.  974. 

VOLUNTARY  WASTE.  That  which 
is  either  active  or  wilful:  in  contradistinction 
to  that  which  arises  from  mere  negligence, 
which  is  called  permissive  waste.  2  Bouvier, 
Inst.  2394  et  seq.    See  Waste. 

VOLUNTEERS.  Persons  who  receive 
a  voluntary  conveyance. 

It  is  a  general  rule  of  the  courts  of  equity, 
that  they  will  not  assist  a  mere  volunteer  who 
has  a  defective  conveyance.  Fonblanque,  Eq. 
b.  1,  c.  5,  8.  2;  and  see  the  note  there  for  some 
exceptions  to  this  rule.  See,  generally,  1 
Madd.  Ch.  271;  1  Supp.  to  Ves.  Ch.  320; 
2  id.  321 ;  Powell,  Mortg.  Index;  4  Bouvier, 
Inst.  nn.  3968-3973. 

In  Military  Law.  Persons  who,  in  time 
of  war,  offer  their  services  to  their  country 
and  maroh  in  its  defence. 


Their  rights  and  duties  are  prescribed  by 
the  municipal  laws  of  the  different  states. 
But  when  in  actual  service  they  are  subject 
to  the  laws  of  the  United  States  and  the 
articles  of  war. 

VOTE.    Suffrage;  the  voice  of  an  indi- 
vidual in  making  a  choice  by  many.  The  total ; 
number  of  voices  given  at  an  election :  as, 
the  presidential  vote. 

Votes  are  either  given  by  ballot  or  viva  voce: 
they  may  be  delivered  personally  by  the  voter 
himself,  or,  in  some  cases,  hj  proxy.  A  ma- 
jority of  the  votes  given  carries  the  questi  n 
submitted,  unless  in  particular  cases  when 
the  constitution  or  laws  require  that  there 
shall  be  a  majority  of  all  the  voters,  or  when 
a  greater  number  than  a  simple  majority  is 
expressly  required  :  as,  for  example,  in  the 
case  of  the  senate,  in  making  treaties  by  the 
president  and  senate,  two-thirds  of  the  sena- 
tors present  must  concur.    See  Angell,  Corp. 

When  the  votes  are  equal  in  number,  the 
proposed  measure  is  lost. 

VOTER.  One  entitled  to  a  vote;  an 
elector. 

VOUCHEE.  In  common  recoveries,  the 
person  who  is  called  to  warrant  or  defend  the 
title  is  called  the  vouchee.  2  Bouvier,  Inst, 
n.  2093. 

VOUCHER.  In  Accounts.  An  account- 
book  in  which  are  entered  the  acquittances 
or  warrants  for  the  accountant's  discharge. 
Any  acquittance  or  receipt  which  is  evidence 
of  payment,  or  of  the  debtor's  being  dis- 
charged. See  3  Halst.  N.  J.  299 ;  1  Mete. 
Mass.  218. 

In  Old  Conveyancing.  The  person  on 
whom  the  tenant  to  the  prcBcipe  calls  to  defend 
the  title  to  the  land,  because  he  is  supposed 
to  have  warranted  the  title  to  him  at  the  time 
of  the  original  purchase. 

The  person  usually  employed  for  this  pur-^ 
pose  is  the  crier  of  the  court,  who  is  there- 
fore called  the  common  voucher.  See  Cruise,  • 
Dig.  tit.  36,  c.  3,  s.  1 ;  22  Yiner,  Abr.  26 ; 
Dane,  Index  ;  and  see  Recovery. 

VOUCHER  TO  WARRANTY.  The 
calling  one  who  has  warranted  lands,  by  the 
party  warranted,  to  come  and  defend  the  suit 
for  him.    Coke,  Litt.  101  b. 

VOYAGE.    In  Maritime  Law.  The 

passage  of  a  ship  upon  the  seas  from  one 
port  to  another,  or  to  several  ports. 

2.  Every  voyage  must  have  a  terminus  a 
quo  and  a  terminus  ad  quern.  When  the 
insurance  is  for  a  limited  time,  the  two  ex- 
tremes of  that  time  are  the  tei^mini  of  the  voy- 
age insured.  When  a  ship  is  insured  both  out- 
M'ard  and  homeward,  for  one  entire  ^>rmiM?», 
this,  with  reference  to  the  insurance,  is  con- 
sidered but  one  voyage,  and  the  terminus  a 
quo  is  also  the  terminus  ad  quern.  Marshall, 
Ins.  b.  1,  c.  7,  s.  1-5.  As  to  the  commence- 
ment and  ending  of  the  voyage,  see  Risk.  ; 

3.  The  voyage,  with  reference  to  the 
legality  of  it,  is  sometimes  confounded  with 
the  traffic  in  which  the  ship  is  engaged,  and 
is  frequently  said  to  be  illegal  only  because 


VOYAGE 


647 


WAGER 


the  trade  is  so ;  but  a  voyage  may  be  lawful, 
and  yet  the  transport  of  certain  goods  on 
board  the  ship  may  be  prohibited ;  or  the 
voyage  may  be  illegal,  though  the  transport 
of  the  goods  be  lawful.  Marshall,  Ins.  b.  1, 
c.  6,  8.  1.  See  Lex  Merc.  Amer.  c.  10,  s.  14  ; 
Park.  Ins.  c.  12  ;  Weskett,  Ins.  Voyages  ;  De- 

TIAl  ION. 

4,  In  the  French  law,  the  voyage  de  con- 
serve is  the  name  given  to  designate  an 
agreement  made  between  two  or  more  sea- 
captains  that  they  will  not  separate  in  their 


voyage,  will  lend  aid  to  each  other,  and  will 
defend  themselves  against  a  common  enemy 
or  the  enemy  of  one  of  them  in  case  of  attack. 
This  agreement  is  said  to  be  a  partnerohip.  3 
Pardessus,  Dr.  Com.  n.  G5G ;  4  id.  984  ;  20 
TouUier,  n.  17. 

VULGO  CONCEPTI  (Lat.).  In  Civil 
Law.  Bastards  whose  father  was  unknown. 
Leg.  53,  ff.  de  statu  hominum.  Those,  also, 
whose  fathers,  though  known,  could  not  law- 
fully be  recognized  as  such  :  viz.,  the  offspring 
of  incest  and  adultery.    Code  Civ.  3.  7.  1. 


W. 


WADSET.  In  Scotch  Law.  A  right 
by  which  lands  or  other  heritable  subjects 
are  impignorated  by  the  proprietor  to  his 
creditor  in  security  of  his  debt.  Like  other 
heritable  rights,  it  is  protected  by  seisin. 

Wadsets,  by  the  present  practice,  are  com- 
monly made  out  in  the  form  of  mutual  con- 
tracts, in  which  one  party  sells  the  land  and 
the  other  grants  the  right  of  reversion.  Er- 
skine,  Inst.  2.  8.  1.  2. 

Wadsets  are  proper,  where  the  use  of  the 
land  shall  go  for  the  use  of  the  money ;  im- 
proper, where  the  reverser  agrees  to  make 
up  the  deficiency  ;  and  where  it  amounts  to 
more,  the  surplus  profit  of  the  land  is  applied 
to  the  extinction  of  the  principal.  Erskine, 
Inst.  2.  8.  12.  13. 

WADSETTER.  In  Scotch  Law.  A 
creditor  to  whom  a  wadset  is  made. 

WAGE.  To  give  a  pledge  or  security  for 
the  performance  of  any  thing:  as,  to  wage 
or  gage  deliverance,  to  wage  law,  etc.  Coke, 
Litt.  294.    TWis  word  is  but  little  used. 

WAGER  OP  BATTEL.  A  superstitious 
mode  of  trial  which  till  lately  disgraced  the 
English  law. 

The  last  case  of  this  kind  was  commenced 
in  the  year  1817,  but  not  proceeded  in  to 
judgment ;  and  at  the  next  session  of  the 
British  parliament  an  act  was  passed  to 
abolish  appeals  of  murder,  treason,  felony,  or 
other  ofiences,  and  wager  of  battel,  or  joining 
issue  or  trial  by  battel,  in  writs  of  right.  59 
Geo.  III.  c.  46.  For  the  history  of  this 
species  of  trial  the  reader  is  referred  to  3 
Black  stone,  Comm.  337  ;  4  id.  347  ;  Encyclo- 
pedic, Gage  de  Bataille;  Stephen,  Plead.  122, 
and  App  note  35. 

WAGER  OP  LAW.   In  Old  Practice. 

An  oath  taken  by  a  defendant  in  an  action 
of  debt  that  he  does  not  owe  the  claim,  sup- 
ported by  the  oaths  of  eleven  neighbors. 

When  an  action  of  debt  is  brought  against  a  man 
upon  a  simple  contract,  and  the  defendant  pleads  nil 
debit,  and  concludes  his  plea  with  this  plea,  with 


this  formula,  "And  this  he  is  ready  to  defend 
against  him  the  said  A  B  and  his  suit,  as  the  court 
of  our  lord  the  king  here  shall  consider,"  etc.,  he  is 
then  put  in  sureties  (vadioa)  to  wage  his  law  on  a 
day  appointed  by  the  judge.  The  wager  of  law 
consists  in  an  oath  taken  by  the  defendant  on 
the  appointed  day,  and  confirmed  by  the  oaths 
of  eleven  neighbors  or  compurgators.  This  oath  had 
the  effect  of  a  verdict  in  favor  of  the  defendant,  and 
was  only  allowed  in  the  actions  of  debt  on  simple 
contract,  and  detinue ;  nor  was  it  allowed  to  any 
one  not  of  good  character.  In  consequence  of  this 
privilege  of  the  defendant,  assnmpxit  displaces 
debt  as  a  form  of  action  on  simple  contracts,  and 
instead  of  detinue,  trover  was  used.  But  in  Eng- 
land wager  of  law  was  abolished  by  3  &  4  Will. 
IV.  c.  42,  ^  13.  And  even  before  its  abolition  it 
had  fallen  into  disuse.  It  was  last  used  as  a  method 
of  defence  in  2  Barnew.  &  C.  538,  where  the  defend- 
ant offered  to  wage  his  law,  but  the  plaintiff  aban- 
doned the  case.  This  was  in  1824.  If  it  ever  had 
any  existence  in  the  United  States,  it  is  now  com- 
pletely abolished.    8  Wheat.  642. 

The  name  (in  law  Latin,  vadiatio  legia)  comes 
from  the  defendant's  being  put  in  pledges  (vadios) 
to  make  his  oath  on  the  appointed  day.  There 
was  a  similar  oath  in  the  Roman  law,  and  in  the 
laws  of  most  of  the  nations  that  conqjuered  Rome. 
It  was  very  early  in  use  in  England,  as  Glanville 
distinctly  describes  it.  Glanville,  lib.  1,  c.  9,  12. 
See  Stephen,  Plead.  124,  250,  and  notes  xxxix. ; 
Coke,  2d  Inst.  119;  Mod.  Entr.  179;  Lilly,  Entr. 
467,-  3  Chitty,  Plead.  497;  13  Viner,  Abr.58,-  Bacon, 
Abr. ;  Dane,  Abr.  Index.  For  the  origin  of  this 
form  of  trial,  see  Stephen,  Plead,  notes  xxxix .;  Coke 
Litt.  394,  395 ;  3  Sharswood,  Blackst.  Comm.  341. 

WAGER  POLICY.  One  made  when 
the  insured  has  no  insurable  interest. 

It  has  nothing  in  common  with  insurance 
but  the  name  and  form.  It  is  usually  in 
such  terms  as  to  preclude  the  necessity  of 
inquiring  into  the  interest  of  the  insured : 
as,  "interest  or  no  interest,''  or,  "without 
further  proof  of  interest  than  the  polic3^" 

Such  contracts,  being  against  the  policy 
of  the  law,  are  void,  i  Marshall,  Ins.  121  ; 
Park,  Ins. Index;  Weskett,  Ins.  See  1  Sumn. 
C.  C.  451 ;  2  Mass.  1 ;  3  Gaines,  N.  Y.  141. 

WAGER.  A  bet ;  a  contract  by  which 
two  parties  or  more  agree  that  a  certain  sum 


WAGES 


648 


WAKENING 


jf  money,  or  other  thing,  shall  be  paid  or 
delivered  to  one  of  them  on  the  happening 
or  not  happening  of  an  uncertain  event. 

2.  In  general,  it  seems  that  a  v^-^ager  is 
legal  and  may  be  enforced  in  a  court  of  law, 
3  Term,  693,  if  it  be  not  contrary  to'  public 
policy,  or  immoral,  or  if  it  do  not  in  some 
other  respect  tend  to  the  detriment  of  the 
public,  or  if  it  do  not  affect  the  interest, 
feelings,  or  character  of  a  third  person.  1 
P.  A.  Browne,  Penu.  171. 

Wagers  on  the  event  of  an  election  laid 
before  the  poll  is  open,  1  Term,  56  ;  4  Johns. 
N.  Y.  426  ;  4  Harr.  &  McH.  Md.  284,  or  after 
it  is  closed,  8  Johns.  N.  Y.  454, 147  ;  2  Browne, 
Penn.  182,  are  unlawful.  And  wagers  are 
against  public  policy  if  they  are  in  restraint 
of  marriage,  10  East,  22 ;  if  made  as  to  the 
mode  of  playing  an  illegal  game,  2  H. 
Blackst.  43  ;  1  Nott  &  M'C.  So.  C.  180 ;  7 
Taunt.  246 ;  or  on  an  abstract  speculative 
question  of  law  or  judicial  practice,  not 
arising  out  of  circumstances  in  which  the 
parties  have  a  real  interest.  12  East,  247, 
and  Day's  notes.    But  see  1  Cowp.  37. 

3.  Wagers  as  to  the  sex  of  an  individual, 

I  Cowp.  729,  or  whether  an  unmarried 
woman  had  borne  or  would  have  a  child,  4 
Campb.  152,  are  illegal,  as  unnecessarily 
leading  to  painful  and  indecent  considera- 
tions. The  supreme  court  of  Pennsylvania 
have  laid  it  down  as  a  rule  that  every  bet 
about  the  age,  or  height,  or  weight,  or  wealth, 
or  circumstances,  or  situation,  of  any  person, 
is  illegal ;  and  this,  whether  the  subject  of 
the  bet  be  man,  woman,  or  child,  married  or 
single,  native  or  foreigner,  in  this  country  or 
abroad.  1  Rawle,  Penn.  42.  And  it  seems 
that  a  wager  between  two  coach-proprietors, 
whether  or  not  a  particular  person  would  go 
by  one  of  their  coaches,  is  illegal,  as  exposing 
that  person  to  inconvenience.  1  Barnew.  & 
Aid.  683. 

4.  In  the  case  even  of  a  legal  wager,  the 
authority  of  a  stakeholder,  like  that  of  an 
arbitrator,  may  be  rescinded  by  either  party 
before  the  event  happens.  And  if,  after  his 
authority  has  been  countermanded  and  the 
stake  has  been  demanded,  he  refuse  to  deliver 
it,  trover  or  assumpsit  for  money  had  and 
received  is  maintainable.  1  Barnew.  &  Aid. 
683.  And  where  the  wager  is  in  its  nature 
illegal,  the  stake  may  be  recovered,  even  after 
the  event,  on  demand  made  before  it  has 
been  paid  over.  4  Taunt.  474  ;  5  Term,  405. 
But  see  12  Johns,  1.  See,  further,  on  this 
subject.  7  Johns.  N.  Y.  434 ;  10  id.  406,  468 ; 

II  id.  23  ;  12  id.  376  ;  13  id.  88  ;  15  id.  5  ; 
17  id.  192  ;  Stakeholder. 

WAGES.  A  compensation  given  to  a 
hired  person  for  his  or  her  services.  As  to 
servants'  wages,  see  Chitty,  Contr.  171 ;  as  to 
sailors'  wages,  Abbott,  Shipp.  473. 

WAIFS.  Stolen  goods  waived  or  scattered 
by  a  thief  in  his  flight  in  order  to  effect  his 
escape. 

Such  goods,  by  the  English  common  law, 
')elong  to  the  king.    1  Blackstone,  Comm. 


296 ;  5  Coke,  109 ;  Croke  Eliz.  694.  This 
prerogative  has  never  been  adopted  here 
against  the  true  owner,  and  never  put  in 
practice  against  the  finder,  though  against 
him  there  would  be  better  reason  for  adopt- 
ing it.  2  Kent,  Comm.  292.  See  Comyns, 
Dig.  Waif;  1  Bro.  Civ.  Law,  239,  n. 

WAINAGIUM  (Sax.  woeg,  Lat.  vagina). 
What  is  necessary  to  the  farmer  for  the  cul- 
tivation of  his  land.  Barrington,  Stat.  p.  12; 
Magna  Charta,  c.  14.  According  to  Selden 
and  Lord  Bacon,  it  is  not  the  sume  as  con 
tenemenium,  used  in  the  same  chapter  of 
Magna  Charta,  meaning  the  power  of  enter- 
taining guests,  or  countenance,  as  common 
people  say. 

WAIVE.  A  term  applied  to  a  woman  aa 
outlaw  is  applied  to  a  man.  A  man  is  an 
outlaw ;  a  woman  is  a  waive.  Crabb,  Tech. 
Diet. 

To  abandon  or  forsake  a  right. 

To  abandon  without  right :  as,  **  if  the 
felon  waives, — that  is,  leaves  any  goods  in 
his  flight  from  those  who  either  pursue  him, 
or  are  apprehended  by  him  so  to  do, — he  for- 
feits them,  whether  they  be  his  own  goods, 
or  goods  stolen  by  him."  Bacon,  Abr.  For- 
feiture (B). 

WAIVER.  The  relinquishment  or  re- 
fusal to  accept  of  a  right. 

2.  In  practice,  it  is  required  of  every  one 
to  take  advantage  of  his  rights  at  a  proper 
time;  and  neglecting  to  do  so  will  be  con- 
sidered as  a  waiver.  If,  for  example,  a  de- 
fendant who  has  been  misnamed  in  the  writ 
and  declaration  pleads  over,  he  cannot  after- 
wards take  advantage  of  the  error  by  plead- 
ing in  abatement ;  for  his  plea  amounts  to  a 
waiver. 

3.  In  seeking  for  a  remedy,  the  party  in- 
jured may,  in  some  instances,  waive  a  part 
of  his  right  and  sue  for  another:  for  ex- 
ample, when  the  defendant  has  committed  a 
trespass  on  the  property  of  the  plaintiff  by 
taking  it  away,  and  afterwards  he  sells  it, 
the  injured  party  may  waive  the  trespass  and 
bring  an  action  of  assumpsit  for  the  recovery 
of  the  money  thus  received  by  the  defendant. 
1  Chitty,  Plead.  90. 

4.  In  contracts,  if,  after  knowledge  of  a 
supposed  fraud,  surprise,  or  mistake,  a  party 
performs  the  agreement  in  part,  he  will  be 
considered  as  having  waived  the  objection. 
1  Brown,  Pari.  Cas.  289. 

5.  It  is  a  rule  of  the  civil  law,  consonant 
with  reason,  that  any  one  may  renounce  oi 
waive  that  which  has  been  established  in  his 
favor.  Regula  est  juris  antiqui  omnes  licew- 
tiam  habere  his  quce  pro  se  introducta  sunt^ 
renunciare.  Code,  2.  3.  29.  As  to  what  will 
amount  to  a  waiver  of  a  forfeiture,  see  1  Coim. 
79  ;  7  id.  45  ;  1  Johns.  Cas.  N.  Y.  125  ;  14 
Wend.  N.  Y.  419  ;  8  Pick.  Mass.  292 ;  2  N. 
H.  120,  163  ;  1  Ohio,  21 ;  Condition. 

WAKENING.  In  Scotch  Law  The 
revival  of  an  action. 

An  action  is  said  to  sleep  when  it  lies  over, 
not  insisted  on  for  a  year,  in  which  case  it  is 


WAND  OF  PEACE 


649 


WAREHOUSE 


Buspended.  Erskine,  Inst.  4. 1. 33.  With  us 
a  revival  is  by  s:ire  facias, 

WAND  OF  PEACE.   In  Scotch  Law. 

The  w\and  which  the  messenger  carries  along 
with  his  blazon,  in  executing  a  caption,  and 
with  which  he  touches  the  prisoner.  A 
eliding  along  this  staff  of  a  movable  ring,  or 
the  breaking  of  the  staff,  is  a  protest  that  the 
oflBcer  has  been  resisted  or  deforced.  Burton, 
Law  of  Scotl.  p.  572 ;  Bell,  Diet.  Imprison- 
ment. 

WANTONNESS.    In  Criminal  Law. 

A  licentious  act  by  one  man  towards  the 
person  of  another,  without  regard  to  his 
rights :  as,  for  example,  if  a  man  should 
attempt  to  pull  off  another's  hat  against  his 
will,  in  order  to  expose  him  to  ridicule,  the 
offence  would  be  an  assault,  and  if  he  touched 
him  it  would  amount  to  a  hattevy. 

In  such  case  there  would  be  no  malice,  but 
the  wantonness  of  the  act  would  render  the 
offending  party  liable  to  punishment. 

WAPENTAKE  (from  Sax.  wapen,  i.e. 
armaiura,  and  iac,  i.e.  tacfus).  A  Saxon 
court,  held  monthly  by  the  alderman  for  the 
benefit  of  the  hundred. 

It  was  called  a  loapentake  from  tvapen,  arms,  and 
tac,  to  touch ;  because  when  the  chief  of  the  hun- 
dred entered  upon  his  office  he  appeared  in  the 
field  on  a  certain  day,  on  horseback,  with  a  pike  in 
his  hand,  and  all  the  principal  men  met  him  with 
lances.  Vpr.n  this  he  alighted,  and  they  all  touched 
his  pike  with  their  lances,  in  token  of  their  sub- 
mission to  his  authority.  In  this  court  causes  of 
great  moment  were  heard  and  determined,  as  Mr. 
Dugdale  has  shown  from  several  records.  Besides 
which,  it  took  cognizance  of  theft,  trials  by  ordeal, 
view  of  frankpledge,  and  the  like;  whence  after 
the  conquest  it  was  called  the  sheriff's  tourn,  and, 
as  regarded  the  examination  of  the  pledges,  the 
court  of  the  view  of  frankpledge.  These  pledges 
were  no  other  than  the  freemen  within  the  liberty, 
who,  according  to  an  institution  of  king  Alfred, 
were  mutually  pledged  for  the  good  behavior  of 
each  other.  Fortescue,  de  Laud.  c.  24;  Dugdale, 
Orig.  Jur.  27;  4  Blackstone,  Comm.  273.  Sir 
Thomas  Smith  derives  it  from  the  custom  of  taking 
away  the  arms,  at  the  muster  of  each  hundred,  from 
those  who  could  not  find  sureties  for  good  behavior. 
Rep.  Angl.  lib.  2,  c.  16. 

WARD.  An  infant  placed  by  authority 
of  law  under  the  care  of  a  guardian. 

While  under  the  care  of  a  guardian,  a  ward  can 
make  no  contract  whatever  binding  upon  him, 
except  for  necessaries.  When  the  relation  of  guard- 
ian and  ward  ceases,  the  latter  is  entitled  to  have 
an  account  of  the  administration  of  his  estate  from 
the  former.  During  the  existence  of  this  relation 
the  ward  is  under  the  subjection  of  his  guardian, 
who  stands  in  loco  parentis.    See  Gcaedian. 

A  subdivision  of  a  city  to  watch  in  the  day- 
time, for  the  purpose  of  preventing  violations 
of  the  law.  It  is  the  duty  of  all  police-officers 
and  constables  to  keep  ward  in  their  respect- 
ive districts. 

W;ARD  in  chancery.  An  infant 
who  is  under  the  superintendence  of  the  chan- 
cellor 

WARp-:4TOLDINa.  In  Old  Scotch 
Law.  Military  tenure  by  which  lands  were 
held.    It  was  so  called  from  th(  '  early  tax 


in  commutation  of  the  right  to  hold  vaspals 
lands  during  minority.  It  was  abolished  in 
1747.  Burton,  Law  of  Scotl.  p.  375  ;  Bell, 
Diet. 

WARDEN.  A  guardian ;  a  keeper.  This 
is  the  name  given  to  various  officers :  as,  the 
warden  of  the  prison,  the  wardens  of  the  port 
of  Philadelphia,  church-wardens. 

WARDEN  OF  THE  CINQUE 
PORTS.  Governor  of  the  ports  of  England 
lying  next  France,  with  the  authority  of 
admiral,  and  power  of  sending  out  writs  in 
his  own  name,  etc.  The  constable  of  Dover 
Castle  is  the  warden  of  the  Cinque  Ports, 
and  was  first  appointed  by  William  the  Con- 
queror ;  but  John  I.  granted  to  the  wardens 
their  privileges  on  condition  that  they  should 
provide  a  certain  number  of  vessels  for  forty 
days  as  often  as  the  king  should  require  them. 
See  Cinque  Ports. 

WARDMOTE  (from  ward,  and  Sax. 
mote,  or  gemote,  a  meeting). 

In  English  Law.  A  court  held  in  every 
ward  in  London. 

The  wardmote  inquest  has  power  to  inquire 
into  and  present  all  defaults  concerning  the 
watch  and  police  doing  their  duty,  that  en- 
gines, etc.  are  provided  against  fire,  that 
persons  selling  ale  and  beer  be  honest  and 
suffer  no  disorders  nor  permit  gaming,  etc., 
that  they  sell  in  lawful  measures,  and 
searches  are  to  be  made  for  beggars,  vagrants, 
and  idle  persons,  etc.,  who  shall  be  pun- 
ished. Chart.  Hen.  XL  ;  Lex  Lond. ,  185  ; 
Cunningham,  Law  Diet.;  Wharton,  Law 
Diet.  2d  Lond.  ed.  Wardmote.  See  Cowel ; 
Coke,  4th  Inst.  249 ;  2  Show.  525 ;  Lex  Lond. 
185  ;  Chart.  Hen.  II. 

WARDSHIP.  In  English  Law.  The 
right  of  the  lord  over  the  person  and  estate 
of  the  tenant,  when  the  latter  was  under  a 
certain  age. 

When  a  tenant  by  knight's  service  died,  and  his 
heir  was  under  age,  the  lord  was  entitled  to  the 
custody  of  the  person  and  the  lands  of  the  heir, 
without  any  account,  until  the  ward,  if  a  male, 
should  arrive  at  the  age  of  twenty-one  years,  and, 
if  a  female,  at  eighteen.  Wardship  was  also  inci- 
dent to  a  tenure  in  socage ;  but  in  this  case  not  the 
lord,  but  the  nearest  relation  to  whom  the  inherit- 
ance could  not  descend,  was  entitled  to  the  custody 
of  the  person  and  estate  of  the  heir  till  he  attained 
the  age  of  fourteen  years;  at  which  period  the 
wardship  ceased,  and  the  guardian  was  bound  to 
account.  Wardship  in  copyhold  estates  partook  of 
that  in  chivalry  and  that  in  socage.  Like  the 
former,  the  lord  was  the  guardian  ;  like  the  latter, 
he  was  required  to  account.  2  Blackstone,  Comm. 
67,  87,  97;  Glanville,  lib.  7,  c.  9;  Grand  Gout.  o. 
33;  Reg.  Maj.  c.  42, 

WAREHOUSE.  A  place  adapted  to 
the  reception  and  storage  of  goods  and  mer- 
chandise.   23  Me.  47. 

A  radical  change  was  made  in  the  revenue  lawi 
of  the  United  States  by  the  establishment,  under 
the  act  of  congress  of  Aug.  6,  1846,  9  U,  S.  Stat, 
at  Large,  53,  of  the  warehousing  system.  This 
statute  is  commonly  called  the  Warehousing  Act.  Its 
evident  object  is  to  facilitate  and  encourage  com- 
merce by  exempting  the  importer  from  the  pay- 


WAREHOUSEMAN 


650  WARRANTIA  CHARTS 


ment  of  duties  until  he  is  ready  to  bring  his  goods 
into  market.  13  How.  295.  Previous  to  the  pass- 
age of  that  act,  no  goods  chargeable  with  cash 
duties  could  be  landed  at  the  port  of  delivery 
until  the  duties  were  paid  at  the  port  of  entry. 
Tha  importer  had  no  right  to  land  them  anywhere 
until  they  had  passed  through  the  custom-house. 
Before  that  act,  the  only  provisions  existing  in  rela- 
tion to  the  warehousing  of  goods  were  merely  appli- 
cable to  special  cases,  such  as  where  the  vessel  in 
which  the  goods  were  imported  was  ^subject  to 
quarantine  regulations,  or  where  the  entry  might 
have  been  incomplete  or  the  goods  had  received 
damage,  or  where  a  landing  was  compelled  at  a 
port  other  than  the  one  to  which  the  vessel  was 
destined,  on  account  of  distress  of  weather  or  other 
necessity,  or  in  case  of  the  importation  of  wines  or 
distilled  spirits.    Andrews,  Rev.  Laws,  72. 

The  warehousing  system  was  extended  by  the 
establishment  of  private  bonded  warehouses.  Act 
of  Mar.  28,  1854,  10  U.  S.  Stat,  at  Large,  270. 

WAREHOUSEMAN.  A  person  who 
receives  goods  and  merchandise  to  be  stored 
in  his  warehouse  for  hire. 

Jle  is  bound  to  use  ordinary  care  in  pre- 
serving such  goods  and  merchandise,  and  his 
neglect  to  do  so  will  render  him  liable  to  the 
owner.  1  Peake,  114;  1  Esp.  315  ;  Story, 
Bailm.  ?  444;  Jones,  Bailm.  49,  96,  97;  7 
Cow.  N.  Y.  497;  .12  Johns.  N.  Y.  232;  2 
Wend.  N.  Y.  593 ;  9  id.  268 ;  2  Ala.  284. 
The  warehouseman's  liability  commences  as 
soon  as  the  goods  arrive  and  the  crane  of  the 
warehouse  is  applied  to  raise  them  into  the 
warehouse.    4  Esp.  262. 

WARRANDICE.    In   Scotch  Law. 

A  clause  in  a  charter  of  heritable  rights,  by 
which  the  grantor  obliges  himself  that  the 
right  conveyed  shall  be  effectual  to  the  re- 
ceiver. It  is  either  personal  or  real.  A  war- 
ranty.   Erskine,  Inst.  2.  3.  11. 

WARRANT.  A  writ  issued  by  a  justice 
of  the  peace  or  other  authorized  officer,  di- 
rected to  a  constable  or  other  proper  person, 
requiring  him  to  arrest  a  person  therein 
named,  charged  with  committing  some  of- 
fence, and  to  bring  him  before  that  or  some 
other  justice  of  the  peace. 

A  bench-warrant  is  a  process  granted  by  a 
court,  authorizing  a  proper  officer  to  appre- 
hend and  bring  before  it  some  one  charged 
with  some  contempt,  crime,  or  misdemeanor. 
See  Bench-Warrant. 

A  search-warrant  is  a  process  issued  by  a 
competent  court  or  officer,  authorizing  an 
officer  therein  named  or  described  to  examine 
a  house  or  other  place  for  the  purpose  of 
finding  goods  which  it  is  alleged  have  been 
stolen.    See  Search-W arrant. 

A  warrant  should  regularly  bear  the  hand 
and  seal  of  the  justice,  and  be  dated.  It 
should  contain  a  command  to  the  officer  to 
mike  a  return  thereof  and  of  his  doings 
thereon.  But  the  want  of  such  a  command 
does  not  excuse  him  from  the  obligation  of 
making  a  proper  return.  3  Cush.  Mass.  438. 
And  it  is  no  ground  for  discharging  a  defend- 
ant that  the  warrant  does  not  contain  such  a 
command.  2  Gray,  Mass.  74.  No  warrant 
ought  to  be  issued  except  upon  the  oath  or 


affirmation  of  a  witness  charging  the  defend- 
ant  with  the  offence.    3  Binn.  Penn.  88. 

The  reprehensible  practice  of  issuing  blank 
warrants,  which  once  prevailed  in  England, 
was  never  adopted  here.  2  Russell,  Crimes, 
512 ;  Ld.  Raym.  546  ;  1  Salk.  175 ;  1  II. 
Blackst.  13 ;  Doctrina  PI.  529  ;  Wood,  Inst. 
84;  Comyns,  Forcible  Entry  (D  18,  19), 
Imprisonment  (II  6),  Pleader  (3  K  26),  (3  M 
23).    See  Search-Warrant. 

WARRANT   OP  ATTORNEY.  In 

Practice.  An  instrument  in  writing,  ad- 
dressed to  one  or  more  attorneys  therein 
named,  authorizing  them,  generally,  to  appear 
in  any  court,  or  in  some  specified  court,  on 
behalf  of  the  person  giving  it,  and  to  confess 
judgment  in  favor  of  some  particular  person 
therein  named,  in  an  action  of  debt,  and  usu- 
ally containing  a  stipulation  not  to  bring  any 
writ  of  error,  or  file  a  bill  in  equity,  so  as  to 
delay  him. 

2.  This  general  authority  is  usually  quali- 
fied by  reciting  a  bond  which  commonly 
accompanies  it,  together  with  the  condition 
annexed  to  it,  or  by  a  written  defeasance 
stating  the  terms  upon  which  it  was  given 
and  restraining  the  creditor  from  making 
immediate  use  of  it. 

In  form,  it  is,  generally,  by  deed ;  but  it 
seems  it  need  not  necessarily  be  so.  5  Taunt. 
264. 

This  instrument  is  given  to  the  creditor  as 
a  security.  Possessing  it,  he  may  sign  judg- 
ment and  issue  an  execution,  without  its 
being  necessary  to  wait  the  termination  of 
an  action.    See  14  East,  576  ;  2  Term,  100 : 

1  H.  Blackst.  75;  1  Strange,  20;  2  W. 
Blackst.  1133  ;  2  Wils.  3  ;  1  Chitty,  Bail.  707. 

3.  A  warrant  of  attorney  given  to  confess 
a  judgment  is  not  revocable,  and,  notwith- 
standing a  revocation,  judgment  may  bo 
entered  upon  it.  2  Ld.  Raym.  766,  850 ;  1 
Salk.  87  ;  7  Mod.  93  ;  2  Esp.  563.  The  death 
of  the  debtor  is,  however,  generally  speak- 
ing, a  revocation.  Coke,  Litt.  52  6  /  1  Vent 
Ch.  310. 

The  virtue  of  a  warrant  of  attorney  is 
spent  by  the  entry  of  one  judgment,  and  a 
second  judgment  entered  on  the  same  war- 
rant is  irregular.  1  Penn.  245  ;  6  Serg.  & 
R.  Penn.  296  ;  14  id.  170 ;  Add.  Penn.  267 ; 

2  Browne,  Penn.  321 ;  3  Wash.  C.  C.  558. 
See,  generally,  1  Salk.  402 ;  1  Sellon,  Pract. 
374;  Comyns,  Dig.  Abatement  (E  1,  2),  At- 
torney (B  7,  8) ;  2  Archbold,  Pract.  12 ;  Bing- 
ham, Judgm.  38. 

WARRANTEE.  One  to  whom  a  war- 
ranty is  made.    Sheppard,  Touchst.  181. 

WARRANTIA  CHART-5I.  An 
ancient  and  now  obsolete  writ,  which  was 
issued  when  a  man  was  enfeoffed  of  land 
with  warranty,  and  then  he  was  sued  or  im- 
pleaded in  assize  or  other  action,  in  which  he 
could  not  vouch  or  call  to  warranty. 

It  was  brought  by  the  feoffor  pending  the 
first  suit  against  him,  and  had  this  valu- 
able incident,  that  when  the  warrantor  was 
vouched,  and  judgment  passed  against  the 


WARRANTOR 


651 


WARRANTY 


tenant,  the  latter  obtained  judgment  simul- 
taneously against  the  warrantor,  to  recover 
other  lands  of  equal  value.  Termes  de  la 
Ley;  Fitzherbert,  Nat.  Brev.  134;  Dane, 
Abr.  Index;  2  Rand.  Va.  141,  148,  156;  4 
Leigh,  Va.  132;  11  Serg.  &  R.  Penn.  115; 
Viner,  Abr. ;  Coke,  Litt.  100 ;  Hob.  22,  217. 

WARRANTOR.  One  who  makes  a  war- 
ranty.   Sheppard,  Touchst.  181.  j 

WARRANTY.    In  Insurance.     A  | 

stipulation  or  agreement  on  the  part  of  the  , 
insured  party,  in  the  nature  of  a  condition.  | 

An  express  warranty  is  a  particular  stipu- 
lation introduced  into  the  M^ritten  contract 
by  the  agreement  of  the  parties. 

An  implied  warranty  is  an  agreement 
which  necessarily  results  from  the  nature  of 
the  contract:  as,  that  the  ship  shall  be  sea- 
worthy when  she  sails  on  the  voyage  insured. 

2.  An  express  w^arranty  usually  appears 
in  the  form  of  a  condition,  expressed  or 
directly  implied  in  the  phraseology  of  the 
policy,  stipulating  that  certain  facts  are  or 
shall  be  true,  or  certain  acts  are  or  shall  be 
donb  by  the  assured,  who  by  accepting  the 
insurance  ratifies  the  stipulation. 

Where  the  stipulation  relates  wholly  to  the 
future,  it  is  a  promissory  condition  or  war- 
ranty.   1  Phillips,  Ins.  ^  754. 

An  express  warranty  must  be  strictly  com- 
plied with ;  and  the  assured  is  not  permitted 
to  allege,  in  excuse  for  non-compliance,  that 
the  risk  was  not  thereby  afiected,  since  the 
parties  have  agreed  that  the  stipulated  fact 
or  act  shall  be  the  basis  of  the  contract, 
Bouvier,  Inst.  Index ;  1  Phillips,  Ins.  ^  755, 
unless  compliance  is  rendered  illegal  by  a 
subsequent  statute.    1  Phillips,  Ins.  §  7G9. 

3.  The  more  frequent  express  warranties 
in  marine  policies  are — time  of  sailing,  and, 
in  time  of  hostilities,  the  national  character 
of  the  insured  subject,  and  neutral  insignia 
and  conduct.  In  fire  and  life  policies  they 
are  quite  numerous,  comprehending  all  the 
facts  stated  by  the  applicant  in  his  applica- 
tion when  incorporated,  as  it  usually  is,  into 
the  policy  and  expressly  contracted  by  refer- 
ence. In  fire  insurance,  express  reference  is 
often  made  to  the  charter  of  the  company, 
especially  in  mutual  companies,  and,  in  such 
companies,  to  rules  and  regulations,  and  con- 
ditions indorsed  upon  the  policy.  1  Phillips, 
Ins.  ^1  28,  63,  64.  A  policy  of  insurance, 
no  less  than  any  other  contract,  is  subject  to 
the  condition  against  fraud. 

4.  The  doctrine  of  the  divers  warranties 
and  conditions  in  the  difi'erent  species  of 
insurance  has  been  the  subject  of  a  great 
mass  of  jurisprudence:  viz., — 

In  Jire  policies,  with  reference  to  assign- 
ments of  the  insured  property,  or  the  policy, 
15  Barb.  N.  Y.  413  ;  23  id.  628  ;  25  id.  189 ; 
Hill  &  D.  N.  Y.  101,  133  ;  17  N.  Y.  424,  509  ; 
6  Gray,  Mass.  160;  30  Penn.  St.  311;  26 
Conn.  165  ;  3  Dutch.  N.  J.  163  ;  25  Ala.  355 ; 
1  Snced,  Tenn.  444;  19  Eng.  L.  &  Eq.  283  ; 
22  id.  73 ;  conformity  to  charter,  32  N.  H. 
313;   8  Gush.  Mass.  393;   1  Wall.  273 :  25 


N.  H.  359 ;  condition  of  the  premises,  in 
eluding  construction,  locality,  and  manner 
of  using,  14  Barb.  N.  Y.  383  ;  16  id.  119;  21 
id.  154  ;  6  N.  Y.  469  ;  8  id.  370,  530,  554 ;  10 
id.  469 ;  17  id.  94 ;  18  id.  168,  385  ;  1  Bosw. 
520;  6  Du.  N.  Y.  6 ;  8  Gush.  Mass.  79;  1 
Gray,  Mass.  426  ;  2  id.  221 ;  3  id.  53  ;  5  id. 
i  384 ;  6  id.  185  ;  7  id.  257  ;  31  N.  H.  231 ;  2 
I  Gurt.  C.  C.  610  ;  10  Rich.  So.  C.  202 ;  4  Ohio 
!  St.  285  ;  27  Penn.  St.  325  ;  30  id.  299,  315  ; 
I  4  R.  L  141;  37  Eng.  L.  &  Eq.  561;  38  id. 

337  ;  distance  of  other  buildings,  7  N.  Y. 
I  153 ;  18  id.  376 ;  6  Gray,  Mass.  105  ;  7  id. 
261 ;  frauds,  28  N.  II.  149,  157  ;  2  Ohio  St. 
452  ;  kind  of  risk,  25  N.  II.  550  ;  3  Md.  341 ; 
6  McLean,  C.  G.  324  ;  26  Eng.  L.  &  Eq.  238  ; 
limiting  right  of  action,  26  N.  H.  22;  27 
Vt.  99;  5  Gray,  Mass.  432;  6  id.  174,  185, 
596 ;  7  id.  61,  69  ;  6  Ohio,  599  ;  5  R.  I.  394 ; 

24  Ga.97;  notice  and  demand,  18  Barb.N.Y. 
69 ;  20  id.  468 ;  33  N.  H.  203,  and  proof  of 
loss,  8  Gush.  Mass.  393 ;  2  Gray,  Mass.  480 ; 
28  Barb.  N.  Y.  412  ;  11  N.  Y.  81 ;  29  Penn. 
St.  198  ;  18  111.  553  ;  6  Ind.  137  ;  5  id.  417  ; 
5  Sneed,  Tenn.  139 ;  20  Eng.  L.  &  Eq.  541, 
590  ;  other  insurance,  14  Barb.N.  Y.  206  ;  20 
id.  635  ;  13  N.  Y.  79,  253  ;  17  id.  415,  609  ; 
22  Gonn.  575  ;  5  Md.  165  ;  16  N.  H.  203  ;  26 
id.  169  ;  33  id.  9  ;  37  Me.  137  ;  9  Gush.  Mass. 
479  ;  10  id.  350 ;  11  id.  265  ;  2  Gray,  Mass. 
397  ;  4  id.  237  ;  5  id.  52 ;  6  id.  169  ;  4  N.  J. 
447  ;  26  Penn.  St.  199  ;  21  Mo.  97  ;  payment 
of  premium,  18  Barb.  N.  Y.  541 ;  20  id.  458  ; 

25  id.  189;  suspension  of  risk,  11  N.  Y.  89; 
33  N.  H.  9  ;  43  Me.  393  ;  title,  1  Curt.  C.  C. 
193;  1  Gush.  Mass.  280;  8  id.  127  ;  10  id. 
446,  540  ;  2  Gray,  Mass.  334 ;  5  id.  52,  384 ; 
9  id.  370  ;  25  N.  H.  550 ;  28  id.  143  ;  30  id. 
153  ;  31  id.  231 ;  17  Mo.  247 ;  18  id.  128  ;  22 
Conn.  575  ;  23  Penn.  St.  50  ;  17  Mo.  247  ;  18 
id.  128  ;  21  id.  587  ;  40  Me.  587  ;  41  id.  208  ; 
42  id.  22 ;  22  Barb.  N.  Y.  527  ;  25  id.  497  ; 
14  N.  Y.  253;  5  Du.  N.  Y.  101 ;  value,  11 
Gush.  Mass.  324 ;  waiver  of  compliance  with 
a  warranty.   4  N.  J.  67  ;  6  Gray,  Mass.  192. 

In  life  policies,  with  reference  to  assign- 
ment, 5  Sneed,  Tenn.  259,  representation,  or 
other  stipulations.  11  Gush.  Mass.  448  ;  3 
Gray,  Mass.  180 ;  1  Bosw.  N.  Y.  338  ;  3  Md. 
341 ;  21  Penn.  St.  134 ;  13  La.  Ann.  504 ;  19 
Mo.  506 ;  24  Eng.  L.  &  Ea.  1 ;  2  C.  B.  n.  s. 
257. 

In  ma7'ine  policies,  with  reference  to  assign- 
ments, 33  La.  338  ;  contraband  trade,  43  Me. 
460 ;  other  insurance,  17  N.  Y.  401 ;  sea- 
worthiness, 3  Ind.  23  ;  1  Wheat.  399  ;  1  Binn. 
Penn.  592  ;  1  Johns.  N.  Y.  241 ;  10  id.  58  ; 
7  Pick.  Mass.  259  ;  16  id.  383  ;  4  Mas.  C.  C. 
439;  1  Pet.  170;  Cowp.  143;  Dougl.  781:  1 
Dowl.  32  ;  1  Holt,  30 ;  7  Term,  160 ;  1  Gampb. 
1;  2  Barnew.  &  Aid.  320;  5  Mees.  &  W. 
Exch.  414 ;  1  Phillips,  Ins.  ch.  viii.  sect.  2 ; 
1  Arnoult,  Ins.  662 ;  Roccus,  n.  22 ;  suspen- 
sion of  risk,  3  Gray,  Mass.  415  ;  title.  19 
N.Y.179. 

Waiver  of  the  right  to  insist  upon  the 
performance  of  a  condition  may  occur  under 
a  policy  of  this  description  :  as,  of  the  condi- 
tion relative  to  assignment,  32  N.  H.  95 ;  or 


WARRANTY 


652 


WASHINGTON 


Answers  to  questions,  7  Gray,  Mass.  261 ;  or 
iistance  of  buildings,  6  Gray,  Mass.  175  ;  7 
id.  201;  going  out  of  limits,  33  Conn.  244; 
limitation  of  action,  14  N.  Y.  253 ;  ofier  of 
arbitration,  6  Gray,  Mass.  192 ;  payment  of 
premium  or  assessment,  19  Barb.  N.  Y.  440; 
26  id.  116;  25  Conn.  442;  38  Me.  439;  31 
Penn.  St.  438  ;  proof  of  loss,  21  Mo.  81 ;  2 
E.  D.  Smith,  N.  Y.  268  ;  17  N.  Y.  428  ;  sea- 
worthiness, 37  Me.  137  ;  title.   35  N.  H.  328. 

See  Deviation  ;  Policy;  Seaworthiness; 
Bouvier,  Inst.  Warranties. 

In  Sales  of  Personal  Property.  An 
express  warranty  is  one  by  which  the  war- 
rantor covenants  or  undertakes  to  insure  that 
the  thing  which  is  the  subject  of  the  con- 
tract is,  or  is  not,  as  there  mentioned :  as,  that 
a  horse  is  sound;  that  he  is  not  five  years  old. 

An  implied  warranty  is  one  which,  not 
being  expressly  made,  the  law  implies  by  the 
fact  of  the  sale:  for  example,  the  seller  is 
understood  to  warrant  the  title  of  goods  he 
sells,  when  they  are  in  his  possession  at  the 
time  of  the  sale,  1  Ld.  Raym.  593  ;  1  Salk. 
210 ;  but  if  they  are  not  then  in  his  posses- 
sion, the  rule  of  caveat  emptor  applies,  and  the 
buyer  purchases  at  his  risk.  Croke  Jac.  197. 

5.  In  general,  there  is  no  implied  war- 
ranty of  the  quality  of  the  goods  sold.  2 
Kent,  Comm.  374 ;  Coke,  Litt.  102a;  2  Black- 
stone,  Comm.  452  ;  Bacon,  Ahr.  Action  07i  the 
Case  (E)  ;  Comyns,  Contr.  263;  Dougl.  20; 
2  East,  314,  448,  n. ;  Ross,  Vend.  c.  6 ;  I 
Pet.  317  ;  1  Johns.  N.  Y.  274  ;  20  id.  196  ;  2 
Caines,  N.  Y.  48  ;  3  Barb.  N.  Y.  323  ;  4  Conn. 
428  ;  10  Mass.  197  ;  11  Mete.  Mass.  569  ;  3 
Yeates,  Penn.  262 ;  12  Serg.  &  R.  Penn.  181 ; 

1  Hard.  Ky.  531 ;  1  Murph.  No.  C.  138 ;  2 
id.  245  ;  4  Hayw.  Tenn.  227.  The  rule  of 
the  civil  law  was  that  a  fair  price  implied  a 
warranty  of  quality.  Dig.  21.  2. 1.  This  rule 
has  been  adopted  in  Louisiana,  1  La.  Ann.  27, 
and  in  South  Carolina.    1  Bay,  So.  C.  324 ; 

2  id.  380 ;  2  Const.  So.  C.  353.  There  may 
be  an  implied  warranty  as  to  character,  13 
Mass.  139  ;  2  Pick.  Mass.  214 ;  2  Harr.  &  G. 
Md.  495  ;  5  Harr.  &  J.  Md.  117  ;  2  Mann.  & 
G.  279 ;  20  Johns.  N.  Y.  204 ;  4  Barnew.  & 
C.  108,  and  even  as  to  quality,  from  state- 
ments of  the  seller,  40  Me.  9  ;  24  Barb.  N.  Y. 
649 ;  or  a  purchase  for  a  specified  purpose. 
4  Taunt.  847  ;  1  Wise.  420  ;  18  III.  420  ;  28 
Vt.  227.  And  see  16  Mees.  &  W.  Exch.  644 ; 
1  Den.  N.  Y.  385  ;  7  Watts,  Penn.  55  ;  Sedg- 
wick, Dam.  289  ;  11  Ired.  No.  C.  166 ;  20  Penn. 
St.  448. 

In  Sales  of  Real  Property.     A  real 

covenant,  whereby  the  grantor  of  an  estate 
of  freehold  and  his  heirs  were  bound  to  war- 
rant the  title,  and,  either  upon  voucher  or  by 
judgment  in  a  writ  of  wan-antia  chartoe,  to 
yield  other  lands  to  the  value  of  those  from 
which  there  had  been  an  eviction  by  a  para- 
mount title.    Coke,  Litt.  365  a. 

Collateral  warranty  existed  when  the  heir's 
title  was  not  derived  from  the  warranting 
anc(5stor  and  vet  it  barred  the  heir  from 
claiming  the  land  by  any  collateral  title, 
upon  the  presumption  that  he  might  there- 


after have  assets  by  descent  from  or  through 
the  ancestor ;  and  it  imposed  upon  him  the 
obligation  of  giving  the  warrantee  other 
lands  in  case  of  eviction,  provided  he  had 
assets.    2  Blackstone,  Comm.  301,  302. 

Lineal  warranty  existed  when  the  heir 
derived  title  to  the  land  warranted,  either 
from  or  through  the  ancestor  who  made  the 
warranty. 

6.  The  statute  of  4  Anne,  c.  16,  annulled 
these  collateral  warrantees,  which  had  become 
a  great  grievance.  Warranty  in  its  origi- 
nal form,  it  is  presumed,  has  never  been 
known  in  the  United  States.  The  more  plain 
and  pliable  form  of  a  covenant  has  been 
adopted  in  its  pl.ace ;  and  this  covenant,  like 
all  other  covenants,  has  always  been  held  to 
be  sound  in  damages,  which,  after  judgment, 
may  be  recovered  out  of  the  personal  or  real 
estate,  as  in  other  cases.  And  in  England 
the  matter  has  become  one  of  curious  learn- 
ing and  of  little  or  no  'practical  importance. 
See  4  Kent,  Comm.  469  ;  3  Rawle,  Penn. 
67,  n. ;  2  Wheat.  45  ;  9  Serg.  &  R.  Penn.  268  ; 
11  id.  109  ;  4  Dall.  Penn.  442  ;  1  Sumn.  C.  C. 
358  ;  17  Pick.  Mass.  14  ;  1  Ired.  No.  C.  509  ; 
2  Saund.  38,  n.  5. 

WARRANTY,  VOUCHER  TO.  In 

Old  Practice.  The  calling  a  warrantor  into 
court  by  the  party  warranted  (when  tenant 
in  a  real  action  brought  for  recovery  of  such 
lands),  to  defend  the  suit  for  him.  Coke," Litt. 
101  6;  Comyns,  Dig.  Voucher  (A  1) ;  Booth, 
Real  Act.  43  ;  2  Saund.  32,  n.  1 ;  and  the  time 
of  such  voucher  is  after  the  demandant  has 
counted. 

It  lies  in  most  real  and  mixed  actions,  but  not  in 
personal.  Where  the  voucher  has  been  made  and 
allowed  by  the  court,  the  vouchee  either  voluntarily 
appears,  or  there  issues  a  judicial  writ  (called  a 
summons  ad  warrantizandum),  commanding  the 
sheriff  to  summon  him.  Where  he,  either  volun- 
tarily or  in  obedience  to  this  writ,  appears  and 
offers  to  warrant  the  land  to  the  tenant,  it  is  called 
entering  into  the  warranty ;  after  which  he  is  con- 
sidered as  tenant  in  the  action,  in  the  place  of  the 
original  tenant.  The  demandant  then  counts 
against  him  de  novo,  the  vouchee  pleads  to  the  new 
count,  and  the  cause  proceeds  to  issue. 

WARREN  (Germ,  wahren,  French,  ga- 
renne).  A  place  privileged  by  prescription  or 
grant  of  the  king  for  ,the  preservation  of 
hares,  conies,  partridges,  and  pheasants,  or 
any  of  them.  Termes  de  la  Ley.  A  action 
lies  for  killing  beasts  of  warren  inside  the 
warren  ;  but  they  may  be  killed  damage  fed' 
sant  on  another's  land.  5  Coke,  104.  It  need 
not  be  inclosed.    Coke,  4th  Inst.  318. 

WASHINGTON.   One  of  the  territorias 

of  the  United  States  of  America. 

2.  This  terrifeory,  lying  between  the  Columbia 
river  and  the  46th  parallel  of  latitude  on  tho 
south  and  the  49th  parallel  on  the  north,  the 
Rocky  Mountains  on  the  east,  and  the  Pacific 
ocean  on  the  west,  and  formerly  constituting  a 
part  of  Oregon,  was  established  by  an  act  of  con- 
gress of  March  2,  1863,  which  act  is  the  funda- 
mental law  of  the  territory.  10  Stat,  at  Large. 
The  limits  upon  the  north  were  settled  by  treaty 
of  the  United  States  with  Great  Britain  signed 
June  15,  ]  846.  Proclamation  thereof  was  made  by 


WASHINGTON 


653 


WASHINGTON 


the  president,  Aug.  5,  1846.  The  organic  act  erect- 
ing the  territory  was  approved  March  2,  186.'].  The 
territory  includes  that  part  of  the  territory  of 
Oregon  lying  north  of  the  Columbia  river  to  the 
point  where  said  river  crosses  the  4fith  parallel  of 
north  latitude,  thence  on  said  pnrallel  to  the  sum- 
n.it  of  the  Rocky  Mountains.  The  provisions  of 
the  organic  act  are  the  same,  with  the  exceptions 
liere  given,  as  those  of  the  act  erecting  the  territory 
of  New  Mexico.    See  New  Mexico. 

The  present  qualifications  of  voters,  subject  to 
change  by  legislation,  are  as  follows : — all  free 
white  male  inhabitants  who  have  lived  in  the 
territory  three  months,  and  in  the  county  in  which 
they  offer  to  vote  fifteen  days,  before  election,  pro- 
vided they  are  citizens  of  the  United  States,  or  have 
declared  their  intention  to  become  such.  This  is 
not  to  prevent  half-breed  Indians  whom  the  judges 
think  to  have  adopted  the  habits  of  civilized  life, 
from  voting.  But  no  person  under  guardianship, 
non  compos  mentis,  or  convicted  of  treason,  felony, 
or  bribery,  can  vote,  unless  restored  to  civil  rights. 

3.  The  Legislative  Poiver  and  authority  of  said 
territory  is  vested  in  a  legislative  assembly,  consist- 
ing of  a  council  and  house  of  representatives. 
The  council  consists  of  nine  members,  having  the 
qualifications  of  voters,  who  hold  their  offices  for 
the  term  of  three  years.  The  house  of  representa- 
tives consists  of  any  number  of  members,  not  less 
than  eighteen  nor  over  thirty,  who  hold  their  office 
for  one  year.  No  session  of  the  legislature  can 
exceed  sixty  days.  The  legislative  power  of  the 
territory  extends  to  all  rightful  subjects  of  legisla- 
tion not  inconsistent  with  the  constitution  and 
laws  of  the  United  States.  No  law  is  to  be  passed 
interfering  with  the  primary  disposal  of  the  soil ; 
no  tax  is  to  be  imposed  upon  the  property  of  the 
United  States;  nor  can  the  lands  or  other  property 
of  non-residents  be  taxed  higher  than  the  lands  or 
other  property  of  residents.  All  laws  passed  by 
the  legislative  assembly  must  be  submitted  to  con- 
gress, and  if  disapproved  are  null  and  of  no  effect. 
The  legislature  has  no  power  to  incorporate  a 
bank,  or  any  institution  with  banking  powers,  or  to 
borrow  money  in  the  name  of  the  territory,  or  to 
pledge  the  faith  of  the  people  of  the  same  for  any 
loan  whatever,  directly  or  indirectly;  can  pass  no 
charter  granting  any  privileges  of  making,  issuing, 
or  putting  into  circulation  any  notes  or  bills  in  the 
likeness  of  bank-notes,  or  any  bonds,  scrip,  drafts, 
bills  of  exchange,  or  grant  any  other  banking 
powers  or  privileges,  or  allow  the  establishment  of 
any  branch  or  agency  of  any  such  corporation, 
derived  from  other  authority  ;  cannot  authorize  the 
issue  of  any  obligation,  scrip,  or  evidence  of  debt 
in  any  mode  or  manner  whatever,  except  certifi- 
cates for  service  to  said  territory.  All  township, 
district,  and  county  officers  not  otherwise  provided 
for  in  the  organic  act  are  to  be  appointed  or  elected 
in  such  manner  as  is  provided  by  the  legislative 
assembly  of  the  territory.  No  member  of  the 
legislative  assembly  can  hold  or  be  appointed  to 
any  office  which  has  been  created,  or  the  salary  or 
emoluments  of  which  have  been  increased,  while  he 
was  a  member,  during  the  term  for  which  he  was 
elected,  and  for  one  year  after  the  expiration  of 
such  term;  and  no  person  holding  a  commission  or 
appointment  under  the  United  States  can  be  a 
member  of  the  legislative  assembly,  or  hold  any 
office  under  the  government  of  said  territory. 

4,  The  Executive  branch  of  the  government  of 
thi?  territory  is  vested  in  a  governor,  who  holds  his 
office  for  four  years  and  until  his  successor  is 
appointed  and  qualified,  unless  sooner  removed  by 
the  president  of  the  United  States.  He  must 
reside  in  the  territory ;  is  commander-in-chief  of 
the  militia  thereof ;  may  grant  pardons,  remit  fines 
and  forfeitures  for  off"ences  against  the  laws  of  the 
territory,  and  respites  for  off'ences  against  the  laws 


of  the  United  States  until  the  decision  of  th« 
president  can  be  made  known ;  shall  commission 
all  officers  who  shall  be  appointed  to  office  under 
the  laws  of  said  territory,  when  by  law  such  com- 
mission shall  be  required,  and  shall  take  care  that 
the  laws  be  faithfully  executed.  He  can  neither 
approve  nor  veto  any  act  of  the  legislature. 

The  secretary  of  the  territory  holds  his  office  for 
four  years,  subject  to  removal  by  the  president  of 
the  United  States.  In  case  of  the  death,  removal, 
resignation,  or  absence  of  the  governor  frjm  the 
territory,  he  is  authorized  and  required  to  execute 
and  perform  the  powers  and  duties  of  the  governoi 
during  such  vacancy  or  absence. 

The  judicial  power  of  the  territory  is  vested  in 
a  supreme  court,  district  courts,  probate  courts,  and 
justices  of  the  peace. 

The  supreme  court  consists  of  a  chief  justice  and 
two  associate  justices,  who  hold  a  term  at  the  seat 
of  government  annually,  and  hold  their  office  for 
four  years,  subject  to  removal  by  the  president  of 
the  United  States. 

5.  A  district  court  is  holden,  in  each  of  the  three 
districts  into  which  the  territory  is  divided  for  the 
purpose,  by  one  of  the  justices  of  the  supreme 
court,  who  must  reside  in  the  district  assigned  to 
him  by  the  legislative  assembly.  Each  of  said 
district  courts  has  and  exercises  the  same  jurisdic- 
tion, under  the  constitution  of  the  United  States 
and  the  laws  of  said  territory,  as  is  vested  in  the 
circuit  and  district  courts  of  the  United  States. 
Writs  of  error  and  appeal  may  be  taken  from  the 
district  to  the  supreme  court,  and  from  the  supreme 
court  of  the  territory  to  the  supreme  court  of  the 
United  States,  where  the  amount  in  controversy 
exceeds  two  thousand  dollars.  Each  court  appoints 
its  own  clerk. 

The  county  commissioners,  three  in  each  county, 
are  elected  by  the  people  of  the  county,  for  three 
years.  They  are  so  classified  that  one  goes  out  of 
office  each  year.  They  have  the  general  care  of 
the  county  buildings  and  finances,  divide  the  county 
into  election-precincts,  and  take  charge  of  the  county 
poor. 

Justices  of  the  peace,  one  or  more,  if  authorized 
by  the  county  commissioners,  are  elected  annually 
by  the  voters  of  each  election-precinct.  They  have 
jurisdiction  in  all  actions  founded  on  contract, 
where  the  sum  involved  is  not  over  one  hundred 
dollars,  for  injury  to  real  or  personal  property,  for 
detainer  of  personal  property,  for  penalty  where 
the  amount  does  not  exceed  one  hundred  dollars, 
for  foreclosure  of  mortgage,  or  enforcement  of  lien 
on  personal  property,  of  forcible  entry  and  detainer, 
to  try  right  to  mining  claims.  A  jury  of  six  may 
be  demanded  by  either  party,  and  an  appeal  lies 
from  the  decision  of  the  justice  to  the  circuit  court. 
They  have  also  a  criminal  jurisdiction  where  the 
penalty  does  not  exceed  thirty  dollars.  For  the  rest 
of  the  judicial  system  as  established  by  the  organic 
act,  see  New  Mexico. 

6.  A  delegate  to  the  house  of  representatives  of 
the  United  States,  to  serve  for  the  term  of  two 
years,  who  must  be  a  citizen  of  the  United  States, 
may  be  elected  by  the  voters  qualified  to  elect 
members  of  the  legislative  assembly,  who  is  en- 
titled to  the  same  rights  and  privileges  as  are 
exercised  and  enjoyed  by  the  delegates  from  the 
several  other  territories  of  the  United  States  to  the 
house  of  representatives. 

By  the  territorial  legislature,  all  common-law 
forms  of  action,  and  all  distinctions  between  law 
and  equity,  are  abolished,  and  there  can  be  but 
one  form  of  action  to  establish  and  enforce  private 
rights,  which  is  called  a  civil  action.  Stats.  W.  T. 
1854,  p.  131. 

Eeal  estate  descends  as  follows : 

To  the  children  of  the  intestate  in  equal  shams, 
or  to  the  issue  of  his  deceased  children. 


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654 


WASTE 


If  he  dies  leaving  no  issue,  to  the  father. 

Leaving  no  issue,  or  fither,  in  equal  shares  to  his 
brothers,  and  sisters,  and  mother. 

Leaving  no  issue,  father,  brother,  or  sister,  to  his 
mother,  to  the  exclusion  of  the  issue  of  his  de- 
ceased brothers  or  sisters. 

Leaving  no  issue,  father,  mother,  brother,  or  sister, 
his  estate  descends  to  his  next  of  kin  in  equal  degree, 
excepting  that  when  there  are  two  or  more  collate- 
ral kindred  in  equal  degree,  but  claiming  through 
different  ancestors,  those  who  claim  through  the 
nearest  ancestor  are  preferred. 

If  any  person  die  leaving  several  children,  or 
leaving  one  child  and  the  issue  of  one  or  more 
others,  and  any  such  surviving  child  die  under  age 
and  not  having  been  married,  all  the  estate  that 
came  to  the  deceased  child  by  inheritance  from 
Buch  deceased  parent  descends  in  equal  shares  to 
the  other  children  of  the  same  parent,  and  to  the 
issue  of  any  such  other  children  who  have  died,  by 
right  of  representation. 

If  at  the  death  of  such  child  who  dies  under 
age,  not  having  been  married,  all  the  other  chil- 
dren of  the  said  parent  are  also  dead,  and  any  of 
them  have  left  issue,  the  estate  that  came  to  such 
child  by  inheritance  from  his  said  parent  descends 
to  all  the  issue  of  the  other  children  of  the  same 
parent;  and  if  all  the  said  issue  are  in  the  same 
degree  of  kindred  to  the  said  child,  they  share  the 
estate  equally ;  otherwise  they  take  according  to 
the  right  of  representation. 

If  the  intestate  leave  no  kindred,  his  estate 
escheats  to  the  county  of  which  he  was  a  resident. 
Stats.  W.  T.  1854,  p.  305. 

T.  Deeds  to  convey  real  estate  or  any  interest 
therein  must  be  in  writing,  signed  and  sealed  by 
the  party  bound  thereby,  witnessed  by  two  wit- 
nesses, and  acknowledged  before  a  judge  of  the 
supreme  court,  a  judge  of  the  probate  court,  a 
justice  of  the  peace,  or  a  notary  public.  A  mar- 
ried woman,  to  be  bound,  must  join  with  her  hus- 
band.   Stats.  W.  T.  1854,  p.  402. 

Wills.  Every  person  of  twenty -one  years  of 
age  and  upwards,  of  sound  mind,  may  by  last  will 
devise  all  his  estate,  real  and  personal,  saving  to 
the  widow  her  dower.  A  married  woman  may  by 
will  dispose  of  any  real  estate  held  in  her  own 
right,  subject  to  any  right  her  husband  may  have 
as  tenant  by  curtesy. 

Every  will  must  be  in  writing,  signed  by  the 
testator  or  by  some  other  person  under  his  direc- 
tion in  his  presence,  and  shall  be  attested  by  two  or 
more  competent  witnesses,  subscribing  their  names 
to  the  will  in  the  presence  of  the  testator.  Stats. 
W.  T.  1854,  p.  313. 

WASTE.  Spoil  or  destruction,  done  or 
permitted,  to  lands,  houses,  or  other  corporeal 
hereditaments,  by  the  tenant  thereof,  to  the 
prejudice  of  the  heir  or  of  him  in  reversion 
or  remainder. 

Permissive  waste  consists  in  the  mere  neg- 
lect or  omission  to  do  what  will  prevent 
injury:  as,  to  suffer  a  house  to  go  to  decay 
for  the  want  of  repair.  And  it  may  be  in- 
curred in  respect  to  the  soil,  as  well  as  to 
the  buildings,  trees,  fences,  or  live  stock  on 
<he  premises. 

Voluntary  waste  consists  in  the  commission 
;f  some  destructive  act :  as,  in  pulling  down 
A  house  or  ploughing  up  a  flower-garden.  1 
?aige,  Ch.  N.  Y.  573. 

2.    Voluntarij  waste  is  committed  upon 
cultivated ^cZcZ^,  orchards,  gardens ,  meadows, 
4nd  the  like,  whenever  a  tenant  uses  ther 
contrary  to  the  usual  course  of  husbandry  < 
iD  such  a  manner  as  to  exhaust  the  soil  ^ 


negligent  or  improper  tillage.  5  Term,  373; 
6  Ves.  Ch.  328 ;  2  Hill,  N.  Y.  157  ;  2  Bos.  & 
P.  86.  It  is,  therefore,  waste  to  convert 
arable  into  wood  land,  or  the  contrary.  Coke, 
Litt.  53  b.  Cutting  down  fruit-trees,  although 
planted  by  the  tenant  himself,  is  waste,  2 
Rolle,  Abr.  817 ;  and  it  was  held  t  j  be 
waste  for  an  outgoing  tenant  of  garden- 
ground  to  plough  up  strawberry-beds  which 
he  had  bought  of  a  former  tenant  when  he 
entered.  1  Campb.  227.  When  lands  are 
leased  on  which  there  are  open  mines  of 
metal  or  coal,  or  pits  of  gravel,  lime,  clay, 
brick-earth,  stone,  and  the  like,  the  tenant 
may  dig  out  of  such  mines  or  pits ;  but  he 
cannot  open  any  new  mines  or  pits  without 
being  guilty  of  waste.  Coke,  Litt.  53  h.  See 
Mines.  Any  carrying  away  of  the  soil  is 
also  waste.  Comyns,  Dig.  Waste  ( D  4) ;  14 
East,  489  ;  2  Hill,  N.  Y.  157  ;  6  Barb.  N.  Y. 
13;  Coke,  Litt.  53  6;  1  Schoales  &  L.  Ir. 
Ch.  8. 

3.  It  is  committed  in  houses  by  pulling 
them  down,  or  by  removing  wainscots,  floors, 
benches,  furnaces,  windows,  doors,  shelves, 
and  other  things  once  fixed  to  the  freehold, 
although  they  may  have  been  erected  by  the 
lessee  himself,  unless  they  are  mere  fixtures. 
See  Fixtures.  And  this  kind  of  waste  may 
take  place  not  only  in  pulling  down  houses  or 
parts  of  them,  but  also  in  changing  their  forms : 
as,  if  the  tenant  pull  down  a  house  and  erect 
a  new  one  ip.  its  place,  whether  it  be  larger 
or  smaller  than  the  first,  2  Rolle,  Abr. 
815  ;  or  convert  a  parlor  into  a  stable,  or  a 
grist-mill  into  a  fulling-mill,  2  Rolle,  Abr. 
814,  815,  or  turn  two  rooms  into  one.  2  Rolle, 
Abr.  815.  The  building  of  a  house  where 
there  was  none  before  was,  by  the  strict  rules 
of  the  common  law,  said  to  be  waste.  Coke, 
Litt.  53  a;  and  taking  it  down  after  it  was 
built  was  waste  also.  Comyns,  Dig.  Waste 
(D  2)  ;  2  East,  88 ;  1  Barnew.  &  Ad.  161 ;  8 
Mass.  416 ;  1  Mete.  Mass.  27  ;  4  Pick.  Mass. 
310;  19N.Y.234;  16  Conn.  322;  2  M'Cord, 
So.  C.  329 ;  1  Harr.  &  J.  Md.  289  ;  1  Watts, 
Penn.  378. 

4.  Voluntary  waste  may  also  be  committed 
upon  timber;  and  in  those  countries  where 
timber  is  scarce  and  valuable,  the  law  is  strict 
in  this  respect.  But  many  acts  which  in 
England  would  amount  to  waste  are  not  so 
here.  The  law  of  waste  accommodates  itself 
to  the  varying  wants  and  conditions  of  dif- 
ferent countries :  that  will  not,  for  instance, 
be  waste  in  an  entire  woodland  country  which 
would  be  so  in  a  cleared  one.  The  clearing 
up  of  land  for  the  purposes  of  tillage  in  a 
new  country  where  trees  abound  is  no  injury 
to  the  inheritance,  but,  on  the  contrary,  is  a 
benefit  to  the  re'  ^derman,  so  long  as  there 
is  sufficient  ^'  %  and  the  land  cleared 
bears  a  "  ave  proportion  to  the 
whole  "*  At,  Comm.  316;  3  Yeates, 
Pe^-                  ^tts,  Penn.  463  ;  6  Munf.  Va. 

Va.  258;  2  South.  N.  J.  552; 
«  ar.  Ky.  342  ;  6  Yerg.  Tenn.  334 ; 

J.  C.  13  ;  2  Hay w.  No.  C.  339 ;  26 
1.  N.  Y.  122;  2  Hill,  N.  Y.  157. 


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655 


WASTE 


5.  The  extent  to  which  wood  and  timber 
on  such  land  may  be  cut  without  waste,  is  a 
question  of  fact  for  a  jury  to  determine  under 
the  direction  of  the  court.  7  Johns.  N.  Y. 
f.27.  A  tenant  may  always  cut  trees  for  the 
repair  of  the  houses,  fences,  hedj2;es,  stiles, 
gates,  and  the  like.  Coke,  Litt.  53  b,  and 
for  making  and  repairing  all  instruments  of 
husbandry  :  as,  ploughs,  carts,  harrows,  rakes, 
forks,  etc.  Wood,  Inst.  344.  See  Estovers. 
And  he  may,  when  unrestrained  by  the  terms 
of  the  lease,  cut  timber  for  firewood,  if  there 
be  not  enough  dead  timber  for  such  purposes. 
Comyns,  Dig.  Was!e{'D5) :  Fitzherbert,  Nat. 
Brev.  59  w.  But  where,  under  such  circum- 
stances, he  is  entitled  to  cut  down  timber,  he 
is  restrained,  nevertheless,  from  cutting  orna- 
mental trees  or  those  planted  for  shelter,  6 
Ves.  Ch.  419,  or  to  exclude  objects  from 
sight  16  Ves.  Ch.  375  ;  7  Ired.  Eq.  No.  C. 
197  ;  6  Barb.  N.  Y.  9. 

A  tenant  of  a  dove-house,  warren,  park, 
fish-pond,  or  the  like,  would  also  be  guilty 
of  waste  if  he  took  away  animals  therefrom 
to  such  an  extent  as  not  to  leave  as  large  a 
stock  of  them  as  he  found  when  he  came  in. 
Coke,  Litt.  53 ;  2  Leon.  222. 

Windfalls  are  the  property  of  the  landlord  ; 
for  whatever  is  severed  by  inevitable  neces- 
sity, as,  by  a  tempest,  or  by  a  trespasser,  and 
by  wrong,  belongs  to  him  who  has  the  inherit- 
ance. 3  P.Will.  Ch.  268;  11  Coke,  81;  Bacon, 
Abr.  Waste  (D  2). 

6.  In  general,  a  tenant  is  answerable  for 
waste  although  it  is  committed  by  a  stranger; 
for  he  is  the  custodian  of  the  property,  and 
must  take  his  remedy  over.  2  Dougl.  745  ; 
1  Taunt.  198  ;  1  Den.  N.  Y.  104.  But  he 
is  not  liable  when  the  damage  is  caused 
by  lightning,  tempest,  or  a  public  enemy. 
Coke,  2d  Inst.  303 ;  F.  Moore,  69 ;  5  Coke, 
21 ;  Sheppard,  Touchst.  173  ;  4  Kent,  Comm. 
77.  He  was  also  liable,  at  common  law,  for 
all  damages  done  by  fire,  accidental  or  other- 
wise, upon  the  premises ;  but  the  English 
statute  of  14  Geo.  III.  c.  78,  first  enacted  that 
no  action  should  be  had  against  any  person 
in  whose  house,  chamber,  or  other  building 
or  on  whose  estate  a  fire  shall  accidentally 
begin  ;  and  this  statute  has  been  very  gene- 
rally re-enacted  throughout  the  United  States. 
The  protection  afforded  by  these  statutes, 
however,  extends  only  to  a  case  of  accidental 
fire, — that  is,  to  one  which  cannot  be  traced 
to  any  particular  or  wilful  cause, — and  stands 
opposed  to  the  negligence  of  either  servants 
or  masters.  And  therefore  an  action  still 
lies  against  a  person  upon  whose  premises  a 
fire  commences  through  the  negligence  of 
himself  or  his  servants  and  is  productive  of 
injury  to  his  neighbor.  1  Den.  N.  Y.  207  ;  8 
Johns.  N.Y.  421;  2  Harr.  Del.  443  ;  21  Pick. 
Mass.  378  ;  1  Halst.  N.  J.  127  ;  6  Taunt.  44; 
Taylor,  Landl.  &  T.  196. 

•y.  Permissive  icaste  to  buildings  consists  in 
omitting  to  keep  them  in  tenantable  repair; 
suffering  the  timbers  to  become  rotten  by 
neglecting  to  cover  the  house ;  or  suffering 
the  walls  to  fall  into  decay  for  want  of  plaster- 


ing, or  the  foundation  to  be  injured  by  neg« 
looting  to  turn  off"  a  stream  of  water,  and 
the  like.  Coke,  Litt.  53  a;  Ow.  43.  See 
Landlord  and  Tenant.  At  common  law, 
the  mere  suffering  of  a  house  to  remain  un* 
roofed,  if  it  was  so  at  the  commencement  of 
the  lease,  would  not  be  waste,  but  a  tenant 
assumed  the  responsibility  of  any  other  part 
of  the  house  thereby  becoming  ruinous  or 
decayed.  And  so,  although  the  injury  or 
destruction  of  a  house  by  lightning,  tempest, 
or  a  public  enemy  would  not  be  waste,  yet 
to  suffer  it  to  remain  ruined  would  be.  2 
Rolle,  Abr.  818 ;  F.  Moore,  69 ;  10  Ad.  &  E. 
398 ;  4  Leon.  240.  Permissive  waste  in 
houses,  however,  as  a  general  rule,  is  now 
only  punishable  when  a  tenant  is  bound  to 
repair,  either  expressly  or  by  implication.  4 
Bos.  &  P.  298  ;  10  Barnew.  &  C.  312. 

8.  The  redress  for  this  injury  is  of  two 
kinds,  preventive  and  corrective.  A  rever- 
sioner or  remainderman,  in  fee,  for  life,  or 
for  years,  may  now  recover,  by  an  ordinary 
action  at  law,  all  damages  he  has  sustained 
by  an  act  of  voluntary  waste  committed  by 
either  his  tenant  or  a  stranger,  provided  the 
injury  affects  his  reversion.  But  as  against 
a  tenant  for  years,  or  from  year  to  year,  he 
can  only  sustain  an  action  for  damages  for 
permissive  waste  if  his  lease  obliges  the  ten- 
ant to  repair.  2  Saund.  252  d,  note  ;  3  East, 
38  ;  10  Barnew.  &  C.  312.  The  statutes  of 
the  several  states  also  provide  special  relief 
against  waste  in  a  great  variety  of  cases, 
following,  in  general,  the  English  Statute  of 
Gloucester,  which  not  only  forfeits  the  pre- 
mises, but  gives  exemplary  damages  for  all 
the  injury  done.  These  legal  remedies,  how- 
ever, are  still  so  inadequate,  as  well  to  pre- 
vent future  waste  as  to  give  redress  for  waste 
already  committed,  that  they  have  in  a  great 
measure  given  way  to  the  remedy  by  bill 
in  equity,  by  which  not  only  future  waste, 
whether  voluntary  or  permissive,  will  be  pre- 
vented, but  an  account  may  be  decreed  and 
compensation  given  for  past  waste  in  the 
same  proceeding.  2  Mer.  Ch.  408 ;  1  Ves. 
Ch.  93  ;  2  Story,  Eq.  Jur.  179  ;  Taylor,  Landl. 
&  T.  690. 

9.  The  reversioner  need  not  wait  until 
waste  has  actually  been  committed  before 
bringing  his  action  ;  for  if  he  ascertains  that 
the  tenant  is  about  to  commit  any  act  which 
would  operate  as  a  permanent  injury  to  the 
estate,  or  if  he  threatens  or  shows  any  inten- 
tion to  commit  waste,  the  court  will  at  once 
interfere  and  restrain  him  by  injunction  from 
doing  so.  2  Atk.  Ch.  182  :  18  Ves.  Ch.  355  ; 
2  Ves.  &  B.  Ch.  Ir.  349 ;  1  Johns.  Ch.  N.  Y. 
435;  1  Jac.  &  W.  Ch.  653. 

Sometimes  a  tenant,  whether  for  life  or  for 
years,  by  the  instrument  creating  his  estate, 
holds  his  lands  without  impeachment  of  icaste. 
This  expression  is  equivalent  to  a  general 
permission  to  commit  waste,  and  at  common 
law  would  authorize  him  to  cut  timber,  or 
open  new  mines  and  convert  the  produce  to 
his  own  use.  Coke,  Litt.  220  ;  11  Coke,  81 
6;  15  Ves.  425.    But  equity  puts  a  limited 


WASTE-BOOE  656 


construction  upon  this  clause,  and  only  allows 
a  tenant  those  powers  under  it  which  a  pru- 
dent tenant  in  fee  would  exercise,  and  will, 
therefore,  restrain  him  from  pulling  down 
or  dilapidating  houses,  destroying  pleasure- 
houses,  or  prostrating  trees  planted  for  orna- 
ment or  shelter,  2  Vern.  Ch.  739  ;  3  Atk. 
Ch.  215  ;  6  Ves.  Ch.  110 ;  16  id.  375. 

See,  on  the  subject  in  general,  Woodfall, 
Landl.  &  T.  217,  c.  9,  s.  1 ;  Bacon,  Abr. 
Waste;  Viner,  Abr.  Waste;  Comyns,  Dig. 
Waste;   Sharswood,  Blackst.  Comm.  180; 

1  Washburn,  Real  Prop. 

As  to  remedies  against  waste  by  injunc- 
tion, see  1  Vern.  Ch.  23,  n.;  5  P.  Will.  268, 
n.  F  ;  1  Eq.  Cas.  Abr.  400 ;  6  Ves.  Ch.  107, 
419,  787  ;  8  id.  70  ;  16  id.  375  ;  2  Swanst. 
Ch.  251;  3  Madd.  Ch.  498;  Jac.  Ch.  70; 
Drewry,  Inj.  pt.  2,  c.  1,  p.  134.  As  between 
tenants  in  common,  5  Taunt.  24 ;  16  Ves.  Ch. 
132 ;  19  id.  159  ;  3  Brown,  Ch.  622 ;  2  Dick. 
Ch.  667  ;  Bouvier,  Inst.  Index  ;  Injunction. 

As  to  remedy  by  writ  of  estrepement  to 
prevent  waste,  see  Estrepement  ;  Woodfall, 
Landl.  &  T.  447  ;  2  Yeates,  Penn.  281 ;  4 
Smith,  Laws  of  Penn.  89 ;  3  Blackstone, 
Comm.  226. 

As  to  remedies  in  cases  of  fraud  in  com- 
mitting waste,  see  Hovenden,  Frauds,  c.  7,  pp. 
226-238. 

WASTE-BOOK.  In  Commercial  Law. 

A  book  used  among  merchants.  All  the  deal- 
ings of  the  merchants  are  recorded  in  this 
book  in  chronological  order  as  they  occur. 

WATCH.  To  stand  sentry  and  attend 
guard  during  the  night-time.  Certain  oflScers 
called  watchmen  are  appointed  in  most  of 
the  United  States,  whose  duty  it  is  to  arrest 
all  persons  who  are  violating  the  law  or 
breaking  the  peace.  See  1  Sharswood,  Blackst. 
Comm.  356 ;  1  Chitty,  Crim.  Law%  14,  20. 

WATCH  AND  WARD.  A  phrase  used 
in  the  English  law  to  denote  the  superintend- 
ence and  care  of  certain  officers  whose  duties 
are  to  protect  the  public  from  harm. 

WATCHMAN.  An  officer  in  many  cities 
and  towns,  whose  duty  it  is  to  watch  during 
the  night  and  take  care  of  the  property  of 
the  inhabitants. 

He  possesses,  generally,  the  common-law 
authority  of  a  constable  to  make  arrests,  where 
there  is  reasonable  ground  to  suspect  a  felony, 
though  there  is  no  proof  of  a  felony  having 
been  committed.     1  Chitty,  Crim.  Law,  24; 

2  Hale,  PI.  Cr.  96 ;  Hawkins,  PI.  Cr.  b.  2,  c. 
13,  s.  1,  etc. ;  1  East,  PI.  Cr.  303  ;  Coke,  2d 
Inst.  52;  Comyns,  J)\g.  Imprisonment  (H  4) ; 
Dane,  Abr.  Index  ;  3  Taunt.  14 ;  1  Barnew. 

Aid.  227 ;  Peake,  89  ;  1  Mood.  Cr.  Cas.  334; 
1  Esp.  294. 

By  an  act  of  congress,  approved  Sept.  30, 
1850,  the  compensation  of  watchmen  in  the 
various  departments  of  government  is  fixed 
at  five  hundred  dollars  per  annum. 

WATER.  That  liquid  substance  of 
which  the  sea,  the  rivers,  and  creeks  are 
composed. 


WATER-COURSE 


A  pool  of  water,  or  a  stream  or  water- 
course,  is  considered  as  part  of  the  land : 
hence  a  pool  of  twenty  acres  would  pass  by 
the  grant  of  twenty  acres  of  land,  without 
mentioning  the  water.  2  Blackstone,  Comm. 
18  ;  2  N.  H.  255,  391 ;  1  Wend.  N.  Y.  255  ; 
5  Paige,  Ch.  N.  Y.  141 ;  5  Cow.  N.  Y.  216  ; 

5  Conn.  497  ;  14  Mass.  49 ;  8  Mete.  Mass. 
466 ;  2  Harr.  &  J.  Md.  195 ;  8  Penn.  St. 
13.  A  mere  grant  of  water  passes  only  a 
fishery.  Coke,  Litt.  4  6;  5  Cow.  N.  Y.  216. 
But  the  owner  of  land  over  which  water 
flows  may  grant  the  land,  reserving  the  use 
of  all  the  water  to  himself,  or  may  grant  the 
use  of  all  or  a  portion  of  the  water,  reserv- 
ing the  fee  of  the  land  to  himself.  26  Vt. 
64  ;  3  Hill,  N.  Y.  418  ;  22  Pick.  Mass.  333  ; 

6  Mete.  Mass.  131 ;  18  Eng.  L.  &  Eq.  164. 

WATER  BAILIFF.  In  English  Law 

An  officer  appointed  to  search  ships  in  ports. 
10  Hen.  VII.  30. 

WATER-COURSE.  This  term  is  ap- 
plied  to  the  flow  or  movement  of  the  watei 
in  rivers,  creeks,  and  other  streams. 

2.  In  a  legal  sense,  property  in  a  water- 
course is  comprehended  under  the  general 
name  of  land :  so  that  a  grant  of  land  con- 
veys to  the  grantee  not  only  fields,  meadows, 
and  the  like,  but  also  all  the  rivers  and 
streams  which  naturally  pass  over  the  sur- 
face of  the  land.  1  Coke,  Litt.  4  ;  2  Brownl. 
142 ;  2  N.  H.  255  ;  5  Wend.  N.  Y.  423.  See 
Water. 

Those  who  own  land  bounding  upon  a 
water-course  are  denominated  by  the  civilians 
r?j?anaw  proprietors;  and  this  convenient  term 
has  been  adopted  by  judges  and  writers  on 
the  common  law.  Angell,  Wat.-Courses,  3  ; 
3  Kent,  Comm.  354 ;  4  Mas.  C.  C.  397. 

3.  By  the  rules  of  the  common  law,  all 
proprietors  of  lands  have  precisely  the  same 
rights  to  waters  flowing  through  their  do- 
mains, and  one  can  never  be  permitted  so  to 
use  the  stream  as  to  injure  or  annoy  those 
situated  on  the  course  of  it,  either  above  or 
below  him.  They  have  no  property  in  the  water 
itself,  but  a  simple  usufruct :  aqua  currit  et 
debet  currere  ut  currere  solebat,  is  the  language 
of  the  law.  Accordingly,  while  each  successive 
riparian  proprietor  is  entitled  to  the  reasonable 
use  of  the  water  for  the  supply  of  his  natural 
wants  and  for  the  operation  of  mills  and 
machinery,  he  has  no  right  to  flow  the  water 
back  upon  the  proprietor  above,  Croke  Jac. 
556;  9N.H.502;  24/rf.364;  9  Watts,  Penn. 
119  ;  20  Penn.  St.  85  ;  3  Rawle,  Penn.  84  ;  4 
Eng.  L.  &  Eq.  265  ;  1  Barnew.  &  Aid.  874; 
3  Green,  N.  J.  116  ;  4  111.  452  ;  38  Me.  243 ; 
nor  to  discharge  it  so  as  to  flood  the  proprie- 
tor below,  17  Johns.  N.  Y.  306 ;  3  Hill,  N.  Y. 
531 ;  5  Vt.  371 ;  3  Harr.  &  J.  Md.  231 ;  nof 
to  divert  the  water,  17  Conn.  288  ;  13  Johns 
N.  Y.  212  ;  10  Barb.  N.  Y.  518  ;  24  Ala.  n.  Sv 
130 ;  28  Vt.  670;  38  Eng.  L.  &  Eq.  526,  even 
for  the  purpose  of  irrigation,  unless  it  be 
returned  without  essential  diminution,  38 
Eng.  L.  &  Eq.  241;  13  Mass,  420  ;  5  Pick. 
Mass.  175  ;  8  Me  253  ;  12  Wend.  N.  Y.  330; 


WATERGANQ 


657 


WAY 


4  111.  496 ;  nor  to  obstruct  or  detain  it,  except 
for  fiome  reasonable  purpose,  such  as  to  obtain 
a  head  of  water  for  a  mill  and  to  be  again 
discharged,  so  as  to  allow  all  on  the  same 
stream  a  fair  participation,  17  Barb.  N.  Y. 
654 ;  10  Cush.  Mass.  367  ;  6  Ind.  324 ;  28  Vt. 
459  ;  6  Penn.  St.  32  ;  29  id.  98  ;  4  Mas.  C.  C. 
401;  17  Johns.  N.  Y.  306;  13  Conn.  303  ; 
nor  to  corrupt  the  quality  of  the  water  by 
unwholesome  or  discoloring  impurities.  24 
Penn.  St.  298  ;  22  Barb.  N.  Y.  297  ;  3  Rawle, 
Penn.  397  ;  8  Eng.  L.  &  Eq.  217  ;  3  Hill, 
N.  Y-  479  ;  4  Ohio,  833.  But,  while  such  are 
tho  rights  of  the  riparian  proprietors  when 
unaffected  by  contract,  these  rights  are  sub- 
ject to  endless  modifications  on  the  part  of 
those  entitled  to  their  enjoyment  either  by 
grant,  3  Conn.  373  ;  13  Johns.  N.  Y.  525  ;  17 
Me.  281 ;  3  Hill,  N.  Y.  418 ;  6  Mete.  Mass. 
131;  7  id.  94;  7  Penn.  St.  348;  18  Eng. 
L.  &  Eq.  164;  9  N.  H.  282;  3  N.  Y.  253, 
or  by  reservation,  6  N.  Y.  33  ;  20  Vt.  250, 
or  by  a  license,  2  Gill,  Md.  221 ;  13  Conn. 
303  ;  1  Mete.  Mass.  331 ;  14  Serg.  &  R.  Penn. 
267  ;  4  East,  107,  or  by  agreement,  19  Pick. 
Mass.  449 ;  21  id.  417 ;  22  id.  333  ;  3  Harr.  & 
J.  Md.  282;  17  Wend.  N.  Y.  136,  or  by  twenty 
years' adverse  enjoyment  from  which  a  grant 
or  contract  will  be  implied,  6  East,  208 ; 
1  Campb.  463 ;  4  Mas.  C.  C.  397 ;  6  Scott, 
167  ;  9  Pick.  Mass.  251,  in  such  a  way  as  to 
adapt  the  uses  of  the  water  to  the  complex 
and  multiplying  demands  and  improvements 
of  modern  civilization. 

4.  Wherever  a  water-course  divides  two 
estates,  each  estate  extends  to  the  thread  or 
central  line  of  the  stream  ;  but  the  riparian 
owner  of  neither  can  lawfully  carry  off  any 
part  of  the  water  without  the  consent  of  the 
other  opposite,  each  riparian  proprietor  being 
entitled  not  to  half  or  other  proportion  of  the 
water,  but  to  the  whole  bulk  of  the  stream, 
undivided  and  m6\\\^\\AQ,ov  per  my  et  pertout. 
13  Johns.  N.Y.  212;  8  Me.  253 ;  3  Sumn. 
C.  C.  189  ;  13  Mass.  507  ;  1  Paige,  Ch.  N.  Y. 
447.  When  an  island  is  on  the  side  of  a 
river,  so  as  to  give  the  riparian  owner  of  that 
side  only  one-fourth  of  the  water,  he  has 
no  right  to  place  obstructions  at  the  head  of 
the  island  to  cause  one-half  of  the  stream  to 
descend  on  his  side  of  the  river,  but  the 
owner  opposite  is  entitled  to  the  flow  of  the 
remaining  three-fourths.  10  Wend.  N.  Y.  260. 

Where  there  is  an  under-ground  flow  of 
water  so  well  defined  as  to  be  a  constant 
stream,  the  owner  of  the  land  through  which 
it  flows  has  no  right  to  divert  it  to  the  injury 
of  the  person  on  whose  land  it  comes  to  the 
surface  as  a  spring.  25  Penn.  St.  528 ;  29 
id.  59  ;  6  Paige,  Ch.  N.  Y.  435  ;  1  Stor.  C.  C. 
387.  But  see  12  Mees.  &  W.  Exch.  324  ;  28 
Vt.  49  :  Angell,  Wat.  II  109,  114.  And  see, 
generally,  Washburn,  Easements ;  Angell, 
Water-Courses;  3  Kent,  Comm.  439,  441; 
Woolrych,  Waters;  78  Law  Lib. ;  Schultes, 
Aquatic  Rights ;  Comyns,  Dig.  Action  for 
Nuisance;  Crabb,  Real  Prop.  |§  398-443 ;  Lois 
des  Bat.  pt.  1,  c.  3,  sec.  1,  art.  3. 

WATERGANG   (Law   Lat.  watergan- 

VoL.  II.— 42 


gium).  A  Saxon  word  for  a  trench  or  course 
to  carry  a  stream  of  water,  such  as  are  com- 
monly made  to  drain  water  out  of  marshes. 
Ordin.  Marisc.  do  Uomn.  Chart.  Hon.  111. 

WATERGAVEL.  A  rent  paid  for  fish- 
ing in,  or  other  benefit  from,  some  river. 
Chart.  15  Hen.  III. 

WAVESON.  Such  goods  as  appear 
upon  the  waves  after  shipwreck.  Jacob,  Law 
Diet. 

WAY.    A  passage,  street,  or  road. 

2.  A  right  of  way  is  the  ytrivilege  which 
an  individual,  or  a  particular  description  of 
individuals,  as,  the  inhabitants  of  a  village 
or  the  owners  or  occupiers  of  certain  farins, 
have  of  going  over  another's  ground.  It  ie 
an  incorporeal  hereditament  of  a  real  nature, 
entirely  different  from  a  common  highway. 
Cruise,  Dig.  tit.  xxiv.  s.  1. 

A  right  of  way  may  arise  hy  prescription 
and  immemorial  usage,  or  by  an  uninter- 
rupted enjoyment  for  twenty  years  under  a 
claim  of  right.  Coke,  Litt.  113;  1  RoUe, 
Abr.  936 ;  5  Harr.  &  J.  Md.  474 ;  36  Eng. 
L.  &  Eq.  564 ;  4  Gray,  Mass.  177,  547  ;  20 
Penn.  St.  331,  458  ;  4  Barb.  N.  Y.  60 ;  4  Mas. 
C.  C.  402  ;  8  Pick.  Mass.  504  ;  24  N.  H.  440. 
By  grant:  as,  where  the  owner  grants  to 
another  the  liberty  of  passing  over  his  land, 
3  Lev.  305  ;  1  Ld.  Raym.  75  ;  17  Mass.  416 ; 
19  Pick.  Mass.  250  ;  20  id.  291  ;  7  Barnew. 
&  C.  257  ;  Crabb,  Real  Prop,  g  366.  If  the 
grant  be  of  a  freehold  right,  it  must  be  by 
deed.  5  Barnew.  &  C.  221 ;  4  R.  I.  47.  By 
necessity:  as,  where  a  man  purchases  land 
accessible  only  over  land  of  the  vendor,  or 
sells  reserving  land  accessible  only  over  land 
of  the  vendee,  he  shall  have  a  way  of  neces- 
sity over  the  land  which  gives  access  to  his 
purchase  or  reservation.  2  Lutw.  1487 ;  5 
Taunt.  311 ;  23  Penn.  St.  333  ;  2  Mass.  203  ; 
14  id.  56 ;  3  Rawle,  Penn.  495  ;  11  Mo.  513; 
29  Me.  499 ;  27  N.  H.  448 ;  19  Wend.  N.  Y. 
507;  15  Conn.  39.  The  necessity  must  be 
absolute,  not  a  mere  convenience,  2  M'Cord, 
So.  C.  445  ;  24  Pick.  Mass.  102  ;  8  Rich.  So. 
C.  158 ;  and  when  it  ceases  the  way  ceases 
with  it.  18  Conn.  321 ;  1  Barb.  Ch.  N.  Y. 
353.  By  reservation  expressly  made  in  tho 
grant  of  the  land  over  which  it  is  claimed. 
10  Mass.  183  ;  25  Conn.  331.  By  custom:  as, 
where  navigators  have  a  right  of  this  nature 
to  tow  along  the  banks  of  navigable  rivers 
with  horses.  3  Term,  253.  By  acts  of  legis- 
lature; though  a  private  way  cannot  be  so 
laid  out  without  the  consent  of  the  owner  of 
the  land  over  which  it  is  to  pass.  15  Conn.  39, 
83  ;  4  Hill,  N.  Y.  47, 140 ;  4  B.  Monr.  Ky.  57. 

3.  A  right  of  way  may  be  either  a  right 
in  gross,  which  is  a  purely  personal  righi 
incommunicable  to  another,  or  a  right  ap 
pendant  or  annexed  to  an  estate,  and'  which 
may  pass  by  assignment  with  the  estate  to 
which  it  is  appurtenant.  3  Kent,  Comm. 
420  ;  6  Mod.  3  ;  2  Ld.  Ravm.  922  :  1  Watts, 
Penn.  35  ;  19  Pick.  Mass.  250  ;  3  Mete.  Mass. 
457.  A  right  of  way  appurtenant  to  land 
is  appurtenant  to  all  and  every  part  of  the 


WAY-BILL 


658 


WELCH  MORTGAGE. 


land,  and  if  such  land  be  divided  and  con- 
veyed in  separate  parcels  a  right  of  way 
thereby  pasv'^es  to  each  of  the  grantees.  1 
Cush.  Mass.  285  :  1  Serg.  &  R.  Penn.  229. 

Twenty  years'  occupation  of  land  adverse 
to  a  right  of  way  and  inconsistent  therewith 
bars  the  right.  2  Whart.  Penn.  123 ;  16 
Barb.  N.  Y.  184. 

Lord  Coke,  adopting  the  civil  law,  says 
there  are  three  kinds  of  ways:  a  footway, 
called  iter;  a  footway  and  horseway,  called 
actus ;  a  cartway,  which  contains  the  other 
two,  called  via.  Coke,  Litt.  56  a.  To  which 
may  be  added  a  driftioay,  a  road  over  which 
cattle  are  driven.  1  Taunt.  279  ;  Pothier, 
Pandectse,  lib.  8,  t.  3,  ^  1 ;  Dig.  8. 3  ;  1  Brown, 
Civ.  Law,  177. 

See  3  Kent,  Comm.  419  ;  Washburn,  Ease- 
ments ;  Crabb,  Real  Prop.;  Cruise,  Dig.; 
Highway. 

WAY-BILL.  A  writing  in  which  are  set 
down  the  names  of  passengers  who  are  carried 
in  a  public  conveyance,  or  the  description  of 
goods  sent  with  a  common  carrier  by  land, 
when  the  goods  are  carried  by  water,  the 
instrument  is  called  a  hill  of  lading. 

WAY-GOING  CROP.  In  Pennsyl- 
vania. By  the  custom  of  the  country,  a 
tenant  for  a  term  certain  is  entitled,  after  the 
expiration  of  his  lease,  to  enter  and  take 
away  the  crop  of  grain  which  he  had  put 
into  the  ground  the  preceding  fall.  This  is 
called  the  way-going  crop.  5  Binn.  Penn. 
289  ;  2  Serg.  &  R.  Penn.  14 ;  1  Penn.  St.  224. 
See  AwAY-GoiNG  Crop  ;  Emblements. 

WAYS  AND  MEANS.  In  legislative 
assemblies,  there  is  usually  appointed  a  com- 
mittee whose  duties  are  to  inquire  into  and 
propose  to  the  house  the  ways  and  means 
to  be  adopted  to  raise  funds  for  the  use  of  the 
government.  This  body  is  called  the  com- 
mittee of  ways  and  means. 

WEAR.  A  great  dam  made  across  a 
river,  accommodated  for  the  taking  of  fish  or 
to  convey  a  stream  to  a  mill.  Jacob,  Law 
Diet.    See  Dam. 

WED.  A  covenant  or  agreement:  whence 
a  wedded  husband. 

WEEK.    Seven  days  of  time. 

The  week  commences  immediately  after 
twelve  o'clock  on  the  night  between  Satur- 
day and  Sunday,  and  ends  at  twelve  o'clock, 
seven  days  of  twenty-four  hours  each,  there- 
after. 

The  first  day  of  the  week  is  called  Sun- 
day;  the  second,  Monday;  the  third,  Tues- 
day; the  fourth,  Wednesday ;  the  fifth,  Thurs- 
day ;  the  sixth,  Friday :  and  the  seventh, 
Saturday.    See  4  Pet.  361. 

WEIGHAGE.  In  English  Law.  A 
duty  or  toll  paid  for  weighing  merchandise: 
it  is  called  tronage  for  weighing  wool  at  the 
king's  beam,  or  pesage  for  weighing  other 
avoirdupois  goods.    2  Chitty,  Com.  Law,  16. 

WEIGHT.  A  quality  in  natural  bodies 
by  which  thoy  tend  towards  the  centre  of  the 
earth 


2.  Under  the  article  Measure,  it  is  said  that  by 
the  constitution  congress  possesses  the  power  "  to 
fix  the  standard  of  weights  and  measures,"  and  that 
this  power  has  not  been  exercised. 

The  weights  now  generally  used  in  the  United 
States  are  the  same  as  those  of  England;  they  ar« 
of  two  kinds. 

Avoirdupois  Weight. 

First,  used  in  almost  all  commercial  transao- 
tions,  and  in  the  common  dealings  of  life. 
27Ji  grains  =  1  dram. 
10     drams  =  1  ounce. 
16     ounces  =  1  pound  (lb.). 
28     pounds  =  1  quarter,  (qr.). 
4     quarters  =  1  hundredweight  (cwt.). 
20     hundredweight  =  1  ton. 

Second,  used  for  meat  and  fish. 

8  pounds  =  1  stone. 

Third,  used  in  the  wool-trade. 


7  pounds  =  1  clove. 
14  pounds  =  1  stone. 

2   stones    -  1  tod. 

6i  tods      =  1  wey. 

2  weys  =  1  sack. 
12   sacks    =  1  last. 


Cwt.  qr.  lb. 
0    0  14 

0  1^ 

1  2  14 
3  10 

39    0  0 


Fourth,  used  for  butter  and  cheese. 
8  pounds  =  1  clove. 
66  pounds  =  1  firkin. 

Troy  Weight. 

24  grains  =  1  pennyweight. 
20  pennyweights  =  1  ounce. 
12  ounces  =  1  pound. 

3.  These  are  the  denominations  of  troy  weight 
when  used  for  weighing  gold,  silver,  and  precious 
stones,  except  diamonds.  Troy  weight  is  also  used 
by  apothecaries  in  compounding  medicines ;  and 
by  them  the  ounce  is  divided  into  eight  drams,  and 
the  dram  into  three  scruples,  so  that  the  latter  is 
equal  to  twenty  grains.  For  scientific  purposes  the 
grain  only  is  used,  and  sets  of  weights  are  used  con- 
structed in  decimal  progression  from  10,000  grains 
downward  to  one-hundredth  of  a  grain.  The  carat 
used  for  weighing  diamonds  is  three  and  one-sixth 
grains. 

A  short  account  of  the  French  weights  and 
measures  is  given  under  the  article  Measure. 

WEIGHT  OF  EVIDENCE.  This  phrase 
is  used  to  signify  that  the  proof  on  one  side 
of  a  cause  is  greater  than  on  the  other. 

"When  a  verdict  has  been  rendered  against 
the  weight  of  the  evidence,  the  court  may,  on 
this  ground,  grant  a  new  trial;  but  the  court 
will  exercise  this  power  not  merely  with  a 
cautious  but  a  strict  and  sure  judgment,  be- 
fore they  send  the  case  to  a  second  jury. 

The  general  rule,  under  such  circumstances, 
is  that  the  verdict  once  found  shall  stand: 
the  setting  aside  is  the  exception,  and  ought 
to  be  an  exception  of  rare  and  almost  singu- 
lar occurrence.  A  new  trial  will  be  granted 
on  this  ground  for  either  party:  the  evidence, 
however,  is  not  to  be  weighed  in  golden  scales. 
3  Bingh.  n.  c.  109 ;  Gilp.  Dist.  Ct.  356 ;  4 
Yeates,  Penn.  437  ;  3  Me.  276  ;  8  Pick.  Mass. 
122 ;  5  Wend.  N.  Y.  595  ;  7  id.  380 ;  2  Va- 
Cas.  235. 

WELCH  'MORTGAGE  In  English 
Law.  A  species  of  security  which  partakes 
of  the  nature  of  a  mortgage,  as  there  is  a 


WELL 


659 


WHARF 


Jebt  due,  and  an  estate  is  ^!;iven  as  a  security 
for  the  repayment,  but  differs  from  it  in  the 
circumstances  that  the  rents  and  profits  are 
to  be  received  without  account  till  the  prin- 
cipal money  is  paid  off,  and  there  is  no 
remedy  to  enforce  payment,  while  the  mort- 
gagor has  a  perpetual  power  of  redemption. 

It  is  a  species  of  vivum  vadium.  Strictly,  how- 
ever, there  is  this  distinction  between  a  Welch 
mortgage  and  a  vivum  vadium :  in  the  latter  the 
rents  and  profits  of  the  estate  are  applied  to  the 
discharge  of  the  principal  after  paying  the  inte- 
rest: while  in  the  former  the  rents  and  profits  are 
received  in  satisfaction  of  his  interest  only.  1 
Powell,  Mortg.  373  a. 

WELL.  A  hole  dug  in  the  earth  in  order 
to  obtain  water. 

The  owner  of  the  estate  has  a  right  to  dig 
it  his  own  ground  at  such  a  distance  as  is 
permitted  by  law  from  his  neighbor's  land : 
he  is  not  restricted  as  to  the  size  or  depth, 
and  is  not  liable  to  any  action  for  rendering 
the  well  of  his  neighbor  useless  by  so  doing. 
Lois  des  Bat.  pt.  1,  c.  3,  sect.  2,  art.  2,  |  2. 

WELL   KNOWING.     In  Pleading. 

Words  used  in  a  declaration  when  the  plain- 
tiff sues  for  an  injury  which  is  not  imme- 
diate and  with  force,  and  the  act  or  nonfea- 
sance complained  of  was  not  prima  facie 
actionable.  Not  only  the  injury,  but  the  cir- 
cumstances under  which  it  was  committed, 
ought  to  be  stated:  as,  where  the  injury  was 
done  by  an  animal.  In  such  case  the  plain- 
tiff, after  stating  the  injury,  continues,  the 
defendant,  well  knowing  the  mischievous  pro- 
pensity of  his  dog,  permitted  him  to  go  at 
large.    See  Scienter. 

WERE.  The  name  of  a  fine  among  the 
Saxons  imposed  upon  a  murderer. 

The  life  of  every  man,  not  excepting  that 
of  the  king  himself,  was  estimated  at  a  cer- 
tain price,  which  was  called  the  were,  or  ods- 
timatio  capitis.  The  amount  varied  accord- 
ing to  the  dignity  of  the  person  murdered. 
The  price  of  wounds  was  also  varied  accord- 
ing to  the  nature  of  the  wound,  or  the  mem- 
ber injured. 

WERGILD,  WEREGILD.  In  Old 
English  Law.  The  price  which,  in  a  bar- 
barcjus  age,  a  person  guilty  of  homicide  or 
other  enormous  offence  was  required  to  pay, 
instead  of  receiving  other  punishment.  4 
Blackstone,  Comm.  188. 

See,  for  the  etymology  of  this  word,  and  a  tariflf 
which  was  paid  for  the  murder  of  the  different 
classes  of  men,  Guizot,  Essais  sur  I'Histoire  de 
France,  Essai  4eme,  c.  2,  ^  2. 

WEST  SAXON  LAGE.    The  law  of 

the  West  Saxons,  which  was  observed  in  the 
counties  to  the  south  and  west  of  England, 
from  Kent  to  Devonshire,  in  the  beginning 
of  the  eleventh  century.  Supposed  by  Black- 
stone  to  have  been  much  the  same  with  the 
laws  of  Alfred.    1  Blackstone,  Comm.  65. 

WETHER.  A  castrated  ram,  at  least 
une  year  old:  in  an  indictment  it  may  be 
called  a  sheep.    4  Carr.  &  P.  216. 


WHALER.     In   Maritime   Law.  A 

vessel  employed  in  the  whale  fishery. 

It  is  usual  for  the  owner  of  the  vessel,  the 
captain,  and  crew,  to  divide  the  pntfits  in  just 
proportions,  under  an  agreement  similar  to 
the  cvmtract  Di  Colonna. 

WHARF.  A  space  of  ground  artificially 
prepared  for  the  reception  of  merchandise 
from  a  ship  or  vessel,  so  as  to  promote  the 
convenient  loading  and  discharge  of  such 
vessel. 

2.  At  common  law,  the  soil  of  all  tide- 
waters below  high-water  mark  being  vested 
in  the  crown  as  the  conservator  of  the  public 
rights  of  navigation  and  fishing,  the  erection 
of  a  wharf  thereon  without  the  consent  of 
the  crown  is  an  encroachment  upon  tho 
royal  domain  of  that  kind  which  has  been 
denominated  a  purpresture,  and,  as  such,  may 
be  either  abated,  or,  if  more  beneficial  to  the 
crown,  seized  and  arrested,  unless  indeed  it 
be  likewise  a  public  nuisance.  Angell,  Tide- 
Wat.  196  ;  1  Anstr.  606  ;  2  Wils.  Exch.  101 ; 
10  Price,  Exch.  350,  378;  18  Ves.  Ch.  214; 
2  Story,  Eq.  Jur.  g  920  et  seq.  But  if  it  ob- 
struct navigation  to  such  a  degree  as  to  be  a 
public  nuisance,  neither  the  crown  nor  its 
grantee  has  authority  to  erect  or  maintain  it 
without  the  sanction  of  an  act  of  parliament. 
5  Taunt.  705  ;  8  Ad.  &  E.  336  ;  4  Barnew.  & 
C.  598  ;  5  Mees.  &  W.  Exch.  327  ;  11  Ad.  & 
E.  223  ;  Pheas,  Rights  of  Water,  54.  It  is 
not  every  wharf  erected  in  navigable  water, 
however,  which  is  a  nuisance  ;  for  it  may  be 
a  benefit  rather  than  an  injury  to  the  naviga- 
tion ;  and  it  is  for  the  jury  to  determine,  in 
each  particular  case,  whether  such  a  wharf 
is  a  nuisance  or  not,  the  question  being 
whether  it  occasions  any  substantial  hin- 
drance to  the  navigation  of  the  river  by 
vessels  of  any  description,  and  not  whether 
it  causes  a  benefit  to  navigation  in  general. 
2  Stark.  511 ;  1  Carr.  &  M.  496  ;  4  Ad.  &  E. 
384 ;  6  id.  143  ;  15  Q.  B.  276.  Wharves  must 
be  assigned  in  open  places  only.  1  W. 
Blackst.  581. 

3.  In  this  country,  the  several  states,  being 
the  owners  of  the  soil  of  the  tide-waters  within 
their  respective  territories,  may  by  law  au- 
thorize and  regulate  the  erection  of  wharves 
thereon,  at  least  until  the  general  government 
shall  have  legislated  upon  the  subject.  4  Ga. 
26  ;  7  Cush.  Mass.  53  ;  2  Harr.  &  M'H.  Md. 
244;  11  Gill  &  J.  Md.  351.  In  Massachusetts 
and  Maine,  by  a  colonial  ordinance,  the  pro- 
visions  of  which  are  "still  recognized  as  the  law 
of  those  states,  the  property  of  the  shores 
and  flats  between  high  and  low  water  mark, 
for  one  hundred  rods,  subject  to  the  rights  of 
the  public,  was  transferred  to  the  owners  of 
the  upland,  who  may,  therefore,  wharf  out 
to  that  distance,  if  by  so  doing  they  do  not 
unreasonably  interrupt  navigation.  1  Cush. 
Mass.  313,  395  ;  3  id.  9  ;  7  id.  53  :  6  Mass. 
435  ;  17  id.  413  ;  13  Pick.  Mass.  255  ;  17  id. 
357  ;  9  Me.  42 ;  36  id.  16  ;  39  id.  451 ;  40  id. 
31;  42  id.  9.  If  without  legislative  sanction 
they  extend  a  wharf  beyond  that  distance, 
such  extension  is  prima  facie  a  nuisance,  and 


WHARFAGE 


660 


WHEREAS 


will  be  abated  as  such,  unless  it  can  be  shown 
that  it  is  no  material  detriment  to  naviga- 
tion. 3  Am.  Jur.  185  ;  Angell,  Tide-Wat. 
206;  20  Pick.  Mass.  186.  In  Connecticut, 
and  probably  in  other  states,  by  the  law  of 
the  state  founded  upon  immemorial  usage, 
the  proprietor  of  the  upland  has  the  right  to 
wharf  out  to  the  channel, — subject  to  the 
rights  of  the  public.  9  Conn.  38  ;  25  id.  345  ; 
16  Pet.  369  ;  1  Dutch.  N.  J.  525  ;  6  Ind.  223. 
In  Pennsylvania,  the  riparian  proprietor  is 
held  to  be  the  owner  of  the  soil  between 
high  and  low  water  mark,  and  to  be  entitled 
to  erect  wharves  thereon.  1  Whtirt.  Penn. 
131,  137  ;  2  id.  539. 

4.  In  the  great  navigable  fresh-water 
rivers  of  this  country,  the  riparian  proprie- 
tors, being  the  owners  of  the  bed  of  the 
stream,  have  undoubtedly  the  right  to  wharf 
out  to  the  channel, — subject  only  to  the  con- 
dition that  they  do  not  materially  interrupt 
the  navigation.  See,  generally,  2  Sandf. 
N.  Y.  258  ;  3  id.  487  ;  4  Den.  N.  Y.  581  ;  3 
How.  212  ;  1  Edw.  Ch.  N.  Y.  579  ;  2  id.  220; 

I  Sandf.  Ch.  N.  Y.  214 ;  1  Gill  &  J.  Md.  249; 

II  id.  351 ;  8  Term,  606. 

WHARFAGE.  The  money  paid  for 
landing  goods  upon,  or  loading  them  from,  a 
wharf.    Dane,  Abr.  Index ;  4  Cal.  41,  45. 

Wharfingers  in  London  are  not  entitled  to 
wharfage  for  goods  unloaded  into  lighters 
out  of  barges  fastened  to  their  wharves.  3 
Burr.  1409  ;  1  W.  Blackst.  243.  And  see  5 
Sandf.  N.  Y.  48.  It  has  been  held  that, 
owing  to  the  interest  which  the  public  have 
in  the  matter,  rates  of  wharfage  may  be 
regulated  by  statute.  11  Ala.  n.  s.  586.  And 
see  5  Hill,  N.  Y.  71 ;  7  id.  429 ;  21  Wend. 
N.  Y.  110 ;  1  E.  D.  Smith,  N.  Y.  80,  294 ;  2 
Rich.  So.  C.  370;  8  Barnew.  &  C.  42;  2 
Mann.  &  R.  107. 

WHARFINGER.  One  who  owns  or 
keeps  a  wharf  for  the  purpose  of  receiving 
and  shipping  merchandise  to  or  from  it  for 
hire. 

2.  A  wharfinger  stands  in  the  situation  of 
an  ordinary  bailee  for  hire,  and,  therefore, 
like  a  warehouseman,  he  is  responsible  for 
ordinary  neglect,  and  is  required  to  take  ordi- 
nary care  of  the  goods  intrusted  to  him  as 
such.  2  Barb.  N.  Y.  328  ;  4  Ind.  368  ;  10  Vt. 
r>() ;  Peake,  119  ;  4  Term,  581 ;  2  Stark.  400. 
He  is  not,  like  an  innkeeper  or  carrier,  to  be 
considered  an  insurer  unless  he  superadd 
the  character  of  carrier  to  that  of  wharfinger. 
I  Stark.  72  ;  4  Campb.  225  ;  5  Burr.  2825  ; 
12  Johns.  N.  Y.  232;  7  Cow.  N.  Y.  497  ;  5 
Mo.  97.  The  responsibility  of  a  wharfinger 
begins  when  he  acquires  and  ends  when  he 
ceases  to  have  the  custody  of  the  goods  in  that 
capacity. 

3.  When  he  begins  and  ceases  to  have 
such  custody  depends,  generally,  upon  the 
usages  of  trade  and  of  the  business.  When 
goods  are  delivered  at  a  wharf,  and  the 
wharfinger  has  agreed,  expressly  or  by  im- 
plication, to  take  the  custody  of  them,  his 
responsibility  commences  ;  but  a  mere  deli- 


very at  the  wharf,  without  such  assent,  does 
not  make  him  liable.  3  Campb.  414 ;  4  id. 
72;  6  Cow.  N.  Y.  757  ;  10  Vt.  56 ;  2  Stark. 
400  ;  14  Mees.  &  W.  Exch.  28.  When  goods 
are  in  the  wharfinger's  possession  to  be  sent 
on  board  of  a  vessel  for  a  voyage,  as  soon  as 
he  delivers  the  possession  and  the  care  of 
them  to  the  proper  officers  of  the  vessel, 
although  they  are  not  actually  removed,  he 
is,  by  the  usages  of  trade,  deemed  exonerated 
from  any  further  responsibility.  5  Esp.  41 ; 
Story,  Bailm.  ^  453  ;  Abbott,  Shipp.  226 ; 
Molloy,  b.  2,  c.  2,  s.  2 ;  Roccus,  Not.  88  ;  Dig. 
9.  4.  3  ;  1  Mees.  &  W.  Exch.  174 ;  16  id.  119 ; 
1  Gale,  Exch.  420.  The  wharfinger  does  not, 
however,  discharge  his  duty  by  delivering  them 
to  one  of  the  crew,  but  should  deliver  them  to 
the  captain  of  the  vessel,  or  some  other  per- 
son in  authority  on  board  of  it.  1  Carr.  & 
P.  638.  And  see  10  Bingh.  246 ;  2  Carr.  & 
M.  531 ;  7  Scott,  876 ;  4  Q.  B.  511. 

A  wharfinger  has  a  general  lien  upon  all 
goods  in  his  possession  for  the  balance  of  his 
account.  1  Esp.  109  ;  3  id.  81 ;  6  East,  519; 
7  id.  224 ;  4  Barnew.  &  Aid.  50 ;  12  Ad.  & 
E.  039 ;  7  Barnew.  &  C.  212.  A  wharfinger 
has  equally  a  lien  on  a  vessel  for  wharfage. 
Ware,  Dist.  Ct.  354;  Gilp.  Dist.  Ct.  101;  \ 
Newb.  Adra.  553. 

WHEEL.  The  punishment  of  the  wheel 
was  formerly  to  put  a  criminal  on  a  wheel, 
and  then  to  break  his  bones  until  he  expired. 
This  barbarous  punishment  was  never  used 
in  the  United  States;  and  it  has  been  abo- 
lished in  almost  every  civilized  country. 

WHELPS.  The  young  of  certain  ani- 
mals of  a  base  nature  or  fercB  naturae. 

It  is  a  rule  that  when  no  larceny  can  be 
committed  of  any  creatures  of  a  base  nature 
which  are  ferce  naturce,  though  tame  and 
reclaimed,  it  cannot  be  committed  of  the 
young  of  such  creatures  in  the  nest,  kennel, 
or  den.  Coke,  3d  Iii<\  109;  1  Russell,  Cr. 
153. 

The  owner  of  the  land  is,  however,  con- 
sidered to  have  a  qualified  property  in  such 
animals,  ratione  impotentia.  2  Blackstone, 
Comm.  394. 

WHEN.    At  which  time. 

In  wills,  standing  by  itself  unqualified  and 
unexplained,  this  is  a  word  of  condition 
denoting  the  time  at  which  the  gift  is  to  com- 
mence. 6  Ves.  Ch.  243;  2  Meriv.  Ch.  286. 
The  context  of  a  will  may  show  that  the 
word  when  is  to  be  applied  to  the  possession 
only,  not  to  the  vesting  of  a  legacy ;  but  to 
justify  this  construction  there  must  be  cir 
cumstances,  or  other  expressions  in  the  will, 
showing  such  to  have  been  the  testator's 
intent.  7  Ves.  Ch.  422;  9  id.  230;  11  id. 
489;  Coop.  145;  3  Brown,  Ch.  471.  For 
the  effect  of  the  word  when  in  contracts  and 
in  wills  in  the  French  law,  see  6  Toullier,  n. 
520. 

WHEN  AND  WHERE.   See  Defence. 

WHEREAS.  This  word  implies  a  re- 
cital, and.  in  general,  cannot  be  used  in  the 
direct  and  positive  averment  of  a  fact  in  a 


WHIPPIKG 


661 


WIFE 


declaration  or  plea.  Thofd  facts  which  are 
directly  denied  by  the  terms  of  the  general 
issue,  or  which  may,  by  the  established  usage 
of  pleading,  be  specially  traversed,  must  be 
averred  in  positive  and  direct  terms ;  but 
facts,  however  material,  which  are  not  di- 
rectly denied  by  the  terms  of  the  general 
issue,  though  liable  to  be  contested  under  it, 
and  which,  according  to  the  usage  of  plead- 
ing, cannot  be  specially  traversed,  may  be 
alleged  in  the  declaration  by  way  of  recital, 
under  a  whereas.  Gould,  Plead,  c.  43,  ^  42, 
c.  3,  §  47 ;  Bacon,  Abr.  Pleas,  etc.  (B  5,  4) ; 
2  Chitty,  Plead.  151,  178,  191. 

WHIPPING.    The  infliction  of  stripes. 

This  mode  of  punishment,  which  is  still 
practised  in  some  of  the  states,  is  a  relic  of 
barbarism ;  it  has  yielded  in  most  of  the 
middle  and  northern  states  to  the  peniten- 
tiary system. 

The  punishment  of  whipping,  so  far  as 
the  same  was  provided  by  the  laws  of  the 
United  States,  was  abolished  by  the  act  of 
congress  of  February  28,  1839,  s.  5.  See  1 
Chitty,  Crim.  Law,  796 ;  Dane,  Abr.  Index. 

WHITE  BONNET.  In  Scotch  Law. 
A  fictitious  bidder  at  an  auction.  Where 
there  is  no  upset  price,  and  the  auction  is  not 
stated  to  be  without  reserve,  there  is  no  au- 
thority for  saying  that  employment  of  such 
person  is  illegal.  Burton,  Law  of  Scotl. 
362. 

WHITE  PERSONS.  The  acts  of  con- 
gress which  authorize  the  naturalization  of 
aliens  confine  the  description  of  such  aliens 
to  free  white  persons. 

This,  of  course,  excludes  the  African  race  when 
pure ;  but  it  is  not  easy  to  say  what  shade  of  color 
or  mixture  of  blood  will  make  a  white  person. 

The  constitution  of  Pennsylvania,  as  amended, 
confines  the  right  of  citizenship  to  free  white  per- 
sons ;  and  these  words,  white  persons,  or  similar 
words,  are  used  in  most  of  the  constitutions  of  the 
iouthern  states,  in  describing  the  electors. 

WHITE  RENTS.    In  English  Law. 

Rents  paid  in  silver,  and  called  white  rents,  or 
redditus  albi,  to  distinguish  them  from  other 
rents  which  were  not  paid  in  money.  Coke, 
2d  Inst.  19.    See  Alba  Firma. 

WHOLE  BLOOD.  Being  related  by 
both  the  father  and  mother's  side:  this  phrase 
is  used  in  contradistinction  to  half  blood, 
which  is  relation  only  on  one  side.  See 
Blood. 

WHOLESALE.  To  sell  by  wholesale  is 
to  sell  by  large  parcels,  generally  in  original 
packages,  and  not  by  retail. 

WIDOW.  An  unmarried  woman  whose 
husband  is  dead. 

2.  In  legal  writings,  widow  is  an  addition 
given  to  a  woman  who  is  unmarried  and 
whose  husband  is  dead.  The  addition  of 
spinster  is  given  to  a  woman  who  never  was 
married.  Lovelace,  Wills,  269.  See  Addition. 
As  to  the  rights  of  a  widow,  see  Dower. 

WIDOW'S  CHAMBER.  In  English 
Law.  In  London,  the  apparel  of  a  widow 
and  the  furniture  of  her  chamber,  left  by  her 


deceased  husband,  is  so  called,  and  the  widow 
is  entitled  to  it.    2  Blackstone,  Comm.  518. 

WIDOWER.  A  man  whose  wife  is  dead. 
A  widower  has  a  right  to  administer  to  his 
wife's  separate  estate,  and,  as  her  adminis- 
trator, to  collect  debts  due  to  her,  generally 
for  his  own  use. 

WIDOWHOOD.  The  state  of  a  man 
whose  wife  is  dead,  or  of  a  woman  whose  hus- 
band is  dead.  In  general,  there  is  no  law  to 
regulate  the  time  during  which  a  man  must 
remain  a  widower,  or  a  woman  a  widow,  be- 
fore they  marry  a  second  time.  The  term 
widowhood  is  mostly  applied  to  the  state  or 
condition  of  a  widow. 

WIFE.    A  woman  who  has  a  husband. 

The  relation  confers  upon  her  certain  rights, 
imposes  on  her  certain  obligations,  and  de- 
prives her  of  certain  powers  and  privileges. 

Ji.  At  Common  Law.  A  wife  has  a  right 
to  the  love  and  protecting  care  of  her  hus- 
band. She  has  a  right  to  share  his  bed  and 
board.  She  can  call  upon  her  husband  to 
provide  her  with  necessary  food  and  clothing 
according  to  her  position  in  life,  and  if  he 
neglects  or  refuses  to  do  it  she  can  procure 
them  on  his  account.  See  Necessaries.  She 
is  entitled,  on  his  death,  to  dower  in  all  the 
real  estate  of  which  he  is  seised  at  any  time 
during  coverture.  See  Dower.  She  can 
require  that  her  husband  shall  be  sued  with 
her,  and  be  made  jointly  liable  for  all  causes 
of  action  existing  against  her  at  the  time  of 
marriage,  and  for  all  torts  committed  by  her 
during  coverture.    See  Joinder. 

She  is  under  obligation  to  love,  honor,  and 
obey  her  husband,  and  is  bound  to  follow 
him  wherever  in  the  country  he  may  choose 
to  go  and  establish  himself,  provided  it  is  not, 
for  other  causes,  unreasonable.  She  is  under 
obligation  to  be  faithful  in  chastity  to  her 
marriage  vow.  5  Mart.  La.  N.  s.  60.  See 
Divorce  ;  Adultery. 

3.  For  her  protection,  the  wife  is  rendered 
incapable  of  binding  herself  by  contract, 
express  or  implied,  by  parol  or  under  seal. 
In  most  if  not  all  of  the  states,  she  is,  how- 
ever, empowered  by  statute  to  join  her  hus- 
band in  a  sale  of  her  real  estate. 

She  can  gain  rights  of  a  political  cha- 
racter: these  rights  stand  on  the  general 
principles  of  the  law  of  nations.  2  Hard. 
Ky.  5 ;  3  Pet.  242.  When  she  commits  a 
crime  in  the  presence  of  her  husband,  unless 
it  is  of  a  very  aggravated  character,  she  is 
presumed  to  act  by  his  coercion,  and,  unless 
the  contrary  is  proved,  she  is  irresponsible. 
Under  other  circumstances  she  is  liable, 
criminally,  as  if  she  were  a  feme  sole.  See 
Will  ;  Duress. 

At  common  law,  by  marriage  the  wife  loses 
the  title  to  all  her  personal  estate,  to  the  use 
of  her  real  estate,  and  to  a  part  of  her  rights 
to  her  choses  in  action  and  chattels  real.  See 
Husband. 

Under  Statutes.  A  great  change  in 
favor  of  the  wife  has  been  produced  by  recent 
statutes  in  a  majority  of  the  United  States. 


WIFE 


C62 


WIFE 


4.  In  Alabama,  all  property  of  the  wife,  held  by  | 
ner  previous  to  marriage,  or  to  which  she  may  i 
become  entitled  in  any  mariner  after  marriage, 
becomes  her  separate  estate,  and  not  subject  to  the 
debts  of  the  husband,  but  it  is  vested  in  the  hus- 
band as  trustee,  but  he  is  not  answerable  for  the 
rents  and  profits.  Her  right  to  the  rents  and  pro- 
E:s  is  not  liable  to  be  taken  in  execution  for  bis 
d^bts.    Ala.  Code,  ^  1882. 

In  Arkansas,  the  property  of  a  wife,  whether 
real  or  personal,  or  whether  acquired  before  or 
after  marriage,  in  her  own  right,  cannot  be  sold  to 
pay  the  debts  of  the  husband  contracted  or  dam- 
ages incurred  before  marriage.  Ark.  Dig.  Laws, 
603. 

5.  In  Oalifornia,  all  property,  both  real  and  per- 
sonal, owned  by  the  wife  before  marriage,  and  that 
acquired  after  marriage  by  gift,  bequest,  devise,  or 
descent,  becomes  her  separate  property ;  and  all 
property,  both  real  and  personal,  owned  by  the  hus- 
b;ind  before  marriage,  or  acquired  by  him  after- 
wards by  gift,  bequest,  devise,  or  descent,  becomes 
his  separate  property. 

All  other  property  acquired  during  coverture  by 
either  husband  or  wife  becomes  the  common  pro- 
perty of  both ;  and  the  rents  and  profits  of  the 
same  are  the  common  property  of  both.  Wood, 
Dig.  Cal.  Law,  486. 

6.  In  Connecticut,  all  personal  property  of  the 
wife  owned  by  the  wife  before  marriage,  and  all 
that  accrues  during  marriage  to  her  by  gift  or  be- 
quest, or  by  distribution  to  her  as  heir  at  law,  or 
that  accrues  to  her  by  reason  of  patent-rights,  copy- 
right, or  pensions  issued  on  her  account,  vests  in 
the  husband  as  trustee  for  the  wife. 

The  husband  is  entitled,  however,  during  the 
coverture  to  take  and  use  the  rents,  profits,  and 
interests ;  but  such  rents,  profits,  and  interests  are 
not  liable  to  be  taken  for  his  debts,  except  for 
debts  contracted  for  the  support  of  the  wife  and 
her  children,  arising  after  the  vesting  of  the  title 
in  the  husband.  Real  estate  conveyed  to  the  wife 
during  coverture  in  consideration  of  her  personal 
services  is  held  by  her  as  her  separate  estate. 

The  avails  of  the  wife's  real  estate,  when  vested 
in  her  name  or  that  of  a  trustee  for  her,  continues 
to  be  her  property,  and  is  not  liable  to  be  taken  for 
the  husband's  debts. 

Where  the  wife  acquires  personal  property  while 
absent  from  him  by  his  abandonment  or  in  conse- 
quence of  his  abuse,  it  is  held  by  her  to  her  sole 
and  separate  use.  Other  statutes  have  been  passed 
to  secure  to  the  wife  the  enjoyment  of  her  property. 
Conn.  Comp.  Stat.  376,  378. 

7.  In  Florida,  it  is  enacted  that  when  any 
female,  a  citizen  of  this  state,  shall  marry,  or  when 
any  female  shall  marry  a  citizen  of  this  state,  the 
female  being  seized  or  possessed  of  real  or  personal 
property,  her  title  to  the  same  shall  continue  sepa- 
rate, independent,  and  beyond  the  control  of  her 
husband,  notwithstanding  her  coverture,  and  shall 
not  be  taken  in  execution  for  his  debts  :  provided, 
ho^vever,  that  the  property  of  the  female  shall  re- 
ma  n  in  the  care  and  management  of  her  husband. 

Married  women  may  become  seized  or  possessed 
of  real  and  personal  property,  during  coverture, 
by  bequest,  devise,  gift,  purchase,  or  distribution, 
subject,  however,  to  certain  restrictions,  limita- 
tions, and  provisions  contained  in  the  foregoing 
section.    Thompson,  Dig.  Fla.  Laws,  221,  tit.  V,  c.  1, 

2,  3. 

In  Georgia,  if  the  husband  deserts  the  wife,  her 
earnings  vest  in  her. 

In  Indiana,  the  personal  property  of  the  wife, 
held  by  her  at  the  time  of  the  marriage  or  acquired 
by  her  during  coverture  by  descent,  devise,  or  gift, 
remains  her  own  property  to  the  same  extent  and 
under  the  same  rules  as  her  real  estate.  Ind.  Acts, 
•853. 


In  Kentucky  and  Louisiana,  the  rights  of  mar- 
ried women  are  materially  changed  by  statute.  Ky. 
Rev.  Stat.  1852,  388 ;  La.  Rev.  Stat.  242. 

In  Maine,  a  married  woman  of  any  ago  may  own 
in  her  own  right  real  and  personal  estate  acquired 
by  descent,  gift,  or  purchase,  and  may  manage, 
sell,  convey,  and  devise  the  same  by  will,  as  if  sole, 
and  without  the  joinder  or  assent  of  her  husband ; 
but  real  estate  directly  or  indirectly  conveyed  to 
her  by  her  husband  or  paid  for  by  him,  or  given  or 
devised  to  her  by  his  relatives,  cannot  be  conveyed 
by  her  without  the  joinder  of  her  husband  in  such 
conveyance.    Me.  Rev.  Stat.  1857,  c.  1,  ^  1. 

8.  In  Massachusetts,  it  is  provided  that  payment 
may  be  made  to  a  married  woman  for  wages  earned 
by  her  labor,  and  her  receipt  for  the  income  of  pro- 
perty held  in  trust  for  her,  or  for  the  principal, 
when  the  same  is  payable  to  her,  or  for  the  pay- 
ment to  her  of  money  deposited  by  or  due  to  her 
before  or  after  marriage,  shall  be  a  valid  receipt 
and  discharge,  although  her  husband  does  not  join 
therein.  The  real  estate  and  shares  in  any  corpo- 
ration standing  in  the  name  of  a  married  woman, 
which  were  her  property  at  the  time  of  ber  mar- 
riage or  which  became  her  property  by  devise,  be- 
quest, or  gift  of  any  person  except  her  husband, 
shall  not  be  liable  to  be  taken  in  execution  against 
her  husband  for  any  debt  contracted  or  cause  of 
action  arising  after  the  third  day  of  June,  1855. 

A  married  woman  having  separate  property  may 
be  sued  for  any  cause  of  action  which  originated 
against  her  before  marriage,  and  her  property  may 
be  attached  and  taken  in  execution  in  the  same 
manner  and  with  the  same  effect  as  if  she  were  sole. 
The  husband  of  a  woman  married  in  this  state  after 
the  third  day  of  June  in  the  year  1855  shall  not  be 
liable  to  be  sued  for  any  cause  of  action  which  ori- 
ginated against  her  before  marriage ;  but  she  shall 
be  liable  to  be  sued  for  the  same  in  the  manner 
aforesaid.    Jd.  p.  438. 

''When  a  married  woman  comes  from  another 
state  or  country  into  this  state  without  her  husband, 
he  never  having  lived  with  her  in  this  state,  she 
shall  have  all  the  rights  and  powers  given  to  married 
women  by  the  preceding  provisions  of  this  chap- 
ter" (including  some  not  here  specified),  "and  may 
also  transact  business,  make  contracts,  and  com- 
mence, prosecute,  and  defend  suits  in  her  own 
name,  and  dispose  of  her  property  which  may  bo 
found  here,  in  like  manner  as  if  she  were  unmar- 
ried. She  shall  also  be  liable  to  be  sued,  as  if  she 
were  unmarried,  upon  all  contracts  and  for  all  other 
acts  made  or  done  by  her  after  her  arrival  in 
this  state.  She  may  make  and  execute  deeds  and 
other  instruments  in  her  own  name,  and  do  all 
other  lawful  acts  that  may  be  proper  to  carry  such 
powers  into  eff"ect. 

"When  a  husband  and  his  wife,  married  in  an- 
other state  or  country,  come  into  this  state,  either 
at  the  same  time  or  difi'erent  times,  and  reside  here 
as  husband  and  wife,  she  shall  retain  all  property 
which  she  had  acquired  by  the  laws  of  any  other 
state  or  country,  or  by  a  marriage  contract  or  settle- 
ment made  out  of  the  state.  Their  so  residing  to- 
gether here  shall  have  the  same  effect  with  regard 
to  their  subsequent  rights  and  liabilities  as  if  they 
had  married  at  the  time  of  their  first  residing  in 
this  state. 

"A  wife  whose  husband  has  absented  himself 
from  the  state,  abandoning  or  not  suflBciently 
maintaining  her,  or  whose  husband  has  been  sen- 
tenced to  confinement  in  the  state  prison,"  may,  on 
application  to  the  supreme  judicial  court,  obtain  cer- 
tain powers  over  her  property.  Mass.  Gen.  Stat.  540. 

9.  In  3Iichi(ja.n,  the  rights  of  married  women 
are  secured  by  statute  by  numerous  provisions. 
2  Mich.  Comp.  Laws,  1857,  c.  109. 

In  New  Hampshire,  it  is  enacted  that  when  any 
husband  shall  have  deserted  his  wife,  and  re- 


WIFE 


663 


WIFE 


inained  absent  for  the  space  of  three  months,  with- 
out making  suitable  provision  for  her  support  and 
the  maintenance  and  education  of  their  minor 
children,  or  when  any  cause  is  in  existence  which 
is,  or  which  if  it  continues  to  exist  for  a  longer 
period  may  be,  a  cause  of  divorce,  and  the  wife  is 
the  injured  party,  she  shall  be  entitled  to  hold  in 
her  own  right  and  to  her  separate  use  any  property 
acquired  by  her  by  descent,  legacy,  or  otherwise,  and 
to  the  earnings  of  her  minor  children,  until  said  par- 
ties shall  afterwards  cohabit,  and  may  dispose  of 
the  same  without  the  interference  of  her  said  hus- 
band or  of  any  person  claiming  under  him, 

"Whenever  any  married  woman  shall  be  entitled 
to  hold  property  in  her  own  right  and  to  her  sepa- 
rate use,  she  may  make  contracts,  may  sue  and  bo 
sued  in  her  own  name,  and  may  dispose  of  said 
property  by  will  or  otherwise,  as  if  she  were  sole 
and  unmarried;  and  if  she  shall  decease  intestate, 
her  husband  shall  be  excluded  from  any  share  in 
her  said  estate,  and  such  estate  shall  be  adminis- 
tered and  inherited  in  the  same  manner  as  if  she 
were  sole  and  unmarried. 

If  any  woman,  being  the  wife  of  an  alien  or  of 
a  citizen  of  any  other  state,  shall  have  resided  in 
this  state  for  the  term  of  six  months  success- 
ively, separate  from  her  husband,  she  shall  be 
capable  of  making  contracts,  may  sue  and  be  sued 
in  her  own  name  for  any  cause  of  action  that  may 
accrue  during  such  separate  residence,  may  acquire 
and  hold  property  in  her  own  right,  and  may  have 
the  exclusive  care,  custody,  and  guardianship  of  her 
minor  children  living  with  her  in  this  state;  and  the 
earnings  of  such  children  shall  be  expended  in  the 
same  manner  as  if  her  husband  had  deceased ;  but 
such  woman  shall  not  contract  another  marriage, 
nor  sue  nor  be  sued  for  a  breach  of  such  contract. 

When  any  husband  shall  become  insane,  his 
wife  shall  be  entitled  to  hold  in  her  own  right  and 
to  her  separate  use  any  property  acquired  by  her 
by  descent,  legacy,  or  otherwise,  and  shall  be  en- 
titled to  her  own  earnings  and  those  of  her  minor 
children,  during  the  continuance  of  her  husband's 
insanity;  and  such  property  and  earnings  shall  in 
no  case  be  liable  for  any  claim  against  her  hus- 
band. Whenever  any  married  womtin  shall  be  thus 
entitled  to  hold  property  in  her  own  right  and  to 
her  separate  use,  she  may  make  contracts,  may  sue 
and  be  sued  in  her  own  name,  and  may  dispose  of 
said  property  by  will  or  otherwise  as  if  she  were 
sole  and  unmarried.    N.  H.  Comp.  Stat.  400. 

10,  In  New  Jersey,  it  is  enacted  that  the  real 
and  personal  property  of  any  female  who  may  marry, 
and  which  she  shall  own  at  the  time  of  marriage, 
and  the  rents,  issues,  and  profits  thereof,  shall  not 
be  subject  to  the  disposal  of  her  husband,  nor  be 
liable  for  his  debts,  and  shall  continue  her  sole  and 
separate  property,  as  if  she  were  a  single  female. 

The  real  and  personal  property,  and  the  rents, 
issues,  and  profits  thereof,  of  any  female  now  mar- 
ried, shall  not  be  subject  to  the  disposal  of  her  hus- 
band, but  shall  be  her  sole  and  separate  property, 
as  if  she  were  a  single  female,  except  so  far  as  the 
same  may  be  liable  for  the  debts  of  her  husband 
contracted  before  the  statute  by  any  legal  lien. 

It  shall  be  lawful  for  any  married  female  to  re- 
ceive, by  gift,  grant,  devise,  or  bequest,  and  hold 
to  her  sole  and  separate  use,  as  if  she  were  a  single 
female,  real  and  personal  property,  and  the  rents, 
issues,  and  profits  thereof ;  and  the  same  shall  not 
be  subject  to  the  disposal  of  her  husband,  nor  be 
liable  for  his  debts.    Nixon,  Dig.  N.  J.  Laws,  456. 

In  Neio  York,  by  statute,  the  real  and  personal 
property  of  any  female  who  may  marry,  and  which 
she  shall  own  at  the  time  of  marriage,  and  the 
rents,  issues,  and  profits  thereof,  shall  not  be  sub- 
ject to  the  disposal  of  her  husband,  nor  be  liable 
for  his  debts,  and  shall  continue  her  sole  and  sepa- 
rate property,  as  if  she  were  a  single  female. 


The  real  and  personal  property,  and  ttie  renti, 
issues,  and  profits  thereof,  of  any  female  married 
when  the  statute  was  passed,  shall  not  be  subject 
to  the  disposal  of  her  husband,  but  shall  be  her 
sole  and  separate  property,  as  if  she  were  a  single 
female,  except  so  lar  as  the  same  may  be  liable  for 
the  debts  of  her  husband  contracted  befor^  the 
statute. 

Any  married  female  may  take,  by  inheritance  or 
by  gift,  grant,  devise,  or  bequest  from  any  person 
other  than  her  husband,  and  hold  to  her  sole  and 
separate  use,  and  convey  and  devise,  real  and  per- 
sonal property,  and  any  interest  or  estate  therein, 
and  the  rents,  issues,  and  profits  thereof,  in  the 
same  manner  and  with  like  efi'ect  as  if  she  were  un- 
married ;  and  the  same  shall  not  be  subject  to  tha 
disposal  of  her  husband  nor  be  liable  for  his  debts. 
3  N.  Y.  Rev.  Stat.  6th  ed.  2.39. 

11.  In  PennHijlvariin,  it  is  provided  that  everj 
species  and  description  of  property,  whether  con- 
sisting of  real,  personal,  or  mixed,  which  may  be 
owned  by  or  belong  to  any  single  woman,  shall 
continue  to  be  the  property  of  such  woman,  as  fully 
after  her  marriage  as  before  ;  and  all  .such  property, 
of  whatever  name  or  kind,  which  shall  accrue  to 
any  married  woman  during  coverture  by  will,  de- 
scent, deed  of  conveyance,  or  otherwise,  shall  be 
owned,  used,  and  enjoyed  by  such  married  woman 
as  her  own  separate  property  :  and  the  said  property, 
whether  owned  by  her  before  marriage,  or  which 
shall  accrue  to  her  afterwards,  shall  not  be  subject 
to  levy  and  execution  tor  the  debts  or  liabilities  of 
her  husband;  nor  shall  such  property  be  sold,  con- 
veyed, mortgaged,  transferred,  or  in  any  maxiner 
incumbered,  by  her  husband,  without  her  consent 
given  according  to  law.  Provided  that  her  said 
husband  shall  not  be  liable  for  the  debts  of  thr  wife 
contracted  before  marriage;  provided  that  nothing 
in  the  act  shall  be  so  construed  as  to  protect  the 
property  of  any  such  married  woman  from  liability 
for  debts  contracted  by  herself,  or  in  her  name  by 
any  person  authorized  so  to  do,  or  from  levy  and 
execution  on  any  judgment  that  may  be  recovered 
against  a  husband  for  the  torts  of  the  wife  ;  and  in 
such  cases  execution  shall  be  first  had  against  tho 
property  of  the  wife.  Purdon,  Dig.  Penn.  Laws, 
1856  ed.  570. 

In  Rhode  Island,  the  real  estate,  chattels  real, 
and  personal  estate  which  are  the  property  of  any 
woman  before  marriage,  or  which  may  become  tho 
property  of  any  woman  after  marriage,  or  which 
may  be  acquired  by  her  own  industry,  shall  be  so 
far  secured  to  her  sole  and  separate  use  that  the 
same,  and  the  rents,  profits,  and  income  thereof, 
shall  not  be  liable  to  be  attached  or  in  any  way 
taken  for  the  debts  of  the  husband,  either  before  or 
after  his  death,  and  upon  the  death  of  the  husband 
in  the  lifetime  of  the  wife  shall  be  and  remain  hei 
sole  and  separate  property. 

The  chattels  real,  household   furniture,  pla.o, 
jewels,  stock  or  shares  in  the  capital  stock  of  any 
incorporated  company,  money  on  deposit  in  any 
savings-bank  or  institution  for  savings,  with  the 
interest  thereon,  or  debts  secured  by  mortgage  on 
property,  which  are  the  property  of  any  woman  be 
fore  marriage,  or  which  may  become  the  property 
of  any  woman  after  marriage,  shall  not  be  sold, 
leased,  or  conveyed  by  the  husband  unless  by  deed 
j  in  which  the  wife  shall  join  as  grantor, — which 
i  deed  shall  be  acknowledged  in  the  manner  by  law 
I  provided  for  the  conveyance  of  the  real  estate  of 
j  married  women. 

I  Any  married  woman  may  sell  and  convey  any  of 
her  personal  estate,  other  than  that  described  in  the 
I  next  preceding  section,  in  the  same  manner  as  if 
I  she  were  single  and  unmarried,  and  may  make  con- 
j  tracts  respecting  the  sale  and  conveyance  thereof 
with  the  same  efi'ect  and  with  the  same  right.s,  re- 
]  medies,  and  liabilities  as  if  such  contracts  had  been 


WIFE 


664 


WIFE'S  EQUITY 


made  before  marriage ;  but  nothing  in  this  section 
shall  be  construed  to  authorize  any  married  woman 
to  transact  business  as  a  trader.  R.  I.  Rev.  Stat. 
315. 

12.  In  Tennessee,  it  is  enacted  that  the  interest  of 
a  husband  in  the  real  estate  of  his  wife,  acquired  by 
her  either  before  or  after  marriage,  by  gift,  devise, 
descent,  or  in  any  other  mode,  shall  not  be  sold  or 
disposed  of  by  virtue  of  any  judgment,  decree,  or 
execution  against  him ;  nor  shall  the  husband  and 
wife  be  ejected  from  or  dispossessed  of  such  real 
estate  of  the  wife  by  virtue  of  any  such  judgment, 
gentenee,  or  decree,  nor  any  husband  sell  his  wife's 
real  estate  during  her  life,  without  her  joining  in 
the  conveyance  in  the  manner  prescribed  by  law  in 
which  married  women  shall  convey  lands. 

This  exemption  of  the  husband's  interest  in  his 
wife's  land  from  sale  shall  not  extend  beyond  his 
wife's  life. 

The  proceeds  of  real  or  personal  property  belong- 
ing to  a  married  woman  cannot  be  paid  to  any  per- 
son except  by  consent  of  such  married  woman  upon 
privy  examination  by  the  court  or  some  suitable 
commissioner  appointed  by  the  court,  or  unless  a 
deed  or  power  of  attorney  is  executed  by  the  hus- 
band and  wife,  and  her  privy  examination  taken 
as  in  other  cases. 

Where  a  husband  has  either  abandoned  his  wife 
or  discharged  or  driven  her  from  his  residence,  and 
where  the  wife  has  left  her  husband,  and  lives  sepa- 
rate from  him,  in  consequence  of  receiving  from 
him  personal  abuse  or  violent  and  ill  treatment, 
property  acquired  by  her  after  such  separation,  or 
that  she  may  receive  by  descent  or  otherwise,  shall 
not  be  subject  to  his  debts,  nor  be  liable  to  execu- 
tion on  judgments  recovered  against  him,  unless 
she  shall  again  live  with  him  after  such  separation  ; 
nor  shall  he  interfere  with  or  dispose  of  such  pro- 
perty while  the  separation  continues. 

Whenever  a  husband  has  been  ascertained  to  be 
insane  b3'  the  verdict  of  a  jury  in  the  manner  pre- 
scribed by  law,  his  wife  may  act  as  a  single  woman, 
to  purchase,  receive,  and  hold  property  real  and 
personal,  to  contract  and  be  contracted  with,  to  sue 
and  be  sued,  plead  and  be  impleaded;  and  such 
property  as  she  may  acquire  by  purchase  or  other- 
wise while  so  acting  shall  not  be  taken  or  made 
subject  to  the  satisfaction  of  the  debts  or  contracts 
of  the  husband.    Tenn.  Code,  487. 

In  Wisconsin,  by  statute,  the  real  and  personal 
property  of  any  female  who  may  marry,  and  which 
she  shall  own  at  the  time  of  marriage,  and  the 
rents,  issues,  and  profits  thereof,  shall  not  be  subject 
to  the  disposal  of  her  husband,  nor  be  liable  for  his 
debts,  and  shall  continue  her  sole  and  separate  pro- 
perty. 

Any  married  female  may  receive  by  inheritance, 
or  by  gift,  grant,  devise,  or  bequest,  from  any  per- 
son other  than  her  husband,  and  hold  to  her  sole 
and  separate  use,  and  convey  and  devise,  real  and 
personal  property,  and  any  interest  or  estate  therein, 
and  the  rents,  issues,  and  profits,  in  the  same  man- 
ner and  with  like  effect  as  if  she  were  unmarried  ; 
and  the  same  shall  not  be  subject  to  the  disposal 
of  her  husband  nor  be  liable  for  his  debts. 

Any  married  woman  whose  husband,  either  from 
drunkenness,  profligacy,  or  from  any  other  cause, 
shall  neglect  or  refuse  to  provide  for  her  support, 
or  for  the  support  and  education  of  her  children, 
and  any  married  woman  who  may  be  deserted  by 
her  husband,  shall  have  the  right  in  her  own  name 
to  transact  business,  and  to  receive  and  collect  her 
own  earnings  and  the  earnings  of  her  own  minor 
children,  and  apply  the  same  for  her  own  support 
and  the  support  and  education  of  such  children,  free 
from  the  control  and  interference  of  her  husband, 
or  any  person  claiming  the  same  or  claiming  to  be 
releaseci  from  the  same  by  or  through  her  husband. 
Wi»c.  Rev  Stat.  1858,  571. 


WIFE'S  EQUITY.  The  equitable  righl 
of  a  wife  to  have  settled  upon  her  and  her 
children  a  suitable  provision  out  of  her  estate 
whenever  the  husband  cannot  obtain  it  with- 
out the  aid  of  a  court  of  equity.  Shelford, 
Marr.  &  D.  605. 

2.  By  the  marriage  the  husband  acquires 
an  interest  in  the  property  of  his  wife,  in 
consideration  of  the  obligation  which  he  con- 
tracts by  the  marriage  of  maintaining  her 
and  their  children.  The  common  law  enforces 
this  duty  thus  voluntarily  assumed  by  him,  by 
an  action,  and,  therefore,  allows  him  to  alien 
the  property  to  which  he  is  thus  entitled  jwre 
mariti,  or  in  case  of  his  bankruptcy  or  insol- 
vency it  would  vest  in  his  assignee  for  the 
benefit  of  his  creditors,  and  the  wife  would 
be  left,  with  her  children,  entirely  destitute, 
notwithstanding  her  fortune  may  have  been 
great.  To  remedy  this  evil,  courts  of  equity, 
in  certain  cases,  give  a  provision  to  the  wife, 
which  is  called  the  wife's  equity. 

The  principle  upon  which  courts  of  equity 
act  is,  that  he  who  seeks  the  aid  of  equity  must 
do  equity  ;  and  that  will  be  withheld  until  an 
adequate  settlement  has  been  made.  1  P. 
Will.  Ch.  459,  460.  See  5  Mylne  &  C.  105 ; 
11  Sim.  Ch.  569 ;  4  Hare,  Ch.  6. 

3.  Where  the  property  is  equitable  and 
not  recoverable  at  law,  it  cannot  be  obtained 
without  making  a  settlement  upon  a  wife 
and  children,  if  one  be  required  by  her,  2  P. 
Will.  Ch.  639  ;  and  where,  though  the  pro- 
perty be  legal  in  its  nature,  it  becomes  from 
collateral  circumstances  the  subject  of  a  suit 
in  equity,  the  wife's  right  to  a  settlement  will 
attach.  5  Mylne  &  C.  97.  See  2  Ves.  Ch.  607, 
680  ;  3  id.  166, 421 ;  9  id.  87 ;  4  Brown,  Ch.  338 ; 
5  Madd.  Ch.  149  ;  13  Me.  124 ;  10  Ala.  n.  s. 
401 ;  9  Watts,  Penn.  90;  5  Johns.  Ch.  N.  Y. 
464;  3  Cow.  N.  Y.  591 ;  2  Paige,  Ch.  N.  Y. 
303;  6  id.  366  ;  2  Bland,  Ch.  Md.  545. 

The  wife's  equity  to  a  settlement  is  bind- 
ing not  only  upon  the  husband,  but  upon  his 
assignee,  under  the  bankrupt  or  insolvent 
laws.  2'Atk.  Ch.  420;  3  Ves.  Ch.  607;  4 
Brown,  Ch.  138 ;  6  Johns.  Ch.  N.  Y.  25  ;  1 
Paige,  Ch.  N.  Y.  620 ;  4  Mete.  Mass.  486 ;  4 
Gill  &  J.  Md.  283 :  5  T.  B.  Monr.  Ky.  338 ; 
10  Ala.  N.  s.  401 ;  1  Ga.  637.  And  even 
where  the  husband  assigned  the  wife's  equi- 
table right  for  a  valuable  consideration,  the 
assignee  was  considered  liable.  4  Ves.  Ch. 
19. 

4:«  As  to  the  amount  of  the  rights  of  the 
wife,  the  general  rule  is  that  one-half  of  the 
wife's  property  shall  be  settled  upon  her.  2 
Atk.  Ch.  423 ;  3  Ves.  Ch.  166.  But  it  is  in 
the  discretion  of  the  court  to  give  her  an 
adequate  settlement  for  herself  and  children. 

5  Johns.  Ch.  N.  Y.  464;  6  id,  25;  3  Cow. 
N.Y.591;  lDes.Eq.So.C.263;  2  Bland,  Ch. 
Md.  545  ;  1  Cox,  N.  J.  153 ;  5  B.  Monr.  Ky 
31 ;  3  Ga.  193 ;  9  Sim.  &  S.  Ch.  597 ;  1  Sim. 

6  S.  Ch.  250. 

Whenever  the  wife  insists  upon  her  equity, 
the  right  will  be  extended  to  her  children; 
but  the  right  is  strictly  personal  to  the  wife, 
and  her  children  cannot  insist  upon  it  after 


WILD  ANIMALS 


665 


WILL 


her  death.  2  Ed.  Ch.  337;  1  Jac.  &  W.  Ch. 
Ir.  472;  1  Madd.  Ch.  407;  11  Bligh,  n.  s. 
104;  2  Johns.  Ch.  N.  Y.  206  ;  3  Cow.  N.  Y. 
591 ;  1  Sandf.  N.  Y.  129  ;  10  Ala.  n.  s.  401. 

The  wife's  equity  will  be  barred  by  an  ade- 
quate settlement  having  been  made  upon  her, 
2  Ves.  Ch.  675  ;  by  living  in  adultery  apart 
from  her  husband,  4  Ves.  Ch.  140  ;  but  a  fe- 
male ward  of  court,  married  without  it&  con- 
sent, will  not  be  barred  although  she  should  be 
living  in  adultery.    1  Ves.  &  B.  Ch.  Ir.  302. 

WILD  ANIMALS.  Animals  in  a  state 
of  nature  ;  animals  ferce  naiurce.  See  Ani- 
mals ;  Fer/e  Naturae. 

WILFULLY.  Intentionally. 

In  charging  certain  offences,  it  is  required 
that  they  should  be  stated  to  be  wilfully 
done.  Archbold,  Crim.  Plead.  51,  58  ;  Leach, 
Cr.  Cas.  556. 

In  Pennsylvania,  it  has  been  decided  that 
the  word  maliciously  was  an  equivalent  for 
the  word  wilfully,  in  an  indictment  for  arson. 
5  Whart.  Penn.  427. 

WILL  (last  will  and  testament).  The 
disposition  of  one's  property,  to  take  effect 
after  death.  Swinburne,  Wills,  pt.  1,  ^  2 ; 
Godolphin,  pt.  1,  c.  1,  s.  2. 

The  term  will,  as  an  expression  of  the  final  dis- 
position of  one's  property,  is  confined  to  the  Eng- 
lish law  and  those  countries  which  derive  their 
jurisprudence  from  that  source.  The  term  testa- 
mentum,  or  testament,  is  exclusively  used  in  the 
Roman  civil  law  and  by  the  continental  writers 
upon  that  subject.  Some  controversy  seems  to 
exist  whether  the  word  testamentnm  is  strictly  de- 
rived from  testatum  or  from  that  in  combination 
with  mentis.  There  does  not  seem  to  be  much 
point  in  this  controversy,  for  in  either  view  the 
result  is  the  same.  It  is  the  final  declaration  of 
the  person  in  regard  to  the  disposition  of  his  pro- 
perty. It  is  his  testimony  upon  that  subject,  and 
that  is  the  expression  of  his  mind  and  icill  in  rela- 
tion to  it. 

The  practice  of  allowing  the  owner  of  property 
to  direct  its  destination  after  his  death  is  of  very 
ancient  date,  coeval  with  civilization  itself,  so  far 
as  we  know.  Genesis,  xlviii.  22;  Gal.  iii.  15; 
Plutarch's  Life  of  Solon;  Roman  Laws  of  the 
Twelve  Tables. 

In  some  countries  the  right  of  disposing  of  pro- 
perty by  will  did  not,  indeed,  exist  in  early  times  : 
as,  among  the  ancient  Germans,  and  with  the 
Spartans  under  the  laws  of  Lycurgus,  and  the 
Athenians  before  the  time  of  Solon.  4  Kent, 
Comm.  502,  and  note.  But,  with  rare  exceptions, 
it  has  existed  semper  ubique  in  omnibus. 

And  in  England,  until  comparatively  a  recent 
period,  this  rijjht  was  to  be  exercised  under  con- 
fiiderable  restrictions,  even  as  to  personal  estate.  2 
Blackstone,  Comm.  492,  493. 

Until  the  statute  of  32  &  34  Henry  VIII.,  called 
the  Statute  of  Wills,  the  wife  and  children  were 
each  entitled  to  claim  of  the  executor  their  reason- 
able portion  of  the  testator's  goods,  i.e.  each  one- 
third  part.  So  that  if  one  had  both  a  wife  and 
children,  he  could  only  dispose  of  one-third  of  his 
personal  estate,  and  if  he  had  either  a  wife  or  child, 
but  not  both,  he  could  dispose  of  one-half.  Fitz- 
berbert,  Nat.  Brev.  122  II  (b),  9th  ed.;  2  Saund. 
66,  n.  (9);  2  Sharswood,  Blackst.  Comm.  492.  All 
restrictions  are  now  removed  from  the  disposition 
of  property,  by  will,  in  England,  whether  real  or 
personal,  by  the  statute  of  1  Vict.  c.  26.  And  in 
tbo  Roman  civil  law  the  children  were  always  en- 


titled to  their  share,  or  legitime,  being  one-fouitb 
part  of  the  e.state,  of  which  they  could  not  be  de- 
prived  by  the  will  of  their  father.  The  legitime 
was  by  the  emperor  Justinian  increased  to  one- 
third  part  of  the  estate  where  there  were  four  or  a 
less  number  of  children,  and  if  more  than  four 
then  they  might  claim  one-half  the  estate,  notwith- 
standing the  will.  Novell.  18,  c.  1 ;  2  Domat,  Civil 
Law,  15. 

And  by  the  existing  law  of  the  state  of  Louisi- 
ana, one  is  restrained  of  disposing  of  his  whole 
estate  if  he  have  children.  One  child  may  claim 
one-third  of  the  estate,  two  may  claim  half,  and 
three  two-thirds,  as  their  legitime,  or  reasonable 
part  of  the  estate.    See  Louisiana  Code. 

According  to  the  civil  law,  the  naming  of  an 
executor  was  of  the  essence  of  a  will;  and  that 
constituted  the  essential  diflference  between  a  will 
and  a  codicil;  the  latter,  not  making  any  such  ap- 
pointment, was,  on  that  account,  called  an  inofiici- 
ous  testament,  or  will.  Swinburne,  Wills,  pt.  1,  § 
5,  pi.  2.  3 ;  1  Williams,  Exec.  7. 

2.  Wills  are  unwritten  or  nuncupative, 
and  written.  The  former  are  called  nuncu- 
pative from  nuncupare,  to  name,  declare,  or 
make  a  solemn  declaration,  because  this  class 
of  wills  were  required  to  be  made  in  solemn 
form  before  witnesses,  and  by  the  appoint- 
ment or  naminfi;  of  an  executor.  Swinburne, 
Wills,  pt.  1,  §  12,  pi.  1 ;  Godolphin,  pt.  1,  c. 

This  class  of  wills  is  liable  to  much  tempta- 
tion to  fraud  and  perjury.  The  statute  of  29 
Charles  II.  c.  3,  laid  them  under  several  re- 
strictions ;  and  that  of  1  Vict.  c.  26,  rendered 
them  altogether  invalid  except  as  to  "any 
soldier  in  actual  military  service,  or  any 
mariner  or  seaman,  being  at  sea,"  who  may 
dispose  of  personal  estate  the  same  as  before 
the  act. 

By  the  insertion  of  the  clause  *'  in  actual 
military  service,"  it  has  been  held  to  include 
only  such  as  were  on  an  expedition,  and  not 
to  include  those  quartered  in  barracks,  either 
at  home  or  in  the  colonies.  3  Curt.  522,  818. 
But  see,  also,  2  Curt.  368,  341. 

So  the  exception  does  not  extend  to  the 
commander-in-chief  of  the  naval  force  in 
Jamaica,  who  lived  on  shore  at  the  official  resi- 
dence with  his  family.  The  Earl  of  Easton 
V.  Seymour,  cited  by  the  court  in  2  Curt. 
Eccl.  339  ;  3  id.  530.  The  statutes  of  most  of 
the  American  states  have  either  placed  nun- 
cupative wills  under  special  restrictions,  or  else 
reduced  them  within  the  same  narrow  limits 
as  the  English  statutes.  In  many  of  the 
states  they  still  exist  much  as  they  did  in 
England  before  the  statute  of  1  Vict.  c.  26, 
being  limited  to  a  small  amount  of  personal 
estate.  1  Jarman,  Wills,  Perkins  ed.  136,  and 
note. 

Written  Wills. 

3.  The  Testator's  Capacity.  He  m'jst 
be  of  the  age  of  discretion,  which,  by  the 
common  law  of  England,  is  fixed  at  twelve 
in  females,  and  fourteen  in  males.  Swin- 
burne, pt.  2,  g  2,  pi.  6 ;  Godolphin,  pt.  1,  c. 
8,  U  ;  1  Williams,  Ex.  13  ;  1  Jarman,  Wills. 
29. 

This  is  now  regulated  by  statute,  both  in 
England  and  most  of  the  United  States.  The 


WILL 


66G 


WILL 


period  of  competency  to  execute  a  will,  in 
England,  is  fixed  at  twenty-one  years,  and  the 
same  rule  is  adopted  in  many  of  the  United 
States,  and  the  disposition  is  strongly  mani- 
fested in  that  direction  throughout  the  states. 

1  Jarman,  Wills,  Perkins  ed.  29  et  seq.  Co- 
verture is  a  disability  to  the  execution  of  a 
will,  unless  by  the  consent  of  the  husband 
or  where  the  disability  is  removed  by  statute. 

2  Blackstone,  Comm.  498 ;  4  Kent,  Comm. 
505,  500  ;  1  Williams,  Ex.  42,  43  ;  1  Jarman, 
Wills,  30,  31.  But  see  12  Mass.  525  ;  5  N. 
H.  205  ;  10  Serg.  &  R.  Penn.  445,  where  the 

f)0wer  of  a  feme  covert  to  make  a  will,  as  to 
ands,  by  the  husband's  consent,  is  denied. 
Blindness  is  so  far  an  incapacity  that  it  re- 
quires express  and  satisfactory  proof  that  the 
testator  understood  the  contents  of  the  will, 
in  additiim  to  M'hat  is  required  in  other  cases. 
1  Rob.  Eccl.  278 ;  3  Strobh.  So.  C.  297 ;  1 
Jarman,  Wills,  49.  Deaf  and  dumb  persons 
will  labor  under  a  similar  inconvenience,  and 
especially  in  communicating  with  the  wit- 
nesses, unless  they  have  been  educated  so  as 
to  be  able  to  write.  Wharton  &  Still6,  Med. 
Jur.  I  13.  But  the  witnesses  must,  to  be 
present  with  the  testator,  be  within  the  pos- 
sible cognizance  of  his  remaining  senses. 
Richardson,  J.,  in  Reynolds  v.  Reynolds,  1 
Speers,  So.  C.  256,  257.  Persons  deaf,  dumb, 
and  blind  were  formerly  esteemed  wholly 
incapable  of  making  a  will ;  but  that  class  of 
persons  are  now  placed  upon  the  same  basis 
as  the  two  former,  with  only  the  additional 
embarrassment  attending  the  defect  of  another 
sense.    1  Williams,  Ex.  17,  18. 

4.  Idiots  are  wholly  incapable  of  execut- 
ing a  will,  whether  the  defect  of  understand- 
ing is  congenital  or  accidental.  Lunatics  are 
incapable  of  executing  a  last  will  and  testa- 
ment, except  during  such  a  lucid  interval  as 
allows  the  exercise  of  memory  and  judgment. 
It  must  be  an  absolute,  but  not  necessarily 
a  perfect,  restoration  to  reason  and  reflection, 
and  not  a  mere  temporary  remission.  Tay- 
lor, Med.  Jur.  642 ;  3  Brown,  Ch.  441 ;  Po- 
thier.  Obi.  Evans  ed.  App.  579 ;  Wharton  & 
Still6,  Med.  Jur.  §  255  ;  Rush,  Mind,  162, 163 ; 
Ray,  Med.  Jur.  g  279  ;  Combe,  Ment.  Der. 
241 ;  9  Ves.  Ch.  611 ;  11  id.  10;  13  id.  87. 
Monomania,  or  partial  insanity.  This  is  a 
mental  or  moral  perversion,  or  both,  in  re- 
gard to  a  particular  subject  or  class  of  sub- 
jects, while  in  regard  to  others  the  person 
seems  to  have  no  such  morbid  affection.  Tay- 
lor, Med.  Jur.  626.  It  consists  in  the  belief 
of  facts  in  regard  to  the  particular  subject 
cf  the  affection,  which  no  sane  person  would 
or  could  believe.  1  Add.  Eccl.  279  ;  3  id.  79. 
When  it  appears  that  the  will  is  the  direct 
offspring  of  this  morbid  affection,  it  should 
be  held  invalid,  notwithstanding  the  general 
soundness  of  the  testator.  6  Ga.  324;  7  Gill, 
Md.  10;  8  Watts,  Penn.  70.  See,  also,  6 
Moore,  Priv.  Coun.  341,  349  ;  12  Jurist,  947, 
where  the  distinguished  ex-chancellor,  Broug- 
ham, contends  for  the  extreme  notion  that 
every  person  laboring  under  any  form  of 
partial  insanity  or  monomania  is  incompe- 


tent to  execute  a  valid  will,  because  the  mind 
being  one  and  entire,  if  unsound  in  any  part  it 
is  an  unsound  mind.  This  extreme  view  will 
scarcely  gain  final  acceptance  in  the  courts. 
Wharton  &  Stilly,  Med.  Jur.  g  18,  contra. 

5.  Delirium  from  disease,  or  stimulus. 
This,  while  the  paroxysm  continues  to  such 
an  extent  as  to  deprive  a  person  of  the  right 
exercise  of  reason,  is  a  sufficient  impediment 
to  the  execution  of  a  will.  Ray,  Ins.  253, 
254,  390  ;  Taylor,  Med.  Jur.  626  ;  Wharton 
&  Still6,  g§  36,  235  ;  Rush,  Mind,  282 ;  18 
Ves.  Ch.  12;  23  Eng.  L.  &  Eq.  18;  17  Jur. 
1045  ;  1  Ves.  Sen.  Ch.  19.  See,  also,  2  Aik. 
Vt.  167  ;  1  Bibb,  Ky.  168,  406  ;  1  Hen.  &  M. 
Va.  70.  ^ 

But  there  is  not  the  same  presumption  of 
the  continuance  of  this  species  of  mental 
perversion,  whether  it  proceed  from  the  in- 
toxication of  stimulus  or  the  delirium  of 
fever,  as  in  ordinary  insanity.  3  Hill,  So.  C. 
68 ;  4  Mete.  Mass.  545.  Senile  dementia. 
This  is  a  defect  of  capacity  which  comes  very 
frequently  in  question  in  courts  of  justice  in 
testing  the  validity  of  wills.  If  the  testator 
has  sufficient  memory  remaining  to  be  able 
to  collect  the  elements  of  the  transaction,— 
viz.,  the  amount  and  kinds  of  property  he 
had,  and  the  number  of  his  children,  or  other 
persons  entitled  to  his  bounty, — and  to  hold 
them  in  mind  sufficiently  to  form  an  under- 
standing judgment  in  regard  to  them,  he  may 
execute  a  valid  will.  Ray,  Ins.  |  243  ;  Tay- 
lor, Med.  Jur.  650 ;  21  Vt.  168.  Age  itself 
is  no  sure  test  of  incapacity.  2  Phill.  261, 
262.  But  when  one  becomes  a  child  again, 
he  is  subject  to  the  same  incapacities  as  in 
his  first  childhood.  1  Williams,  Ex.  35  ;  3 
Madd.  Ch.  191 ;  2  Hagg.  Eccl.  211 ;  6  Ga.  324. 

6.  The  Mode  of  Execution.  This  de- 
pends upon  the  particular  form  of  the  sta- 
tute requirements. 

Under  the  English  Statute  of  Frauds,  29 
Car.  II.,  as  "signing"  only  was  required,  it 
was  held  that  a  mark  was  sufficient.  3  Nev. 
&  P.  228 ;  8  Ad.  &  E.  94 ;  10  Paige,  Ch. 
N.  Y.  85.  And  under  the  statute  of  1  Vict, 
c.  26,  the  same  form  of  execution  is  required, 
so  far  as  signing  is  concerned.  But  sealing 
seems  not  to  be  sufficient  where  signing  is 
required.  1  Wils.  313  ;  1  Jarman,  Wills,  69, 
70,  and  cases  cited.  So,  it  was  immaterial 
in  what  part  of  the  will  the  testator  signed. 
It  was  sufficient  if  the  instrument  began,  I, 
A  B,  etc.,  and  was  in  the  handwriting  of  the 
testator,  and  he  treated  that  as  signing  or 
did  not  regard  the  instrument  as  incomplete, 
as  it  evidently  would  be  so  long  as  he  in- 
tended to  do  some  further  act  to  authenticate 
it.  3  Lev.  1 ;  F^eem.  538  ;  1  Eq.  Cas.  Abr. 
403,  pi.  9  ;  Prec.  in  Chanc.  184 ;  21  Vt.  256. 
But  if  it  appear,,  from  the  form  of  attestation 
at  the  close,  or  in  any  other  way,  th.at  the 
testator  did  not  regard  the  instrument  as 
complete,  the  introduction  of  the  testator's 
name  at  the  beginning,  in  his  own  hand- 
writing, is  not  a  sufficient  signing.  Dougl» 
241 ;  1  Gratt.  Va.  454;  13  id.  664  ;  10  Paige, 
Ch.N.Y.85.   See7Q.B.450.  It  was  not  held 


WILL 


667 


WILL 


necessary  under  the  Statute  of  Frauds  of 
Charles  II.  that  the  witnesses  should  sub- 
scribe in  the  presence  of  each  other.  They 
might  attest  the  execution  at  difi'erent  times. 
Prec.  in  Chanc.  184 ;  1  Ves.  Ch.  12 ;  1  Wil- 
liams, Ex.  79.  But  the  statute- 1  Vict,  re- 
quires both  the  witnesses  to  be  present  when 
the  testator  signs  the  will  or  acknowledges 
his  signature ;  and  they  must  afterwards 
attest  in  the  presence  of  the  testator,  although 
not  of  each  other.  3  Curt.  Eccl.  659  ;  1  Wil- 
liams, Ex.  79,  and  note. 

H.  The  statutes  in  the  different  states  differ 
to  some  extent,  but  agree  substantially  with 
the  English  statute  of  Charles  II.  The  re- 
vised statutes  of  New  York  require  the  sig- 
nature of  the  testator  and  of  the  witnesses  to 
be  at  the  end  of  the  will.  4  Wend.  N.  Y. 
168 ;  13  Barb.  N.  Y.  17  ;  20  id.  238.  So,  also, 
in  Arkansas,  Pennsylvania,  and  Ohio,  and 
probably  some  other  of  the  American  states. 
1  Williams,  Ex.  Perkins  ed.  117,  n. 

Questions  have  often  arisen  in  regard  to 
what  declaration  is  requisite  for  the  testator 
to  make,  to  constitute  a  publication  in  the 
presence  of  the  witnesses.  But  the  later  and 
best-considered  cases,  under  statutes  similar 
to  that  of  Charles  II.,  only  require  that  the 
testator  shall  produce  the  instrument  to  the 
witnesses  for  the  purpose  of  being  witnessed 
by  them,  and  acknowledge  his  own  signature 
in  their  presence.  The  production  of  the  in- 
strument by  the  testator  for  the  purpose  of 
being  attested  by  the  witnesses,  if  it  bear  his 
signature,  will  be  a  sufficient  acknowledg- 
ment. 11  Cush.  Mass.  532;  1  Mete.  Mass. 
349;  10  id.  54;  1  Burr.  421;  3  id.  1775;  4 
Burn,  Eccl.  Law,  102 ;  6  Bingh.  310 ;  7  id. 
457  ;  7  Taunt.  361 ;  1  Crompt.  &  M.  Exch. 
140 ;  3  Curt.  Eccl.  181.  Where  a  will  or 
codicil  refers  to  an  existing  unattested  will  or 
other  paper,  it  thereby  becomes  a  part  of  the 
will.  2  Ves.  Ch.  228;  1  Ad.  &  E.423;  1 
Williams,  Ex.  86,  and  note ;  1  Rob.  Eccl. 
81.  Witnesses  may  attest  by  a  mark.  8 
Ves.  Ch.  185,  504;  5  Johns.  N.  Y.  144;  4 
Kent,  Comm.  514,  n. 

8.  Revocation.  The  mode  of  revocation 
of  a  will  provided  in  the  Statute  of  Frauds, 
Car.  II.,  is  by  "  burning,  cancelling,  tearing, 
or  obliterating  the  same.'^  In  the  present 
English  Statute  of  Wills,  the  terms  used  are, 
*'  burning,  tearing,  or  otherwise  destroying.'^ 
'  If  the  testator  has  torn  off  or  effaced  his  seal 
and  signature  at  the  end  of  a  will,  it  will  be 
presumed  to  have  been  done  anmo  revocandi. 
1  Add.  Eccl.  78 ;  1  Cas.  temp.  Lee,  444 ;  3 
Hagg.  Eccl.  568.  So,  too,  where  lines  were 
drawn  over  the  name  of  the  testator.  2  Cas. 
temp,  Lee,  84.  So,  also,  where  the  instru- 
ment had  been  cut  out  from  its  marginal 
frame,  although  not  otherwise  defaced,  except 
that  the  attestation  clause  was  cut  through, 
it  was  held  to  amount  to  a  revocation.  1 
PhiU.  Eccl.  375,  406. 

It  is  not  requisite  in  order  to  effect  the  re- 
vocation that  the  testator  should  effect  the 
destruction  of  the  instrument.  It  is  sufficient 
.f  he  threw  it  upon  the  tire  with  the  intention 


of  destroying  it,  although  some  one  snatch  it 
off  after  it  is  slightly  burned,  and  preserve  i* 
without  his  knowledge.  2  W.  Blackst.  1043. 
But  it  would  seem  that  it  must  be  an  actual 
burning  or  tearing  to  some  extent, — an  in- 
tention merely  to  do  the  acts  not  coming 
within  the  statute.  6  Ad.  &  E.  209  ;  2  Nev. 
&  P.  615.  But,  aside  from  the  statute,  a 
mere  intention  to  revoke  evidenced  by  any 
other  act,  will  be  effectual  to  revoke  as  burn- 
ing or  tearing,  etc.  8  Ad.  &  E.  1.  How 
much  the  will  must  be  burned  or  torn  to  con- 
stitute a  revocation  under  the  statute  of 
frauds,  was  left  by  the  remarks  of  the  differ 
ent  judges  in  Doe  v.  Harris,  supra,  in  per 
plexing  uncertainty.    1  Williams,  Ex.  121. 

If  the  testator  is  arrested  in  his  Y)urpose  of 
revocation  before  he  regards  it  as  complete, 
it  will  be  no  revocation,  although  he  tore  the 
will  to  some  extent.    3  Barnew.  &  Aid.  489. 

A  will  may  be  revoked  in  part.  2  Rob. 
Eccl.  563,  572.  But  partial  revocations  which 
were  made  in  anticipation  of  making  a  new 
will,  and  intended  to  be  conditional  upon  that, 
are  not  regarded  as  complete  until  the  new 
will  is  executed.  1  Add.  Eccl.  409 ;  2  id. 
316.    See  8  Sim.  Ch.  73. 

9.  By  the  present  English  statute,  every 
obliteration  or  interlineation  or  alteration  of  a 
will  must  be  authenticated  in  the  same  mode 
that  the  execution  of  the  will  is  required  to 
be.  Hence,  unless  such  alterations  are  signed 
by  the  testator,  and  attested  by  two  witnesses, 
they  are  not  to  be  regarded  as  made,  however 
obvious  the  intention  of  the  testator  may  be. 
But  if  the  words  are  so  obliterated  as  to  be  no 
longer  legible,  they  are  treated  as  blanks  in 
the  will.  3  Curt.  Eccl.  761.  The  mere  act 
of  defacing  a  will  by  accident  and  without 
the  intention  to  revoke,  or  under  the  misap- 
prehension that  a  later  will  is  good,  will  not 
operate  as  a  revocation.  1  P.  Will.  345  ; 
Cowp.  52;  1  Saund.  279  h,  c ;  Swinburne, 
Wills,  pt.  7, 1 16,  pi.  4;  1  Add.  Eccl.  53.  The 
revocation  of  a  will  is  prima  facie  a  revoca- 
tion of  the  codicils.  4  Hagg.  Eccl.  361.  But 
it  is  competent  to  show  that  such  was  not  the 
testator's  intention.  2  Add.  Eccl.  230;  1  Curt. 
Eccl.  289  ;  1  Williams,  Ex.  134.  The  same 
capacity  is  requisite  to  revoke  as  to  make  a 
will.  7  Dan.  Ky.  94  ;  11  Wend.  N.  Y.  227  ; 
9  Gill,  Md.  169  ;  7  Humphr.  Tenn.  92. 

The  making  of  a  new  will  purporting  on 
its  face  to  be  the  testator's  last  will,  and  con- 
taining no  reference  to  any  other  paper,  and 
being  a  disposition  of  all  the  testator's  pro- 
perty, and  so  executed  as  to  be  operative, 
will  be  a  revocation  of  all  former  wills,  not- 
withstanding it  contain  no  express  words  of 
revocation.  2  Curt.  Eccl.  468;  18  Jur.  560; 
4  Moore,  Pari.  Cas.  29.  So  the  appointment  of 
an  executor  is  a  circumstance  indicating  the 
exclusiv^ness  of  the  instrument.  1  Macq. 
Hou.  L.  163,  173.  And  the  revocation  will 
become  operative,  notwithstanding  the  second 
will  becomes  inoperative  from  the  incapacity 
of  the  devisee.    I  Pick.  Mass.  535,  543. 

Where  there  are  numerous  codicils  to  a 
will,  it  often  becomes  a  question  of  difficulty 


WILL 


668 


WILL 


to  determine  how  far  they  are  intended  as 
additions  to,  and  how  far  as  substitutes  for, 
each  other.  In  such  cases,  the  English  ec- 
clesiastical courts  formerly  received  parol 
evidence  to  show  the  animus  of  the  testator. 
But  it  was  held,  in  a  recent  case  of  this  kind, 
that  parol  evidence  could  tiot  be  received 
unless  there  was  such  doubt  on  the  face  of 
the  papers  as  to  require  the  aid  of  extrinsic 
evidence  to  explain  it.    2  Curt.  Eccl.  799. 

lO.  It  is  regarded  as  the  prima  facie  pre- 
sumption from  the  revocation  of  a  later  will, 
a  former  one  being  still  in  existence  and  un- 
cancelled, that  the  testator  did  intend  its 
restoration  without  any  formal  republication. 
4  Burr.  2512;  Cowp.  92;  3  PhiU.  Eccl.  554. 
But  it  is  still  regarded  as  mainly  a  question 
of  intention,  to  be  decided  by  all  the  facts  and 
circumstances  of  the  case.  1  How.  Miss.  336 ; 
2  Add.  Eccl.  125 ;  3  Curt.  Eccl.  770;  1  Moore, 
Pari.  Cas.  299,  301 ;  1  Williams,  Ex.  155, 156. 
An  express  revocation  must  be  made  in  con- 
formity with  the  statute,  and  proved  by  the 
same  force  of  evidence  requisite  to  establish 
the  will  in  the  first  instance.    8  Bingh.  479; 

1  Williams,  Ex.  160.    If  one  republish  a 

{)rior  will,  it  amounts  to  a  revocation  of  all 
ater  wills  or  codicils.  1  Add.  Eccl.  38 ;  7 
Term,  138. 

Implied  revocations  were  very  common  be- 
fore the  statute  of  frauds.  But  since  the  new 
statute  of  1  Vict.  c.  26,  §  19,  as  to  all  estates 
real  and  personal,  it  is  provided  that  no  will 
shall  be  revoked  on  the  ground  of  a  presumed 
intention  resulting  from  change  of  circum- 
stances. Before  that,  it  was  held  under  the 
statute  of  frauds,  by  a  succession  of  decisions, 
that,  even  as  to  lands,  the  marriage  of  the  tes- 
tator and  the  birth  of  children  who  were  un- 
provided for  was  such  a  change  of  circum- 
stances as  to  work  an  implied  revocation  of 
the  will.  2  Show.  242;  4  Burr.  2171,  in  note, 
2182 ;  and,  finally,  by  all  the  judges  in  Eng- 
land in  the  exchequer  chamber,  8  Ad.  &  E. 
14 ;  2  Nev.  &  P.  504.  This  latter  case  seems 
finally  to  have  prevailed  in  England  until  the 
new  statute.    2  Moore,  Pari.  Cas.  51,  63,  64; 

2  Curt.  Eccl.  854;  1  Rob.  Eccl.  680.  And 
the  subsequent  death  of  the  child  or  children 
will  not  revive  the  will  without  republication. 
1  Phill.  Eccl.  342 ;  2  id.  266. 

The  marriage  alone  or  the  birth  of  a  child 
alone  is  not  sufficient  to  operate  a  revocation. 
4  Burr.  2171 ;  Ambl.  Ch.  487,  557,  721 ;  5 
Term,  52,  53,  and  note.  But  the  birth  of  a 
child  with  circumstances  favoring  such  a  re- 
sult mav  amount  to  an  implied  revocation. 
6  Term,*^52,  53,  and  note ;  1  Phill.  Eccl.  147. 
This  matter  is  controlled  in  most  of  the  Ame- 
rican states,  more  or  less,  by  statute.  In 
many  of  them  a  posthumous  child  unprovided 
for  in  the  will  of  the  father  inherits  the  same 
as  if  no  will  had  been  made.  In  others,  all 
children  born  after  the  execution  of  the  will, 
and  in  some  states  all  children  not  provided 
for  in  the  will,  are  placed  on  the  same  ground 
as  if  no  will  existed.  1  Williams,  Ex.  170, 
n.  1,  171,  n.  1.  And  by  the  express  provi- 
wons  of  the  act  of  1  Vict,  the  marriage  of  the 


testator,  whether  man  or  woman,  amounts  to 
a  revocation.    \  Jarman,  Wills,  106-173. 

11.  Republication.  This,  under  the  sta* 
tute  of  frauds,  could  only  be  done  in  the  same 
manner  a  will  of  lands  was  required  to  be 
first  executed.  And  the  same  rule  obtains 
under  the  statute  of  1  Vict.,  and  in  many, 
perhaps  most,  of  the  American  states.  This 
is  what  is  generally  understood  by  an  express 
republication.  12  Ired.  No.  C.  355  ;  2  Conn. 
67.    See,  also,  2  Whart.  Penn.  103. 

Constructive  republication  is  effected  by 
means  of  a  codicil,  unless  neutralized  by  in- 
ternal evidence  of  a  contrary  intention.  Com. 
381 ;  1  Eq.  Cas.  Abr.  406,  D,  pi.  5 ;  1  Ves.  Sen. 
Ch.  437  ;  1  Jarman,  Wills,  175,  and  notes. 

Probate  of  Wills.  The  proof  of  a  will  of 
personal  property  must  always  be  made  in 
the  probate  court.  But  in  England  the  pro- 
bate of  the  will  is  not  evidence  in  regard  to 
real  estate.  In  most  of  the  American  states 
the  same  rule  obtains  in  regard  to  real  as  to 
personal  estate, — as  that  court  have  exclusive 
jurisdiction,  in  most  of  the  states,  in  all  mat- 
ters pertaining  to  the  settlement  of  estates. 
9  Coke,  36,  38  a;  Fonblanque,  Eq.  b.  4,  pt. 
2,  c.  1,  g  2 ;  4  Term,  260 ;  1  Jarman,  Wills 
218;  8  N.  H.  124;  12  Mete.  Mass.  421 ;  8 
Ohio,  5  ;  3  Gill,  Md.  198  ;  20  Miss.  134;  23 
Conn.  1.  The  probate  of  the  will  gives  effect 
to  a  devise  in  most  of  the  states,  but  that 
gives  it  operation  from  the  death  of  the  tes- 
tator. 2  Story,  C.  C.  327;  11  Me.  127;  3 
N.  H.  517  ;  4  McLean,  C.  C.  75.  In  some  of 
the  states  the  English  rule  prevails  that  the 
probate  of  the  will  has  no  effect  as  to  devises 
of  real  estate.  12  Johns.  N.  Y.  192 ;  14  id. 
407 ;  5  Rawle,  Penn.  80;  1  Nott  &  M'C.  So.  C. 
326. 

The  probate  of  a  will  has  no  effect  out  of 
the  jurisdiction  of  the  court  before  which 
probate  is  made,  either  as  to  persons  or  pro- 
perty in  a  foreign  jurisdiction.  8  Ves.  Ch. 
44;  1  Johns.  Ch.  N.  Y.  153;  12  Vt.  589; 
Story,  Confl.  Laws,  p  512-517.  But  the  in- 
dorsement of  negotiable  paper  by  the  exe- 
cutor or  administrator  in  the  place  of  his  ap- 
pointment will  enable  the  indorsee  to  main- 
tain an  action  in  a  foreign  state  upon  the 
paper  in  his  own  name.  9  Wend.  N.  Y.  425. 
But  see  5  Me.  261 ;  2  N.  H.  291,  where  the 
rule  is  held  otherwise.  The  executor  may 
dispose  of  bank-shares  in  a  foreign  state  with- 
out proving  the  will.    12  Mete.  Mass.  421. 

12.  Any  person  interested  in  the  will  may 
compel  probate  of  it  by  application  to  the 
probate  court,  who  will  summon  the  executor 
or  party  having  the  custody  of  it.  4  Pick. 
Mass.  33  ;  3  Bacon,  Abr.  34,  Executors.  The 
judge  of  probate  may  cite  the  executor  to 
prove  the  will  at  the  instance  of  any  one 
claiming  an  interest.  4  Pick.  Mass.  33  ;  1 
Williams,  Ex.  201 ;  1  Jarman,  Wills,  224. 
The  attesting  witnesses  are  indispensable,  if 
the  contestants  so  insist,  as  proof  of  the  exe- 
cution and  authenticity  of  the  will  and  the 
competency  of  the  testator,  when  they  can  be 
had.  2  Greenlcaf,  Ev.  691,  692  ;  1  Jarman, 
Wills.  226,  and  note.    But  if  all  or  part  of 


WILL 


669 


WILL 


the  subscribing  witnesses  are  absent  from 
the  state,  deceased,  or  disqualified,  then  their 
handwriting  must  be  proved.  9  Ves.  Ch. 
381 ;  19  Johns.  N.  Y.  180  ;  1  Jarman,  Wills, 
226,  and  notes.  And  see  17  Ga.  364 ;  9 
Pick.  Mass.  350;  6  Rand.  Va.  33.  It  will 
be  presumed  that  the  requisite  formalities 
were  complied  with  when  the  attestation  is 
formal,  unless  the  contrary  appear.  8  Md. 
15  ;  11  N.  Y.  220;  30  Penn.  St.  218;  1  Jar- 
man,  Wills,  228,  and  notes.  But  it  has  some- 
times been  held  that  no  such  presumption 
will  be  made  in  the  absence  of  a  subscribing 
witness  who  might  be  called.  19  Johns.  N.  Y. 
386.  Wills  over  thirty  years  old,  and  appear- 
ing regular  and  perfect,  and  coming  from  the 
proper  custody,  are  said  to  prove  themselves. 
1  Greeuleaf,  Ev.  g|  21,  570 ;  2  Kay  &  J.  Ch. 
112.  See,  also,  2  Nott  &  M'C.  So.  C.  400.. 
Wills  lost,  destroyed,  or  mislaid  at  the  time  of 
the  testator's  death  may  be  admitted  to  pro- 
bate upon  proper  proof  of  the  loss  and  of  the 
execution.  1  Phill.  Eccl.  149 ;  1  Green,  Ch. 
N.  J.  220;  1  Jarman,  Wills,  231,  note. 

Time  from  which  a  will  speaks.  In 
general,  a  will  speaks  from  the  death  of  a 
testator,  that  being  the  point  of  time  at  which 
it  becomes  operative.  21  Conn.  550,  616.  But 
often  the  language  of  the  testator  requires  to 
be  taken  with  reference  to  the  time  it  is  used. 
Ambl.  Ch.  397;  1  Eq.  Cas.  Abr.  201 ;  2  Atk. 
Ch.  597  ;  1  Jarman,  Wills,  299.  But  it  will 
receive  the  former  interpretation  if  it  can 
reasonably  be  made  to  bear  it.  2  Cox,  Ch. 
384. 

13.  Gifts  void  for  uncertainty.  Where 
the  subject-matter  of  the  gift  is  not  so  defined 
in  the  will  as  to  be  ascertainable  with  reason- 
able certainty.  25  Penn.  St.  460;  12  Gratt. 
Va.  196;  1  Jarman,  Wills,  317;  1  Lev.  130; 
1  Swanst.  Ch.  201.  The  person  intended  to 
be  benefited  may  not  be  so  described  or  named 
that  he  can  be  identified.  But,  in  general, 
by  rejecting  obvious  mistakes,  this  kind  of 
uncertainty  is  overcome.  1  Jarman,  Wills, 
330-348,  and  notes  and  cases  cited. 

Parol  evidence,  how  far  admissible. 
The  rule  in  regard  to  the  admissibility  of 
parol  evidence  to  vary,  control,  or  to  render 
intelligible  the  words  of  a  will,  is  not  essen- 
tially difierent  from  that  which  obtains  in  re- 
gard to  contracts.  It  may  be  received  to 
show  the  state  of  the  testator,  the  nature  and 
condition  of  his  property,  his  relation  to  the 
contestants,  and  all  the  surrounding  circum- 
stances. But  this  is  done  to  place  the  court 
in  the  condition  of  the  testator,  in  order  as 
far  as  practicable  to  enable  them  the  more 
fully  to  understand  the  sense  in  which  he 

f'-obably  used  the  language  found  in  his  will. 
Nev.  &  M.  524;  15  Pick.  Mass.  400;  11 
id.  257  ;  1  Phillipps,  Ev.  532-547  ;  Cowen  & 
Hill's  Notes ;  1  Greenleaf,  Ev.  ^§  287-289 ;  1 
Jarman,  Wills,  349,  and  notes  ;  2  Ired.  No.  C. 
192.  Letters  and  oral  declarations  of  the 
testator  are  not  admissible  to  show  the  inten- 
tion of  the  testator.  2  Vern.  Ch.  625;  14 
Johns.  N.  Y.  1 ;  2  Watts  &  S.  Penn.  455. 
But  see  22  Wend.  N.  Y.  148.    Parol  evidence 


is  not  admissible  to  supply  any  word  or  de- 
fect in  the  will.  7  Gill  &  J.  Md.  127  •,  8 
Conn.  254  ;  23  Barb.  N.  Y.  285  ;  27  Ala.  n.  s. 
489.  Parol  declarations  of  the  testator  about 
the  time  of  making  the  will  are  often  ad- 
mitted to  show  the  state  of  mind,  capacity, 
and  understanding  of  the  testator;  but  they 
are  not  to  be  used  to  show  his  intention: 
that  must  be  learned  from  the  language  used. 
8  Conn.  254. 

14.  Courts  of  equity  cannot  reform  a  will 
upon  proof  of  mistake,  as  they  do  a  contract. 
5  Madd.  Ch.  364  ;  1  Moore  &  S.  352  ;  6  Conn. 
34 ;  23  Vt.  336.  Parol  evidence  is  admis- 
sible to  explain  and  remove  a  latent  ambiguity. 
1  Maule  &  S.  345  ;  4  Barnew.  &  Ad.  787  ;  6 
Mete.  Mass.  404,  405 :  2  Jones,  Eq.  No.  C. 
377  ;  6  Md.  224 ;  1  Jarman,  Wills,  170,  and 
cases  cited ;  1  Crompt.  &  M.  Exch.  235  ;  1 
Mer.  Ch.  384;  1  Paige,  Ch.  N.  Y.  291;  5 
Mees.  &  W.  Exch.  369.  So,  also,  to  rebut  a 
resulting  trust.  14  Johns.  N.  Y.  1 ;  1  Jar- 
man, Wills,  157,  and  cases  cited.  But  where 
a  wrong  name  is  inserted  in  the  will  by  mis- 
take of  the  scrivener,  or  where  the  name  is 
left  wholly  blank,  parol  evidence  is  not  admis- 
sible in  order  to  carry  into  effect  the  purpose 
of  the  testator.  7  Mete.  Mass.  188  ;  3  Brown, 
Ch.  c.  311.  But  a  partial  blank  may  be  sup- 
plied. 4  Ves.  Ch.  080.  See  1  Jarman,  Wills, 
349-384 ;  2  Williams,  Ex.  1037,  1049,  1050, 
1080-1082,  1164-1166;  5  Mees.  &  W.  Exch. 
363.  But  where  the  residuary  legatee  was 
described  by  a  wrong  Christian  name,  paroi 
evidence  was  received  to  show  who  was  in- 
tended.   1  Paige,  Ch.  N.  Y.  291.    See,  also, 

4  Johns.  Ch.  N.  Y.  607. 
Contradictory  Provisions.   As  a  general 

rule,  where  there  are  portions  of  a  will  wholly 
incapable  of  standing  with  other  portions 
(and  where  they  cannot  both  be  allowed  to 
operate  so  as  to  give  the  persons  to  be  bene- 
fited a  joint  estate  in  the  thing),  the  latter 
provision  must  control,  as  being  the  latest 
declaration  of  the  intention  of  the  testator. 

5  Ves.  Ch.  247  ;  6  id.  100  ;  2  Taunt.  109  ;  2 
Mylne  &  K.  149  ;  2  Mete.  Mass.  202 ;  22  Me. 
430  ;  6  Pet.  84 ;  1  Jarman,  Wills,  411-425. 

In  Criminal  Law.  The  power  of  the 
mind  which  directs  the  action  of  a  man. 

In  criminal  jurisprudence,  the  necessity  of 
the  concurrence  of  the  will  is  deemed  so  far 
indispensable  that,  in  general,  those  persona 
are  held  not  amenable  as  offenders  against 
the  law  who  have  merely  done  the  act  pro- 
hibited, without  the  concurrence  of  the  will. 
This  has  reference  to  different  classes  of  per- 
sons who  are  regarded  as  laboring  under 
defect  of  will,  and  are,  therefore,  incapable 
of  committing  crime. 

15.  Infants,  who,  from  want  of  age,  are 
excused  from  punishment.  The  age  of  dis- 
cretion, or  capacity  for  crime,  is  fixed,  by  the 
common  law  of  England,  at  fourteen  years. 
1  Hale,  PI.  Cr.  25-29 ;  I  Hawkins.  PI.  Cr.  c. 
1,  8.  1 ;  1  Russell,  Crimes,  2-6.  Below  the 
age  of  fourteen  years  all  persons,  both  male 
and  female,  are  presumed  incapable  of  com- 
mitting felony  or  other  crime.   For,  although 


WILL 


670 


WISBUY,  LAWS  OF 


the  law  makes  a  distinction  in  regard  to  the 
age  of  consent  to  marriage  between  males 
and  females,  fixing  it  at  fourteen  in  the 
former  and  twelve  in  the  latter,  no  such  dis- 
tinction is  made  in  regard  to  capacity  for 
crime.    1  Hale,  PL  Cr.  25-29. 

Below  the  age  of  seven  years,  infants  are 
presumed  so  incapable  of  any  malicious  de- 
sign as  not  to  incur  the  guilt  of  felony  or 
of  any  other  crime.  Hence  an  infant  below 
the  age  of  seven  years,  whatever  art  or  malice 
he  may  exhibit  in  the  act  constituting  the 
corpus  delicti,  is  nevertheless  to  go  acquit,  on 
account  of  his  presumed  incapacity  to  incur 
the  guilt  of  crime.  1  Hawkins,  PI.  Cr.  c.  1, 
g  1 ;  1  Hale,  PI.  Cr.  supra. 

Between  the  ages  of  seven  and  fourteen 
years,  an  infant,  although  presumed,  prima 
facie,  incapable  of  incurring  the  guilt  of 
crime,  is,  nevertheless,  liable  to  trial  and  to 
be  proved  guilty  upon  the  facts  of  the  par- 
ticular case  evincing  guilty  consciousness. 
The  reports  abound  with  cases  where  clear 
evidences  of  criminal  consciousness  were 
Bhown,  and  of  very  marked  atrocity,  from  the 
age  of  nine  years  and  upward.  1  Russell, 
Crimes,  2-6 ;  1  Hale,  PI.  Cr.  25-29. 

16.  Persons  laboring  under  mental  imbe- 
cility are  not  amenable  for  crime.  This  class 
of  persons  has  been  subdivided  according  to 
the  character  of  the  malady  and  the  per- 
manency or  continuity  of  its  operation.  An 
idiot,  or  one  who  suffers  an  entire  defect  of 
mind  from  birth.  The  writers  upon  this  sub- 
ject have  attempted  to  define  idiocy  as  an 
incapacity  "  to  count  twenty,  to  tell  who  was 
his  father  or  mother,  or  how  old  he  was." 
Fitzherbert,  Nat.  Brev.  532  b.  But  although 
incapable,  perhaps,  of  other  definition  than 
that  first  given,  it  is  not  easily  misunder- 
stood such  persons  are  wholly  incapable  of 
crime.  1  Hale,  PI.  Cr.  c.  4.  One  rendered 
non  compos  by  sickness  or  other  cause,  and 
where  the  malady  is,  therefore,  not  congeni- 
tal but  accidental.  This,  if  it  produce  an 
entire  defect  of  mind  and  will,  either  per- 
manently or  temporarily,  is,  during  its  con- 
tinuance, a  bar  to  all  criminal  responsibility. 
1  Hale,  PI.  Cr.  26-29 ;  1  Russell,  Crimes,  7, 
and  cases  cited  by  these  writers. 

Lunacy,  which  is  much  the  same  as  the 
last  above,  except  that  it  is  attended  with 
lucid  intervals,  during  the  continuance  of 
which  the  person  is  responsible  criminally. 
But  care  should  be  exercised  to  discriminate 
correctly  between  a  lucid  interval,  where  the 
mind  is  fully  restored,  and  a  mere  remission 
of  the  paroxysm,  where  the  patient  seems 
comparatively  but  not  absolutely  restored. 
Taylor,  Med.  Jur.  642 ;  Redfield,  Wills,  c.  iii. 
sect,  xii  §  14. 

17.  Persons  subject  to  the  power  of  others. 
This  exemption  from  crime,  in  the  English 
common  law,  extends  to  the  wife  while  in  the 
immediate  presence  and  under  the  power  of 
the  husband,  but  not  to  a  child  or  servant. 
And  in  respect  of  the  enormity  of  the  offences 
of  treason  and  murder,  the  wife  even  is  not 
excused  bv  the  command  of  the  husband.  1 


Hale,  PI.  Cr.  44,  516;  1  Hawkins,  PI.  Cr.  c. 
1.  s.  14.  The  wife  is  liable,  too,  for  all 
offences  committed  not  in  the  presence  of  the 
husband,  and  also  where  she  is  the  principal 
party  concerned.  1  Hawkins,  PI.  Cr.  c.  1,  § 
14 ;  1  Hale,  PI.  Cr.  44,  516.  The  distinction 
between  the  M^ife  and  the  child  and  especially 
the  servant,  where  the  relation  of  master  and 
servant  is  of  a  permanent  character,  or  where 
the  law  gives  the  master  unlimited  control 
over  the  acts  of  the  servant,  seems  not  to 
rest  upon  any  well-founded  l)asis  in  present 
social  relations.  The  English  law  does  not 
regard  one  in  the  power  of  robbers  or  of  an 
armed  force  of  rebels  as  responsible,  crimi- 
naliter,  for  his  acts.  No  more  should  one  be 
who  is  wholly  under  the  power  of  another,  as 
a  child  or  servant  may  be.  1  Russell,  Crimes, 
14.  See  Ch.  J.  Howe,  18  State  Trials,  293, 
394.  These  questions  should,  in  strictness,  be 
referred  to  the  jury  as  matters  of  fact.  See 
Duress. 

Ignorance  of  law  will  not  excuse  any  one. 
But  ignorance  of  fact  sometimes  renders  that 
innocent  which  would  otherwise  be  a  crime  : 
as,  where  one  kills  an  innocent  person,  mis* 
taking  him  for  an  assassin  or  robber.  1  Hale 
PI.  Cr.  c.  6 ;  1  Russell,  Crimes,  19,  20. 

WINCHESTER,  STATUTE  OF.  An 

English  statute,  13  Edw.  I.  1285,  relating  to 
the  internal  police  of  the  kingdom.  It  re- 
quired every  man  to  provide  himself  with 
armor  to  aid  in  keeping  the  peace ;  and  if  it 
did  not  create  the  offices  of  high  and  petty 
constables,  it  recognized  and  regulated  them, 
and  charged  them  with  duties  answering 
somewhat  to  those  of  our  militia  officers.  The 
statute  took  its  name  from  the  ancient  capital 
of  the  kingdom.  It  was  repealed  by  the 
statute  of  7  &  8  Geo.  IV.  c.  27. 

WINDOW.  An  opening  made  in  the 
wall  of  a  house  to  admit  light  and  air,  and 
to  enable  those  who  are  in  to  look  out. 

The  owner  has  a  right  to  make  as  many 
windows  in  his  house,  when  not  built  on  the 
line  of  his  property,  as  he  may  deem  proper, 
although  by  so  doing  he  may  destroy  the  pri- 
vacy of  his  neighbors.  Bacon,  Abr.  Actions 
in  General  (B). 

In  cities  and  towns  it  is  evident  that  the 
owner  of  a  house  cannot  open  windows  in  the 
partition-wall  without  the  consent  of  the 
owner  of  the  adjoining  property,  unless  he 
possesses  the  right  of  having  ancient  lights^ 
which  see.  The  opening  of  such  windows 
and  destroying  the  privacy  of  the  adjoining 
property  is  not,  however,  actionable ;  the 
remedy  against  such  encroachment  is  by  ob- 
structing them,  without  encroaching  upon 
the  rights  of  the  party  who  opened  them,  so 
as  to  prevent  a  right  from  being  acquired  by 
twenty  years'  use.  3  Campb.  82.  See  Light 
AND  Air. 

WIRTA.  A  measure  of  land  among  the 
Saxons,  containing  sixty  acres. 

WISBUY,  LAWS  OP.  See  Code.  J 
28. 


WISCONSIN 


671 


WISCONSIN 


WISCONSIN.  One  of  the  new  states 
of  the  United  States. 

2.  It  was  originally  a  part  of  the  territory  north- 
west of  the  Ohio  river,  and  subject  to  the  ordi- 
nance of  July  13,  1787,  establishing  that  territory. 
It  was  made  a.  separate  territory,  with  the  name  of 
Wisconsin,  by  act  of  congress  approved  April  20, 
1836.  Said  territory  was  afterwards  divided,  and 
the  territory  of  Iowa  set  ofl",  Juno  12,  1838.  It 
was  admitted  into  the  Union  as  a  state  May  29, 
1848,  with  the  following  boundaries, — viz.:  begin- 
ning at  the  northeast  corner  of  the  state  of  Illinois, 
i.e.  a  point  in  the  centre  of  lake  Michigan  where 
the  line  of  forty-two  degrees  and  thirty  minutes 
crosses  the  same,  thence  running  with  the  bound- 
ary-line of  the  state  of  Michigan,  through  lake 
Michigan  and  Green  Bay,  to  the  mouth  of  Meno- 
monee  river,  thence  up  the  channel  of  said  river 
to  the  Brule  River,  thence  up  said  last-mentioned 
river  to  lake  Brule,  thence  along  the  southern  shore 
of  lake  Brule  in  a  direct  line  to  the  centre  of  the 
channel  between  Middle  and  South  Islands  in  the 
Jake  of  the  Desert,  thence  in  a  direct  line  to  the 
head-waters  of  the  Montreal  River,  as  marked  upon 
the  survey  made  by  Captain  Crawm,  thence  down 
the  main  channel  of  Montreal  river  to  the  middle 
of  lake  Superior,  thence  through  the  centre  of  lake 
Superior  to  the  mouth  of  the  St.  Louis  river, 
thence  up  the  main  channel  of  said  river  to  the 
first  rapids  in  the  same  above  the  Indian  village, 
according  to  Nicollet's  map,  thence  due  south  to 
the  main  branch  of  the  river  St.  Croix,  thence 
down  the  main  channel  of  said  river  to  the  Missis- 
sippi, thence  down  the  centre  of  the  main  channel 
of  that  river  to  the  northwest  corner  of  the  state 
of  Illinois,  thence  due  east  with  the  northern 
boundary  of  the  state  of  Illinois  to  the  place  of 
beginning. 

3.  The  constitution  of  Wisconsin  was  adopted 
by  a  convention  at  Madison,  on  the  first  day  of 
February,  1848.  The  constitution  is  prefaced  by  a 
bill  of  rights,  which  declares  that  all  men  are  born 
free  and  equal ;  that  there  shall  be  no  slavery  or 
involuntary  servitude  but  for  crime;  that  there 
shall  be  freedom  of  speech  and  of  the  press ;  that 
the  rights  of  petition  ought  to  exist;  that  indict- 
ment must  precede  trial ;  that  there  should  be 
remedies  for  injury  to  property  or  person;  that 
there  shall  be  security  from  unreasonable  searches 
of  house  or  person ;  defines  treason  ;  makes  all  ten- 
ures allodial ;  gives  aliens  the  same  rights  of  pro- 
perty as  subjects ;  abolishes  imprisonment  for  debts ; 
forbids  religious  tests  of  fitness  for  ofl5ce  and  citi- 
zenship. Every  male  person,  twenty-one  years  old  or 
more,  who  has  resided  in  the  state  one  year  next 
preceding  an  election,  and  who  is  a  white  citizen 
of  the  United  States,  or  a  white  person  of  foreign 
birth  vho  has  declared  his  intention  to  become  a 
citizen,  or  a  person  of  Indian  blood  who  has  once 
been  declared  by  law  of  congress  to  be  a  citizen  of 
the  United  States,  any  subsequent  act  of  congress 
to  the  contrary  notwithstanding,  or  a  civilized  per- 
son of  Indian  descent  not  a  member  of  any  tribe. 
And  the  right  may  be  extended  to  other  persons 
by  act  of  legislature  approved  by  a  majority  of  the 
voters  at  a  general  election.  All  persons  under 
guardianship,  non  compos  mentis,  or  insane,  all 
persons  convicted  of  treason  or  felony,  unless  re- 
stored to  civil  rights,  are  excluded.  No  soldier, 
seaman,  or  marine  in  the  army  or  navy  of  the 
United  States  shall  be  deemed  a  resident  in  conse- 
quence of  being  stationed  within  the  state. 

The  Legislative  Power. 

4.  The  Senate  is  to  be  composed  of  not  more 
than  one-tbird  nor  less  than  one-fourth  the  num- 
ber of  the  representatives.  The  present  number 
Is  thirty,  elected  by  the  people  of  their  respective 


districts  for  one  year.  A  senator  must  be  a  quali- 
fied voter,  and  have  lived  in  the  state  one  year 
next  preceding  the  election. 

The  AHHeiiibly  is  to  be  composed  of  not  less  than 
fift^'-four  and  not  more  than  one  hundred  (the 
present  number  is  ninety-six),  elected  annually  in 
each  of  the  districts  into  which  the  state  is  divided 
for  the  purpose.  The  qualifications  to  be  the  same 
as  those  of  the  senators. 

An  apportionment  of  members  of  both  houses  ij 
to  be  made  every  tenth  year  from  1855.  The  mem- 
bers are  exempt  from  arrest  on  civil  process  during 
the  session  of  the  legislature  and  fifteen  days  beforo 
and  after.  The  constitution  contains  the  usual 
provisions  for  organization  of  the  two  houses ;  for 
giving  each  house  the  regulation  and  control  of 
the  conduct  of  its  members  and  judging  of  their 
qualification  ;  for  keeping  and  publishing  a  journal 
of  its  proceedings ;  for  open  sessions. 

The  Executive  Power. 

5.  The  Governor  is  elected  by  the  people,  for  the 
term  of  two  years.  In  case  two  have  an  equal 
number  of  votes  and  the  highest  number,  the  two 
houses  of  legislature  by  joint  ballot  designate  which 
of  the  two  shall  be  governor.  He  must  be  a  citi- 
zen of  the  United  States,  and  a  qualified  voter  in 
the  state.  The  governor  is  commander-in-chief 
of  the  military  and  naval  forces  of  the  state ;  has 
power  to  convene  the  legislature  on  extraordinary 
occasions,  and  in  case  of  invasion  or  danger  from 
the  prevalence  of  contagious  disease  at  the  seat  of 
government,  to  convene  them  at  any  other  suitable 
place  within  the  state;  must  communicate  to  the 
legislature  at  every  session  the  condition  of  the 
state,  and  recommend  such  matters  to  them  for 
their  consideration  as  he  may  deem  expedient; 
transacts  all  necessary  business  with  the  officers  of 
the  government,  civil  and  military ;  must  expedite 
all  such  measures  as  may  be  resolved  upon  by  the 
legislature,  and  take  care  that  the  laws  be  faith- 
fully executed ;  has  the  power  to  grant  reprieves, 
commutations,  and  pardons  after  conviction  for  all 
off"ences  except  treason  and  cases  of  impeachment, 
upon  such  conditions  and  with  such  restrictions 
and  limitations  as  he  may  think  proper,  subject  to 
such  regulations  as  may  be  provided  by  law  rela- 
tive to  the  manner  of  applying  for  pardons.  Upon 
conviction  for  treason  he  has  the  power  to  suspend 
the  execution  of  the  sentence  until  the  case  is  re- 
ported to  the  legislature  at  its  next  meeting,  when 
the  legislature  may  either  pardon  or  commute  the 
sentence,  direct  the  execution  of  the  sentence,  or 
grant  a  further  reprieve.  He  must  annually  com- 
municate to  the  legislature  each  case  of  reprieve, 
commutation,  or  pardon  granted,  stating  the  name 
of  the  convict,  the  crime  of  which  he  was  con- 
victed, the  sentence  and  its  date,  and  the  date 
of  the  commutation,  pardon,  or  reprieve,  with  his 
reasons  for  granting  the  same. 

The  governor  may  also  veto  any  bill,  returning 
it  to  the  legislature  with  his  objections  :  if  it  is  then 
passed  by  a  vote  of  two-thirds  in  each  house,  it 
becomes  a  law. 

6.  The  Lieutenant-Governor  is  elected  at  the 
same  time  as  the  governor,  for  the  same  term,  and 
must  possess  the  same  qualifications  as  the  gov- 
ernor. He  is  president  of  the  senate,  but  has  only 
a  casting  vote.  In  case  of  the  impeachment  of  the 
governor,  or  of  his  removal  from  offiee,  death,  in- 
ability from  mental  or  physical  disease,  resigns 
tion,  or  absence  from  the  state,  the  powers  ana 
duties  of  the  office  devolve  upon  him  for  the  resi- 
due of  the  term,  until  the  governor  absent  or  im- 
peached has  returned,  or  the  disability  ceases.. 
But  when  the  governor,  with  the  consent  of  the 
legislature,  is  out  of  the  state  in  time  of  war,  at  the 
head  of  the  military  force  thereof,  he  continues 
commander-in-chief  of  the  military  forces  of  th« 


WITENA-GEMOTE  672 


WITHERNAM 


state.  If  during  a  vacancy  in  the  office  of  gov- 
ernor the  lieutenant-governor  is  impeached,  dis- 
placed, resign,  die.  or  from  mental  or  physical  dis- 
ease becomes  incapable  of  performing  the  duties 
of  his  office,  or  is  absent  from  the  state,  the  secre- 
tary of  state  is  to  act  as  governor  until  the  vacancy 
is  tilled  or  the  disability  ceases. 

The  secretary  of  state,  the  treasurer,  and  the 
attorney-general  are  chosen  by  the  people  for  two 
years.  Sheriifs,  coroners,  registers  of  deeds,  and 
district  attorneys  are  chosen  by  the  people  in  each 
county  for  two  years. 

The  Judicial  Power. 

7.  The  Supreme  Court  consists  of  one  chief  and 
two  assistant  justices,  elected  by  the  people  for  the 
term  of  six  years.  It  is  a  court  of  appellate  juris- 
diction only,  but  may  issue  writs  of  mandamus, 
certiorari,  habeas  corpus,  quo  warranto,  procedendo, 
and  supersedeas. 

The  Circuit  Court  is  composed  of  judges  elected 
one  from  each  judicial  district  (the  present  number 
is  ten)  for  the  term  of  six  years,  by  the  people.  A 
judge  must  be  at  least  twenty-five  years  old,  a 
citizen  of  the  United  States,  and  a  qualified  elector. 
Two  terms  of  the  court  are  to  be  held  by  the  judges 
annually  in  each  county,  and  special  law  terms 
also  as  the  statutes  may  provide.  This  court  has 
original  jurisdiction  of  all  civil  and  criminal  mat- 
ters, and  appellate  jurisdiction  from  all  inferior 
courts  and  tribunals,  and  a  supervisory  power  over 
the  same. 

County  Courts  are  held  in  each  county,  and  in 
five  counties — Milwaukee,  La  Crosse,  St.  Croix, 
Douglass,  and  La  Pointe — have  a  civil  jurisdiction 
at  common  law  where  the  sum  involved  is  less  than 
five  thousand  dollars.  In  the  other  counties  they 
have  jurisdiction  of  probate  of  wills,  administra- 
tion of  estates  of  decedents,  care  of  minors,  and 
general  probate  jurisdiction  only. 

8.  Justices  of  the  Peace  are  elected  in  each  town 
for  two  years,  by  the  people.  They  have  a  general 
jurisdiction  in  civil  cases  arising  from  contracts, 
injury  to  persons  where  personal  property  is  sought 
to  be  recovered,  of  forcible  entry  and  detainer,  and 
to  recover  statute  penalties  where  the  amount  in- 
volved does  not  exceed  one  hundred  dollars,  with 
an  appellate  jurisdiction  to  the  circuit  or  county 
court.  They  have  a  criminal  jurisdiction  concur- 
rent with  the  circuit  court  where  the  fine  imposed 
is  less  than  one  hundred  dollars. 

Tribtmals  of  Conciliation  are  organized  in  the 
various  counties  under  statutes  which  have  final 
powers  when  the  parties  consent  to  their  arbitra- 
tion. 

The  state  may  incur  a  debt  of  one  hundred  thou- 
sand dollars,  but  must  at  the  time  pass  a  law  rais- 
ing a  tax  sufficient  to  pay  principal  and  interest  in 
five  years,  which  is  to  be  irrepealable.  It  may  also 
borrow  money  to  repel  invasion. 

Corporations  without  banking  powers  may  be 
created  under  general  laws,  but  no  banking  cor- 
poration may  be  created  without  the  sanction  of  a 
direct  vote  of  the  people. 

WITENA-GEMOTE  (spelled,  also,  wit- 
tena-gemot,  gewitena-gemote,  from  the  Saxon 
tcita,  a  wise  man,  gemote,  assembly, — the 
assembly  of  wise  men). 

An  assembly  of  the  great  men  of  the  king- 
dom in  the  time  of  the  Saxons,  to  advise  and 
assist  in  the  government  of  the  realm. 

2.  It  was  the  grand  council  of  the  king- 
dom, and  was  held,  generally,  in  the  open 
air,  by  public  notice  or  particular  summons, 
in  or  near  some  city  or  populous  town.  These 
notices  or  summonses  were  issued  upon  de- 
termination by  the  king's  select  council,  or 


the  body  met  without  notice,  when  the  throne 
was  vacant,  to  elect  a  new  king.  Subse- 
quently to  the  Norman  conquest  it  was  called 
commune  concilium  regni,  curia  magna,  and, 
finally,  parliament;  but  its  character  had  be- 
come considerably  changed.  It  was  a  court 
of  last  resort  more  especially  for  determining 
disputes  between  the  king  and  his  thanes, 
and,  ultimately,  from  all  inferior  tribunals. 
Great  offenders,  particularly  those  who  were 
members  of  or  might  be  summoned  to  the 
king's  court,  were  here  tried.  The  casual 
loss  of  title-deeds  was  supplied,  and  a  very 
extensive  equity  jurisdiction  exercised.  1 
Spence,  Eq.  Jur.  73-76 ;  1  Blackstone,  Comm. 
147, 148  ;  1  Reeve,  Hist.  Eng.  Law,  7 ;  9  Coke, 
Preface. 

3.  The  principal  duties  of  the  witena-ge- 
mote,  besides  acting  as  high  court  of  judica- 
ture, was  to  elect  the  sovereign,  assist  at  his 
coronation,  and  co-operate  in  the  enactment 
and  administration  of  the  laws.  It  made 
treaties  jointly  with  the  king,  and  aided  him 
in  directing  the  military  affairs  of  the  king- 
dom. Examinations  into  the  state  of  churches, 
monasteries,  their  possessions,  discipline,  and 
morals,  were  made  before  this  tribunal.  It 
appointed  magistrates,  and  regulated  the  coin 
of  the  kingdom.  It  also  provided  for  levy- 
ing upon  the  people  all  such  sums  as  the 
public  necessities  required  ;  and  no  property 
of  a  freeman  was,  in  fact,  taxable  without  the 
consent  of  the  gemote.  Bede,  lib.  2,  c.  5  ;  3 
Turner,  Angl.-Sax.  209  ;  1  Dugdale,  Mon.  20 ; 
Sax.  Chron.  126,  140. 

WITH  STRONG  HAND.  In  Plead- 
ing.  A  technical  phrase  indispensable  in 
describing  a  forcible  entry  in  an  indictment. 
No  other  word  or  circumlocution  will  answer 
the  same  purpose.    8  Term,  357. 

WITHDRAWING  A  JUROR.  In 
Practice.  An  agreement  made  between  the 
parties  in  a  suit  to  require  one  of  the  twelve 
jurors  impanelled  to  try  a  cause  to  leave  the 
jury-box;  the  act  of  leaving  the  box  by 
such  a  juror  is  also  called  the  withdrawing  a 
juror. 

This  arrangement  usually  takes  place  ai 
the  recommendation  of  the  judge,  when  it  is 
obviously  improper  the  case  should  proceed 
any  further. 

The  effect  of  withdrawing  a  juror  puts  an 
end  to  that  particular  trial,  and  each  party 
must  pay  his  own  costs.  3  Term,  657;  2 
Dowl.  721 ;  1  Crompt.  M.  &  R.  Exch.  64. 

But  the  plaintiff  may  bring  a  new  suit  for 
the  same  cause  of  action.  Ry.  &  M.  402; 
3  Barnew.  &  Ad.  349.  See  3  Chitty,  Pract 
916. 

WITHDRAWING    RECORD.  The 

withdrawing  by  plaintiff's  attorney  of  the 
nisi  prius  record  filed  in  a  cause,  before  jury 
is  sworn,  has  the  same  effect  as  a  motion  tc 
postpone.  2  Carr.  &  P.  185  ;  3  Campb.  333 ; 
Paine  &  Duer,  Pract.  465. 

WITHERNAM.  In  Practlc*.  The 
name  of  a  writ  which  issues  on  the  return 
ot  elongata  to  an  alias  or  pluries  w.  t  of  re- 


WITHOUT  BAY 


673 


WITNESS 


plevin,  by  which  tne  sheriff  is  commanded  to 
take  the  defendant's  own  goods  which  may 
be  found  in  his  bailiwick,  and  keep  them 
safely,  not  to  deliver  them  to  the  plaintiff 
until  such  time  as  the  defendant  chooses  to 
Fubmit  himself  and  allow  the  distress,  and 
the  whole  of  it  to  be  replevied,  and  he  is 
thereby  further  commanded  that  he  do  return 
to  the  court  in  what  manner  he  shall  have 
[■xecuted  the  writ.  Hammond,  Nisi  P.  453  ; 
Coke,  2d  Inst.  140 ;  Fitzherbert,  Nat.  Brev. 
G8,  G9  ;  Grotius,  3.  2.  4.  n.  1. 

WITHOUT  DAY.  This  signifies  that 
the  cause  or  thing  to  which  it  relates  is  inde- 
finitely adjourned:  as,  when  a  case  is  ad- 
journed without  day  it  is  not  again  to  be 
inquired  into.  When  the  legislature  adjourn 
without  day,  they  are  not  to  meet  again.  This 
is  usually  expressed  in  Latin,  sine  die. 

WITHOUT  IMPEACHMENT  OF 
WASTE.  When  a  tenant  for  life  holds  the 
land  without  impeachment  of  waste,  he  is, 
of  course,  dispunishable  for  waste,  whether 
wilful  or  otherwise.  But  still  this  right 
must  not  be  wantonly  abused  so  as  to  destroy 
the  estate;  and  he  will  be  enjoined  from  com- 
mitting malicious  waste.  Dane,  Abr.  c.  78, 
a.  14,  f  7  ;  Bacon,  Abr.  Waste  (N) ;  2  Eq.  Cas. 
Abr.  IVaste  (A,  pi.  8)  ;  2  Bouvier,  Inst.  n. 
2402.    See  Impeachment  of  Waste  ;  Waste. 

WITHOUT  RECOURSE.  See  Sans 
Recours  ;  Indorsement. 

WITHOUT  RESERVE.  These  words 
are  frequently  used  in  conditions  of  sale  at 
public  auction,  that  the  property  offered,  or 
to  be  offered,  for  sale,  will  be  sold  without 
reserve. 

When  a  property  is  advertised  to  be  sold 
without  reserve,  if  a  puffer  be  employed  to 
bid,  and  actually  bid  at  the  sale,  the  courts 
will  not  enforce  a  contract  against  a  purchaser, 
into  which  he  may  have  been  drawn  by  the 
vendor's  want  of  faith.  5Madd.  Ch.34.  See 
Puffer. 

WITHOUT  THIS,  THAT.  In  Plead- 
ing. These  are  technical  words  used  in  a  tra- 
verse [q.v.)  for  the  purpose  of  denying  a  mate- 
rial fact  in  the  preceding  pleadings,  whether 
declaration,  plea,  replication,  etc.  In  Latin 
it  is  called  absque  hoc  {q.v.).  Lawes,  Plead. 
119;  Comyns,  Dig.  P/eac?er  (G  1) ;  Summary  of 
Pleading,  75  ;  1  Saund.  103,  n. ;  Ld.  Raym. 
641;  1  Burr.  320;  1  Chitty,  Plead.  576, 
note  a. 

WITNESS  (Anglo-Saxon  wifan,  to  know). 

In  Practice.  One  who  testifies  to  what 
he  knows.  One  who  testifies  under  oath  to 
something  which  he  knows  at  first  hand.  1 
Greenleaf,  Ev.  ^§  98,  328. 

One  who  is  called  upon  to  be  present  at  a 
transaction,  as,  a  wedding,  or  the  making  of 
a  will.  When  a  person  signs  his  name  to  an 
instrument,  as,  a  deed,  a  bond,  and  the  like, 
to  signify  that  the  same  was  executed  in  his 
presence,  he  is  called  an  attesting  witness. 

2.  The  principal  rules  relating  to  wit- 
nesses are  the  same  in  civil  and  in  criminal 

Vol.  II.— 43 


cases,  and  the  same  in  all  the  courts,  as  well 
in  those  various  courts  whose  forms  of  pro- 
ceeding are  borrowed  from  the  civil  law,  as 
in  those  of  the  common  law.  3  Greenleaf, 
Ev.  U  249,  402;  2  Yes.  Ch.  41;  17  Mass. 
303;  4  T.  B.  Monr.  Ky.  20,  157. 

As  TO  the  Competency  of  Witnesses.  All 
persons,  of  whatever  nation,  may  be  wit- 
nesses. Bacon,  Abr.  Evidence  (A)  ;  Jacob, 
Law  Diet.  Evidence.  But  in  saying  this  we 
must,  of  course,  except  such  as  are  excluded 
by  the  very  definition  of  the  term ;  and  we 
have  seen  it  to  be  essential  that  a  witness 
should  qualify  himself  by  taking  an  oath. 
Therefore,  all  who  cannot  understand  the 
nature  and  obligation  of  an  oath,  or  whose 
religious  belief  is  so  defective  as  to  nullify 
and  render  it  nugatory,  or  whose  crimes  have 
been  such  as  to  indicate  an  extreme  insensi- 
bility to  its  sanctions,  are  excluded.  And, 
accordingly,  the  following  classes  of  persons 
have  been  pronounced  by  the  common  law  to 
be  incompetent.  5  Mas.  C.  C.  18.  See  Oath 
Infants  so  young  as  to  be  unable  to  appre- 
ciate the  nature  and  binding  quality  of  an 
oath.  A  child  under  the  age  of  fourteen  is 
presumed  incapable  until  capacity  be  shown. 
But  the  law  fixes  no  limit  of  age  which  Avill 
of  itself  exclude.  A  child  five  years  old  has 
been  admitted  to  testify.  1  Greenleaf,  Ev.  § 
367  ;  1  Phillipps,  Ev.  with  Cowen  and  Hill'.s 
notes,  3d  ed.  4;  3  Carr.  &  P.  598  ;  1  Mood. 
Cr.  Cas.  86 ;  10  Mass.  225 ;  8  Johns.  N.  Y, 
98. 

3.  Idiots,  lunatics,  intoxicated  persons,  and, 
generally,  those  who  labor  under  such  priva- 
tion or  imbecility  of  mind  that  they  cannot 
understand  the  nature  and  obligation  of  an 
oath.  The  competency  of  such  is  restored 
with  the  recovery  or  acquisition,  10  Johns. 
N.  Y.  362;  28  Conn.  177;  16  Vt.  474;  7 
Wheat.  453  ;  2  Leach,  Cr.  Cas.  482,  of  this 
power.  And  so  a  lunatic  in  a  lucid  interval 
may  testify.  1  Greenleaf,  Ev.  ^  365.  Per- 
sons deaf  and  dumb  from  their  birth  are 
presumed  to  come  within  this  principle  of 
exclusion  until  the  contrary  be  shown.  1 
Greenleaf,  Ev.  ^  366.  See  1  Leach,  Cr.  Cas. 
455  ;  3  Carr.  &  P.  127  ;  8  Conn.  93  ;  14  Mass. 
207 ;  5  Blackf.  Ind.  295.  A  person  in  a  state 
of  intoxication  cannot  be  admitted  as  a  wit- 
ness. 15  Serg.  &  R.  Penn.  235.  See  Ray, 
Med.  Jur.  c.  22,  ^|  300-311 ;  16  Johns.  N.  Y. 
143. 

Such  as  are  insensible  to  the  obligation  of 
an  oath,  from  defect  of  religious  sentiment  or 
belief  Atheists,  and  persons  disbelieving  in 
any  system  of  divine  rewards  and  punish- 
ments, are  of  this  class.  It  is  reckoned  suf 
ficient  qualification  in  this  particular  if  one 
believe  in  a  God  and  that  he  will  reward  and 
punish  us  according  to  our  deserts.  It  is 
enough  to  believe  that  such  punishment  visits 
us  in  this  world  only.  1  Greenleaf,  Ev.  | 
369;  5Mas.C.C.18;  14  Mass.  184  ;  26  Penn. 
St.  274 ;  1  Swan,  Tenn.  44 ;  16  Ohio,  121 ; 
7  Conn.  66.  It  would  seem  to  be  sufficient 
to  believe  ir  such  punishment  as  existing 
for  perjury  *nly, — if  indeed  it  be  supoos- 


WITNESS 


C7- 


'4 


WITNESS 


able  that  a  man  might  believe  thus  much 
without  extending  his  faith  to  any  general 
system  of  rewards  and  punishments ;  and 
this  is  declared  sufficient  in  New  York,  by 
statute.    2  Rev.  Stat.  N.  Y.  ed.  1852,  653. 

It  matters  not,  however,  so  far  as  mere 
competency  is  concerned,  that  a  witness 
should  believe  in  one  God,  or  in  one  God 
rather  than  another,  or  should  hold  any  par- 
ticular form  of  religious  belief,  provided  only 
that  he  brings  himself  within  the  rule  above 
laid  down.  And,  therefore,  the  oath  may 
be  administered  in  any  form  whatever,  and 
with  any  ceremonies  whatever,  that  will  bind 
the  conscience  of  the  witness.  1  Greenleaf, 
Ev.  I  371 ;  1  Atk.  Ch.  21 ;  Willes,  538.  See 
Oath. 

Persons  infamous,  i.e.  those  who  have  com- 
mitted and  been  legally  convicted  of  crimes 
the  nature  and  magnitude  of  which  show 
them  to  be  insensible  to  the  obligation  of  an 
oath.  See  Infamy.  Such  crimes  are  enu- 
merated under  the  heads  of  treason,  felony, 
and  the  crimen  falsi.  1  Greenleaf,  Ev.  ^  373  ; 
Crimen  Falsi  ;  2  Dods.  Adm.  191. 

4.  The  only  method  of  establishing  in- 
famy is  by  producing  the  record  of  convic- 
tion. It  is  not  even  sufficient  to  show  an 
admission  of  guilt  by  the  witness  himself.  9 
Cow.  N.  Y.  707 ;  2  Mass.  108 ;  2  Mart.  La. 
N.  s.  466  ;  1  Starkie,  Ev.  3d  Am.  ed.  144.  And 
pardon  or  the  reversal  of  a  sentence  restores 
the  competency  of  an  infamous  person,  unless 
where  this  disability  is  annexed  to  an  of- 
fence by  a  statute  in  express  terms.  1 
Greenleaf,  Ev.  g  378 ;  2  Salk.  513;  2  Har- 
grave,  Jurid.  Arg.  221. 

This  exclusion  on  account  of  infamy  or 
defect  in  religious  belief  applies  only  where 
a  person  is  offered  as  a  witness.  1  Bost.  Law 
Rep.  847,  348  ;  1  Greenleaf.  Ev,  g  374 ;  2  Q. 
B.  721.  But  wherever  one  is  a  party  to  the 
suit,  wishing  to  make  affidavit  in  the  usual 
course  of  proceeding,  and,  in  general,  wher- 
ever the  law  requires  an  oath  as  the  condi- 
tion of  its  protection  or  its  aid,  it  presumes 
conclusively  and  absolutely  that  all  persons 
are  capable  of  an  oath.  Starkie,  Ev.  393  ; 
Bacon,  Abr.  Evidence;  Jacob,  Law  Diet. 
Evidence;  1  Phillipps,  Ev.  pp.  1-25,  and 
Cowen  and  Hill's  Notes,  nn.  1-18  ;  1  Ashm. 
Penn.  57. 

Slaves  were  generally  held  incompetent  to 
testify,  by  statutory  provisions,  in  the  slave 
states,  in  suits  between  white  persons.  7  T. 
B.  Monr.  Ky.  91 ;  4  Ohio,  353  ;  5  Litt.  Ky. 
171 ;  3  Harr.  &  J.  Md.  97  ;  1  M'Cord,  So.  C. 
430. 

And,  again,  in  saying  that  all  persons  may 
be  witnesses,  it  is  not  meant  that  all  persons 
may  testify  in  all  cases.  The  testimony  of 
such  as  are  generally  qualified  and  competent 
under  other  circumstances  or  as  to  other 
matters  is  sometimes  excluded  out  of  regard 
to  their  special  relations  to  the  cause  in  issue 
Dr  the  parties,  or  from  some  other  circum- 
stances not  working  a  general  disqualifica- 
tion. 

ft.  Parties  to  the  record  are  not  compe- 


tent witnesses  for  themselves  or  their  jo-^ait- 
ors.  See  Conn.  Comp.  Stat.  1854,  95.  §  141  ; 
Ohio  Stat.  1850,  Mar.  3,  ^§1-2:  Mich.  Rev. 
Stat.  1846,  c.  102,  §  100;  3  N.  Y.  Rev.  Stai. 
3d  ed.  769  ;  Wise.  Rev.  Stat.  1849,  c.  98.  ^.^ 
57,  60 ;  Nixon,  N.  J.  Dig.  1855,  187  ;  Mu. 
Rev.  Stat.  1845,  c.  93,  U  24,  25  ;  Mass.  Gen. 
Stat.  1860,  673 ;  Me.  Rev.  Stat.  1857,  e.  82, 
II  78,  83 ;  N.  H.  Act  of  1857,  c.  1952 ;  R.  L 
Rev.  Stat.  1857,  c.  187,  I  34.  Nor  are  they 
compellable  to  testify  for  the  adverse  party, 
7  Bingh.  395  ;  20  Johns.  N.  Y.  142  ;  21  Pick. 
Mass.  57  ;  11  Conn.  342  ;  but  they  are  com- 
petent to  do  so ;  although  one  of  several  co- 
suitors  cannot  thus  become  a  witness  for  the 
adversary  without  the  consent  of  his  asso- 
ciates. 1  Greenleaf,  Ev.  g  354 ;  12  Pet.  149 ;  5 
How.  91 ;  6  Ilumphr.  Tenn.  405  ;  3  Washb. 
Vt.  371.  Regard  is  had  not  merely  to  the 
nominal  party  to  the  record,  but  also  to  the 
real  piarty  in  interest ;  and  the  former  will 
not  be  allowed  to  testify  for  the  adverse  side 
without  the  consent  of  the  latter.  1  Green- 
leaf, Ev.  II  329-364  ;  16  Pick.  Mass.  501 ;  20 
Johns.  N.  Y.  142;  12  Conn.  134. 

In  some  jurisdictions  a  party  has  the  right 
of  compelling  his  adversary  to  answer  inter- 
rogatories under  oath,  as  also  to  appear  and 
testify.  And,  in  equity,  parties  ma.y  recipro- 
cally require  and  use  each  other's  testimony; 
and  the  answer  of  a  defendant  as  to  any 
matters  stated  in  the  bill  is  evidence  in  his 
own  favor.  1  Greenleaf,  Ev.  |  329 ;  2  Story, 
Eq.  Jur.  1528 ;  Gresley,  Eq.  Ev.  243. 

There  are  other  exceptions  to  this  rule. 
Cases  where  the  adverse  party  has  been  guilty 
of  some  fraud  or  other  tortious  and  unwar- 
rantable act  of  intermeddling  with  the  com- 
plainant's goods,  and  no  other  evidence  than 
that  of  the  complainant  himself  can  be  had 
of  the  amount  of  damage, — cases,  also,  where 
evidence  of  the  parties  is  deemed  essential 
to  the  purposes  of  public  justice,  no  other 
evidence  being  attainable, — are  such  excep- 
tions. 1  Greenleaf,  Ev.  ^  348 ;  1  Vern.  Ch. 
308  ;  1  Me.  27  ;  11  id.  412.  See  12  Mete. 
Mass.  44 ;  6  Watts  &  S.  Penn.  495 ;  3  Mich. 
51;  10  Penn.  St.  45. 

On  this  same  principle,  persons  directly 
interested  in  the  result  of  the  suit,  see  Inte- 
rest, or  in  the  record  as  an  instrument  of 
evidence,  are  excluded  ;  and  where  the  event 
of  the  cause  turns  upon  a  question  which  if 
decided  one  way  would  render  the  party 
offered  as  a  witness  liable,  while  a  contrary 
decision  would  protect  him,  he  is  excluded. 
Starkie,  Ev.  1730.  But  to  this  rule,  al.-o, 
there  are  exceptions,  Starkie,  Ev.  1731,  of 
which  the  case  of  agents  testifying  as  to 
matters  to  which  their  agency  extended  forms 
one.  Starkie,  Ev.  83-91 ;  1  Phillipps,  Ev. 
pp.  81-161,  and  Cowen  and  Hill's  Notes,  na. 
74-138  ;  1  Greenleaf,  Ev.  386-431. 

6.  Husband  and  wife  are  excluded  from 
giving  testimony  for  or  against  each  other 
when  either  is  a  party  to  the  suit  or  inte- 
rested. And  neither  is  competent  to  prove  a 
fact  directly  tending  to  criminate  the  other. 
This  rule  is  founded  partly  on  their  identity 


WITNESS 


675 


WITNESS 


of  mterest,  and  partly,  perhaps  chiefly,  on 
the  policy  of  the  law  which  aims  to  protect 
the  confidence  between  man  and  wife  that  is 
essential  to  the  comfort  of  the  married  rela- 
tion, and,  through  that,  to  the  good  order  of 
society.  Whether  or  not  the  disability  of 
husband  or  wife  may  ever  be  removed  by 
consent  of  the  other  is  matter  of  dispute.  1 
Ves.  Ch.  49  ;  1  Wheat.  Crim.  Cas.  N.  Y.  479  ; 
4  Term,  679  ;  3  Carr.  &  P.  558  ;  1  Greenleaf, 
Ev.  §  340.  But  it  is  not  removed  by  the 
death  of  the  other,  nor  by  the  dissolution  of 
the  marriage  relation. 

Some  exceptions  to  this  rule,  1  Greenleaf, 
Ev.  ^  343,  are  admitted  out  of  necessity  for 
the  protection  of  husband  and  wife  against 
each  other, and  for  the  sake  of  public  justice. 
Bacon,  Abr.  Evidence  (A) ;  1  Greenleaf,  Ev. 
II  334-347;  1  Phillipps,  Ev.  69-81,  and 
Cowen  and  HilPs  Notes,  nn.  53-74;  Starkie, 
Ev.  p.  iv.  706-715  ;  1  Ves.  Ch.  49  ;  1  Jebbs 
&  S.  563  ;  Ry.  &  M.  Cr.  Cas.  253. 

Parties  to  negotiable  instruments  are,  in 
some  jurisdictions,  held  incompetent  to  in- 
validate these  instruments  to  w^hich  they  have 
given  currency  by  their  signature.  Such 
eeems  to  be  the  prevailing,  but  not  universal, 
rule  in  the  United  States ;  while  in  England 
such  testimony  is  admitted.  1  Greenleaf, 
Ev.  II  383-386  ;  1  Term.  296  ;  11  East,  309  ; 
9  Mete.  Mass.  471 ;  12  Pet.  149  ;  3  How.  73: 
13  id.  229  ;  5  N.  H.  147  ;  4  Me.  191,  374  ;  20 
Penn.  St.  469  ;  22  id.  492  ;  24  Vt.  459  ;  18 
Ohio,  579  ;  1  Miss.  541 ;  3  Rand.  Va.  316  ;  1 
Conn.  260  ;  3  M'Cord,  So.  C.  71 ;  4  Tex.  371 ; 
3  Harr.  &  J.  Md.  172;  2  Harr.  N.  J.  192. 

And,  finally,  there  are  certain  privileged 
communications,  1  Greenleaf,  Ev.  |f  236-255, 
to  which  the  recipient  of  them,  from  gene- 
ral considerations  of  policy,  is  not  allowed  to 
testify. 

Attorneys,  counsellors,  and  solicitors  at  law, 
and  members  of  the  legal  profession  generally, 
are  notcompetent  to  testify  to  confidential  com- 
munications, or  to  produce  papers  received 
from  their  clients  in  the  course  of  professional 
business  relative  thereto  and  pending  the  re- 
lation of  counsel  or  attorney  and  client.  This 
incompetency  is  the  privilege  of  the  client, 
and  continues  forever,  unless  removed  by  his 
consent.    Starkie,  Ev.  395-401. 

The  same  principle  extends  to  the  case  of 
attorney's  clerk  coming  to  the  knowledge  of 
Buch  communications  w^hile  employed  in  that 
capacity ;  also  to  that  of  interpreters  and 
other  necessary  agents  and  organs  of  commu- 
nication between  the  client  and  legal  adviser; 
BO,  also,  to  the  case  of  an  arbitrator.  1  Green- 
leaf, Ev.  ^  239. 

But  it  does  not  extend  to  the  case  of  any 
other  class  of  professional  men :  such  as  con- 
fessors or  other  religious  advisers,  or  physi- 
cians. 1  Phillipps,  Ev.  161-177,  and  Cowen 
k  Hill's  Notes,  nn.  139-153. 

Judges  are  not  allowed  to  testify  to  what 
was  made  known  to  them  or  took  place  before 
them  in  the  hearing  of  causes.  1  Greenleaf, 
Ev.  I  249. 

Persons  in  possession  of  secrets  of  state  or 


matters  the  disclosure  of  which  would  bo 
prejudicial  to  the  public  interest,  are  not  al- 
lowed to  testify  thereto.  1  Greenleaf,  Ev.  H 
250-252  (A). 

Grand  jurors  and  persons  present  lefore  a 
grand  jury,  1  Greenleaf,  Ev.  ^  252,  are  not 
permitted  to  testify  to  the  proceedings  had 
before  that  body.  1  Phillipps,  Ev.  177-184, 
and  Cowen  &  Hill's  Notes,  nn.  154-157.  See 
Privileged  Communications. 

7.  The  means  of  securing  the  attexi>- 
ANCE  and  testimony  OF  WITNESSES.  In  gene- 
ral, all  persons  who  are  competent  may  be 
compelled  to  attend  and  testify.  Yet  it  would 
seem  that  experts  who  are  permitted  to  testify 
to  their  opinion  in  cases  w^here  the  inference 
to  be  drawn  by  the  jury  "  is  one  of  skill  and 
judgment,"  cannot  be  compelled  to  give  their 
opinion,  unless  in  pursuance  of  a  special  con- 
tract for  their  time  and  services.  1  Greenleaf, 
Ev.  §  310,  n.  3  ;  1  Carr.  &  K.  23. 

Provision  has  been  made  by  statute,  in  most 
if  not  in  all  of  the  states,  for  the  case  of  persons 
living  at  an  inconvenient  distance  from  the 
place  of  trial,  as  well  as  for  the  case  of  such 
as  are  sick  or  about  to  leave  the  state,  or 
otherwise  likely  to  be  put  to  great  inconve- 
nience by  a  compulsory  attendance,  and  also 
for  such  as  are  already  in  a  foreign  jurisdic- 
tion, by  allowing  the  taking  of  their  deposi- 
tion in  writing  before  some  magistrate  near 
at  hand,  to  be  read  at  the  trial.  1  Greenleaf, 
Ev.  g  321. 

In  criminal  cases,  where  the  state  itself  is 
the  plaintiff  prosecuting  an  offence  committed 
against  the  public,  all  persons  are  compellable 
to  appear  and  testify  without  any  previous 
tender  of  their  fees ;  and  any  bystander  in 
court  may  be  compelled  to  testify  wnthout  a 
previous  summons  or  tender  of  fees.  1 
Greenleaf,  Ev.  §  311;  4  Cow.  N.  Y.  49;  13 
Mass.  501;  4  Cush.  Mass.  249;  2  Lew.  Cr. 
Cas.  259. 

But  in  civil  suits  which  are  between  man 
and  man,  a  party  is  allowed  to  compel  the 
attendance  and  testimony  of  a  witness  only 
on  condition  of  a  prepayment  or  tender  of  his 
fees  for  travel  to  the  place  of  trial,  and  for 
one  day's  attendance  there.  This  seems, 
as  a  general  rule,  to  be  the  least  that  can  be 
tendered.  1  Greenleaf,  Ev.  ^  310 ;  4  Johns. 
N.  Y.  311 ;  1  Mete.  Mass.  293;  8  Mo.  288  ; 
41  N.  H.  121.  In  the  courts  of  the  United 
States,  as  well  as  in  England,  a  witness  may 
require  his  fees  for  travel  both  wavs.  1 
Greenleaf,  Ev.  §  310;  1  Starkie,  Ev.  110  ;  6 
Taunt.  88.  And  in  civil  cases  a  person  can- 
not be  compelled  to  testify,  although  he 
chance  to  be  present  in  court,  unless  regu- 
larly summoned  and  tendered  his  fees.  1  Phil- 
lipps,  Ev.  Cowen  &  Hill's  Notes,  n.  338.  Being 
in  attendance  in  obedience  to  a  summons,  he 
may,  nevertheless,  refuse  to  testify  from  day 
to  day,  unless  his  daily  fees  are  paid  or  ten- 
dered. 2  Phillipps,  Ev.  I  376.  Whether  or 
not  he  may  refuse  to  attend  from  day  to  day 
without  the  prepayment  or  tender  of  his  daily 
fees,  is  a  matter  about  which  there  are  differ- 
ent decisions.    1  Greenleaf,  Ev.  I  310 ;  10  Vt. 


WITNESS 


676 


WITNESS 


403;  14  East,  15.  A  witness  may  maintain 
an  action  against  the  party  summoning  him 
for  his  fees.    Starkie,  Ev.  1727. 

8.  Witnesses  are  also  compellable  to  pro- 
dace  papers  in  their  custody  to  which  either 
party  has  a  right  as  evidence,  on  the  same 
principle  that  they  are  required  to  testify 
what  they  know.  1  Greenleaf,  Ev.  ^  558. 
But  there  is  this  difference  between  the  obli- 
gation of  a  witness  to  testify  to  facts  and  the 
obligation  to  produce  papers. — to  wit :  that  in 
the  latter  case  he  is  not  compellable  to  pro- 
duce title-deeds  or  other  documents  belonging 
to  him  or  to  one  for  whom  he  holds  them  as  agent, 
where  the  production  would  prejudice  his  own 
or  his  principal's  civil  rights, — an  exemption 
which  is  not  allowed  in  reference  to  oral  tes- 
timony. 1  Starkie,  Ev.  1722,  1723.  But  in  all 
cases  the  witness  must  bring  the  documents, 
if  regularly  summoned  to  do  so,  and  the  court 
will  decide  as  to  the  question  of  producing 
them.    See  Discovery. 

The  attendance  of  witnesses  is  ordinarily  pro- 
cured by  means  of  a  writ  of  subpoena ;  some- 
times, when  they  are  in  custody,  by  a  writ  of 
habeas  corpus  ad  testificandum;  and  sometimes, 
in  ci-iminal  cases,  by  their  own  recognizance, 
either  with  or  without  sureties.  1  Greenleaf, 
Ev.  II  309,  312,  313 ;  2  Phillipps,  Ev.  370, 
374.  If  a  witness  disobey  the  summons,  pro- 
cess of  attachment  for  contempt  will  issue  to 
enforce  his  attendance,  and  an  action  also 
lies  against  him  at  common  law.  1  Green- 
leaf, Ev.  §  319  ;  1  Starkie,  Ev.  1727  ;  2  Phil- 
lipps, Ev.  376,  377_. 

Nor  can  any  third  party  intervene  to  pre- 
vent the  attendance  of  a  witness.  Neither 
can  he  take  advantage  of  a  witness's  attend- 
ance at  the  place  of  trial  to  arrest  him.  Wit- 
nesses are  protected  from  arrest  while  going 
to  the  place  of  trial,  while  attending  there 
for  the  purpose  of  testifying,  and  on  their 
return, — eundo,  morando,  et  redeundo, — it  be- 
ing the  policy  of  the  law  as  well  to  encourage 
and  facilitate  as  to  enforce  the  attendance  of 
witnesses.  1  Greenleaf,  Ev.  ^  316;  1  Starkie, 
Ev.  119.    See  Arrest. 

9.  As  TO  THE  EXAMINATION  OF  WITNESSES. 

In  the  common-law  courts,  examinations  are 
had  viva  voce,  in  open  court,  by  questions  and 
answers.  The  same  course  is  now  adopted 
to  a  great  extent  in  equity  and  admiralty 
courts,  and  others  proceeding  according  to 
the  forms  of  the  civil  law.  But  the  regular 
method  of  examining  in  these  last-named 
courts  is  by  deposition  taken  in  writing  out 
of  court.  2  Parsons,  Marit.  Law,  721 ;  2 
Conkling,  Adm.  Pract.  284;  2  Story,  Eq.  Jur. 
I  1527 ;  3  Greenleaf,  Ev.  g  251. 

On  motion,  in  civil  and  criminal  cases,  wit- 
nesses will  generally  be  excluded  from  the 
court-room  while  others  are  undergoing  ex- 
amination in  the  same  case:  this,  however, 
is  not  matter  of  right,  but  within  the  discre- 
tion of  the  court.  1  Starkie,  Ev.  1733;  1 
Greenleaf,  Ev.  ^  432;  2  Phillipps,  Ev.  395; 
4  Carr.  &  P.  585  ;  7  id.  632;  2  Swan,  Tenn. 
.^i37  ;  3  Wise.  214. 

Witnesses  are  required  to  testify  from  their 


own  knowledge  and  recollection.  Yet  they 
are  permitted  to  refresh  their  memory  by 
reference,  while  on  the  stand,  to  papers  writ- 
ten at  or  very  near  the  time  of  the  transac- 
tion in  question, — even  though  they  were  not 
written  by  themselves  and  though  the  writ- 
ing in  itself  would  be  inadmissible  in  evi- 
dence. 1  Greenleaf,  Ev.  436-440;  2 
Phillipps,  Ev.  411-416;  2  Cowen  &  Ilill'a 
Notes,  n.  377  ;  1  Starkie,  Ev.  128  ;  20  Pick. 
Mass.  441 ;  2  Carr.  &  P.  75  ;  10  N.  II.  544. 

Being  once  in  attendance,  a  witness  may, 
in  general,  be  compelled  to  answer  all  ques- 
tions that  may  legally  be  put  to  him.  See 
Evidence. 

Yet  there  are  exceptions  to  this  rule.  He 
is  not  compellable  where  the  answer  would 
have  a  tendency  to  expose  him  to  a  penal  lia- 
bility or  any  kind  of  punishment,  or  to  a 
criminal  charge  or  a  forfeiture  of  his  estate. 
1  Greenleaf,  Ev.  451,  453  ;  2  Phillipps,  Ev. 
417.    See  Privilege. 

The  court,  it  is  said,  decides  as  to  the  tend- 
ency of  the  answer,  and  will  instruct  the 
witness  as  to  his  privilege.  2  Phillipps,  Ev. 
417;  4  Gush.  Mass.  594 ;  1  Den.  N.  Y.  319. 
It  has  been  held  that  the  question  whether  an 
answer  would  have  this  tendency  is  to  be 
determined  by  the  oath  of  the  witness.  17 
Jur.  393.  And  in  point  of  fact,  out  of  the 
necessity  of  the  case,  it  is  a  matter  which 
the  witness  may  be  said  practically  to  decide 
for  himself.  The  witness  may  answer  if  he 
chooses ;  and  if  he  do  answer  after  having 
been  advised  of  his  privileges,  he  must  an- 
swer in  full ;  and  his  answer  may  be  used 
in  evidence  against  him  for  all  purposes.  1 
Greenleaf,  Ev.  ^§  451,  453;  1  Starkie,  Ev. 
144 ;  2  Phillipps.  Ev.  425 ,  4  Wend.  N.  Y. 
252;  11  Gush.  Mass.  437;  12  Vt.  491;  20 
N.  H.  540. 

Whether  a  witness  be  compellable  to  answer 
to  his  own  degradation  or  infamy  is  a  point 
as  to  which  some  distinctions  are  to  be  taken: 
a  witness  cannot  refuse  to  testify  simply 
because  his  answer  would  tend  to  disgrace 
him  ;  it  must  be  seen  to  have  that  effect  cer- 
tainly and  directly.  1  Greenleaf,  Ev.  ^  456. 
He  cannot,  it  would  seem,  refuse  to  give  tes- 
timony which  is  material  and  relevant  to  the 
issue,  for  the  reason  that  it  would  disgrace 
him.  1  Greenleaf,  Ev.  H54;  1  Mood.  &  M. 
108  ;  4  Wend.  N.  Y.  250;  2  Ired.  No.  C.  346. 

lO.  But  it  would  appear  that  he  may  re- 
fuse where  the  question  (being  one  put  on 
cross-examination)  is  not  relevant  and  mate- 
rial, and  does  not  in  any  way  affect  the  credit 
of  the  witness.  1  Greenleaf,  Ev.  §  458 ;  3 
Campb.  519;  13  N.  H.  92 ;  1  Gray,  Mass. 
108.  Whether  a  witness,  when  a  question  is 
put  on  the  cross-examination  which  is  not 
relevant  and  material  to  the  issue,  yet  goes 
to  affect  his  credit,  will  be  protected  in  re- 
fusing to  answer,  simply  on  the  ground  that 
his  answer  would  have  a  direct  and  certain 
effect  to  disgrace  him,  is  a  matter  not  clerirly 
agreed  upon.  There  is  good  reason  to  liold 
that  a  witness  should  be  compelled  to  on* 
swer  in  such  a  case.    1  Greenleaf,  Ev.  ^4  ''^; 


WITNESS 


077 


WITNESS 


I  Starkio,  Ev.  144-147  ;  2  Pliillipps,  Ev.  421- 
4;U;  1  Carr.  &  P.  85;  2  Swjuist.  2iG;  2 
Campb.  G37;  3  Yeatos,  Penn.  429. 

But  the  wiiole  matter  is  one  that  is  largely 
6ul»iect  to  the  discretion  of  tiie  courts.  1 
Grecnleaf,  Ev.  U  431,  449. 

And  tliere  seems  no  doubt  that  a  witness 
is  in  no  case  competent  to  allei^e  his  own  tur- 
p  tude,  or  to  give  evidence  which  involves  his 
own  infamy  or  impeaches  his  most  solemn 
acts,  if  he  be  otherwise  qualified  to  testify. 
Stark ie,  Ev.  1737. 

The  course  of  examination  is,  first,  a  direct 
examination  by  the  party  producing  the 
witness ;  then,  if  desired,  a  cross-examina- 
tion by  the  adverse  party,  and  a  re-exami- 
nation by  the  party  producing.  1  Starkie, 
Ev.  123,  129,  150.  As  to  the  direct  examina- 
tion, the  general  rule  is  that  leading  ques- 
tions, i.e.  such  as  suggest  the  answer  ex- 
ected  or  desired,  cannot  be  put  to  a  witness 
y  the  party  producing  him.  But  this  rule 
has  some  reasonable  exceptions.  1  Greenleaf, 
Ev.  |§  434,  435.    See  Leading  Question. 

Leading  questions,  however,  are  allowed 
upon  cross-examination.  Nor  are  the  rules 
against  questions  not  relevant  and  material 
to  the  issue  always  enforced  upon  cross-ex- 
amination,— a  stage  of  the  trial  at  which  great 
latitude  in  the  form  and  subject-matter  of  ques- 
tions is  generally  allowed,  in  order  that  juries 
may  be  fully  apprized  of  the  situation  of 
the  witness  with  respect  to  the  parties  and 
to  the  subject  of  litigation,  his  interest,  his 
motives,  his  inclination  and  prejudices,  his 
means  of  obtaining  correct  and  certain  know- 
ledge of  the  facts  to  which  he  bears  testimony, 
the  manner  in  which  he  has  used  those 
means,  his  powers  of  discernment,  memory, 
and  description.''  1  Greenleaf,  Ev.  ^§  44o, 
449  ;  1  Starkie,  Ev.  129. 

11.  Yet  witnesses  cannot  be  cross-exa- 
mined as  to  collateral  and  irrelevant  matters 
for  the  purpose  of  contradicting  them  by 
Other  evidence.  1  Greenleaf,  Ev.  §  449.  Their 
testimony  as  to  such  matters  is  always  con- 
clusive against  the  party  questioning.  "If, 
by  an  unfortunate  or  unskilful  question  put 
on  cross-examination,  a  fact  be  extracted 
which  need  not  have  been  evidence  upon  an 
examination-in-chief,  it  then  becomes  evi- 
dence against  the  party  so  cross-examining." 
I  Starkie,  Ev.  144;  2  Phillipps,  Ev.  398,429. 

The  right  of  cross-examination,  which  is 
that  of  treating  a  person  as  the  witness  of 
the  opj  osing  party  and  examining  him  by 
leading  questions,  is  confined  by  some  courts 
to  matters  upon  which  he  has  already  been 
examined  in  chief,  e.g.  by  the  courts  of  the 
United  States  and  of  Pennsylvania.  14  Pet. 
448  ;  6  Watts  &  S.  Penn.  75.  By  others,  e.g. 
those  of  England,  Massachusetts,  and  New 
York,  1  Starkie,  Ev.  131  ;  17  Pick.  Mass.  490; 
X  Cow.  N.  Y.  238,  it  is  extended  to  the  whole 
case.  1  Greenleaf,  Ev.  ^  445.  Yet  a  party 
is  not  permitted  to  introduce  his  own  case  by 
cross-examining  the  witnesses  of  his  adver- 
sary.   1  Greenleaf,  Ev.  §  447. 

It  is  to  be  considered,  however,  that  the 


cross-examination  of  witnesses  is  a  matter 
depending  much  upon  the  discretion  of  the 
court,  which  will  sometimes  permit  one  to 
cross-extunine  his  own  witness,  when  he  ap- 
pears to  be  in  the  interest  of  the  advrse 
party.  1  Starkie,  Ev.  132;  1  Greiuileaf,  Ev. 
H47 ;  2  Phillipps,  Ev.  403,  400,  407. 

Tiie  right  of  re-examination  extends  to  all 
topics  upon  which  a  witness  has  been  cross- 
examined  ;  but  the  witne^^s  cannot  at  this 
stage  be  questioned  as  to  any  new  fat^ts  un- 
connected with  the  subject  of  the  cross-exami- 
nation and  not  tending  to  explain  it.  1 
Starkie,  Ev.  150;  2  Phillipps,  Ev.  407;  1 
Greenleaf,  Ev.  ^  407. 

A  party  cannot  impeach  the  credit  of  his 
own  witness.  But  he  is  sometimes,  in  cases 
of  hardship,  permitted  to  contradict  him  by 
other  testimony.  1  Starkie,  Ev.  147 ;  1 
Greenleaf,  Ev.  ^"^  442,  443. 

12.  The  credit  of  an  adversary's  witness 
may  be  impeached  by  cross-examination,  or 
by  general  evidence  aiFecting  his  reputation 
lor  veracity  (but  not  by  evidence  of  particu- 
lar facts  which  otherwise  are  irrelevant  and 
immaterial),  and  by  evidence  of  his  having 
said  or  done  something  before  which  is  incon- 
sistent with  his  evidence  at  the  trial.  Also, 
of  course,  he  may  be  contradicted  by  other 
testimony.  Starkie,  Ev.  p.  iv.  1753  ;  1  Green- 
leaf, Ev.'§H01,  402. 

Generally,  where  proof  is  to  be  ofiered  that 
a  witness  has  said  or  done  something  incon- 
sistent with  his  evidence,  a  foundation  must 
first  be  laid  and  an  opportunity  for  explana- 
tion offered,  by  asking  the  witness  himself 
whether  he  has  not  said  or  done  what  it  is 
proposed  to  prove,  specifying  particulars  of 
time,  place,  and  person.  1  Greenleaf,  Ev.  | 
462;  2  Phillipps,  Ev.  433  ;  2  Coweu  &  Hill's 
Notes,  n.  390. 

Evidence  of  general  good  character  may 
be  offered  to  support  a  witness,  whenever  his 
credit  is  impeached,  either  by  general  evi- 
dence affecting  his  character,  or  on  cross- 
examination.  1  Starkie,  Ev.  1757  ;  1  Green- 
leaf, Ev.  I  469. 

13.  Modifications  of  the  common  law. 
There  have  been  various  important  modifica- 
tions of  the  common  law  as  to  witnesses,  in 
respect  to  their  competency  and  otherwise,  as 
well  in  England  as  in  this  country.  A  gene- 
ral and  strong  tendency  is  manifest  to  do 
away  with  the  old  objections  to  the  compe- 
tency of  witnesses,  and  to  admit  all  persons 
to  testify  that  can  furnish  to  courts  and  juries 
any  relevant  and  material  evidence, — leaving 
these  to  judge  of  the  credibility  of  the  witr 
nesses. 

We  shall  state  the  changes  introduced  in 
England,  the  United  States,  Massachusetts, 
New  York,  Pennsylvania,  Illinois,  and  Mis- 
sissippi. 

Englaud.  By  various  statutes,  7  A  S  Will.  III.  c. 
34,  1698;  8  Geo.  I.  c.  6.  1721 ;  and  9  Geo.  IV.  c.  32, 
1828,  Quakers  and  Moravians  are  allowed  to  testify 
under  aflnrmation,  subject  to  the  penalties  of  per- 

Incompetency  from  interest  is  done  away  with 
in  various  specified  cases,  by  special  statutes. 


WITNESS 


678 


WITNESS 


By  3  «fc  4  Will.  IV.  c.  26,  it  is  declared  that  no 
witness  shall  be  incompetent  on  the  ground  that 
the  verdict  or  judgment  would  be  admissible  in 
evidence  for  or  against  him ;  and  such  verdict  or 
judgment  for  his  party  shall  not  be  admissible  for 
Dim  or  any  one  claiming  under  him;  nor  shall  a 
verdict  or  judgment  against  his  party  be  admissi- 
ble against  him  or  any  one  claiming  under  him. 

By  the  statutes  6  &  7  Vict.  c.  85  (1S43),  and  14 
&  lb  Vict.  c.  99  (1851),  incompetency  by  reason  of 
being  a  party,  or  one  in  whose  behalf  a  suit  is 
Drought  or  defended,  or  by  reason  of  crime  or  in- 
terest, is  removed.  I3ut  no  person  charged  with  a 
criminal  offence  is  competent  or  compellable  to 
give  evidence  for  or  against  himself;  nor  is  a  hus- 
band or  wife  of  such  a  one  competent  or  compella- 
ble to  give  evidence  for  or  against  the  other;  nor 
is  one  compellable  to  criminate  himself ;  nor  does 
the  provision  as  to  parties  apply  to  proceedings 
instituted  on  account  of  adultery  or  for  breach  of 
promise  of  marriage. 

By  statute  16  &  17  Vict.  c.  83  (1853),  the  hus- 
band or  wife  of  a  party,  or  one  in  whose  behalf  a 
suit  is  brought  or  defended,  is  made  admissible  in 
all  cases  and  before  all  tribunals,  excepting  in  cri- 
minal proceedings  or  any  proceeding  instituted  in 
consequence  of  adultery  :  but  neither  is  compella- 
ble to  disclose  the  conversation  of  the  other  during 
marriage. 

By  statutes  of  15  &  16  Vict.  c.  27  (1852),  and  16 
&  17  Vict.  c.  20,  similar  changes  are  made  in  the 
law  of  Scotland. 

14:.  The  United  States.  By  the  Judiciary  Act 
(Sept.  24,  1789),  s.  34,  it  is  provided  that  the  laws 
of  the  several  states,  excepting  where  the  constitu- 
tion, treaties,  or  statutes  of  the  United  States  shall 
otherwise  require  or  provide,  shall  be  the  rules  of 
decision  in  trials  at  common  law  in  the  courts  of 
the  United  States,  in  cases  where  they  apply. 

This  is  held  to  include  the  statute  and  common 
law  of  the  several  states,  Curtis,  Const,  s.  30  a; 
to  embrace  statutes  relating  to  the  law  of  evi- 
dence in  civil  cases  at  common  law,  including  those 
passed  subsequently  to  the  Judiciary  Act,  M'Niel 
V8.  Ilolbrook,  12  Pet.  84;  but  not  to  apply  to 
criminal  cases :  as  to  which,  the  laws  of  the  several 
states  as  existing  at  the  time  this  act  was  passed 
are  the  rules  of  decision.    12  How.  361. 

In  accordance  with  this  provision,  parties  and 
others  formerly  disqualitied  are  allowed  to  testify 
in  the  district  and  circuit  courts  of  the  United 
States,  in  civil  cases  at  common  law,  in  states 
which  admit  such  testimony  before  their  own 
courts. 

A  remarkable  provision  is  made  in  a  statute 
passed  24th  January,  1857,  11  U.  S.  Stat,  at  Large, 
155,  as  to  witnesses  testifying  before  either  house 
of  congress  or  any  committee  of  either, — to  the 
effect  that  no  person  shall  be  held  to  answer  crimi- 
nally in  any  court  of  justice,  or  be  subject  to  any 
penalty  or  forfeiture,  for  any  fact  or  act  touching 
which  he  shall  be  required  to  testify  as  aforesaid  ; 
and  no  statement  made  or  paper  produced  by  him 
as  aforesaid  shall  be  competent  evidence  against 
bin:  in  any  criminal  proceeding  in  any  court  of  jus- 
tice. By  the  same  statute,  no  person  so  testifying 
can  refuse  to  answer,  or  produce  a  p.aper,  on  the 
ground  that  it  would  tend  to  disgrace  or  render  him 
infamous, — a  provision,  however,  which  seems  to 
effect  no  change  in  the  law. 

But  the  subject  of  witnesses  before  legislatiTe 
bodies  has  not  come  within  the  scope  of  this  article. 

15.  Masnachunetts.  Quakers  and  persons  having 
conscientious  scruples  against  taking  an  oath  are 
allowed  to  affirm.    Gen.  Stat.  c.  131,  ss.  10,  11, 

Persons  disbelieving  "  in  any  religion''  are  ren- 
dered coin])etent;  and  evidence  of  their  disbelief 
"in  the  existence  o\'  God"  is  admissible  to  affect 
their  credibility.    Gen.  Stat.  c.  131,  s.  12, 


No  person  is  incompetent  by  reason  of  crime  or 
interest.    Gen.  Stat.  c.  131,  s.  13. 

Parties  in  all  civil  actions  and  proceedings  (ex 
cepting  divorce  suits  in  which  a  divorce  is  sought 
on  the  ground  of  the  alleged  adultery  of  either 
party)  are  competent  witnesses  for  themselves  or  any 
other  party ; — with  &  proviso.  Gen.  Stat.  c.  131,  s.  14. 

Husband  and  wife,  in  all  civil  actions  and  pro- 
ceedings in  which  the  wife  is  a  party  or  one  of  the 
parties,  are  competent  for  and  against  each  other, 
excepting  as  to  private  conversations  with  each 
other.  Gen.  Stat.  c.  131,  s.  14.  And  in  actions 
brought  against  a  husband,  where  the  cause  of  ac- 
tion grows  out  of  a  wrong  or  injury  done  by  him 
to  the  wife  or  his  neglect  to  support  her,  the  wife 
is  competent.    Gen.  Stat.  c.  131,  s.  16. 

New  York.  Persons  declaring  that  they  have 
conscientious  scruples  against  taking  an  oalh  may 
affirm.    2  Rev.  Stat.  ed.  1852,  653. 

"  No  person  shall  be  rendered  incompetent  to  be 
a  witness  on  account  of  his  opinion  on  matters  of 
religious  belief."    N.  Y.  Const.  1846,  art.  1,  s.  3. 

No  person  shall  be  excluded  by  reason  of  interest 
in  the  event  of  the  action,  excepting  parties  and 
those  for  whose  immediate  benefit  the  action  is  pro- 
secuted or  defended,  with  a  proviso  admitting  par- 
ties in  certain  cases.    2  Rev.  Stat.  549. 

No  crime  other  than  a  felony  shall  rendtr  incom- 
petent. 2  Rev,  Stat.  885.  Felony  is  defined  as 
an  olfence  punishable  with  death  or  imprisonment 
in  a  state  prison,  2  Rev,  Stat.  886.  But,  by  spe- 
cial statutes,  felons  are  admitted  in  some  cases. 
2  Rev.  Stat.  869,  969. 

No  minister  of  the  gospel,  or  priest,  is  allowed  to 
disclose  any  confession  made  to  him  in  his  profes- 
sional character  in  the  course  of  discipline  enjoined 
by  rules  or  practice  of  his  denomination.  And  no 
authorized  physician  or  surgeon  is  allowed  to  dis- 
close any  information  acquired  in  attending  a  pa- 
tient professionally,  which  was  necessary  to  enable 
him  to  prescribe  or  act  professionally  for  the  pp,- 
tient.    2  Rev.  Stat.  652. 

There  are  other  statutes  in  New  York  modifying 
the  common  law  as  to  witnesses  in  specified  cases : 
e.g.  one  admitting  the  wife  in  one  case  where  th« 
husband  is  party.    Stat.  1860,  c.  508,  s.  3. 

16.  Pennsylvania.  Persons  conscientiously  op- 
posed to  taking  an  oath  are  allowed  to  affirm. 
Stats.  31  May,  1718,  and  21  Mar.  1772,  Dunlap,  Lawa 
of  Penn.  2d  ed.  67,  111. 

Other  changes  in  the  law  as  to  witnesses  in  Penn- 
sylvania seem  to  consist  in  certain  removals  of  the 
disqualification  of  interest  in  special  cases. 

Illinois.  In  all  cases  witnesses  are  allowed  to 
affirm.    111.  Stat.  Purple's  ed.  786. 

No  black  or  mulatto  person  or  Indian  is  permitted 
to  testify  for  or  against  any  white  person  whatso- 
ever in  criminal  cases.  III.  Stat.  ed.  1858,  377. 
And  in  civil  cases  no  negro,  mulatto,  or  Indian 
can  testify,  in  any  court  or  case,  against  a  white 
person.    111.  Stat.  ed.  1858,  237. 

In  certain  special  cases  the  disqualification  of 
interest  is  removed.  Approvers  are  not  competent 
in  criminal  cases.  111.  Stat.  ed.  18oS,  377.  Parties 
are  competent  witnesses  in  certain  proceedings  be- 
fore auditors.    111.  Stat.  ed.  1858,  212. 

17.  Mississippi.  Persons  conscientiously  scru- 
pulous as  to  taking  an  oath  are  allowed  to  affirm. 
Miss.  Rev.  Code,  513. 

No  person  is  incompetent  in  any  suit  at  law  or 
in  equity,  whether  a  party  or  not,  by  reason  of  in- 
terest ;  but  the  deposition  of  such  a  witness  is  not 
to  be  read;  and  there  is  another  jD/oriso. 

No  person  is  incompetent  by  reason  of  any  crime, 
excepting  that  of  perjury  or  subornation  of  perjury ; 
and  no  person  convicted  of  perjury  or  subornation 
is  rendered  competent  by  pardon  or  punishment. 

Husband  and  wife  are  competent  for  each  other 
in  criminal  cases. 


Vv'OLF'S  HEAD 


G70 


Negroes,  inulattoes.  Indians,  and  persons  of 
mixed  blood  descended  from  such,  to  the  second 
generation  inclusive,  are  not  competent  in  any  case 
whatever,  exceptin;^  for  or  against  each  other. 
Miss.  Rev.  Code,  510. 

Again,  it  is  provided  that  no  negro  or  mulatto, 
bond  or  free,  is  a  good  witness,  excepting  in  crimi- 
nal cases  against  a  negro  or  mulatto,  bond  or  free, 
and  in  civil  cases  where  a  free  negro  or  mulatto 
ftlone  are  parties.    Miss.  llev.  Code,  2^9. 

No  witness  may  refuse  to  answer  any  question' 
material  and  relevant,  unless  the  answer  would  ex- 
pose him  to  a  criminal  prosecution  or  jicnalty  or  a 
forfeiture  of  his  estate.    Miss.  Rev.  Code,  5i;^. 

No  female  is  compellable  to  attend  court  in  any 
civil  action,  excepting  by  special  process,  obtainable 
upon  affidavit  of  the  party  wishing  for  her  attend- 
ance that  the  same  is  necessary  to  the  ends  of  jus- 
tice.   Miss.  Rev.  Code,  514,  515. 

No  attorney  or  counsellor  is  allowed  his  fees  as  a 
witness  in  any  case  in  which  he  is  attorney  or 
counsellor.    Miss.  Rev,  Code,  152. 

Excepting  in  criminal  cases,  witnesses  are  en- 
titled to  receive  their  fees  for  each  day's  attendance 
at  the  end  of  the  day  :  if  not  paid,  they  are  not 
compellable  to  attend  further  until  paid  for  pre- 
vious attendance.    Miss.  Rev.  Code,  512. 

The  disqualification  for  crime  is  set  aside  under 
special  circumstances.    Miss.  Rev.  Code,  641. 

WOLF'S  HEAD.  In  Old  English 
Law.  A  term  applied  to  outlaws.  They 
who  were  outlawed  in  old  English  law  were 
said  to  carry  a  wolf's  head ;  for  if  caught 
alive  they  were  to  be  brought  to  the  king, 
and  if  they  defended  themselves  they  might 
be  slain  and  their  heads  carried  to  the  king, 
for  they  were  no  more  to  be  accounted  of 
than  wolves.  Termes  de  la  Ley,  Woolforth- 
fod. 

WOMEN.  All  the  females  of  the  human 
species.  All  such  females  who  have  arrived 
at  the  age  of  puberty.  Muliei^is  appellatione 
etiam  virgo  viri  potens  continetur.  Dig.  50. 
16. 13. 

Single  or  unmarried  women  have  all  the 
civil  rights  of  men :  they  may,  therefore, 
enter  into  contracts  or  engagements  ;  sue  and 
be  sued  ;  be  trustees  or  guardians  ;  they  may 
be  witnesses,  and  may  for  that  purpose  attest 
all  papers ;  but  they  are,  generally,  not  pos- 
sessed of  any  political  power:  hence  they  can- 
not be  elected  representatives  of  the  people, 
nor  be  appointed  to  the  offices  of  judge,  attor- 
ney at  law,  sheriff,  constable,  or  any  other 
office,  unless  expressly  authorized  by  law ; 
instances  occur  of  their  being  appointed 
postmistresses ;  nor  can  they  vote  at  any 
election.  Wooddeson,  Lect.  31 ;  Coke,  4th 
Inst.  5.  But  see  Callis,  Sew.  252 ;  Coke,  2d 
Inst.  34;  Coke,  4th  Inst.  311,  marg. 

WOODGELD.  In  Old  English  Law. 
To  be  free  from  the  payment  of  money  for 
taking  of  wood  in  any  forest.  Coke,  Litt.  233 
a.   The  same  as  Pudzeld. 

WOODMOTE.  The  court  of  attachment. 
Cowel, 

WOODS.  A  piece  of  land  on  which 
forest-trees  in  great  number  naturally  grow. 
According  to  Lord  Coke,  a  grant  to  another 
of  omnes  boscos  suos,  all  his  woods,  will  pass 
not  only  all  his  trees,  but  the  land  on  which 
they  grow.    Coke,  Litt.  4  b. 


WOOLSACK.  The  seat  of  the  lor(i 
chancellor  of  England  in  the  house  of  lords, 
being  a  large  square  bag  of  wool,  without 
back  or  arms,  covered  with  red  cloth.  Web- 
ster, Diet.  The  judges,  king's  counsel-at- 
law,  and  masters  in  chancery  sit  also  on 
woolsacks.  The  custom  arose  from  wool's 
l)eing  a  staple  of  Great  Britain  from  early 
times.    Encyc.  Amor. 

WORD.  One  or  more  syllables  which 
when  united  convey  an  idea;  a  single  part 
of  speech. 

2.  Words  are  to  be  understood  in  a  proper 
or  figurative  sense,  and  they  are  used  both 
ways  in  law.  They  are  also  used  in  a  tech- 
nical sense.  It  is  a  general  rule  that  con- 
tracts and  wills  shall  be  construed  as  the 
parties  understood  them  :  every  person,  how- 
ever, is  presumed  to  understand  the  force  of 
the  words  he  uses,  and,  therefore,  technical 
words  must  be  taken  according  to  their  legal 
import  even  in  wills,  unless  the  testator  mani- 
fests a  clear  intention  to  the  contrary.  1 
Brown,  Ch.  33  ;  3  id.  234 ;  5  Ves.  Ch.  401 ;  8 
id.  306. 

3.  Every  one  is  required  to  use  words  in 
the  sense  they  are  generally  understood  ;  for, 
as  speech  has  been  given  to  man  to  be  a  sign 
of  his  thoughts  for  the  purpose  of  communi- 
cating them  to  others,  he  is  bound,  in  treat- 
ing with  them,  to  use  such  words  or  signs  in 
the  sense  sanctioned  by  usage, — that  is,  in  the 
sense  in  which  they  themselves  understand 
them, — or  else  he  deceives  them.  Heineccius, 
Prselect.  in  Puffendorff,  lib.  1,  cap,  17,  ^  2; 
Heineccius,  de  Jure  Nat.  lib.  1,  g  197 ;  Wolff, 
Inst.  Jur.  Nat.  ^  798. 

4.  Formerly,  indeed,  in  cases  of  slander, 
the  defamatory  words  received  the  mildest 
interpretation  of  which  they  were  susceptible; 
and  some  ludicrous  decisions  were  the  conse- 
quence. It  M'as  gravely  decided  that  to  say 
of  a  merchant,  "he  is  a  base  broken  rascal, 
has  broken  twice,  and  I  will  make  him  break 
a  third  time,"  furnished  no  ground  for  main- 
taining an  action  because  it  might  be  intended 
that  he  had  a  hernia:  ne  jmet  dar  porter 
action,  car  poet  estre  intend  de  burstness  de 
belli/.  Latch,  104.  But  now  they  are  under- 
stood in  their  usual  signification.  Comb.  37; 
Hammond,  Nisi  P.  282.  See  Libel  ;  Slander. 

WORK  AND  LABOR.  In  actions  of 
assumpsit  it  is  usual  to  put  in  a  count,  com- 
monly called  a  common  count,  for  work  and 
labor  done  and  materials  furnished  by  tht 
plaintiff  for  the  defendant;  and  when  the 
work  was  not  done  under  a  special  contract 
the  plaintiff  will  be  entitled  to  recover  on 
the  common  count  for  work,  labor,  and  mate- 
rials. 4  Tyrwh.  43  ;  2  Carr.  &  M.  214.  See 
Assumpsit  ;  Quantum  Meruit. 

WORKHOUSE.  A  prison  where  prison- 
ers are  kept  in  employment ;  a  penitentiary. 
A  house  provided  where  the  poor  are  taken 
care  of  and  kept  in  employment. 

WORKING  DAYS.  In  settling  lay- 
days, or  days  of  demurrage,  sometimes  the 


WORKMAN 


680  WRIT  OF  ASSOCIATION 


contract  specifies  "working  days;"  in  the 
computation,  Sundays  and  custom-house  holi- 
days are  excluded.  1  Bell,  Comm.  577, 
5<h  ed. 

WORKMAN.  One  who  labors  ;  one  who 
ut  employed  to  do  business  for  another. 

The  obligations  of  a  workman  are  to  per- 
fiirm  the  work  he  has  undertaken  to  do,  to  do 
it  in  proper  time,  to  do  it  well,  to  employ  the 
things  furnished  him  according  to  his  con- 
tract. 

His  rights  are  to  be  paid  what  his  work 
is  worth,  or  what  it  deserves,  and  to  have  all 
the  facilities  which  the  employer  can  give  him 
for  doing  his  work.  1  Bouvier,  Inst.  nn.  1000- 
1006. 

WORSHIP.  Honor  and  homage  ren- 
dered to  God. 

In  the  United  States  this  is  free,  every  one 
being  at  liberty  to  worship  God  according  to 
the  dictates  of  his  conscience.  See  Chris- 
tianity :  Religious  Test. 

In  English  Law.  A  title  or  addition 
given  to  certain  persons.  Coke,  2d  Inst.  666; 
Bacon,  Abr.  Misnomer  (A  2). 

WORTHIEST  OF  BLOOD.  An  ex- 
pression used  to  designate  that  in  descent  the 
Bons  are  to  be  preferred  to  daughters,  which 
is  the  law  of  England.  See  some  singular 
reasons  given  for  this,  in  Plowd.  305. 

WOUND.  In  Medical  Jurisprudence. 

Any  lesion  of  the  body. 

In  this  it  differs  from  the  meaning  of  the  word 
when  used  in  surgery.  The  latter  only  refers  to  a. 
solution  of  continuity ;  while  the  former  comprises 
not  only  these,  but  also  every  other  kind  of  acci- 
dent, such  as  bruises,  contusions,  fractures,  disloca- 
tions, and  the  like.  Cooper,  Surgical  Diet. ;  Dun- 
glison,  Med.  Diet.  See  Dictionnaire  des  Sciences 
m6dicales,  mot  Blessiires;  3  Fodere,  M6d.  Leg. 
687-811. 

2.  Under  the  statute  9  Geo.  IV.  c.  21,  s. 
12,  it  has  been  held  in  England  that  to  make 
a  wound,  in  criminal  cases,  there  must  be  an 
injury  to  the  person  by  which  the  skin  is 
broken.  6  Carr.  &  P.  684.  See  6  Mete.  Mass. 
565  ;  Beck,  Med.  Jur.  c.  15  ;  Ryan,  Med.  Jur. 
Index;  Roscoe,  Cr.  Ev.  652;  Dane,  Abr.  In- 
dex ;  1  Mood.  Cr.  Cas.  278,  318  ;  4  Carr.  &  P. 
381,  558;  Guy,  Med.  Jur.  c.  9,  p.  446;  Merlin, 
Report.  Blessure. 

3.  When  a  person  is  found  dead  from 
wounds,  it  is  proper  to  inquire  whether  they 
are  the  result  of  suicide,  accident,  or  homi- 
cide. In  making  the  examination,  the  greatest 
attention  should  be  bestowed  on  all  the  cir- 
cumstances. On  this  subject  some  general 
directions  have  been  given  under  the  article 
Death.  The  reader  is  referred  to  2  Beck, 
Med.  Jur.  68-93.  As  to  wounds  on  the  living 
body,  see  id.  188. 

WRECK  (called  in  law  Latin  wreccum 
maris,  and  in  law  French  wrec  de  mer). 

In  Maritime  Law.  Such  goods  as  after 
a  shipwreck  are  cast  upon  the  land  by  the 
sea,  and  left  there  within  some  country  so  as 
not  to  belong  to  the  jurisdiction  of  the  admi- 
ralty, but  to  the  common  law.    Coke,  2d  Inst. 


167 ;  1  Sharswood,  Blackst.  Comm.  290- 
293. 

2.  Goods  found  at  low  water,  between 
high  and  low  water  mark,  and  goods  between 
the  same  limits  partly  resting  on  the  ground, 
but  still  moved  by  the  water,  are  wreck. 
The  King  vs.  Forty-Nine  Casks  of  Brandy,  3 
Hagg.  Adm.  257,  294.  AVreck,  by  the  com- 
mon law,  belongs  to  the  king  or  his  grantee  ; 
but  if  claimed  by  the  true  owner  within  a 
year  and  a  day  the  goods,  or  their  proceeds, 
must  be  restored  to  him,  by  virtue  of  stat. 
Westm.  I.,  3  Edw.  I.  c.  4.  Ships  and  goods 
found  derelict  or  abandoned  at  sea  belonged 
until  lately  to  the  office  of  the  lord  high  ad- 
miral, by  a  grant  from  the  crown,  but  now  be- 
long to  the  national  exchequer,  subject,  how- 
ever, to  be  claimed  by  the  true  owner  within 
a  J  ear  and  a  day.  1  Hagg.  383  ;  The  Mer- 
chant Shipping  Act,  1854,  §  475. 

3.  In  this  country,  the  several  states  bor- 
dering on  the  sea  have  enacted  laws  pro- 
viding for  the  safe  keeping  and  disposition 
of  property  wrecked  on  the  coast.  In  one 
case,  Peabody  vs.  28  bales  of  cotton,  decided 
in  the  district  court  of  Massachusetts,  and 
reported  in  the  American  Jurist  for  Jvily, 
1829,  it  was  held  that  the  United  States  have 
succeeded  to  the  prerogative  of  the  British 
crown,  and  are  entitled  to  derelict  ships  or 
goods  found  at  sea  and  unclaimed  by  the 
true  owner;  but  in  the  southern  district  of 
Florida  it  is  held  that  such  derelicts,  in  the 
absence  of  any  act  of  congress  on  the  subject, 
belong  to  the  finder  or  salvor,  subject  to  the 
claim  of  the  true  owner  for  a  year  and  a  day. 
Marvin,  Wreck  and  Salvage.  Stealing,  plun- 
dering, or  destroying  any  money  or  goods 
from  or  belonging  to  any  vessel,  boat,  or  raft 
in  distress,  lost,  or  stranded,  wilfully  ()i3struct- 
ing  the  escape  of  any  person  endeavoring  to 
save  his  life  from  such  ship,  boat,  or  raft, 
holding  out  or  showing  any  false  light  or 
lights,  or  extinguishing  any  true  one,  with 
intention  to  bring  any  vessel,  boat,  or  raft 
on  the  sea  into  danger,  or  distress,  or  ship- 
wreck, are  made  felony,  punishable  by  fine 
and  imprisonment,  by  act  of  congress  of  the 
3d  March,  1825,  4  U.  S.  Stat,  at  Large,  115. 
AVrecked  goods  upon  a  sale  or  other  act  of 
voluntary  importation  become  liable  to  duties. 
9  Cranch,  387  ;  4  id.  347. 

WRIT.  In  Practice.  A  mandatory 
precept,  issued  by  the  authority  and  in  the 
name  of  the  sovereign  or  the  state,  for  the 
purpose  of  compelling  the  defendant  to  do 
something  therein  mentioned. 

It  is  issued  by  a  court  or  other  competent 
jurisdiction,  and  is  returnable  to  the  same. 
It  is  to  be  vinder  seal  aiid  tested  by  the  proper 
officer,  and  is  directed  to  the  sherifi*  or  otlier 
officer  lawfully  authorized  to  execute  the 
same.  AVrits  are  divided  into — original,  of 
mesne  process,  of  execution.  See  3  Black- 
stone,  Comm.  273  ;  1  Tidd,  Pract.  93  ;  Gould, 
Plead,  c.  2,  s.  1. 

WRIT  OF  ASSOCIATION.  In  Eng- 
lish  Practice.    A  writ  whereby  certain 


WRIT  DE  BONO  ET  MALO         G81        WRIT  DE  ILERETICO,  ETC. 


persons  (usually  the  clerk  of  assize  and  his 
Bubordinate  officers)  are  directed  to  asso- 
ciate themselves  with  the  justices  and  ser- 
geants; and  they  are  required  to  admit  the 
yaid  persons  into  their  society  in  order  to 
';ake  the  assizes.  3  Sharswood,  Blackst.  Comm. 
Y).    See  Assize. 

WRIT  DE  BONO  ET  MALO.  See  De 
BoxoetMalo;  Assize. 

WRIT  OP  CONSPIRACY.  The  name 
of  an  ancient  writ,  now  superseded  by  the 
more  convenient  remedy  of  an  action  on  the 
case,  which  might  have  been  sued  against 
parties  guilty  of  a  conspiracy.  Fitzherbert, 
Is^at.  Brev.  260.    See  Conspiracy. 

WRIT  OP  COVENANT.  In  Prac- 
tice. A  writ  which  lies  where  a  party  claims 
damages  for  breach  of  covenant,  i.e.  of  a  pro- 
mise under  seal. 

WRIT  OP  DEBT.    In  Practice.  A 

writ  which  lies  where  the  party  claims  the 
recovery  of  a  debt,  i.e.  a  liquidated  or  certain 
Bum  of  money  alleged  to  be  due  to  him. 

This  is  debt  in  the  debet,  which  is  the  principal 
and  only  common  form.  There  is  another  species 
mentioned  in  the  books,  called  the  debt  in  the 
detinet,  which  lies  for  the  specific  recovery  of  goods 
Under  a  contract  to  deliver  them.  1  Chitty,  Plead, 
101. 

WRIT  OP  DECEIT.  The  name  of  a 
writ  which  lies  where  one  man  has  done 
any  thing  in  the  name  of  another,  by  which 
the  latter  is  damnified  and  deceived.  Fitz- 
herbert, Nat.  Brev.  217. 

The  modern  practice  is  to  sue  a  writ  of 
trespass  on  the  case  to  remedy  the  injury. 
See  Deceit. 

WRIT  OP  DETINUE.  In  Practice. 
A  writ  which  lies  where  a  party  claims  the 
specific  recovery  of  goods  and  chattels,  or 
deeds  and  writings,  detained  from  him.  This 
is  seldom  used:  trover  is  -the  more  frequent 
remedy,  in  cases  where  it  may  be  brought. 

WRIT  OP  DOWER.    In  Practice.  A 

writ  which  lies  for  a  widow  claiming  the 
specific  recovery  of  her  dower,  no  part  having 
been  yet  assigned  to  her.  It  is  usually  called 
a  writ  of  dower  unde  niJdl  habet.  3  Chitty, 
Plead.  393  ;  Booth,  166. 

There  is  another  species,  called  a  writ  of 
rigid  of  dower,  which  applies  to  the  particu- 
lar case  where  the  widow  has  received  a  part 
of  her  dower  from  the  tenant  himself,  and 
of  land  lying  in  the  same  town  in  which  she 
claims  the  residue.  Booth,  16G  ;  Glanville, 
lib.  6,  c.  4, 5.  This  latter  writ  is  seldom  used 
in  practice. 

WRIT  DE  EJECTIONE  PIRMiE.  A 
writ  of  eje^^tment.    See  Ejectment. 

WRIT  OP  EJECTMENT.  In  Prac- 
tice. The  name  of  a  process  issued  by  a 
party  claiming  land  or  other  real  estate, 
against  one  who  is  alleged  to  be  unlawfully 
in  possession.    See  Ejectment. 

WRIT  OP  ENTRY.  See  Entry,  Writ  of. 

WRIi  OP  ERROR.    In  Practice.  A 


Avrit  issued  out  of  a  court  of  competent  jurift- 
diction,  directed  to  the  judges  of  a  court  of 
record  in  which  final  judgment  has  been 
given,  and  commanding  them,  in  some  cases, 
themselves  to  examine  the  record,  in  others 
to  send  it  to  another  court  of  appellate  juris- 
diction, therein  named,  to  be  examined,  in 
order  that  some  alleged  error  in  the  proceed- 
ings may  be  corrected.  Stephen,  Plead.  138  ; 
2  Saund.  100,  n.  1 ;  Bacon,  Abr.  Error. 

2.  The  first  is  called  a  writ  of  error  coram 
nobis  or  vobis.  When  an  issue  in  fact  has 
been  decided,  there  is  not,  in  general,  any 
appeal  except  by  motion  for  a  new  trial ;  and 
although  a  matter  of  fact  should  exist  which 
was  not  brought  into  the  issue,  as,  for  ex- 
ample, if  the  defendant  neglected  to  plead  a 
release,  which  he  might  have  pleaded,  this  is 
no  error  in  the  proceedings,  though  a  mistake 
of  the  defendant.  Stephen,  Plead.  139.  But 
there  are  some  facts  which  affect  the  validity 
and  regularity  of  the  proceeding  itself;  and 
to  remedy  these  errors  the  party  in  interest 
may  sue  out  the  writ  of  error  coram  vobis. 
The  death  of  one  of  the  parties  at  the  com- 
mencement of  the  suit,  the  appearance  of 
an  infant  in  a  personal  action  by  an  attor- 
ney and  not  by  guardian,  the  coverture  of 
either  party  at  the  commencement  of  the 
suit,  when  her  husband  is  not  joined  with 
her,  are  instances  of  this  kind.  1  Saund. 
101 ;  1  Archbold,  Pract.  212  ;  2  Tidd,  Pract. 
1033  ;  Stephen,  Plead.  140  ;  1  Browne,  Penn. 
75. 

3.  The  second  species  is  called,  generally, 
writ  of  error,  and  is  the  more  common.  Its 
object  is  to  review  and  correct  an  eri-or  of  the 
law  committed  in  the  proceedings,  which  is 
not  amendable  or  cured  at  common  law  or 
by  some  of  the  statutes  of  amendment  or 
jeofail.  See,  generally,  Tidd,  Pract.  43; 
Graham,  Pract.  b.  4,  c.  1 ;  Bacon,  Abr.  Error  ; 
1  Vern.  Ch.  169  ;  Yelv.  76  ;  1  Salk.  322  ;  2 
Saund.  46,  n.  6,  and  101,  n.  1 ;  3  Blackstone, 
Comm.  405  ;  Sergeant,  Const.  Law,  c.  5. 

It  lies  only  to  remove  causes  from  a  court 
of  record.  It  is  in  the  nature  of  a  suit  or 
action  when  it  is  to  restore  the  party  who 
obtains  it  to  the  possession  of  any  thing 
which  is  withheld  from  him,  not  when  its 
operation  is  entirely  defensive.  3  Story, 
Const.  ^  1721.  And  it  is  considered,  gene- 
rally, as  a  new  action.    15  Ala.  9. 

WRIT  OP  EXECUTION.  A  writ  to 
put  in  force  the  sentence  that  the  law  hac 
given.    See  Execution. 

WRIT  OP  EXIGI  PACIAS.    See  Exi 

gent;  Exigi  Facias;  Outlawry. 

WRIT  OP  PORMEDON.    In  Prac- 

tice.  This  writ  lies  where  a  party  claimp 
the  specific  recovery  of  lands  and  tenement? 
as  issue  in  tail,  or  as  remainder-man  or  rever 
sioner,  upon  the  determination  of  an  estate  in 
tail.  Coke.  Litt.  236  b;  Booth,  Real  Act.  139 
151,  154.    See  Formedon. 

WRIT   DE    H^RETICO  COMBU- 
RENDO.   In  English  Law.   The  name  of 
I  a  writ  formerly  issued  by  the  secular  courta 


682  WRIT  OF  TOLL 


TTRIT  DE  HOMINE,  ETC. 


when  a  man  was  turned  over  to  them  by  the 
ecclesiastical  tribunals  after  having  been  con- 
demned for  heresy. 

It  was  founded  on  the  statute  2  Hen.  IV. 
c.  15  ;  it  was  first  used  a.d.  1401,  and  as  late 
as  the  year  1611.  By  virtue  of  this  writ, 
the  unhappy  man  against  whom  it  was  issued 
was  burned  to  death.    See  12  Coke,  92. 

WRIT  DE  HOMINE  REPLEGI- 
ANDO.  Ill  Practice.  See  De  Homine 
Keplegiando. 

WRIT  or  INQUIRY.  See  Inquisition; 
Inquest. 

WRIT  OP  MAINPRIZE.  In  Eng- 
lish Lavw.  A  writ  directed  to  the  sheriff 
(either  generally,  when  any  man  is  impri- 
soned for  a  bailable  offence  and  bail  has 
been  refused,  or  specially,  when  the  offence 
or  cause  of  commitment  is  not  properly  bail- 
able below),  commanding  him  to  take  sure- 
ties for  the  prisoner's  appearance,  commonly 
called  mainpernors,  and  to  set  him  at  large. 
3  Blackstone,  Comm.  128.    See  Mainprize. 

WRIT  OF  MESNE.  In  Old  English 
Law.  A  writ  which  was  so  called  by  reason 
of  the  words  used  in  the  writ,  namely,  Unde 
idem  A  qui  medius  est  inter  C  et  prcefaturn 
B ;  that  is,  A,  who  is  mesne  between  C,  the 
lord  paramount,  and  B,  the  tenant  paravail. 
Coke,  Litt.  100  a. 

WRIT  DE  ODIO  ET  ATIA.    See  De 

Odio  et  Atia  ;  Assize. 

WRIT  OF  PRiECIPE.  This  writ  is 
also  called  a  writ  of  covenant,  and  is  sued 
out  by  the  party  to  whom  lands  are  to  be 
conveyed  by  fine, — the  foundation  of  which 
is  a  supposed  agreement  or  covenant  that 
the  one  shall  convey  the  land  to  the  other.  2 
Blackstone,  Comm.  349,  350. 

WRIT  OF  PREVENTION.  This  name 
is  given  to  certain  writs  which  maybe  issued 
in  anticipation  of  suits  which  may  arise. 
Coke,  Litt.  100.    See  Quia  Timet. 

WRIT  OF  PROCESS.  See  Process  ; 
Action. 

WRIT  OF  PROCLAMATION.  In 

English  Practice.  A  writ  which  issues  at 
the  same  time  with  the  exigi  facias,  by  virtue 
of  Stat.  31  Eliz.  c.  3,  s.  1,  by  which  the  sheriff 
is  commanded  to  make  proclamations  in  the 
statute  prescribed. 

When  it  is  not  directed  to  the  same  sheriff 
as  the  writ  of  exigi  facias  is,  it  is  called  a 
foreign  writ  of  proclamation.  Lee,  Diet. ;  4 
Reeve,  Hist.  Eng.  Law,  261. 

WRIT  OF  QUARE  IMPEDIT.  See 

Quare  Impedit. 

WRIT  DE  RATIONABILI  PARTE 
BONORUM.  A  writ  which  was  sued  out  by 
a  widow  when  the  executors  of  her  deceased 
husband  refused  to  let  her  have  a  third  part 
of  her  late  husband's  goods,  after  the  debts 
were  paid.    Fitzherbert,  Nat.  Brev.  284. 

WRIT  OF  RECAPTION.    In  Prac- 


tice. A  writ  which  lies  where,  pending  an 
action  of  replevin,  the  same  distrainer  takes, 
for  the  same  supposed  cause,  the  cattle  or 
goods  of  the  same  distrainee.  See  Fitzher- 
bert, Nat.  Brev.  169. 

This  writ  is  nearly  obsolete,  as  trespass, 
which  is  found  to  be  a  preferable  remedy, 
lies  for  the  second  taking  ;  and,  as  the  defend- 
ant cannot  justify,  the  plaintiff  must  neces- 
sarily recover  damages  proportioned  to  the 
injury 

WRIT  OF  REPLEVIN.  See  Reple- 
vin. 

WRIT  OF  RESTITUTION.    A  writ 

which  is  issued  on  the  reversal  of  a  judgment 
commanding  the  sheriff  to  restore  to  the  de- 
fendant below  the  thing  levied  upon,  if  it  has 
not  been  sold,  and,  if  it  has  been  sold,  the  pro- 
ceeds. Bacon,  Abr.  Execution  (Q).  See  Res- 
titution. 

WRIT  PRO  RETORNO  HABENDO. 

In  Practice.  The  name  of  a  writ  which 
recites  that  the  defendant  was  summoned  to 
appear  to  answer  the  plaintiff  in  a  plea 
whereof  he  took  the  cattle  of  the  said  plain- 
tiff (specifying  them),  and  that  the  said  plain- 
tiff afterwards  made  default,  wherefore  it 
was  then  considered  that  the  said  plaintiff 
and  his  pledges  of  prosecuting  should  be  in 
mercy,  and  that  the  said  defendant  should 
go  without  day,  and  that  he  should  have  re- 
turn of  the  cattle  aforesaid.  It  then  com- 
mands the  sheriff  that  he  sljould  cause  to  be 
returned  the  cattle  aforesaid  to  the  said  de- 
fendant without  delay,  etc.  2  Sellon,  Pract. 
168. 

WRIT    OF    RIGHT.     In  Practice. 

The  remedy  appropriate  to  the  case  where  a 
party  claims  the  specific  recovery  of  corpo- 
real hereditaments  in  fee-simple,  founding 
his  title  on  the  right  of  property,  or  mere 
right,  arising  either  from  his  own  seisin  or 
the  seisin  of  his  ancestor  or  predecessor, 
Fitzherbert,  Nat.  Brev.  1  (B) ;  3  Blackstone, 
Comm.  391. 

At  common  law,  a  writ  of  right  lies  only 
against  the  tenant  of  the  freehold  demanded. 
8  Cranch,  239.^ 

This  writ  brings  into  controversy  only  the 
rights  of  the  parties  in  the  suit ;  and  a  defence 
that  a  third  person  has  better  title  will  not 
avail.  7  Wheat.  27;  3  Pet.  133;  3  Bingh. 
N.  s.  434  ;  4  id.  711 ;  5  id.  161 ;  4  Scott,  209  ; 
6  id.  435,  738  ;  6  Ad.  &  E.  103 ;  1  H.  Blackst. 
1 ;  3  Taunt.  167  ;  5  id.  326 ;  1  Marsh.  68 ;  2 
Bos.  &  P.  570;  4?c?.  64;  4  Taunt.  572;  2 
W.  Blackst.  1261 ;  2  Carr.  &  P.  187,  271 ;  8 
Cranch,  229;  2  Wheat.  306;  11  Me.  312;  7 
Wend.  N.  Y.  250 ;  3  Bibb,  Ky.  57  ;  3  Rand. 
Va.  563  ;  2  J.  J.  Marsh.  Ky.  104 ;  2  A.  K. 
Marsh.  Ky.  396 ;  1  Dan.  Ky.  410 ;  2  Leigh. 
Va.  1 ;  4  Mass.  64 ;  17  id.  74. 

WRIT  OF  TOLL.    In  English  Law. 

The  name  of  a  writ  to  remove  proceedings  on 
a  writ  of  right  patent  fr.om  the  court-baron 
into  the  countv  court.  3  Blackstone,  C(mm 
App..No.  1,  g  2. 


G83  YEAR 


WRIT  OF  WASTE 


WRIT  OF  WASTE.  The  name  of  a 
writ  to  be  issued  a<5ainst  a  tenant  who  has 
committed  waste  of  the  premises.  There 
are  several  forms  of  this  writ.  That  ao;ainst 
a  tenant  in  dower  differs  from  the  others. 
Fitzherbert,  Nat.  Brev.  125.    See  Waste. 

WRITERS  TO  THE  SIGNET.  In 
Scotch  Law.  Anciently,  clerks  in  office  of 
the  secretary  of  state,  by  whom  writs  pass- 
ing the  king's  signet  were  prepared.  Their 
duty  now  is  to  prepare  the  warrants  of  all 
lands  I'lowing  from  the  crown,  and  to  sign 
almost  all  diligencies  of  the  law  afiectiug  the 
person  or  estate  of  a  debtor,  or  for  compel- 
ling implement  of  decree  of  superior  court. 
They  may  act  as  attorney  or  agent  before 
court  of  sessions,  and  have  various  privileges. 
Bell,  Diet.  Clerk  to  Slg'iet. 

WRITING.  The  act  of  forming  by  the 
hand  letters  or  characters  of  a  particular  kind, 
on  paper  or  other  suitable  substance,  and 
artfully  putting  them  together  so  as  to  con- 
vey ideas. 

It  differs  from  printing,  -which  is  the  formation 
of  words  on  paper  or  other  proper  substance  by 
means  of  a  stamp.  Sometimes  by  writing  is  under- 
stood printing,  and  sometimes  printing  and  writing 
mixed. 

Many  contracts  are  required  to  be  in  writing; 
b11  deeds  for  real  estate  must  be  in  writing,  for  it 
cannot  be  conveyed  by  a  contract  not  in  writing, 
yet  it  is  the  constant  practice  to  ipake  deeds  partly 
in  printing  and  partly  in  writing.  Wills,  except 
nuncupative  wills,  must  be  in  writing,  and  signed 
by  the  testator;  {ind  nuncupative  wills  must  be  re- 
duced to  writing  by  the  witnesses  within  a  limited 
time  after  the  testator's  death. 

Records,  bonds,  bills  of  exchange,  and  many 
other  engagements  must,  from  their  nature,  be 
made  in  writing. 

See  Frauds,  Statute  of  ;  Language. 


WRITING  OBLIGATORY.  A  bond; 
an  agreement  reduced  to  writing,  by  which 
the  party  l)ecomes  bound  to  perform  some- 
thing, or  sufier  it  to  be  done. 

WRONG.  An  injury;  a  tort;  a  violation 
of  right. 

In  its  most  usual  sense,  wrong  signifies  an  injury 
committed  to  the  person  or  property  of  another, 
or  to  his  relative  rights  unconnected  with  contract; 
and  these  wrongs  are  committed  with  or  without 
force.  But  in  a  more  extended  signification,  wrong 
includes  the  violation  of  a  contract:  a  failure  by  a 
man  to  perform  his  undertaking  or  promise  is  a 
wrong  or  injury  to  him  to  whom  it  was  made.  3 
Blackstone,  Comm.  158. 

A  public  wrong  is  an  act  which  is  inju- 
rious to  the  public  generally,  commonly  known 
by  the  name  of  crime,  misdemeanor,  or  of- 
fence ;  and  it  is  punishable  in  various  ways, 
such  as  indictments,  summary  proceedings^ 
and,  upon  conviction,  by  death,  imprison- 
ment, fine,  etc. 

Private  wrongs,  which  are  injuries  to  indi- 
viduals, unaffecting  the  public:  these  are  re- 
dressed by  actions  for  damages,  etc.  See 
Remedies  ;  Tort. 

WRONG-DOER.  One  who  commits  an 
injury;  a  tort-feasor.  See  Dane,  xibr.  In- 
dex. 

WRONGFULLY  INTENDING.  In 

Pleading.  Words  used  in  a  declaration 
when  in  an  action  for  an  injury  the  motive  of 
the  defendant  in  committing  it  can  be  proved  ; 
for  then  his  malicious  intent  ought  to  be 
averred.  This  is  sufficiently  done  if  it  be 
substantially  alleged,  in  general  terms,  as 
wrongfully  intending.  3  Bouvier,  Inst,  n, 
2871. 


Y. 


YARD.  A  measure  of  length,  contain- 
ing three  feet,  or  thirty-six  inches. 

A  piece  of  land  inclosed  for  the  use  and 
accommodation  of  the  inhabitants  of  a  house. 
In  England  it  is  nearly  synonymous  with 
backside.  1  Chitty,  Pract.  176;  1  Term, 
701. 

YARDLAND.    In  Old  English  Law. 

A  quantity  of  land  containing  twenty  acres. 
Coke,  Litt"  09  a. 

YEAR.  The  period  in  which  the  revolu- 
tion of  the  earth  round  the  sun,  and  the 
accompanying  changes  in  the  order  of  nature, 
are  completed. 

2.  The  civil  year  differs  from  the  astro- 
nomical, the  latter  being  composed  of  three 
hundred  and  sixty-five  days,  five  hours,  forty- 
eight  seconds  and  a  fraction,  while  the  former 
consists  sometimes  of  three  hundred  and  sixty- 


five  days,  and  at  others,  in  leap-years,  of 
three  hundred  and  sixty-six  days. 

The  year  is  divided  into  half-year,  which 
consists,  according  to  Coke,  Litt.  135  b,  of 
one  hundred  and  eighty-two  days ;  and  quarter 
of  a  year,  which  consists  of  ninety-one  days. 
Id.;  2  Rolle,  Abr.  521,  1.  40.  It  is  further 
divided  into  twelve  months. 

3.  The  civil  year  commences  immediately 
after  twelve  o'clock  at  night  of  the  thirty- 
first  day  of  December,  that  is,  the  first  mo- 
ment of  the  first  day  of  January,  and  ends 
at  midnight  of  the  thirty-first  day  of  Decem- 
ber twelve  months  thereafter.  See  Comyns, 
Dig.  Annus;  2 Chitty,  Blackst.  Comm  140^  n. ; 
Chitty,  Pract.  Index,  Tijne.  Before  the  altera- 
tion of  the  calendar  from  old  to  new  style  in 
England  (see  Bissextile)  and  the  colonies 
of  that  country  in  America,  the  year  in  chro- 
nological reckoning  was  supposed  to  com- 


6S4  YIELDING  A^D  PAYING 


YEA1%  AND  DAi 


mence  with  the  first  day  of  January,  although 
the  legal  year  did  not  commence  until  March 
25,  the  intermediate  time  being  doubly  in- 
dicated: thus,  February  15,  172^,  and  so  on. 
This  mode  of  reckoning  was  altered  by  the 
statute  24  Geo.  II.  c.  23,  which  gave  rise  to 
an  act  of  assembly  of  Pennsylvania,  passed 
March  11,  1752,  1  Smith,  Laws,  217,  con- 
forming thereto,  and  also  to  the  repeal  of  the 
act  of  1710. 

4.  In  New  York  it  is  enacted  that  when- 
ever the  term  "year"  or  "years"  is  or  shall 
be  used  in  any  statute,  deed,  verbal  or  writ-^ 
ten  contract,  or  any  public  or  private  instru- 
ment whatever,  the  year  intended  shall  be 
taken  to  consist  of  three  hundred  and  sixty- 
five  days ;  half  a  year,  of  a  hundred  and 
eight^^-two  days ;  and  a  quarter  of  a  year, 
of  ninety-two  days ;  and  the  day  of  a  leap- 
year,  and  the  day  immediately  preceding,  if 
they  shall  occur  in  any  period  so  to  be  com- 
puted, shall  be  reckoned  together  as  one  day. 
Rev.  Stat.  pt.  1,  c.  19,  t.  1,  ^  3. 

YEAR  AND  DAY.  A  period  of  time 
much  recognized  in  law. 

It  is  not  in  all  cases  limited  to  a  precise  calendar 
year.  In  Scotland,  in  computing  the  term,  the 
year  and  day  is  to  be  reckoned,  not  by  the  number 
of  days  which  go  to  make  up  a  year,  but  by  the 
return  of  the  day  of  the  next  year  that  bears  the 
Bame  denomination.  1  Bell,  Comm.  6th  ed.  721;  2 
Stair,  Inst.  842.  See  Bacon,  Abr.  Desceut  (I  3)  ; 
Brskine,  Inst.  1.  6.  22.  In  the  law  of  all  the  Gothic 
nations,  it  meant  a  year  and  six  weeks. 

It  is  a  term  frequently  occurring:  for  ex- 
ample, in  case  of  an  estray,  if  the  owner 
challenged  it  not  within  a  year  and  a  day,  it 
belonged  to  the  lord.  5  Coke,  108.  So  of  a 
wreck.  Coke,  2d  Inst.  108.  This  time  is 
given  to  prosecute  appeals  and  for  actions  in 
a  writ  of  right,  and,  after  entry  or  claim,  to 
avoid  a  fine.  Plowd.357  a.  And  if  a  person 
wounded  die  in  that  time,  it  is  murder.  Coke, 
3d  Inst.  53  ;  0  Coke,  107.  So,  when  a  judg- 
ment is  reversed,  a  party,  notwithstanding 
the  lapse  of  time  mentioned  in  the  statute 
of  limitations  pending  that  action,  may  com- 
mence a  tVesh  action  within  a  year  and  a  day 
of  such  reversal.  3  Chitty,  Pract.  107.  Again, 
after  a  year  and  a  day  have  elapsed  from  the 
day  of  signing  a  judgment,  no  execution  can 
be  issued  till  the  judgment  be  revived  by 
scire  facias.  Bacon,  Abr.  Execution  (II) ; 
Tidd,  Pract.  1108. 

Protection  lasted  a  year  and  a  day ;  and  if 
a  villein  remain  from  his  master  a  year  and 
a  day  in  an  ancient  demesne,  he  is  free. 
Cunningham,  Diet,  If  a  person  is  afraid  to 
enter  on  his  land,  he  may  make  claim  as  near 
as  possible, — which  is  force  for  a  year  and  a 
day.  3  Sharswood,  Blackst.  Comm.  175.  In 
case  of  prize,  if  no  claim  is  made  within  a  year 
and  a  day,  the  condemnation  is  to  captors  as 
of  course.  2  Gall.  C.  C.  388.  So,  in  case  of 
goods  saved,  the  court  retains  them  till  claim, 
if  made  within  a  year  and  a  day,  but  not 
after  that  time.    8  Pet.  4. 

The  same  period  occurs  in  the  Civil  Law,  in 
Book  of  Feuds,  the  Laws  of  the  Lombards,  etc. 


YEAR-BOOKS.  Books  of  reports  of 
cases  in  a  regular  series  from  the  reign  of  the 
English  King  Edward  II.,  inclusive,  to  the 
time  of  Henry  VIII.,  which  were  taken  by  the 
prothonotarles  or  chief  scribes  of  the  courts, 
at  the  expense  of  the  crown,  and  publislied 
annually, — whence  their  name  Year-Books. 
They  consist  of  eleven  parts,  namely  : — Part 
1.  Maynard's  Reports  temp,  Edw.  II. ;  also 
divers  Memoranda  of  the  Exchequer  temp. 
Edward  I.  Part  2.  Reports  in  the  first  ten 
years  of  Edw,  III.  Part  3.  Reports  from  17 
to  39  Edward  III.  Part  4.  Reports  from  40 
to  50  Edward  III.  Part  5.  Liber  Assisarum ; 
or.  Pleas  of  the  Crown  temp.  Edw.  III.  Part 
6.  Reports  temp.  Hen.  IV.  &  Hen.  V.  Parts 
7  and  8.  Annals;  or.  Reports  of  Hen.  VI. 
during  his  reign,  in  2  vols.  Part  9.  Annals 
of  Edward  IV.  Part  10.  LongQuinto;  or, 
Reports  in  5  Edward  IV.  Part  11.  Cases  in 
the  Reigns  of  Edward  V.,  Richard  III.,  Henry 
VII.,  and  Henry  VIII. 

YEAR,   DAY,  AND  WASTE  (Lat. 

annus,  dies,  et  vastum)  is  a  part  of  king's 
prerogative,  whereby  he  takes  the  profits  of 
the  lands  and  tenements  of  those  attainted 
of  petty  treason  or  felony,  for  a  year  and  a 
day,  but,  in  the  end,  may  waste  the  tene- 
ments, destroy  the  houses,  root  up  the  woods, 
gardens,  and  pasture,  and  plough  up  the 
meadows  (exc^t  the  lord  of  the  fee  agree 
with  him  for  redemption  of  such  waste) ; 
after  which  the  lands  are  to  be  restored  to 
the  lord  of  the  fee.  Staundford,  Prerog.  c. 
10,  fol.  44.  By  Magna  Charta,  it  would  ap- 
pear that  the  profits  for  a  year  and  day  were 
given  in  lieu  of  the  waste.  9  Hen.  III.  c.  22. 
But  17  Edw.  II.  declares  the  king's  right  to 
both. 

YEARS,  ESTATE  FOR.  See  Estatk 
FOR  Years. 

YEAS  AND  NAYS.  The  list  of  mem- 
bers of  a  legislative  body  voting  in  the  af- 
firmative and  negative  of  a  proposition. 

The  constitution  of  the  United  States,  art.  1,  s.  5, 
directs  that  "  the  yeas  and  nays  of  the  members  of 
either  house,  on  any  question,  shall,  at  the  desire 
of  one-fifth  of  those  present,  be  entered  on  the 
journal."    See  2  Story,  Const.  301. 

The  power  of  calling  the  yeas  and  nays  is  given 
by  all  the  constitutions  of  the  several  states;  and  it 
is  not,  in  general,  restricted  to  the  request  of  one- 
fifth  of  the  members  present,  but  may  be  demanded 
by  a  less  number;  and,  in  some,  one  member  alune 
has  the  right  to  require  the  call  of  the  yeas  and 
nays. 

YEOMAN.  In  the  United  States  thi8 
word  does  not  appear  to  have  any  very  exact 
meaning.  It  is  usually  put  as  an  addition  to 
the  names  of  parties  in  declarations  and  in- 
dictments. In  England  it  signifies  a  free 
man  who  has  land  of  the  value  of  forty  shil- 
lings a  year.  Coke,  2d  Inst.  668;  2  Dall, 
Penn.  92. 

YIELDING  AND  PAYING.  These 
words,  when  used  in  a  lease,  constitute  a 
covenant  on  the  part  of  the  lessee  to  pay 
the  rent,  Piatt,  Cov.  50;  3  Penn.  464;  1 
Sid.  447,  pi.  9;  2  Lev.  206;  3  Term,  402; 


YORK,  CUSTOM  OF 


685 


YOUNG  ANLMALS 


1  Barnew.  &  C.  416;  2  Dowl.  &  R.  670;  but 
"whether  it  be  an  express  covenant  or  not 
seems  not  to  be  settled.  Styles,  387,  406, 
451 ;  Sid.  240,  266;  2  Lev.  206;  T.  Jones, 
102  ;  3  Term,  402. 

In  Pennsylvania,  it  has  been  decided  to 
be  a  covenant  running  with  the  land.  3  Penn. 
464.    See  1  Saund.  233,  n.  1 ;  9  Vt.  191. 

YORK,  CUSTOM  OF,  is  recognized  by 
22  &  23  Car.  II.c.  10,  and  1  Jac.  II.  c.  17.  By  this 
custom,  the  effects  of  an  intestate  are  divided 
according  to  the  anciently  universal  rule  of 
pars  rationabHis.    4  Burn,  Eccl.  Law,  342. 


YORK,  STATUTE  OF.  The  name  of 
an  pjuglish  statute,  passed  12  Edw.  II.,  Anno 
Domini  1318,  and  so  called  because  it  w^as 
enacted  at  York.  It  (Contains  many  wise  pro- 
visions and  explanations  of  f(jrmer  statutes. 
Barrington,  Stat.  174.  There  were  other 
statutes  made  at  York  in  the  reign  of  Ed- 
ward III.,  but  they  do  not  bear  this  name. 

YOUNG  ANIMALS.  It  is  a  rule  that 
the  young  of  domestic  or  tame  animals  be- 
long to  the  owner  of  the  dam  or  mother,  ac- 
cording to  the  maxim,  Partus  seqiiitur  ten- 
trem.    Dig.  6.  1.  5.  2  :  Inst.  2.  1.  9. 


INDEX. 


A. 

A,  17. 

A  consiliis,  17. 
A  latere,  17. 
A  me,  17. 

A  mensa  et  thoro,  17,  493. 
A  prendre,  17. 
A  quo,  17. 
A  rendre,  17. 
A  retro,  17. 

A  rubro  ad  nigrum,  17. 
A  vinculo  matrimonii,  17,  493 
Ab  actis,  17. 
Ab  ante,  27. 
Ab  antecedente,  17. 
Ab  extra,  17. 
Ab  inconvenienti,  17. 
Ab  initio,  18,  and  Trespass. 
Ab  intestat,  18. 
Ab  intestato,  18. 
Ab  invito,  18,  692. 
Ab  irato,  18. 
Abactor,  18. 
Abadengo,  18. 
Abalienatio,  18. 
Abamita,  18. 
Abandonment,  18. 
in  civil  law,  18. 
by  husband  or  wife,  18,  470. 
of  inventions,  746,  4-6. 
in  insurance,  18,  ii.  494-496, 

602. 
of  rights,  19. 
for  torts,  19. 
Abarnare,  19. 
Abatamentum,  19. 
Abatare,  19. 
Abate,  19. 
Abatement: 

in  chancery  practice,  19, 2,  3. 

in  contracts,  19,  3. 

of  freehold,  19,  20,  3,  4. 

of  legacies.  20,  4. 

in  mercantile  law,  20,  4, 

of  nuisances,  20,  4,  245,  5* 

in  pleading,  20-24. 

plea  in,  to  the  person, 
20-23,  7-23. 
alienage,  20,  9. 
corporations,  20, 10. 
coverture,21, 11,12, 
death,  21,  13,  14. 
infancy,  21,  15, 
lunacy,  21,  16, 
misjoinder,  21,  IT. 
misnomer,  22,  18, 
19, 

non-joinder,  22, 20- 
22, 

privilege,  22,  23. 
plea  in,  to  the  count,  23. 
plea  in,  of  the  writ,  23, 
24-26. 
to  the  form  of,  23, 
24. 

to  the  action  of,  23, 
25, 


Abatement: 

plea  in  variance,  23,  26. 
qualities  of  plea  in,  23, 
2T-29. 
as  to  form,  24,  28. 
affidavit  of  truth,  24, 
29. 

judgment  on  plea,  24, 30. 
of  taxes,  24,  30. 
Abator,  24. 
Abatuda,  24. 
Abavia,  24. 
Abavita,  24. 
Abavunculus,  24. 
Abavus,  24. 
Abbey,  24. 

Abbreviations,  24-43. 
Abbreviators,  43. 
Abbrochemeut,  43. 
Abdication,  43. 
Abduction,  43. 
Abearance,  43. 
Aberemurder,  43. 
Abet,  43. 
Abettor,  43. 
Abeyance,  43,  44. 
Abiaticus,  44. 
Abiding  by,  44. 
Abigeat,  44. 
Abigens,  44. 
Abjudicatio,  44. 
Abjuration,  44. 
Ablegati,  44. 
Abnepos,  44. 
Abneptis,  44. 
Abolition,  44, 
Abordage,  44. 
Abortion,  44,  45. 
Abortus,  45. 
Aboutissement,  45. 
Above,  45. 
Abpatruus,  45. 
Abridge,  45. 
Abridgment,  45. 
Abrogation,  45,  46, 
Abscond,  46. 
Absconding  debtor,  46. 
Absence,  46. 
Absentee,  46. 
Absoile,  46. 
Absolute,  46. 
Absolution,  46. 
Absolutism,  46. 

Absque  aliquo  inde  reddendo,  47. 
Absque  hoc,  46,  ii.  606. 
Absque  impetitione  vasti,  47. 
Abstention,  47. 
Abstract  of  a  fine,  47. 
Abstract  of  a  title,  47. 
Abuse,  47. 

Abuse  of  female  child,  47. 
Abut,  47. 
Abuttals,  47. 
Ac  etiam,  47. 
Accedas  ad  curiam,  47. 
Accedas  ad  vice-comitem,  47. 
Acceptance,  47. 

in  general,  47,  1,  2. 


Acceptance : 

of  bills  of  exchange,  48, 

in  insurance,  48,  5* 
Acceptilation,  48. 
Acceptor,  49. 

Acceptor  supra  protest,  49. 
Access,  49. 
Accessary,  49,  50. 
Accessio,  50. 
Accession,  50. 

in  international,  51. 
Accessory,  51. 
Accessory  actions,  51. 
Accessory  contract,  51. 
Accessory  obligations,  51. 
Accident,  51,  52. 

in  equity  practice,  52,  2^  Sy 
534,  8. 
Accomenda,  52. 
Accommodation  paper,  52. 
Accomplice,  52. 
Accord,  53. 
Accouchement,  53. 
Account,  53-55. 

in  practice,  54,  2-6* 

in  equity,  54,  2,  3> 

at  law,  54,  4-6. 
Account  book,  55. 
Account  current,  55. 
Account  in  bank,  187. 
Account  stated,  55. 
Accountant,  55. 
Accountant  general,  55. 
Accouple,  55. 
Accredit,  55. 
Accreditulare,  55. 
Accrescere,  55. 
Accretion,  55,  56. 
Accroach,  56. 
Accrue,  56. 

Accumulative  judgment,  56. 
Accusation,  56. 
Accused,  56. 
Accuser,  56. 
Achat,  56. 
Acherset,  56. 
Acknowledgment,  56-67. 

Alabama,  56,  67. 

Arkansas,  57. 

California,  57. 

Connecticut,  58. 

Delaware,  58. 

District  of  Columbia,  58. 

Florida,  58. 

Georgia,  58,  59. 

Illinois,  59. 

Indiana,  59. 

Iowa,  59. 

Kansas,  59,  60. 

Kentucky,  60. 

Louisiana,  60. 

Maine,  61. 

Maryland,  61. 

Massachusetts,  61. 

Michigan.  61, 

Minnesota.  62. 

Mississippi.  62. 

Missouri,  62. 

687 


688 


INDEX. 


Acknowledgment:  I 

Nebraska,  62. 

Nevada,  63. 

New  Hampshire,  63. 

New  Jersey,  63. 

New  Mexico,  63. 

New  York,  64. 

North  Carolina,  64. 

Ohio,  64. 

Oregon,  65. 

Pennsylvania,  65. 

Rhode  Island,  65. 

South  Carolina,  65. 

Tennessee,  66. 

Texas,  66. 

Utah,  67. 

Vermont,  67. 

Virginia,  67. 

Washington,  67. 

Wisconsin,  67. 
Acknowledgment  money,  67. 
Acquest,  67. 
Acquets,  67. 
Acolyte,  68. 
Acquiescence,  68. 
Acquietandis  plegiis,  68. 
Acquire,  68. 
Acquisition,  68. 
Acquittal,  68. 
Acquittance,  68. 
Acre,  68. 

Accreditulare,  68. 
Act,  69. 

in  civil  law,  69. 

in  evidence,  69. 

in  legislation,  69. 
Act  of  bankruptcy,  69. 
Act  of  God,  69. 
Act  of  grace,  70. 
Act  of  honor,  70. 
Act  in  pais,  70. 
Act  on  petition,  70. 
Acta  diurna,  70. 
Acta  publica,  70. 
Actio,  70-72. 
Actio  bonae  fidei,  72. 
Actio  commodati  contraria,  72. 
Actio  commodati  directa,  72. 
Actio  communi  dividundo,  72. 
Actio  condictio  indebitati,  72. 
Actio  ex  conducto,  73. 
Actio  ex  contractu,  549. 
Actio  ex  delicto,  549. 
Actio  depositi  contraria,  73. 
Actio  depositi  directa,  73. 
Actio  ad  exhibendum,  73. 
Actio  in  factum,  73. 
Actio  familiae  erciscundae,  73. 
Actio  judicati,  73. 
Actio  mandati,  73. 
Actio  non,  73. 
Actio  non  accrevit,  73. 
Actio  personalis,  73. 
Actio  personalis  moritur,  <fcc.,  73- 
77. 

in  contracts,  73,  74,  3-5. 
for  torts,  74-77,  6-16. 

for  injury  to  the  person, 

75,  lO-ll. 
against  personal  repre- 
sentative, 76,  12-16. 
Actio  in  personam,  77. 
Actio  praescriptis  verbis,  77. 
Actio  realis,  77. 
Actio  in  rem,  77. 
Actio  redhibitoria,  77. 
Actio  rescissoria,  77. 
Actio  pro  socio,  77. 
Actio  stricti  juris,  77. 


Actio  utilis.  77. 
Actio  vulgaris,  77. 
Action,  77. 

in  practice,  77. 

in  the  civil  law,  78,  4. 

in  the  common  law,  78,  5. 
Action  of  book  debt,  78. 
Action  redhibitory,  428. 
Action  rescissory,  469. 
Actions  ordinary,  78. 
Actionable,  78. 
Actionary,  78. 
Actiones  nominatae,  78. 
Acton  Burnell,  78. 
Actor,  78,  79. 
Actrix,  79. 
Acts  of  court,  79. 
Acts  of  sederunt,  79. 
Actual  damages,  79. 
Actuarius,  79. 
Actuary,  79. 
Actum,  79. 
Actus,  79. 

Ad  abundantiorcm  cautelam,  79. 

Ad  aliud  examen,  79. 

Ad  custagia,  79. 

Ad  custum,  79. 

Ad  damnum,  79. 

Ad  excambium.  79. 

Ad  exhaereditationem,  79. 

Ad  factum  prasstandum,  79. 

Ad  fidem,  79. 

Ad  filum  aqua9,  79. 

Ad  tirmam,  79. 

Ad  inquirendum,  79. 

Ad  interim,  80. 

Ad  largum,  80. 

Ad  litem,  80. 

Ad  lucrandum  vel  perdendum,  80. 

Ad  majorem  cautelam,  80. 

Ad  nocumentum,  80. 

Ad  ostium  ecclesiae,  80. 

Ad  quaerimonium,  80. 

Ad  quern,  80. 

Ad  quod  damnum,  80. 

Ad  rationem  ponere,  80. 

Ad  sectam,  80. 

Ad  terminum  qui  praeterit,  80. 

Ad  tunc  et  ibidem,  80. 

Ad  valorem,  80. 

Ad  vitam  aut  culpam,  80. 

Addicere,  80. 

Addition,  80. 

Additionales,  81. 

Address,  81. 

Adelantado,  81. 

Ademption,  81. 

Adhering,  81. 

Aditus,  82. 

Adjacent,  82. 

Adjourn,  82. 

Adjourned  term,  82. 

Adjournment,  82. 

Adjournment  day,  82. 

Adjournment  day  in  error,  82. 

Adjournment  in  eyre,  82. 

Adjudicataire,  82. 

Adjudication,  82. 

Adjunction,  82. 

Adjuncts,  82. 

Adjustment,  82,  728. 

Admeasurement  of  dower,  83. 

Admeasurement  of  pasture,  83. 

Adminicle,  83. 

Adminicular  evidence,  83. 

Administering  poison,  83,  343. 

Administration,  83-85. 

of  estates,  83-85,  1-T. 
various  kinds,  83, 84, 2-5. 


Administration : 

jurisJiction,  84,  6. 
formalities  of  appoint- 
ment, etc.,  84,  T. 
appropriation  of,  85,  T. 
in  governmental  law,  85,  !» 
Administrator,  85-87. 

appointment,  85,  2-4, 

who  entitled  to,  85,  3,4« 
powers  of,  86,  4, 
duties  of,  86.  5-T. 
liability  of,  87,  8,  9. 
pay  of,  87,  0. 
Admiral,  87. 
Admiralty,  87-89. 

in  general,  87,  88,  1. 
in  English  law,  88,  4-T. 
civil  jurisdiction,  88,  3« 
criminal  jurisdiction,  88, 
5. 

form  of  proceedings,  88, 
6. 

in  American  law,  88,  T-9, 

398-400. 
civil  jurisdiction,  88,  8j 

398-400. 
criminal  jurisdiction,  89, 

9,  401. 
form  of  proceedings,  89 

9. 

Admission,  89. 

in  practice,  89. 

in  corporations,  89. 
Admissions,  89. 

in  evidence,  89,  2-6. 
kinds  of,  89,  2. 
by  whom  made,  89, 2-S 
effect  of,  90,  6. 

in  pleading,  90,  T,  8, 
in  equity,  90,  7, 
at  law,  90,  T. 
Admittance,  90. 
Admittendo  in  socium,  90. 
Admonition,  90. 
Adnepos,  90. 
Adneptis,  90. 
Adnotatio,  90. 
Adolescence,  90. 
Adoption,  90,  91. 
Adpromisor,  91. 
Adrogation,  91. 
Adscripti,  91. 
Adscripti  glebae,  91. 
Adscriptitii,  91. 
Adsessores,  91. 
Adult,  91. 
Adulter,  91. 
Adultera,  91. 
Adulteration,  91, 
Adulterator,  91. 
Adulterine,  92. 
Adulterine  guilds,  92. 
Adulterium,  92. 
Adultery,  92. 
Advancement,  92.  , 
Advances,  92. 
Advena,  93. 
Advent,  93. 
Adventitious,  93. 
Adventitius,  93. 
Adventure,  93. 
Adverse  enjoyment,  93. 
Adverse  possession,  93. 
Advertisement,  93,  94. 
Advice,  94. 
Advisare,  94. 
Advisement,  94. 
Advocate,  94. 

in  civil  law,  94. 


Advocate: 

in  ecclesiastical  law,  94. 

origin  of,  94,  2. 

qualifications  of,  95,  2* 

duties  of,  95,  3. 

compensation  of,  95,  2* 
Advocati,  95. 
Advocati  ecclesisB,  95. 
Advocati  fisci,  95. 
Advocatia,  95. 
Advocation,  96. 
Advocatus,  96. 
Advowson,  96. 
Advowtry,  96. 
Miles,  96. 
^dile,  96. 

^dilitium  edictum,  96. 
^1,  96. 

Ms  alienum,  96. 
.^stimatio  capitis,  96. 
^tas  infantili  proxima,  96. 
Affection,  96. 
Affectus,  96. 
Affeere,  96. 
Affeerors,  96. 
Affiance,  96. 
Affiant,  96. 
Affidare,  96. 
Affidatus,  96. 
Affidavit,  96,  97. 
Affidavit  of  defence,  97. 
Affidavit  to  hold  to  bail,  97. 
Affilare,  97. 
Affiliation,  97. 
Affines,  97. 
Affinitas,  97. 
Affinitas  affinitatis,  97. 
Affinity,  97. 
Affirm,  97. 
Affirmance,  97,  98. 
Affirmance  day,  general,  98. 
Affirmant,  98. 
Affirmation,  98. 
Affirmative,  98. 
Affirmative  pregnant,  98. 
Afforce  the  assize,  98. 
Affranchise,  98. 
Affray,  98. 
Affrectamentum,  98. 
Affreightment,  98. 
Aforesaid,  98. 
Aforethought,  98. 
Aftermath,  99. 

Against  the  form  of  the  statute, 
99. 

Against  the  will,  99. 

Agard,  99. 

Age,  99. 

Age  prayer,  99. 

Agency,  99-105. 

how  created,  99,  2-5,  100. 

termination  of,  100,  6-8. 
Agens,  100. 
Agent,  100-105. 

who  may  be,  101. 

extent  of  authority,  101. 

duties  and  liabilities,  101- 
103. 

as  to  principals,  101. 
as  to  third  parties,  102. 
rights  and  privileges,  103- 
105. 

as  to  principals,  103. 
as  to  third  parties,  104. 
Agent  and  patient,  105. 
Ager,  105. 
Aggravation,  105. 

in  criminal  law,  705. 
in  pleading,  105. 
Vol.  II.— 44 


INDEX. 


Aggregate,  105. 
Aggressor,  105. 
Agio,  105. 
Agister,  105. 
Agistment,  105. 
Agnates,  105. 
Agnati,  105. 
Agnatio,  105. 
Agnomen,  105. 
Agrarian  laws,  105. 
Agreamentum,  106. 
Agreement,  106. 

kinds  of,  106. 

requisites  of,  106. 

construction  of,  107. 

avoidance  of,  107. 
Agreement  for  insurance,  107. 
Aid  and  comfort,  107. 
Aid  prayer,  107. 
Aider  by  verdict,  107. 
Aiding  and  abetting,  108. 
Aids,  108. 
Aiel,  108. 
Aielesse,  108. 
Aile,  108. 
Air,  108. 

Aisiamentum,  108. 
Ajuar,  108. 
Ajutage,  108. 
Alabama,  108-110. 
Alba  firma,  111. 
Alcade,  111. 
Alderman,  111. 
Aleator,  111. 
Aleatory  contract,  111. 
Ale-conner,  111. 
Aler  sans  jour.  111. 
Alfet,  111. 
Alia  enormia.  111, 
Alias,  111. 
Alias  dictus,  111. 
Alibi,  111. 
Alien,  112. 
Alien  enemy,  112. 
Alienage,  112. 

as  a  plea  in  abatement,  20,  9. 
Alienate,  112. 
Alienation,  112. 
Alienation  office,  113. 
Alienee,  113. 
Alieni  generis,  113. 
Alieni  juris,  113. 
Alienigena,  113. 
Alienor,  113. 
Aliment,  113. 
Alimenta,  113. 
Alimony,  113,  114. 

requisites  for  granting,  113, 
2,  3. 

•what  it  is,  114,  4. 

amount  of,  114,  5,  6* 
Alio  intuitu,  114. 
Aliter,  114. 
Aliunde,  114. 
All  fours,  114. 
Allegata,  114. 
Allegata  et  probata,  114. 
Allegation,  114. 
Allegation  of  faculties,  115. 
Allegiance,  115. 
Alliance,  115. 
Allision,  115. 
Allocation,  115. 
Allocatione  facienda,  115. 
Allocatur,  115. 
Allocatur  exigent,  115. 
Allodarii,  115. 
Allodium,  115. 
Allonge,  115. 


689 


Alloy.  116. 
Alluvio  maris,  116. 
Alluvion,  116. 
Ally,  116. 
Alms,  116. 
Alnager,  116. 
Alnetum,  116. 
Alta  proditio,  116. 
Alta  via,  116. 
Altarage,  116. 
Alteration,  116,  117. 
Alternat,  117. 
Alternative,  117. 
Altius  non  tollendi,  117» 
Altius  tollendi,  117. 
Alto  et  basso,  117. 
Altum  mare,  117. 
Alumnus,  117. 
Alveus,  117. 
Amalphitan  table,  117. 
Ambactus,  117. 
Ambassador,  117. 
Ambidexter,  117. 
Ambiguity,  117. 
Ambit,  118. 
Ambitus,  118. 
Ambulatory,  118. 
Ameliorations,  118. 
Amenable,  118. 
Amende  honorable,  118. 
Amendment,  118. 
Amends,  118. 
Amercement,  118. 
Ameublissement,  119. 
Amicable  action,  119. 
Amicus  curiae,  119. 
Amita,  119. 
Amitinus,  119. 
Amittere  curiam,  119. 
Amittere  liberam  legem,  ild. 
Amnesty,  119. 
Amortise,  119. 
Amortization,  119. 
Amotion,  119. 
Amount  covered,  120. 
Amount  of  loss,  120. 
Amoveas  manus,  120. 
Amparo,  120. 
Ampliation,  120. 
Amy,  120. 

An,  jour,  et  waste,  120. 
Analogy,  120. 
Anarchy,  120. 
Anathema,  120. 
Anatocism,  120. 
Ancestor,  120. 
Ancestral,  120. 
Anchor,  120. 
Anchorage,  120. 
Ancient  demesne,  121. 
Ancient  house,  121. 
Ancient  lights,  121. 
Ancient  readings,  121. 
Ancient  rent,  121. 
Ancient  writings,  121. 
Ancients,  121. 
Ancienty,  121. 
Ancillary,  121. 
Ancipitis  usus,  121. 
Androlepsy,  121. 
Anecius,  121. 
Angaria,  121. 
Angel,  121. 
Angild,  121. 
Anhlote,  121. 
Aniens,  121. 
Animal,  121. 

Animals  of  a  base  nature,  121. 
Animo,  122. 


b90 


INDEX. 


Animus,  1  22. 
Animus  canoellandi,  122. 
•      Animus  capiendi,  122. 
Animus  furandi,  122. 
Animus  manendi,  122. 
Animus  recipiendi,  122. 
Animus  revertendi,  122. 
Animus  testandi,  122. 
Ann,  122. 
Annates,  122. 
Annexation,  122. 
Anni  nubiles,  122. 
Anniculus,  122. 
Anniented,  122. 
Anno  Domini,  122. 
Annona,  123. 
Annonae  civiles,  123. 
Annotation,  123. 
Annual  assay,  123. 
Annual  rent,  124. 
Annuity,  124. 
Annulus  et  baculus,  124. 
Annum,  diem,  et  vastum,  124. 
Annus  luctus,  124.  . 
Annus  utilis,  124. 
Annuus  reditu?,  124. 
Anonymous,  124. 
Answer,  124. 

as  to  form,  124,  2,  3. 

as  to  substance,  124,  4. 

amendment  of,  125,  5. 
Antapocha,  125. 
Ante  juramentura,  125. 
Ante  litem  motam,  125. 
Ante-nuptial,  125. 
Antedate,  125. 
Antenati,  125. 
Antichresis,  125. 
Anticipation,  125. 
Antinomia,  125. 
Antiqua  custuma,  125. 
Antiqua  statuta,  125. 
Antithetarius,  125. 
Any  term  of  years,  125. 
Apanage,  125. 
Apartment,  125. 
Apex  juris,  125. 
Apocae,  126. 
Apocrisarius,  126. 
Apographia,  126. 
Apoplexy  and  paralysis,  126. 

distinctions  between,  126,  1. 

as  affecting  mental  capacity, 
126,  2,  3. 

tests  of  disability  caused  by, 
126,  4. 
Apostles,  127. 
Apostoli,  127. 
Apparator,  127. 
Apparent,  127. 
Apparitor,  127. 
Apparura,  127. 
Appeal,  127. 

in  criminal  law,  127,  !• 

in  practice,  127,  2. 

in  legislation,  127,  3. 
Appearance,  127,  128. 

kinds  of,  128,  '2, 

how  to  be  made,  128,  3. 

by  whom  to  be  made,  128, 
3-6. 

in  criminal  cases,  128, 
5,  6. 
Appellant,  128. 
Appellate  jurisdiction,  129. 
Appellatio,  129. 
Appellee,  129. 
Appellor,  129. 
Appendant,  129. 


Appenditia,  129. 
Application.  129. 

in  insurance,  129, 186,  ii.464. 

of  purchase-money,  129. 
Appointee,  129. 
Appointment,  129. 

in  chancery  practice : 

by  whom  made,  129. 
how  to  be  made,  129. 
effect  of,  129. 
Appointor,  129. 
Apportionment,  130. 

of  contracts,  130. 

of  incumbrances,  130. 

of  rent,  130. 

of  representatives,  130. 
Apposal  of  sheriflFs,  131. 
Apposer,  131. 
Appostille,  131. 
Appraisement,  131. 
Appraiser,  131. 
Apprehension,  131. 
Apprentice,  131. 
Apprenticeship,  131-133. 

how  entered  into,  131,  1,  2. 

duties  of  master,  132,  3. 

duties  of  apprentice,  133,  4. 

characteristics  of,  132,  5. 
Apprizing,  133. 
Approach,  133. 

Approbate  and  reprobate,  133. 
Appropriation,  133-135. 

in  ecclesiastical  law,  133. 
of  payments,  133-135. 

by  whom  to  be  made, 

133,  2,  3. 
to  what  classes  of  debts, 

133,  4,  5. 
when  not  voluntary,  134, 
6. 

how  made  by  law,  134, 
T,  8. 

special  rules,  134,  9-11. 
for  interest,  134,  9. 
to  prior  debt,  134, 
lO. 

in  case  of  sureties, 

134,  lO. 
running  accounts, 

134,  11. 
between  partners, 
134,  11. 
when  to  be  made,  135, 
12. 

cannot  be  changed,  135, 
12. 

in  governmental  law,  135. 
Approve,  135. 

Approved  indorsed  notes,  135. 
Approver,  135. 
Appurtenances,  136. 

to  house  and  land,  136,  2,  3. 

of  a  ship,  136,  4. 
Appurtenant.  136. 
Apud  acta,  136. 
Aqua,  136. 
Aquae  ductus,  136. 
Aquae  haustus,  136. 
Aquae  immittendae,  136. 
Aquagium,  136. 
Aquatic  rights,  136. 
Aralia,  136. 
Arbiter,  136. 

Arbitrament  and  award,  136. 
Arbitrary  punishment,  136. 
Arbitration,  136,  137. 

kinds  of,  136,  1. 

what  may  be  subject  of,  137, 
2, 


Arbitration : 

by  whom  to  be  made,  137,  2* 

in  Pennsylvania,  137,  3. 

in  England,  137,  4,  5. 
Arbitrator^  137,  138. 

appointment,  137,  2. 

proceedings,  138,  3« 

duties  and  powers  of,  138,  4 
Arbitrium,  138. 
Arbor,  139. 
Arcarius,  139. 
Archaionomia,  139. 
Archbishop,  139. 
Archdeacon,  139. 
Archdeacon's  court,  139. 
Arches'  court,  139. 
Archives,  139. 
Archivist,  139. 
Arcta  et  salva  custodia,  139. 
Are,  139. 
Area,  139. 
Arenales,  139. 
Arentare,  139. 
Argentarii,  139. 
Argentum  album,  139. 
Argentum  Dei,  139. 
Argument  ab  inconvenienti,  189, 
Argumentative,  139. 
Aribannum,  139. 
Arimanni,  139. 
Aristocracy,  139,  140. 
Aristodemocracy,  140. 
Arizona,  140. 
Arkansas,  140,  142. 

legislative,  140,  3-9. 

executive,  141,  10-12. 

judicial,  141,  13-lT. 
Aries,  142. 
Arm  of  the  sea.  142. 
Arma  moluta,  142. 
Armiger,  142. 
Armistice,  142. 
Arms,  142. 
Arpennus.  143. 
Arpent,  143. 
Arpentator,  143. 
Arra,  143. 
Arraign,  143. 
Arraignment,  143. 
Arramena,  143. 
Arras,  143. 
Array,  143. 
Arrearages,  143. 
Arrears,  143. 
Arrect,  144. 
Arrest,  144-146. 

in  civil  cases,  144,  145,  2-5* 
who  made  by,  144,  2. 
who  liable  to,  144,  3. 
where  and  when  to  be 

made,  144,  4. 
discharge,  145,  4. 
generally,  145,  5. 

in  criminal  cases,  145,  146, 
5-10. 
who  may  make,  145,  5- 
8. 

who  liable  to,  146,  8. 

when  and  where  to  b« 
made,  146,  9. 

how  made,  146,  10. 
Arrest  of  judgment,  146. 
Arrestandis  bonis,  etc.,  146. 
Arrestee,  146. 
Arrester,  146. 
Arrestment,  146. 
Arret,  146. 
Arretted.  146. 
Arrhae,  146. 


INDEX. 


691 


Arriage  and  carriage,  147. 
Arrier  ban,  147. 
Arriere  fief,  147. 
Arrive,  147. 
Arrogation,  147. 
Arson  in  Ic  main,  147. 
Arson,  147. 

what  constitutes,  147,  1,2. 

character  of  the  crime,  147, 
2, 

Arsura,  147. 
Art,  147. 

Art  and  p  irt,  147. 
Articles,  !_48. 

generally,  148,  1. 

in  chancery,  148,  2. 

in  ecclesiastical  law,  148,  2. 

in  Scotch  law,  148,  2. 
Articles  of  agreement,  148. 
Articles  approbatory,  148. 
Articles  of  confederation, 148-150. 
Articles  of  impeachment,  150. 
Articles  improbatory,  150. 
Articles  of  partnership,  150,  151. 
Articles  of  the  peace,  151. 
Articles  of  roup,  151. 
Articles  of  set,  151. 
Articles  of  war,  151. 
Articulate  adjudication,  151. 
Artificial,  151. 
Arura,  151. 
As,  151. 

Ascendants,  151. 
Ascriptitius,  152. 
Asphyxy,  152. 
Asportation,  152. 
Assassination,  152. 
Assault,  152. 
Assay,  152,  153. 
Assay  office,  153. 
Assecurare,  153. 
Assecuration,  153. 
Assecurator,  153. 
Assedation,  153. 
Assembly,  153. 
Assent,  153. 

what  constitutes,  154,  2,  3. 
Assess,  154. 
Assessment,  154. 

of  damages,  154,  423,  11,  ii. 
166. 

in  insurance,  154. 
Assessors,  154. 
Assets,  154,  155. 

kinds  of,  154,  1. 

what  are,  155,  2,  3. 

marshalling,  155,  4, 
Asseveration,  155. 
Assign,  155. 
Assignation,  155. 
Assignee,  155. 
Assignment,  155-157. 

in  contracts,  155-157. 

what  may  be  assigned, 

155,  2-5. 

in  trust  by  insolvents, 

156,  6. 

how  made,  156,  8. 
effect  of,  157,  9,  lO. 
of  insurance  policy,  157, 
11. 

in  equity,  157,  11. 
Assignment  of  dower,  157,  158. 
Assignment  of  errors,  158. 
Assignor,  158. 
Assigns,  158. 
Assisa,  158. 
Assisors,  158. 
AsHze,  158,  159. 


Assise  of  darrein  presentment, 
159. 

Assize  of  fresh  force,  159. 
Assize  of  mort  d'ancestor,  159. 
Assize  of  novel  disseisin,  159. 
Assize  of  nuisance,  159. 
Assize  of  utrum,  159. 
Assizes,  159. 

Assizes  de  Jerusalem,  159. 
Association,  159. 
Assoil,  159. 
Assumpsit,  159-162. 

in  contracts,  159,  1,  2. 
in  practice,  159-162. 

by  whom  brought,  160, 
4. 

lies  for  what,  160,  5-9. 

money  had  and  re- 
ceived, 160,  5. 

money  paid,  160,  6. 

money  lent,  160,  C. 

balance  of  account 
stated,  161,  T. 

goods  sold  and  de- 
livered, 161,  T. 

work  performed, 
•  161,8. 

use  and  occupation, 
161,8. 

in  other  cases,  161, 
9. 

form  of  action,  161,  lO. 

declaration  in,  162,  11. 
Assurance,  162. 
Assured,  162. 
Assurer,  162. 
Assythement,  162. 
Astrict,  162. 
Astrihiltet,  162. 
At  law,  162. 
Atamita,"l62. 
Atavunculus,  162. 
Atavus,  162. 
Atha,  162. 
Atheist,  162. 
Atiliura,  162. 
Atmatertera,  162. 
Attachment,  162-165. 
of  persons,  162. 
of  property,  163-165. 

issues  where,  163,  3-5. 

lies  against  whom,  163, 
6,  T. 

effect  of,  163,  8-11. 

receiptor,  164,  12. 

how  dissolved,  164,  13- 
16. 

as  by  custom  of  London, 

164,  IT, 
garnishment,  164,  18- 

25. 

nature  of  process, 
164,  18. 

based  upon  what, 
164,  19. 

who  may  be  charg- 
ed. 165,  20,  21, 
22. 

practice  in,  165,23- 
25. 

malicious, how  remedied, 

165,  26. 
Attachment  of  privilege,  165. 
Attainder,  165. 

Attaint,  166. 
Attempt,  166. 
Attendant,  166. 
Attendant  terms,  166. 
Attentat,  166. 


Atterminare,  166. 
Attermiiiing,  166. 
Atteruioiement,  166. 
Attestation,  160. 
Attestation  clause,  167. 
Attesting  witness,  167. 
Attorn,  167. 
Attorney,  167,  168. 

in  fact,  167,  2,  3. 

at  law,  167,  4-6. 
Attorney's  certificate;,  168. 
Attorney-General,  168. 
Attorney -General  of  the  United 

States,  168. 
Attornment,  167. 
Au  besoin,  168. 
Aubaine,  168. 
Auction,  168. 
Auctionarius,  168. 
Auctioneer,  168. 
Auctor,  168. 
Audience,  168. 
Audience  court,  169. 
Audita  querela,  169. 
Auditor,  169. 

powers  of,  169,  2. 

report  of,  169,  '3,  4. 
Augmentation,  170. 
Aula  rcgia,  170. 
Auncel  weight,  170. 
Aunt,  170. 
Auter,  170. 
Authentic  act,  170. 
Authentication,  170. 
Authentics,  170. 
Authorities,  171. 
Authority,  171,  173. 

kinds  of,  171,  1. 

delegation  of,  171,  2,  3. 

exercise  of,  172,  4-6. 

destruction  of,  172,  7,  8. 

in  governmental  law,  173. 
Autocracy,  173. 
Autonomy',  173. 

Auter  action  pendant,  173,  174. 
what  action  sufiicient,  175 
2,3. 

in  equity  will  not  abate  law- 
suit, 173,  4. 

how  pleaded,  173,  5. 

what  must  be  proved,  174,  6* 
Autrefois  acquit,  174. 
Autrefois  attaint,  174. 
Autrefois  convict,  174. 
Auxilium,  175. 
Auxilium  curias,  175. 
Auxilium  regis,  175. 
Auxilium  vice-comiti,  175. 
Avail  of  marriage,  175. 
Aval,  175. 
Avaria,  175. 
Aventure,  175. 
Aver,  175. 
Average,  175,  176. 

general,  175. 

particular,  175,  2-4. 

petty,  176. 
Averia,  176. 

Averiis  captis  in  withernam,  178* 

Averment,  176. 

Aversio,  176. 

Averum,  176. 

Avet,  176. 

Aviaticus,  176. 

Avizandum,  176. 

Avoidance,  176. 

Avoirdupois,  176. 

A  voucher,  ii.  646. 

Avow,  176. 


692 


INDEX. 


Avowant,  176. 
Avowee,  176. 
Avowry,  176. 
Avowterer,  177. 
Avowtry,  177. 
Avulsion,  177. 
Avunculus,  177. 
Await,  177. 
Award,  177,  178. 

requisites  of,  177,  2-4. 

form  of,  178,  5. 

eflFect  of,  178,  6,  7. 

enforcement  of,  178,  8. 

amendment,  178,  9. 

setting  aside,  178,  9* 

in  equity,  178,  lO. 
Away-going  crop,  178. 
Awm,  179. 
Ay  ant  cause,  179. 
Ayuntamiento,  179. 

B. 

B,  179. 

Back-bond,  179. 

Back-water,  179. 

Backadation,  179. 

Backberend,  179. 

Backing,  179. 

Backside,  179. 

Badge,  179. 

Baggage,  180. 

Bail,  180-182. 

kinds  of,  180,  2. 
requisites  of,  180,  3* 
when  given  or  required,  181, 
4,  5. 

in  criminal  cases,  181,  6« 

proceedings  in  giving,  181,  T. 

mitigation  of,  181,  S, 

liability  of,  181,  8. 

powers  of,  181,  9. 

in  Canadian  law,  182. 
Bail-bond.  182. 

form  of,  182,  1. 

requisites  of,  182,  2. 

performance    of  condition, 
182,  3,  4. 
Bail  court,  183. 
Bail  piece,  183. 
Bailable  action,  183. 
Bailable  process,  183. 
Bailee,  183. 

duties  of,  183,  2,  3. 

powers  of,  183,  4,  5. 
Bailie,  183. 
Bailiff,  183. 

in  account  render,  184. 

duties  of,  184,  2,  185,  3. 

rights  of,  184,  3. 
Bailiwick,  184. 
Baillew  de  fonds,  184. 
Bailment,  184-186. 

what  is  a,  184,  1. 

kinds  of,  184,  2. 

duties  of  bailee,  185,  3,  4. 

rights  of  bailee,  185,  5* 

in  general,  185,  6. 
Bailor,  186. 
Bair-man,  186. 
Bairn's  part,  186. 
Balajna,  186. 
Balance,  186. 
Balance-sheet,  186. 
Baldio,  186. 
B  alius,  186. 
Baliva,  186. 
Balivo  ainovendo,  186. 
Ballastagc,  186. 


Balnearii,  186. 
Ban,  186. 
Banality.  186. 
Banc,  186. 

Banci  narratores,  187. 
Bancus,  187. 
Bancus  regio,  187. 
Bandit,  187. 
Bane,  187. 
Banishment,  187. 
Bank,  187. 
Bank  account,  187. 
Bank  note,  187. 
Bankable,  188. 
Banker's  note,  188. 
Bankrupt,  188. 
Bankrupt  laws,  188. 
Bankruptcy,  188. 
Banleuca,  188. 
Banlieu,  188. 
Banneret,  188. 
Bannitus,  188. 
Bannum,  189. 
Bans  of  matrimony,  189. 
Bar,  189. 
Bar  fee,  189. 
Baragaria,  189. 
Barbicanage,  189. 
Bargain  and  sale,  189,  190. 

what  may  pass  by,  190,  2,  3. 

technical  words,  190,  2. 
Bargainee,  190. 
Bargainor,  190. 
Baro,  190. 
Baron,  190. 
Baron  et  femme,  190. 
Baronet,  190. 

Barons  of  the  cinque  ports,  190. 
Barons  of  the  exchequer,  190. 
Barony,  190. 
Barrator,  190. 
Barratry,  190. 

in  criminal  law,  190. 

in  maritime  law,  190. 
Barrel,  191. 
Barren  money,  191. 
Barrenness,  191. 
Barrister,  191. 
Barter,  191. 
Barton,  191. 
Bas  chevaliers,  191. 
Base  fee,  191. 
Base  services,  191. 
Basilica,  191. 
Bastard,  191,  192. 
Bastard  eigne,  192. 
Bastarda,  192. 
Bastardy,  192. 
Bastardy  process,  192. 
Baston,  192. 
Battel,  192. 
Battery,  192,  193. 

what  constitutes,  192,  2* 

justification  of,  192,  2-5. 

as  mode  of  correction,  192, 3. 

as  preserving  the  peace,  192, 
3. 

in  self-defence,  192,  4. 

in  defence  of  property,  193, 5. 
Batture,  19.3. 
Bawdy-house,  193. 
Bay,  193. 
Bayou,  193. 
Beaconage,  193. 
Beadle,  193. 
Bearer,  193. 
Bearers,  193. 
Bearing  date^  193. 
Beasts  of  the  chase,  193. 


Beasts  of  the  forest,  193. 

Beasts  of  the  warren,  193. 

Beaupleader,  W3. 

Bed,  194. 

Bedel,  194. 

Bedelary,  194. 

Bederepe,  194. 

Bees,  194. 

Beggar,  194. 

Behavior,  194. 

Behetria,  194. 

Behoof,  194. 

Belief,  194. 

Belligerent,  194. 

Below,  194. 

Bench,  194. 

Bench-warrant,  194. 

Bencher,  194. 

Benefice,  195. 

Beneficial  interest,  195. 

Beneficiary,  195. 

Beneficio  primo,  195. 

Beneficium,  195. 

Beneficium  clericale,  195. 

Beneficium  competentise,  195. 

Beneficium  divisionis,  195. 

Beneficium  ordinis,  195. 

Benefit  of  cession,  195. 

Benefit  of  clergy,  195. 

Benefit  of  discussion,  196,  483, 

Benefit  of  division,  196. 

Benefit  of  inventory,  196. 

Benevolence,  196. 

Bequeath,  196. 

Bequest,  196. 

Bercaria,  196. 

Bercarius,  196. 

Besaile,  196. 

Best  evidence,  196. 

Betrothment,  196. 

Better  equity,  197. 

Betterments,  197. 

Beyond  sea,  197. 

Bias,  197. 

Bid,  197. 

Bidden,  197. 

Biens,  197. 

Bigamus,  197. 

Bigamy,  197,  198. 

how  punishable,  197,  2. 

intent  not  required,  198,  3. 

second  marriage  requisite, 
198,  4. 
Bilan,  198. 

Bilateral  contract,  198. 
Biline,  198. 
Bilinguis,  198. 
Bill,  198,  199. 

in  chancery  practice,  198,  1- 
5. 

parts  of,  198,  2,  3. 
kinds  of,  198,  4,  H 

as  a  contract,  199,  5, 

in  legislation,  199,  6. 

in  mercantile  law,  199,  7. 
Bill  of  adventure,  199. 
Bill  of  advocation,  199. 
Bill  to  carry  out  decree,  199. 
Bill  of  certiorari,  199. 
Bill  chamber,  199. 
Bill  of  conformity,  199. 
Bill  of  costs,  199. 
Bill  of  credit,  199,  200. 
Bill  of  debt,  200. 
Bill  of  discovery.  200. 

use  of,  200,  2. 

requisites  to  obtain,  200,  3. 
Bill  of  exceptions,  290,  201. 

where  it  lies,  200,  2,  3. 


Bill  of  exceptions  : 

in  criminal  cases,  200, 3. 

when  to  be  taken,  201,  4, 

formal  proceedings,  201,  5, 

efiect  of,  201,  6. 
Bill  of  exchange,  201-203. 

what  is,  201,  1. 

kinds  of,  201,  2. 

of  the  parties,  202,  3. 

formal  requisites,  202,  4-8. 

occasional  stipulations,  203, 
9. 

acceptance  of,  48,  2-5. 

indorsement  of,  702. 

damages,  ii.  166, 

protest,  ii.  387. 
Bill  for  foreclosure,  203. 
Bill  of  gross  adventure,  203. 
Bill  of  health,  203. 
Bill  impeaching  decree,  203. 
Bill  of  indictment,  203. 
Bill  of  information,  203. 
Bill  of  interpleader,  203, 

must  state  what,  203,  2. 

prayer  of,  204,  3. 
Bill  of  lading,  204. 

form  of,  204,  «. 

assignable,  204,  3* 

binds  owners,  204,  4, 

construction  of,  204,  5. 

as  affecting  lien,  ii.  51,  21- 
38. 

Bill  to  marshal  assets,  204. 
Bill  to  marshal  securities,  204. 
Bill  in  nature  of  review,  204. 
Bill  in  nature  of  revivor,  205. 
Bill  in  nature  of  supplemental 

bill,  205. 
Bill  for  new  trial,  205. 
Bill  obligatoiy,  205. 
Bill  of  pains  and  penalties,  205. 
Bill  of  parcels,  205. 
Bill  of  particulars,  205. 
Bill  payable,  205. 
Bill  of  peace,  205. 
Bill  penal,  206. 

Bill  perpetuating  testimony,  206. 
Bill  of  privilege,  206. 
Bill  of  proof,  206. 
Bill  quia  timet,  206. 
Bill  receivable,  206. 
Bill  of  review,  206. 
Bill  of  revivor,  207. 
Bill  of  revivor  aud  supplement, 
207. 

Bill  of  sale,  207. 

Bill  of  sight,  207. 

Bill  single,  207. 

Bill  of  sufferance,  207. 

Bill  to  suspend  decree,  207. 

Bill  to  take  testimony,  etc.,  207. 

Billa  vera,  207. 

Billa  cassetur,  207. 

Billa  excambii,  207. 

Billa  exonerationis,  207. 

Billet  de  change,  207. 

Binding  out,  207. 

Binding  over,  208. 

Bipartite,  208. 

Birretum,  208. 

Birth,  208. 

Bisaile,  208. 

Bishop,  208. 

Bishop's  court,  208. 

Bishopric,  208. 

Bissextile,  208. 

Black  acre,  208. 

Black  act.  208. 

Black  book  of  the  admiralty,  208. 


INDEX. 


Black  book  of  the  exchequer,  208. 

Black  mail,  208. 

Black  rents,  208. 

Blada,  208. 

Blanche  firme,  208. 

Blanch  holding,  208. 

Blank,  208. 

Blank  bar,  209. 

Blank  indorsement,  209. 

Blasphemy,  209. 

Blind,  210. 

Blockade,  210. 

by  whom  to  be  declared,  210, 
2. 

must  be  made  known,  210, 
3,  4. 

how  violated,  210,  5. 

consequences  of  violation  of, 
210,6. 
Blood,  210. 
Bloodwit,  210. 
Boarder,  210. 
Board  of  supervisors,  211. 
Boat,  211. 
Boc,  211. 
Boc  horde,  211. 
Boc  land,  211. 
Body,  211. 
Body  corporate,  211. 
Bona,  211. 

Bona  confiscata,  211. 
Bona  fides,  211. 
Bona  forisfacta,  211. 
Bona  gestura,  211. 
Bona  gratia,  211. 
Bona  mobilia,  211 
Bona  notabilia,  211. 
Bona  patria,  211. 
Bona  peritura,  211. 
Bona  vacantia,  211. 
Bona  waviata,  212. 
Bond,  212. 

kinds  of,  212,  2. 

must  be  parties,  212,  3. 

must  be  written  and  sealed, 
212,  4. 

must  be  delivered,  212,  5. 

condition,  212, 6,  312, 4, 445. 

forfeiture,  212,  T. 

limitation,  212,  8. 
Bondage,  212-214. 
Bonis  non  amovendis,  214. 
Bono  et  malo,  214. 
Bonus,  214. 
Book,  214. 
Book-land,  214. 
Book  of  acts,  214. 
Book  of  adjournal,  214. 
Book  of  rates,  214. 
Book  of  responses,  214, 
Books,  214. 
Books  of  science,  214. 
Boon-days,  215. 
Booty,  215. 
Bordage,  215. 
Bordlands,  215. 
Bordlode,  215. 
Borg,  215. 
Borough,  215. 
Borough  courts,  215. 
Borough  English,  215. 
Borrower,  215. 
Boscage,  215. 
Boscus,  215. 
Bote,  215. 
Bottomry,  216-218. 

bond  given  by  whom,  216,  2. 

necessity  required,  216,  3. 

form  of  bond,  216,  4, 


Bottomry : 

effect  of,  217,  5-8. 
measure  of  damages,  217,  8. 
order  oi'  preference,  217,  9f 
lO. 

Bought  note,  218. 
Bound  bailiff,  218. 
Boundary,  218. 
Bounded  tree,  218. 
Bounty,  218. 
Bouwerye,  218. 
Bouwmaster,  218. 
Bovata  terras,  218. 
Bozero,  218. 
Branch,  218. 
Branding,  219. 
Branks,  219. 
Breach,  219. 
Breach  of  close,  219. 
Breach  of  covenant,  219. 
Breach  of  the  peace,  219. 
Breach  of  prison,  219. 
Breach  of  trust,  219. 
Breaking,  220. 
Breaking  bulk,  220. 
Breaking  doors,  220. 
Breath,  220. 
Brehon  law,  220. 
Brephotrophi,  221. 
Bretts  and  Scotts,  221. 
Brethwalda,  221. 
Breve,  221. 

Breve  innominatum,  221. 
Breve  nominatum,  221. 
Breve  originale,  221. 
Breve  de  recto,  221. 
Breve  testatum,  221. 
Brevet,  221. 
Brevia,  221. 

Brevia  anticipantia,  221. 
Brevia  de  cursu,  221. 
Brevia  formata,  221. 
Brevia  judicalia,  221. 
Brevia  magistralia,  222. 
Brevia  testata,  222. 
Breviarura  Alaricianum,  222. 
Breviate,  222. 

Brevibus  et  rotulis,  etc.,  222. 
Bribe,  222. 
Bribery,  222. 
Bribour,  222. 
Bridge,  222,  223. 

by  legislative  authority,  222, 
2,  3. 

dedication  of,  223,  4. 

repair  of,  223,  4,  5. 

tolls,  223,  6. 
Brief,  223. 
Brief  of  title,  224. 
Brigbote,  224. 

Bringing  money  into  court,  224, 

Brocage,  224. 

Brocarius,  224. 

Brocella,  224 

Brokerage,  224. 

Brokers,  224. 

Brothel,  224. 

Brother,  225. 

Brother-in-law,  225. 

Bruise,  225. 

Bubble  act,  225. 

Buggery,  ii.  529. 

Building,  225. 

Bulk,  225. 

Bull.  225. 

Bullion,  225. 

Bullion-fund,  226.  ' 

Buoy,  226. 

Burden  of  proof,  228. 


G94 


INDEX. 


Bureau,  226. 

Burgage,  226. 

Burgator,  226. 

Burgess,  226. 

Burgess  roll,  226. 

Burghmote,  226. 

Burglar,  226. 

Burglariously,  227. 

Burglary,  227. 

where  committed,  227,  2# 
when  committed,  227,  3. 
means  used,  227,  4, 
entry  required,  227,  5* 
intention,  227,  6. 

Burgomaster,  228. 

Burial,  228. 

Burlaw  courts,  228. 

Burning  in  the  hand,  228. 

Burying  ground,  228. 

Bushel,  228. 

Butlerage,  228. 

Butt,  228. 

Buttals,  228. 

Butts,  228. 

Butts  and  bounds,  228. 
Buying  titles,  228. 
By-bidding,  228. 
By-bill,  229. 
By  estimation,  229. 
By-laws,  229. 
By-law  men,  229. 
By-tbe-bye,  229. 

c. 

C,  229. 

Caballeria,  229. 
Cabinet,  229. 
Cacicazgos,  2.30. 
Cadastrw,  230. 
Cadere,  230. 
Cadet,  230. 
Cadi,  230. 
Caduca,  230. 
Caeterorum,  230. 
Calefagium,  230. 
Calendar,  230. 
California,  230-232. 

in  general,  230,  1-5. 

legislative  power,  231,  6,  T. 

executive  power,  232,  8. 

judicial  power,  232,  9-11. 
Calling  the  plaintiff,  232. 
Calling  to  the  bar,  232. 
Calumniae  jusjurandum,  232. 
Calumniators,  233. 
Cambio,  233. 
Cambipartia,  233. 
Cambiparticeps,  233. 
Cambist,  233. 
Cambium,  233. 
Camera  regis,  233. 
Camera  scaccarii,  233. 
Camera  stellata,  233. 
Caaxerarius,  233. 
Camino,  233. 
Campartum,  233. 
Campus,  233. 
Canada,  233-236. 

in  general,  233,  1-5, 

legislative  power,  234,  6,  T» 

executive  power,  234,  8,  9. 

judicial  power,  235,  9-20. 
in  Upper  Canada,  235, 

10-16. 
in  Lower  Canada/ 236, 
lT-20, 

Cnnal,  236. 
Cancellaria,  237. 


Cancellarius,  237. 
Cancellation,  237. 
Candidate,  237. 
Canon,  237. 
Canon  law,  237. 
Canonry,  238. 
Cantred,  238. 
Canvass,  238. 
Capacity,  238. 
Capax  doli,  238. 
Cape,  238. 
Capers,  238. 
Capias,  238. 

Capias  ad  audiendum,  etc.,  238. 

Capias  ad  computandum,  238. 

Capias  pro  fine,  239. 

Capias  ad  respondendum,  239. 

Capias  ad  satisfaciendum,  239. 

Capias  utligatum,  239. 

Capita,  239. 

Capital  crime,  240. 

Capital  punishment,  240. 

Capital  stock,  240. 

Capitalis  justiciarius,  240. 

Capitaneus,  240. 

Capitation,  240. 

Capite,  239,  240. 

Capitula,  240. 

Capitula  coronis,  240. 

Capitula  itineris,  240. 

Capitula  de  Judseis,  240. 

Capitulary,  240. 

Capitulation,  240. 

Capitur  pro  fine,  239. 

Captain,  240. 

Captation,  240, 

Caption,  240. 

Captive,  241. 

Captor,  241. 

Capture,  241. 

Caput,  241. 

Caput  lupinum,  242. 

Caputagium,  242. 

Carat,  242. 

Carcan,  242. 

Cardinal,  242. 

Cards,  242. 

Careta,  242. 

Cargo,  242. 

Carnal  knowledge,  242. 
Carnally  knew,  242. 
Carrier,  242,  299. 
Carrying  away,  242. 
Cart,  242. 
Cart-boat,  242. 
Carta,  242. 
Carte  blanche,  243. 
Cartel,  243. 
Cartmen,  243. 
Carucage,  243. 
Carueata,  243. 
Case,  243,  244. 

action  lies  for  what,  243,  2- 
4. 

eflfect  of  intention,  244,  5. 
plea  and  judgment  in,  244, 
6, 

Case  stated,  244. 
Cash,  245. 
Cash-book,  245. 
Cashier,  245. 
Cassare,  245. 
Cassation,  245. 
Cassetur  breve,  245. 
Castellain,  245. 
Castellorum  operatio,  245. 
Castigatory,  245. 
Castration,  245. 
Casu  proviso,  245. 


Casual  ejector,  245. 

Casualties  of  superiority,  246. 

Casualty,  246. 

Casus  foederis,  246. 

Casus  fortuitus,  246. 

Casus  major,  246. 

Casus  omissus,  246. 

Catalla  otiosa,  246. 

Catallum,  246. 

Cataneus,  246. 

Catching  bargain,  246. 

Catchpole,  246. 

Cater  cousin,  246. 

Cathedral,  246. 

Catholic  creditor,  246. 

Catholic  emancipation  act,  246. 

Cattle  gate,  246. 

Causa,  246. 

Causa  jactitationis  maritagii,  247- 

Causa  matrimonii  prselocuti,  247. 

Causa  proxima,  etc.,  247,  ii.  119. 

Causa  rei,  247. 

Causare,  247. 

Causator,  247. 

Cause,  247. 

Cause  of  action,  247. 

Cautio,  247. 

Cautio  fidejussoria,  247. 
Cautio  pignoratitia,  247. 
Cautio  pro  expensis,  247. 
Cautio  usufructuaria,  247. 
Caution  juratory,  247. 
Cautioner,  248. 
Caveat,  248,  ii.  299,  9. 
Caveat  emptor,  248,  ii.  119. 
Caveator,  248. 
Cayagium,  248. 
Ceapgild,  248. 
Cede,  248. 
Cedent,  248. 
Cedula,  248. 

Celebration  of  marriage,  248 

Cenegild,  248. 

Cenninga,  249. 

Ccns,  249. 

Censaria,  249. 

Census,  249. 

Cent,  249. 

Centesima,  249. 

Central  criminal  court,  249. 

Centumviri,  249. 

Century,  249. 

Ceorl,  249. 

Cepi,  249. 

Cepi  corpus,  250. 

Cepit,  250. 

Cepit  et  abduxit,  250, 

Cepit  et  asportavit,  250. 

Cepit  in  alio  loco,  250. 

Cert  money,  250. 

Certainty,  250. 

in  contracts,  250,  1,  2 
in  pleading,  250,  3,  4. 

Certificate,  250. 

Certificate  of  assize,  251. 

Certificate  of  costs,  251,  76\ 

Certificate  of  registry,  251. 

Certification,  251. 

Certified  check,  261. 

Certiorari,  251. 

lies  for  what,  251,  2,  4 
grant  is  discretionary,  2^2, 
5. 

judgment  is  what,  252,  6> 
Cervisarii,  252. 
Cervisia,  252. 
Cesionario,  252. 
Cessavit  per  biennium,  252. 
Cessct  executio,  252. 


INDEX. 


Cesset  processus,  252. 
Ces?io  boiiorum,  252. 
Cession.  252. 
Cessionary,  252. 
Cestui  que  trust,  252. 
Cestui  que  use,  253. 
Cestui  que  vie,  253. 
Chacea,  253. 
Chafewax,  253. 
Chaflfers,  253. 
Chaldron,  253. 
Challencje,  253. 

kinds  of,  253,  3-5. 

causes  for,  254,  6. 

who  may  challenge,  254,  T. 

manner  of  making,  254,  8. 
Chamber,  254. 
Chamber  of  accounts,  254. 
Chamber  of  commerce,  254. 
Chambers,  254. 
Champart,  254. 
Champertor,  254. 
Champerty,  254. 
Champion,  255. 
Chance,  51,  255. 
Chance-medley,  255. 
Chancellor,  255. 
Chancellor's  court,  255. 
Chancellor  of  the  exchequer,  255. 
Chancery,  376. 
Chantry,  255. 
Chapelry,  255. 
Chapels,  255. 
Chapter,  255. 
Chari^jter,  256. 
Charge,  257. 

in  contracts,  257,  2. 

in  devises,  257,  3. 

in  equity  pleading,  257,  4. 

in  practice,  257,  5-1, 
Charge  des  affaires,  258. 
Charge  to  enter  heir,  258. 
Charges,  258. 
Charitable  uses,  258. 
Charities,  258. 

embrace  what,  258,  2. 

controlled  by  statute,  258,  3, 
4. 

Charta.  259. 
Charta  de  foresta,  259. 
Chartel,  259. 
Charter,  259. 
Charter-land,  259. 
Charter-party,  259. 
Chartis  reddendis,  260. 
Chase,  260. 
Chastity,  260. 
Chattel,  260. 
Chattel  interest,  260. 
Chattel  mortgage,  260. 
Chaud-medley,  260. 
Cheat,  260. 

what  constitutes,  261,  2. 

indictable,  261,  3. 

word  spoken  not  actionable, 
261,  4. 
Check,  261,  262. 

use  of,  261,  2. 

requisites  of,  261,  3. 

qualities  of,  262,  3. 
Check-book,  262. 
Chemicr,  262. 
Chemis,  262. 
Chevage.  262. 
Chevantia,  262. 
Chevisance,  262. 
Chickasaw  Nation,  262. 
Chief,  263. 
Chief  baron,  263. 


Chief  clerk,  etc.,  263. 
Chief  justice,  263. 
Chief  justiciar,  263. 
Chief  lord,  263. 
Chief  pledge,  263. 
Child,  263. 

custody  of,  in  case  of  divorce, 
495,  9. 
Childwit,  264. 
Chiltern  Hundreds,  264. 
Chiti.in,  262. 
Chiminage,  264. 
Chiminus,  264. 
Chinese  interest,  264. 
Chippingavel,  264. 
Chirgemote,  264. 
Chirograph,  264. 
Chivalry,  tenure  by,  264. 
Choctaw  Nation,  264. 
Chose,  265. 
Chose  in  action,  265. 
Christianity,  266. 
Church,  266. 
Church-rate,  267. 
Church-warden,  267. 
Churl,  249. 
Cinque  ports,  267. 
Circuit,  267. 
Circuit  courts,  267. 
Circuity  of  action,  267. 
Circumduction,  267. 
Circumstances,  267. 
Circumstantial  evidence,  548. 
Circumstantibus,  ii.  577. 
Circumvention,  268. 
Citacion,  268. 

Citatio  ad  reassumendam,etc.,268. 
Citation,  268. 

Citation  of  authorities,  268-275. 

rules  for,  268,  269. 

table  of,  269-275. 
Citizen,  275. 
City,  275. 
Civil,  275. 
Civil  action,  276. 
Civil  commotion,  276. 
Civil  death,  276. 
Civil  law,  276. 

collections  of,  276,  2-8. 

history  of,  277,  9. 

prevalence  of,  277,  lO. 
Civil  list,  277. 
Civil  obligation,  277. 
Civil  officer,  277. 
Civil  remedy,  277. 
Civilian,  278. 
Civiliter,  278. 
Civiliter  mortuus,  278. 
Claim,  278. 

Claim  of  conusance,  278,  287. 

Claimant,  278. 

Clamor,  278. 

Clare  constat,  278. 

Clarendon,  constitutions  of,  278. 

Class.  278. 

Clause,  278. 

Clausum,  278. 

Clausum  fregit,  278. 

Clearance,  279. 

Clearing-house,  279. 

Clementines.  280. 

Clergy,  280. 

Clergyable,  280. 

Clerical  error,  280. 

Clericus,  280. 

Clerk,  280. 

in  commercial  law,  280. 

in  ecclesiastical  law,  280. 

in  offices,  280. 


Clerkship,  280. 
Client,  280. 
Close,  280. 
Close  copies,  280. 
Close  rolls,  280. 
Close  writs,  280. 
Code,  2.S  1-285. 

in  general,  281,  1-4. 

Louisiana,  282,  5. 

Massachusetts,  282,  6. 

New  York,  2S2,  T-9. 

other  states,  "82,  10. 

Austrian,  2S2,  11. 

Consolato  del  mare,  283, 12. 

French  codes,  283,  13-15. 

Gregorian,  283,  1(». 

Ilanse  towns,  28.3,  16. 

Henri,  283,  IT. 

Hermogenian,  284,  IT. 

Institutes  of  Menu.  284,  IT. 

Justinian,  284,  16  21. 

Livingston's,  284,  '12, 

Mosaic,  284,  23. 

Ordonnance  de  1a  marine, 
284,  21. 

Oleron,  »aws  of,  2P5  25. 

Ostrogothic,  285,  25, 

Prussian,  285,  25. 

Rhodian,  2S5,  26. 

Thcodosian,  285,  26. 

Twelve  tab'er,  285,  2T. 

Visigothic,  285,  2T. 

Wisbuy,  laws  of,  285,  28 
Code  civil,  282,  5.  28.3,  13. 
Code  de  Commerce,  283,  14. 
Code    d'InstructioQ  criminella, 

283,  15. 
Code  Henri,  283,  IT. 
Code  de  Procedure  civil,  283, 14. 
Code  penal,  283,  15. 
Codex,  285. 
Codicil,  285. 

in  general,  285,  I. 

is  what,  286,  2. 

effect  of,  286,  3. 

peculiar  forms  of,  286,  4. 

in  Louisiana,  286,  5. 
Coemptio,  286. 
Coercion,  286. 

kinds  of,  286,  1. 

effect  of,  286,  2. 

presumptive,  286,  3,  4. 
Cofradia,  287. 
Cognates,  287. 
Cognati,  287. 
Cognation,  287. 
Cognisance,  287. 
Cognitionibus  admittendis,  287. 
Cognizance,  287. 

of  pleas,  287. 

claim  of,  278,  287. 

in  pleading,  287. 
Cognomen,  287. 
Cognovit  actionem,  288. 
Cohabit,  288. 
Coif,  288. 

Coke's  Institutes,  326,  2. 
Colibertus,  288. 
Collateral,  288. 
Collateral  assurance,  288. 
Collateral  consanguinity,  288. 
Collateral  estoppel,  288. 
Collateral  facts,  288. 
Collateral  issue,  288. 
Collateral  kinsmen,  288. 
Collateral  limitation,  288. 
Collateral  security,  288, 
Collateral  warranty,  288. 
CoUaterales  et  socii,  289. 


INDEX. 


Collatio  boaorum,  289. 
Collation,  289. 

in  civil  law,  289. 

in  ecclesiastical  law,  289. 

in  practice,  289. 
Collector.  289. 

Collector  of  the  customs,  289. 
College,  289. 
Collegium,  289. 
Collision,  289-291. 

kinds  of,  289,  2,  3. 

who  liable  for,  290, 4,  291, 8. 

excuses  for,  290,  5,  6,  291, 
8,  lO. 

is  insurable  peril,  290,  T. 

remedy  in  admiralty,  291,  9. 

damages  how  laid,  291,  11. 

incasesof  tow-boats,  291, 11. 
CoUigastrium,  291. 
Collocation,  292. 
Colloquium,  292. 
Collusion,  292. 
Colonial  laws,  292. 
Colonus,  292. 
Colony,  292. 
Color,  292,  293. 

in  pleading,  292. 

personal  relations,  293. 
Color  of  office,  293. 
Colorado,  293. 
Colore  officii,  293. 
Colt,  293. 
Combat,  ')93. 
Combination,  293. 
CombustYj  domorum,  293. 
Comes,  293. 
Comes,  293. 
Comitas,  293. 
Comitatus,  293. 
Comites,j294. 
Comitia,'294. 
Comity,  294. 
Commandite,  294. 
Commencement  of  declaration, 
294. 

Commenda,  294. 
Commendum,  294. 

in  ecclesiastical  law,  294. 

in  Louisiana,  294. 
Commendatores,  294. 
Commendatus,  294. 
Commerce,  294. 
Commercia  belli,  295. 
Commercial  law,  295. 
Commissaria  lex,  295. 
Commissary,  295. 
Commissary  court,  295. 
Commission,  295. 
Commission  of  assize,  295. 
Commission  of  lunacy,  296. 
Commission  of  rebellion,  296. 
Commissioner  of  patents,  296, 
Commissioners  of  bail,  296. 
Commissioners  of  highways,  296. 
Commissioners  of  sewers,  296. 
Commissions,  296. 
Commitment,  296. 
Committee,  297. 
Committitur  piece,  297. 
Commixtion,  297. 
Commodate,  297. 
Commodato,  297. 
Commodatuifi,  297. 
Common,  29r,  298. 

kinds,  297,  2-5. 

appendant,  298,  6. 

appurtenant,  298,  7. 

because  of  vicinage,  298,  8. 

in  gross,  298,  9. 


Common  assurances,  298. 
Common  bail,  298. 
Common  bar,  298. 
Common  barratry,  299. 
Common  bench,  299. 
Common  carriers,  299-301. 

who  are,  299,  2. 

responsible  for  what,  299,  3. 

must  carry  all  goods,  299,  4-. 

may  qualify  liability,  299,  5. 

responsible  for  servants'  act, 
299,  6,  300,  9. 

beginning  and  end  of  respon- 
sibility, 300,  T. 

on  continuous  lines,  300,  8. 

has  insurable  interest,  300, 
lO. 

Common  carriers  of  passengers, 

301-303. 
liability  to  carry  all  persons, 

301,  2. 
responsible  for  baggage,  301, 

3. 

what  care  required,  301,  4. 

passengers  must  not  be  care- 
less, 301,  5. 

liable  over  whole  route  ad- 
vertised, 301,  6,  T. 

may  establish  regulations, 
392,  8. 

accident  prima  facie  evidence 
of  neglect,  302,  9. 

passenger  acts,  302,  10-12. 
Common  council,  303. 
Common  counts,  303. 
Common  fishery,  303. 
Common  highway,  303. 
Common  informer,  303. 
Common  intent,  303. 
Common  law,  303,  304. 
Common  nuisance,  304. 
Common  pleas,  304. 
Common  recovery,  305. 
Common  schools,  305. 
Common  scold,  305. 
Common  seal,  305. 
Common  sense,  305. 
Common  J.erjeant,  305. 
Common  traverse,  305. 
Common  vouchee,  305. 
Commonalty,  305. 
Commoner,  305. 
Commons,  305. 
Commonwealth,  305. 
Commorant,  305. 
Commorientes,  305. 
Communi  dividendo,  305. 
Communication,  305. 
Communings,  305. 
Communio  bonorum,  305. 
Community,  305. 
Commutation,  306. 
Commutative  contract,  306. 
Compact,  306. 
Companions,  306. 
Company,  306. 

Comparison  of  handwriting,  306. 
Compatibility,  307. 
Compensacion,  307. 
Compensatio  criminis,  307. 
Compensation,  307. 

in  chancery  practice,  307. 

in  civil  law.  307. 
Comperuit  ad  diem,  307. 
Competency,  307. 
Competent  witness,  307. 
Compilation,  307. 
Complainant,  308. 
Complaint,  308. 


Compos  mentis,  308. 
Composition,  308. 
Composition  of  matter,  308. 
Compound  interest,  30S. 
Compounder,  308. 
Compounding  a  felony,  308. 
Compra  y  venta,  308. 
Comprint,  308. 
Compririgui,  308. 
Compromisarius,  308. 
Compromise,  308. 
Comptroller,  308,  309. 
Compulsion,  309. 
Compurgator,  309. 
Computus,  309, 
Concealers,  309. 
Concealment,  309. 
Concessi,  310. 
Concessimus,  310. 
Concession,  310. 
Concessor,  310. 
Concilium,  310,  332. 
Concilium  regis,  310. 
Conclusion,  310. 

in  pleading,  310. 
of  pleas,  310. 
in  practice,  310. 
in  remedies,  310. 
Conclusion  to  the  country,  310, 
Conclusive  evidence,  310. 
Conclusive  presumption,  310, 
Concord,  310. 
Concordat,  310. 
Concubinage,  311. 
Concubinatus,  311. 
Concubine,  311. 
Concur,  311. 
Concurrence,  311. 
Concurrent,  311. 
Concussion,  311.  ^ 
Condedit,  311.  if 
Condemn,  311. 
Condemnation,  311. 
Condictio,  311. 
Condictio  ex  lege,  311. 
Condictio  indebitati,  311. 
Condictio  rei  furtivae,  312. 
Condictio  sine  causa,  312. 
Condition,  312-315. 

in  civil  law,  312,  1-3. 

kinds  of,  312,  2,  3. 
at  common  law,  312-315. 
in  general,  312,  3,  4, 
kinds  of,  312,  5, 
creation  of,  313,  6-8. 
construction  of,  314,  9. 
performance,314,10,ll. 
effect  of,  314,  12,  13. 
how  far  assignable,  3 16, 
14. 

in  a  bond,  212,  6. 
Conditional  fee,  315. 
Conditional  limitation,  315. 
Conditional  stipulation,  315. 
Conditions  of  sale,  315. 
Condonacion,  315. 
Condonation,  315, 
Conductio,  316. 
Cone  and  key,  316. 
Confectio,  316. 
Confederacy,  316. 

in  equity  pleading,  316. 

in  international  law,  316 
Confederation,  316. 
Conference,  316. 
Confession,  316,  317. 

kinds  of,  316,  1. 

voluntary,  admissible  in  evi- 
dence, 316,  2, 


INDEX. 


697 


Confession : 

though  questions  asked, 

317,  3. 
though  under  oath,  317, 

4, 

not  admissible,  when,  317,  5. 

must  be  taken  all  together, 
317,  6. 

weight  of,  317.  6. 
Confession  and  avoidance,  317. 
Confessor,  318. 

Confidential  communications,3l8. 

Confirmatio,  319. 

Confirmatio  chartarum,  319. 

Confirmation,  319. 

Confirmere,  319. 

Confirmor,  319. 

Confiscare,  319. 

Confiscate,  319. 

Conflict  of  laws,  320-323. 

general  rules,  320,  2-5. 

real  estate,  320,  6,  ii.  38. 

personal  property,  320,  T-9. 
bills  of  exchange,  320,  T. 
chattel  mortgages,  321, 
8. 

marriage,  321,  9« 
particular  personal  relations, 
324,  10-12. 
executors  and  adminis- 
trators, 321,  lO,  11. 
guardians,  321,  12. 
receivers,  321,  12. 
sureties,  321,  '2. 
judgments  and  decrees,  321, 
13-15. 
foreign  judgments,  322, 
14. 

judgments     of  other 
states,  322,  15. 

assignments   and  transfers, 
322,  16,  IT. 

discharges  by  foreign  law, 
322,  IT. 

foreign  law,  323,  18. 
Confrontation,  323. 
Confusio,  323. 
Confusion  of  goods,  323. 
Confusion  of  rights,  323. 
Conge,  323. 
Conge  d'accorder,  323. 
Conge  de  emparler,  323. 
Conge  d'eslire,  323. 
Congeable,  323. 
Congregation,  323. 
Congress,  323,  324. 
Conjectio  causae,  324. 
Conjecture,  325. 
Conjoint,  325. 
Conjugal  rights,  325. 
Conjunctive,  325. 
Conjuration,  325. 
Connecticut,  325,  326. 

legislative  power,  325,  4. 

executive  power,  325,  5. 

judicial  power,  325,  6,  T. 
Connivance,  326. 
Connoisement,  326. 
Connubium,  326. 
Conocimiento,  326. 
Conquest,  326. 

in  feudal  law,  326. 

in  international  law,  326. 

in  Scotch  law,  326. 
Conquets,  326. 
Consanguineous  frater,  327. 
Consanguinitv,  327. 

kinds  of,'32r,  1. 

how  reckoned,  327,  2-4. 


Consanguinity : 

table  of,  327,  2. 
Consensual  contract,  328. 
Consent,  328. 
Consent  rule,  328. 
Consequential  damages,  328. 
Conservator,  328. 
Conservator  of  the  peace,  328. 
Conservator  trucis,  329. 
Consideration,  329-332. 

kinds  of,  329,  1. 

required  to  support  a  con- 
tract, 329,  2-4. 
what  is  sufficient,  330, 
5-8. 

mutual   promises,  331, 

«J,  lO. 
must  not  be  illegal,  331, 

11. 

must  not  be  impossible, 

331,  12. 

must  not  be  executed, 

332,  13. 

failure  of,  332,  12. 
Consideratum   est  per  curiam, 

332. 
Consign,  332. 
Consignatio,  332. 
Consignee,  332. 
Consignment,  332. 
Consignor,  332. 
Consiliarius,  332. 
Consilium,  332. 
Consimili  casu,  333. 
Consistory,  333. 
Consistory  court,  333. 
Consolato  del  mare,  283, 12,  333. 
Consolidated  fund,  333. 
Consolidation,  333. 
Consolidation  rule,  333. 
Consortium,  333. 
Conspiracy,  333,  334. 
Conspirators.  334. 
Constable,  334,  335. 
Constable  of  a  castle,  335. 
Constable  of  England,  335. 
Constable  of  Scotland,  335. 
Constable  of  the  Exchequer,  335. 
Constablewick,  335. 
Constablearius,  335. 
Constat,  335. 
Constituent,  335. 
Constituere,  335. 
Constituted  authorities,  335. 
Constitutio,  335. 
Constitution,  335,  336. 
Constitution  of  the  United  States, 

336,  337. 
Constitutional,  337. 
Constitutor,  337. 
Constitutum,  337. 
Constraint,  337. 
Construction,  337-350. 

rules  of,  337,  1. 

of    particular    words  and 
phrases,  338-350. 
Construction  of  policy,  350. 
Constructive,  350. 
Consuetudinarius,  350. 
Consuetudinary  law,  350. 
Consuetudines  feudorum,  350. 
Consuetudo,  350. 
Consul,  350,  351. 
Consultation,  351. 
Consummate,  351. 
Contagious  disorders,  351. 
Contango,  352. 

Contemplation    of  bankruptcy, 
352. 


Contempt,  352. 

Contentious  jurisdiction,  352. 
Contents  unknown,  352. 
Contestatio  litis,  352. 
Context,  352. 

Contingency  with  double  aspeoi. 

353. 

Contingent  damages,  353. 
Contingent  estate.  353. 
Contingent  legacy,  353. 
Contingent  remainder,  353. 
Contingent  use,  353. 
Continuance,  353,  354. 
Continuando,  354. 
Continuing  consideration,  354. 
Continuing  damages,  421. 
Contra,  354. 

Contra  bonos  mores,  354. 
Contra  formam  statuti,  354. 
Contra  pacem,  354. 
Contraband  of  war,  354. 
Contract,  355-358. 

defined,  355,  2-T. 

kinds  of,  356,  8-16. 

qualities  of,  357,  IT. 

construction  of,  357,  18. 

assent  required,  358,  18. 

remedy  for  breach,  358,  18. 

abatement  of,  19,  3. 
Contraction,  358. 
Contractor,  358. 
Contradict,  358. 
Contraescritura,  358. 
Contrafactio,  358. 
Contrarotulator,  358. 
Contrarotulator  pipae,  358. 
Contravention,  369. 
Contre-maitre,  359. 
Contrectatio,  359. 
Contrefafon,  359. 
Contribution,  359. 
Controller,  359. 
Controver,  359. 
Controversy,  359. 
Contubernium,  359. 
Contumacy,  359. 
Contumax,  359. 
Contusion,  359. 
Conusance,  claim  of,  278. 
Conusant,  359. 
Conusor,  359. 
Convene,  359. 
Conventicle,  360. 
Conventio,  360. 
Convention,  360. 
Conventional,  360. 
Conventus,  360. 
Conventus  juridicus,  360. 
Conversant,  360. 
Conversion,  360.  361. 

in  equitv,  360. 

at  law.  360,  361. 

kinds  of,  360,  2. 
what  constitutes,  360,  2, 
intention  required,  361, 
3. 

refusal  required,  361,  4 
Conveyance,  361. 
Conveyance  of  vessels,  3C1,  362 
Conveyancer,  362. 
Conveyancing,  362. 
Convicium,  362, 
Convict,  362. 
Conviction,  ."62. 

requisites  of,  362,  2. 

effects  of,  362,  3. 
Convocation,  363. 
Convoy.  363. 
Co-obligor,  363. 


698 


INDEX. 


Cool  blood,  363. 
ilooling  time,  363. 
Coparcenary,  estates  in,  363. 
Coparceners,  363. 
Copartner,  363. 
Copartnership,  363. 
Copulative  term,  363. 
Copy,  363. 
Copyhold,  363. 
Copyholder,  363. 
Copyright,  363-366. 

who  may  secure,  364,  2. 

formalities  required,  364,  3. 

remedy  for  infringement,  365, 
4-6. 

assignable,  366,  T. 

right  of  acting,  etc.,  366,  7, 
Coraagium,  366. 
Coram  ipso  rege,  366. 
Coram  nobis,  366. 
Coram  non  judice,  366. 
Coram  vobis,  366. 
Cord,  366. 
Corn,  366. 
Corn-laws,  366. 
Cornage,  366. 
Cornet,  366. 
Corody,  366. 
Coronator,  366. 
Coroner,  366. 
Corporal,  367. 
Corporal  oath,  367. 
Corporal  touch,  367. 
Corporation,  368. 

as  plea  in  abatement,  20,  lO. 
Corporator,  368. 
Corporeal  hereditaments,  368. 
Corporeal  property,  368. 
Corpse,  368. 
Corpus,  368. 
Corpus  comitatus,  368. 
Corpus  cum  causa,  654. 
Corpus  delicti,  368. 
Corpus  juris  canonici,  369. 
Corpus  juris  civilis,  369. 
Correction,  369. 
Corregidor,  369. 
Correi,  369. 
Correspondence,  369. 
Corruption,  369. 
Corruption  of  blood,  369. 
Corse-present,  369. 
Corsned.  369. 
Cortes,  370. 
Corve(?,  370. 
Coshering.  370. 
Cosening,  370. 
Cosinage,  370. 
Costs,  370. 

Costs  of  the  day,  370. 
Costs  de  incremento,  370. 
Coterelli,  371. 
Cotcrellus,  371. 
Cotland,  371. 
Cotsetus,  371. 
Cottage,  371. 
Couch  ant,  371. 
Council,  371. 
Counsel,  371. 
Counsellor  at  law,  371. 
Count,  371. 
Counter,  372. 
Counter  affidavit,  372. 
Counter-bond,  372. 
Counter  letter,  372. 
Counter  seciirity,  372. 
Counterfeit,  372. 
Countermand,  372. 
Counterpart,  ?.72. 


Counterplea,  372. 
County,  372. 

County  commissioners,  372. 

County  corporate,  372. 

County  court,  373. 

County  palatine,  373. 

Coupons,  373. 

Cour  de  cassation,  373. 

Course,  373. 

Course  of  trade,  373. 

Course  of  the  voyage,  373. 

Court,  373,  374. 

Court  of  a.dmiralty,87,374, 398,400. 

Court  of  ancient  demesne,  374. 

Court  of  appeals,  374. 

Court  of  arches,  374. 

Courts  of  assize  and  nisi  prius,375. 

Court  of  attachments,  375. 

Court  of  augmentation.  375. 

Court  of  bankruptcy,  376. 

Court  baron,  376. 

Court  of  chancery,  376,  377. 

in  American  law,  376,  1,  3. 

in  English  law,  376,  3-5. 
ordinary  jurisdiction, 

376,  3. 

statutory  jurisdiction, 

377,  3. 

specially  delegated  ju- 
risdiction, 377,  3. 
extraordinary  jurisdic- 
tion, 377,  4. 
inferior  courts  of,  377,  5. 
Court  of  chivalry,  377. 
Courts  Christian,  377,  517. 
Courts  of  the  cinque  ports,  377. 
Court  of  claims,  377,  401,  402. 
Court  of  clerk  of  ma|ket,  377. 
Court  of  common  pleas,  377,  378. 
in  American  law,  377. 
in  English  law,  377,  378. 
Courts  of  conscience,  378. 
Court  of  convocation,  378. 
Court  of  the  coroner,  378. 
Court  for  correction  of  errors,  378, 
ii.  535. 

Courts  of  counties  palatine,  378. 
Court  for  divorce,  etc.,  378. 
Court  of  duchy  of  Lancaster,  378. 
Court  of  equity,  379. 
Court  of  exchequer,  379. 
Court  of  exchequer  chamber,  379. 
Court  of  faculties,  379. 
Court  of  general  quarter  sessions, 
379. 

Court  of  hustings,  380. 
Court  for  trial  of  impeachments, 
380. 

Court  for  relief  of  insolvent  debt- 
ors, 380. 
Court  of  inquiry,  380. 
Court  of  justice  seat,  380. 
Court  of  justiciary,  380. 
Court  of  king's  bench,  380,  381. 
Court  leet.  381. 

Court  of  lord  high  steward,  381. 
Court  of  lord  high  steward  of 

universities,  382. 
Court  of  steward  of  king's  house- 
hold, 382. 
Court  of  magistrates  and  free- 
holders, 382. 
Court  of  the  Marshalsea,  382. 
Court-martial,  382. 
kinds  of,  382,  2. 
how  assembled,  382,  3. 
jurisdiction,  382,  4, 
record  must  show  jurisdic- 
tion, 383,  5. 


Court  of  nisi  prius,  383. 
Court  of  ordinary,  383. 
Court  of  orphans,  383. 
Court  of  oyer  and  terminer,  SS.'l. 
Court  of  peculiars,  383. 
Court  of  piepoudre,  383,  384. 
Court  of  policies  of  insurance,384. 
Court  of  probate,  384. 
Court  of  quarter  sessions,  384. 
Court  of  queen's  bench,  380,  381, 
384. 

Court  of  record,  384. 

Court  of  regard,  385. 

Court  of  requests,  385. 

Court  of  session,  385. 

Court  of  sessions,  385. 

Court  of  star-chamber,  385. 

Court  of  steward  and  marshal, 

382,  385. 
Court  of  swein-mote,  385. 
Courts  of  the  United  States,386- 
402. 

derivation  of  authority,  386, 
1-3. 

jurisdiction  generally,  "386, 

3-12. 
organization,  386,  5. 
senate  as  court  of  impeach- 
ment, 387,  14-lT. 
jurisdiction.  388,16,  IT. 
supreme  court,  388,  18-30. 
organization,  388,  18. 
jurisdiction,   388,  19- 
30. 

circuit  court,  390,  31-66. 
organization,  390,  31- 
40. 

jurisdiction,   393,  41- 
66. 

civil,  393,  41-64. 
original,  393,  41- 
56. 

as   to  parties, 
394,  48-56. 
appellate,  396,  5T- 
62. 

equitable,  397,  62- 
64. 

criminal,  397,  65. 

of  District  of  Columbia, 

397,  66. 
district  court,  397,  66-94. 
organization,  398,  6T, 

68. 

jurisdiction,398,69-94. 
admiralty,  398, 69- 
89. 

bankrupt,  188,  2, 

400,  89. 
equitable,  400,  90- 

93. 

criminal,  401,  93, 
94. 

as  circuit  court,  390, 
32-34. 

territorial  courts,  401,  95. 

supreme  court  of  District  of 
Columbia,  401,  96. 

court  of  claims,  401,  9T. 
Courts  of  the  two  universities,402. 
Court  of  wards  and  liveries,  402, 
Courtesy,  402,  416. 
Cousin,  402. 
Coustum,  402. 
Coustumicr,  402. 
Couthutlaugh,  402. 
Covenant,  402-406. 

contracts,  402-405. 

kinds  of,  402,  2-12. 


INDEX. 


699 


Covenant : 

parties,  assent,  nnrl  purpose 

required,  404.  Vi, 
may  be  created,  how,  404, 13. 
in  practice,  405,  406. 

action  lies,  when,  405, 
14. 

declaration,  405,  15. 

damages  in,  406. 

judgment  in,  406,  15. 
Covenant  to  convej',  406. 
Covenant  for  further  assurance, 
406. 

Covenant  against  incumbrances, 
406. 

Covenant  not  to  sue,  406. 
Covenant  for  quiet  enjoyment, 
406. 

Covenant  of  right  to  convey,  407. 
Covenant  of  seisin,  407. 
Covenant  to  sta^id  seised  to  uses, 
407. 

Covenant  of  warranty,  407,  408. 

form  of,  408,  2, 

force  of,  408,  3,  4. 

breach  of,  408,  4,  5. 
Covenants  performed,  408. 
Covenantee,  408. 
Covenantor,  408. 
Coventry  act,  408. 
Covert  baron,  409. 
Coverture,  409. 

as  plea  in  abatement,  20, 11, 
12. 

Covin,  409. 
Cow,  409. 
Cowardice,  409. 
Cranage,  409. 
Crastinum,  409. 
Crave,  409. 
Craven,  409. 
Creance,  409. 
Credentials,  409. 
Credibility,  409. 
Credible  witness,  409. 
Credit,  409. 
Creditor,  409. 
Creditors'  bill,  409. 
Creek,  410. 

Crementum  comitatus,  410. 

Crepusculum,  410. 

Cretio,  410. 

Crier,  410. 

Crim.  con.,  410. 

Crime,  410,  411. 

kinds  of,  410,  2,  3. 
degrees  of,  411,  4, 
classification,  411,  5. 

Crime  against  nature,  411. 

Crimen  f;(l?i,  411. 

Crimen  lacsae  majestatis,  411. 

Criminal  conversation,  410,  411. 

Criminal  law,  411,  412. 

Criminal  letters,  412. 

<3riminaliter,  412. 

Criminate,  412. 

Criticism,  413. 

Croft,  413. 

Crop,  413. 

Cropper,  413. 

Cross,  413. 

Cross-action,  413. 

Cross-bill,  413. 

Cross-examination,  413. 

Cross-remainder,  414. 

Crown-law,  414. 

Crown  office,  414. 

Crown  side,  414. 

Cruelty,  414. 


Cruelty: 

between  husband  and  wife, 
414,  1. 

towards  helpless  persons,  414, 
2. 

to  animals,  414,  3. 
Cruise,  414. 
Cry  de  pays,  415. 
Crycr,  410,  415. 
Cucking-stool,  415. 
Cui  ante  divortium,  415. 
Cui  in  vita,  415. 
Cul  de  sac,  415. 
Culpa,  415. 
Culprit,  415. 
Culvertage,  415. 
Cum  onere,  415. 
Cumulative  evidence,  415. 
Cumulative  legacy,  415,  ii.  21,  4. 
Cuneator,  415. 
Curate,  415. 
Curatio,  415. 
Curator,  415. 
Curator  bonis,  415. 
Curator  ad  hoc,  415. 
Curator  ad  litem,  415. 
Curatorship,  415. 
Curatrix,  416. 
Cure  of  souls,  416. 
Curfew.  416. 
Curia,  416. 

Curia  advisare  vult,  416. 
Curia  claudenda,  416. 
Curia  regis,  416. 
Curialty,  416. 
Cursitor,  416. 
Cursitor  baron,  416. 
Curtesy,  416. 
Curtilage,  417. 
Curtilium,  417. 
Curtis,  417. 
Custodes,  417. 
Custody,  417. 
Custom,  417. 

kinds  of,  417,  2. 

how  established,  417,  3. 

evidence  of,  417,  4, 
Custom  of  merchants,  418. 
Custom-house,  418. 
Customary  court-baron,  418. 
Customary  estates,  418. 
Customary  freehold,  418. 
Customary  service,  418. 
Customary  tenants,  418. 
Customs,  418. 
Customs  of  London,  418. 
Custos  brevium,  418. 
Custos  maris,  418. 
Custos  placitorum  coronae,  418. 
Custos  rotulorum,  418. 
Custuma  antiqua,  etc.,  418. 
Custuma  parva,  etc.,  418. 
Cy  pres,  418,  419. 
Cyrographarius,  419. 
Cyrographum,  419. 
Czar,  419. 
Caarina,  419. 
Czarowitz,  419. 

D. 

Dacion,  419. 
Dakota,  419. 
Dam,  419,  420. 
Damage,  420. 
Damage  cleer,  420. 
Damage  feasant,  420. 
Damaged  goods,  420. 
Damages,  420-423. 


I  Damages: 

kinds  of,  4  20,  I. 

in  ]>leading,  421,  2,  3. 

in  practice,  421-42:5. 

mu.it  be  lo.s«,  421,  1,  5* 
must  be  wrong,  422,  5* 
must  be   obligiiiiun  tc 

plainlift;  422,  «. 
loHS  niuft  bo  proximate 

con>e(juencc,  422,7. 
qualifying  rules,  422, 
U. 

excessive  or  inadequate, 

42:3,  lO. 
rule  of,  must  be  stated  . 

to  jury,  423,  11. 
Damna,  423. 

Damni  injuriae  actio,  423. 
Daninosa'  hajreditas,  423. 
Damnum  absque  injuria,  423 
Damnum  fatale,  423. 
Danegelt,  423. 
Danelage,  423. 
Dangers  of  the  sea,  424. 
Darrein,  424. 
Darrein  seisin,  424. 
Date,  424. 
Dation,  424. 

Dation  en  paiement,  424. 

Daughter,  424. 

Daughter-in-law,  42*. 

Day,  424. 

Day-book,  425. 

Day  rule,  425. 

Days  in  bank,  42o. 

Days  of  grace,  42o. 

why  so  called,  425,  2. 
depend  on  usage,  425,  3, 
table  of  allowances,  425,  S 
how  computed,  425,  6. 

Days  of  the  week,  425. 

Daysman,  425. 

Daywere,  425. 

De  admensuratione,  426. 

De  aetate  probanda,  426. 

De  allocatione  facienda,  426. 

De  annua  pensione,  426. 

De  annuo  reditu,  426. 

De  apostata  capiendo,  426. 

De  arbitratione  facta,  426. 

De  assisa  proroganda,  426. 

De  attornato  recipiendo,  426. 

De  averiis  captis  in  withernam 
426. 

De  averiis  replegiandis,  426. 
De  averiis  retornandis,  426. 
De  bene  esse,  426. 
De  bien  et  de  mal.  426. 
De  bonis  asportatis.  426. 
De  bonis  non,  83,  3,  426. 
De  bonis  propriis,  426. 
De  bonis  testatoris,  427. 
De  bonis  testatoris  ac  si,  427. 
De  bono  et  malo,  427. 
De  calceto  reparendo,  427. 
De  catallis  reddendis,  427. 
De  cautione  adniittenda,  427. 
De  conimuni  dividendo,  427. 
De  contumace  capiendo,  427. 
De  curia  claudenda,  427. 
De  dome  reparanda,  427. 
De  donis,  the  statute.  427. 
De  dote  assignanda,  427. 
De  dote  unde  nihil  habet,  427. 
De  ejectione  firmie,  427. 
De  estoveriis  habendis,  427. 
De  excomm  inicato  capiendo,  427. 
De  excoma  anicato  deliberando, 
427. 


700 


INDEX. 


De  evoneratione  sectae,  427.  ' 
De  facto,  427. 

De  hacretico  comburendo,  428. 
De  homine  capto  in  withernam, 
428. 

De  homine  replegiando,  428. 
De  incremento,  428. 
De  injuria,  428,  429. 

may  be  pleaded,  when,  428, 
2,  3. 

puts  in  issue  what,  428, 4,  5. 

may  be  pleaded  in  certain 
actions,  429,  6. 
De  Judaismo  statutum,  429. 
De  jure,  429. 
De  la  plus  belie,  429. 
De  libertatibus  allocandis,  429. 
De  lunatico  inquirendo,  429. 
De  manucaptione,  429. 
De  mediatate  linguge,  429. 
De  medio,  429. 
De  melioribus  damnis,  429. 
De  mercatoribus,  429. 
De  modo  decimandi,  429. 
De  non  decimando,  430. 
De  novi  opevis  nunciatione,  430. 
De  novo,  430. 
De  odio  et  atia,  430. 
De  parco  fracto,  430. 
De  partitione  facienda,  430. 
De  perambulatione  facienda,  430. 
De  plegiis  acquietandis,  430. 
De  proprietate  probanda,  430. 
De  quota  litis,  430. 
De  rationabili  parte,  etc.,  430. 
De  rationalibus  divisis,  430. 
De  recto  de  advocatione,  430. 
De  reparatione  facienda,  430. 
De  retorno  habendo,  431. 
De  salva  guardia,  431. 
De  scutagio  habendo,  431. 
De  secta  ad  molendinum,  431. 
De  son  tort,  431. 
De  son  tort  demesne,  431. 
De  superoneratione  pasturas,  431. 
De  talliigio  non  concedendo,  431. 
De  una  parte,  431. 
De  uxore  rapta  et  abducta,  431. 
De  ventre  inspiciendo,  431. 
De  vicineto,  431. 
De  warrantia  chartae,  431. 
De  warrantia  Dei,  431. 
Deacon,  431. 
Dead  body,  431. 
Dead-born,  432. 
Dead  freight,  432. 
Dead  letters,  432. 
Dead  man's  part,  432. 
Dead's  part,  432. 
Dead  pledge,  432. 
Deaf  and  dumb,  432. 
Deaf,  dumb,  and  blind,  433. 
Deafforest,  433. 
Dean,  433. 

Dean  and  chapter,  433. 
Dean  of  the  arches,  433. 
Death,  433-436. 

in    medical  jurisprudence, 
433-435. 
phenomena,  433,  3. 
evidence  of  violent,  433, 
4. 

by  apoplexy,  433,  5. 
by  asphyxia,  434,  6. 
by  drowning,  434,  lO. 
hy  hanging,  434,  11. 
by    strangulation,  435 
12. 

by  lightning,  436,  13. 


Death : 

points  of  inquiry,  434, 
6-9. 

legal  consequences  of,  434, 
14-19. 

life  presumed  to  con- 
tinue, 434,  14-16. 

in  case  of  contracts,  73, 
434,  IT,  18. 

in  case  of  torts,  73,  436, 
18. 

as  to  inheritance,  436, 
489. 

as  a  plea  in  abatement,  21, 
13,  14. 

Death-bed  deed,  436. 
Death's  part,  432,  436. 
Debenture,  436. 
Debet  et  detinet,  436. 
Debet  et  solet,  436. 
Debit,  436. 
Debita  fundi,  436. 
Debita  laicorum,  436. 
Debitum  in  praesenti,  etc.,  436. 
Debt,  436,  437. 

in  contracts,  436,  1,  2, 
in  practice,  436,  2. 

to  recover  money,  etc., 

437,  3. 
to  recover  goods,  437,  4. 
form  of  plea,  437,  5. 
judgment  in,  437,  5. 
Debtee,  437. 
Debtor,  437. 
Decanatus,  437. 
Decanus,  437. 
Decapitation,  437. 
Decedent,  437. 
Deceit,  437. 

what  it  is,  438,  2. 
remedy  for,  438,  3. 
amounts  to  conspiracy,  when, 
438,  3. 
Decem  tales,  438. 
Decemviri  litibus,  etc.,  438. 
Decenarius,  438. 
Decennary,  438. 
Decies  tantum,  438. 
Decimae,  438. 
Decision,  438. 
Declarant,  438. 
Declaration,  438-440. 

in  pleading,  438,  439. 
kinds  of,  438,  2. 
parts  of,  438,  3. 
requisites,  439,  4,  5. 
in  evidence,  439,  440. 

primary  evidence,  when, 

439,  6,  9. 
secondary  evidence, 

when,  439,  T. 
dying  declarations,  440, 
8. 

declarations   of  agent, 

440,  lO. 

made  by  one  of  several 
joint-actors,  440,  11. 
in  Scotch  law,  440,  11,  12, 
may  be  evidence,  when, 
440,  12, 
Declaration  of  independence,  440. 
Declaration  of  intention,  441. 
Declaration  of  trust,  441. 
Declaration  of  war,  441. 
Declaratory,  441. 
Declination,  441. 
Decoction,  441. 
Decoctor,  441. 
Decollatio,  441. 


Deconfes,  441. 
Decoy,  441. 
Decree,  441. 
Decree  in  absence,  441. 
Decree  of  constitution,  441. 
Decree  dative,  442. 
Decree  of  forthcoming,  442. 
Decree  of  locality,  442, 
Decree  of  modification,  442. 
Decree  of  registration,  442. 
Decreet,  442. 
Decreet  arbitral,  442. 
Decretales  Bonifacii,  442. 
Decretales  Gregorii,  442. 
Decretals,  442. 
Decretal  order,  442. 
Decretum  Gratiani,  442. 
Decry,  442. 
Decurio,  442. 
Dedi,  442. 

Dedi  et  concessi,  442. 
Dedication,  443. 
Dedimus  et  concessimus,  443. 
Dedimus  potestatem,  443. 
Dedimus  potestatem,  etc.,  443. 
Dedititii,  443. 
Deduction  for  new,  443. 
Deed,  444,  445. 

kinds  of,  444,  2, 

requisites  of,  444,  3  ,  4. 

formal  parts,  444,  5. 

construction,  444,  6. 
Deed  to  declare  uses,  445. 
Deed  to  lead  uses,  445. 
Deed  poll,  445. 
Deemsters,  445. 
Defalcation,  445. 
Defamation,  445. 
Default,  445. 
Defeasance,  445. 
Defect,  446. 
Defence,  446. 

torts,  446,  2,  3. 

in  pleading  and  practice,  446, 
4-6. 
kinds  of,  446,  5. 
in  criminal  cases,  445,  T« 
Defendant,  446. 
Defendant  in  error,  447. 
Defender,  447. 
Defensa,  447. 

Defense  au  fond  en  droit,  447. 
Defense  au  fond  en  fait,  447. 
Defensive  allegation,  447. 
Defensive  war,  447. 
Defensor,  445. 
Defensor  civitatis,  447. 
Deficit,  447. 
Definition,  447. 
Definitive,  447. 
Defloration,  447. 
Deforcement,  447. 
Deforciant,  447. 
Deforciare,  447. 
Defraudacion,  447. 
Defunct,  448. 
Degradation,  448. 
Degrading,  448. 
Degree,  448. 
Dehors,  448. 
Dei  judicium,  448. 
Dejacion,  448. 

Del  credere  commission,  448. 

Delate,  448. 

Delatio,  448. 

Delator,  448. 

Delatura,  448. 

Delaware,  448,  449. 

legislative  power,  448,  2* 


INDEX. 


701 


Delaware : 

executive  power,  449,  3. 
judicial  power,  449,  3,  4. 
Delectus  personoe,  449. 
Delegate,  449. 
Delegation,  449,  450. 
Deliberate,  450. 
Deliberation,  450. 
Delict,  450. 
Delictum,  451. 
Delinquent,  451. 
Delirium  febrile,  451. 
Delirium  tremens,  451. 
Deliverance,  452. 
Delivery,  452-454. 

in  conveyancing,  452,  1-3. 
kinds  of,  452,  1. 
form  of  procedure,452,^}. 
requisites  of,  452,  3. 
in  contracts,  452,  4-6. 
in  general,  452,  4. 
what   constitutes,  453, 
5,  6. 

in    medical  jurisprudence, 
.  453, 
Delusion,  454. 
Demain,  454. 
Demand,  454. 

in  practice,  454,  2-4. 
in  causes  ex  contractu,  454, 
2. 

in  causes  ex  delicto,  454,  3. 
in  cases  of  contempt,  454,  4. 
Demand  in  reconvention,  455. 
Demandant,  455. 
Demembration,  455. 
Demens,  455. 
Dementia,  455, 
Demesne,  455. 
Demesne  as  of  fee,  455. 
Demesne  lands,  455. 
Demesne  lands  of  the  crown,  455. 
Demi-mark,  456. 
Demi-vill,  456. 
Demidietas^  456. 
Demies,  456. 
Demise,  456. 
Demise  of  the  king,  456. 
Demise  and  re-demise,  456. 
Democracy,  456. 
Demonstratio,  456. 
Demonstration,  456. 
Demonstrative  legacy,  456. 
Dempster,  456. 
Demurrage,  456. 
Demurrer,  457-459. 

in  equity,  457,  2-6. 

what,  457,  2. 

lies,  when,  457,  3. 

kinds  of,  457,  3-5. 

to  relief,  457,  5. 

to  discovery,  458.  6. 
at  law,  458,  T-9. 

kinds  of,  458,  8. 

requisites  of,  458,  8. 

efiFeet  of,  458.  9. 
in  practice,  458,  459. 

to  evidence,  458,  lO. 

to  interrogatories,  459, 
lO. 

Demurrer-book,  459. 
Demy  sanke,  459. 
Den  and  strond,  459. 
Denarii,  459. 
Denarius  Dei,  459. 
Denial,  459. 
Denier  a  Dieu,  459. 
Denization,  459. 
Denizpti,  459. 


j  Denunciation,  459. 
I  Denuntiutio,  459. 

Deodand,  459. 

Department,  459,  460. 

Departure,  460. 

Departure  in  despite,  460. 

Dependency,  460. 

Dependent  contract,  460. 

Deponent,  460. 

Deportation,  461. 

Depose,  461. 

Deposit,  461. 

Deposition,  461. 

Deposito,  462. 

Depositor,  462. 

Depredation,  462. 

Deprivation,  462. 

Deputy,  462. 

Deputy  district  attorney,  463. 
Derelict,  463. 
Derivative,  463. 
Derogation,  463. 
Desafuero,  463. 
Descendants,  463. 
Descent,  463-470. 

Alabama,  463. 

Arkansas,  464. 

California,  464. 

Connecticut,  464. 

Delaware,  464. 

Florida,  464. 

Georgia,  464. 

Illinois,  465. 

Indiana,  465.  j. 

Iowa,  465. 

Kansas,  465. 

Kentucky,  465. 

Louisiana,  465. 

Maine,  466. 

Maryland,  466. 

Massachusetts,  466. 

Michigan,  466. 

Minnesota,  466. 

Mississippi,  466. 

Missouri,  467. 

New  Hampshire,  467. 

New  Jersey,  467. 

New  York,  467. 

North  Carolina,  467. 

Ohio,  467. 

Oregon,  468. 

Pennsylvania,  468. 

Rhode  Island,  468. 

South  Carolina,  468. 

Tennessee,  469. 

Texas,  469. 

Vermont,  469. 

Virginia,  469. 

Wisconsin,  469,  470. 
Descriptio  personae,  470. 
Description,  470. 
Desertion,  470. 
Desertion  of  a  seaman,  470. 
Designatio  personae,  471. 
Designation,  471. 
Deslinde,  471. 
Desmemoriados,  471. 
Despacheurs,  471. 
I  Despatches,  471. 
,  Desperate,  471. 
Despitus,  471. 
Despot,  471. 
Despotism,  471. 
Desrenable,  471. 
Destination,  471. 
Desuetude,  471. 
Detainer,  471. 
Detention.  472. 
Determinable,  472. 


Determinable  fee,  472. 
Determinate,  472. 
Determination,  472. 
Determine,  472. 
Detinet,  472. 
Detinue,  472,  473. 

lies  for  what  property,  473, 
2. 

what    possession  required, 
473,  3. 

formal  proceedings,  473,  3* 
4. 

judgment,  473,  5. 
Detinuit,  473. 
Devastation,  473. 
Devastavit,  473. 

by  direct  abuse,  474,  2. 

by  inal-administration,  474, 
3. 

by  neglect,  474,  4  ,  5. 
Devenement,  474. 
Deviation,  474. 

in  insurance,  474,  1-3. 
intention  not  sufficien 

474,  2. 
change  of  risk,  474,  3. 

in  contracts,  474,  4. 
Devisavit  vel  non,  474. 
Devise,  474,  475. 

lapsed  devise,  475,  2. 

general,  passes  what,  475,  3. 

execution  of  power,  when, 
475,  4. 

passes  what,  475,  5. 

contingent  or  vested,  475,  6. 
Devisee,  475. 
Devisor,  475. 
Devoir,  476. 
Devolution,  476. 
Di  Colonna,  476. 
Dictator,  476. 
Dictum,  476. 

Diem  clausit  extremum,  476. 

Dies,  476. 

Dies  amoris,  476. 

Dies  communes  in  banco,  476. 

Dies  datus,  476. 

Dies  fasti,  476. 

Dies  gratiae,  477. 

Dies  nefasti,  477. 

Dies  non,  477. 

Dies  non-juridicus,  477. 

Dies  pacis,  477. 

Dies  a  quo,  477. 

Dies  utiles,  477. 

Dieta,  477. 

Digest,  477. 

Dignitary,  477. 

Dignities,  477. 

Dilacion,  477. 

Dilapidation,  477. 

Dilatory  defence,  477. 

Dilatory  plea,  477. 

Diligence,  477. 

Dime,  478. 

Diminution  of  the  record,  47l». 

Diocese,  478. 

Diploma,  478. 

Diplomacy,  478. 

Diplomatic  agents,  478 

Diplomatics,  478. 

Dipsomania,  47S. 

Direct,  478. 

Direction,  478. 

Director  of  the  mint,  478. 

Directors,  479, 

Dirimant  impediments,  479. 

Disability,  479. 

Disabling  statutes,  479. 


702 


DisafRrraance,  479. 
Disafforest,  479. 
Disavow,  480. 
Disbar,  480. 
Disceptio  causa),  480. 
Discbarge,  480. 
Discbarge  of  a  jury,  480. 
Disclaimer,  480. 

of  estates,  480. 

of  tenancy,  480. 

in  patent  law,  ii.  302, 19,  20. 

in  pleading,  481. 
in  equity,  481. 
at  law,  481. 
Discontinuance  of  estates,  481. 

in  pleading,  481. 

in  practice,  481. 
Discontinuous  servitude,  481. 
Discount,  481. 
Discovert,  481. 
Discovery,  481,  482. 

in  practice,  481. 

bills  for,  favored,  482,  2. 
proceedings  in,  482,  3. 
Discredit,  482. 
Discrepancy,  482. 
Discretion,  482. 

in  criminal  law,  483,  4. 
Discretionary  trusts,  483. 
Discussion,  483. 
Disfrancbisement,  483. 
Disgrace,  483. 
Disherison,  483. 
Disberitor,  483. 
Disbonor,  483. 
Disinherison,  483. 
Disinheritance,  483. 
Disinterested  witness,  483. 
Disjunctive  allegations,  483. 
Disjunctive  term,  483. 
Disme,  478,  484. 
Dismiss,  484. 
Disorderly  house,  484. 
Disorderly  persons,  484. 
Disparagement,  484. 
Dispauper,  484. 
Dispensation,  484. 
Dispone,  484. 
Dispossession,  484. 
Disputatio  fori,  484. 
Disseisee,  484. 
Disseisin,  484. 

effect  of,  484. 

bow  effected,  484. 
Disseisor,  485. 
Dissent,  485. 
Dissolution,  485. 
Dissuade,  485. 
Distracted  person,  485. 
Distractio,  485. 
Distrahere,  485. 
Distrain,  485. 
Distress,  485-488. 

history  of,  485,  2,  3, 

when  allowable,  485,  4-6. 

who  may  distrain,  486,  T,  8. 

what  may  be  taken,  486,  9- 
15. 

goods  on  premises,486,9, 
excepting  what,4S6, 
lO. 

tenant's  property, 

486,  11. 
certain  privileged 

goods  exempt, 

487,  12,  15. 
not  goods  taken  in 

execution,  487, 
13. 


INDEX. 


Distress : 

exemptions  by  sta- 
tute, 487, 14,  15. 
time  of  making,  487.  10. 
where  to  be  made,  487,  IT. 
statutory  provisions,  488, 18. 
formal  proceedings,  488, 19- 

taking,  488,  19. 
notice,  488,  20. 
sale,  488,  21,  22. 
Distress  infinite,  488. 
Distribution,  489-491. 

same  as  rules  of  descent,  in 

many  states,  489,  2. 
in  Delaware,  489,  3. 
in  Maryland,  489,  4-6. 
in  Massachusetts,  490,  7, 
in  New  Jersey,  490,  8. 
in  New  York,  490,  9,  lO. 
in  North  Carolina,  490,  11. 
in  Oregon,  491,  12. 
in  Rhode  Island,  491.  13. 
in  Tennessee,  491,  14. 
District,  491. 
District  attorneys,  491. 
District  court,  491. 
District  of  Columbia,  491. 
Distringas,  492. 
Distringas  juratores,  492. 
Distringas  nuper  vice-comitem, 
492. 

Disturbance,  492. 
Disturbance  of  common,  492. 
Disturbance  of  franchise,  492. 
Disturbance  of  patronage,  492. 
Disturbance  of  tenure,  492. 
Disturbance  of  ways,  492. 
Dittay,  492. 
Dividend,  493. 
Divisible,  493. 
Division,  493. 
Division  of  opinion,  493. 
Divorce,  493-495. 

for  Avhat  granted,  493,  2. 
validity  of  foreign  divorces, 

494,  3,  500,  11. 
in  England,  494,  4. 
defences,  494,  5. 
consequences  of,  494,  6-9. 
generally,  494,  6. 
as  to  property,  495,  T. 
other  consequences,  495, 
8. 

custody  of  children,  495, 
9. 

Dock,  495. 
Docket,  495. 
Doctors  Commons,  496. 
Documents,  496. 
Dog,  496. 
Dogma,  496. 
Dole,  496. 
Doli  capax,  496. 
Doli  incapax,  496. 
Dollar,  496. 
Dolo,  497. 
Dolus,  497. 
Dolus  malus,  497. 
Dom.  proc,  497. 
Domain,  497. 
Domboc,  497. 
Dome,  497. 
Domesday,  497. 
Domesmen,  498. 
Domestics,  498. 
Domicil,  498-501. 

kinds  of,  498, 2,  3, 499,  6,  T. 

how  established,  498,  4-8. 


Domioil : 

change  of,  499,  9,  lO, 
law  of,  governs,  when,  490, 
11-16. 
rules  as  to  personal  sta- 
tus, 499,  12. 
distribution  of  intestate 
property,  499, 13-15, 
rule  as  to  wills,  499, 14. 
rule  as  to  insolvents,  499, 
16. 

Dominant,  601. 

Dominicum,  601. 

Dominium,  501. 

Dominium  directum,  601. 

Dominium  directum  et  utile,  501. 

Dominium  utile,  501. 

Dominus,  501. 

Dominus  litis,  501. 

Domitae,  501. 

Donatarius,  501. 

Donatio,  501. 

Donatio  inter  vivos,  502. 

Donatio  mortis  causa,  502. 

Donatio  propter  nuptias,  602, 

Donee,  502. 

Donis,  statute  de,  502. 

Donor,  502. 

Donum,  502. 

Doom,  503. 

Door,  503. 

Dormant,  503. 

Dos,  503. 

Dos  rationabilis,  603. 
Dot,  503. 

Dotal  property,  503. 
Dotation,  503. 
Dote,  503. 

Dote  assignando,  503. 
Dote  unde  nihil  habet,  503. 
Double  costs,  503. 
Double  damages,  503. 
Double  eagle,  503. 
Double  insurance,  503. 
Double  plea,  604. 
Double  voucher,  504. 
Double  waste,  604. 
Doubt,  604. 
Dove,  504. 
Dowager,  504. 
Dower,  505-609. 

kinds  of,  505,  2. 
1  may  be  of  what  estates,  505, 
3-6. 

"  requisites  of,  506,  7. 

*  how  prevented,  606,  8,  9» 
how  barred,  607,  lO,  11. 
how  assigned,  508,  12-14. 
nature  of  estate,  608,  15. 
Dowress,  509. 
Dowry,  509. 
Dragoman,  509. 
Drain,  609. 
Draw,  509. 
Drawback,  509. 
Drawee,  609. 
Drawer,  609. 
Drawing,  509. 
Drawlatches,  509. 
Dreit  dreit,  609. 
Driftway,  509. 
Drip,  509. 
Driver,  609. 
Drof-land,  509. 
Droit,  509. 

Droit  d'jiccession,  509. 
Dr'>its  of  admiralty,  610. 
Droit  d'aubaine,  510. 
Droit-close,  510. 


INDEX. 


703 


Droitural,  510. 
Drove-road.  510. 
Druggist.  510. 
Drunkenness,  510,  511. 
Dry  exchiuige,  511. 
Dry  rent,  511. 
Ducat,  511. 

Duces  tecunti  licet  languidus,  512. 

Due,  512. 

Due  bill,  512. 

Due  process  of  law,  512. 

Duelling,  512. 

Duellum,  512, 

Duke,  512. 

Dum  fuit  in  prisona,  512. 
Dum  fuit  infra  aetatem,  512. 
Dum  non  fuit  compos  mentis,  512. 
Dum  sola,  512. 
Dumb,  512. 
Dumb-bidding,  512. 
Dungeon,  512. 
Dunnage,  512. 
Duodecimo  manus,  513. 
Duplex  querela,  513. 
Duplex  valor  maritagii,  513. 
Duplicate,  513. 
Duplicatio,  513. 
Duplicatum  jus,  513. 
Duplioity,  513. 
Duply,  513. 

Durante  absentia,  84,  3,  513. 

Durante  beneplacito,  513. 

Durante  minore  aetate,  513. 

Durante  viduitate,  513. 

Duress,  513,  514. 

Duties,  514. 

Dwelling-house,  514. 

Dying  declarations,  440,  8,  514. 

Dying  without  issue,  514. 

Dynasty,  514. 

Dysnomy,  514. 

Dyspepsia,  514. 

Dyvour,  515. 

Dyvour's  habit,  515. 

E. 

E  converso,  515. 
E  pluribus  unum,  515. 
Eagle,  515. 
Ealderraan,  515. 
Ear-mark,  515. 
Ear-witness,  515. 
Earl,  515. 
Earl-marshal,  515. 
Earnest,  515. 
Easement,  515,  516. 

qualities,  516,  2. 

kinds  of,  516,  3,  4. 

how  extinguished,  516,  5. 
Eastern  term,  516. 
Eat  inde  sine  die,  516. 
Eaves-droppers,  516. 
Ecehymosis,  516. 
Ecclesia,  516. 
Ecclesiastic,  516. 
Ecclesiastical  corporations,  517. 
Ecclesiastical  courts,  517. 
Ecclesiastical  law,  517. 
Eclampsia  parturientium,  517. 
Edict,  517. 

Edicts  of  Justinian,  517. 
Edictum  perpetuum,  617. 
Effect,  517. 
Effects,  517. 
Effigy,  518. 
Effraction,  518 
Effractor,  518. 
Ego,  518. 


Eigne-,  518. 
Eik,  .')18. 
Einctius,  518. 
Eire,  5 IS. 
Eisne,  518. 
Eisnetia,  518. 
Ejectione  custodirc,  518. 
Ejectione  firinae,  518. 
Ejectment,  518. 

history  of,  518,  1. 

lies  for  what,  518,  2. 

supported  by  what  estate, 
518,  3,  j 

action    rests    on    plaintiff's  , 
title,  519,  4. 

form  of  proceedings,  519,  4, 
5. 

Ejectum,  519. 
Ejercitoria,  519. 
Ejusdem  generis,  519, 
Eldest,  519. 
Election,  519. 

at  law,  520. 

in  equity,  520. 

in  practice,  520. 

in  criminal  law,  520. 
Elector,  521. 

Electors  of  president,  521. 
Eleemosynarius,  521. 
Eleemosynary  corporations,  521 
Elegit,  521. 
Elisors,  522. 
Ell,  522. 
Elogium,  522. 
Eloigne,  522. 
Elongata,  522. 
Elopement,  522. 
Elsewhere,  522. 
Eluviones,  522. 
Emancipation,  522. 
Embargo,  522. 
Embezzlement,  522. 
Emblements,  523. 

what  they  are,  523,  2. 

of  what  crops,  523,  3. 

who  entitled  to,  523,  4,  5. 

similar  rights,  524,  6. 
Embraceor,  524. 
Embracery,  524. 
Emenda,  524. 
Emendals,  524. 
Emendatio  panis  et  cerevisias, 
Emigrant,  524. 
Emigration,  524. 
Eminence,  524. 
Eminent  domain,  524. 
Emission,  525. 
Emit,  525. 

Emmenagogues,  525. 
Emperor,  525. 
Emphyteosis,  525. 
Emphyteuta,  525. 
Emplayaraiento,  525. 
Emprestido,  525. 
Emptio,  525. 
En  autre  droit,  525. 
En  demeure,  525. 
En  owel  main,  525. 
En  ventre  sa  mere,  525. 
Enabling  powers,  525. 
Enabling  statute,  625. 
Enact,  525. 
Enajenacion,  525. 
Enciente,  525,  ii.  359. 
Enclosure,  625. 
Encomienda,  525. 
Encroach,  526. 
Enemj',  526. 
Enfeoff,  626 


Enfranchise,  526. 
EnfranchiHement,  526. 
Enfranchisement    of  copyhold^ 
520. 

Engagement,  526. 
Engle.-hire,  526. 
Engross,  526. 
Engro.«ser,  626. 
Engrossing,  626. 
Enitia  pars,  526. 
Enjoin,  526. 
Enlarge,  527. 
Enlarging,  527. 
Enlistment,  527. 
Enormia,  527. 
Enquete,  527. 
Enroll,  527. 
Enrolment,  527. 
Entail,  527. 
Entencion,  527. 
Enter,  527. 
Entire,  527. 
Entirety,  527. 
Entrega,  627. 
Entrepot,  527. 
Entry,  527. 

at  common  law,  527,  1. 
in  criminal  law,  527,  2. 
upon  real  estate,  528,  3-7» 
Entry  ad  communem  legem,  528 
Entry,  writ  of,  528. 
Enure,  529. 
Envoy,  529. 
Eorle,  529. 
Epilepsy,  529. 
Epiqueya,  529. 
Episcopacy,  529. 
Episcopalia,  529. 
Episcopus,  529. 
Epistola?,  529. 
Equality,  529. 
Equinox,  529. 
Equitable  assets,  529. 
Equitable  estate,  530. 
Equitable  mortgage,  530. 
Equitatura,  530. 
Equity,  530-535. 

history,  531,  2-5, 
distinctive  principles,  532, 6f 
T, 

jurisdiction,  533,  8,  9, 
1.  peculiar  remedies,  534,  lO, 

rules  and  maxims,  534.  11, 
remedial  process,  535,  12, 
evidence  and  practice,  63 
13, 

Equity  of  redemption,  536. 
Equivalent,  536. 
Equivocal,  536. 
Equuleus,  536. 
Erasure,  536. 
Erciscundus,  536. 
Eregimus,  536. 
Erotic  mania,  536. 
Errant,  536. 
Error,  536. 

Error,  writ  of,  ii.  681. 
Escambio,  537. 
Escambium,  537. 
Escape,  537. 

kinds  of,  537,  1, 
what  amounts  to,  537,  2, 
punishment  of,  537,  3,  4, 
Escape  warrant,  537. 
Escheat,  537. 
Escheator,  538. 
Escribano,  538. 
Escrow,  538. 
Escuage,  638. 


704 


INDEX. 


Eskippamentum,  638. 
Eskipper,  638. 
Eakippeson,  638. 
Esnecy,  638. 
Espera,  638, 
Esplees,  638. 
Espousals,  638. 
Esquire,  638. 

Essendi  quietam  de  theolonia,  538. 

Essoin,  638. 

Essoin  day,  638. 

Essoin  roll,  638. 

Establish,  638. 

Establishment,  639. 

Estadal,  639. 

Estadia,  639. 

Estate,  639. 

Estate  per  autre  vie,  539. 
Estate  in  common,  639. 
Estate  upon  condition,  312,  539. 
Estate  in  coparcenery,  639. 
Estate  by  the  curtesy,  539. 
Estate  in  dower,  639. 
Estate  by  elegit,  621. 
Estate  in  expectancy,  539. 
Estate  in  fee-simple,  539. 
Estate  in  fee-tail,  639. 
Estate  of  inheritance,  539. 
Estate  of  joint-tenancy,  539. 
Estate  for  life,  640. 
Estate  in  possession,  540. 
Estate  in  remainder,  353,  540,  ii. 
436. 

Estate  in  reversion,  540. 
Estate  in  severalty,  540. 
Estate  by  statute  merchant,  540. 
Estate  at  sufferance,  540. 
Estate  tail,  540. 
Estate  in  vadio,  540,  ii.  197. 
Estate  at  will,  640. 
Estate  for  years,  541. 
Estates  of  the  realm,  541. 
Ester  in  judgment,  541. 
Estoppel,  541. 

by  deed,  541,  2. 

how  created,  541,  3* 

by  matter  of  record,  541,  4. 

by  matter  in  pais,  541,  4. 
Estovers,  641,  542. 
Estrays,  542. 
Estreat,  642. 
Estreperaent,  642. 
Et  csetera,  642. 
Et  de  hoc  ponit  se,  etc.,  542. 
Et  hoc  paratus  est  verificare,  542. 
Et  hoc  petit  quod  inquiratur,  etc., 
543. 

Et  inde  producit  sectam,  543. 
Et  modo  ad  hunc  diem,  543. 
Et  non,  543. 

Eundo,  morando,  et  redeundo, 

643. 
Eunomy,  543. 
Eunuch,  543. 
Evasion,  543. 
Eviction,  543. 

what  constitutes,  543,  2,  3. 
remedy  for,  643,  4,  5. 
rule  of  damages,  543,  6. 
Evidence,  644-648. 

instruments  of,  544,  9* 
nature  of,  6-1  ,  3-5. 

presumptions,  644,  4,  5. 
legal  character,  545,  6,  7, 
primary,  545,  6. 
secondary,  545,  1. 
admissibility  of,  546,  8-10. 
hearsay,  546,  8,  662. 
admissions,  89,  546,  8» 


Evidence : 

res  gestae,  546, 9,  ii.  467. 
confessions,    316,  317, 

646,  9. 
dying  declarations,  440, 

8,  646,  lO. 
opinions  of  experts,  546, 
lO,  664. 
eflFect  of,  646,  11, 
object  of,  546,  12. 
rules  of,  547,  12-16. 

must  be  confined  to  point 
in  issue,  647,  12,  13. 
substance  of  issue  must 
be  proved,  547,  14- 
16. 

modes  of  proof,  548,  IT. 
proof  by  witnesses,  648,  18, 
ii.  673. 

Evidence,  circumstantial,  648. 

Evidence,  conclusive,  648. 

Evidence,  direct,  549. 

Evidence,  extrinsic,  549. 

Evocation,  549. 

Ewage,  549. 

Ewbrice,  549. 

Ex  aequo  et  bono,  549. 

Ex  contractu,  649. 

Ex  debito  justitiae,  549. 

Ex  delicto,  649. 

Ex  dolo  malo,  649. 

Ex  gratia,  549. 

Ex  industria,  549. 

Ex  maleficio,  649. 

Ex  mero  motu,  649. 

Ex  mora,  549. 

Ex  more,  649. 

Ex  necessitate  legis,  549. 

Ex  officio,  649. 

Ex  parte,  649. 

Ex  parte  materna,  549. 

Ex  parte  paterna,  549. 

Ex  post  facto,  649. 

Ex  post  facto  law,  549,  550. 

Ex  proprio  motu,  650. 

Ex  proprio  vigore,  650. 

Ex  relatione,  560. 

Ex  tempore,  560. 

Ex  vi  termini,  650. 

Ex  visceribus,  560. 

Ex  visitatione  Dei,  550. 

Exaction,  560. 

Exactor,  650. 

Examination,  550,  551. 

in  criminal  law,  550.  1,  2. 

in  practice,  550,  2,  3. 
Examined  copy,  551. 
Examiners,  561. 
Examiners  in. chancery,  551. 
Exannual  roll,  561. 
Excamb,  551. 
Excambiator,  551. 
Excambium,  551. 
Exception,  551,  552. 

in  contracts,  561. 

in  equity  practice,  552. 

in  civil  law,  552. 

in  practice,  552. 
Exception  to  bail,  552. 
Exchange,  662. 

in  commercial  law,  552. 

in  conveyancing,  562. 
Exchequer,  652. 
Exchequer  bills,  552. 
Excise,  662. 
Exclusive,  653. 
Excommunication,  553. 
Excommunicato  capiendo  553. 
Excusable  homicide,  553. 


Excusatio,  553. 
Excusator,  553. 
Excuse,  663. 
Excussio,  563. 
Execute,  653. 
Executed,  663. 
Executed  consideration,  553. 
Executed  contract,  654. 
Executed  estate,  654. 
Executed  remainder,  554. 
Executed  trust,  664. 
Executed  use,  664. 
Executed  writ,  664. 
Execution,  664,  665. 

in  criminal  law,  554,  1* 
in  practice,  564,  1-5. 

kinds  of,  664,  2. 

how  obtained,  554,  2* 

how  effected,  554,  3. 

against   personal  pro« 
perty,  665,  4. 

against  real  estate,  555» 
4. 

against  the  person,  555; 
5. 

Execution  parge,  555. 
Executioner,  665. 
Executive,  565, 
Executor,  566-669. 
kinds  of,  656,  1. 
qualification,  666,  2,  3* 
appointment,  556,  4. 
assignment,  657,  5. 
acceptance,  567,  5. 
acts  before  probate,  557,  6» 
powers  of,  667,  T-11. 

over  chattels,  567,  8« 
over  suits,  558,  9,  10» 
over  wife's  choses,  658^ 
lO. 

other  powers,  558,  11» 
co-executors,  558,  11. 
duties  of,  558,  12,  13. 
legacies  paid  by,  669,  14. 
compensation  of,  659,  15. 
Executor  de  son  tort,  559,  580. 
what  acts  constitute,  669,  2^ 
3. 

how  far  liable,  560,  4. 

has  what  powers,  560,  5,  6« 
Executory,  661. 
Executory  consideration,  561. 
Executory  contract,  561, 
Executory  devise,  561. 
Exemplification,  562. 
Exemplum,  562. 
Exemption,  562. 
Exempts,  562. 
Exequatur,  662. 
Exercitor  maris,  562. 
Exercitoria  actio,  562, 
Exfestucare,  562. 
Exhairedatio,  562. 
Exhaires,  562. 
Exhibere,  663. 
Exhibitant,  563. 
Exhibition,  563. 
Exhigendary,  563, 
Exigent,  563. 
Exigenter,  563. 
Exigible,  563. 
Exile,  663. 
Exilium,  563. 
Existimatio,  563. 
Exit  wound,  563. 
Exitus,  563. 
E,\lex,  563. 
Exoine,  563. 
Exoneration,  563, 


INDEX. 


705 


Exoncratur,  663. 
Expatriation,  563. 
Expectancy,  564. 
Expectant,  564, 
Expeditiition,  564. 
Expenditors,  564. 
Expensas  litis,  564, 
Experts,  564. 
Expilation,  564. 
Expiration,  564. 
Expiry  of  the  legal,  564. 
Explicatio,  564. 
Exportation,  564. 
Expose,  564. 
Exposition  de  part,  564. 
Exposure  of  person,  664. 
Express,  565. 
Express  abrogation,  565. 
Express  assumpsit,  565. 
Express  consideration,  565. 
Express  contract,  565. 
Express  trust,  565. 
Express  warranty,  565. 
Expromissio,  565. 
Expromissor,  565. 
Expulsion,  565. 
Extension,  565. 
Extension  of  a  patent,  566. 
Extent,  566. 
Extenuation,  566. 
Exterritoriality,  566. 
Extinguishment,  566. 
Extinguishment    of  commerce, 
566. 

Extinguishment  of  copyhold,566. 
Extinguishment  of  debt,  566. 
Extinguishment  of  rent,  567. 
Extinguishment  of  ways,  567. 
Extorsively,  567. 
Extortion,  567. 
Extra-dotal  property,  567. 
Extra  judicium,  567. 
Extra  quatuor  maria,  567. 
Extra-territoriality,  567. 
Extra  viam,  567. 
Extract,  567. 
Extradition,  567. 

without  treaty  stipulations, 
567,  2. 

under  treaty  stipulations,567, 
3-5. 

between  federal  states,  568,6. 
Extra-judicial,  569. 
Extraneus,  569. 
Extravagantes,  569. 
Extremis,  569. 
Ey,  569. 

Eye-witness,  569. 
Eyott,  569. 
Eyre,  518. 
Eyrer,  518,  569. 

F. 

F,  569. 

Fabric  lands,  569. 
Fabricare,  569. 
Facias,  569. 
Faeio  ut  des,  569. 
Facio  ut  facias,  569. 
Fact,  569. 

Factio  testamenti,  569. 
Factor,  570. 

kinds  of,  570,  1,  2. 

duties  of,  570,  3. 

rights  of,  570,  3,  4. 
Factorage,  571. 
Factorizing,  164,  18-26. 
Factorizing  process,  671. 
Vol.  II.— 45 


Factory,  571. 
Factum,  571. 
Faculty,  571. 
Faesting-men,  671. 
Faida,  571. 
Faillitc,  571. 
Failure  of  issue,  571. 
Failure  of  record,  571. 
Faint  pleader,  571. 
Fair,  571. 

Fair-playmen,  671. 
Fair-pleader,  572. 
Fait,  572. 
Faitours,  572. 
Falcare,  572. 
Falcidia,  572. 
Falcidian  law,  572. 
Faldage,  572. 
Faldfey,  572. 
Fallo,  572. 

Falso  demonstratio  non  nocet,572. 

False  action,  572. 

False  claim,  572. 

False  imprisonment,  572. 

False  judgment,  572. 

False  personation,  572. 

False  pretences,  572. 

False  return,  573. 

False  token,  573. 

Falsehood,  573. 

Falsify,  573. 

Falsing,  573. 

Falsing  of  dooms,  573. 

Falso  retorno  brevium,  573. 

Familia,  573. 

Familiae  erciscundaj,  573. 

Family,  574. 

Family  arrangements,  674. 
Family  Bible,  574. 
Family  meetings,  574. 
Famosus  libellus,  674. 
Fanega,  574. 
Fardel,  574. 
Fare,  574. 
Farm,  574. 
Farm-let,  575. 
Farm  out,  575. 
Farmer,  575. 
Farrier,  575. 
Farvand,  575. 
Fast  estate,  575. 
Fastermannes,  575. 
Father,  575. 

bound  to  support  children, 
575.  2. 

guardian  of  person,  575,  3. 

entitled  to  services  of  child, 
575,  3. 

agreement  of,  for'child's  ser- 
vices, 576,  4. 
Fathom,  576. 
Fatuous  person,  576. 
Faubourg,  576. 
Fauces  terrae,  576. 
Fault,  576. 
Fautor,  576. 
Faux,  576. 
Favor,  576. 
Fealty,  576. 
Fear,  577. 
Feasts,  677. 
Feciales,  577. 
Federal,  677. 
Fee.  577. 
Fee-farm,  577. 
Fee-farm  rent,  577. 
Fee  simple,  577. 
Fee  tail,  578. 
Fehmgerichte,  678 


Feigned  action,  578. 
Feigned  issue,  578. 
Felaga.s,  578. 
Fclo  de  se,  578. 
Felon,  578. 
Felon ia,  578. 
Felonious  homicide,  678. 
Feloniously,  578. 
Felony,  578. 
Female,  579. 
Feme,  579. 
Feme  covert,  679. 
Feminine,  579. 
Fence,  579. 
Fence-month,  679. 
Fen-geld,  579. 
Feod,  579. 
Feodal,  579. 
Feodal  actions,  679. 
Feodary,  579. 
Feodi-firma,  579. 
Feodum,  579. 
Feoffamentum,  579. 
FeoflFare,  579. 
Feoflfee,  579. 
Feoffee  to  uses,  579. 
Feoffment,  579. 
Feoffor,  580. 
Feoh,  580. 
Ferae  bestiae,  580. 
Ferae  naturae,  580. 
Feria,  580. 
Ferials,  580. 
Ferial  days,  580. 
Ferme,  580. 
Fermer,  580. 
Ferriage.  580. 
Ferry,  580. 

established     by  sovereign 
power,  580,  2,  3. 

right  of,  is  personal  heredita- 
ment, 581,  4. 

owners  of,  are  common  car« 
riers.  581,  5. 
Ferryman,  581. 
Festing-man,  581. 
Festing-penny,  581. 
Festinum  remedium,  68L 
Fetters,  581. 
Feu,  681. 
Feu  annuals,  581. 
Feu-holding,  681. 
Feud,  581. 
Feuda,  581. 
Feudal  law.  581-583. 
Feudum,  583. 
Fianza,  583. 
Fiar,  58.3. 
Fiat,  583. 

Fiat  in  bankruptcy,  583>, 

Fiction,  583. 
Fictitious  action,  584. 
Fictitious  party,  684. 
Fictitious  payee,  584. 
Fidei-commissarius,  584 
Fidei-commissum,  584. 
Fide-jussio,  584. 
Fide-jussor,  584. 
Fiducia,  585. 
Fiduciary  contract,  585. 
Fief,  585. 

Fief  d'hauberk.  685. 

Fief  tenant,  585. 

Fiel,  585. 

Fieldai,  585. 

Fierding  courts,  585. 

Fieri  facias,  585,  686. 

foundation  of  writ,  58.3,  3« 
form  of  writ,  585,  3. 


706 


INDEX. 


Fieri  facias : 

must  follow  judgment,  585, 
4. 

force  of  writ,  586,  5. 

executed,  how,  586,  6,  T, 

may  seize  what,  586,  8. 
Fieri  feci,  586. 
Fifteenths,  586. 
Fightwite,  586. 
Figures,  586. 
Filacer,  587. 
File,  587. 
Filiate,  587. 
Filiation,  587. 
Filius,  587. 
Filius  familias,  587. 
Filius  mulieratus,  587 
Filius  nullius,  587. 
Filius  populi,  587. 
Filum  aquoe,  587. 
Filum  forestae,  587. 
Filum  irse,  587. 
Fin  de  non  recevoir,  587. 
Final  decree,  587. 
Final  judgment,  587. 
Final  process,  588. 
Final  sentence,  588. 
Finalis  concordia,  588. 
Finances,  588. 
Financier,  588. 
Finder,  588. 
Finding,  588. 
Fine,  588. 

in  criminal  law,  589,  3,  4. 
Fine  for  alienation,  589. 
Fine  sur  cognizance  de,  etc.,  589. 
Fine  sur  cognizance  de  droit,  589. 
Fine  sur  concessit,  589. 
Fine  sur  done,  589. 
Fine-force,  589. 
Fine  and  recovery  ac*.  589. 
Finem  facere,  589. 
Fines  le  roy,  589. 
Finium  regundorum,  o8tf. 
Firdnite,  589 
Firdsocne,  589, 
Fire,  589. 

Fire  and  sword,  590. 
Firebcte,  590. 
Firkin,  590. 
Firm,  590-592. 

name  of,  how  acquired,  590, 
1-6. 

constitutes  trade-mark,  591, 
8. 

cannot  sue  or  be  sued  as  such, 
591,  T. 

effect  of  change  of  partners, 
591,  8. 

bound  by  action  of  single 
partner,  591,  lO. 
Firma,  592. 
Firma  feodi,  592. 
Firman,  592. 
Firmarius,  592. 
First-fruits,  592. 
First  impression,  592. 
First  purchaser,  592. 
Fisc,  592. 
Fiscal,  592. 
Fish,  592. 
Fish  royal,  592. 
Fishery,  592,  593. 
Fisk,  593. 
Fistuca,  593. 
Fixing  bail,  593. 
Fixtures,  593-595. 

what  makes  annexation,  593 
2. 


Fixtures : 

become  part  of  freehold,  when, 
594,  3. 

as  between  executor  and  heir, 
594,  4. 

as  between  vendor  and  ven- 
dee, 594,  4. 
as    between    landlord  and 

tenant,  594,  5. 
right  of  removal,  594,  6,  T. 
Flag,  595. 

Flag,  duty  of  the,  595. 

Flag  of  the  United  States,  595. 

Flagrans  crimen,  595. 

Flagranti  delicto,  595. 

Flavianum  jus,  595. 

Fleduite,  595. 

Fleet,  595. 

Fleta,  595. 

Flight,  595. 

Float,  595. 

Floatable,  595. 

Flodemark,  595. 

Florida,  595-597. 

legislative  power,  596,  3,  4, 
executive  power,  596,  5. 
judicial  power,  696,  6,  7. 

Florin,  597. 

Flotages,  597. 

Flotsam,  597. 

Floud-marke,  597. 

Flumen,  597. 

Focal  e,  597. 

Foderum,  597. 

Foedus,  597. 

Foenus  nauticus,  597. 

Foeticide,  597. 

Foetura,  597. 

Foetus,  597. 

Folc-land,  597. 

Folcgemote,  597. 

Folc-right,  598. 

Fold-course,  598, 

Folio,  598. 

Fonsadera,  598, 

Foot,  598. 

Foot  of  the  fine,  598. 
Footgeld,  598. 
For  that,  598. 

For  whom  it  may  concern,  598. 

Forathe,  598. 

Forbaner,  598. 

Forbearance,  598. 

Force,  598. 

Force  and  arms,  598. 

Forced  heirs,  598. 

Forcheapum,  598. 

Forcible  entry  or  detainer,  598. 

Fordal,  599. 

Fore,  599. 

Foreclose,  599. 

Foreclosure,  599. 

Forefault,  599. 

Forehand  rent,  599. 

Foreign,  599. 

Foreign  answer,  599. 

Foreign  apposer,  599. 

Foreign  attachment,  599. 

Foreign  coins,  599,  600. 

Foreign  country,  600. 

Foreign  enlistment  act,  600. 

Foreign  judgment,  600. 

states  foreign  to  each  other, 

600,  2. 
under  constitution,  600 

3. 

Foreign  laws,  600. 

must  be  proved,  600,  2. 
how  proved,  601,  3,  4. 


Foreign  laws : 

between   states  of  th« 
United  States,  601,  5. 
Foreign  matter,  601. 
Foreign  plea,  601,  ii.  334,  lO. 
Foreign  port,  601. 
Foreign  voyage,  601. 
Foreigner,  601. 
Forejudge,  601. 
Foreman,  602. 
Forensis,  602. 
Forest,  602. 
Forest  courts,  602. 
Forestagium,  602. 
Forestall,  602. 
Forestaller,  602. 
Forestalling,  602. 
Forestalling  the  market,  602. 
Forestarius,  602. 
Forester,  602. 
Forethought  felony,  602. 
Forfang,  602. 
Forfeit,  602. 
Forfeiture,  602,  603. 

by  alienation,  602,  2, 

for  crime,  603,  3. 

by  breach  of  conditions,  6C3, 
4. 

by  waste,  603,  5. 
Forfeiture  of  a  bond,  6C3. 
Forfeiture  of  marriage,  603. 
Forgavel,  603. 
Forgery,  603,  604. 
Forinsecus,  604. 
Forisdis[)utationes,  604, 
Forisfacere,  604. 
Forisfactum,  604. 
Forisfactura,  605. 
Forisfactus,  605. 
Forisfamiliated,  605. 
Forisjudicatio,  605. 
Forisjudicatus,  605. 
Forisjurare,  605. 
Form,  605. 

Forma  pauperis,  605,  691. 
Formality,  605. 
Formed  action,  605. 
Formedon,  605. 

Formedon  in  the  descender,  605. 
Formedon  in  the  remainder,  608. 
Formedon  in  the  reverter,  606. 
Former  recovery,  606. 
Formularies,  606. 
Fornication,  606. 
Foro,  606. 
Forprise,  606. 
Forspeaker,  606. 
Forstal,  606. 
Forswear,  606. 
Forthcoming,  606. 
Forthcoming  bond,  606. 
Forthwith,  607. 
Fortia,  607. 

Fortuitous  collision,  607. 
Fortuitous  event,  607. 
Forum,  607-610. 
Forwarding  merchant,  610. 
Fossa,  610. 

Fossatorum  operatic,  610. 
Foundation,  610. 
Founder,  610. 
Founderosus,  610. 
Foundling,  610. 
Four  seas,  610. 
Fourcher,  610. 
Fowls  of  warren,  611. 
Fraction  of  a  day,  611. 
Frais  de  justice,  611. 
Franc,  611. 


INDEX. 


Y07 


Franc  alien,  611. 
Franchise,  (ill. 
Francigena,  Gil. 
Fraiikalmoigne,  611. 
Frank  fee,  611. 
Frank-ferine,  611. 
Frank-marriage,  612. 
Frank-pledge,  612. 
Franking  privilege,  612. 
Franklevn,  612. 
Frater,  (;12. 
Fraud,  612-614. 

actual  or  positive,  612,  2. 

legal  or  constructive,  612,  3. 

what  constitutes,  613,  4,  5. 

equity,  doctrine  of,  613,  6-8. 

eflFect  of,  614,  9. 

in  criminal  law,  614,  lO,  11. 
Frauds,  statute  of,  614. 
Fraudulent  conveyance,  615. 
Frednite,  615. 
Fredum,  615. 
Free,  615. 
Free  bench,  615. 
Free  bord,  615. 
Free  chapel,  615. 
Free  course,  615. 
Free  fisher}^  615. 
Free  services,  615. 
Free  ships,  615. 
Free  socage,,  615. 
Free  warren,  616. 
Freedman,  616. 
Freedom,  616,  617. 
Freehold,  617. 

abatement  of,  19,  3,  4. 
Freehold  in  law,  617. 
Freeholder,  617. 
Freeman,  617. 
Freeman's  roll,  617. 
Freight,  617,  618. 

amount  of,  617,  2. 

how  earned,  618,  3. 

interrupted  voyage,  618,  4, 
5. 

where  part  of  cargo  is  lost, 
618,  6. 

effect  of  loading  cargo,  618, 
T. 

Freighter,  618. 

French  codes,  283,  13-15,  IT. 

Frendlesman,  618. 

Frendnite,  618. 

Freoborgh,  619. 

Fresh  disseisin,  619. 

Fresh  fine,  619. 

Fresh  force,  619. 

Fribusculum,  619. 

Fridborg,  619. 

Fridhburgus,  619. 

Frigidity,  619. 

Frithsocue,  619. 

Fructuarius,  619. 

Fructus,  619. 

Fructus  civiles,  619. 

Fructus  industriales,  619. 

Fructus  naturales,  619. 

Fructus  pendente,  619. 

Frugcs,  619. 

Fruit,  619. 

Frumgyld.  619. 

Fuage,  619. 

Fuero,  619. 

Fuero  de  Castilla,  619. 
Fuero  de  correos,  etc.,  619. 
Fuero  de  guerra,  619. 
Fuero  juKgo,  619. 
Fuero  de  marina,  620. 
Fuero  municif  il,  620. 


Fuero  real,  620. 
Fugam  fecit,  620. 
Fugitive  from  justice.  620,  621. 
surrender  under  treaties,  620, 
3-<J. 

surrender  under  constitution, 
621,  T-10. 
Fugitive  slave,  621-623. 
Full  age,  623. 
Full  defence,  446,  623. 
Full  proof,  ii.  341. 
Function,  623. 
Functionary,  623. 
Functus  officio,  623. 
Fundamental,  623. 
Fundatio,  623. 
Funding  system,  623. 
Funds,  624. 
Fundus,  624. 
Funeral  expenses,  624. 
Fungible,  624. 
Fur,  624. 

Furca  et  flagellum,  624. 
Furca  et  fossa,  624. 
Furiosus,  624. 
Furlingus,  624. 
Furlong.  624. 
Furlough,  624. 
Furnage,  625. 
Furniture,  625. 
Further  assurance,  625. 
Further  hearing,  625. 
Furtum.  625. 
Furtum  conceptum,  625. 
Furtum  grave,  625. 
Furtum  manift  stum,  625. 
Furtum  oblatum,  625. 
Future  debt,  625. 
Future  estate,  625. 
Futuri,  625. 
Fynderinga,  625. 

G. 

Gabel,  626. 
Gablum.  626. 
Gafol,  626. 
Gage,  626. 
Gager  del  ley,  626. 
Gain,  626. 

Gaius's  Institutes,  626,  3  ,  4. 

Gain  age,  626. 

Galenes,  626. 

Gallon,  626. 

Gaiiows,  626. 

Game,  626. 

Game  laws,  626. 

Gaming,  626. 

Gaming-houses,  626, 

Ganancial,  627. 

Gaol,  627. 

Gaol-delivery,  627. 

Gaol  and  liberties,  627. 

Gaoler,  627. 

Garauntor,  627. 

Garballo  decimse,  627. 

Garden,  627. 

Garnish,  627. 

Garnishee,  627. 

Garnishment.  164,  18-25,  627. 

Garnistura,  627. 

Garsumne,  628. 

Gate,  628. 

Ganger,  628. 

Gavel,  628. 

Gavelgeld,  628. 

Gavelherte,  628. 

Gavelkind,  628. 

Gavelman,  628. 


Gavelmcd,  628.  . 
(iavelweek,  628. 
(Jebocian,  628. 
Geld,  628. 
(icmot,  628. 
Genealogy,  628. 
Gener,  C28. 

(Jeneral  assembly,  628. 

General  gaol-dtlivery,  628. 

General  imparlance,  t;29. 

General  issue,  629. 

General  lan<l  office,  629. 

General  occupant,  629. 

General  ship,  629. 

General  sjjecial  iujparlance,  827. 

General  traverse,  ii.  600. 

General  warrant,  629. 

Gens,  629,  630. 

Gentleman,  630. 

Gentlewoman,  631. 

Gentoo  law,  631,  668. 

Georgia,  631. 

legislative  power,  631,  4, 
executive  power,  631,  5, 
judicial  power,  631,  Ci-8« 

Gerefa,  632. 

German,  632. 

Gerontocomi,  632. 

Gersumc.  632. 

Gestation.  632. 

Gestio,  632. 

Gerwite,  633. 

Gift,  633. 

delivery  essential,  633,  2* 
is  irrevocable,  633,  3. 

Giftoman,  633. 

Gilda  mercatoria,  633. 

Gildo,  633. 

Gill,  633. 

Girantem,  633. 

Girth,  633. 

Girth  and  sanctuary,  ^33. 
Gist,  633. 
Give,  633. 
Giver,  634. 

Giving  in  payment,  634. 
Giving  time,  634. 
Gladius,  634. 
Gleaning,  634. 
Glebe,  634. 
Gloss,  634. 
Glossator,  634. 
Gloucester,  statute  of,  634 
Go  without  day,  634. 
Goat,  634. 

God  and  my  country,  634. 

God  bote,  634. 

God's  penny,  634. 

Going  witness,  634. 

Goldsmith's  notes,  634. 

Good  and  valid,  634. 

Good  behavior,  635. 

Good  consideration,  329,  1,  63!>. 

Good  and  lawful  men,  635. 

Good  will.  635. 

Goods,  635. 

Goods  and  chattels.  635. 
Goods  sold  and  delivered.  635. 
Goods,  wares,  and  merchandia*, 

635. 
Gout,  636. 

Government,  636-639. 
Gradus,  639. 
GraflFer,  639. 
Gi'afio.  639. 
Graffium.  639. 
Graft,  639. 
Grain,  639. 
Grainage,  639. 


708 


INDEX. 


Gramme,  639.  . 
Grand  assize,  639. 
Grand  bill  of  sale,  639. 
Grand  cape,  639. 
Grand  coutumier,  639. 
tlrand  days,  640. 
^■Jrand  jury,  640. 

organization  of,  640,  fl,  3. 

iurisdiction  of,  640,  4. 

mode  of  doing  buslBess,  640, 
4,  5. 

power  of,  640,  5* 

secrecy,  641,  6. 
Grand  larceny,  641. 
Grand  serjeanty,  641. 
Grandchildren,  641. 
Grandfather,  641. 
Grandmother,  641. 
Grant,  641. 

Grant,  bargain,  and  sell,  642. 
Grantee,  642. 
Grantor,  642. 
Grasshearth,  642. 
Gratification,  642. 
Gratis,  642. 
Gratis  dictum,  642. 
Gratuitous  contract,  642. 
Gravamen,  642. 
Grave,  642. 
Great  cattle,  642. 
Great  charter,  642,  ii.  86. 
Great  law,  642. 
Great  tithes,  642. 
Green  cloth,  642. 
Green  wax,  642. 
Gregorian  code,  283,  16. 
Gremio,  642. 
Gremium,  642. 
Gressume,  642. 
Grithbrech,  642. 
Gro.-?s  adventure,  643. 
Gross  average,  643. 
Gross  negligence,  643. 
Gross  weight,  643. 
Grossome,  643. 
Ground  annual,  643. 
Ground  rent,  643. 
Groundage,  644. 
Growing  crops,  644. 
Guarantee,  644. 
Guarantor,  644. 
Guaranty,  644-646. 

what  is,  644,  1. 

how  made,  644,  1-4. 

negotiability,  645,  5. 

discharge  of  guarantor,  646, 
6. 

Guardian,  646-649. 

by  chancery,  646,  2,  3. 
by  nurture,  646,  4. 
in  socage,  646,  4. 
by  statute,  647,  5. 
by  appointment  by  deed,  647, 
5. 

by  appointment   of  court, 

647,  5. 
appointment  of,  647,  6,  7. 
powers  and  liabilities  of,  647, 
8-14. 
as  to  personal  property, 

647,  8. 
as  to  real  estate,  6*47,  9, 
lO. 

as  to  person,  648,12-14, 
rights  and  liabilities  of  ward, 

r,48,  15,  16. 
jalc  of  infant's  lands,  648, 
IT,  18. 
Canard. an  ad  litem,  649. 


Guardianship,  649. 
Guarentigio,  649. 
Gubernator,  649. 
Guerrilla  party,  649. 
Guest,  650. 

Guidon  de  la  mer,  650. 

Guild,  650. 

Guildhall,  650. 

Guilt,  650. 

Guilty,  650. 

Gwabr  merched,  650. 

Gyltwite,  650. 

H. 

Habeas  corpora,  651. 
Habeas  corpus,  651-654. 

history  of  writ,  651,  2S. 

jurisdiction  of  courts,  652, 
9-13. 

use  of  writ,  653,  14,  15. 

application  for,  653,  16. 

return  of,  653,  IT. 

hearing,  653,  18. 

recommitment,  654,  19. 
Habeas  corpus  cum  causa,  654. 
Habeas  corpus  ad  deliberandum, 
654. 

Habeas  corpus  ad  faciendum,  654. 
Habeas  corpus  ad  prosequendum, 
654. 

Habeas  corpus  ad  respondendum, 
654. 

Habeas  corpus  ad  satisfaciendum, 
654. 

Habeas  corpus  ad  subjiciendum, 
654. 

Habeas  corpus  ad  testificandum, 
654. 

Habendum,  654. 

Habentes  homines,  654. 

Habere  facias  possessionem,  654. 

Habere  facias  seisinam,  655. 

Habere  facias  visum,  655. 

Habilis,  655. 

Habit,  655. 

Habit  and  repute,  655. 
Habitation,  655. 
Habitual  drunkard,  655. 
Hacienda,  655. 
Hadbote,  655. 
Haeredes  extranei,  655. 
Hseredes  necessarii,  655. 
Hseredes  proximi,  655. 
Haeredes  remotiores,  655. 
Haeredes  sui  et  necessarii,  655. 
Haeredipita,  655. 
Haereditas,  656. 
Haereditas  jacens,  656. 
Haeres,  656-658. 

who  might  not  be,  656,  2,  3. 

persons  entitled,  656,  4. 

acquisition  of  inheritance, 
*  656,  5. 

rights  and  liabilities  of,  657, 
6,  T. 

remedies  of,  658,  8. 

cohaerides,  658. 
Hafne-courts,  658. 
Half-blood,  658. 
Half-brother,  658. 
Half-cent,  658. 
Half-defence,  446. 
Half-dime,  658. 
Half-dollar,  658. 
Iliilf-eagle,  659. 
Half-proof,  659. 
Half-seal,  659. 
Half-tongue,  659. 


Half-year,  659. 

Hali-gemote,  659. 

Hall,  659. 

Hallazco,  659. 

Halle-gemote,  669, 

Hallucination,  659. 

Halmote,  659. 

Halymote,  659. 

Halywercfolk,  659. 

Hamesucken,  659. 

Hamlet,  660. 

Hamsocue,  660. 

Hanaper,  660. 

Hand,  660. 

Handbill,  660. 

Hand  borow,  660. 

Handhabend,  660. 

Handsale,  660. 

Handwriting,  660. 

Hanging,  660. 

Hangman,  660. 

Hanse,  660. 

Hanse  towns,  660. 

Hanse  towns,  laws  of  the,  283, 

IT,  660. 
Hap,  661. 
Harbor,  661. 

in  torts,  661. 
Hard  labor,  661. 
Hart,  661. 
Hat  money,  661. 
Haustus,  661. 
Have,  to,  661. 
Haven,  661. 
Hawker,  661. 
Haybote,  661. 
Hayward,  661. 
Hazardous  contract,  661, 
Head,  661. 
Head-borough,  661. 
Head  of  a  family,  661. 
Headland,  661. 
Healsfang,  661. 
Health,  662. 
Health  officer,  662. 
Hearing,  662. 
Hearsay  evidence,  662. 

what  is,  662,  2. 

not  generally  admissible,  6 12, 
3. 

exceptions,  662,  3. 
Hearth-money,  663. 
Hearth-silver,  663. 
Hebberman,  663. 
Hebberthef,  663. 
Hedagium,  663. 
Hedge-bote,  663. 
Heifer,  663. 
Heir,  663. 
Heir  apparent,  663. 
Heirs,  beneficiary,  663, 
Heir,  collateral,  664. 
Heir,  conventional,  664. 
Heirs,  forced,  664. 
Heir,  general,  664. 
Heirs,  irregular,  664 
Heir-at-law,  664. 
Heir,  legal,  664. 
Heir-loom,  664. 
Heir,  presumptive,  664. 
Heir,  testamentary,  664. 
Heirs,  unconditional,  664 
Heiress,  664. 
Heirship  movables,  664. 
Henghen,  664. 
Heptarchy,  664. 
Herald,  664. 
Heralds'  college,  666. 
Herbage,  666. 


INDEX. 


709 


ller.l-wcrck,  665. 
Herebannum,  665. 
Heredad,  665. 
Heredero,  665. 
Hereditaments,  665. 
Hereditary,  665. 
Heres,  665. 
Heriot,  665. 
Herischild,  665. 
Herischuldae,  665. 
Heritable  bond,  665. 
Heritable  jurisdiction,  665. 
Heritable  rights,  665. 
Heritage,  665. 
Hermandad,  665. 
Hermaphrodites,  665. 
Hermcneutics,  665. 
Hermogenian  code,  284,  IT. 
Hidage,  666. 
Hidalgo,  666. 
Hide,  666. 
Hide  lands,  666. 
High  commission  court,  666. 
High  constable,  666. 
High  court  of  admiralty,  666. 
High  court  of  delegates,  666. 
High  court  of  errors  and  appeals, 
666. 

High  court  of  justiciary,  666. 
High  court  of  parliament,  666. 
High  seas,  666. 
High  treason,  666. 
High-water- mark,  666. 
Highway,  667,  668. 

how  created,  667,  2,  3. 

what  it  is,  667,  4. 

obligation  to  repair,  668,  5* 

use  of,  668,  6. 
Highwayman,  668. 
Higler,  668. 
Higuela,  668. 
Hilary  term,  668. 
Hindu  law,  284,  IT,  668. 
Hipoteca,  669. 
Hire,  669. 
Hirer,  669. 
His  excellency,  669. 
His  honor,  669. 
Hlafordswice,  669. 
Hlothbi.te,  669. 
Hodge-podge  act,  669. 
Hoghenhyne,  669. 
Hogshead,  669. 
Hold,  669. 
Hold  pleas,  669. 
Holder,  669. 
Holding  over,  669. 
Holografo,  669. 
Holograph,  670. 
Holy  day,  670. 
Holy  orders,  670. 
Homage,  670. 
Homage  ancestral,  670. 
Homage  jury,  670. 
Homager,  670. 
Hombre  bueno,  670. 
Home  port,  670. 
Homestall.  670. 
Homestead,  670. 
Homicide,  670,  671. 

kinds  of,  670. 

distinctions  in,  671. 
Homine  capto  in  withernam,  671. 
Tomine  eligendo,  671. 
Homine  replegiando,  671. 
Homo,  671. 
Humologacion,  671. 
Homologation,  671. 
Honor,  671. 


Honorarium,  671. 
Honorary  services,  671. 
Hone  judiciae,  671. 
Horn  tenure,  671. 
Horning,  671. 
Hors  de  son  fee,  672. 
Horse,  672. 
Hospitator,  672. 
Hostellagium,  672. 
Hostility,  672. 
Hotchpot,  672. 
Hour,  672. 
House,  672. 

House  of  commons,  672. 
House  of  correction,  672. 
House  of  ill-fame,  672. 
House  of  lords,  67:^. 
House  of  refuge,  678. 
House  of  representatives,  673. 
House-bote,  673. 
Housebreaking,  673. 
Household,  673. 
Household  furniture,  673. 
Household  goods,  673. 
Household  stuff,  673. 
Householder,  673. 
Housekeeper,  674. 
Hovel,  674. 
Hoyman,  674. 
Hude-geld,  674. 
Hue  and  cry,  674. 
Huebra,  674. 
Huissier,  674. 
Hundred,  674. 
Hundred  court,  674. 
Hundred  gemote,  674. 
Hundred  lagh,  674. 
Hundredary,  674. 
Hundredors,  674. 
Hunger,  675. 
Hunting,  675. 
Hurdle,  675. 
Husband,  675,  676. 

obligations,  675,  2, 

rights,  675,  3. 

in  Louisiana,  675,  4-6. 
Husbrece,  676. 
Hustings,  676. 
Hydrometer,  676. 
Hypobolum,  676. 
Hypothecation,  676. 
Hypotheque,  677. 


I. 

I.  0.  U.,  677. 
Ibidem,  677. 
Ictus  orbis,  677. 
Idem  sonans,  677. 
Identitate  nominis,  677. 
Identity,  677. 
Ides,  677. 
Idiochira,  678. 
Idiocy,  678. 
Idiot,  678. 

Idiota  inquirendo,  679. 
Idoneus,  679. 
Ignis  judicium,  679. 
Ignominy,  679. 
Ignoramus.  679. 
Ignorance,  679. 
Ignore,  679. 
Ill  fame,  680. 
Illegal,  680. 
Illegitimate,  680. 
Illeviable.  680. 
Illicit,  680. 
Illicite,  680. 
Illinois,  680, 


Illinois: 

legislative  power,  680,  3,  4- 

executive  power,  680,  ."5. 

judiciary  power,  681,  (J. 

jurisprudence,  681,  T,  8. 
Illiterate,  682. 
Illusion,  682. 

Illusory  appointment,  682. 
Imagine,  682. 
Imbecility,  682,  683. 
Immaterial  averment,  683. 
Immaterial  issue,  683. 
Immemorial  possession,  683. 
Immigration,  683. 
Immoral  consideration,  684. 
Immorality,  684. 
Immovables,  684. 
Immunity,  684. 

Impairing  obligation  of  contracts, 
684-686. 

who  is  prohibited,  684,  2, 

what  is  a  contract,  684,  3. 

eminent  domain,  684,  4. 

marriage  and  divorce,  685,  i>. 

bankruptcy  and  insolvency, 
685,  6,  r. 

obligation  and  remedy,  635, 
8,  9. 
Impanel,  686. 
Imparlance,  686. 
Impeachment,  686. 
Impeachment  of  waste,  687. 
Impedimento,  687. 
Impediments,  687. 
Impensae,  687. 
Imperfect  obligations,  687. 
Imperium,  687. 
Impertinent,  687. 
Impetration,  688. 
Implead,  688. 
Implements,  688. 
Implicata,  688. 
Implication,  688. 
Importation,  688. 
Imports,  688. 
Importunity,  688. 
Impositions,  688. 
Imposts,  688. 
Impotence,  688. 
Imprescriptibility,  688. 
Imprimatur,  689. 
Imprimery,  689. 
Imprimis,  689. 
Imprisonment,  689. 
Improbation,  689. 
Impropriation,  689 
Improve,  689. 
Improvement,  689. 
Impuber,  690. 

Imputation  of  payment,  6jM>. 

In  action,  690. 

In  sequali  jure,  690. 

In  alio  loco,  690. 

In  autre  droit,  690. 

In  blank,  690. 

In  capite,  690. 

In  chief,  690. 

In  commendam,  690. 

In  custodia  legis,  690. 

In  esse,  691. 

In  extremis,  691. 

In  facie  ecclesite,  691. 

In  faciendo,  690. 

In  favorem  libertaiie,  691. 

In  favorem  vitas,  691. 

In  fieri,  691. 

In  forma  pauperis.  691. 

In  foro  conscientiae,  691. 

In  fraudem  legis,  691. 


710 


INDEX. 


In  full  life,  691. 

In  generali  passagio,  691. 

In  genere,  691. 

In  gremio  legis,  691. 

In  gross,  691. 

In  initialibus,  691. 

la  integrum,  692. 

In  invitum,  692. 

In  itmere,  692. 

In  judicio,  692. 

In  .jure,  692. 

In  limine,  692. 

In  litem,  692. 

In  loco  parentis,  692. 

In  mercy,  692. 

In  misericordia,  692. 

In  mitiori  sensu,  692. 

In  mora,  69'2. 

In  mortua  manu,  692. 

In  nubibus,  692. 

In  nullo  est  erratum,  693. 

In  odium  spoliatoris,  693. 

In  paper,  69S. 

In  pari  causa,  693. 

In  pari  delicto,  693. 

In  pari  materia,  693. 

In  perpetuam  rei  memoriam,  693. 

In  personam,  693. 

In  posse,  693. 

In  praesenti,  693. 

In  principio,  693. 

In  propria  persona,  693. 

In  re,  693. 

In  rebus,  693. 

In  rem,  693. 

In  render,  693. 

In  rerum  natura,  693. 

In  solidum,  693. 

In  specie,  694. 

In  statu  quo,  694. 

In  terrorem,  694. 

In  terrorem  populi,  694. 

In  totidem  verbis,  694. 

In  toto,  694. 

In  transitu,  694. 

In  vadio,  694. 

In  ventre  sa  mere,  694. 

In  witness  whereof,  694. 

Inadequate  price,  694. 

Inadmissible,  695. 

Inaedificatio,  695. 

Inalienable,  695. 

Inauguration,  695. 

Incapacity,  695. 

Incendiary,  695. 

Inception,  695. 

Incest,  695. 

Inch,  695. 

Inchoate,  695. 

Incident,  695. 

Incipitur,  695. 

Inclusive,  695. 

Income,  695. 

Incommunicacion,  695. 

Incompatibility,  695. 

Incompetency,  695. 

at  common  law,  696. 

in  evidence,  696. 

in  French  law,  696. 
Inconclusive,  696. 
Incontinence,  696. 
Incorporation,  696. 
Incorporeal  hereditaments,  696. 
Incorporeal  property,  696. 
Incumbent,  696. 
Incumbrance,  696. 

what  is  an,  696,  2. 

as  between  life  tenant  and 
reversioner,  '^96,  3. 


Indebitatus  assumpsit,  697. 
Indebiti  solutio,  697. 
Indebtedness,  697. 
Indecency,  697. 
Indecimable,  697. 
Indefeasible,  697. 
Indefensus,  697. 

Indefinite  failure  of  issue,  571, 
697. 

Indefinite  number,  697. 
Indefinite  payment,  697. 
Indemnity,  697. 
Indent,  697. 
Indenture,  698. 
Independence,  698. 
Independent  contract,  698. 
Indeterminate,  698. 
Indian,  698. 
Indian  tribe,  698. 
Indiana,  698-700. 

legislative  power,  699,  J* 

executive  power,  699,  4,  5. 

judicial  power,  699,  6,  T. 

jurisprudence,  699,  T. 
Indicia,  700. 
Indicted,  700. 
Indiction,  700. 
Indictment,  700,  701. 

essential  requisites,  700,  2, 

formal  requisites,  701,  3-5* 
Indictor,  702. 
Indiff'erent,  702. 
Indigena,  702. 
Indirect  evidence,  702. 
Indivisible,  702. 
Indivisum,  702. 
Indorse,  702. 
Indorsement,  702. 

kinds  of,  702,  1,  2. 

effect  of,  702,  3,  4. 

in  criminal  law,  703. 
Indorser,  703. 
Inducement,  703. 
Inducise,  703. 
Induciae  legales,  703. 
Induction,  703. 
Indulgence,  703. 
Indulto,  704. 
Ineligibility,  704. 
Inevitable  accident,  704. 
Infamis,  704. 
Infamous  crime,  704. 
Infamy,  704. 

exists  where,  704,  2. 

crime  causes,  704,  3. 

judgment,  effect  of,  704,  4. 
Infancy,  21. 

as  plea  in  abatement,  21,  15. 
Infant,  705. 

contracts  with,  705,  4-T. 

responsibility  of,  for  crimes, 
705,  8. 
Infanticide,  706. 
Infanzon,  706. 
Infeoffment,  706. 
Inference,  707. 
Inferior,  707. 
Inferior  courts,  707. 
Inficiatio,  707. 
Infidel,  707. 
Infiht,  707. 
Infirm,  707. 
Infirmative,  707. 
Information,  707. 

in  various  states,  707,  2. 

formal  requisites,  708,  3. 
Information  of  intrusion,  708. 
Information  in   nature  of  quo 
warranto,  708. 


Informatus  non  sum,  708. 

Informer,  708. 

Infortiatum,  708. 

Infra,  708. 

Infra  setatem,  708. 

Infra  annum  luctus,  708. 

Infra  brachia,  708. 

Infra  corpus  comitatus,  708. 

Infra  dignitatem  curiae,  708. 

Infra  hospitium,  708. 

Infra  praijsidia,  709. 

Infraction,  709. 

Infringement, -.709. 

Infusion,  709. 

Ingenium,  709. 

Ingenui,  709. 

Ingress,  egress  and  regress,  709. 

Ingressu,  709. 

Ingrossing,  709. 

Inhabitant,  709. 

Inherent  power,  710. 

Inheritable  blood,  710. 

Inheritance,  710. 

Inheritance  act,  710. 

Inhibition,  710. 

Inhibition  against  a  wife,  710. 

Initial,  710. 

Initialia  testimonii,  710. 
Initiate,  710. 
Initiative,  710. 
Injunction,  710-712. 

kinds  of,  711,  2,  3. 

when  used,  711,  4. 

what  must  be  shown,  71J, 
5. 

special  cases,  712,  6* 

form  of,  712,  7. 
Injuria  absque  damno,  712. 
Injurious  words,  712. 
Injury,  712,  713. 

remedies,  713,  2,  3. 

in  civil  law,  713,  4. 
kinds  of,  713,  4, 
Inlagare,  713. 
Inlagation,  713. 
Inland,  713. 
Inn,  713,  714. 
Innavigable,  714. 
Innings,  714. 
Innkeeper,  714. 

duties,  714. 

rights  of,  714. 
Innocence,  714. 
Innocent  conveyances,  714 
Innominate  contracts,  715. 
Innotescimus,  715. 
Innovation,  715. 
Inns  of  court,  715. 
Innuendo,  715. 
Inofiiciosum,  715. 
Inoficiosidad,  715. 
Inops  consilii,  715. 
Inquest,  715. 
Inquiry,  writ  of,  716. 
Inquisition,  716. 
Inquisitor,  716. 
Inrolment,  716. 
Insanity,  716-718. 
Inscription,  719. 
Inscriptiones,  719. 
Insensible,  719. 
Insidiatores  viarum,  719. 
In  simul  computassent,  71^ 
Insinuacion,  719. 
Insinuation,  719. 
Insinuation  of  a  will,  719. 
Insolvency,  719-725. 

distinguished    from  back* 
ruptcy,  719,  2-9. 

* 


INDEX. 


711 


Insolvency : 

who  may  P'  tition,  721.  lO. 
petition  addressed  to  whom, 
722.  II. 
proi-eeilinss  on,  722,  12. 
notice,  722,  12. 
assi;,'nmont,  722,  13. 
fraudulent   preference,  723, 
14. 

dischur,;;c,  723,  15. 

proceedings   under  statute, 
724,  11,  18. 

in  Upper  Canada,  725,  19. 
Insolvent  estates  of  persons  de- 
ceased, 725. 
Inspection,  725. 
Inspector,  725. 
Inspeximus,  725. 
Installation,  725. 
Instalment,  725. 
Instance,  726. 
Instance  court,  726. 
Instancia,  726. 
Instanter,  726. 
Instar,  726. 
•Instigation,  726. 
Institor,  726. 
Institute,  726. 
Institutes,  726-728. 

Coke's  Institutes,  726,  2. 

Gaius'  Institutes,  726,  3,  4. 

Justinian's   Institutes,  727, 
5,  6. 

Theophilus'  Institutes,  727, 
7. 

Institutes  of  Menu,  284,  17. 
Institution,  728. 
Instructions,  728. 
Instrument,  728. 
Instrumenta,  728. 
Insufficiency,  728. 
Insula,  728. 
Insurable  interest,  728. 

what  constitutes,  728,  2. 

in  life  insurance,  728,  3. 
Insurance,  729. 

abandonment  in,  18. 

adjustment,  82,  728. 

average,  175. 

deviation,  474. 

memorandum  of,  ii.  173. 

policy  of,  ii.  343. 

representations,  ii.  464. 

valuation  in,  ii.  632. 

warranty  in,  ii.  651. 
Insurance  agent,  729. 
Insurance  company,  729. 
Insured,  729. 
Insurer,  729. 
Insurgent,  729. 
Insurrection,  729. 
In  takers.  730. 
Integer,  730. 
Intendant,  730. 
Intended  to  be  recorded,  730. 
Intendente,  730. 
intendment  of  law,  730. 
Indent,  730. 
lntei:tio,  730. 
Intention,  730,  731. 

in  criminal  law,  730. 

ma.y  be  inferred,  730,  3.  i 
may   be  proved,   how,  | 
731,  4. 

in  contracts,  731. 

in  wills,  731. 
Inter  alia,  731.  j 
Inter  alias,  731. 

Inter  apices  juris,  731.  i 


Inter  canem  et  lupum,  731. 
Inter  partes,  731. 
Inter  s.-,  731. 
Inter  vivos,  731. 
Intercommon,  731. 
Interdict,  731. 
Interdiction,  732,  733. 
Interesse  termini,  733. 
Interest,  733-739. 

in  contracts,  733. 

on  debts,  733-738. 

who  bound  to  pay,  733, 

who  entitled  to  receive, 

733,  3. 
on  what  claims  allowed, 

733,  3-11. 
how  much  allowed,  735, 

12. 

simple  or  compound, 
_  736,  13,  14. 

limited   by  penalty  of 
bond,  736,  15. 

foreign,  allowed,  when, 
736,  16. 

computation  of,  736,  17. 

barred,  when,  737,  18. 

statutes   affecting,  737, 
19-30. 
in  practice,  738,  31,  32. 

disqualifying,  738,  32. 

magnitude  of,  immate- 
rial, 738,  32. 
Interest  or  no  interest,  739. 
Interference,  739. 
Interim,  739. 
Interlineation,  739. 
Interlocutory,  739. 
Interlopers,  739. 
International  law,  739-742. 
Internuncio,  742. 
Interpellation,  742. 
Interpleader,  742. 
Interpretation,  743,  744. 
kinds  of,  743,  1,  2. 
principles  of,  743,  3-5. 
of  particular  words,  338-  350. 
Interpreter,  744. 
Interregnum,  744. 
Interrogatoire,  744. 
Interrogatories,  744. 
Interruption,  744. 
Intervention,  744. 
Intestable,  745. 
Intestacy,  745. 
Intestate,  745. 
Intimation,  745. 
Introduction,  745. 
Intromission,  745. 
Intronisation,  745. 
Intruder,  745. 
Intrusion,  745. 
Inundation,  745. 
Inure,  745. 
Invadiatio,  745. 
Invalid,  745. 
Invasion,  745. 
Invecta  et  illata,  746. 
Invention,  746. 

subject  of  patent,  746,  2,  3. 
abandonment  of,  746,  4-6. 
Inventiones,  746. 
Inventor,  746. 
Inventory,  747. 
Invest,  747. 
Investiture,  747. 
Inviolabilit)',  747. 
Invito  domino,  747. 
Invoice,  747. 


Invoice-book,  747. 

Involuntary,  747. 

Iowa,  747,  748. 

legislative  power,  747,  3)  4 
executive  power,  748,  5 
judicial  power,  748,  6. 

Ipso,  748. 

Ipsissimis  verbis,  748. 
Ipso  facto,  748. 
Ipso  jure,  748. 
Ire  ad  largum,  748. 
Irregular  deposit,  748. 
Irregularity,  748. 
Irrelevant  evidence,  748. 
Irrepleviable,  748. 
Irresistible  force,  749. 
Irrevocable,  749. 
Irrigation,  749. 
Irritancy,  749. 
Irrotulatio,  749. 
Island,  749. 
Issint,  749. 
Issuable,  749. 
Issuable  terms,  749. 
Issue,  749,  750. 
Issue  roll,  750. 
Issues,  750. 
Ita  est,  750. 
Ita  quod,  750. 
Item,  750. 
Iter,  750. 
Itinerant,  751. 

J. 

Jactitation  of  marriage,  751 

Jactura,  751. 

Jactus,  751. 

Jail,  751. 

Jamunlingi,  751. 

Jeofaile,  751. 

Jeopardy,  751. 

Jerguer,  752. 

Jettison,  752. 

Jeux  de  bourse,  752. 

Job,  752. 

Jobber,  752. 

Jocalia,  752. 

Joinder,  752-756. 

of  actions,  752,  1,  2. 

in  demurrer,  752. 

of  issue,  752. 

of  parties,  753,  3-20. 
in  equity,  753,  3-10. 
plaintiffs,  7 53,  4,  5* 
defendants,  753,  6- 
lO. 

at  law,  754,  11-20. 

actions  ex  con- 
tractu, 754,  11- 
16. 

actions  ex  delicto, 
756.  17-20. 
in  criminal  cases,  756, 
20. 

Joint  action,  756. 

Joint  bond,  756. 

Joint  and  several  bond,  758. 

Joint  contract,  757. 

Joint  executors,  757. 

Joint  indictment,  757. 

Joint  stock  banks,  757. 

Joint  stock  company,  757. 

Joint  tenants,  757. 

Joint  trustees,  757. 

Jointress,  758. 

Jointure,  758. 

Jour,  758. 

Journal,  758. 


12 


INDEX. 


Journal : 

in  commercial  law,  758. 

in  legislation,  768. 
Journey's  account,  768. 
Jubilacion,  758. 
Judaismus,  758. 
Judex,  758,  759. 

in  civil  law,  759. 

in  old  English  law,  769. 
Judex  ordinarius,  759. 
Judge,  759. 
Judge-advocate,  759.. 
Judge's  certificate,  760. 
Judge's  notes,  760. 
Judgment,  760-766. 

kinds  of,  760,  1-9. 

requisites  of,  762,  lO. 

eflFect  of,  762,  H. 

as  to  form,  763,  12. 

on  verdict,  763,  12-16. 

after  verdict,  764,  16,  IT. 

in  other  cases,  765,  18. 

by  default,  765,  19. 

matters  of  practice,  765,  20. 
Judgment  nisi,  766. 
Judgment  note,  766. 
Judgment  paper,  766. 
Judgment  record,  7o6. 
Judgment  roll,  766. 
Judicature,  766. 
Judices  pedaneos,  766. 
Judicial  admission,  766. 
Judicial  committee,  766. 
Judicial  confessions,  766. 
Judicial  conventions,  766. 
Judicial  decisions,  766. 
Judicial  mortgage,  766. 
Judicial  power,  766. 
Judicial  proceedings,  767. 
Judicial  sale,  767. 
Judicial  wj-its,  767. 
Judiciary,  767. 
Judicium  Dei,  767. 
Juicio  de  apeo,  767. 
Juicio  de  concursu,  768. 
Junior,  768. 
Juniperus  sabina,  768. 
Jura  fiscalia,  768. 
Jura  personarum,  768. 
Jura  in  re,  768. 
Jura  regalia,  768. 
Juramentae  corporalis,  768. 
Juramentum  calumniae,  768. 
Juramentum  judiciale,  768. 
Jurat,  768. 
Jurata,  768. 
Juratory  caution,  769. 
Jure  propinquitatis,  769. 
Jure  representationis,  769. 
Jure  uxoris,  769. 
Juridical,  769. 
Juris  et  de  jure,  769. 
Juris  et  seisinae  conjunctio,  769. 
Jurisconsultus,  769. 
Jurisdiction,  769. 
Jurisdiction  clause,  770. 
Jurisprudence,  770. 
Jurist,  770. 
Juro,  770. 
Juror,  770. 
Jury,  770. 

kinds  of,  771,  1. 

number  of  jurors,  771,  2. 

qualifications  of  jurors,  771, 
2 

selection  of,  771,  2. 
province  of,  771,  3. 
duties  of,  771,  3. 
Jury  box,  771. 


Jury  list,  771. 
Juryman,  771. 
Jury  process,  771. 
Jury  v/omen,  771. 
Jus,  771. 

Jus  abutendi,  771. 
'  Jus  accrescendi,  771. 
Jus  aquaeductus,  772. 
Jus  civile,  772. 
Jus  civitatis,  772. 
Jus  cloaca),  772. 
Jus  dare,  772. 
Jus  deliberandi,  772. 
Jus  dicere,  772. 
Jus  disponendi,  772. 
Jus  duplicatum,  772. 
Jus  feciale,  772. 
Jus  fiduciarum,  772. 
Jus  gentium,  772. 
Jus  gladii,  772. 
Jus  habendi,  772. 
Jus  incognitum,  772. 
Jus  legitimura,  772. 
Jus  mariti,  772. 
Jus  merum,  772. 
Jus  patronatus,  772. 
Jus  personarum,  772. 
Jus  precarium,  772, 
Jus  postliminii,  773. 
Jus  proficiendi,  773. 
Jus  protegendi,  773. 
Jus  quaesitum,  773. 
Jus  in  re,  773. 
Jus  relictae,  773. 
Jus  ad  rem,  773. 
Jus  rerum,  773. 
Jus  strictum,  773. 
Jus  utendi,  773. 
Justice,  773. 

in  Norman  French,  774. 

in  feudal  law,  774. 

at  common  law,  774. 
Justice  ay  res,  774. 
Justice  of  the  peace,  774. 
Justices  courts,  774. 
Justices  in  eyre,  774. 
Justices  of  the  pavilion,  774. 
Justices  of  trail  bastion,  774. 
Justiciar,  774. 
Justiciarii  itinerantes,  776. 
Justiciarii  residentes,  775. 
Justiciary,  776, 
Justicies,  775. 
Justifiable  homicide,  775. 
Justification,  775,  776. 

in  pleading,  775,  1-4, 
trespass,  776,  2. 
libel  and  slander,  776,  3. 
qualities  of,  776,  3,  4, 

in  practice,  776,  5. 
Justificators,  776. 
Justifying  bail,  776. 
Justinian  code,  284,  18-21. 
Justinian's  Institutes,  727,  5,  6. 
Juzgado,  776. 

K. 

Kain,  776. 
Keelage,  776. 
Keels,  776. 

Keeper  of  the  forest,  776. 
Keeper  of  the  great  seal,  776. 
Keeper  of  the  privy  seal,  776. 
Kenning  to  a  terce,  777. 
Kentucky,  777,  778. 

legislative  power,  777,  4. 

executive  power,  777,  5. 

judicial  power,  777,  6. 


Key,  778. 
Keyage,  778. 
Kidnapping,  778. 
Kilderkin,  778. 
Kindred,  778. 
King,  778. 
King's  bench,  778. 
King's  counsel,  778. 
King's  evidence,  778. 
King's  silver,  778. 
Kingdom,  778. 
Kinsbote,  778. 
Kintlidge,  779. 
Kirby's  quest,  779. 
Kissing  the  book,  779. 
Knave,  779. 
Knight's  fee,  779. 
Knight's  service,  779. 
Knights  Hospitallers,  779. 
Knights  Templars,  779. 
Knowingly,  779. 
Knowledge,  779. 

L. 

Label,  ii.  3. 
Labor,  ii.  3. 
Labor  a  jury,  ii.  3. 
Laches,  ii.  3. 
Lady's  friend,  ii.  3. 
Laesa  majestas,  ii.  3. 
Laga,  ii.  3. 
Lagan,  ii.  3. 
Lahlslit,  ii.  3. 
Lairesite,  ii.  3. 
Laity,  ii.  3. 
Lamb,  ii.  3. 
Lambeth  degree,  ii.  3. 
Land,  ii.  3. 

includes  what,  ii.  4,  2,  3. 

how  used  in  wills,  ii.  4,  3,  4, 
Land  ceap,  ii.  4. 
Land  court,  ii.  4. 
Land-mark,  ii.  4. 
Land  tax,  ii.  4. 
Land  tenant,  ii.  4, 
Landlord,  ii.  4. 
Landlord  and  tenant,  ii.  4-9. 

relation  created,  how,  ii.  4,  2. 

intention  required,  ii.  4, 3, 4, 

relation  commences,  when, 
ii.  6,  5. 

right  of  possession  and  ei.  try, 
ii.  5,  6,  T. 

landlord's  obligation,  ii.  5, 
9-11. 

tenant's  rights  and  duties,  ii. 
6,  12-17. 

rights  and  duties  not  limited 
to  original  parties,  ii.  7, 18. 

termination  of  tenancy,  ii.  7, 
19-23. 

rights  after  termination,  ii.  6, 
24-26. 
Language,  ii.  9. 
Languidus,  ii.  10. 
Lanzas,  ii.  10. 
Lapse,  ii.  10. 
Lapse  patent,  ii.  10. 
Lapsed  device,  ii.  10. 
Lapsed  legacy,  ii.  10. 
Larceny,  ii.  10,  11. 

property  required,  ii.  11,  2. 

taking  in  county,  ii.  11,  3. 

removal  requisite,  ii.  11,  4, 
Las  Partidas,  ii.  1 1. 
Lascivious  carriage,  ii.  11. 
Last  heir,  ii,  11. 
Last  sickness^  ii.  11. 


0 


INDEX. 


713 


Last  will.  ii.  11. 

Latent  ambiguity,  ii.  12. 
Lathe,  ii.  12. 
Latidemeo,  ii,  12. 
Liitifundiuin,  ii.  12. 
Latifundus,  ii.  12. 
Latitat,  ii.  12. 
Laudimium,  ii.  12. 
Launch,  ii.  12. 
Law,  ii.  12-14. 

kinds  of,  ii.  14,  9,  lO. 
Law  borgh,  ii.  14. 
Law  burrows,  ii.  14. 
Law  court  of  appeals,  ii.  14. 
Law  day,  ii.  14. 
Law  French,  ii.  14. 
Law  of  the  Innd,  ii.  15. 
Law  Latin,  ii.  15. 
Law  merchant,  ii.  15. 
Law  of  nations,  ii.  15. 
Law  of  nature,  ii.  15. 
Law  of  the  staple,  ii.  14, 16. 
Lawful,  ii.  16. 
Lawful  money,  ii.  16. 
Lawing  of  dogs,  ii.  16. 
Lawless  court,  ii.  16. 
Lawless  man,  ii.  16. 
Lawsuit,  ii.  16. 
Lawyer,  ii.  16. 
Lay,  ii.  16. 

Lay  corporation,  ii.  16. 

Lay  damages,  ii.  16. 

Lay  days,  ii.  16. 

Lay  fee,  ii.  16. 

Lay  impropriator,  ii.  16. 

Layman,  ii.  16. 

Lay  people,  ii.  16. 

Lazaret,  ii.  16. 

Le  roi  s'avisera,  ii.  16. 

Le  roi  le  veut,  ii.  16. 

Le  roi  veut  en  deliberer,  ii.  16. 

Leading  a  use,  ii.  17. 

Leading  case,  ii.  17. 

Leading  counsel,  ii.  17. 

Leading  question,  ii.  17. 

League,  ii.  17. 

Leakage,  ii.  17. 

Leal,  ii.  17. 

Leap  year,  ii.  17. 

Lease,  ii.  17-19. 

general  qualities,  ii.  17,  1-3. 
what  may  be  leased,  ii.  18,  4» 
may  be  oral  or  written,  ii.  18, 
5,  6. 

who  may  make,  ii.  18,  T-9. 

duration,  ii.  18,  lO. 

formal  parts,  ii.  19,  11, 

forfeiture,  ii,  19,  12. 

termination,  ii.  19,  13. 
Lease  and  release,  ii.  19. 
Leasehold,  ii.  20. 
Leasing-making.  ii.  20. 
Leave  of  court,  ii.  20. 
Lector  de  letra  antiqua,  ii.  20. 
Ledger,  ii.  20. 
L«dger-book,  ii.  20. 
Legacy,  ii.  20-24. 

kinds  of,  ii.  20,  1. 

who  may  be  legatees,  ii.  21, 2. 

construction  of,  ii.  21,  3. 

cumulative  or  repeated,  ii.  21, 
4. 

description  of  legatee,  ii.  22, 
5-T. 

interest  of  legatees,  ii.  22, 8- 
lO. 

abatement  of,  ii.  20,  4,  23,  i 
lO. 

ademption  of,  ii.  23,  11.  { 


Legacy : 

payment  of,  ii.  2'.].  11,  12. 
satisfaction  of  debt  by,  ii.  24, 
13. 

release  of  debt  by,  ii.  24,  13. 
Legal,  ii,  24. 
Legal  assets,  ii.  24. 
Legal  estate,  ii,  24. 
Legal  tender,  ii.  24. 
Legalis  homo,  ii.  25. 
Legalization,  ii.  24. 
Legantine  constitutions,  ii.  25. 
Legatary,  ii.  25. 
Legatee,  ii.  25. 
Legates,  ii.  25. 
Lcgati  a  latere,  17. 
Legation,  ii.  25. 
Legatory,  ii.  25. 
Leges,  ii.  25. 
Legislative  jKiwcr,  ii.  25. 
Legislator,  ii.  25. 
Legislature,  ii.  25. 
Legitim,  ii.  25. 
Legitimacy,  ii.  26. 
Legitimate,  ii.  26. 
Legitimation,  ii.  26. 
Legitime,  ii.  26. 
Lender,  ii.  26. 
Lesion,  ii.  26. 
Lessee,  ii.  26. 
Lessor,  ii.  27. 
Lestage,  ii.  27. 
Let,  ii.  27. 
Letter,  ii.  27. 

contracts  made  by,  ii.  27,  3. 
Letter  of  advice,  ii.  27. 
Letter  of  advocation,  ii.  27. 
Letter  of  attorney,  ii.  27. 
Letter-book,  ii.  27. 
Letter-carrier,  ii.  27. 
Letter  of  credence,  ii.  27. 
Letter  of  credit,  ii.  27. 

kinds  of.  ii.  28,  2. 

nature  of  debt,  ii.  28,  3. 
Letter  of  license,  ii.  28. 
Letter  of  marque  and  reprisal,  ii. 
28. 

Letter  missive,  ii.  28. 

Letter  of  recall,  ii.  28. 

Letter  of  recommendation,  ii.  28. 

Letter  of  recredentials,  ii.  28. 

Letters  of  administration,  ii.  28. 

Letters  close,  ii.  28. 

Letters  ad  colligendum,  ii.  29. 

Letters  patent,  ii.  29. 

Letters  of  request,  ii.  29. 

Letters  rogatory,  ii,  29, 

Letters  testamentary,  ii.  29-33. 

formal  proceedings,  ii.  29,  2. 

when  granted,  ii.  30,  3. 

revocation  of,  ii,  30,  4. 

foreign  effect,  ii,  30.  5. 

statutory  provisions,  ii.  3u, 
6-21. 
Letting  out,  ii.  33. 
Levandje  navis  causa,  ii.  33. 
Levari  facias,  ii.  33. 
Levato  velo,  ii.  34. 
Levir.  ii.  34. 
Levitical  degrees,  ii.  34. 
Levy.  ii.  34. 
Levying  war,  ii.  34. 
Lex,  ii.  34. 
Lex  faleidia,  ii.  34. 
Lex  fori,  ii.  34,  35. 
Lex  loci,  ii.  35-38. 

contracts,  ii.  35,  I-IO. 

determines  validity  of, 
ii.  35,  1-6. 


Lex  loci : 

as  affected  by  capa- 
city of  parties,  ii. 
36,  3,  4. 

legality  of  acta  to 
be  done,  ii.  36,  5f 
6. 

governs  interpretation 
and  construction  of,  ii. 
36,  7,  8. 
question  of  discharge,  iL 
36,  »,  lO. 
torts,  ii.  37,  11. 
marriage,  ii.  37,  11-13. 
Lex  Longobardorum,  ii.  38. 
Lex  mercatoria,  ii.  38. 
Lex  rei  sitau,  ii.  38,  39. 

as  to  conveyance  of  real  es- 
tate, H.  H8,  2. 
as  to  capacity  of  parties, 

ii.  38,  3. 
as  to  forms  and  solemni- 
ties, ii.  38,  4. 
rule  as  to  contracts  to 
convey,  ii.  39,  5. 
Lex  talionis,  ii.  39. 
Lex  terras,  ii.  39. 
Ley,  ii.  39. 
Ley  gager,  ii.  39. 
Leyes  de  estillo,  ii.  39. 
Liability,  ii.  39. 
Libel,  ii.  39-41. 

in  practice,  ii,  39,  1-7. 

should  contain  what,  iu 

39,  1-3. 
form   recommended,  IL 

39,  4-6. 
first  proceeding  in  ad- 
miralty, ii.  40,  T. 
in  torts,  ii.  40.  T-Hl. 

defined,  ii.  40,  T,  8. 
publication,  ii.  40,  fl  • 
11. 

justification,  775,  2. 
Libel  of  accusation,  ii.  41. 
Libellant,  ii.  41. 
Libellee,  ii,  41. 
Libellus,  ii,  41, 
Libellus  famosus,  ii,  42. 
Liber,  ii.  42. 
Liber  assisarum,  ii.  42. 
Liber  feudorum,  ii,  42. 
Liber  homo,  ii,  42. 
Liber  judiciarum,  ii.  42. 
Liber  et  legalis  homo,  ii.  42. 
Liberate,  ii.  42. 
Liberation,  ii.  42. 
Liberti,  ii.  42. 
Liberty,  ii.  42-44. 
Liberty  of  the  press,  ii.  44. 
Liberty  of  speech,  ii.  44. 
Liberum  maritagium  ii.  45. 
Liberum  servitium,  ii.  45. 
Liberum  tenementum,  ii.  45. 
Licenciado,  ii.  45. 
License,  n.  45. 

in  contracts,  ii.  45.  1-3. 
executory,  ii.  45,  2. 
executed,  ii.  45,  3. 

in  international  law,  ii.  45- 

in  patent  law,  ii.  46. 

in  pleading,  ii.  46 
Licentia  concordandi,  ii.  46. 
Licentia  loquendi.  ii.  46. 
Licentia  surgendi,  ii.  46. 
Licentia  transfretandi,  ii.  46. 
Licentiousness,  ii.  46. 
Licet,  ii.  46. 

Licet  saspius  requisitus,  ii.  4*^, 


714 


INDEX. 


Licitacion,  ii.  46. 
Litlford  law,  ii.  46. 
Liege,  ii.  46. 
Liege  poustie,  ii.  46. 
Lien,  ii.  47-54. 

common-law  lien,  ii.  47,  2- 
11. 

existing  by  law,  ii.  47, 
2,  3. 
by  usage,  ii.  47,  3, 
4. 

by  express  agree- 
ment, ii.  48,  5. 
bv  bailment,  ii.  48, 
'6-8. 
requisites  for  creating, 

ii.  48,  9,  lO. 
waiver,  ii.  49,  10-12. 
civil  law  litn,  ii.  49,  13-16. 
equitable  liens,  ii.  50, 11-20, 
maritime  liens,  ii.  51,21-32. 
of  shijiper  of  goods,  ii. 

51,  22. 
of  owner  and  charterer, 

ii.  51,  23,  24. 
of  master,  ii.  51,  25,26. 
of  seamen,  ii.  52,  2T. 
of  material  men,  ii.  52, 
28. 

collision,  ii.  52,  30. 
ship's  husband,  ii.53,31. 
statutory  liens,  ii.  53,  33-42. 
judgment  lien,  ii.  53,33- 
38. 

mechanic's  lien,  ii.  53, 
38-42. 
Lieutenant,  ii.  54. 
Life,  ii.  54. 
Life-annuity,  ii.  54. 
Life-assurance,  ii.  55. 
Life-rent,  ii.  55. 
Life-renter,  ii.  55. 
Ligan,  ii.  55. 
Ligeance,  ii.  55. 
Lighterman,  ii.  55. 
Lighters,  ii.  55. 
Lights,  ii.  55. 
Limitations : 

of  civil  remedies,  ii.  55-74. 
in  general,  ii.  55,  1-6. 
as  to  personal  actions, 
ii.  55,  T-60. 
accruing  of  cause  of 
action,  ii.  56,  7- 
14. 

adverse  possession, 
ii.  57,  15. 

computation  of 
time,  ii.  57,  16. 

exceptions  to  gene- 
ral rule,  ii.  57, 
lT-23. 

beyond  seas,  ii.  58, 
22. 

commencement  of 
procuss,ii. 59,24- 
26. 

lex  fori  governs,  ii. 

59,  21. 
public  rights,  ii.  59, 

28. 

particular  classes  of, 

ii.  59,  29-33. 
statute  bar  avoided, 

ii.  60,  34-44. 
Dew  promise,  ii.  62, 
45-60. 
M  to  real  property  and 
rights,  ii.  65-69. 


Limitations: 

adverse  possession, 
ii.  65,  64-85. 

trustees,  ii.  68,  86. 

disabilities,  ii.  69, 
8T. 

special  statutes,  ii.  69- 
74. 

of  criminal  proceedings,  ii. 
74. 

of  estates,  ii.  74. 
Line,  ii.  74. 

descents,  ii.  74,  1-4, 

estates,  ii.  75,  5-7. 
Linea  recta,  ii.  75. 
Linea  transversalis,  ii.  75. 
Lineal,  ii.  75. 
Lineal  warranty,  ii.  75. 
Lines  and  corners,  ii.  75. 
Liquidate,  ii.  75. 
Liquidated  damages,  ii.  75. 
Liquidation,  ii.  76. 
Lira,  ii.  76. 
Lis  mota,  ii.  76. 
Lis  pendens,  ii.  76. 

what  constitutes,  ii.  76,  2,  3. 

effect  of  an  assignment,  ii.  76, 
4-1. 
List,  ii.  77. 
Listers,  ii.  77. 
Literae  procuratoriae,  ii.  77. 
Literal  contract,  ii.  77. 
Literary  property,  ii.  77. 
Litigant,  ii.  77. 
Litigation,  ii.  77. 
Litigiosity,  ii.  77. 
Litijrious,  ii.  77. 
Litigious  rights,  ii.  77. 
Litispendencia,  ii.  77. 
Litre,  ii.  78. 
Littoral,  ii.  78. 
Litus  maris,  ii.  78. 
Livery,  ii.  78. 
Livery  of  seisin,  ii.  78. 
Livingston's  code,  284,  22. 
Livre  tournois,  ii.  78. 
Loadmanage,  ii.  78. 
Loan,  ii.  78. 

Loan  for  consumption,  ii.  78. 
Loan  for  use.  ii.  79. 

in  general,  ii.  79,  2. 

borrower's  rights,  ii.  79,  3. 

lender's  rights,  ii.  79,  4. 
Loan  societies,  ii.  79. 
Local  action,  ii.  79. 
Local  allegiance,  ii.  79. 
Local  statutes,  ii.  79. 
Locality,  ii.  79, 
Locatio,  ii.  79. 

Locatio  mercium  vehendarum,  ii. 
80. 

Locatio  operis,  ii.  80. 
Locatio  operis  faoiendi,  ii.  80. 
Locatio  rei,  ii.  80. 
Location,  ii.  80. 
Locative  calls,  ii.  80. 
Locator,  ii.  80. 
Lock-up  house,  ii.  80. 
Loco  parentis,  692,  ii.  80. 
Locus  contractus,  ii.  80. 
Locus  delicti,  ii.  80. 
Locus  poenitentise,  ii.  80. 
Locus  in  quo,  ii.  80. 
Locus  rei  sitae,  ii.  80. 
Locus  sigilli,  ii.  80. 
Lodger,  ii.  81. 
Lods  et  rentes,  ii.  81. 
Log-book,  ii.  81, 
Loquela,  ii.  81. 


Lord's  day,  ii.  81. 

Lord  mayor's  court,  ii.  81. 

Loss,  ii.  81. 

Lost  papers,  ii.  81. 

Lost  or  not  lost,  ii.  82. 

Lot,  ii.  82. 

Lot  of  ground,  ii.  82. 
Lottery,  ii.  82. 
Louisiana,  ii.  82,  83. 

legislative  power,  ii.  82,  3. 

executive  power,  ii.  82,  4,  5. 

judicial  power,  ii.  83,  5,  6. 
Low-water  mark,  ii.  83. 
Loyal,  ii.  83. 
Loyalty,  ii.  83. 
Lucid  intervals,  ii.  83,  84. 
Lucrative  succession,  ii.  84. 
Lucri  causa,  ii.  85. 
Lucrum  cessans,  ii.  85. 
Luggage,  ii.  85. 
Lunacy,  ii.  85. 

as  plea  in  abatement,  21, 16c 
Lunar,  ii.  85. 
Lunatic,  ii.  85. 
Lyef-geld,  ii.  85. 
Lying  in  grant,  ii.  85. 
Lying  in  wait,  ii.  85. 
Lynch-Iaw,  ii.  85. 

M. 

M,  ii.  85. 

Mace-bearer,  ii.  85. 

Macedonian  decree,  ii.  85. 

Machination,  ii.  85. 

Machine,  ii.  85. 

Made  known,  ii.  86. 

Magister,  ii.  86. 

Magister  ad  facultatis,  ii.  86. 

Magister  navis,  ii.  86. 

Magister  societatis,  ii.  86. 

Magistracy,  ii.  86. 

Magistralia  brevia,  ii.  86. 

Magistrate,  ii.  86. 

Magistrate's  court,  ii.  86. 

Magna  Charta,  ii.  86-88. 
history  of,  ii.  86,  1, 
analysis  of,  ii.  87,  2-5. 

Mahl  brief,  ii.  88. 

Maiden,  ii.  88. 

Maiden  rents,  ii.  88. 

Maihem,  ii.  88. 

Mail,  ii.  88. 

Maile,  ii.  88. 

Mails  and  duties,  ii.  88. 

Maim,  ii.  88. 

Maine,  ii.  88. 

legislative  power,  ii.  88,  3f 
4. 

executive  power,  ii.  89,  4,  5 
judicial  power,  ii.  89,  5,  6. 

Mainour,  ii.  89. 

Mainpernable,  ii.  89. 

Mainpernors,  ii.  89. 

Mainprise,  ii.  89. 

Mainsworn,  ii.  89. 

Maintained,  ii.  89. 

Maintainors,  ii.  89. 

Maintenance,  ii.  90. 

Maison  de  Dieu,  ii.  90. 

Majesty,  ii.  90. 

Major,  ii.  90. 

Major-general,  ii.  90. 

Majores,  ii.  90. 

Majority,  ii.  90. 

Make,  ii.  90. 

Maker,  ii.  91, 

Making  his  law,  ii.  91. 

Mala  tides,  ii.  91. 


INDEX. 


715 


Mala  praxis,  ii.  91. 

kinds  of,  ii.  91,  1. 

is  a  misdemeanor,  ii.  91,  2. 

civil  remedy  for,  ii.  91,  3. 

surj,^eon's  duty,  ii.  91,  4. 
Mala  prohibita,  ii.  91. 
Male,  ii.  91. 
Malediction,  ii.  91. 
Malefactor,  ii.  91. 
Maleficium,  ii.  91. 
Malfea^anco,  ii.  91. 
Malice,  ii.  91. 

in  criminal  law,  ii.  91. 

in  torts,  ii.  92. 
Malice  aforethought,  ii.  92. 
Malicious  abandonment,  ii.  92. 
Malicious  arrest,  ii.  92. 
Malicious  injury,  ii.  92. 
Malicious  mischief,  ii.  92. 
Malicious  prosecution,  ii.  92. 

lies  against  whom,  ii.  92,  3. 

requisite  grounds,  ii.  93,  4. 

malicious   action    must  be 
ended,  ii.  93,  5. 
Malum  in  se,  ii.  93. 
Malveilles,  ii.  93. 
Malversation,  ii.  93. 
Man,  ii.  93. 
Manger,  ii.  93. 
Manbote,  ii.  93. 
Mancipium,  ii.  93. 
Mandamus,  ii.  93-95. 

use  of,  ii.  94,  2. 

controls  whom,  ii.  94,  3-5. 

must  not  be  delay,  ii.  94,  6. 

is  a  discretionary  writ,  li.  94, 
7. 

by  whom  issued,  ii.  95,  8. 
mode  of  proceeding,  ii.  95,  9. 
English  statute,  ii.  95,  10, 
11. 

Mandant,  ii.  95. 
Mandatory,  ii.  95. 
Mandate,  ii.  95. 

creation  of,  ii.  96,  2. 

obligation  of,  ii.  96,  3. 

dissolution  of  contract,  ii.  96, 
4. 

in  civil  law,  ii.  96,  4. 
Mandator,  ii.  96. 
Mandavi  ballivo,  ii.  96. 
Manhood,  ii.  96. 
Mania,  ii.  96-99. 
Mania  a  potu,  ii.  99. 
Manifest,  ii.  99. 
Manifesto,  ii.  99. 
Mankind,  ii.  99. 
Manner  and  form,  ii.  99. 
Mannopus,  ii.  100. 
Manor,  ii.  100. 
Manse,  ii.  100. 
Mansion-house,  ii.  100. 
Manslaughter,  ii.  100. 

kinds  of,  ii.  100,  1. 

homicide  becomes,  when,  ii. 
100,  2,  3. 

cases  of  mutual  combat,  ii. 
100,  4. 

cases  of  wauton  mischief,  ii. 
100,  5. 
Maustealing,  ii.  101. 
Manu  forti,  ii.  101. 
Manu  opera,  ii.  101. 
Manual,  ii.  101. 
Manucaptio,  ii.  101. 
Mahucaptors,  ii.  101. 
Manufacture,  ii.  101. 
Manumission,  ii.  101. 
Manure,  ii.  102. 


Manus,  ii.  102. 
Manuscript,  ii.  102. 
Marauder,  ii.  102. 
Marc-banco,  ii.  102. 
March,  ii.  102. 
Marchers,  ii.  102. 
Marches,  ii.  102. 
Marescullus,  ii.  102. 
Maretum,  ii.  103. 
Marinarius,  ii.  103. 
Marine,  ii.  103. 
Marine  contract,  ii.  103. 
Marine  corps,  ii.  103. 
Marine  court,  etc.,  ii.  103. 
Marine  insurance,  ii.  103. 
Marine  interest,  ii.  103. 
Marine  league,  ii.  103. 
Mariner,  ii.  103. 
Maritagium,  ii.  103. 
Marital,  ii.  103. 
Marital  portion,  ii.  103, 
Maritime  cause,  ii.  103. 

term  includes  what,  ii.  103, 
2. 

collision  cases,  ii.  104,  3. 
salvage  cases,  ii.  104,  4. 
maritime  contracts,  ii.  104, 
5,  6. 

Maritime  contract,  ii.  104. 
Maritime  law,  ii.  104. 
Maritime  loan,  ii.  105. 
Maritime  profit,  ii.  105. 
Mark,  ii.  105. 
Market,  ii.  105. 
Market  overt,  ii.  105. 
Marlbridge,  ii.  105. 
Marque  and  reprisal,  ii.  105. 
Marriage,  ii.  105. 

parties  must  be  able,  ii.  105, 
1,2. 

must  be  willing,  ii.  106,  3. 
must  contract,  ii.  106,  4. 
requisite  of  form,  ii.  106,  5. 
statutory  provisions,  ii.  106, 
6. 

Marriage  articles,  ii.  106. 
Marriage  brokage,  ii.  106. 
Marriage  portion,  ii.  107. 
Marriage,  promise  of,  ii.  107. 
Marriage  settlement,  ii.  107. 
Marshal,  ii.  107. 
Marshalling  assets,  ii.  107. 
Marshal  sea,  ii.  107. 
Martial  law,  ii.  107. 
Maryland,  ii.  107. 

history,  ii.  107,  1-4. 

legislative  power,  ii.  108,  5. 

executive  power,  ii.  108,  6. 
'      judicial  power,  ii.  108,  T. 
Massachusetts,  ii.  109. 

history  of,  ii.  109,  2,  3. 

declaration  of  rights,  ii.  109, 
4. 

frame  of  government,  ii.  110, 
5. 

legislative  power,  ii.  110,  6. 
executive  power,  ii.  110,  T, 
8. 

judicial  power,  ii.  Ill,  9-12. 
Master,  ii.  112. 

entitled  to  services  for  term, 

ii.  112,  2. 
may  defend  servant,  ii.  112, 
3. 

how  far  liable  for  injuries  to, 
ii.  112,  4. 
Master  in  chancery,  ii.  112. 
Masters  at  common  law,  ii.  113. 
Master  of  the  crown  office,  ii.  113. 


Master  of  the  roll?,  ii.  113. 
Master  ()f  a  ship,  ii.  113. 

must  be  a  citizen,  ii.  J 13,  I. 

is  selected  by  owner.-!,  ii.  113, 
2. 

duties  of,  ii.  113,  S-S. 

authority  of,  ii.  Il  l,  «,  T 

has  a  lien,  ii.  51,  25,  2Gf 
114,  8. 
Mate,  ii.  ]  14. 
Materfamil  as,  ii.  114. 
Material  men,  ii.  114. 
Materiality,  ii.  115. 
Materials,  ii.  115. 
Materna  maternis,  ii.  115, 
Maternal,  ii.  115. 
Maternal  property,  ii.  115. 
Maternity,  ii.  115. 
Matertera,  ii.  115. 
Matertera  magna,  ii.  115. 
Matertera  major,  ii.  115. 
Matertera  maxima,  ii.  115. 
Mathematical  evidence,  ii.  1^5. 
Matima,  ii.  115. 
Matricula,  ii.  115. 
Matrimonial  causes,  ii.  115 
Matrimonium,  ii.  115. 
Matron,  ii.  115. 
Matter  in  deed,  ii.  115. 
Matter  of  fact,  ii.  115. 
Matter  of  law,  ii.  115. 
Matter  in  pais,  ii.  115. 
Matter  of  record,  ii.  116. 
Maturity,  ii.  116. 
Maxims,  ii.  116-163. 

defined,  ii.  116,  1,  2. 

applicition  of,  ii.  116,  3. 

list  of,  ii.  116-163. 
May,  ii.  163. 
Mayhem,  ii.  163. 
Maj'hemavit,  ii.  164. 
Mayor,  ii.  164. 
.Mayor's  court,  ii.  164. 
Mayorazgo,  ii.  164. 
Meander,  ii.  164. 
Measure,  ii.  164. 

of  length,  ii.  164,  4. 

of  surface,  ii.  164,  5. 

of  solidity  and  capacity  iL 
164,  5. 

of  weight,  ii.  1 65,  6. 

angular,  ii.  165,  f». 

of  time,  ii.  165,  6. 

French  measures,  ii.  165,  T- 
11. 

of  capacity,  ii.  165,  8. 
of  weight,  ii.  165,  8. 
of  surfaces,  ii.  165,  8. 
of  solidity,  ii.  165,  9. 
of  money,  ii.  165,  9. 
modes  of  expression,  ii, 

166,  lO. 
table  for  reduction,  ii, 

166,  11. 

Measure  of  damages,  ii.  166-171, 
bills  of  exchange,  ii.  166,  2- 
29. 

Alabama,  ii.  166,  2. 
Arkansas,  ii.  166,  3. 
California,  ii.  167,  4. 
Connecticut,  ii.  167,  5« 
Delaware,  ii.  167.  6. 
Florida,  ii.  167,  1. 
Georgia,  ii.  167,  8. 
Illinois,  ii.  167,  9. 
Indiana,  ii.  167,  10, 
Iowa,  ii.  167,  11. 
Kentucky,  ii.  167,  12, 
Louisiana,  ii.  167.  I3» 


INDEX. 


M  /sure  of  damages: 

Maine,  ii.  167,  14, 
Maryland,  ii.  168,  15. 
MassacUusetts,  ii.  168, 
16. 

Michigan,  ii.  168,  IT. 
Minnesota,  ii.  168,  18. 
Mississippi,  ii.  168,  19. 
Missouri,  ii.  168,  19. 
New  York,  ii.  168,  20. 
North  Carolina,  ii.  169, 
21. 

Ohio,  ii.  169,  22. 
Oregon,  ii.  169,  23. 
Pennsylvania,   ii.  169, 
24. 

Rhode  Island,  ii.169,24. 
South  Carolina,  ii.  169, 
25. 

Tennessee,  ii.  169,  26. 
Texas,  ii.  169,  2T. 
Virginia,  ii.  170,  28. 
Wisconsin,  ii.  170,  29. 
carriers,  ii.  170,  30. 
collision,  ii.  170,  31. 
contracts,  ii.  170,  32. 

for  land,  ii.  170,  32. 
eviction,  ii.  170,  33. 
incumbrances,  ii.  171,  34, 
insurantse,  ii.  171,  34, 
sales,  ii.  171,  35, 
Muason  due,  ii.  171. 
Mediate  powers,  ii.  171. 
Mediation,  ii.  171. 
Mediator,  ii.  171. 
Medical  evidence,  ii.  171. 

is  that  of  experts,  ii.  171,  2, 
witness  not   privileged,  ii. 

172,  3. 
medical  books,  ii.  172,  4. 
Medical  jurisprudence,  ii.  172. 
Medicine  chest,  ii.  173. 
Medietatis  linguae,  ii.  173. 
Melancholia,  ii.  173. 
Meliorations,  ii.  173. 
Melius  inquirendum,  ii.  173. 
Member,  ii.  173. 
Member  of  congress,  ii.  173. 
Members,  ii.  173. 
Membrana,  ii.  173. 
Memorandum,  ii.  173. 

in  English  practice,  ii.  173, 1. 
in  insurance,  ii.  173,  2. 

nature  of  exceptions,  ii. 

173,  2. 
construction  of,  ii.  173, 
3. 

Memorandum  check,  ii.  174. 
Memorial,  ii.  174. 
Memory,  ii.  174. 
Memory,  time  of,  ii.  174. 
Menace,  ii.  174. 
Menial,  li.  174. 
Mensa,  ii.  174. 
Mensa  et  thoro,  ii  174. 
Mercantile  law,  ii.  174. 
Mercatum,  ii.  174. 
Mercen-laga,  ii.  174. 
Merces,  ii.  174. 
Merchandise,  ii.  174. 
Merchant,  ii.  174. 
Merchantman,  ii.  175. 
Mercy,  ii.  175. 

in  practice,  ii.  175. 

in  criminal  law,  ii.  175. 
Mere,  ii.  175. 
Merger,  ii.  175. 

in  estates,  ii.  175,  1,  2. 

in  criminal  law.  ii.  175,  3. 


Merger : 

of  rights,  ii.  175,  3,  4. 

in  torts,  ii.  175,  4,  5. 
Merits,  ii.  176. 
Merton,  statute  of,  ii.  176. 
Mescroyant,  ii.  176. 
Mese,  ii.  176. 
Mesne,  ii.  176. 
Mesne  lord,  ii.  176. 
Mesne  process,  ii.  176. 
Mesne  profits,  ii.  176. 
Mesne,  writ  of,  ii.  176. 
Mess  beef,  ii.  176. 
Messenger,  ii.  176. 
Messuage,  ii.  176. 
Metes  and  bounds,  ii.  176. 
Method,  ii.  176. 
Metre,  ii.  177. 
Metus,  ii.  177. 
Michaelmas  term,  ii.  177. 
Michel-gemot,  ii.  177. 
Michel-synoth,  ii.  177. 
Michigan,  ii.  177. 

legislative  power,  ii.  177,  3. 

executive  power,  ii.  177,  4, 
5. 

judicial  power,  ii.  178,  6-9. 

jurisprudence,  ii.  178,  9. 
Middle  thread,  ii.  178. 
Middleman,  ii.  178. 
Midwife,  ii.  178. 
Mieses,  ii.  178. 
Mile,  ii.  178. 
Mileage,  ii.  179. 
Miles,  ii.  179. 
Military  law,  ii.  179. 
Militia,  ii.  179. 
Mill,  ii.  179. 
Mill,  ii.  180. 
Milled  money,  ii.  180. 
Mil-reis,  ii.  isO. 
Mind  and  memory,  ii.  180. 
Mine,  ii.  180. 

how  constructed,  ii.  180. 

superincumbent  soil,  ii.  180. 

in  California,  ii.  180. 
Minerals,  ii.  180. 
Minister,  ii.  181. 

in  governmental  law,  ii.  181. 

in  ecclesiastical  law,  ii.  181. 

in  international  law,  ii.  181. 
Ministerial,  ii.  I8l. 
Ministerial  trusts,  ii.  181. 
Minnesota,  ii.  181. 

bill  of  rights,  ii.  181,  2. 

suffrage,  ii.  181,  3. 

legislative    department,  ii. 
181,  4,  5. 

executive  department,  ii.  182* 
6,  T. 

judicial  power,  ii.  182,  T. 
Minor,  ii.  182. 
Minority,  ii.  182. 
Mint,  ii.  182. 
Minute,  ii.  183. 

measure,  ii.  183. 

in  practice,  ii.  183. 
Minute-book,  ii.  183. 
Minute  tithes,  ii.  183. 
Mirror  des  justices,  ii.  183. 
Misadventure,  ii.  183. 
Misbehavior,  ii.  183. 

bond  to  prevent,  ii.  183. 

toward  jury,  ii.  183. 
Miscarriaj;e,  ii.  183. 

in  practice,  ii.  183. 
Miscasting,  ii.  183. 
Miscognizant,  ii.  183. 
Misconduct,  ii.  183. 


Miscontinuance,  ii.  <183. 
Misdemeanor,  ii.  184. 
Misdirection,  ii.  184. 

in  points  of  law,  ii.  184,  2. 

on  points  of  fact,  ii.  184,  3. 

exception  must  be  taken,  iL 
184,  4. 
Mise,  ii.  184. 

Miserabile  depositum,  ii.  184. 
Misericordia,  ii.  184. 
Misfeasance,  ii.  185. 
Misjoinder,  ii.  185. 

in  pleading,  21,  IT y  ii.  185. 1* 

of  actions,  ii.  185,  1,  2. 

of  parties,  ii.  185,  3. 
Miskenning,  ii.  185. 
Misnomer,  ii.  185. 

as  plea  in  abatement,  22, 18« 
Mispleading,  ii.  185. 
Misprision,  ii.  185. 
Misreading,  ii.  186. 
Misrecital,  ii.  186. 
Misrepresentation,  ii.  186. 
Missing  ship,  ii.  186. 
Mississippi,  ii.  186. 

legislative  power,  ii.  186,  2- 
4. 

executive  power,  ii.  187,  5- 
T. 

judicial  power,  ii.  187,8-10. 
jurisprudence,  ii.  187,  11. 
Missouri,  ii.  187. 

history,  ii.  188,  2. 
legislative  power,  ii.  188,  3. 
executive  powei",  ii.  188,  4, 
5. 

judicial  power,  ii.  188,  6-9# 
Mistake,  ii.  189. 

of  law,  ii.  189,  2. 

of  fact,  ii.  189,  2. 

by  arbitrators,  ii.  189,  3* 
Mistrial,  ii.  189. 
Misuser,  ii.  189. 
Mitigation,  ii.  189. 
Mitior  sensus,  ii.  189. 
Mitter,  ii.  189. 
Mittimus,  ii.  190. 
Mixed  action,  ii.  190. 
Mixed  government,  ii.  190. 
Mixed  larceny,  ii.  190. 
Mixed  property,  ii.  190. 
Mixed  tithes,  ii.  190. 
Mixt  contract,  ii.  190. 
Mixtion,  ii.  190. 
Mobbing  and  rioting,  ii.  190. 
IMobilia,  ii.  190. 
Model,  ii.  190. 
Moderate  castigavit,  ii.  190. 
Moderator,  ii.  190. 
Modification,  ii.  190. 
Modo  et  forma,  ii.  190. 
Modus,  ii.  190. 

in  old  conveyancing,  ii.  191. 
Modus  decimandi,  ii.  191. 
Modus  de  non  decimando,  ii.  191. 
Mohammedan  law,  ii.  191. 
Mohatra,  ii.  191. 
Moiety,  ii.  191. 
Molestation,  ii.  191. 
Molitura,  ii.  191. 
Molliter  manus  imposuit,  ii  191« 
Monarchy,  ii.  191. 
Money,  ii.  192. 
Money  of  adieu,  ii.  192. 
Money  bills,  ii.  192. 
Money  counts,  ii.  192. 
Money  had  and  received,  ii.  193, 
Money  lent,  ii.  193. 
Money  paid,  ii.  193. 


INDEX. 


717 


Moneyed  corporation,  ii.  193. 
Monition,  ii.  193. 
Monitory  letter,  ii.  194. 
Monocracy,  ii.  194. 
Monocrat,  ii.  194. 
Monogamy,  ii.  194. 
Monogram,  ii.  194. 
Monomania,  ii.  194. 
Monopoly,  ii,  194, 
Monster,  ii.  194. 
Mnnstrans  de  droit,  ii.  194. 
Monstrans  de  fait,  ii.  194. 
Monstraverunt,  ii,  194. 
Montes  pietatis,  ii,  194. 
Month,  ii.  19: 

at  common  law,  ii.  195, 

in  statutes,  ii.  195,  3. 

in  New  York,  ii.  195,  4. 
Monument,  ii.  195. 
Monuments,  ii.  195. 
Mooring,  ii.  196. 
Moot,  H,  196. 
Moot  court,  ii,  196. 
Moot  hill,  ii.  196. 
Mora,  ii.  196. 
Moral  certainty,  ii.  196. 
Moral  insanity,  ii.  196. 
Moral  obligation,  ii.  196. 
Moratur  in  lege,  ii,  197. 
More  or  less,  ii.  197. 
Morganatic  marriage,  ii.  197. 
Mort  d'ancestor,  ii.  197. 
Mortgage,  ii.  197,  198. 

kinds  of,  ii.  198,  1. 

subjects  of,  ii.  198,  2, 

form  of,  ii,  198,  2. 

estate  under,  ii,  198,  3. 

assignment  of,  ii.  198,  4, 

foreclosure  of,  ii.  198,  4. 
Mortgagee,  ii,  198. 
Mortgagor,  ii,  199. 
Mortification,  ii.  199. 
Mortmain,  ii.  199. 
Mortuary,  ii.  199. 
Mortuum  vadium,  ii.  199. 
Mortuus,  ii,  199. 
Mosaic  code,  284,  23. 
Mother,  ii.  199. 

duty  of,  ii.  199, 

rights  of,  ii,  199,  3. 

in  Pennsylvania,  ii.  199. 

of  bastard,  ii.  199,  5. 
Mother-in-law,  ii,  199. 
Motion,  ii.  199, 
Motive,  ii,  199. 
Mourning,  ii.  200. 
Movables,  ii,  200. 
Ml  latto,  ii.  200. 
Mulct,  ii.  200. 
Mulier,  ii.  200. 
Multifariousness,  ii.  200. 
Multiple  poinding,  ii.  200. 
Multitude,  ii.  200. 
Multure,  ii.  200. 
Munera,  ii.  200. 
Municeps,  ii.  200. 
Municipal,  ii.  201. 
Municipal  corporation,  ii.  201. 
Municipal  law,  ii.  201. 
Municipality,  ii.  201. 
'    Muniments,  ii.  201. 
Munus,  ii.  201. 
Murage,  ii.  201. 
Mural  monuments,  il.  201. 
Murder,  ii.  201. 

what  constitutes,  ii.  201,  2. 

ptatutory  enactments,  ii.  201, 
3. 

I  in  pleading,  ii,  202,  3. 


Murdium,  ii,  202, 
Musical  composition,  ii.  202. 
Muster,  ii.  202. 
Mustcr-rcll,  ii.  202. 
Mustiro,  ii.  202. 
Mutation,  ii.  2a2. 
Mutation  of  libel,  ii.  202. 
Mutatis  mutandis,  ii.  202. 
Mute,  ii.  202. 
Mutilation,  ii.  203. 
Mutiny,  ii.  203. 
Mutiny  act,  ii.  203. 
Mutual  credits,  ii.  203. 
Mutual  promises,  ii.  203. 
Mutuality,  ii.  203. 
Mutuary,  ii.  203. 
Mutuum,  ii.  203. 
Mystery,  ii.  203. 
Mystic  testament,  ii.  203. 

N. 

Nail,  ii.  204. 
Naked,  ii.  204. 
Name,  ii.  204. 

kinds  of,  ii.  204,  2. 

in  suits  by  or  against  cor- 
porations, ii.  204,  3. 

in  devises,  ii.  204. 
Namium,  ii.  204. 
Narr,  ii.  204. 
Narrator,  ii.  204. 
Narrow  seas,  ii.  204. 
Natale,  ii.  204, 
Nation,  ii.  204. 
National  domain,  ii.  204. 
Nationality,  ii.  204. 
Native,  ii.*^205. 
Natural  affection,  ii.  205. 
Natural  children,  ii.  205. 
Natural  day,  ii.  205. 
Natural  equity,  ii.  205. 
Natural  fool,  ii.  205. 
Natural  fruits,  ii.  205. 
Natural  law,  ii.  205. 
Natural  obligation,  ii.  205, 
Natural  presumptions,  ii.  205. 
Naturalization,  ii.  205. 
Naturalized  citizen,  ii.  205. 
Nauclerus,  ii.  205. 
Naufrage,  ii.  205. 
Naulum,  ii.  206. 
Nauta,  ii.  206. 
Naval  law,  ii.  206. 
Naval  officer,  ii.  206. 
Navarchus,  ii.  206. 
Navigable,  ii.  206. 

technical  use,  ii.  206,  2. 

applies  to  rivers,  ii.  206,  3,  4. 
Navigation  act,  ii.  206. 
Navigation,  rules  of,  ii.  206. 

for  sailing-vessels  about  to 
meet.  ii.  206,  3. 

for  a  sailing  and  steam  ves- 
sel about  to  meet,  ii.  207, 
4, 

for  steam -vessels  about  to 

meet,  ii.  207,  5. 
exhibition  of  lights,  ii.  207, 

6. 

established  by  statute,  ii.  207, 
T,  8. 

United  States  act,  ii.  207,  9- 
14. 

supersedes  other  rules, 

ii.  209,  15, 
effect  of  neglect,  ii.  209, 

IT,  18. 
Navy,  ii.  209. 


Ne  admittas,  ii.  210. 
Ne  baila  pas,  ii.  210. 
Ne  disturba  pas,  ii.  210. 
Ne  dona  pas,  ii.  210. 
Ne  exeat  republica,  ii.  210. 
Ne  luminibus  officiatur,  ii.  210. 
Ne  recipiatur,  ii.  210. 
Ne  relessa  pa.'*,  ii.  210, 
Ne  unjuste  vexes,  ii.  210. 
Ne  unque.'j  accouple,  ii.  210. 
Ne  unques  executor,  ii.  210. 
Ne  unqucs  seisie  que  dower,  iL 
211. 

Ne  unques  son  receiver,  ii.  211. 
Ne  varietur,  ii.  211. 
Neat,  ii.  211. 
Neatness,  ii.  211. 
Nebraska,  ii.  211. 
Necessaries,  ii.  21 1. 

what  are  included,  ii.  211,  2, 
3. 

infants  may  contract  for,  ii. 
211,  4. 

wife  may  contract   for,  ii. 
211,  5. 
Necessity,  ii.  212. 
Negative  averment,  ii.  212. 
Negative  condition,  ii.  212. 
Negative  pregnant,  ii.  212. 
Negative  statute,  ii.  212. 
Negligence,  ii.  212. 
Negligent  escape,  ii.  212. 
Negotiable,  ii.  212. 
Negotiation,  ii.  213. 
Negotiorum  gestor,  ii.  213. 
Neif,  ii.  213. 

Neniine  contradicente,  ii.  213. 

Nephew,  ii.  213. 

Nepos,  ii.  213. 

Neptis,  ii.  213. 

Neutral  property,  ii.  213. 

Neutrality,  ii.  213. 

Nevada,  ii.  214. 

Never  indebted,  ii.  214. 

New  and  useful  invention,  ii.  214. 

New  assignment,  ii.  214. 

New  Brunswick,  ii.  214. 

executive  department,  ii.  215, 
3,4. 

legislative   department,  ii. 

215,  5-8. 
judicial  department,  ii.  215, 
9,  lO. 
New  for  old,  ii.  216. 
New  Hampshire,  ii.  216. 

legislative  power,  ii.  216,  3. 
executive  power,  ii.  216,  4, 
5. 

judicial  power,  ii.  217,  6, 
New  Jersey,  ii.  217. 

legislative  power,  ii.  218,  6, 
T. 

executive  power,  ii.  218,  T, 
8. 

judicial  power,  ii.  218,  9-11* 
New  matter,  ii.  219. 
New  Mexico,  ii.  219. 

legislative  power,  ii.  219,  3. 

executive  power,  ii.  219,  4. 

judicial  power,  ii.  219,  5«  6. 
New  promise,  ii.  220. 
New  trial,  ii.  220. 

not  giving  defendant  suflB- 
cient  notice  of  trial,  ii.  220, 
2. 

mistakes  of  oflBcers,ii.  220,  3. 
disqualification  of  juror.s,  ii. 

220,  4. 
prejudicing  jury,  ii.  220,  5. 


718 


INDEX. 


New  trial  : 

misconduct  of  jury,  ii.  221, 
6. 

error  of  the  judge,  ii.  221,  T. 
surprise,  ii.  221,  8. 
after-discdvered  testimony, 

ii.  222,  9. 
excessive  damages,  ii.  222, 9. 
verdict  against  law,  ii.  222, 

lO.  I 
verdict  against  evidence,  ii.  [ 

222,  lO. 
verdict   uncertain,   ii.  222, 

lO. 

in  equity,  ii.  223,  11,  12.  ^ 
in  criminal  cases,  ii.  223,  13. 
New  York,  ii.  223. 

legislative  power,  ii.  223,  3, 
4. 

executive  power,  ii.  224,  5, 
6. 

judicial  power,  ii.  224,  T-14.  ! 
Newly  discovered  evidence,  ii. 
226. 

Newspapers,  ii.  226. 

Nexi,  ii.  226. 

Next  friend,  ii.  226. 

Next  of  kin,  ii.  226. 

Nexum,  ii.  226. 

Niece,  ii.  227. 

Niefe,  ii.  227. 

Nient  comprise,  ii.  227. 

Nient  culpable,  ii.  227. 

Nient  dedire,  ii.  227. 

Nient  le  fait,  ii.  227. 

Night,  ii.  227. 

Night  walkers,  ii.  227. 

Nihil  capiat  per  breve,  ii.  227. 

Nihil  diclt,  ii.  227. 

Nihil  habet,  ii.  227. 

Nil  debet,  ii.  227. 

Nil  habuit  in  tenementis,  ii.  227. 

Nisi  prius,  ii.  227. 

Nisi  prius  roll,  ii.  228. 

No  award,  ii.  228. 

No  bill,  ii.  228. 

Nobile  officium,  ii.  228. 

Nobility,  ii.  228. 

Nocumentum,  ii.  228. 

Nolle  prosequi,  ii.  228. 

may  be  entered  in  criminal 
or  civil  case,  ii.  228,  'Z, 

eflfect  of,  ii,  228,  3. 

in  civil  cases,  ii.  228,  4,  5. 
Nomen,  ii.  228. 
Nomen  coUectivum,  ii.  229. 
Nomen  generalissimum,  ii.  229. 
Nominal  damages,  ii.  229. 
Nominal  plaintiff,  ii.  229. 
Nominate  contract,  ii.  229. 
Nomination,  ii.  229. 
Nomine  poenae,  ii.  229. 
Nominee,  ii.  230. 
Non  acceptavit,  ii.  230. 
Non-access,  ii.  230. 
Non-age,  ii.  230. 
Non-assumpsit,  ii.  230. 
Non  assumpsit  infra  sex  annos, 

ii.  230. 
Non  bis  in  idem,  ii.  230. 
Non  cepit  mode  et  forma,  ii.  230. 
Non-claim,  ii.  230. 
Non  comi)OS  mentis,  ii.  230. 
Non  concessit,  ii.  230. 
Non-conformista,  ii.  230. 
Non  constat,  ii.  230. 
Non  culpabilis,  ii,  230. 
Non  duinnificatus,  ii,  231. 
Non  dcdit,  ii.  231. 


Non  deraisit,  ii.  231. 
Non  detinet,  ii,  231, 
Non  est  factum,  ii,  231. 
Non  est  inventus,  ii.  231. 
Non-feasance,  ii.  231. 
Non  fecit,  ii.  231. 
Non  fecit  vastum,  etc,  ii.  231. 
Non  impedivit,  ii.  231. 
Non   infregit  conventionem,  ii. 
23], 

Non-joinder,  ii,  231. 

as  plea  in  abatement,  22,  20- 
22. 

Non -jurors,  ii.  232. 

Non  liquet,  ii.  232, 

Non  obstante,  ii,  232. 

Non  obstante  veredicto,  ii.  232. 

Non  omittas,  ii.  232.  " 

Non-plevin,  ii.  232. 

Non  pros.,  ii,  232. 

Non-residence,  ii,  232. 

Non  submissit,  ii.  232. 

Non  sum  informatus,  ii.  232. 

Non  tenuit  insimul,  ii.  232. 

Non-tenure,  ii.  232. 

Non-term,  ii.  233. 

Non-user,  ii.  233, 

Nonsense,  ii,  233, 

Nonsuit,  ii,  233. 

kinds  of,  ii,  233,  1. 

in  English  practice,  ii.  233, 
2. 

no  bar  to  second  suit,  ii.  233, 
3. 

in  New  York,  ii.  233,  4. 
North  Carolina,  ii,  233. 

legislative  power,  ii,  234,  3. 

executive  power,  ii.  234,  4. 

judicial  power,  ii.  234,  6-S. 
Nosocomi,  ii.  235. 
Not  found,  ii.  235. 
Not  guilty,  ii.  235. 

in  trespass,  ii,  235, 

in  trespass  on  the  case,  ii,  235, 
4,5. 

in  trover,  ii,  235,  6. 

in  debt,  ii,  235,  6. 

in  criminal  cases,  ii.  235,  7. 
Not  possessed,  ii.  235. 
Not  proven,  ii.  235. 
Notarius,  ii.  236. 
Notary,  ii.  236, 

origin,  ii,  236,  2. 

duties,  ii.  236,  3. 

certificate  of,  ii.  236,  4,  5. 
Note  of  a  tine,  ii,  236. 
Note  of  hand,  ii.  236. 
Note  or  memorandum,  ii,  236. 
Note  of  protest,  ii.  236. 
Notes,  ii.  236. 
Notice,  ii.  236, 
Notice,  averment  of,  ii,  237. 
Notice  of  dishonor,  ii.  237. 

must  contain  what,  ii.  237, 
2,3. 

need  not  be  written,  ii.  237, 
4. 

how  served,  ii.  238,  5. 

who  entitled  to,  ii.  238,  5. 

by  whom  given,  ii.  238,  ti. 

when  to  be  sent,  ii.  238,  O. 
Notice  to  plead,  ii,  238, 
Notice  of  protest,  ii.  238. 
Notice  to  produce  papers,  ii.  238, 

should  be  written,  ii.  238,  3. 

to  whom  given,  ii,  238,  4. 

failure  to  comply  with,  ii.  238, 
5. 

Notice  to  quit,  ii.  238. 


Notice  to  quit: 

form  of  notice^  ii.  239,  2. 

by  whom  given,  ii.  239,  3. 

to  whom  given,  ii.  239,  4. 

mode  of  serving,  ii.  239,  5. 

time  of  serving,  ii.  239,  6. 

waiver  jf,  ii.  240,  1. 
Noting,  ii.  240, 
Notour,  ii,  240. 
Nova  customa,  ii.  240. 
Nova  Scotia,  ii.  240. 

executive  department,  ii.  240, 

legislative    department,  ii. 
241. 

judicial  department,  ii.  241. 
Nova  statuta,  ii.  241. 
Novae  narrationes,  ii.  241. 
Novation,  ii.  241-244. 

in  the  civil  law,  ii.  241. 
kinds  of,  ii,  241,  2. 
requisites  for,  ii.  241,  3* 
debt  is  extinguished,  ii. 

242,  4,  5. 
in  case  of  mistake,  ii. 

242,  6. 
what  may  be  subject  of, 
ii.  242,  7. 
at  common  law,  ii.  242-244. 
must  be  assent,  ii.  243, 
9. 

rule  in  equity,  ii.  243, 
lO. 

requisites   for,  ii.  243, 
11. 

payment  when,  ii.  243,  12. 
Novel  assignment,  ii.  244. 
Novel  disseisin,  ii.  244, 
Novelhe  Leon  is,  ii,  244. 
Novels,  ii,  244. 
Novus  homo,  ii.  244. 
Noxa,  ii,  244. 
Noxal  action,  ii.  244. 
Nubilis,  ii.  244. 
Nude,  ii.  244, 
Nudum  pactum,  ii,  244. 
Nuisance,  ii,  245. 

kinds  of,  ii,  245,  1. 

what  constitutes,  ii,  245,  2. 

public  nuisance,  ii,  245,  3. 

private  nuisances,  ii,  245,  4. 

remedies,  ii.  245,  5. 
Nul  agard,  ii.  246. 
Nul  disseisin,  ii.  246. 
Nul  tiel  record,  ii.  246. 
Nul  tort,  ii.  246. 
Nul  waste,  ii.  246. 
Null,  ii.  246. 
Nulla  bona,  ii.  246. 
Nullity,  ii,  246. 
Nullity  of  marriage,  ii.  246. 

distinguished  from  divoroo 
ii.  246,  2,  3. 

how  prosecuted,  ii.  246,  3* 
Nullius  filius,  ii,  246. 
Nullum  arbitrium,  ii,  247. 
Nullum  fecerunt,  ii.  247. 
Nullum  tempus  act,  ii.  247. 
Number,  ii,  247. 
Nunc  pro  tunc,  ii,  247. 
Nunciatio,  ii,  247. 
Nuncio,  ii.  247, 
Nuncius,  ii,  247. 
Nuncupative  will,  ii.  247. 
Nundina;,  ii.  247. 
Nunq^uam  indebitatus,  ii.  247. 
Nuntius,  ii.  247. 
Nuper  obiit,  ii.  248. 
Nurture,  ii.  248. 
Nurus,  ii.  248. 


INDEX. 


719 


0. 

Oath,  ii.  248. 

kinds  (.f,  ii.  248. 
Ibrra   of   administering,  ii. 
248. 

Oath  of  calumny,  ii.  248. 

Oath  decisury,  ii.  249. 

Oath  in  litem,  ii.  249. 

Oatli  purgatory,  ii.  249. 

Oath  suppletory,  ii.  249. 

Obedience,  ii.  249  (dictum). 

Oblatio,  ii.  24?. 

Obligatio,  ii.  250. 

Obligation,  ii.  251. 

Obligation  of  contracts,  ii.  253. 

Obligee,  ii.  253. 

Obligor,  ii.  253. 

Obreption,  ii.  253. 

Obrogation,  ii.  253. 

Obscurity,  ii.  263. 

Observe,  ii.  253. 

Obsolete,  ii.  253. 

Obstructing  process,  ii.  253. 

Obventio,  ii.  254. 

Occupancy,  ii.  254. 

Occupant,  ii.  254. 

Occupation,  ii.  254. 

Occupavit,  ii.  254. 

Occupier,  ii.  254. 

Ochlocracy,  ii.  254. 

Octave,  ii.  254. 

Octo  tales,  ii.  254. 

Odhallright,  ii.  254. 

Of  course,  ii.  254. 

Offence,  ii.  254. 

Offer,  ii.  254. 

Office,  ii.  255. 

Office-book,  ii.  255. 

Office-copy,  ii.  255. 

Office  found,  ii.  255. 

Officer,  ii.  255. 

Official,  ii.  255. 

Officina  justitiae,  ii.  255. 

Ohio,  ii.  255. 

history,  ii.  256,  2,  3. 

bill  of  rights,  ii.  256,  4-. 

legislative  power,  ii.  256,  5« 

executive  power,  ii.  256,  6. 

judicial  power,  ii.  257,  T,  8. 

jurisprudence,  ii.  257.  9. 
Old  Natura  Brevium,  ii.  257. 
Old  tenures,  ii.  257. 
Oleron,  laws  of,  285,  25,  ii.  257. 
Oligarchy,  ii.  258. 
Olograph,  ii.  258. 
Omission,  ii.  268. 
Omnia  performavit,  ii.  258. 
Omnium,  ii.  268. 

On  account  of  whom  it  may  con- 
cern, ii.  258. 
Once  in  jeopardy,  ii.  258. 
Onerari  non,  ii.  258. 
Oneris  ferendi,  ii.  258. 
Onerous  cause,  ii.  258. 
Onerous  contract,  ii.  268. 
Onerous  deed,  ii.  268. 
Onerous  gift,  ii.  258. 
Onomastie,  ii.  268. 
Onus  proband!,  ii.  258. 
Open,  ii.  269. 
Open  account,  ii.  259. 
Open  a  credit,  ii.  269. 
Open  court,  ii.  259. 
Open  policy,  ii.  259. 
Opening,  ii.  269. 
Opening  biddings,  ii.  259. 
Opening  a  judgment,  ii.  259. 
Opening  a  policy,  ii.  259. 


Operation  of  law,  ii.  259. 
Operative,  ii.  269. 
Opinion,  ii.  2()(). 

nut  gencnilly  evidence,  ii. 
260,  2. 
certain    exceptions,  ii. 
260,  3. 

in  practice,  ii.  261,  6-J>. 
of  court,  ii.  261,  «,  T. 
of  counsel,  ii.  261,  8,9. 
Opposition,  ii.  261. 
Oppressor,  ii.  261. 
Opprobrium,  ii.  261. 
Option,  ii.  261. 
Optional  writ,  ii.  261. 
Opus  locatum,  ii.  261. 
Opus  magnificium,  ii.  261. 
Or,  ii.  261. 
Oraculum,  ii.  262. 
Oral,  ii.  262. 
Orator,  ii.  262. 
Ordain,  ii.  262. 
Ordeal,  ii.  262. 
Order,  ii.  262. 

in  French  law,  ii.  262, 

in  government  law,  ii.  262. 
Order  of  filiation,  ii.  262. 
Order  nisi,  ii.  263. 
Orders,  ii.  263. 
Ordinance,  ii.  263. 
Ordinary,  ii.  263.  * 
Ordinary  care,  ii.  263. 
Ordinary  skill,  ii.  263. 
Ordination,  ii.  263. 
Ordiais  benefieium,  ii.  263. 
Ordonnance  de  la  marine,  284, 

24,  ii.  263. 
Ore  tenus,  ii.  263. 
Oregon,  ii.  263. 

legislative    department,  ii. 
264,  3. 

executive  department,  ii.  264, 
4. 

judicial  department,  ii.  264, 
5. 

Orfgild,  ii.  264. 
Original,  ii.  264. 
Original  bill,  ii.  264. 
Original  conveyances,  ii.  264. 
Original  entry,  ii.  265. 

must  be  made  in  proper  book, 
ii.  266,  2. 

in  course  of  business,  ii. 
266,  3. 

in  an  intelligible  man- 
ner, ii.  265,  3, 

by  person  having  author- 
ity, ii.  265,  4. 
Original  jurisdiction,  ii.  266. 
Original  writ,  ii.  266. 
Origin  alia,  ii.  265. 
Ornament,  ii.  266. 
Orphan,  ii.  266. 
Orphanage,  ii.  266. 
Orphans'  court,  ii.  266. 
Orphanotrophi.  ii.  266. 
Ostensible  partner,  ii.  266. 
Ostrogothic  code,  285,  25. 
Other  wrongs,  ii.  266. 
Othesworthe,  ii.  266. 
Ounce,  ii.  266. 
Ouster,  ii.  266. 
Ouster  le  main,  ii.  266. 
Out  of  the  state,  ii.  266. 
Out  of  time,  ii.  266. 
Outfit,  ii.  266. 
Outhouses,  ii.  266. 
Outlaw,  ii.  266. 
Outlawry,  ii.  266. 


Outrage,  ii.  267. 

Outsiders,  ii.  267. 

Overdraw,  ii.  267. 

Overdue,  ii.  267. 

Over-insurance,  ii.  267. 

OverpluH,  ii.  267. 

Overrule,  ii.  267. 

Over.secrs  of  the  poor,  ii,  287. 

Oversman,  ii.  267. 

Overt,  ii.  267. 

Owelty,  ii.  267. 

Owing,  ii.  267. 

Owlor,  ii.  268. 

Owling,  ii.  268. 

Owner,  ii.  268. 

Oxgang,  ii.  268. 

Oyer,  ii.  268. 

Oyer  and  terminer,  ii.  268. 
Oyez,  ii.  268. 

P. 

Pace,  ii.  269. 
Pacification,  ii.  269. 
Pack,  ii.  269. 
Pact,  ii.  269. 
Pactions,  ii.  269. 
Pactum  constitutae  pecuniae,  ii. 
269. 

Pactum  de  non  petando,  ii.  269. 

Pactum  de  quota  litis,  ii.  269. 

Pagoda,  ii.  269. 

Paine  forte  et  dure,  ii.  269. 

Pais,  ii.  269. 

Palace  court,  ii.  269. 

Palfridus,  ii.  269. 

Pandects,  ii.  269. 

Panel,  ii.  271. 

Paper-book,  ii.  271. 

Paper-days,  ii,  271. 

Paper  money,  ii.  271. 

Par,  ii.  271. 

Par  of  exchange,  ii.  271. 
Parage,  ii.  271. 
Paragium,  ii.  271. 
Paramount,  ii.  271. 
Parapherna,  ii.  271. 
Paraphernalia,  ii.  271. 
Paratitla,  ii.  271. 
Paratum  habeo,  ii,  271. 
Paravail,  ii,  272. 
Parcel,  ii,  272. 
Parcenary,  ii.  272. 
Parceners,  ii,  272. 
Parco  fracto,  ii.  272. 
Parens,  ii.  272. 
Pardon,  ii.  272. 

power  of,  belongs  to  execa* 
tive,  ii.  272,  2. 

effect  of,  ii.  272. 

when  to  be  pleaded,  ii.  272. 
Parens  patriae,  ii.  273. 
Parentage,  ii.  273, 
Parents,  ii.  273, 
Paries,  ii,  273, 
Paries  curite,  ii,  273. 
Pari  delicto,  ii,  273. 
Pari  materia,  ii.  273. 
Pari  passu,  ii.  273. 
Parish,  ii.  273. 
Parium  judicium,  ii.  273. 
Park,  ii.  273. 
Parle  hill,  ii,  273. 
Parliament,  ii,  273. 
Parliamentum  indoctTim,  ii.  273 
Parol,  ii.  274. 
Parol  evidence,  ii,  274. 
Parol  lease,  ii,  274. 
Parole,  ii,  274. 


T20 


INDEX. 


Parricide,  ii.  274. 

Pars  enitia,  ii.  274. 

Pars  rationabi'.is,  ii.  274. 

Parson,  ii.  274. 

Parson  imparsona,  ii.  274. 

Part,  ii.  275. 

Part  and  pertinent,  ii.  275. 
Part-owners,  ii.  275. 
Partes  finis  nil  babuerunt,  ii.  275. 
Partial  loss,  ii.  275. 
Particular  average,  ii.  275. 
Particular  averment,  ii.  275. 
Particular  custom,  ii.  275. 
Particular  estate,  ii.  275. 
Particular  lien,  ii.  275. 
Particular  statement,  ii.  275. 
Particulars,  ii.  275. 
Parties,  ii.  275-282. 

to  contracts,  ii.  275,  2-6. 
as  to  aliens,  ii.  276,  2. 
as  to  bankrupts,ii.276,3. 
as  to  persons  under  du- 
ress, ii.  276,  3. 
as  to  infants,  ii.  276,  3. 
as  to  married  women,  ii. 

276,  4. 
as  to  non-compotes,  ii. 

276,  4. 
as  to  slaves,  ii.  276,  5. 
character  of,  ii.  276,  6. 
to  suits  in  equity,  ii.  276,  T- 
11. 

plaintiffs,  ii.  277,  8,  9. 
any  one  may  be,  ii.277,8. 
alien  friends,  ii.  277, 
8. 

attorney-general,  ii. 

277,  9. 
corporations,  ii.277, 

9. 

idiots  and  lunatics, 
ii.  277,  9. 

married  women, 
when,  ii.  277,  9. 
defendants,  ii.  277,  lOy 
11. 

corporations,  ii.277, 
lO. 

idiots  and  lunatics, 

ii.  277,  lO. 
infants,  ii.  277,  lO. 
married  women,  ii. 
277,  11. 
to  suits  at  law,  ii.  278, 11-29. 
in  actions  ex  contractu, 
ii.  278,  11-22. 
plaintiffs,    ii.  278, 

11-18. 
defendants,  ii.  280, 
19-22. 
in  actions  ex  delicto,  ii. 
281,  22-29. 
plaintiffs,    ii.  281, 

22-26. 
defendants,  ii.  282, 
22-29. 
Partition,  ii.  282. 

voluntary,  ii.  283,  2. 
in  equity,  ii.  283,  3. 
Partners,  ii.  283-291. 

who  may  be,  ii.  283,  2,  3. 
nho  are,  ii.  2S4,  4-8. 
power  of,  ii.  285,  9-18. 
liabilities  of,  ii.  288,  19. 
character  of  relation,  ii.  289, 

20-22. 
distribution  of  interest,  ii. 

290,  23,  24. 
mutual  rights,  ii.  290,25,26. 


Partnership,  ii.  291-296. 

in  general,  ii.  291,  2-9. 
formation  of,  150,  ii.  293,  lO- 
12. 

kinds  of,  ii.  294,  13-16. 
dissolution  of,  ii.  294,  lT-22. 
effect  of  dissolution,  ii.  296, 
23. 

Parturition,  ii.  296. 
Partus,  ii.  296. 
Party,  ii.  296. 
Party-jury,  ii.  296. 
Party-wall,  ii.  296. 
Parvum  cape,  ii.  297. 
Pass,  ii.  297. 
Pass-book,  ii.  297. 
Passage,  ii.  297. 
Passage-money,  ii.  2&7. 
Passenger,  ii.  297. 
Passive,  ii.  297. 
Passport,  ii.  297. 
Pastures,  ii.  297. 
Patent,  ii.  297-306. 

history  of,  ii.  298,  2-4. 

of  the  subject-matter,  ii.  298, 
5-8. 

of  caveats,  ii.  299,  9. 

of  the  application,  ii.  300, 

10,  11. 

of  the  examination,  ii.  300, 

12-14. 
of  interferences,  ii.  301,  15. 
of  the  specifications,  ii.  301, 

16. 

of  re-issues,  ii.  301,  IT. 
of  patents  for  designs,  ii.  301, 
18. 

of  disclaimers,  ii.  302,  19, 
2<). 

of  extensions,  ii.  302,  21, 
22. 

of  the  assignment,  ii.  303, 

23,  24. 
of  joint  inventors,  ii.  303,25. 
liability  of,  to  levy,  ii.303,26. 
how  far  retroactive,  ii.  304, 

2T. 

of  foreign  inventors,  ii.  304, 
28. 

of  certain  penalties,  ii.  304, 
29,  30. 

of  infringements,  ii.  305,  31. 
of   damages    for  infringe- 
ments, ii.  305,  32. 
jurisdiction  of  patent  cases, 

11.  306,  33. 
Patent  office,  ii.  306. 

Patent  office,  examiners  in,  ii.  307. 

Patent  rolls,  ii.  307. 

Patent  writ,  ii.  307. 

Patentee,  ii.  307. 

Pater,  ii.  307. 

Paterfamilias,  ii.  307. 

Paterna  paternis,  ii.  308. 

Paternal,  ii.  308. 

Paternal  power,  ii.  308. 

Paternal  property,  ii.  308. 

Paternity,  ii.  308. 

Pathology,  ii.  309. 

Patria,  ii.  309. 

Patria  potestas,  ii.  30^. 

Patricide,  ii.  310. 

Patrimonial,  ii.  310. 

Patrimonium,  ii.  310: 

Patrimony,  ii.  310. 

Patrinus,  ii.  310. 

Patron,  ii.  310. 

Patronage,  ii.  310. 

Patrouus,  ii.  310. 


Patroon,  ii.  310. 
Patruelis,  ii.  310. 
Patruus,  ii.  310, 
Pauper,  ii.  310. 
Pauperies,  ii.  311. 
Paviage,  ii.  311. 
Pawn,  ii.  311. 
Pawnbroker,  ii.  311. 
Pawnee,  ii.  311. 
Pawnor,  ii.  311. 
Pax  regis,  ii.  311. 
Payee,  ii.  311. 
Payment,  ii.  311-315. 

what  constitutes,  ii.  311,  4- 
14. 

evidence  of,  ii.  313,  15-  It. 

who  may  make,  ii.  314,  18, 

to  whom  to  be  made,  ii.  314» 
19-22. 

when  to  be  made,  ii.  315,  23. 

where  to  be  made,  ii.  31 5, 24. 

effect  of,  ii.  315,  25,  26. 

in  pleading,  ii.  315. 
Payment  into  eourt,  ii.  315. 
Pays,  ii.  31&. 
Peace,  ii.  316. 

Peace  of  God  and  the  church,  ii 

316. 
Peck,  ii.  316. 
Peculation,  ii.  316v 
Peculiar,  ii.  316. 
Peculium,  ii.  316. 
Pecunia,  ii.  316. 
Pecunia  numerata,  ii.  317. 
Pecunia  non-numerata,  ii. 
Pecunia  liajectitia,  ii.  317. 
Pecuniary,  ii.  317. 
Pecuniary  causes,  ii.  317. 
Pedagium,  ii.  317. 
Pedaulus,  ii.  317. 
Pedigree,  ii.  317. 
Pedis  positio,  ii.  317. 
Pedis  possessio,  ii.  317. 
Pedlars,  ii.  317. 
Peers,  ii.  317. 

Peine  forte  et  dure,  ii.  318'. 
Pelt  wool,  ii.  318. 
Penal  action,  ii.  318. 
Penal  bill,  ii.  318. 
Penal  statutes,  ii.  318. 
Penalty,  ii.  318. 
Penance,  ii.  318. 
Pencil,  ii.  318. 
Pendente  lite,  ii.  318. 
Pendentes,  ii.  318. 
Penetration,  ii.  318. 
Penitentiary,  ii.  319. 
Pennsylvania,  ii.  319-321. 

legislative  power,  ii.  320. 

executive  power,  ii.  320. 

judicial  power,  ii.  320, 
Penny,  ii.  321. 
Pennyweight,  ii.  321. 
Pension,  ii.  321. 
Pensioner,  ii.  321. 
Peonia,  ii,  321. 
People,  ii.  321. 
Per,  ii.  321. 

Per  aes  et  libram,  ii.  321. 

Per  alluvioneni,  ii.  321. 

Per  annulura  et  baculum,  ii.  .321. 

Per  aversionem,  ii.  321. 

Per  capita,  ii.  321. 

Per  and  cui,  ii.  322. 

Per  curiam,  ii.  322. 

Per  formam  doni,  ii.  322. 

Per  fraudem,  ii.  322. 

Per  infortunium,  ii.  322. 

Per  minas,  ii.  322. 


INDEX. 


721 


Per  my  et  per  tout,  ii.  322. 
Per  quod  consortium  amisit,  ii. 
322. 

Per  quod  servitium  amisit,  ix. 
322. 

Per  stirpes,  ii.  322. 

Per  univcrsitatem,  ii.  322. 

Perambulatione  facienda,  ii.  322. 

Perception,  ii.  322. 

Perch,  ii.  322. 

Perdonatio  utlagariae,  ii.  322. 
Perduellio,  ii.  322. 
Peregrini,  ii.  323. 
Peremptorius,  ii.  323. 
Peremptory,  ii.  323. 
Peremptory  challenge,  ii.  323. 
Peremptory  defence,  ii.  323. 
Peremptory  exception,  ii.  323. 
Peremptory  mandamus,  ii.  323. 
Peremptory  plea,  ii.  323. 
Perfect,  ii.  323. 
Perfidy,  ii.  323. 
Performance,  ii.  323. 
Peril,  ii.  323. 
Perils  of  the  sea,  ii.  323. 
Periphrasis,  ii.  324. 
Perish,  ii.  324. 
Perishable,  ii.  324. 
Perjury,  ii.  324. 

must  be  wilful  intention,  ii. 

324,  2. 

oath  must  be  false,  ii.  324,  3. 
party  must  be  lawfully  sworn, 

ii.  324,  4, 
proceedings  must  be  judicial, 

ii.  324,  5. 
assertion  must  be  absolute, 

ii.  324,  6. 
matter  must  be  material,  ii. 

325,  T. 

statutory  provisions,  ii.  325, 
8. 

Permanent  trespass,  ii.  325. 
Permission,  ii.  325. 
Permissive,  ii.  325. 
Permit,  ii.  325. 
Permutation,  ii.  325. 
Pernancy,  ii.  325. 
Pernor  of  profits,  ii.  325. 
Perpetual,  ii.  325. 
Perpetual  curacy,  ii.  325. 
Perpetuating  testimony,  ii.  326. 
Perpetuity,  ii.  326. 
Perquisites,  ii.  326. 
Person,  ii.  326. 
Persona,  ii.  326. 
Personal,  ii.  326. 
Personal  action,  ii.  326. 
Personal  chattels,  ii.  327. 
Personal  contract,  ii.  327. 
Personal  covenant,  ii.  327. 
Personal  liberty,  ii.  327. 
Personal  property,  ii.  327. 
Personal  representatives,  ii.  327. 
Personal  security,  ii.  327. 
Personal  statute,  ii.  327. 
Personalty,  ii.  327. 
Personate,  ii.  327. 
Persuade,  ii.  328. 
Persuasion,  ii.  328. 
Pertinent,  ii.  328. 
Perturbation,  ii.  328. 
Pervise,  ii.  328. 
Pesage,  ii.  328. 
Petit,  ii.  328. 
Petit  cape,  ii.  328. 
Petit  jury,  ii.  328. 
Petit  larceny,  ii.  328. 
Petit  serjeanty,  ii.  328. 
Vol  TL— 46 


Petit  treason,  ii.  328. 
Petite  assize,  ii.  328. 
Petition,  ii.  328. 
Petition  of  right,  ii.  329. 
Petitory,  ii.  329. 
Petty  average,  ii.  329. 
Petty  bag  average,  ii.  329. 
Petty  constable,  ii.  329. 
Pettifogger,  ii.  329. 
Pew,  ii.  329. 
Pharos,  ii.  .329. 
Physician,  ii.  .329,  330. 
Pickery,  ii.  330. 
Pickpocket,  ii.  330. 
Pignoratio,  ii.  330. 
Pignorativo  contract,  ii.  330. 
Pignoris  captio,  ii.  331. 
Pignus,  ii.  331. 
Pillage,  ii.  331. 
Pillory,  ii.  331. 
Pilot,  ii.  331. 
Pilotage,  ii.  331. 
Pin-money,  ii.  331. 
Pint,  ii.  331. 
Pipe,  ii.  331. 
Piracy,  ii.  331. 
Pirate,  ii.  332. 
Piratically,  ii.  332. 
Piscary,  ii.  332. 
Pistareen,  ii.  332. 
Pit,  ii.  332. 

Pit  and  gallows,  ii.  332. 
Place,  ii.  332. 
Place  of  business,  ii.  332. 
Placita  communia,  ii.  333. 
Placita  coronae,  ii.  333. 
Placita  juris,  ii.  333. 
Placitum,  ii.  333. 
Plagiarism,  ii.  333. 
Plagiarius,  ii.  333. 
Plagium,  ii.  333. 
Plaint,  ii.  333. 
Plaintiff,  ii.  333. 
PlaintiflF  in  error,  ii.  333. 
Plan,  ii.  333. 
Plantations,  ii.  334. 
Plat,  ii.  334. 
Plea,  ii.  334-337. 

in  equity,  ii.  334,  2-5. 

to  the  jurisdiction,  ii. 
334,  2. 

to  the  person,  ii.  334,  3. 

to  the  bill,  ii.  334,  4. 

in  bar,  ii.  334,  4. 

effect  of,  ii.  335,  5. 
at  law,  ii.  335,  6-14. 

general  character,  ii.  335, 
6. 

in  bar,  ii.  335,  7,  8. 
qualities,  ii.  336,  8. 
parts  of,  ii.  336,  9. 
dilatory  pleas,  ii.  336,  9. 
in  excuse,  ii.  336,  lO. 
foreign,  ii.  336,  lO. 
in  justification,  ii.  336, 
lO. 

puis    darrein  continu- 
ance, ii.  336,  11-13. 
sham  pleas,  ii.  337, 14. 
Plead,  ii.  337. 
Pleading,  ii.  337. 

in  chancery  practice,  ii.  337. 
in  civil  practice,  ii.  337. 
object  of,  ii.  337,  2. 
form  of,  ii.  338,  3. 
time  of,  ii,  338,  4. 
abatement  in,  20-24. 
in  criminal  practice,  ii.  339. 
1  Pleading,  special,  ii.  339. 


Pleadings,  ii.  339. 
Pleas  of  the  crown,  ii.  339 
Pleas  roll,  ii.  339. 
Plebeian,  ii.  339. 
Plebiscitum,  ii.  339. 
Pledge,  ii.  339. 

delivery,  ii.  .339,  il, 

subject  of,  ii.  340,  3. 

ordinary  care,  ii.  340,  4, 

use,  ii.  340,  5. 

property,  ii.  341,  G. 

sale,  ii.  341,  T,  8. 

negotiable  paper,  ii.  3ll,  9. 

other  debts,  ii.  341,  lO. 

pledgeor's  transfer,  ii.  342, 
lO. 

factor,  ii.  342,  11. 

co-pledgees,  ii.  342,  11. 

in  Louisiana,  ii.  342,  12. 
Pledgee,  ii.  343. 
Pledgeor,  ii.  343. 
Pledges,  ii.  343. 
Plegiis  acquietandis,  ii.  343, 
Plena  probatio,  ii.  343. 
Plenarty,  ii.  343. 
Plenary,  ii.  343. 
Plene  administravit,  ii.  343. 
Plene  administravit  prae^^r.  (L 
343. 

Plene  computavit,  ii.  343. 

Plenipotentiary,  ii.  343. 

Plenum  dominium,  ii.  343. 

Plight,  ii.  343. 

Plough-bote,  ii.  343. 

Plough-land,  ii.  343. 

Plunder,  ii.  343. 

Plunderage,  ii.  343. 

Plural,  ii.  343. 

Plurality,  ii,  343. 

Pluries,  ii.  344. 

Poaching,  ii.  344. 

Pocket-sheriflf,  ii.  344. 

Poinding,  ii.  .344.  • 

Poinding,  personal,  ii.  344. 

Poinding,  real,  ii.  344. 

Point,  ii.  344. 

Point  reserved,  ii.  344. 

Points,  ii.  344. 

Poison,  ii.  344. 

administering,  83. 
Pole,  ii.  345. 
Police,  ii.  345. 
Police  jury,  ii.  345. 
Policy,  ii.  345. 

kinds  of,  ii.  345,  1. 

includes  documents  rcfemd 
to,  ii.  345,  2. 

duration  of  risk,  ii.  ?  '6  3, 

aflfected  by  custom,  ii.  •4^, 
Political,  ii.  346. 
Poll,  ii.  346. 
Poll-tax,  ii.  346. 
Pollicitation,  ii.  346. 
Polls,  ii.  346. 
Polyandry,  ii.  346. 
Polygamy,  ii.  346. 
Polygarchy,  ii.  346. 
Pond,  ii,  346. 
Pone,  i..  346. 
Ponere,  ii.  347. 
Ponit  se,  ii.  347. 
Pontage,  ii.  347. 
Pool,  ii.  347. 
Poor  debtors,  ii.  347. 
Pope,  ii.  348. 
Pope's  folly,  ii.  348. 
Popular  action,  ii.  348. 
Populiscitum,  ii.  348. 
port,  ii.  348. 


722 


INDEX. 


Port  toll,  ii.  348. 
Portatica,  ii.  348. 
Porter,  ii.  348. 
Portgreve,  ii.  348. 
Portion,  ii.  348. 
Portoria,  ii.  348. 
Portsales,  ii.  348. 
Positive,  ii.  348. 
Positive  condition,  ii.  348. 
Positive  evidence,  ii.  348. 
Positive  fraud,  ii.  348. 
Positive  law,  ii.  348. 
Posse,  ii.  349. 
Posse  comitatus,  ii.  349. 
Possessed,  ii.  349. 
Possessio,  ii.  349. 
Possessio  fratris,  ii.  349. 
Possession,  ii.  349. 
Possession  money,  ii.  350. 
Possessor,  ii.  350. 
Possessory  action,  ii.  350. 
Possibility,  ii.  350. 
Post,  ii.  351. 
Post-date,  ii.  351. 
Post  diem,  ii.  351. 
Post  disseisin,  ii.  351. 
Post  entry,  ii.  351. 
Post  facto,  549,  ii.  351. 
Post  liminium,  ii.  351. 
Post  litem  motam,  ii.  351. 
Post-mark,  ii.  351. 
Post  mortem,  ii.  351. 
Post-natus,  ii.  351. 
Post  notes,  ii.  351. 
Post-nuptial,  ii.  351. 
Post  obit,  ii.  351. 
Post-ofl5ce,  ii.  351. 
Postage,  ii.  351. 
Postage-stamps,  ii.  352. 
Postea,  ii.  352. 
Posteriores,  ii.  353. 
Posteriority,  ii.  353. 
Posthumous  child,  ii.  363. 
Postman,  ii.  353. 
Postmaster,  ii.  353. 
Postmaster-general,  ii.  353. 
Postnati,  ii.  354. 
Postulatio,  ii.  354. 
Postulatio  actionis,  ii.  355. 
Pot-de-vin,  ii.  365. 
Potentate,  ii.  355. 
Potestas,  ii.  355. 
Pound,  ii.  355. 
Pound-breach,  ii.  356. 
Poundage,  ii.  355. 
Pourparler,  ii.  355. 
Poursuivant,  ii.  355. 
Power,  ii.  356-357. 

under  statute  of  uses,  ii. 
355. 

creation  of,  ii.  356,  1,  52* 
execution  of,  ii.  356,  3. 
suspension  or  destruction  of, 
ii.  356,  4. 

Power  of  attorney,  ii.  357, 

Practice,  ii.  357. 

Practice  court,  ii.  367. 

Practices,  ii.  357. 

Praeceptores,  ii.  357. 

Praecipe,  ii.  357. 

Praecipe  quod  reddat,  ii.  357. 

Praedia,  ii.  357. 

Praedia  bellica,  ii.  357. 

Praedial,  ii.  357. 

Praedium  dominans,  ii.  367. 

Praedium  rusticum,  ii.  357. 

Praedium  serviens,  ii.  358. 

Praedium  urbanum,  ii.  358. 

Prsefectus  vigilium,  ii.  358. 


Praemunire,  ii.  358. 
Praesumptio  juris,  ii.  358. 
Praetor,  ii.  358. 
Pragmatic  sanction,  ii.  358. 
Prayer,  ii.  358. 

in  equity,  ii.  358,  2-6. 

of  process,  ii.  358,  2. 

for  relief,  ii.  358,  3. 

in  general,  ii.  358,  4-6. 
Preamble,  ii.  359. 
Prebend,  ii.  359. 
Precarious  right,  ii.  359. 
Precarium,  ii.  359. 
Precatory  words,  ii.  359. 
Precedence,  ii.  359. 
Precedents,  ii.  360. 
Precept,  ii.  360. 
Precinct,  ii.  360. 
Preciput,  ii.  360. 
Precludi  non,  ii.  360. 
Precognition,  ii.  360. 
Precontract,  ii.  360. 
Predecessor,  ii.  360. 
Pre-emption,  ii.  361. 
Pre-emption  right,  ii.  361. 
Prefect,  ii.  361. 
Preference,  ii.  361. 
Pregnancy,  ii.  361-363. 
Pregnant,  ii.  363. 
Prejudice,  ii.  363. 
Prelate,  ii.  363. 
Prelevement,  ii.  363. 
Preliminary,  ii.  363. 
Preliminary  proof,  ii.  363. 
Premeditation,  ii.  363. 
Premises,  ii.  364. 

in  conveyancing,  ii.  364. 

in  equity  pleading,  ii.  364. 

in  estates,  ii.  364. 
Premium,  ii.  364. 
Premium  note,  ii.  364. 
Premium  pudicitiae,  ii.  364. 
Prender,  ii.  364. 
Prenomen,  ii.  364. 
Prepense,  ii.  364. 
Prerogative,  ii.  364. 
Prerogative  court,  ii.  364. 
Prescribable,  ii.  365. 
Prescription,  ii.  365. 
Presence,  ii.  365. 
Present,  ii.  365. 
Presents,  ii.  365. 
Presentation,  ii.  366. 
Presentee,  ii.  365. 
Presentment,  ii.  365. 

in  criminal  practice,  ii.  366. 

in  contracts,  ii.  366,  fl-5» 

must  be  to  proper  person,  ii. 
366,  2. 

must  be  in  time,  ii.  366,  3. 

excuses  for  not  making,  ii. 
366,  4,  5. 
Preservation,  ii.  367. 
President,  ii.  367. 
President  of  the  United  States, 

ii.  367. 
Press,  ii.  367. 

Presumption,  644,  4,  5)  ii.  367. 

kinds  of,  ii.  367,  1. 

effect  of,  ii.  368,  2.. 

conclusive,  ii.  368,  3. 

rebuttable,  ii.  368,  4. 
Presumptive  evidence,  ii.  869. 
Presumptive  heir,  ii.  369. 
Pret  5,  usage,  ii.  369. 
Pretension,  ii.  369. 
Preterition,  ii.  369. 
Pretext,  ii.  369. 
Pretium  affectionis,  ii.  369. 


Prevarication,  ii.  369. 
Prevention,  ii.  369. 
Price,  ii.  369. 
Prima  facie,  ii.  370. 
Prima  tonsura,  ii.  370. 
Primage,  ii.  370. 
Primary,  ii.  370. 
Primary  evidence,  ii.  370. 
Primary  obligation,  ii.  370. 
Primary  powers,  ii.  370. 
Primate,  ii.  370. 
Primer  election,  ii.  370. 
Primer  seisin,  ii.  370. 
Primogeniture,  ii.  370. 
Primogenitus,  ii.  370. 
Primum  decretum,  ii.  370. 
Prince,  ii.  370. 
Principal,  ii.  370. 

in  contracts,  ii.  370. 

who  may  be,  ii.  370, 
2. 

rights  of,  ii.  370,  3-6. 
liabilities  of,  ii.  372,  T- 
9. 

in  criminal  law,  ii.  372, 
12. 

in  the  first  degree,  iL 

372,  lO. 
in  the  second  degree,  ii. 
372,  11,  12. 
Principal  contract,  ii.  373. 
Principal  obligations,  ii.  373. 
Principles,  ii.  373. 
Printing,  ii.  373. 
Priority,  ii.  373. 
Prison,  ii.  374. 
Prison-breaking,  ii.  374. 
Prisoner,  ii.  374. 
Prisoner  of  war,  ii.  3i4. 
Private,  ii.  374.  * 
Private  act,  ii.  374. 
Privateer,  ii.  374. 
Privement  enceinte,  ii.  374. 
Priviguus,  ii.  375. 
Privilege,  ii.  375. 

in  civil  law,  ii.  376. 

in  maritime  law,  ii.  376. 

plea  in  abatement,  22,  23 
Privilege  from  arrest,  ii.  375. 
Privileged   communications,  ii 
375. 

Privileged  copyholds,  ii.  376. 

Privileged  deed,  ii.  376. 

Privilegium,  ii.  376. 

Privilegium  clericale,  ii.  376. 

Privity,  ii.  376. 

Privity  of  contract,  ii.  376 

Privity  of  estate,  ii.  376. 

Privy,  ii.  376. 

Privy  council,  ii.  376. 

Privy  seal,  ii.  376. 

Privy  signet,  ii.  376. 

Privy  verdict,  ii.  376. 

Prize,  ii.  376. 

Prize  court,  ii.  377. 

Pro,  ii.  377. 

Pro  amita,  ii.  377. 

Pro  confesso,  ii.  377. 

Pro  eo  quod,  ii.  377. 

Pro  indiviso,  ii.  377. 

Pro  interesse  suo,  ii.  87t 

Pro  querente,  ii.  377. 

Pro  rata,  ii.  377. 

Pro  re  nata,  ii.  377. 

Pro  tanto,  ii.  377. 

Proavia,  ii.  377. 

Proavunculus,  ii.  377. 

Proavus,  ii.  377. 

Probability,  ii.  377 


INDEX. 


723 


probable,  ii.  377. 
Probable  cause,  ii.  377. 
Probate  of  a  will,  ii.  29,  378. 
Probation,  ii.  378. 
Probator,  ii.  378. 
Probatory  term,  ii.  378. 
Probi  et  legales  homines,  ii.  379. 
Probity,  ii.  379. 
Procedendo,  ii.  379. 
Proceeding,  ii.  379. 
Proceeds,  ii.  379. 
Proceres,  ii.  379. 
Proces-verbal,  ii.  379. 
Process,  ii.  379. 

in  practice,  ii.  379. 

in  patent  law,  ii.  379. 
Process  of  garnishment,  ii.  380. 
Process  of  interpleader,  ii.  380. 
Process  of  law,  512,  ii.  380. 
Processioning,  ii.  380. 
Prochein  ami,  ii.  380. 
Proclamation,  ii.  380. 
Proclamation  of  exigents,  ii.  380. 
Proclamation  of  rebellion,  ii.  380. 
Procreation,  ii.  380. 
Proctor,  ii.  380. 
Procuration,  ii.  380. 
Procurations,  ii.  380. 
Procurator,  ii.  380. 
Procurator  fiscal,  ii.  381. 
Procurator  litis,  ii.  381. 
Procurator  in  rem  suam,  ii.  381. 
Procuratorium,  ii.  381. 
Prodigal,  ii.  381. 
Proditorie,  ii.  381. 
Producent,  ii.  381. 
Production  of  suit,  ii.  381. 
Profane,  ii.  381. 
Profanely,  li.  381. 
Profaneness,  ii.  381. 
Profectitius,  ii.  381. 
Profert  in  curia,  ii.  381. 
Profession,  ii.  382. 
Profit  a  prendre,  17. 
Profits,  ii.  382. 

general  use  of  term,  ii.  382, 
1-4. 

in  partnerships,  ii.  382,  5. 
commissions,  how  far,  ii.  382, 
16. 

in  wills,  ii.  382,  T,  8, 
subject  of  insurance,  ii.  383, 
9. 

in  trusts,  ii.  383,  lO. 

of  estates  sold,  ii.  383,  11. 
Progression,  ii.  384. 
Prohibition,  ii.  384. 
Prohibitive  impediments,  ii.  384. 
Projet,  ii.  384. 
Prolea,  ii.  384. 
Proletarius,  ii.  384. 
Prolicide,  ii.  384. 
Prolixity,  ii.  384. 
Prolocutor,  ii.  384. 
Prolongation,  ii.  384. 
Prolytae,  ii.  384. 
Promatertera,  ii.  384. 
Promise,  ii.  384. 

Promise  of  marriage,  ii.  384-386. 
Promisee,  ii.  386. 
Promises,  ii.  386. 
Promisor,  ii.  386. 
Promissory  note,  ii.  386. 
Promoters,  ii.  386. 
Promulgation,  ii.  386. 
Promutuum,  ii.  386. 
Pronepos,  ii.  387. 
Pronoptis,  ii.  387. 
Prc/nurus,  ii.  387. 


Proof,  ii.  387. 
Proper,  ii.  387. 
Property,  ii.  387. 
Propinquity,  ii.  388. 
Proprior  sobrina,  ii.  388. 
Propios,  ii.  388. 
Proponent,  ii.  388. 
Proposal,  ii.  388. 
Proposition,  ii.  388. 
Propositus,  ii.  388. 
Propound,  ii.  388. 
Propres,  ii.  388. 
Propria  persona,  ii.  388. 
Proprietary,  ii.  388. 
Proprietate  probanda,  ii.  388. 
Proprietor,  ii.  388. 
Proprio  vigore,  ii.  388. 
Propter  affectum,  ii.  388. 
Propter  defectum,  ii.  388. 
Propter  delictum,  ii.  388. 
Prorogated  jurisdiction,  ii.  388. 
Prorogation,  ii.  389. 
Proscribed,  ii.  389. 
Prosecution,  ii.  389. 
Prosocer,  ii.  389. 
Prosocerus,  ii.  389. 
Prospective,  ii.  389. 
Prostitution,  ii.  389. 
Protection,  ii.  389. 
Protest,  ii.  389. 

in  contracts,  ii.  389,  1-3. 

in  legislation,  ii.  390,  3. 

in  maritime  law,  ii.  390,  3. 
Protestando,  ii.  390. 
Protestation,  ii.  390. 
Prothonotary,  ii.  390. 
Protocol,  ii.  390. 
Protutor,  ii.  390. 
Prout  patet  per  recordum,  ii.  390. 
Prover,  ii.  391. 
Province,  ii.  391. 
Provision,  ii.  391. 
Provisional  seizure,  ii.  391, 
Provisions,  ii.  391. 
Proviso,  ii.  391. 
Provisor,  ii.  391. 
Provocation,  ii.  391. 
Provost,  ii.  391. 
Proxenetae,  ii.  392. 
Proximity,  ii.  392. 
Proxy,  ii.  392. 
Prussian  code,  285, 
Puberty,  ii.  392. 
Public,  ii.  392. 
Public  debt,  ii.  392. 
Public  enemy,  ii.  392. 
Public  passage,  ii.  392. 
Publican,  ii.  392. 
Publication,  ii.  392. 
Publiciana,  ii.  393. 
Publicity,  ii.  393. 
Publisher,  ii.  393. 
Pudicity,  ii.  393. 
Pudzeld,  ii.  393. 
Puer,  ii.  393. 
Puerility,  ii.  393. 
Pueritia,  ii.  394. 
Puffer,  ii.  394. 

Puis  darrein  continuance,  ii.  394. 
Puisne,  ii.  394. 
Pulsation,  ii.  394. 
Punctuation,  ii.  394. 
Punishment,  ii.  394. 
Pupil,  ii.  394. 

Pupillaris  substitutio,  ii.  394. 

Pupillarity,  ii.  394. 

Pur,  ii.  394. 

Pur  autre  vie,  ii.  394. 

Purchase,  ii.  395. 


Purchaser,  ii.  395. 

Purchase-money,  ii.  395. 

Pure  debt,  ii.  395. 

Pure  obligation,  iL  396. 

Pure  plea,  ii.  395. 

Purgation,  ii.  395. 

Purged  of  partial  counsel,  Li.  396. 

Purlieu,  ii.  395. 

Purparty,  ii.  395. 

Purport,  ii.  395. 

Purpresture,  ii.  395. 

Purse,  ii.  396. 

Purser,  ii.  396. 

Pursuer,  ii.  396. 

Purveyor,  ii.  396. 

Purview,  ii.  396. 

Put,  ii.  396. 

Putative,  ii.  396. 

Putative  father,  ii.  396. 

Putative  marriage,  ii.  396. 

Putting  in  fear,  ii.  396. 

Q. 

Quack,  ii.  397. 
Quadrans,  ii.  397. 
Quadrant,  ii.  397. 
Quadriennium  utile,  ii.  397. 
Quadripartite,  ii.  397. 
Quadroon,  ii.  397. 
Quadruplication,  ii.  397. 
Quae  est  eadem,  ii.  397. 
Quaere,  ii.  397. 
Quaerens,  ii.  397. 
Quaerens  non  invenit  plegium,  'tL 
397. 

Quaestio,  ii.  397. 
Quaestor,  ii.  398. 
Quakers,  ii.  398. 
Qualification,  ii.  398. 
Qualified  fee,  ii.  398. 
Qualified  indorsement,  ii.  598. 
Qualified  property,  ii.  398 
Quality,  ii.  398. 

Quamdiu  se  bene  gesserit,  ii.  398. 
Quando  acciderint,  ii.  398. 
Quanto  minoris,  ii.  399.  | 
Quantity,  ii.  399. 
Quantum  damnificatus,  ii.  399 
Quantum  meruit,  ii.  399. 
Quantum  valebat,  ii.  399. 
Quarantine,  ii.  399. 
Quare,  ii.  399. 

Quare  clausum  fregit,  ii  400. 
Quare  ejecit  infra  terminem,  11 
400. 

Quare  impedit,  ii.  400. 
Quare  obstruxit,  ii.  400. 
Quarrel,  ii.  400. 
Quarry,  ii.  400. 
Quart,  ii.  400. 
Quarter,  ii.  400. 
Quarter-days,  ii.  400. 
Quarter-dollar,  ii.  400. 
Quarter-eagle,  ii.  400. 
Quarter-sales,  ii.  400. 
Quarter  seal,  ii.  400. 
Quarter  sessions,  ii.  400. 
Quarter-year,  ii.  400. 
Quartering,  ii.  400. 
Quartering  of  soldiers,  !i.  400. 
Quarteroon,  ii.  400. 
Quarto  die  post,  ii.  400. 
Quash,  ii.  400. 
Quasi,  ii.  401. 
Quasi  affinity,  ii.  401. 
Quasi  contractus,  ii.  401. 
Quasi  corporations,  ii.  401 
Quasi  delict,  ii.  402. 


724 


[NDEX. 


Quasi  deposit,  ii.  402. 

Quasi  ofiFences,  ii.  402. 

Quasi  partners,  ii.  402. 

Quasi  posthumous  child,  ii.  402. 

Quasi  purchase,  ii.  402. 

Quasi  traditio,  ii.  402. 

Quatuorviri,  ii.  402. 

Quay,  ii.  402. 

Que  est  mesme,  ii.  402. 

Que  estate,  ii.  402. 

Quean,  ii.  402. 

Queen,  ii.  402. 

Queen  Anne's  bounty,  ii.  402. 
Queen  consort,  ii.  402. 
Queen  dowager,  ii.  402. 
Queen-gold,  ii.  402. 
Queen  regnant,  ii.  402. 
Querela  inofficiosi  testamenti,  ii. 
402. 

Question,  ii.  403. 

in  evidence,  ii.  403. 

in  practice,  ii.  403. 
Questores  classici,  ii.  403. 
Questores  parricidii,  ii.  403. 
Qui  tam,  ii.  403. 
Quia,  ii.  403. 
Quia  emptores,  ii.  403. 
Quia  timet,  ii.  403. 
Quibble,  ii.  403. 
Quickening,  ii.  403. 
Quid  pro  quo,  ii.  404. 
Quidam,  ii.  404. 
Quiet  enjoyment,  ii.  404. 
Quietus,  ii.  404. 
Quintal,  ii.  404. 
Quinto  exactus,  ii.  404. 
Quit-claim,  ii.  404. 
Quit-rent,  ii.  404. 
Quo  animo,  ii.  404. 
Quo  jure,  ii.  404. 
Quo  minus,  ii.  404. 
Quo  warranto,  ii.  405. 

pleadings  in,  ii.  405,  2,  3. 

judgment  in,  ii.  405,  3. 

forfeiture,  ii.  405,  4. 
Quoad  hoc,  ii.  406. 
Quoti  computet,  ii.  406. 
Quod  cum,  ii.  406. 
Quod  ei  deforciat,  ii.  406. 
Quod  permittat,  ii.  406. 
Quod  permittat  prosternere,  ii. 
406. 

Quod  prostravit,  ii.  406. 
Quod  recuperit,  ii.  406. 
Quorum,  ii.  407. 
Quot,  ii.  407. 
Quota,  ii.  407. 
Quotation,  ii.  407. 
Quousque,  ii.  407. 

R. 

Rachetum,  ii.  407. 
Rack,  ii.  407. 
Rack  rent,  ii.  407. 
Radom,  ii.  407. 
Railway,  ii.  407. 

charter,  ii.  408,  2. 

right  of  way,  ii.  408,  3. 

construction  of,  ii.  408,  4. 

injuries  to  animals,  ii.  408,  5. 

liabilities  for  agents*  acts,  ii. 

408,  5,  6. 
investments,  ii.  409,  7,  8. 
constitutional  questions,  ii. 

409,  8,  9. 
Rain-water,  ii.  409. 
Raise,  ii.  410. 
Range,  ii.  410. 


Ranger,  ii,  410. 

Rank,  ii.  410. 

Ranking,  ii.  410. 

Ransom  bill,  ii.  410. 

Rape,  ii.  410. 

Rapine,  ii.  411. 

Rapport  a  succession,  ii.  411. 

Rascal,  ii.  411. 

Rasure,  ii.  411. 

Rate,  ii.  411. 

Rate  of  exchange,  ii.  411. 
Ratification,  ii.  411. 

effect  of,  ii.  411,  2,  3. 

by  infant  on  coming  of  age, 
ii.  411,  4. 
Ratification  of  treaties,  ii.  411. 
Ratihabition,  ii.  411. 
Ratio,  ii.  411. 

Rationabilis  divisis,  ii.  411. 

Ravished,  ii.  411. 

Ravishment,  ii.  412. 

Ravishment  of  ward,  ii.  412. 

Reading,  ii.  412. 

Real,  ii.  412. 

Real  action,  ii.  412. 

Real  contract,  ii.  412. 

Real  covenant,  ii.  412. 

Real  law,  ii.  413. 

Real  property,  ii.  413. 

Real  right,  ii.  414. 

Realm,  ii.  415. 

Realty,  ii.  415. 

Reason,  ii.  415. 

Reasonable,  ii.  415. 

Reasonable  act,  ii.  415. 

Reasonable  time,  ii.  415. 

Rebate,  ii.  415. 

Rebel,  ii.  415. 

Rebellion,  ii.  415. 

Rebellion,  commission  of,  ii.  415. 

Rebouter,  ii.  415. 

Rebut,  ii.  415. 

Rebutter,  ii.  415. 

Rebutting  evidence,  ii.  415. 

Recall,  ii.  416. 

Recall  a  judgment,  ii.  416. 

Recaption,  ii.  416. 

Receipt,  ii.  416. 

by  whom  made,  ii.  416,  2* 

effect  of,  ii.  416,  3. 

in  full,  ii.  417,  4. 

in  deeds,  ii.  417,  5,  6. 

embodying  contract,  ii.  417, 
T-9. 

uses  of,  ii.  418,  lO. 
larceny  and  forgery  of,  ii. 
418,  11. 
Receiptor,  164,  12,  ii.  418. 
Receiver,  ii.  418. 
Receiver  of  stolen  goods,  ii.  419. 
Recent  possession,  ii.  420. 
Receptus,  ii.  421. 
Recession,  ii.  421. 
Recidivi,  ii.  422. 
Reciprocal  contract,  ii.  422. 
Reciprocity,  ii.  422. 
Recital,  ii.  422. 

in  contracts,  ii.  422,  2. 
in  pleading,  ii.  422,  3,  4, 
in  equity,  ii.  422,  3. 
at  law,  ii.  422,  3,  4, 
of  deeds,  ii.  422,  3. 
of  public  statutes, 

ii.  422,  3. 
of  private  statutes, 
ii.  422,  4. 
Reclaim,  ii.  423. 
Reclaiming  bill,  ii.  423. 
Recognition,  ii.  423. 


Recognitors,  ii.  423. 
Recognizance,  ii.  423. 

who  may  take,  ii.  423,  2,  3« 

discharge  and  excuse  under, 
ii.  423,  4. 

exoneration,  ii.  424,  5« 
Recognize,  ii.  424. 
Recognizee,  ii.  424. 
Recognizor,  ii.  424. 
Recolement,  ii.  424. 
Recommendation,  ii.  424. 
Recompensation,  ii.  424. 
Recompense,  ii.  424. 
Recompense  of  recovery,  ii.  424 
Reconciliation,  ii.  424. 
Reconduction,  ii.  424. 
Reconvention,  ii.  424. 
Record,  ii.  424. 
Record  of  nisi  prius,  ii.  425. 
Recordari  facias  loquelam,  ii.  425, 
Recordatur,  ii.  425. 
Recorder,  ii.  425. 
Recoupement,  ii.  425. 

how  far  applicable  at  com- 
mon law,  ii.  425,  2-4. 

may  be  a  cross-action,  ii.  426, 
6. 

how  far  applicable  in  real 
estate  cases,  ii.  426,  6. 

rules  of  practice,  ii.426,  T,  8. 
Recoverer,  ii.  427. 
Recovery,  ii.  427. 
Recreant,  ii.  427. 
Recrimination,  ii.  427. 
Recruit,  ii.  427. 
Recto,  ii.  427. 
Rector,  ii.  427. 
Rectory,  ii.  427. 
Rectus  in  curia,  ii.  428. 
Recuperatores,  ii.  428. 
Recusant,  ii.  428. 
Recusation,  ii.  428. 
Red  book  of  the  exchequer,  ii. 
428. 

Reddendo  singula  singulis,  ii.  428. 
Reddendum,  ii.  428. 
Reddidit  se,  ii.  428. 
Redemption,  ii.  428. 
Redemptiones,  ii.  428. 
Redhibition,  ii.  428. 
Redhibitory  action,  ii.  428. 
Reditus  albi,  ii.  428. 
Reditus  nigri,  ii.  428. 
Redobatores,  ii.  429. 
Redraft,  ii.  429. 
Redress,  ii.  429. 
Redubbers,  ii.  429. 
Redundancy,  ii.  429. 
Re-entry,  ii.  429. 

reservation  of  right,  ii.  429.2. 

demand  required,  ii.  429,  3. 

security,  how  far,  ii.  429,  t. 
Reeve,  ii.  430. 
Re-examination,  ii.  430. 
Re-exchange,  ii.  430. 
Refalo,  ii.  430. 
Refection,  ii.  430. 
Referee,  ii.  430. 
Reference,  ii.  430. 
Referendarius,  ii.  430. 
Referendum,  ii.  430. 
Reform,  ii.  430. 
Refresh  the  memory,  *i.  431. 
Refund,  ii.  431. 
Refusal,  ii.  431. 
Regardant,  ii.  431. 
Regency,  ii.  431. 
Regent,  ii.  431. 
Regiam  majestatem,  ii.  431. 


INDEX. 


72b 


Regicide,  ii.  431. 

llegidor,  ii.  431. 

Regiiuiento,  ii.  431. 

Register,  ii.  431. 

Register's  court,  ii.  432. 

Register  of  writs,  ii.  432. 

Registrarius,  ii.  432. 

Registrum  brevium,  ii.  432. 

Registry,  ii.  432. 

Regnant,  ii.  432. 

Regrating,  ii.  432. 

Regress,  ii.  432. 

Regular  clergy,  ii.  432. 

Regular  deposit,  ii.  432. 

Regular  process,  ii.  432. 

Rehabere  facias  seisinam,  ii.  432. 

Rehabilitation,  ii,  432. 

Rehearing,  ii.  432. 

Rei  interventus,  ii.  432. 

Reinsurance,  ii.  432. 

Reissual)le  notes,  ii.  433. 

Rejoinder,  ii.  433. 

Rejoining  gratis,  ii.  433. 

Relation,  ii.  433. 

Relations,  ii.  433. 

Relative,  ii.  433. 

Relative  powers,  ii.  433. 

Relative  rights,  ii.  433. 

Relator,  ii.  433. 

Release,  ii.  434. 

Releasee,  ii.  434. 

Releasor,  ii,  434. 

Relegatio,  ii,  434. 

Relevancy,  ii.  435. 

Relict,  ii,  435, 

Relicta  veriticatione,  ii.  435. 
Reliction,  ii.  435. 
Relief,  ii.  435. 
Religion,  ii.  435. 
Religious  men,  ii.  435. 
Religious  test,  ii,  435, 
Relinquishment,  ii.  435. 
Relocatio,  ii,  435, 
Remainder,  ii,  435. 
Remainder-man,  ii,  435. 
Remand,  ii,  435. 
Remanding  a  cause,  ii.  435. 
Remanent  pro  defectu,  etc.,  ii.  435, 
Remanet,  ii.  436. 
Remedial,  ii.  436. 
Remedy,  ii.  436. 
Remembrances,  ii,  436. 
Remise,  release,  and  quit-claim, 

ii.  436. 
Remission,  ii.  436. 
Remit,  ii,  436, 
Remittance,  ii.  436. 
Remittee,  ii,  436. 
Remitter,  ii.  436. 
Remittit  damna,  ii,  436. 
Remittitur  damnum,  ii.  436. 
Remittitur  of  record,  ii.  437. 
Remittor,  ii.  437. 
Remonstrance,  ii.  437. 
Remote,  ii,  437. 
Removal  from  office,  ii.  437. 
Remover,  ii,  437. 
Remuneration,  ii.  437. 
Render,  ii,  437. 
Rendezvous,  ii.  437. 
Renewal,  ii.  437. 
Renounce,  ii,  437. 
Renouncing  probate,  ii,  437. 
Rent,  ii.  437. 
Rent  charge,  ii.  438. 
Rent-roll,  ii,  438. 
Rent  seek,  ii,  438. 
Rent  service,  ii.  438, 
Rent,  issues,  and  profits,  ii,  438. 
Vol.  II.— 46*. 


Rental,  ii.  438. 
Rente,  ii.  438. 
Rente  fonciere,  ii,  438. 
Rente  viagere,  ii.  438. 
Renunciation,  ii.  438. 
Repairs^  ii.  439, 
Reparation,  ii,  439. 
Reparatione  facienda,  ii.  439. 
Repeal,  ii.  439, 
Rei)ertory,  ii.  439. 
Repetition,  ii,  439. 
Repleader,  ii.  440. 
Replegiare,  ii.  440, 
Re[)legiarc  de  averiis,  ii,  440. 
Replegiare  facias,  ii.  440. 
Replevin,  ii,  440. 

lies  to  recover  personal  pro- 
perty, ii.  440,  2. 

goods  must  not  be  attached, 
ii.  440,  a. 

declaration  in,  ii,  440,  5* 
Replevy,  ii.  441. 
Repliant,  ii,  441. 
Replication,  ii,  441. 

in  equity,  ii.  441,  1. 

at  law,  ii,  441.  2-4. 

varies  with  plea,  ii.  442, 
2. 

should  contain  what,  ii. 
442,  3. 

conclusion,  ii.  442,  4, 
Reports,  ii,  442-464. 
Represent,  ii.  464. 
Representation,  ii.  464. 
Representation  of  persons,  ii.  464, 
Representative,  ii,  464, 
Representative  democracy,  ii.  464. 
Reprieve,  ii.  464. 
Reprimand,  ii.  465. 
Reprisals,  ii.  465. 
Reprises,  ii.  465. 
Reprobation,  ii.  465. 
Republic,  ii.  465. 
Republican  government,  ii.  465. 
Republication,  ii.  465. 
Repudiate,  ii.  465. 
Repudiation,  ii.  465. 
Repugnancy,  ii.  466. 
Refutation,  ii,  466. 
Request,  ii,  466. 
Request  notes,  ii.  466. 
Requisition,  ii.  466, 
Res,  ii.  466. 
Res  communes,  ii.  466. 
Res  gestae,  ii.  467. 
Res  integra,  ii.  467. 
Res  inter  alias  acta,  ii.  467. 
Res  judicata,  ii,  467. 
Res  mancipi,  ii.  467. 
Res  nova,  ii.  467. 
Res  nullius,  ii,  467. 
Res  periit  domino,  ii.  467. 
Res  privatae,  ii,  467. 
Res  publicae,  ii,  468. 
Res  religiosae,  ii.  468. 
Res  sacrse,  ii.  468. 
Res  sanctae,  ii,  468. 
Res  universitatis,  468. 
Resale,  ii.  468. 
Resceit,  ii,  468. 

Rescission  of  contracts,  ii.  468. 
Rescissory  actions,  ii.  469. 
Rescous,  ii,  469, 
Rescript,  ii.  469, 

in  civil  law,  ii,  469. 

at  common  law,  ii.  469. 
Rescription,  ii,  469, 
Rescue,  ii.  469. 

i;:  'rimiual  law,  ii.  469,  1,  2. 


Rescue : 

in  maritime  law,  ii,  469,  2. 
Rescussor,  ii,  470. 
Reservation,  ii,  470. 
Reset  of  theft,  ii.  470. 
Resetter,  ii.  470. 
Resiance,  ii,  470, 
Residence,  ii.  470. 
Resident,  ii.  470. 
Resident  minister,  ii.  470. 
Residuary  clause,  ii.  470. 
Residuary  devisee,  ii.  470. 
Rei^iduary  estate,  ii.  470. 
Residuary  legatee,  ii.  470. 
Residue,  ii,  470, 
Resignation,  ii.  470. 
Resignation  bond,  ii.  470. 
Resignee,  ii.  470, 
Resistance,  ii,  470. 
Resolution,  ii.  470. 
Resolutory  condition,  ii.  470. 
Respiration,  ii,  471. 
Respite,  ii.  471. 
Responde  book,  ii.  471. 
Respondeat  ouster,  ii.  471. 
Respondent,  ii.  471. 
Respondentia,  ii,  471. 
Respondere  non  debet,  ii,  472. 
Responsa  prudentum,  ii.  472. 
Responsalis,  ii.  472. 
Responsibility,  ii.  472. 
Responsible,  ii.  472. 
Responsible  government,  ii,  472. 
Restitutio  in  integram,  ii.  472. 
Restitution,  ii,  472. 
Restitution  of  conjugal  rights,  ii 

472. 
Restore,  ii.  472. 
Restraining,  ii.  472. 
Restrictive  indorsement,  ii.  472. 
Resulting  trust,  ii,  472. 
Resulting  use,  ii.  473. 
Retail,  ii,  473, 

Retail  of  merchandise,  ii.  473. 
Retain,  ii.  473. 
Retainer,  ii,  473. 

effect  of,  ii.  473,  2. 

obligation  of,  ii.  474,  3* 
Retaining  fee,  ii,  474. 
Retaking,  ii.  474. 
Retaliation,  ii.  474. 
Retention,  ii.  474. 
Retornia  brevium,  ii.  474. 
Retorno  habendo,  ii.  474. 
Retorsion,  ii.  474. 
Retract,  ii,  474, 
Retraxit,  ii,  475, 
Retribution,  ii.  475. 
Retrocession,  ii,  475. 
Retrospective,  ii.  475. 
Return,  ii,  475. 
Return-day,  ii.  475. 
Return  of  premium,  ii.  475. 
Return  of  writs,  ii.  475. 
Reus,  ii,  476. 
Reveland,  ii.  476. 
Revendication,  ii.  476. 
Revenue,  ii.  476. 
Reversal,  ii.  476. 
Reversion,  ii.  476, 
Reversionary  interest,  ii.  476. 
Reversor,  ii.  476. 
Reverter,  ii,  476. 
Review,  ii.  476. 
Revising  barristers,  ii,  477. 
Revival,  ii,  477. 
Revivor,  ii,  477, 
Revocation,  li,  477. 

of  grants,  ii.  477,  2» 


I 


726 


INDEX. 


Revocation : 

of  voluntary  conveyances,  ii. 

477,  2-*. 
of  agent's  powers,  ii.  477,  5- 
14. 

by  insanity,  ii.  478,  9. 
coupled  with  interest,  ii. 
478,  10-14r. 
of  arbitrator's  powers,  ii.  479, 

15-18. 
of  partner's  power,  ii.  480, 
19. 

ftevocatur,  ii.  480. 
Revolt,  ii.  481. 
Reward,  ii.  481. 
Rhode  Island,  ii.  481. 

history,  ii.  481,  1-6. 

legislative  power,  ii.  482,  6. 

executive  power,  ii.  482,  1. 

judicial  power,  ii.  483,  8,  9. 
Rhodian  laws,  285,  26,  ii.  483. 
Rial  of  plate,  ii.  483. 
Rial  of  vellon,  ii.  483. 
Riband,  ii.  483. 
Rider,  ii.  483. 
Riding,  ii.  483. 
Rien,  ii.  483. 
Rien  en  arriere,  ii.  483. 
Rien  passa  par  le  fait,  ii.  485. 
Right,  ii.  484. 
Right  of  discussion,  ii.  485. 
Right  of  division,  ii.  485. 
Right  of  habitation,  ii.  485. 
Right  of  possession,  ii.  485. 
Right  of  property,  ii.  485. 
Right  of  relief,  ii.  485. 
Right  of  search,  ii.  485. 
Right  to  begin,  ii.  486. 
Right  patent,  ii.  486. 
Ring-dropping,  ii.  486. 
Ringing  the  change,  ii.  486. 
Rings-giving,  ii.  486. 
Riot,  ii.  486. 
Riotously,  ii.  487. 
Ripa,  ii.  487. 

Riparian  proprietors,  ii.  487. 
Riparian  law,  ii.  487. 
Risks  and  perils,  ii.  487. 
River,  ii.  487. 
Rix  dollar,  ii.  488. 
Rixa,  ii.  488. 
Rixatrix,  ii.  488. 
Road,  ii.  488. 
Roaring,  ii.  488. 
Robber,  ii.  488. 
Robbery,  ii.  488. 
Rod,  ii.  489. 

Rogatory  letters,  ii.  489. 
Rogue,  ii.  489. 
Role  d'equipage,  ii.  489. 
Roll,  ii.  489. 
Rolls  office,  ii.  489. 
Romney  Marsh,  ii.  489. 
Rood  of  land,  ii.  489. 
Rf  ot,  ii.  489. 
Rtster,  ii.  489. 
Rota,  ii.  489. 
Roturier.  ii.  489. 
Rouble,  ii.  489. 
Roup,  ii.  489. 
Routously,  ii.  489. 
Royal  fish,  ii.  489. 
Royal  honors,  ii.  490. 
Royal  mines,  ii.  490. 
Rubric,  ii.  490. 
Rudeness,  ii.  490. 
Rule  of  court,  ii.  490. 
Rule  nisi,  ii.  490. 
Rule  to  show  cause,  ii.  490. 


Rule  of  the  war  of  1756,  ii.  490. 

Rules,  ii.  490. 

Rules  of  practice,  ii.  490. 

Rumor,  ii.  490. 

Runcinus,  ii.  490. 

Running  account,  ii.  490. 

Running  days,  ii.  490. 

Running  lands,  ii.  491. 

Running  of  the  statute,  ii.  491. 

Running  with  the  land,  ii.  491. 

Rupee,  ii.  491. 

Rural,  ii.  491. 

Ruse  de  guerre,  ii.  491. 

Rata,  ii.  491. 

S. 

Sabbath,  ii.  491. 
Sabinians,  ii.  491. 
Sac,  ii.  491. 
Sacaburth,  ii.  491. 
Sacquier,  ii.  491. 
Sacramentales,  ii.  491. 
Sacramentum,  ii.  491. 
Sacramentum  decisionia,  ii.  491. 
Sacrilege,  ii.  491. 
Saevitia,  ii.  491. 
Safe-conduct,  ii.  491. 
Safe-pledge,  ii.  492. 
Safeguard,  ii.  492. 
Said,  ii.  492. 

Sailing  instructions,  ii.  492. 
Sailors,  ii.  492. 
Saisie- execution,  ii.  492. 
Saisie-foraine,  ii.  492. 
Saisie-gagerie,  ii.  492. 
Saisie-immobiliere,  ii.  49J>- 
Salary,  ii.  492. 
Sale,  ii.  492-494. 

kinds  of,  ii.  492,  1, 

parties,  ii.  493,  2,  3. 

price,  ii.  493,  3. 

agreement  of  parties,  5\.  4J^^ 
4,  5. 

of  real  property,  ii.  49i,  6  . 
Sale  note,  ii.  494. 
Sale  and  return,  ii.  494. 
Salique  law,  ii.  494. 
Salvage,  ii.  494-496. 

the  peril,  ii.  494,  2, 

the  saving,  ii.  494,  3. 

the  place,  ii.  495,  4. 

the  amount  paid,  ii.  495,  5. 

the  property  saved,  ii.  495, 6. 

bar  to  claim,  ii.  495,  T. 

forfeiture  and  denial  of,  ii. 
495,  T. 

distribution,  ii.  496,  8. 

in  insurance,  ii.  496,  9. 
Salvage  charges,  ii.  496. 
Salvage  loss,  ii.  496. 
Salvor,  ii.  496. 
Sample,  ii.  497. 
Sanction,  ii.  497. 
Sanctuary,  ii.  497. 
Sane  memory,  ii.  497. 
Sang,  ii.  497. 
Sanity,  ii.  497. 
Sans  ceo  que,  ii.  497. 
Sans  nombre,  ii.  497. 
Sans  recours,  i*.  497. 
Satisdatio,  ii.  497. 
Satisfaction,  ii.  497. 
Satisfaction  pie<5e,  ii.  498. 
Satisfactory  evidence,  ii.  498. 
Scandal,  ii.  498. 
Scandalous  matter,  ii.  498. 
Schedule,  ii.  498. 
Schoolmaster,  ii.  498. 


Sciendum,  ii.  498. 
Scienter,  ii.  498. 
Scilicet,  ii.  498. 
Scintilla  juris,  ii.  499. 
Scire  facias,  ii.  499. 
Scire  facias  ad  audiendum,  eto^ 
ii.  500. 

Scire  facias  ad  disprobandum,  iL 
500. 

Scire  feci,  ii.  500. 

Scire  fieri  inquiry,  ii.  500. 

Scite,  ii.  501. 

Scold,  ii.  501. 

Scot  and  lot,  ii.  501. 

Scotale,  ii.  501. 

Scoundrel,  ii.  501. 

Scrawl,  ii.  601. 

Scrip,  ii.  601. 

Script,  ii.  501. 

Scrivener,  ii.  501. 

Scroll,  ii.  501. 

Scruet  role,  ii.  501. 

Scrutator,  ii.  601. 

Scutage,  ii.  601. 

Scyregemote,  ii.  601. 

Se  defendendo,  ii.  501. 

Sea,  ii.  601. 

Sea  letter,  ii.  602. 

Sea  shore,  ii.  502. 

Sea-weed,  ii.  502. 

Seal,  ii.  503. 

Seal  office,  ii.  503. 

Seal  of  the  United  States,  ii.  503 

Sealing  a  verdict,  ii.  503. 

Seals,  ii.  503. 

Seaman,  ii.  604. 

includes  what,  ii.  504,  2. 

public  or  private,  ii.  504,  3. 

duties  of,  ii.  504,  4. 

rights  of,  ii.  604,  5. 

when  destitute,  ii.  604,  6» 
Seamanship,  ii.  604. 
Seaman's  fund,  ii.  604. 
Search,  ii.  606. 
Search,  right  of,  ii.  605. 
Search-warrant,  ii.  605. 
Searcher,  ii.  506. 
Seated  lands,  ii.  506. 
Seaworthiness,  ii.  606. 
Seek,  ii.  506. 
Second,  ii.  606. 
Second  deliverance,  ii.  606. 
Second  surcharge,  ii.  606. 
Secondary,  ii.  606. 
Secondary  conveyances,  ii.  507i 
Secondary  evidence,  ii,  607. 
Seconds,  ii.  507. 
Secret,  ii.  507. 
Secretary,  ii.  507. 
Secretary  of  embas"'y,  ii.  507. 
Secretary  of  legation,  ii.  607. 
Secta,  ii.  607. 
Section  of  land,  ii.  508. 
Sectores,  ii.  608. 
Security,  ii.  608. 
Security  for  costs,  ii.  608 
Secus,  ii.  508. 
Sedition,  ii.  508. 
Seduction,  ii.  508. 
Seeds,  ii.  608. 
Seignior,  ii.  608. 
Seigniory,  ii.  508. 
Seisin,  ii.  508. 
Seizure,  ii.  509. 
Selecti  judices,  ii.  609, 
Selectmen,  ii.  609. 
Self-defence,  ii.  509. 
Seller,  ii.  510. 
Semble,  ii.  510. 


INPEX. 


Semi-proof,  ii.  510. 
Seminary,  ii.  510. 
Seminaufragium,  ii.  510. 
Semper  paratus,  ii.  510. 
Sen,  ii.  510. 
Senate,  ii.  510. 
Senator,  ii.  510. 
Senatus  consultum,  ii,  510. 
Seneschallus,  ii.  510, 
Senility,  ii.  510. 
Senior,  ii.  510. 
Sentence,  ii.  510. 
Separalitcr,  ii.  510. 
Separate  estate,  ii.  511. 
Separate  maintenance,  ii.  511. 
Separate  trial,  ii.  511. 
Separation,  ii.  511. 
Separation  a  mensa  et  thoro,  ii. 
511. 

Sepulchre,  ii.  511. 

Sequester,  ii.  511. 

Sequestration,  ii.  511. 

Sequestrator,  ii.  512. 

Serf,  ii.  512. 

Sergeant,  ii.  512. 

Sergeant- at-arms,  ii.  513. 

Seriatim,  ii.  513. 

Serjeants-at-law,  ii.  613. 

Serjeanty,  ii.  513. 

Servants,  ii.  513. 

Service,  ii.  513. 

Servient,  ii.  513, 

Servitors  of  bills,  ii.  513. 

Servitude,  ii.  513. 

Servitus,  ii.  514. 

Servus,  ii.  514. 

Session,  ii.  515. 

Sessions  court,  ii.  515. 

Sessions  of  the  peace,  ii.  515. 

Set  aside,  ii.  515. 

Set  of  exchange,  ii.  515. 

Set-oflF,  ii.  515. 

Settle,  ii.  516. 

Settlement,  ii.  516. 

Sever,  ii.  516. 

Several,  ii.  516. 

Severalty,  estate  in,  ii.  516. 

Severance,  ii.  517. 

Sewer,  ii.  517, 

Sex,  ii.  517. 

Sham  plea,  ii.  517. 

Share,  ii.  517. 

Sheep,  ii.  517. 

Shelley's  case,  rule  in,  ii.  517. 
Sheriff,  ii.  518. 

how  selected,  ii.  518,  2, 

his  duty,  ii.  518,  3-6. 

assistants,  ii.  518,  7,  8. 

powers  of  deputies,  ii.  519,  9. 
Sheriff's  court,  ii.  519. 
Sheriff's  court  in  London,  ii.  519. 
Sheriff's  jury,  ii.  519. 
Sheriff's  tourn,  ii.  519. 
Sheriffalty,  ii.  519. 
Shifting  use,  ii.  519. 
Shilling,  ii.  519. 
Ship,  ii.  519. 
Ship-broker,  ii.  520. 
Ship-damage,  ii.  520. 
Ship's  husband,  ii.  520. 
Ship's  papers,  ii.  520. 
Shipper,  ii.  520. 
Shipping,  ii.  521. 
Shipping  articles,  ii.  521. 
Shipwreck,  ii.  521. 
Shire,  ii.  521. 
Shire-gemot,  ii.  521. 
Shop-books,  ii.  521. 
Shore,  ii.  521. 


Short-entry,  ii.  521. 

Short  notice,  ii.  521. 

Si  te  fecerit  securum,  ii.  521. 

Sickness,  ii.  521. 

Side-bar  rules,  ii.  522. 

Sidesmen,  ii.  522. 

Sight,  ii.  522. 

Sigillum,  ii.  522. 

Sign,  ii.  522. 

Sign  manual,  ii.  522. 

Signa,  ii.  523. 

Signature,  ii.  523. 

Signification,  ii.  523. 

Significavit,  ii.  523. 

Signing  judgment,  ii.  623. 

Silence,  ii.  523. 

Silva  caedua,  ii.  523. 

Similiter,  ii.  523. 

Simony,  ii.  523. 

Simple  contract,  ii.  524. 

Simple  larceny,  ii.  524. 

Simple  obligation,  ii.  524. 

Simple  trust,  ii.  524. 

Simplex,  ii.  524. 

Simpliciter,  ii.  524. 

Simul  cum,  ii.  524. 

Simulation,  ii.  524, 

Sine  die,  ii.  524. 

Sinecure,  ii.  524. 

Single  bill,  ii.  524. 

Single  entry,  ii.  524. 

Singular,  ii.  524. 

Sinking  fund,  ii.  524. 

Sire,  ii.  524. 

Sister,  ii.  524. 

Sittings  in  bank,  ii.  524. 

Situs,  ii.  524. 

Six  clerks  in  chancery,  ii.  525. 
Skeleton  bill,  ii.  625. 
Skill,  ii.  525. 
Slander,  ii.  525. 

ground  for  action,  ii.  625,  2. 
what  words  are  actionable, 

ii.  525,  2-4. 
charge  must  be  false,  ii.  526, 
5. 

must  be  published,  ii.  526,  5, 
must  be  without  legal  occa- 
sion, ii.  526,  6. 
must  be  malice,  ii.  526,  6* 

Slander,  title  of,  ii.  526. 

Slanderer,  ii.  527. 

Slave,  ii.  527. 

Slave-trade,  ii.  627. 

Slavery,  ii.  528. 

Smart-money,  ii.  528. 

Smoke-silver,  ii.  528. 

Smuggling,  ii.  528. 

So  help  you  God,  ii.  628, 

Socage,  ii.  528. 

Socer,  ii.  529. 

Socida,  ii.  529. 

Societas,  ii.  529. 

Societas  leonina,  ii.  529. 

Society  en  commendite,  ii.  529. 

Society,  ii.  529. 

Sodomite,  ii.  529. 

Sodomy,  ii.  529. 

Soil,  ii.  529. 

Soit  droit  fait  al  partie,  ii.  529. 

Sokemans,  ii.  529. 

Solar  day,  ii.  529. 

Solar  month,  ii.  529. 

Solares,  ii.  529. 

Sold  note,  ii.  530. 

Soldier,  ii.  530. 

Sole,  ii.  530. 

Solemnity,  ii.  530. 

Solicitation  of  chastity,  ii.  630. 


Solicitor,  ii.  530. 
Solicitor-general,  ii.  530. 
Solicitor  of  the  treasury,  iL  630* 
Solido,  ii.  530. 
Solutio,  ii.  530. 
Solutio  indebiti,  ii.  630. 
Solvency,  ii.  531. 
Solvent,  ii.  531. 
Solvere,  ii.  531. 
Solvit  ad  diem,  ii.  531. 
Solvit  post  diem,  ii.  531. 
Somnambulism,  ii.  531. 
Son,  ii.  531. 

Son  assault  demesne,  iL  631. 

Son-in-law,  ii.  532. 

Sors,  ii.  532. 

Soul-scot,  ii.  532. 

Sound  mind,  ii.  532. 

Sounding  in  damages,  ii.  632. 

Soundness,  ii.  532. 

Sources  of  the  law,  ii.  632. 

Sous  seing  priv6,  ii.  533. 

South  Carolina,  ii.  533. 

legislative  power,  ii.  533,  4-. 
executive  power,  ii.  534, 5,  6» 
judicial  power,  ii.  634,  T,  8. 

Sovereign,  ii.  535. 

Sovereign  state,  ii.  635. 

Sovereignty,  ii.  535. 

Spadones,  ii.  535. 

Sparsim,  ii.  535. 

Speak,  ii.  536. 

Speaker,  ii.  536. 

Speaking  demurrer,  ii.  536. 

Special,  ii.  536. 

Special  agent,  ii.  536. 

Special  assumpsit,  ii.  536. 

Special  bail,  ii.  536. 

Special  constable,  ii.  536, 

Special  damages,  ii.  536. 

Special  demurrer,  ii.  536. 

Special  deposit,  ii.  536. 

Special  errors,  ii.  536. 

Special  imparlance,  ii.  536. 

Special  injunction,  ii.  536. 

Special  issue,  ii.  5.36. 

Special  jury,  ii.  537. 

Special  non  est  factum,  ii.  537. 

Special  occupant,  ii.  537. 

Special  partnership,  ii.  537. 

Special  plea  in  bar,  ii.  537. 

Special  pleader,  ii.  537. 

Special  pleading,  ii.  537. 

Special  property,  ii.  537. 

Special  request,  ii.  537. 

Special  rule,  ii.  537. 

Special  traverse,  ii.  537. 

Special  trust,  ii.  537. 

Special  verdict,  ii.  537. 

Specialty,  ii.  537. 

Specie,  ii.  537. 

Species  facti,  ii.  537. 

Specific  legacy,  ii.  537. 

Specific  performance,  ii.  538. 

Specificatio,  ii.  539. 

Specification,  ii.  539. 

Specimen,  ii.  539. 

Speculation,  ii.  539. 
•Speech,  ii.  539. 

Spelling,  ii.  539. 

Spendthrift,  ii.  540. 

Sperate,  ii.  540. 

Spes  recuperandi,  ii.  540, 

Spinster,  ii.  540. 

Splitting  a  cause,  ii.  540. 

Spoliation,  ii.  540. 

Sponsalia,  ii.  540. 

Sponsions,  ii.  540. 

Sponsor,  ii.  540. 


INDEX. 


Spring,  ii.  540. 
Spring-branch,  ii.  540. 
Springing  use,  ii.  641. 
Spulzie,  ii.  541. 
Spy,  ii.  541. 
Squatter,  ii.  541* 
Stab,  ii.  541. 
Stagnum,  ii.  541. 
Stakeholder,  ii.  541. 
Stale  demand,  ii.  541. 
Stallage,  ii.  541. 
Stallarius,  ii.  541. 
Stamp,  ii.  541. 
Stand,  ii.  541. 
Standard,  ii.  541. 
Stannary  courts,  ii.  542. 
Staple,  ii.  542. 
Star-chamber,  ii.  542. 
Stare  decisis,  ii.  542. 
Stare  in  judicio,  ii.  542. 
State,  ii.  542. 

in  governmental  law,  ii.  542, 
1-3. 

in  society,  ii.  543,  4t» 

in  practice,  ii.  543,  4, 
Statement,  ii.  543. 
Station,  ii.  543. 
Stating  part  of  a  bill,  ii.  543. 
Statu  liberi,  ii.  543. 
Status,  ii.  543. 
Statute,  ii.  543. 

kinds  of,  ii.  543,  1. 

in  the  civil  law,  ii.  544,  2. 

how  enacted,  ii.  544,  3. 

contrary  to  reason,  ii.  544,  4« 

unconstitutional,  ii.  544,  5. 

effect  of,  by  relation,  ii.  545, 
6. 

repeal  of,  ii.  545,  7,  8. 
Statute  merchant,  ii.  545. 
Statute  staple,  ii.  545. 
Statuti,  ii.  545. 
Stay  of  execution,  ii.  545. 
Staying  proceedings,  ii.  54.5. 
Stealing,  ii.  546. 
Steelbow  goods,  ii.  546.. 
Stellionate,  ii.  546. 
Step-daughter,  ii.  546. 
Step-father,  ii.  546. 
Step-mother,  ii.  546. 
Step-son,  ii.  546. 
Stdre,  ii.  546. 
Sterility,  ii.  546. 
Sterling,  ii.  546. 
Stet  processus,  ii.  546. 
Stevedore,  ii.  546. 
Steward  of  all  England,  ii.  646. 
Stews,  ii.  546. 
Stillicidium,  ii.  546. 
Stint,  ii.  546. 
Stipes,  ii.  547. 
Btipulatio,  ii.  547. 
Stipulation,  ii.  547. 
Stirpes,  ii.  547. 
Stock,  ii.  547. 
Stock-broker,  ii.  547. 
Stock-exchange,  ii.  547. 
Stocks,  ii.  547. 
Stoppage  in  transitu,  ii.  648. 
Stores,  ii.  548. 
Stouthreiff,  ii.  548. 
Stowage,  ii.  548. 
Stranding,  ii.  548. 
Stranger,  ii.  549. 
Stratagem,  ii.  549. 
I:  i  ratocracy,  ii.  549. 
Stream,  ii.  549. 
Street,  ii.  549. 
Strict  settlement,  IL  649. 


Strictissimi  juris,  ii.  549. 
Strictum  jus,  ii.  550. 
Striking  a  docket,  ii.  550. 
Striking  a  jury,  ii.  550. 
Struck,  ii.  550. 
Struck-off,  ii.  550. 
Strumpet,  ii.  550. 
Stultify,  ii.  550. 
Stupidity,  ii.  550. 
Stuprum,  ii..550. 
Sub-agent,  ii.  550. 
Sub-contract,  ii.  550. 
Sub  modo,  ii.  550. 
Sub  pede  sigilli,  ii.  550. 
Sub  potestate,  ii.  550. 
Sub  silentio,  ii.  550. 
Sub-tenant,  ii.  550. 
Subaltern,  ii.  550. 
Subdivide,  ii.  551. 
Subinfeudation,  ii.  551. 
Subject,  ii.  551. 
Subject-matter,  ii.  551. 
Subjection,  ii.  551. 
Sub-lease,  ii.  551. 
Submission,  ii,  551. 

how  made,  ii.  551,  2. 

when  to  be  made,  ii.  551,  3. 

who  may  make,  ii.  551,  4, 

what  may  be  included,  ii.  552, 
5. 

effect  of,  ii.  552,  6. 

must  be  followed  by  referee, 
ii.  552,  T. 

revocation  of,  ii.  552,  8,  9. 
Subnotations,  ii.  553. 
Subornation  of  perjury,  ii.  653. 
Subpoena,  ii.  553. 
Subpcena  duces  tecum,  ii.  653. 
Subreptio,  ii.  553. 
Subreption,  ii.  553. 
Subrogation,  ii.  553. 

what  it  is,  ii.  553,  1. 

conventional,  ii.  554,  2. 

legal,  ii.  554,  3-8. 
Subscribing  witness,  ii.  656, 
Subscription,  ii.  556. 
Subscription  list,  ii.  566. 
Subsidy,  ii.  556. 
Substance,  ii.  556. 
Substitute,  ii.  556. 
Substitutes,  ii.  556. 
Substitution,  ii.  557. 
Substraction,  ii.  557.  * 
Subtraction,  ii.  557. 
Subtraction  of  conjugal  rights,  ii. 
557. 

Succession,  ii.  557. 

Successor,  ii.  557. 

Suckjen,  ii.  557. 

Sue,  ii.  557. 

Suffragan,  ii.  557. 

Suffrage,  ii.  557. 

Suggestio  falsi,  ii.  567. 

Suggestion,  ii.  557. 

Suggestive  interrogation,  ii.  658 

Sui  juris,  ii.  558. 

Suicide,  ii.  558. 

Suit,  ii.  558. 

Suite,  ii.  659. 

Suitor,  ii.  559. 

Sultan,  ii.  559. 

Summary  proceeding,  ii.  569. 
Summing  up,  ii.  559. 
Summon,  ii.  559. 
Summoners,  ii.  559. 
Summons,  ii.  559. 
Summons  and  severance,  ii.  659. 
Summum  jus,  ii.  559. 
Sumptuary,  ii.  669. 


Sunday,  ii.  559. 
Super  altum  mare,  iL  660. 
Supercargo,  ii.  660. 
Superficiarius,  ii.  560. 
Superficies,  ii.  660. 
Superfoetation,  ii.  660. 
Superior,  ii.  560. 
Superior  court,  ii.  560. 
Supernumerarii,  ii.  560. 
Superoneratio,  ii.  560. 
Supersedeas,  ii.  560. 
Superstitious  use,  ii.  660. 
Supervisor,  ii.  561. 
Supplemental,  ii.  561. 
Supplemental  bill,  ii.  661. 
Suppletory  oath,  ii.  661. 
SuppUcatio,  ii.  561. 
Supplicavit,  ii.  561. 
Supplicium,  ii.  561. 
Supplies,  ii.  561. 
Support,  ii.  562. 
Suppressio  veri,  ii.  562. 
Supra  protest,  ii.  562. 
Supremacy,  ii.  562. 
Supreme,  ii.  662. 
Supreme  court,  ii.  562. 
Supreme  court  of  errors,  ii.  662 
Supreme  judicial  court,  ii.  562. 
Surety,  ii.  562. 
Suretyship,  ii.  562-672. 

classes  of,  ii.  562,  2,  3. 

where  principal  obligation  is 
pre-existent,  ii.  663,  4-6. 

where   obligations   are  co- 
temporaneous,  ii.  564,'3'~9. 

where  principal  obligation  is 
void,  ii.  564,  10. 

other  cases,  ii.  564,  10. 

under  statute  of  frauds,  ii. 
565,  11-13. 

formation  of  obligation,  ii. 

565,  14-17. 
consideration,   ii.  666, 

14,  15. 
conditional  or  otherwise, 

ii.  566,  16. 
acceptance  required,  ii. 

566,  17. 

extent  of  obligation,  ii.  566, 
18-23. 
generallv,  ii.  566,18,19. 
onbonds,ii.567, 20-22. 
continuing  or  otherwise, 

ii.  568,  22. 
not  genftrally  negotiable, 
ii.  568,  23. 
enforcement  of  obligation,  ii. 

568,  24,  25. 
discharge  of  obligation,  ii. 
569,  26-31. 
by  acts  of  principal  debt- 
or, iL  569,  26,  27. 
by  alteration  of  original 
contract,  ii.  569,  28. 
by  acts  of  creditor,  ii. 
569,  29-31. 
rights  of  surety  against  his 
principal,  ii.  570,  32,  33. 
rights  of  surety  against  cre- 
ditor, ii.  571,  34,  35. 
rights  of  surety  against  co- 
surety, ii.  571,  36-39. 
as  affected   by  conflict  o/ 
laws,  ii.  572,  40. 
Surgeon,  ii.  572. 
Surname,  ii.  573. 
Surplus,  ii.  673. 
Surplusage,  ii.  673. 
Surprise,  ii.  673. 


INDEX. 


729 


Surrebutter,  ii.  573. 
Surrejoinder,  ii.  673. 
Surrender,  ii.  573. 
Surrender  of  criminals,  ii.  573. 
Surrenderee,  ii.  673. 
Surrenderor,  ii.  573. 
Surreptitious,  ii.  574. 
Surrogate,  ii.  574. 
Surrogate's  court,  ii.  674. 
Survey,  ii.  574. 
Survivor,  ii.  574. 
Sus.  per  coll.,  ii.  574. 
Suspender,  ii.  574. 
Suspense,  ii.  574. 
Suspension,  ii,  574. 
Suspension  of  arms,  ii.  575. 
Suspension  of  a  right,  ii.  575. 
Suspensive  condition,  ii.  676. 
Sutler,  ii.  575. 
Suus  naeres,  ii.  675. 
Suzeraign,  ii.  575. 
Swain-gemote,  ii.  575. 
Svrear,  ii.  575. 
Swindler,  ii.  575. 
Symbolic  delivery,  ii,  575. 
Synallagmatic  contract,  ii.  575. 
Syndic,  ii.  676. 
Syndicus,  ii.  575. 
Syngraph,  ii.  575. 
Synod,  ii.  575. 

T. 

Tabella,  ii.  576. 
Tabellio,  ii.  576. 
Table-rents,  ii.  576. 
Tableau  of  distribution,  ii.  576. 
Tables,  ii.  676. 

.Tabula  in  naufragio,  ii.  676. 
Tabulae,  ii.  576. 
Tac,  ii.  576. 
Tac  free,  ii.  576. 
Tacit,  ii.  576. 
Tacit  law,  ii.  576. 
Tacit  relocation,  ii.  576. 
Tacit  tack,  ii.  576. 
Tack,  ii.  576. 
Tacking,  ii.  576. 
Tail,  ii.  577. 
Take,  ii.  577. 
Taking,  ii.  677. 
Tale,  ii.  577. 
Tales,  ii.  577. 

Tales  de  circumstantibus,  ii.  577. 

Tallage,  ii.  677. 

Tallagium,  ii.  577. 

Tally,  ii.  677. 

Talzie,  ii.  577. 

Tangible  property,  ii.  577 

Tanistry,  ii.  677. 

Tardo  venit,  ii.  578. 

Tare.  ii.  57S. 

Taritf,  ii.  578. 

Tavern,  ii.  578. 

Tax,  ii.  678. 

abatement  of,  24. 
Tax  deed,  ii.  578. 
Tax  sale,  ii.  578. 
Taxation,  ii.  579. 
Taxation  of  costs,  ii.  579. 
Teamster,  ii.  679. 
Technical,  ii.  679. 
Teind  court,  ii.  579. 
Teinds,  ii.  579. 
Teller,  ii,  579, 
Temporalities,  ii.  579. 
Temporary,  ii.  579. 
Temporis  exceptio,  ii.  579. 
Tempus,  ii.  580. 


Tempus  continuum,  ii.  580. 
Tempus  utile,  ii.  580. 
Tenancy,  ii.  580. 
Tenant,  ii.  4-9,  580. 

in  common,  ii.  580. 

by  the  curtesy,  ii,  680. 

of  the  demesne,  ii.  680. 

in  dower,  ii.  580. 

in  fee,  ii.  680. 

joint,  ii.  680. 

for  life,  ii.  580. 

by  the  manner,  ii.  580. 

paravail,  ii.  581. 

in  severalty,  ii.  581. 

at  sufferance,  ii.  581. 

in  tail,  ii.  581. 

at  will,  ii.  681. 

for  years,  ii.  581. 

from  year  to  year,  ii.  581. 
Tenant  right,  ii.  681. 
Tender,  ii.  681. 

in  contracts,  ii.  581,  2-4-. 
of  money,  ii.  581,  2,  3. 
of  specilic   articles,  ii. 
582,  4. 

in  pleading,  ii.  582,  5,  6. 
efifect  of,  ii.  582,  6. 
Tenement,  ii.  583. 
Tenendas,  ii.  683. 
Tenendum,  ii.  583. 
Teneri,  ii.  583, 
Tenet,  ii.  683. 
Tennessee,  ii.  583. 

history  of,  ii.  583,  2,  3. 

legislative  power,  ii.  584,  4. 

executive  power,  ii.  584,  5. 

judicial  power,  ii.  684,  6,  7. 
Tenor,  ii.  584. 
Tense,  ii.  684. 
Tenuit,  ii.  685. 
Tenure,  ii.  585. 
Terce,  ii.  586. 
Term,  ii.  586. 
Term  probatory,  ii.  587. 
Term  for  years,  ii.  587. 
Terminum,  ii.  587. 
Terminus,  ii.  587. 
Termor,  ii,  587. 
Terre-tenant,  ii.  587. 
Terrier,  ii.  687. 
Territorial  courts,  ii.  587. 
Territory,  ii.  587. 
Terror,  ii.  587. 
Tertius  interveniens,  ii.  588. 
Test,  ii.  588. 
Test  act,  ii.  588. 
Test-paper,  ii.  688. 
Testament,  ii.  588. 
Testamentary,  ii.  589. 
Testamentary  causes,  ii.  589. 
Testamentary  guardian,  ii.  589. 
Testate,  ii.  589. 
Testator,  ii.  589. 
Testatri.x,  ii.  589. 
Testatum,  ii.  589. 
Teste  of  a  writ,  ii.  589. 
Testes,  ii.  589. 
Testify,  ii.  689. 
Testimonial  proof,  ii.  589. 
Testimonies,  ii.  589. 
Testimony,  ii.  689. 
Testmoigne,  ii.  589. 
Texas,  ii.  589. 

history,  ii.  689,  1,  2. 
legislative  power,  ii,  590,  3. 
executive  powea;,  ii,  590,  4, 
judicial  power,  ii.  690,  5-14. 
Thainland,  ii,  592. 
Thaler,  ii.  592. 


Thane,  ii.  593. 

Theft,  ii.  693. 

Theft-bote,  ii.  593. 

Theodosian  code,  286,  26. 

Theocracy,  ii.  693. 

Theophilus'  Institutes,  727,  1» 

Thief,  ii.  593. 

Things,  ii.  693. 

Third-borow,  ii.  593. 

Third  parties,  ii.  593. 

Third  penny,  ii.  593. 

Thirlage,  ii.  69-3. 

Thoroughfare,  ii,  693, 

Thought,  ii,  593. 

Thread,  ii.  693. 

Threat,  ii.  594. 

Three-dollar  piece,  ii.  594. 

Throat,  ii.  594. 

Tick,  ii.  594. 

Tide,  ii.  594. 

Tide-water,  ii.  694. 

Tie,  ii.  595. 

Tiel,  ii.  695. 

Tiempo  inhabil,  ii.  595. 

Tierce,  ii.  595. 

Tigni  immittendi,  ii.  595. 

Timber-trees,  ii.  595. 

Time,  ii.  695. 

Tippling-house,  ii.  596. 

Tipstaff,  ii.  596. 

Tithes,  ii.  596. 

Tithing,  ii.  596. 

Tithingman,  ii.  696. 

Title,  ii.  596. 

stages  of,  ii.  696,  2. 

how  acquired,  ii.  696,  3. 

possession,  ii.  697,  4. 

seller  must  have,  ii.  597,  5. 

in  legislation-,  ii.  697,  5  ,  6. 

in  literature,  ii,  697,  6. 

personal  relations,  ii.  597,  6, 
T. 

in  pleading,  ii.  597,  7. 

in  rights,  ii.  697,  7. 
Title-deeds,  ii.  597. 
Title  of  a  declaration,  ii.  597. 
To  wit,  ii.  597. 
Toft,  ii.  697. 
Togati,  ii.  597. 
Token,  ii.  597. 
Toleration,  ii.  598. 
Toll,  ii.  698. 
Tolls,,  ii.  598. 
Ton,  ii.  698. 
Tonnage,  ii.  598,  599. 
Tontine,  ii.  699. 
Took  and  carried  away,  ii.  599. 
Tools,  ii.  600. 
Tort,  ii.  600. 

distinguished  from  contracts 
ii.  600.  2. 

distinguished  from  crimes, 
ii.  600,  3. 

wrongful  intent  required,  li 

600,  4r,  5. 
classes  of,  ii.  601,  6. 
liability  for,  ii.  601,  7. 
enforcement  of  remedies,  ii. 

601,  8. 
abandonment  for,  ii.  601,  9. 

Tortfeasor,  ii.  601. 
Torture,  ii.  602. 
Total  loss,  ii.  602. 
Totidem  verbis,  ii.  602. 
Toties  quoties,  ii.  602. 
Touch  and  stay,  ii.  602. 
Toujours  et  uncore  prist,  ii.  603 
Tour  d'echelle,  ii.  603. 
Tout  temps  prist,  ii.  603. 


730 


INDEX. 


Towage,  ii.  603. 
Town,  ii.  603. 
Town-plat,  ii.  603. 
Township,  ii.  603. 
Trade,  ii.  603. 
Trade-mark,  ii.  603. 
Trader,  ii.  604. 

Traditio  brevis  manus,  ii.  605. 
Tradition,  ii.  605. 
Traffic,  ii.  605. 
Traitor,  ii.  605. 
Traitorously,  ii.  605. 
Transaction,  ii.  605. 
Transcript,  ii.  605. 
Transfer,  ii.  605. 
Transferee,  ii.  605. 
Transference,  ii.  605. 
Transferor,  ii.  605. 
Transgression,  ii.  605. 
Transhipment,  ii.  605. 
Transire,  iL  605. 
Transitory  action,  ii.  605. 
Transitus,  ii.  606. 
Translation,  ii.  606. 
Transmission,  ii.  606. 
Transportation,  ii.  606. 
Travail,  ii.  606. 
Traverse,  ii.  606. 
Treason,  ii.  606. 
Treasure  trove,  ii.  607. 
Treasurer,  ii.  607. 
Treasurer  of  the  mint,  ii.  607. 
Treasurer  of  the  United  States, 

ii.  607. 
Treasury,  ii.  607. 
Treaty,  ii.  607. 
Treaty  of  peace,  ii.  608. 
Treble  costs,  ii.  608. 
Treble  damages,  ii.  608. 
Trebucket,  ii.  608. 
Tree,  ii.  608. 
Tresaile,  ii.  608. 
Trespass,  ii.  608. 

in  practice,  ii.  609,  2-4» 

lies  for  what,  ii.  609,  2. 

plaintiff  must  have  posses- 
sion, ii.  609,  3. 

some  damage  must  be  done, 
ii.  609,  4. 

formal  proceedings,  ii.  609, 
4, 

justification  in,  776,  2. 
Trespass  de  bonis,  ii.  609. 
Trespass  for  mesne  profits,  ii.  610. 
Trespass  on  the  case,  ii.  610. 
Trespass  quare  clausum,  ii.  610. 
Trespass  vi  et  armis,  ii.  610. 
Trespass  to  try  title,  ii.  610. 
Trespasser,  ii.  610. 
Trespasser  ab  initio,  ii.  611. 
Tret,  ii.  611. 
Trial,  ii.  611. 

by  inspection  of,  ii.  611,  2. 

by  jury,  ii.  611,  3-5. 

at  nisi  prius,  ii.  612,  6. 

by  the  record,  ii.  612,  6,  T. 

by  wager  of  battle,  ii.  612,  7. 

by  wager  of  law,  ii.  612,  8. 

by  witnesses,  ii.  612,  9. 
Trial  list,  ii.  612. 
Tribunal,  ii.  612. 
Tribute,  ii.  613. 
Trinepos,  ii.  613. 
Trineptis,  ii.  613. 
Trinity  term,  ii.  613. 
Trinoda  neccssitas,  ii  613 
Triors,  ii.  613. 
Tripartite,  ii.  613. 
Triplicatio,  ii.  613. 


Tritavus,  ii.  613. 
Trithing,  ii.  613. 
Triumviri  capitales,  ii.  613. 
Trivial,  ii.  613. 
Tronage,  ii.  613. 
Trover,  ii.  613. 

what  property  required,  ii. 
613,  2. 

must  be  personal  chattel,  ii. 
613,  3. 
Troy  weight,  iL  614. 
Truce,  ii.  614. 
Truce  of  God,  ii.  614. 
True  bill,  ii.  615. 
Trust,  ii.  615. 

kinds  of,  ii.  615,  1. 
arises,  when,  ii.  615,  2. 
application     of  purchase- 
money,  129. 
Trustee,  ii.  616. 

who  are,  ii.  616,  2. 

new  one  may  be  appointed, 

ii.  616,  3. 
powers  cannot  be  delegated, 

ii.  616,  4.- 
is  legal  owner,  ii.  616,  5* 
co-trustees  of  joint  tenants, 

ii.  617,  6. 
responsibility  of,  ii.  617,  T. 
Trustee,  ii.  617. 

Trustee  process,  164,  18-25,  ii. 

617. 
Truth,  ii.  617. 
Tub,  ii.  617. 
Tub-man,  ii.  617.  . 
Tumbrel,  ii.  617. 
Tun,  ii.  617. 
Tungreve,  ii.  617. 
Turbary,  ii.  618. 
Turnkey,  ii.  618. 
Turnpike,  ii.  618. 
Turnpike-road,  ii.  618. 
Turpis  causa,  ii.  618. 
Turpitude,  ii:  618. 
Tutela,  ii.  618. 
Tutor,  ii.  619. 
Tutor  alienus,  ii.  619. 
Tutor  proprius,  ii.  619. 
Tutorship,  ii.  619. 
Tutrix,  ii.  619. 

Twelve  tables,  laws  of  the,  285, 

2T,  ii.  619. 
Twelvemonth,  ii.  619. 
Twice  in  jeopardy,  ii.  619. 
Tyburn  ticket,  ii.  619. 
Tyrajiny,  ii.  619. 
Tyrant,  iL  619. 

u. 

Uberrima  fides,  iL  619. 
Ukaas,  ii.  619. 
Ullage,  ii.  619. 
Ultimatum,  ii.  619. 
Ultimum  supplicium,  ii.  620. 
Ultimus  hseres,  ii.  620. 
Ultra  vires,  ii.  620. 
Ultroneus  witness,  ii.  620. 
Umpirage,  ii.  620. 
Umpire,  iL  620. 
Una  voce,  ii.  620. 
Unalienable,  iL  620; 
Unanimity,  ii.  620. 
Uncertainty,  ii.  621. 
Uncia  terrae,  ii.  621. 
Unconscionable  bargain,  iL  621. 
Unconstitutional,  ii.  621. 
Uncore  prist,  ii.  621. 
Unde  nihil  habet,  ii.  621. 


Underlease,  ii.  621. 
Under-tenant,  ii.  621, 
Undertaking,  ii.  621, 
Undertook,  ii.  621. 
Under-tutor,  ii.  621. 
Underwriter,  ii.  621, 
Undivided,  iL  621. 
Unica  taxatio,  ii.  621. 
Uniformity  of  process,  ii.  621. 
Unilateral  contract,  ii.  621. 
Unintelligible,  iL  622. 
Union,  ii.  622. 
Unio  prolium,  ii.  622, 
United  States  of  America,  iL  622 

625. 
Unity,  iL  625. 
Unity  of  possession,  ii.  625. 
Universal  legacy,  ii.  626. 
Universal  partnership,  ii.  626. 
Universal  representation,  iL  626. 
Universitas  juris,  ii.  626. 
Universitas  rerum,  ii.  626. 
University,  ii.  626. 
Unjust,  ii.  626. 
Unknown,  iL  626, 
Unlaw,  ii.  626. 
Unlawful,  iL  626. 
Unlawful  assembly,  iL  626. 
Unlawfully,  ii.  626. 
Unliquidated  damages,  ii.  626, 
Unques,  ii.  626. 
Unsolemn  war,  ii.  626. 
Unsound  mind,  ii.  627. 
Unsoundness,  iL  627. 
Unwholesome  food,  ii.  627, 
Uplifted  hand,  iL  627. 
Upper  bench,  ii.  627. 
Urban,  ii.  627. 
Ufbs,  iL  627, 
Usage,  ii.  627, 
Usance,  iL  627. 
Use,  ii.  628. 

Use  and  occupation,  ii.  628. 
Useful,  iL  629. 
Usher,  iL  629. 

Usque  ad  medium  filum,  iL  629. 

Usucaption,  ii.  629.' 

Usufruct,  ii.  629. 

Usufructuary,  ii.  629. 

Usurpation,  ii.  629. 

Usurped  power,  iL  629. 

Usurper,  iL  629. 

Usury,  ii.  629. 

Utah,  ii.  630. 

Uterine,  ii.  630. 

Uti  possidetis,  ii.  630, 

UtrubL  iL  630. 

Utter,  ii.  630. 

Utter  barrister,  ii.  631. 

Uxor,  ii.  631. 

V, 

Vacancy,  iL  631. 
Vacant  possession,  ii.  631, 
Vacant  succession,  ii.  631. 
Vacantia  bona,  iL  631. 
Vacate,  ii.  631. 
Vacation,  ii.  631. 
Vaccaria,  ii.  631. 
Vadium  mortuum,  ii.  631. 
Vadium  vivum,  iL  631. 
Vagabond,  ii.  631. 
Vagrant,  ii.  631. 
Vagrant  act,  ii.  631. 
Vagueness,  ii.  631. 
Valid,  ii.  631. 
Valor  beneficiomm,  iL  631. 
Valor  maritagii,  ii.  632. 


INDEX. 


731 


Valuable  consideration,  ii.  632. 

Valuation,  ii.  632. 

Value,  ii.  632. 

Value  received,  ii.  632. 

Valued  policy,  ii.  632. 

Vancouver's  Island,  ii.  632. 

Variance,  ii.  632. 

plea  in  abatement,  23,  }86, 
Vassal,  ii.  632. 
Vavasour,  ii.  632. 
Vectigalia,  ii.  633. 
Vejours,  ii.  633. 
Venal,  ii.  ^3. 
Vendee,  ii^33. 
Vendition,  ii.  633. 
Venditioni  exponas,  ii.  633. 
Venditor  regis,  ii.  633. 
Vendor,  ii.  633. 
Vendor's  lien,  ii.  633. 
Venire  facias,  ii.  633. 
Venire  facias  juratores,  ii.  633. 
Venire  facias  de  novo,  ii.  633. 
Vente  a  remire,  ii.  633. 
Venter,  ii.  633. 
Ventre  inspiciendo,  ii.  633. 
Venue,  ii.  634. 

in  local  actions,  ii.  634,  ^8. 

in  transitory  actions,  ii.  634, 
2. 

in  criminal  proceedings,  ii. 
634,  3. 
Veray,  ii.  634. 
Verbal,  ii.  634. 
Verbal  note,  ii.  634. 
Verbal  process,  ii.  634. 
Verderor,  ii.  636. 
Verdict,  ii.  635. 
Verification,  ii.  635. 
Vermont,  ii.  636. 

legislative  power,  ii.  636, 6- 
9. 

executive  power,  ii.  637,  lO. 
judicial  power,  ii.  637,  11- 
13. 

Versus,  ii.  637. 
Vert,  ii.  637. 
Vessel,  ii.  637. 
Vest,  ii.  637. 

Vested  remainder,  ii.  637. 

Vesture  of  land,  ii.  637. 

Vetera  statuta,  ii.  637. 

Vetitum  namium,  ii.  638. 

Veto,  ii,  638. 

Vexation,  ii.  638. 

Vexatious  suit,  ii.  638. 

Vexed  question,  ii.  639. 

Vi  et  armis,  ii.  639. 

Via,  ii.  639. 

Viability,  ii.  639. 

Viable,  ii.  639. 

Vicarage,  ii.  639. 

Vice,  ii.  639. 

Vice-admiral,  ii.  639. 

Vice-chancellor,  ii.  639. 

Vice-consul,  ii.  639. 

Vice-president,  ii.  639. 

Vice  versa,  ii.  640. 

Vicecomes,  ii.  640. 

Vicecomes  non  misit  breve,  ii.  640. 

Vicinage,  ii.  640. 

Vicinetum,  ii.  640. 

Vicontiel,  ii.  640. 

Videlicet,  ii.  640. 

View,  ii.  640. 

View,  demand  of,  ii.  640. 

Viewers,  ii.  640, 

Vigilance,  ii.  640. 

Vill,  ii.  640. 

Villain,  ii.  640. 


Villein,  ii.  640. 
Villein  in  gross,  ii.  640. 
Villein  regardant,  ii.  640. 
Villein  socage,  ii.  641. 
Villenous  judgment,  ii.  641. 
Vinculo  matrimonii,  ii.  641. 
Vindication,  ii.  641. 
Violation,  ii.  641. 
Violence,  ii.  641. 
Violent  profits,  ii.  641. 
Violently,  ii.  641. 
Virga,  ii.  641. 
Virginia,  ii.  641-644. 

history,  ii.  641,  2-5. 

legislative  power,  ii.  642,  6. 

executive  power,  ii.  642,  T> 
8. 

judicial  power,  ii.  643, 9-11. 
Virilia,  ii.  644. 
Virtute  officii,  ii.  644. 
Vis,  ii.  644. 
Vis  impressa,  ii.  644. 
Vis  major,  ii.  644. 
Visa,  ii.  644. 
Viscerunt,  ii.  644. 
Visigothic  code,  285,  2T. 
Visitation,  ii.  644. 
Visitation  books,  ii.  644» 
Visiter,  ii.  644. 
Visne,  ii.  644. 
Viva  voce,  ii.  644. 
Vivay,  ii.  644. 
Vivum  vadium,  ii.  645. 
Vocatio  in  jus,  ii.  646. 
Void,  ii.  645. 
Voidable,  ii.  645. 
Voir  dire,  ii.  645. 
Voluntary,  ii.  645. 
Voluntary  conveyance,  ii.  645. 
Voluntary  deposit,  ii.  646. 
Voluntary  escape,  ii.  646. 
Voluntary  jurisdiction,  ii.  646. 
Voluntary  nonsuit,  ii.  646. 
Voluntary  sale,  ii.  646. 
Voluntary  waste,  ii.  646. 
Volunteers,  ii.  646. 
Vote,  ii,  646. 
Voter,  ii.  646. 
Vouchee,  ii.  646. 
Voucher,  ii.  646. 
Voucher  to  warranty,  ii.  646. 
Voyage,  ii.  646. 
Vulgo  concepti,  ii.  647. 

w. 

Wadset,  ii.  647. 
Wadsetter,  ii.  647. 
Wage,  ii.  647. 
Wager  of  battel,  ii.  647. 
Wager  of  law,  ii.  647. 
Wager  policy,  ii.  647. 
Wager,  ii.  647. 
Wages,  ii.  648. 
Waifs,  ii.  648. 
Wainagium,  ii.  648. 
Waive,  ii.  648. 
Waiver,  ii.  648. 
Wakening,  ii.  648. 
Wand  of  peace,  ii.  649. 
Wantonness,  ii.  649. 
Wapentake,  ii.  649. 
Ward,  ii.  649. 
Ward  in  chancery,  ii.  649. 
Ward-holding,  ii.  649. 
Warden,  ii.  649. 

Warden  of  the  Cinque  Torts,  ii. 
649. 

Wardmote,  ii.  640 


Wardship,  ii.  649. 
Warehouse,  ii.  649. 
Warehouseman,  ii.  660. 
Warrandice,  ii.  650. 
Warrant,  ii.  650. 
Warrant  of  attorney,  ii.  650. 
Warrantee,  ii.  650. 
Warrantia  charts,  ii.  650. 
Warrantor,  ii,  651. 
Warranty,  ii.  651. 

in  insurance,  ii.  651,  2-4. 

in  sales  of  personal  propertji 
ii.  652,  4,  5. 

in  sales  of  real  property,  iL 
662,  5,  6. 
Warranty,  voucher  to,  ii.  662. 
Warren,  ii.  652. 
Washington,  ii.  652. 
Waste,  ii.  654. 

how  committed,  ii.  654,  2- 
T. 

redress  for,  ii.  655,  8,  9. 
Waste-book,  ii.  656. 
Watch,  ii.  656. 
Watch  and  ward,  ii.  656. 
Watchman,  ii.  666. 
Water,  ii.  656, 
Water  bailiff,  ii.  656. 
Water-course,  ii.  656. 
Water  gang,  ii.  657. 
Watergavel,  ii.  657. 
Waveson,  ii.  657. 
Way,  ii.  657. 

right  of,  arises,  how  ii.  657, 
2. 

various  kinds  of,  il  657,  3. 
Way-bill,  ii.  658. 
Way-going  crop,  ii.  658. 
Ways  and  means,  ii.  658. 
Wear,  ii.  658. 
Wed,  ii.  658. 
Week,  ii.  658. 
Weighage,  ii.  658. 
Weight,  ii.  658. 
Weight  of  evidence,  ii.  668. 
Welch  mortgage,  ii.  668. 
Well,  ii.  659. 
Well  knowing,  ii.  659. 
Were,  ii.  659. 
Wergild,  ii.  659. 
West  Saxon  lage,  ii.  659. 
Wether,  ii.  659. 
Whaler,  ii.  659. 
Wharf,  ii.  659. 
Wharfage,  ii.  660. 
Wharfinger,  ii.  660. 
Wheel,  ii,  660. 
Whelps,  ii.  660. 
When,  ii.  660. 
When  and  where,  ii.  660. 
Whereas,  ii.  660. 
Whipping,  ii.  661. 
White  bonnet,  ii.  661. 
White  persons,  ii.  661. 
White  rents,  ii.  661. 
Whole  blood,  ii.  661. 
Wholesale,  ii.  661. 
Widow,  ii.  661. 
Widow's  chamber,  ii.  661. 
Widower,  ii.  661. 
Widowhood,  ii.  661. 
Wife,  ii.  661. 

at  common  law,  ii.  661,  2^  3. 
under  statutes,  ii.  661, 3-12. 

in  Alabama,  ii.  662,  4. 

in  Arkansas,  ii,  662,  4. 

in  California,  ii.  662,  5. 

in  C  nnecticut,  ii.  662, 
6 


732 


INDEX. 


Wife: 

In  Florida,  ii.,662,  T. 
in  Georgia,  ii.  662,  7. 
in  Indiana,  ii.  662,  T» 
in  Kentucky,  ii.  662,  T. 
in  Louisiana,  ii.  662,  T« 
in  Maine,  ii.  662,  T. 
in  Massacliusetts,  ii.  662,  8» 
in  Michigan,  ii.  662,  9. 
in  New  Hampshire,  ii.  662, 
9. 

in  New  Jersey,  ii.  663,  lO. 

in  New  York,  ii.  663,  lO. 

in  Pennsylvania,  ii.  663,  11. 

in  Rhode"  Island,  ii.  663,  11. 

in  Tennessee,  ii.  664,  12. 

in  Wisconsin,  ii.  664,  12, 
Wife's  equity,  ii.  664. 
Wild  animals,  ii,  665. 
Wilfully,  ii.  665. 
Will,  ii.  665. 

nuncupative,  ii.  665,  2. 

written,  ii.  665,  3-14. 

testator's    capacity,  ii. 

665,  3-5. 

mode   of  execution,  ii. 

666,  6,  T. 
revocation,  ii.  667,  8- 

lO. 

republication,  ii.  668, 
11. 

probate,  ii.  668,  11,  12. 

gifts  void  for  uncer- 
tainty, ii.  669,  13. 

cannot  be  reformed,  ii. 
669,  14. 

in  criminal  law,  ii.  669, 
14-11. 

Winchester,  statute  of,  ii.  670. 
Window,  ii.  670. 
Wirta,  ii.  670. 

Wisbuy,  laws  of,  285,  28,  ii. 
670. 

Wisconsin,  ii.  671. 

history,  ii.  671, 1-3. 
legislative  power,  ii.  671,  4. 
executive  power,  ii.  671,  5, 
6. 

judicial  power,  ii.  672,  7,  8. 
Witena-gemote,  ii.  672. 
With  strong  hand,  ii.  672. 


Withdrawing  a  juror,  ii.  672. 
Withdrawing  record,  ii.  672. 
Withernam,  ii.  672. 
Without  day,  ii.  673. 
Without  impeachment  of  waste, 

ii.  673. 
Without  recourse,  ii.  673. 
Without  reserve,  ii.  673. 
Without  this  that,  ii.  673. 
Witness,  ii.  673. 

as  to  competency,  ii.  673,  2- 
6. 

means  of  securing,  ii.  675, 
T,  8. 

as  to  examination,  ii.  676, 
9-12. 

modifications  of  common 
law,  ii.  677,  13-lT. 

in  England,  ii.  677,  13. 

in  United  States  courts, 
ii.  678,  14. 

in  Massachusetts,  ii.  678, 
15. 

in  Pennsylvania,  ii.  678, 
16. 

in  Mississippi,  ii.  678, 
17. 

Wolf's  head,  ii.  679. 
Women,  ii.  679. 
Woodgeld,  ii.  679. 
Woodmote,  ii.  679. 
Woods,  ii.  679. 
Woolsack,  ii.  679. 
Word,  ii.  679. 
Work  and  labor,  ii.  679. 
Workhouse,  ii.  679. 
Working  days,  ii.  679. 
Workman,  ii.  680. 
Worship,  ii.  680. 
Worthiest  of  blood,  ii.  680. 
Wound,  ii.  680. 
Wreck,  ii.  680. 
Writ,  ii.  680. 

Writ  of  association,  ii.  680. 
Writ  de  bono  et  malo,  ii.  681. 
Writ  of  conspiracy,  ii.  681. 
Writ  of  covenant,  ii.  681. 
Writ  of  debt,  ii.  681. 
Writ  of  deceit,  ii.  681. 
Writ  of  detinue,  ii.  681. 
Writ  of  dower,  ii.  681. 


Writ  de  ejectione  firmse,  ii.  681. 
Writ  of  ejectment,  ii.  681. 
Writ  of  entry,  ii.  681. 
Writ  of  error,  ii.  681. 
Writ  of  execution,  ii.  631. 
Writ  of  exigi  facias,  ii.  681. 
Writ  of  formedon,  ii.  681; 
Writ  de  haeretico  comburendo,  ii 
681. 

Writ  de  homine  replegiando,  il 
682. 

Writ  of  inquiry,  ii.  682. 
Writ  of  mainprize,  iL  682. 
Writ  of  mesne,  ii.  6^. 
Writ  de  odio  et  atia,  ii.  682. 
Writ  of  praecipe,  ii.  682. 
Writ  of  prevention,  ii.  682. 
Writ  of  process,  ii.  682. 
Writ  of  proclamation,  ii.  682. 
Writ  of  quare  impedit,  ii.  682. 
Writ  de  rationabili  parte,  ii.  682. 
Writ  of  recaption,  ii.  682. 
Writ  of  replevin,  ii.  682. 
Writ  of  restitution,  ii.  682. 
Writ  pro  retorno  habendo,  ii 
682. 

Writ  of  right,  ii.  682. 
Writ  of  toll,  ii.  682. 
Writ  of  waste,  ii.  683. 
Writers  to  the  signet,  ii.  683. 
Writing,  ii.  683. 
Writing  obligatory,  ii.  683. 
Wrong,  ii.  683. 
Wrong-doer,  ii.  683. 
Wrongfully  intending,  ii.  683. 

Y. 

Yard,  ii.  683. 

Yardland,  ii.  683. 

Year,  ii.  683. 

Year  and  day,  ii.  684. 

Year-books,  ii.  684. 

Year,  day,  and  waste,  ii.  684. 

Years,  estate  for,  ii.  684. 

Yeas  and  nays,  ii.  684. 

Yeoman,  ii.  684. 

Yielding  and  paying,  ii.  684. 

York,  custom  of,  ii.  685. 

York,  statute  of,  ii.  685. 

Young  animals,  ii.  686. 


THE  END. 


STEREOTYPED  BY 
KACKELLAR,  SMITHS  k  JORDAN, 
PHILADELPHIA. 


f 


UNIVERSITY  OF  ILLINOIS-URBANA 


3  0112  107266584 


